Corbo v. Savluk ( 2021 )

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ELISABETH M. CORBO v. CHRISTOPHER J. SAVLUK
(AC 43727)
Alvord, Cradle and Lavine, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries that she alleg-
edly sustained during a motor vehicle accident as a result of the defen-
dant’s negligence. Several days after the accident, the plaintiff visited
a walk-in clinic, where medical personnel conducted a physical examina-
tion of the plaintiff. The clinic’s medical report noted that the plaintiff
reported experiencing tenderness near her sternum and rib cage.
Approximately one week later, the plaintiff had an initial appointment
with a chiropractor, at which she presented with various other areas
of pain. At trial, the defendant’s counsel cross-examined the plaintiff
regarding alleged inconsistencies in the descriptions of her reported
symptoms at her visit to the walk-in clinic and at the chiropractor, and
sought to introduce evidence of the date that the plaintiff first contacted
an attorney. The court permitted the defendant’s counsel to introduce
into evidence a letter that indicated that the plaintiff retained counsel
in the period between her visit to the walk-in clinic and her appointment
at the chiropractor to explain why her description of injuries to the
chiropractor lacked credibility. Following the jury’s verdict in favor of
the defendant, the plaintiff filed a motion to set aside the verdict, claiming
that the admission of the letter, was improper. The trial court denied
the motion and rendered judgment in accordance with the verdict, from
which the plaintiff appealed to this court. Held:
1. The trial court did not abuse its discretion when it allowed the defendant’s
counsel to question the plaintiff about the timing of her first consultation
with counsel after the motor vehicle accident for purposes of impeach-
ment: the examination of the plaintiff by the defendant’s counsel as to
that issue was relevant to the defendant’s claim that the plaintiff lacked
credibility due to her changing descriptions of her injuries between
visiting a walk-in clinic and commencing treatment with a chiropractor;
moreover, expert testimony was not required to determine that there
was a potential factual discrepancy for the jury to resolve concerning
the plaintiff’s changing descriptions of her injuries.
2. The trial court did not abuse its discretion when it permitted the defen-
dant’s counsel to introduce a letter that indicated that the plaintiff had
retained counsel to represent her in connection with the accident under
the residual exception to the hearsay rule: there was a reasonable neces-
sity for the admission of the letter into evidence because the plaintiff
could not recall whether she had met with counsel prior to her initial
visit with the chiropractor despite effort by the defendant’s counsel to
refresh her recollection, and the letter was relevant to the plaintiff’s
credibility due to her changing descriptions of her injuries; moreover,
the letter bears the requisite indicia of trustworthiness and reliability.
Argued September 14–officially released December 21, 2021
Procedural History
Action to recover damages for personal injuries alleg-
edly sustained as a result of the defendant’s negligence,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before Budzik, J.; verdict
for the defendant; thereafter, the court, Budzik, J.,
denied the plaintiff’s motion to set aside the verdict,
and rendered judgment in accordance with the verdict,
from which the plaintiff appealed to this court.
Affirmed.
William B. Wynne, for the appellant (plaintiff).
Jack G. Steigelfest, for the appellee (defendant).
Opinion
LAVINE, J. In this negligence action stemming from
a motor vehicle collision, the plaintiff, Elisabeth M.
Corbo, appeals from the judgment of the trial court
rendered after a jury verdict for the defendant, Christo-
pher J. Savluk. On appeal, she claims that the court
improperly (1) permitted the defendant’s attorney to
question her regarding when she first contacted an
attorney and (2) admitted into evidence a letter that
indicated that the plaintiff had retained counsel to rep-
resent her in connection with the accident. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of April 18, 2016, the defendant,
while traveling in the southbound lane on Old County
Road in Windsor Locks, rear-ended the vehicle in front
of him, which was being operated by an individual who
is not a party to this action, which resulted in that
vehicle colliding with the plaintiff’s vehicle as it traveled
in the northbound lane on Old County Road. At the
scene, a police officer asked the plaintiff if she needed
medical attention, and she responded in the negative.1
The following day, she went to the emergency room
but left without seeing a doctor. On April 21, 2016, the
plaintiff went to a Hartford Healthcare walk-in clinic.
The medical report from the walk-in clinic states that
the plaintiff had reported ‘‘some discomfort where the
seatbelt was on her,’’ that her ‘‘[a]ssociated symptoms
include myalgias’’ and indicated that ‘‘[p]ertinent nega-
tives include no neck pain.’’ The walk-in clinic report
also contained a musculoskeletal diagram under the
heading ‘‘[p]hysical [e]xam,’’ which noted tenderness
near the plaintiff’s sternum and right ribcage. A letter
from the Adler Law Group, LLC (Adler Law), dated
April 27, 2016, which was admitted as a full exhibit at
trial with the name of the recipient redacted, states
that the plaintiff had retained them to represent her in
connection with the motor vehicle collision. On April
29, 2016, the plaintiff had an initial appointment with
Gary Italia, a chiropractor. The report from that initial
visit states that the plaintiff ‘‘presents to the office with
neck pain, back pain, bilateral rib/flank pain and chest
pain that began on 4/18/2016 from a motor vehicle acci-
dent.’’
The plaintiff brought the underlying action alleging
negligence against the defendant in April, 2018. The
defendant admitted in his answer that he had failed to
keep a proper and reasonable lookout for other vehicles
on the roadway, and trial proceeded on the issues of
causation and damages only. The jury returned a verdict
in favor of the defendant. This appeal followed.
I
The plaintiff claims that the court erred when it per-
mitted the defendant’s attorney to question her regard-
ing when she first contacted an attorney after the acci-
dent. The plaintiff contends that ‘‘once the issues of
fraud and deceit are presented to a jury, the trial
becomes a Wild West Show. The trial is no longer about
liability and damages but greedy plaintiffs, television
lawyers, and insurance rates.’’ We are not persuaded.
The following additional facts and procedural history
are relevant to our disposition of this claim. The plaintiff
testified on direct examination that there had been no
change in her injuries or the pain she had experienced
from the time of the collision until her initial visit with
Italia, at which time she reported neck pain, back pain,
bilateral rib flank pain, and chest pain. On cross-exami-
nation, when questioned about the walk-in clinic report
that indicated she had no neck pain, the plaintiff
explained, ‘‘That’s what he wrote, that’s not what I said.’’
When further asked regarding the musculoskeletal dia-
gram in the walk-in clinic report that noted tenderness
in two frontal locations and not on her back, she
responded, ‘‘I don’t know what that means. I don’t even
know that he asked me anything.’’ When questioned
whether her complaint to Italia of constant pain since
the date of the collision was inconsistent with the symp-
toms indicated on the report from her visit at the walk-
in clinic, she responded, ‘‘I wasn’t there long enough
for anyone to ask me all these questions from the walk-
in clinic, which is part of the reason why I didn’t feel
any of them were effective at all.’’ The defendant’s coun-
sel then requested a sidebar conference. The court
noted on the record, outside the presence of the jury,
that the defendant’s counsel sought to question the
plaintiff for credibility purposes regarding the date that
she first contacted an attorney. The plaintiff’s counsel
objected, stating that the underlying presumption
behind the question, that is, that the plaintiff’s descrip-
tion of her symptoms was inconsistent, lacks a medical
foundation because her testimony was consistent as
she complained of neck and back pain when she visited
the walk-in clinic. The court concluded that the defen-
dant’s counsel had, by establishing a discrepancy
between the plaintiff’s descriptions of her symptoms,
laid a proper foundation to inquire whether the plaintiff
had consulted counsel in between her visit to the walk-
in clinic and her initial visit to the chiropractor for
purposes of impeachment. It stated that the evidence
‘‘at least arguably characterizes the plaintiff’s symptoms
one way and that is different than how she described
her symptoms after she consulted counsel. Again,
whether or not the jury chooses to credit any of that evi-
dence, that’s up to them. But I think he’s laid a foun-
dation to ask the question for purposes of impeachment
and general credibility of the witness.’’
Our standard of review is well established. ‘‘Upon
review of a trial court’s decision, we will set aside an
evidentiary ruling only when there has been a clear
abuse of discretion. . . . The trial court has wide dis-
cretion in determining the relevancy of evidence and
the scope of cross-examination and [e]very reasonable
presumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Internal quotation marks
omitted.) McCrea v. Cumberland Farms, Inc., 204
Conn. App. 796, 804, 255 A.3d 871, cert. denied, 338
Conn. 901, 258 A.3d 676 (2021). ‘‘Cross-examination, in
quest for the truth, provides a means for discrediting
the testimony of a witness. When pursued for that pur-
pose, the examination frequently and legitimately
enters into matters collateral to the main issues. . . .
Given that function of cross-examination in shedding
light on the credibility of the witness’ direct testimony,
[t]he test of relevancy is not whether the answer sought
will elucidate any of the main issues, but whether it
will to a useful extent aid the . . . jury in appraising
the credibility of the witness and assessing the proba-
tive value of the direct testimony.’’ (Citation omitted;
internal quotation marks omitted.) Trumpold v. Besch,
19 Conn. App. 22, 26–27, 561 A.2d 438, cert. denied, 212
Conn. 812, 565 A.2d 538 (1989), cert. denied, 494 U.S.
1029, 110 S. Ct. 1476, 108 L. Ed. 2d 613 (1990); see also
Conn. Code Evid. §§ 4-1 and 4-3. ‘‘It is well established
that [c]ross-examination is an indispensable means of
eliciting facts that may raise questions about the credi-
bility of witnesses and, as a substantial legal right, it
may not be abrogated or abridged at the discretion of
the court to the prejudice of the party conducting that
cross-examination.’’ (Internal quotation marks omit-
ted.) McCrea v. Cumberland Farms, Inc., supra, 806.
In Trumpold v. Besch, supra, 19 Conn. App. 24, this
court rejected a claim that the trial court improperly
permitted the defendants’ counsel to ask the plaintiffs
when they first had contacted an attorney. The defen-
dants argued that, because there was a disparity in
evidence presented by the parties concerning the force
of the impact and the severity of injuries, the trial court
properly permitted evidence that Alfred Trumpold, the
plaintiff who was involved in the motor vehicle colli-
sion, did not seek medical assistance immediately, but
instead consulted an attorney. Id., 26. This court agreed
with the defendants that such inquiry ‘‘was permissible
on these particular facts. Under other factual circum-
stances, such evidence might be inadmissible’’ and rea-
soned that ‘‘[t]he trial court, in its discretion, could have
concluded that the information was useful to the jury
in assessing the parties’ testimony concerning the
nature of the accident, and on cross-examination the
defendants were entitled to demonstrate to the jury
apparent weaknesses in the plaintiffs’ testimony educed
during direct examination.’’ Id., 26–27.
The mere fact, in and of itself, that someone is repre-
sented by counsel generally has no legal relevancy
because it has no tendency to make a fact more proba-
ble or less probable. See Conn. Code Evid. § 4-1 (defin-
ing ‘‘[r]elevant evidence’’). Nevertheless, under the facts
of the present case, we conclude that the court did not
abuse its discretion in determining that the defendant
had established a proper foundation to ask, for pur-
poses of credibility, when the plaintiff first contacted
an attorney. The record from the plaintiff’s April 21,
2016 visit to the walk-in clinic indicates that she had
no neck or back pain. The plaintiff’s testimony on direct
examination as well as the report from the plaintiff’s
April 29, 2016 visit with Italia indicate that she had
experienced constant pain in numerous areas, including
her neck and back, since the date of the collision. Evi-
dence that the plaintiff had retained counsel in between
visiting the walk-in clinic and commencing treatment
with Italia was relevant to the defendant’s view of the
evidence that the plaintiff’s description of her injuries
to Italia lacked credibility. See, e.g., McCrea v. Cumber-
land Farms, Inc., supra, 204 Conn. App. 805–806 (evi-
dence that plaintiff consulted attorney prior to seeking
medical treatment was relevant to issue of plaintiff’s
credibility regarding claimed injuries).
The plaintiff argues, however, that ‘‘the trial court’s
error was, sua sponte, to assume the role of an expert
and give an opinion that the medical complaints were
inconsistent.’’2 She contends that Italia’s testimony
establishes that her descriptions of her injuries to medi-
cal personnel at the walk-in clinic and to Italia were
not inconsistent.3 The plaintiff has not directed us to
any case law, nor are we aware of any, that requires
expert testimony in this context.4 Rather, the court did
not need such expert testimony in order to determine
that there was a potential factual discrepancy for the
jury to resolve concerning the plaintiff’s complaint to
Italia on April 29, 2016, that the pain in her neck, back,
and other locations had begun on the date of the colli-
sion and the plaintiff’s record from her visit with the
walk-in clinic that indicated no neck or back pain. This
is the sort of routine, straightforward determination
that judges frequently are required to make. For the
foregoing reasons, we conclude that, under the facts
of the present case, the court did not abuse its discretion
in permitting the defendant’s counsel to inquire into
the timing of the plaintiff’s consultation with counsel
for purposes of impeachment.
II
The plaintiff also claims that the court erred in admit-
ting into evidence a letter to an undisclosed recipient
from Adler Law, the law firm that represented the plain-
tiff at trial, that indicated that the plaintiff had retained
counsel to represent her in connection with the acci-
dent. We disagree.
The following additional facts and procedural history
are relevant. After unsuccessfully attempting to refresh
the plaintiff’s recollection as to whether she consulted
an attorney prior to her initial chiropractic visit with
Italia on April 29, 2016, the defendant’s counsel showed
the plaintiff exhibit D, which was marked for identifica-
tion. Exhibit D was a redacted version of a letter from
Adler Law dated April 27, 2016, which stated that the
plaintiff had retained them to represent her in connec-
tion with injuries she had sustained as a result of the
collision. The defendant’s counsel inquired whether, to
the best of the plaintiff’s knowledge, the information
contained in exhibit D was accurate. The plaintiff
responded, ‘‘I guess so,’’ and further stated, ‘‘I don’t
know numbers. I don’t know names. I don’t know any
of those things. I can’t verify the accuracy of the sheet.’’
The defendant’s counsel then offered exhibit D as a full
exhibit. The plaintiff’s counsel objected on the basis
that the document contained hearsay, and that the plain-
tiff had not identified the document. The court over-
ruled the plaintiff’s objection and, outside the presence
of the jury, stated that it had admitted the document
under the residual exception to the hearsay rule, reason-
ing that there was a reasonable necessity for the admis-
sion into evidence of exhibit D, and that the April 27,
2016 letter, which is a business record, was trustworthy
and reliable.
The following legal principles are relevant. ‘‘An [out-
of-court] statement is hearsay when it is offered to
establish the truth of the matters contained therein.
. . . As a general rule, hearsay evidence is not admissi-
ble unless it falls under one of several well established
exceptions.’’ (Internal quotation marks omitted.) State
v. Bennett, 324 Conn. 744, 762, 155 A.3d 188 (2017).
The residual exception to the hearsay rule ‘‘admits into
evidence statements that are technically hearsay and
which do not fit within any traditional exception.’’ State
v. Dollinger, 20 Conn. App. 530, 539, 568 A.2d 1058,
cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). The
residual exception to the hearsay rule provides that
‘‘[a] statement that is not admissible under any of the
foregoing exceptions is admissible if the court deter-
mines that (1) there is a reasonable necessity for the
admission of the statement, and (2) the statement is
supported by equivalent guarantees of trustworthiness
and reliability that are essential to other evidence admit-
ted under traditional exceptions to the hearsay rule.’’
Conn. Code Evid. § 8-9. ‘‘Reasonable necessity is estab-
lished by showing that unless the hearsay statement is
admitted, the facts it contains may be lost, either
because the declarant is dead or otherwise unavailable,
or because the assertion is of such a nature that evi-
dence of the same value cannot be obtained from the
same or other sources.’’ (Internal quotation marks omit-
ted.) State v. Abernathy, 72 Conn. App. 831, 852, 806
A.2d 1139, cert. denied, 262 Conn. 924, 814 A.2d 379(2002).
‘‘It is well settled that [w]e review the trial court’s
decision to admit [or exclude] evidence, if premised on
a correct view of the law . . . for an abuse of discre-
tion. . . . Under the abuse of discretion standard, [w]e
[must] make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion.’’ (Citation omitted; inter-
nal quotation marks omitted.) Filippelli v. Saint Mary’s
Hospital, 319 Conn. 113, 119, 124 A.3d 501 (2015). ‘‘A
court’s conclusion as to whether certain hearsay state-
ments bear the requisite indicia of trustworthiness and
reliability necessary for admission under the residual
exception to the hearsay rule is reviewed for an abuse
of discretion.’’ State v. Faison, 112 Conn. App. 373, 384,
962 A.2d 860, cert. denied, 291 Conn. 903, 967 A.2d 507(2009). ‘‘We review the trial court’s conclusion regard-
ing reasonable necessity for the admission of the hear-
say statements under an abuse of discretion standard.’’
In re Tayler F., 296 Conn. 524, 537, 995 A.2d 611 (2010).
The plaintiff argues that the court made no findings
that there was a reasonable necessity for the admission
of the letter or that the letter was trustworthy or reli-
able.5 The court, however, stated on the record that
there was a reasonable necessity for the admission of
the April 27, 2016 letter into evidence and that the letter
was trustworthy and reliable. As we have explained in
part I of this opinion, the date that the plaintiff retained
counsel was relevant to the credibility of the plaintiff’s
changing description of her injuries. Despite the effort
by the defendant’s counsel to refresh the plaintiff’s rec-
ollection, the plaintiff stated that she could not recall
whether she had met with Adler Law prior to her initial
visit with Italia. The court reasonably could have deter-
mined that permitting the April 27, 2016 letter to be
admitted under the residual exception was preferable
to the potential ethical complications that could arise
if the defendant’s counsel were to call the plaintiff’s
counsel or another employee from Adler Law to testify
at trial regarding the date that the plaintiff had retained
the firm to represent her. We conclude that the court
did not abuse its discretion in determining that there
was a reasonable necessity for the introduction of the
April 27, 2016 letter and that the letter bears the requisite
indicia of trustworthiness and reliability.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff testified at trial that she had explained to the officer that
she did not want medical attention because her husband was at home and
was sick. On cross-examination, she admitted that she had testified at a
deposition that, when asked by a police officer at the scene whether she
needed an ambulance, she responded ‘‘no, I’m okay.’’
2
The plaintiff further argues that the proper procedural vehicle for the
defendant to present a medical opinion concerning any alleged inconsistency
in the plaintiff’s descriptions of her injuries ‘‘was already established as the
plaintiff filed a motion in limine. . . . The trial court then would have had
the opportunity to rule on the motion and, if granted, the jury would never
be tainted.’’ Before proceeding with the start of evidence on October 29,
2019, the court explained that there had been a discussion in chambers
regarding the plaintiff’s motion in limine concerning the attorney-client
relationship between the plaintiff and her counsel. The court explained that
it had ruled as to how those issues would be dealt with at trial and asked
the parties if they had anything further to put on the record. The plaintiff’s
counsel responded in the negative and further stated, ‘‘I think from our
discussions at chambers, we’ll deal with it through the evidence.’’ The plain-
tiff, who had expressed agreement with the trial court’s decision to address
the issue during the presentation of evidence, cannot now claim on appeal
that the ruling was in error. ‘‘It is well established that [w]hen a party
consents to or expresses satisfaction with an issue at trial, claims arising
from that issue are deemed waived and may not be reviewed on appeal.’’
(Internal quotation marks omitted.) Stratek Plastics, Ltd. v. Ibar, 179 Conn.
App. 721, 731–32, 178 A.3d 1135 (2018).
3
Specifically, the plaintiff highlights the portion of Italia’s testimony in
which he explains that ‘‘myalgia’’ is a medical term for muscle pain and
that it is not uncommon for an individual to experience localized pain from
an injury and ‘‘not really feel anything,’’ but then one or more weeks later,
experience irritation in the surrounding tissues caused by a spreading of
the inflammation. The report from the plaintiff’s initial visit with Italia as
well as her testimony at trial reveal that the plaintiff, during her initial visit
with Italia, stated that she had experienced pain in her neck, back, and
other locations since the date of the collision.
4
As the plaintiff aptly points out, ‘‘[e]xpert testimony should be admitted
when: (1) the witness has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not common to the average
person, and (3) the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opinion the witness must
be qualified to do so and there must be a factual basis for the opinion.’’
(Internal quotation marks omitted.) Gostyla v. Chambers, 176 Conn. App.
506, 512, 171 A.3d 98 (2017), cert. denied, 327 Conn. 993, 175 A.3d 1244 (2018).
5
The plaintiff argues that, because the letter was not authenticated by
the keeper of the records at Adler Law, but, rather, was admitted on the
basis of the testimony of the plaintiff, who did not recall having seen the
document previously, that it was not admissible pursuant to the business
records exception to the hearsay rule, General Statutes § 52-180. Although
the court stated in front of the jury that the document ‘‘appears on its face
as plainly a business record,’’ the court later, outside the presence of the
jury, stated that it was admitting the letter under the residual exception to
the hearsay rule and that it ‘‘didn’t want to comment to that effect in front
of the jury.’’ We conclude that the court properly admitted the letter under
the residual exception to the hearsay rule and, therefore, do not address
this argument.