Opinion
FSTCV075003525S
04-07-2017
Barbara Tiplady, Administratrix v. Samuel Maryles, M.D
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION IN LIMINE (#317.00)
Kenneth B. Povodator, J.
Currently before the court is a motion in limine filed by the non-hospital defendants--Dr. Maryles and the EMP defendants (#317.00)--and the plaintiff's objection to that motion (#322.00). Specifically, the defendants seek " to preclude the plaintiff, plaintiff's counsel, and plaintiff's witnesses from displaying, offering, or making reference to (1) the Consent Order dated February 2, 2007 from the New York State Department of Health, State Board for Professional Medical Conduct; and (2) the number of times Dr. Maryles took the medical board examination before passing." The court heard extended argument on the motion and the plaintiff's objections on March 24, 2017.
For convenience and simplicity, the court may refer to Dr. Maryles as the defendant or defendant doctor, and may refer to all three moving defendants (excluding the hospital) as the defendants.
Inadvertently, the plaintiff refers to the motion under consideration as being designated #312.00. (#312.00 is a separate motion that is currently being considered by the court.)
For all involved (except the undersigned), this is " round two" --the case went to verdict in 2012, resulting in a judgment in favor of the defendants. The judgment was appealed, and reversed, 158 Conn.App. 680, 120 A.3d 528 (2015); cert. denied, 319 Conn. 946, 125 A.3d 527 (2015). The principal basis on which the judgment was reversed was that although the defendant doctor had not been disclosed as an expert and his testimony initially was not offered as (claimed to be) that of an expert, a progression of questions including what the Appellate Court characterized as opening-the-door questions (and answers) led to the doctor providing expert testimony, and the Appellate Court further concluded that once the defendant doctor was allowed to testify (de facto) as an expert, the plaintiff should have had an adequate opportunity to cross examine him relating to his qualifications and credentials. 158 Conn.App. at 696-97. Notably, the earlier trial court had granted a motion similar if not identical to the current motion; see, 120 A.3d at 533-34, with the caveat that if evidence of the doctor's qualifications or habit were to be presented by the defendants, the court would revisit the issue of admissibility, 120 A.3d at 534.
The motion appears to have been coded as #196.00; the associated order makes reference to a transcript which does not appear to have been e-filed.
To summarize the history and context of the current motion: a similar motion had been filed and granted in connection with the earlier trial, with the trial court noting that if the defendant doctor were to testify as an expert, the evidence sought to be excluded here might be admissible. In the original trial as here, the defendant doctor has not been identified as an expert. The Appellate Court made it clear that if the defendant doctor were to offer expert-type evidence, the plaintiff must be allowed a fair opportunity for cross examination into qualifications and other related matters.
Against this history, the defendants are attempting to assure the court that the defendant doctor will not testify as an expert, such that the preclusion of the identified evidence/testimony would not implicate the plaintiff's ability to cross examine the doctor as appropriate (the basis for the Appellate Court reversal of the earlier judgment). The plaintiff has taken the position that the defendants' effort to sharply delineate the non-expert testimony that will be given by the doctor is unrealistic and illusory--the plaintiff contends that the dividing line that the defendants claim they will honor already crosses over into an area where the plaintiff should be allowed to cross examine relating to qualifications, etc., potentially if not necessarily exposing the doctor to impeachment on these bases.
The court routinely prefaces arguments concerning motions in limine by the caveat that the motion is seeking an absolute, advance determination of admissibility at a time that the court has no real evidentiary context in which to resolve the claim. (The court also typically notes that even in those instances where such a motion is granted, if the actual trial unfolds in a not-as-predicted manner, the court would revisit the ruling on the motion.) In this case, there is at least a context in the form of the appellate decision, but the parties are not in agreement as to the lessons to be learned from the appellate decision.
Before addressing the merits of the motion, the court feels compelled to emphasize the posture of this motion, given some comments made during argument on April 3, 2017; the focus was a different issue, but issues relating to this motion were identified and discussed.
The court is addressing a motion seeking to preclude all testimony and evidence as identified in the motion. The motion seeks a definitive ruling (even if implicitly subject to the court's routine caveat about the possibility of a change based on the manner in which the case unfolds). The plaintiff has objected. The plaintiff, however, seems concerned about generalized comments that the court made concerning the precise circumstances under which the evidence might come in, were the court to deny the motion. As identified during that recent colloquy/argument (and seemingly not disputed), there had been a " creeping" quality to the scope of expert questions and testimony in the earlier trial (over the course of various examinations of the witness). It also does not appear to be disputed that there is a spectrum of evidence from and relating to the defendant doctor, at one end of which there likely would not be a basis for offering the impeachment evidence as is being discussed.
Under such circumstances, and recognizing further that there is no motion before the court explicitly asking the court to try to do so, the court cannot articulate the precise location on the continuum of possible evidence relating to (or coming from) the defendant doctor, which might trigger admissibility. The court is being asked to determine admissibility (or more accurately, the absence of a basis for admissibility) in absolute terms (or at least in presumptive terms, to the extent that the court can predict with confidence the likely track of the trial).
The defendants (including the hospital), in turn, seem to be pressing the court for a ruling relating to habit-related evidence. The admissibility or allowable parameters of such evidence is not before the court. However, as discussed extensively below, the court must recognize that if such evidence is presented (and the defendants seem to expect that there will be habit-related evidence, including a possibly novel use of such evidence), the evidence implicitly or explicitly likely will involve or require expert opinions/testimony to the extent that the court will again be confronted with expert-testimony-creep.
Discussion
As something of a preliminary observation, the court notes that the written submission of the defendants generally ignores the distinction between substantive evidence and impeachment evidence--there are references to the definition of relevance as relating to a tendency to prove a fact, and there is a frequent reference to the balancing between prejudicial impact and probative value. There does not appear to be any intention or claim by the plaintiff that the evidence in question will be offered to prove any fact or to disprove any fact that any party bears the burden of proving. Rather, it seems clear that the goal is impeachment of the defendant if and as appropriate. In a rough sense, impeachment evidence is inherently prejudicial in purpose, seeking to undermine the credibility of a witness, without attempting to prove or disprove any specific fact. Impeachment evidence may be unduly prejudicial so as to require limitation or prohibition, but invocation of rules and guidance relating to evidence offered to prove or disprove material facts is of limited assistance.
As noted earlier, in their motion, the defendants stated that in connection with the earlier trial, they had filed a virtually identical motion, and " [t]he court, Genuario, J., granted the motion on the ground that such evidence was more prejudicial than probative." More accurately, the court had granted the motion, with the caveat that it might have to revisit the ruling, depending upon the scope of examination of the defendant doctor. The Appellate Court, in its decision, concluded that the doctor's testimony had crossed the line warranting reconsideration of that earlier ruling, and while the court did not explicitly state that the testimony should have been allowed, there can be no question but that the court intended that a proffer of such evidence, in that context, precluded reliance on the earlier ruling. In other words, a ruling premised on the notion that the doctor would not testify as an expert could not carry through once the doctor had begun to testify as an expert.
The defendants are asking the court to accept the renewed proposition that the testimony of the defendant doctor will not cross into the realm of expert testimony for which such impeachment materials would or might be proper. However sincere the representation may be, the court is faced with something of an institutional " fool me once, shame on you; fool me twice, shame on me." With a history that that representation did not carry through the first time--and the appellate decision suggests that responsibility can be assigned to both sides, to the extent that there was creeping expansion of the scope of expert testimony as the parties successively examined the defendant doctor--the court is hopefully-understandably reluctant to give too much weight to the same representation being made now. (The plaintiff has made it clear that he perceives it to be unlikely that if the doctor testifies at all in his own defense, there would be an ability to adhere to such an assurance.)
Further, to the extent that the defendants attempted to assure the court that the questioning of the doctor would be limited to non-expert questioning, including a claim that questioning relating to habit and custom would not cross that line, the court is not convinced, at least at this time. Under this formulation, the court is compelled to note again the earlier-quoted language from the Appellate Court decision, referring to the earlier ruling by Judge Genuario on this issue, that he had observed that revisiting of the motion that had been granted was something that might need to be done if the doctor's " qualification or habit" were to become matters of contention. At the outset, then, the reliance on expected habit and custom testimony as not crossing the line--especially to the requisite level of confidence for a motion in limine--is already suspect.
The court will attempt to restate the defendants' proposition, because if nothing else, if the court's understanding of the proposition is incorrect, then any conclusions reached and inferences drawn necessarily would be suspect. This summary is especially important to the extent that the court understands the defendants to be intending to use habit evidence in a non-standard manner.
The doctor has no independent recollection of his examination of the plaintiff's decedent, his patient, in the emergency room at Stamford Hospital. There is a hospital record of that examination that he prepared, including his post-examination recommendations for further care and/or monitoring. There is a centerpiece entry in the hospital record, a reference to the patient as having reported a history including an " atypical" headache. Based upon his post-examination conduct--what the doctor did in fact do and recommend--the doctor has inferred that the reference to " atypical" had to have been a typographical error, and should have been " a typical" with a space or separation between " a" and " typical." It is the intention of the attorney for the doctor to ask him whether, based on habit and custom, the description of what he did and what he said should be done following the examination was such a regular and routine result from a report of " a [space] typical" headache that it is properly inferred that " atypical" must have been a typographical error.
Relying on the admissibility of evidence of habit and custom, the defendants are asking the court to accept a variation on the usual application of that rule. Normally, the situation is a claim that if the evidence establishes that when faced with a certain set of circumstances (situation A, which might include components or subfacts B and C), the individual always does a specific act (conduct D), then evidence establishing A gives rise to an inference that D occurred, even without direct evidence that D occurred. Here however, the claim is that if the defendants can prove that D occurred, the court should allow an inference to be drawn as to the existence of the antecedent A, notwithstanding a negation, in the records, of A (or the negation of a component of A), and that the negation of A or a component therefore must have been a mistake.
The court has a number of reservations about this reverse inference. The first level of concern, the most obvious concern, is the basic proposition that the defendants are claiming that the habit or custom of an expert, in dealing with an expert-related situation, does not implicate " expert" evidence. Counsel for defendants claim that at least in a general sense, habit and custom evidence often is allowed in medical malpractice cases; without disagreeing in an absolute sense, the court has not been presented with any analogous situations, especially at the appellate level.
Maynard v. Sena, an appellate decision, is discussed briefly, below; for reasons stated below, it is not analogous. The hospital's discussion, in its separate submission, also will be discussed later.
Implicitly, the contention seemingly mechanizes diagnostic procedures by a doctor. D always is a consequence of scenario A (including subfacts B and C). Are A, B and C always so clearly defined that there is no judgment involved in concluding that D should follow? Is there never any ambiguity in the reporting of symptoms by a patient, including how typical or not typical a headache is, as compared to prior headaches? How much more severe must a headache be, to be atypical (and how reliable/reproducible is the reporting)? This is not a binary yes-or-no, but potentially implicates evaluation and judgment, with a necessary overlay that a visit to an emergency room, in itself, suggests something is unusual or atypical.
Further, although not articulated, there is an implication that there is a strict one-to one correlation between A and D. In other words, the reverse inference only works if every situation A leads to D, and every situation D only arises from A.
The concept of habit evidence is suggestive of a syllogism-type structure, an if-then relationship--if a certain situation arises or certain facts are present, there is a consistent and almost universal result. Recognizing that syllogisms are based on essentially absolute certainty whereas habit only approaches that level of confidence, the court believes it to be helpful to use syllogisms for illustration. In terms of syllogisms, habit-type conduct, i.e. whenever A happens or exists, the actor does D, can be expressed as:
A implies (virtually always results in) D
A
Therefore D
The defendants' proffered syllogism, however, is:
A implies (virtually always results in) D
D
Therefore A
That is not a proper conclusion to be drawn from the premise; only if there is added the proviso that D can only arise from A would the inference of A from D be proper. Only if there is no other possible cause for the result can the result be said to imply the existence of the identified/presumed cause. Examples demonstrating the lack of ability to assume generalized interchangeability of cause and effect are easy to imagine: A doctor may " always" order an x-ray when a patient presents with complaints of persistent chest congestion, such that an inference could be drawn that if a patient had presented with such symptoms, an x-ray would have been ordered. But it would not be reasonable, without more information (perhaps substantially more), to infer from the doctor having ordered an x-ray for a patient, that the patient had complained of persistent chest congestion.
Instead of visualizing as syllogisms, the concept could be considered in terms of the logical operator " iff" which states that D is true if and only if A is true, and if either is not true then the other must not be true.
Of course, theoretical logic does not carry over to law, particularly given a legal standard of preponderance of the evidence rather than certainty. However, legal inferences are derived from logic. If there truly are only two options, yes or no, then there needs to be an indication that that is the true scenario. But that leads to another level of complication and uncertainty--this might not be a yes or no situation, as there is the possibility of other scenarios that might lead to D. In the example above, there are numerous reasons a doctor might order a chest x-ray, so the fact that a chest x-ray was ordered is ambiguous as to the reason the test was ordered (unless more information is provided). The discussion above assumes that there are no other routes to D, but if there are other routes, then those also would need to be identified, and some sense of likelihood or probability would need to be identified in order to allow a factfinder to determine the likelihood of the inference sought to be drawn (is it a reasonable inference, under the circumstances).
Returning to the real world: how does the court or the factfinder know that the reverse inference is reasonable and probable, that the consequence only or most probably arises from the premise that the defendants are asking the court to assume will be proven--without the benefit of expert testimony? That is even more the case if there are multiple possible routes to the same consequence.
There is the further overlay of the standard definition of custom and practice as an evidentiary principle. The commentary to § 4-6 of the Connecticut Code of Evidence, quoting from a treatise (C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.6.1, p. 252, states that " [h]abit . . . refer[s] to a course of conduct that is fixed, invariable, unthinking, and generally pertain[s] to a very specific set of repetitive circumstances."
It is far from obvious that the present situation involves a relatively mechanical act, analogous to putting on rubber gloves before performing surgical procedures, Maynard v. Sena, 158 Conn.App. 509, 125 A.3d 541 (2015). Is the defendant doctor truly claiming that his conduct in examining and diagnosing a patient, and identifying follow-up care (if any), is " unthinking" and that there is no element of evaluation or judgment used in the process? Is there truly a " very specific set of repetitive circumstances" notwithstanding the individualized reporting of symptoms and history by patients--even if limited to patients reporting headaches? Performing a simple and well-defined act before every medical or surgical procedure, Maynard, supra, requires little if any thought, but the ability to infer an element of a history from a diagnosis and set of recommendations is far from analogous. Examination and diagnosis of patients in an emergency room may have similarities to algorithms, but that is not the same as describing the process as implicating a " very specific set of repetitive circumstances" in an " unthinking" manner.
Note that Maynard provides another instance of the limited (if any) probative value of a reverse inference from habit (without more). The proffered evidence was that the doctor always wore gloves when doing " surgical procedures in his office, " 158 Conn.App. at 515, and that was admitted as probative of whether he wore gloves in connection with a specific in-office surgical procedure. Would proof that he wore gloves at a particular time on a particular date (with no additional information) lead to a reasonable inference that he was doing a surgical procedure (as opposed to any of the other tasks for which rubber gloves might be worn)?
More generally, how would this be any different than any other emergency room patient? Is every examination and resulting diagnosis and treatment plan to be deemed a matter of habit? No matter how frequent or rare the condition? And even if that were the case, the reverse process advocated by the defendants would necessarily mask the judgments that were made in reaching the diagnostic and treatment plan conclusions--any uncertainties that were entertained and resolved in the judgment-making process in real-time now appear to have been relative certainties in a cause-inferred-from-effect analysis.
As should be apparent, the court has great difficulty in accepting the proposition that the defendant doctor, were he to testify about habit and custom, would be able to avoid crossing the line into expert testimony. And is the plaintiff to be precluded from asking about the parameters of the so-called habit, which necessarily implicates expert opinions? Can a defendant insulate himself from cross examination by claiming that habit-type evidence is not expert testimony, but that any attempt to explore the basis or scope of that habit would be impermissible expert examination by the adverse party?
Thus far, the court has not addressed the specifics of the evidence sought to be excluded. The defendants seek to exclude/preclude any evidence relating to the defendant doctor not having passed the examinations for board certification as of the time of the underlying events, and more particularly, the fact that he had failed on one or more occasions. If his testimony " crosses the line" into expert testimony, the court does not see how it can exclude, particularly in advance, any mention of any aspect of the situation. As discussed in the decision relating to the motion to set aside the verdict after the earlier trial, appellate authority generally allows exploration of the background and credentials of expert witnesses; see, Richmond v. Longo, 27 Conn.App. 30, 604 A.2d 374 (1992), and Hayes v. Manchester Memorial Hospital, 38 Conn.App. 471, 661 A.2d 123 (1995); and the appellate decision in this case indicates that there generally is no material distinction between an expert specifically retained to testify and a party who is an expert who ultimately testifies in the capacity of an expert. Again, as noted earlier, in ruling on the prior motion, the trial judge had anticipated that the granting of the motion would need to be revisited were habit testimony to be presented.
It is not clear as to the possible basis on which the defendants claim that the lack of board certification would not be proper cross examination of an expert-physician. That he may have failed the board examination more than once might be considered as requiring a prejudicial versus probative balancing, but for the claimed role of that status in claims directed to the EMP defendants. The parties disagreed, during argument, whether the lack of board certification, per se, was somehow in violation of the agreement between EMP of Fairfield and the hospital, but even if it were not a violation of that agreement, the board certification status might be relevant to the level of training and supervision of the defendant doctor that the EMP defendants needed to provide, which are direct claims of the plaintiff directed to the EMP defendants. (The court cannot resolve the dispute as to what that contract required, in the context of this motion.)
The situation with respect to the New York consent decree is both clearer and murkier. New York health officials charged the defendant doctor with 6 instances of improper professional conduct, 2 relating to N.Y. patients and 4 relating to Connecticut patients. The doctor entered into a consent decree relating to the N.Y. patients only. The 2 New York incidents had no apparent similarity to the medical condition involved in this case--the two New York incidents were similar to each other but related to male-only problems (and the plaintiff's decedent was female). Nonetheless, in Richmond v. Longo, there was no suggestion that the proposed area of impeachment be directly related to the treatment or condition of the specific patient--in that case, there is no indication that any surgery was performed, yet the areas of prohibited inquiry that resulted in a reversal were described as relating to his " qualifications and skill as a surgeon, " 27 Conn.App. at 38 (" [t]hus, questions regarding the expert's qualifications and skill go to the expert's credibility, " id.). Thus, at a minimum, the consent order, to the extent that there was an acknowledgment of instances of conduct warranting the order, would seem to be proper impeachment evidence.
There may be a question as to whether specific references to the Connecticut patients would be admissible. The accusations relating to Connecticut patients never seem to have gotten beyond accusations--there was no administrative adjudication of the merits and the defendant doctor did not consent to those allegations. As discussed in some of the authorities cited by the hospital (discussed below), it is not clear how mere accusations, without more, would be admissible for impeachment purposes, and even if admissible, how the necessarily minimal weight to be given to unproven accusations would prevail in a balancing of probative value versus prejudicial effect. That, however, is a matter of the extent to which the consent order is admissible and/or how it will be presented; it does not address admissibility as a whole.
The court need spend little time on the contention of defendants that there would or might be privacy or HIPAA violations were the consent order (or any portion of it) to be utilized for impeachment. HIPAA and other confidentiality/privacy concerns only arise if the patients can or might be identified, and if there were any information in the proffered records that might allow such identification, the information can be redacted. The records are not private or confidential. The court need not decide whether the recited consent to further use of the order was intended to be limited to administrative proceedings; the consent to further use is a recognition of an absence of absolute confidentiality. (See, also, Mazella v. Beals, 27 N.Y.3d 694, 37 N.Y.S.3d 46, 57 N.E.3d 1083 (2016), discussed below.)
The hospital filed a memorandum in support of the motion, attempting to address the admissibility of habit evidence. There are two problems with that submission. First, the submission addresses habit evidence in the ordinary sense--when faced with a particular scenario, the response or reaction is virtually always the same. That is not the court's understanding of the intended use of habit in this case--it is the reversal of the ordinary cause and effect of habit that is sought to be presented, and there is no effort to address that seemingly novel approach to habit.
Additionally, the threshold issue for admissibility of impeachment of an expert witness is that the witness provide expert testimony. The issue before the court seems to focus on whether habit or reverse-habit evidence would necessarily implicate status as an expert which would, under the Appellate Court decision, require that the plaintiff be afforded an opportunity to examine the defendant doctor with respect to his credentials and other issues relating to credibility. As noted earlier, it is not the admissibility or scope of habit testimony that is in issue, but rather the expert-related consequences of any such offer, especially in the reverse scenario being considered here. The hospital does not focus on that crucial point.
In other words, the hospital's brief does not focus on the essential issues being addressed at this time. There does not seem to be a disagreement that at least in principle, habit testimony might be (often is) admissible in the context of medical malpractice litigation (although as discussed earlier, there is a question as to how narrow a diagnostic and evaluative procedure can be and still be characterized as a habit). The hospital has not identified authority for the proposition that such diagnostic and evaluative conduct constitutes non-expert habit evidence, which is a, if not the, key to precluding efforts to impeach a witness giving expert testimony. To the contrary, in Ranciato v. Schwarts, No. NNHCV116023107S, 2014 WL 7497403 (Conn.Super.Ct. Nov. 26, 2014), discussed by the hospital in its brief, the trial court repeatedly mentioned that the defendant doctor had been identified as an expert by the plaintiff (and this court lost track after the fourth or fifth recitation of that status).
The court also noted that it was an informed consent case which relies on a lay standard rather than an expert standard, such that the extent to which expert testimony is needed itself may be an issue (seemingly varying on the specifics of the case).
The hospital argues that the evidence itself should be precluded due to the lack of evidentiary value, citing to Connecticut authority in turn relying on Lai v. Sagle, 373 Md. 306, 322, 818 A.2d 237, 247 (2003). That decision, however, analogized to the inadmissibility of arrests which are unfounded accusations--the consent order, at least as to the New York patients, is not merely a compendium of unfounded accusations, but rather recites claims that the defendant doctor chose not to contest (conceded).
The hospital also discusses in its brief a recent New York decision, which was the subject of much discussion during argument. In Mazella v. Beals, 27 N.Y.3d 694, 710, 37 N.Y.S.3d 46, 57 N.E.3d 1083 (2016), the court determined that it had been harmful error for the trial court to have allowed into evidence a consent order somewhat analogous to the consent order at issue here. The court recognizes that Mazella has attributes that both sides can invoke in support of conflicting positions.
A description of the order and context is a helpful starting point:
Prior to trial, defendant filed a motion in limine to preclude, among other things, the admittance of a consent agreement between defendant and the Office of Professional Medical Conduct (OPMC). The OPMC is part of the New York State Board for Professional Medical Conduct and is responsible for investigating complaints against physicians, coordinating disciplinary hearings and enacting sanctions as required. In January 2012, OPMC brought misconduct charges against defendant, alleging that he " deviated from accepted standards of medical care" by prescribing medications to 13 patients over several years without adequately monitoring and evaluating them, and often without any face-to-face visits. Decedent was one of the listed patients. By consent agreement and order dated and finalized in February 2012 (consent order), defendant agreed not to contest charges of negligence based on allegations involving his treatment for 12 of the 13 patients, specifically excluding decedent. (internal footnotes omitted.) MazeIla v. Beals, 27 N.Y.3d 694, 701-02, 37 N.Y.S.3d 46, 57 N.E.3d 1083 (2016).
Thus, the consent order pertained to a total of 13 patients, all with the same claimed deviation of conduct, one of which was the plaintiff's decedent; the defendant only contested the claim relating to the patient giving rise to the litigation.
In finding the admission of the consent order to have been reversible error, the court had no trouble with the notion that the evidence was not directly probative of misconduct on the specified occasion, and that is not being claimed here as a basis for admissibility. The court had no problem with the reliability or probative value of the consent order with respect to what it recited, finding what it recited not to be admissible for other reasons. Finally, a point emphasized by the plaintiff here, the court observed that the doctor had admitted that the conduct in question was a departure from the proper standard of care, only challenging whether that conduct constituted actionable malpractice.
Prior to trial, defendant conceded that prescribing Paxil to decedent over the course of more than 10 years without any face-to-face contact was a deviation from acceptable medical practice. On the day trial was scheduled to begin, defendant renewed his motion to preclude the consent order, arguing that, in light of his concession, it was no longer probative of any disputed issue. 27 N.Y.3d 702.(The decision then indicates that the defendant was examined, extensively, about the contents of the consent order.)
The focal issue in Mazella was whether the acknowledged departure from the proper standard of care had been a proximate cause of the suicide of the plaintiff's decedent. There was no apparent issue as to the standard of care or whether the physician had departed from that standard.
There also were claims of intervening and superseding cause; 27 N.Y.3d at 706.
Distilling Mazella to its essence as relates to its comparability to this case, the court believes that there are substantial similarities--as long as the defendant doctor does not testify as an expert. In Mazella, the physician had admitted that he had acted improperly, with the remaining liability-related issue being causation. The opinion seems to indicate that the defendant doctor did not testify as to anything of an expert nature--there were other witnesses testifying as to causation, and he appears to have testified in a manner relating to the facts of his treatment which, again, already were admitted to have been negligent. (" Defendant conceded that he deviated from accepted medical standards by failing to properly monitor decedent, and on appeal he argues only that the evidence does not support a jury determination that his negligence was a proximate cause of the suicide." 27 N.Y.3d at 705-06.)
Here, there is no apparent claim that the evidence of the consent order is admissible in the absence of the defendant doctor testifying as an expert--and primarily as to the applicable standard of care and/or whether he conformed to that standard.
Further, Mazella suggests a certain " Catch-22" quality to the arguments of the defendants. If the consent order relates to unrelated conduct, then that remoteness quality is argued as a factor against admission. However, if there are virtually identical instances, and especially a large number of virtually identical instances, the similarity and volume would be unduly prejudicial, likely to be treated by the jury as probative of misconduct on the occasion of interest, that the defendant " yet again" departed from the standard of care.
Finally, returning to the Appellate Court decision, that decision, as already noted, recognized the possibility if not probability that some of the identified impeachment evidence might or would be admissible--yet the defendants are arguing that the court has no real choice but to bar admission of the evidence as a matter of law.
The analogy to unproven accusations of criminal conduct clearly does not hold, to the extent that the consent decree is effectively an admission--this is not a matter of bare and unfounded accusations (at least as to the New York patients). Similar to the use of criminal convictions as admissible for purposes of credibility, the court can limit the amount of detail that can be explored, while allowing the jury to be informed of the existence of a " record." The dissimilarity to the conduct in issue mitigates any possible prejudice, even if the jury were to be apprised of the details, precisely because the circumstances were so dissimilar.
In sum, the court has considered Mazella, and accepts its cautionary implications, but given the posture of this case, the court cannot deem it controlling, if the defendant doctor is to testify as an expert as to disputed issues.
In their reply brief, the defendants dispute the plaintiff's interpretation of the Appellate Court decision in certain respects. The court generally has attempted to rely on more general propositions in its analysis. Again, this is a motion seeking to preclude evidence, and the court has focused primarily on whether the defendants have identified a sufficient basis for preclusion, rather than the correctness of the plaintiff's contention that the court must allow the evidence. The defendants having raised the issue more pointedly, however, the court would be remiss if it did not observe that there were at most three areas of potential impeachment mentioned in the appellate decision in connection with the determination that the plaintiff had been deprived of the right to impeach a witness giving expert testimony, as part of cross examination of that witness--the consent order, the failure to pass the examination for board certification, and whether the defendant doctor had left his prior job under something other than " good circumstances." The court has identified there being three possible bases, but the last one appears to have been treated, at least by the earlier trial court, as a component of the consent order--see, discussion in the first substantive (post-introductory) paragraph of section I(B) of the appellate decision (158 Conn.App. at 696), where the trial court, in sustaining an objection to the question about the circumstances of his departure, had framed the ruling in terms of being related to the consent decree. Therefore, unless the defendants are arguing that the Appellate Court found error in the trial court's refusal to allow patently- inappropriate questions to be asked, the unavoidable inference is that the Appellate Court did not perceive the two areas as patently inappropriate for cross examination. It Is a fair inference that at a minimum, the court believed that at least some of the excluded evidence might be admissible for purposes of impeachment. The motion before the court effectively is asking this court to rule to the contrary, that all of the evidence is patently inadmissible. The court understands that the Appellate Court had not been asked to rule on the propriety of any particular impeachment questions, but the court is reluctant to infer a level of futility in the determination of error in the failure to allow impeachment questions to be asked, with the two areas identified in this motion as the only areas identified in the previous trial and appeal.
In that same reply, there also is extensive discussion of whether certain testimony and statements contained in briefs constituted admissions and as a sub-issue whether they might constitute judicial admissions. (The issue also was addressed in the hospital's brief, discussed earlier.) The motion before the court does not request, explicitly, that all references to prior testimony or statements in briefs or pleadings be excluded, and the court does not perceive an implied request. Whether the doctor testified in a manner that constitutes an admission is not presently before the court, much less whether that prior testimony or statements in legal submissions constitute evidentiary or judicial admissions. The defendants have not explained why, presumptively, any prior testimony could not be used by the plaintiff for any proper purpose, whether for substantive or credibility purposes. (As noted earlier, it appears that the plaintiff does not perceive such testimony to be expert in nature, in which event the questions would not open the door for impeachment.)
Returning to the purpose for a motion in limine, the chief goal is to avoid subjects being broached in the presence of the jury, to the extent that the very asking of a question or the very proffer of an exhibit itself, might have a prejudicial effect on the jury. Secondarily, to the extent that some issues can be resolved definitively prior to trial, resolution of such issues prior to trial avoids arguably-unnecessary interruptions of the flow of the trial itself. The foregoing discussion makes it clear that the court cannot enter an order, in absolute terms, precluding any mention of lack of board certification and any mention of the consent order. At best, the court could enter an order, conditional in nature, that unless and until the defendant doctor testifies in an expert-related capacity, the evidence cannot be presented or offered. The court's understanding, however, is that that is not an issue--the plaintiff seemingly acknowledges that the evidence in question is only admissible for purposes of credibility/impeachment of the defendant doctor if he offers what amounts to expert testimony, in his own defense. The focus, then, shifts to what evidence the defendants will offer via the defendant doctor, and whether such evidence/testimony will be characterized as expert testimony--something that cannot be addressed, definitively, at this time.
Conclusion
The defendants are correct to the extent that they rely on the proposition that the evidence they seek to preclude has no (direct) relevance to any issue that either party needs to prove or disprove. That is not the intended purpose of any proffer that might occur--if the defendant doctor were to testify in any respect as an expert, the plaintiff claims a right to offer the evidence for impeachment. The defendants have argued that that won't occur, but the court is far from convinced, especially to the extent that the defendants seem to intend to offer " habit" testimony from the doctor which on numerous levels, directly and indirectly, seems to implicate some level of expert testimony.
In one of the submissions of the defendants, there was a mention of the fact that the plaintiff has not disclosed the defendant doctor as an expert and therefore cannot question him as if he were an expert. That applies to the defendants, as well, and the court has noted the potential issue of whether habit evidence, particularly for the reverse effect-implies-cause approach of interest to the defendants, might necessarily implicate status as an expert.
Aside from the direct expert implications of an offer of habit-related evidence, and assuming as seemingly claimed by the defendants that it would not be expert testimony--how could the plaintiff be precluded from inquiring about the habit and its parameters and its scope and the frequency of the conduct, without necessarily getting into expert-type testimony? And, as discussed above, the court has difficulty in accepting the notion that the manner in which the defendants expect to offer the reverse-inference from the claimed habit can be presented without further information, again likely treading into areas of expertise.
As with other rulings of the court, the court need not establish precise parameters at this time. It is enough that there is a likelihood that the evidence may be, or may become, admissible, that the court must deny the motion (especially given the apparent acknowledgment of the plaintiff that in the course of the anticipated direct examination of the doctor, there would not be a basis for offering such evidence).
It may well be that some adjustments or redactions or summarizations will be needed before the evidence or testimony can be presented to the jury, but the court cannot rule that the evidence does not satisfy the standards for admissibility, given the limited purpose that has been identified by the plaintiff and the reasonable likelihood that the case will present such a scenario for admissibility (impeachment of expert testimony).
The court has attempted to cover the ground that the parties covered, in connection with this motion. With all of the implications, subtleties and subsidiary issues, the court would not be surprised if the parties concluded that the court missed an issue or a facet of an issue or misunderstood a point being made. To the extent that there are material omissions or misstatements, the court will entertain appropriate corrections. However, understanding the court's concerns and approach to these issues presumably will assist the parties in moving forward. For example, it is possible that having been presented with the court's perhaps-overly-convoluted recitation of its concerns about the ability to reverse cause-and-effect in a habit context and the expert implications of such an effort, and without a prior opportunity to address those concerns, the defendants will now be able to present arguments intended to convince the court that such a process is reasonable and can feasibly be accomplished without recourse to implied or supplemental expert-related evidence. The plaintiff, in turn, is on notice of the defendants' contentions relating to characterization of testimony and written submissions as " admissions."
On the present record, for the foregoing reasons, the motion must be denied.