MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT ( #157)

JANE S. SCHOLL, JUDGE.

In this medical malpractice case, a verdict in favor of the Defendants was rendered on May 17, 2005. By Motion dated May 27, 2005, the Plaintiff has moved to set aside the verdict on the grounds that it was reached due to errors of law in the course of the trial. The Defendants filed an objection to the motion on June 6, 2005. Oral argument on the motion was heard by the court on September 12, 2005.

The following evidence was presented at trial. On March 15, 2000, the Plaintiff's decedent, Norman Chaput, was involved in a motor vehicle accident with a car operated by William Meikle. He was transported by ambulance from the scene to Windham Hospital. Windham Hospital is not designated as a trauma center. Mr. Chaput's condition when he arrived at the hospital was that he had suffered a broken ankle, he had bruising and hematoma in his groin area, and he was morbidly obese and diabetic. He was admitted to Windham Hospital. His condition deteriorated over the next few days, and on March 18, 2000 he was transferred to Hartford Hospital. Hartford Hospital is designated as a level one trauma center by the American College of Surgeons. Mr. Chaput died shortly after his arrival at Hartford Hospital. The exact cause of his death is unknown because no autopsy was performed. However, the Plaintiff's expert, Dr. Joseph Dineen, opined that Mr. Chaput died of shock and trauma.

The Plaintiff claimed at trial that the Defendant doctor breached the standard of care in that he failed to properly diagnose the Plaintiff's decedent's condition and he failed to promptly transfer him to a hospital where he could have received appropriate care.

In his Motion to Set Aside Verdict, the Plaintiff claims that the court made two errors in ruling on evidentiary issues during the course of the trial. First, the Plaintiff claims that the court erred in admitting evidence that the Plaintiff had instituted an action alleging wrongful death against William Meilke. Second, the Plaintiff claims that the court erred in limiting the testimony of the Plaintiff's expert, Joseph Dineen, M.D.

"A court may `set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.' (Internal quotation marks omitted.) Bovat v. Waterbury, 258 Conn. 574, 583, 783 A.2d 1001 (2001), quoting Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928); see also Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276-77, 828 A.2d 64 (2003); Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 206, 470 A.2d 705 (1984). The power to set aside a verdict is inherent and is `indispensable to the proper administration of justice, otherwise the court would be powerless to undo the wrong it had unintentionally done in the course of the trial although it had become aware of the error it had made in time to right the wrong.' Munson v. Atwood, supra, 108 Conn. 288." Message Center Management v. Shell Oil Prod., 85 Conn.App. 401, 414-15 (2004).

As to the first claim, the court allowed the Defendants, on cross-examination of the Plaintiff, to introduce evidence regarding the claims made by the Plaintiff against Meikle, since they went to his credibility. The Supreme Court has stated: "`As we have recently reiterated, statements in complaints against parties subsequently withdrawn from a cause of action are admissible as evidence . . .' Oberempt v. Egri, 176 Conn. 652, 655, 410 A.2d 482 (1979). This statement is but a corollary of the rule we have consistently followed under which statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import. See, e.g., DiFederico v. McNamara, 181 Conn. 54, 55, 434 A.2d 320 (1980); Oberempt v. Egri, supra, 655; Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978); Brockett v. Jensen, 154 Conn. 328, 336, 225 A.2d 190 (1966); Connecticut Bank Trust Co. v. Rivkin, 150 Conn. 618, 622, 192 A.2d 539 (1963); Cramer v. Kolodney Meyers, Inc., 129 Conn. 468, 472, 29 A.2d 579 (1942); Nichols v. Nichols, 126 Conn. 614, 620, 13 A.2d 591 (1940); Theron Ford Co. v. Dudley, 104 Conn. 519, 525, CT Page 17098 133 A. 746 (1926); Loomis v. Norman Printers Supply Co., 81 Conn. 343, 350, 71 A. 358 (1908) . . . Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Practice Book 94, 137; Veits v. Hartford, 134 Conn. 428, 434-35, 58 A.2d 389 (1948) . . . We do not believe that the policy supporting the liberal pleading rules controlling in this jurisdiction requires any such limitation on the use of superseded or abandoned pleadings as evidence of admissions contained therein. While alternative and inconsistent pleading is permitted, it would be an abuse of such permission for a plaintiff to make an assertion in a complaint that he does not reasonably believe to be the truth. See Practice Book 111 . . . Given that the statements have some probative value, we believe that the circumstances under which they are made, as with any other `admission,' go to the weight to be accorded the statements rather than their admissibility. Stitham v. LeWare, 134 Conn. 681, 684, 60 A.2d 658 (1948); see also Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977); Bogart v. Tucker, 164 Conn. 277, 281, 320 A.2d 803 (1973); Perrelli v. Savas, 115 Conn. 42, 43-44, 160 A. 311 (1932) . . . In sum, we continue to believe that `[t]he rule concerning the admissibility into evidence of admissions in pleadings is too well established in law and sound in reason to be modified as the plaintiff urges. The time has passed when allegations in a pleading will be treated as mere fictions, rather than `as statements of the real issues in the cause and hence as admissions of the parties.' 2 Jones, Evidence (5th Ed.), p. 693; see also 4 Wigmore, Evidence (3d Ed.) 1066, pp. 52-54.' Tough v. Ives, 162 Conn. 274, 283, 294 A.2d 67 (1972)." Dreier v. Upjohn Co., 196 Conn. 242, 244-8 (1985). Thus the pleading here was properly admitted by the court. In addition, the Plaintiff was permitted to explain why this case was filed in light of the complaint against Meikle and indicated that there was minimal insurance in that case and it was settled. Lastly, the court instructed the jury in its charge that: "You have also heard that the Plaintiff at one time made certain statements in a complaint in a lawsuit against Mr. Meikle. In making statements in pleadings, parties are supposed to make only those statements they believe are true at the time they make them. You may consider as evidence the fact that the statement was made, but in deciding what weight or effect to give the making of the statement in the pleading, you may also consider any explanations given as to the circumstances for making it." This is consistent with the Court's decision in Dreier.

As to the second claim, the Plaintiff argues that the court erred in not permitting his expert, Dr. Dineen, to testify as to particular matters concerning generalized knowledge and statistics establishing that persons in Level I or II trauma centers are more likely to survive injuries such as those suffered by the Plaintiff's decedent than persons taken to an undesignated hospital. After a hearing on motions in limine in which Dr. Dineen testified outside the presence of the jury, the court determined that it would not allow Dr. Dineen to testify as to opinions based on statistics related to the claim that patients with multiple system organ failures generally do better in trauma centers. The court stated it would allow testimony only as it related to the particular facts of this case. The court ruled that it would limit Dr. Dineen's testimony to his opinion that Mr. Chaput would have done better if he had been transferred to Hartford Hospital earlier. Before the jury Dr. Dineen did testify that Mr. Chaput was a multiple system trauma patient who should have been admitted to a level-one trauma center. Dr. Dineen also offered the opinion that Mr. Chaput would have been intubated and transfused earlier if he had been transferred to a trauma center sooner. He opined that if Mr. Chaput had been transferred to such a center earlier he would likely have survived.

The court limited Dr. Dineen's testimony based on what the Appellate Court stated in Drew v. William W. Backus Hospital, 77 Conn.App. 645 (2003). There the plaintiffs claimed that on the basis of symptoms being exhibited by the plaintiffs' decedent while she was under the defendant doctor's care, symptoms which he should have better monitored and investigated, the standard of care required the doctor to transfer the child to a "pediatric intensive care and/or tertiary care center several hours before" she experienced cardiopulmonary arrest. In support of this claim the plaintiffs offered statistical evidence of the chances of survival of all children with the same diagnosis. The court did not reach the issue of the use of such evidence because the witness through whom it was offered stated it could not be applied to the plaintiffs' decedent. The court held that: "Expert opinion should apply specifically to the factual scenario that necessitated the expert opinion in the first place." (Footnote and citation omitted.) Drew v. William W. Backus Hospital, 77 Conn.App. 645, 666, cert. granted, 265 Conn. 909 (2003).

Here the court did not allow Dr. Dineen to testify as to general statistical information regarding the overall mortality rates of patients such as the Plaintiff's decedent when treated by a trauma center as opposed to a facility not certified to handle trauma patients. The court did allow Dr. Dineen to testify as to his opinions regarding the Plaintiff's decedent's chances for survival if he had been transferred earlier to a trauma center. This was consistent with the court's decision in Drew.

In any event, even if the court erred in so limiting Dr. Dineen's testimony, such error was harmless and does not warrant setting aside the verdict. "[T]he standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling likely would have affected the result." (Internal quotation marks and citations omitted.) Duffy v. Flagg, 88 Conn.App. 484, 490 (2005). In light of Dr. Dineen's testimony related specifically to the issue of whether the Plaintiff's decedent would have had a better chance of surviving if he had been transferred earlier to an appropriate trauma center, testimony regarding general statistics regarding survival rates of similar patients treated in trauma centers would only been cumulative and of limited additional probative value.

In addition, in ruling on a motion to set aside a jury verdict, the court is required to view the evidence at trial in the light most favorable to sustaining the verdict. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534 (1999). In contrast to Dr. Dineen's testimony, the jury also heard the testimony of the Defendants' expert, Dr. Carlos Barba. Dr. Barba testified that the standard of care did not require the earlier transfer of Mr. Chaput and that nothing would have been done for him at a trauma center that was not done at Windham Hospital. Thus the evidence supports the jury's verdict.

Thus the Motion to Set Aside Verdict is denied.