Opinion
FSTCV075003525S
04-07-2017
Barbara Tiplady, Administratrix v. Samuel Maryles, M.D
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTIONS RELATED TO UNITY OF INTEREST (#304.00 and #312.00)
Kenneth B. Povodator, J.
Procedural Background
Currently before the court are the plaintiff's motions #304.00 and #312.00 and the corresponding objections of the defendants (#310.00, #311.00 and #318.00). Facially, the motions are relatively straightforward; #304.00 seeks an order precluding the defendants from utilizing multiple experts on a particular issue (and by inference, any given issue), and #312.00 addresses issues relating to jury selection. Both motions rely on the concept of unity of interest as justification for the orders sought by the plaintiff. As articulated in the defendant hospital's objection (#318.00) and developed during argument, the goal is more far-reaching.
Technically, the objecting defendant is Stamford Health Systems, Inc., the official name of Stamford Hospital. The court will refer to this defendant as " the hospital" for purposes of simplicity and comprehension.
The later motion (#312.00) addressed the claimed unity of interest for purposes of jury selection. The motion asked the court to find a unity of interest among all of the defendants for purposes of the total number of peremptory challenges each side will get, and related, the motion asked the court to address the manner in which prospective jurors can be questioned during the voir dire process (to the extent that two attorneys representing defendants are claiming the right to inquire of prospective jurors as part of that process). After entertaining argument on the issue, the court concluded that for purposes of jury selection, there was a unity of interest among the defendants, as that term is defined in General Statutes § 51-241, notwithstanding separate representation for the hospital and the other defendants. The court made it clear (hopefully clear) that its ruling was limited to interpretation of the statute as applied to jury selection under the existing circumstances, and that there were no further (intended) implications from that order.
In discussing some of the broader issues being considered (below), the court addresses the history of the statute and changes in the statute that the court deemed controlling for purposes of the jury selection issues.
After the court indicated that it had concluded that there was a unity of interest among the defendants, the parties reached an agreement as to all other aspects of the juror selection process--manner of questioning and exercise of challenges, number of challenges, and number of alternates. Although the arguments and analyses persist in other respects (as will be discussed below), there is no need for further discussion of jury selection issues.
The earlier motion, #304.00, nominally was directed to limiting the number of experts that the defendants could present during trial. As discussed below, the court declined to take any action initially (provisionally denying it), based on the record before it.
As set forth in the defendant's objection (#318.00) and especially during argument, there was a more pervasive, and probably far more important, overarching component to the plaintiff's motions, in that the plaintiff is claiming a broader concept of " unity of interest" that would pertain not only to jury selection or selection of experts but also to the entire trial and the manner in which witnesses could be examined. In particular, the plaintiff has advanced the position that the relationship among the defendants, notwithstanding one attorney representing the hospital and another attorney representing all other defendants, warrants the court to order that only one attorney can examine each witness on behalf of the defendants. In response to a question from the court as to whether the plaintiff was suggesting that the court had to make a determination as to which attorney was the lead counsel (assuming that the parties would not agree to such a designation), plaintiff took the position that it did not matter who was lead counsel or how it was determined but that she only was asking the court to require the defendants to resolve that question among themselves.
Discussion
To start with the motion itself: the facial purpose of the motion was to compel the defendants to agree on experts--each attorney (representing distinct defendants) has identified and disclosed an expert (at least as to the relevant standard of care), and the plaintiff seeks to have the court order the defendants to agree to just one.
During the course, of an earlier argument, the court had indicated that it was not inclined to consider requiring the defendants to select a single expert as to a specified area of expertise (standard of care) without it being clear as to the extent to which the two experts that have been proposed, would in fact duplicate each other's testimony. The court noted that a deposition of a then-recently proposed expert might allow a better comparison, both by the court and if necessary by the parties if they were required to select.
No further submission in that regard has been provided to the court. Since the parties appear desirous of direction from the court, it would seem to be appropriate to address the motion in somewhat greater detail, both as directly framed and in its broader context.
The court notes that some of the decisions that have been cited by the plaintiff adopted a similar approach to that proposed by this court--comparing a detailed presentation of the proposed testimony (including deposition transcripts) in order to allow the court to make a more informed decision. The court also notes that none of these decisions suggest that the court might be obligated to limit testimony in that manner--the decisions all allude to the court's exercise of discretion in terms of the conduct of the trial and the right to limit evidence that is unnecessary, prejudicial, etc., and the identified appellate opinions confirm that such decisions are generally properly within the court's discretion.
The plaintiff has relied upon Glaser v. Pullman and Comley, LLC, 88 Conn.App. 615, 871 A.2d 392 (2005). Notably, the claimed duplicative quality of the excluded evidence was but one of two reasons that the trial court had given for exclusion of an expert's testimony. In affirming the exclusion of the evidence (where the cumulative nature of the evidence was not the sole basis for exclusion), the Appellate Court included cautionary language: " In precluding evidence solely because it is cumulative, however, the court should exercise care to avoid precluding evidence merely because of an overlap with the evidence previously admitted." 88 Conn.App. at 627.
At page 7 of #304.00, the plaintiff states, in connection with his interpretation of Glaser :
" The Appellate Court has held that calling multiple expert witnesses to testify in accordance with substantively identical disclosures is not fair to the opposing party because it 'may overemphasize an aspect of this [case], ' and should therefore be excluded because 'the prejudicial effect of the evidence outweighs its probative value.' Glaser, 871 A.2d at 400-01 (testimony of second expert witness not allowed because it duplicated that of the first)."
This court does not read Glaser as being declarative in the manner stated above. On two occasions, the Appellate Court quoted the trial court and its statement relating to overemphasis of certain points and the likely prejudicial/unfair impact on the other party, and in each instance, the Appellate Court stated that it had been a proper exercise of the trial court's discretion. 88 Conn.App. at 627-28:
The court reasonably concluded that the probative value of [the excluded] testimony was outweighed by its potential for prejudice . . .
And later:
The court reasonably concluded that because [the excluded] testimony would be 'a duplication of what has already been testified to . . . [i]t may overemphasize an aspect of this [case], and I don't think that is fair to the other side.' . . . We do not conclude that the preclusion of [the witness'] testimony was an abuse of discretion, particularly when viewed in combination with the court's additional reason for its preclusion."
The court did not hold that the practice was inherently unfair and did not hold that the claimed duplicate testimony " should therefore be excluded." There is nothing in the decision suggesting that it would have been an improper exercise of discretion had the court allowed the testimony (at least with respect to this issue, there being another reason for exclusion), and the cautionary statement quoted earlier emphasizes the absence of any mandate implicit in the decision. (Note that there is no indication that the experts were retained by separate counsel representing distinct parties--it appears that there was common representation for all plaintiffs and for all defendants.)
The plaintiff also relies upon Russo v. Phoenix Internal Medicine Associates, P.C., 109 Conn.App. 80, 950 A.2d 559 (2008). In Glaser, there had been two reasons for excluding the evidence that was actually excluded; in Russo, there were three reasons. The cumulative/duplicative quality of the evidence was the third reason for preclusion that was discussed, and it only was applicable to a portion of that witness' proposed testimony.
The court believes it to be important to note that the cumulative nature of the evidence in these cases was not " the" dispositive issue. When there are one or more somewhat substantive reasons for exclusion, with the discretion-invoking cumulative nature of the evidence as an additional reason, there is an inherent uncertainty as to how much weight should be given to an " also" reason (not of a substantive nature) as independent authority for action.
The plaintiff next cites and relies upon Doe v. Carreiro, 94 Conn.App. 626, 894 A.2d 993 (2006). The court does not read the decision as standing for the proposition the plaintiff claims it states (" expert testimony excluded because it was cumulative"). The issue was not the propriety of exclusion but the propriety of non-exclusion. The court noted that the expert testimony was cumulative of other evidence but nonetheless affirmed the presentation of all evidence to the jury. Indeed, there were numerous references to cumulative evidence in the decision, as there were other aspects of duplication in testimony and documents, but the admission of all the evidence was not deemed to have been reversible error.
Taking it one step further, it seems that the court was saying that a challenge to the admission of part or all of the experts' evidence/testimony could not have been harmful because it was cumulative of evidence already properly before the jury from other sources.
The plaintiff also relies upon trial court decisions. In Lebel v. Tacinelli, HHB CV 03-0520321S, (April 11, 2006), the court had excluded duplicate/cumulative expert testimony, but it was only after the court had compared detailed submissions relating to the proposed testimony of each witness. Again, this court has yet to be presented with that kind of detailed presentation. Again, this appears to have been in the context of the exercise of discretion. Again, there is no indication that the experts were retained by separate counsel representing distinct parties--it appears that the experts had been disclosed by the plaintiffs represented by a single law office.
The plaintiff also relies upon an order in Kramer v. Markind, J.D. Waterbury, UWYCV136020690S, attached to his brief (docketed as entry #221.10). The situation is materially different than the one presented here, and could be seen as undercutting, at least in part, the argument of the plaintiff. To be sure, in Kramer, the court did order that two defendants select one of the three experts they had disclosed, as the expert they intended to present at trial. What the plaintiff fails to note (or distinguish) in his discussion of the case is that the two defendants that were the subject of the order were both represented by the same attorney; two other defendants, represented by separate counsel, were not addressed in the motion or order. If the EMP defendants (and the defendant doctor) had disclosed multiple experts, and the plaintiff's motion were seeking to compel those parties to pick one expert, that would be comparable to Kramer . If that were the case here, subject to whatever unknown arguments might be made, the court might find the argument attractive--but the current motion seeks to have independent counsel representing independent parties agree on a single expert, which was not the situation in Kramer .
The actual motion appears to have been #215.00; the corresponding order, #215.10, seems to have erroneously referenced #222.00 as the substantive order, whereas it appears that #221.10.
The court reaffirms its earlier somewhat informal/preliminary position, to the effect that it will not compel the defendants, represented by separate counsel, to agree upon a single expert for standard of care, particularly based on the record currently before the court.
More generally, it is the stated position of the plaintiff that the defendants should be treated as having a unity of interest for all purposes during the trial, including examination of witnesses. The goal is to have the court issue an order to the effect that only one attorney can examine any witness on behalf of the defendants, notwithstanding the representational posture of the case whereby one attorney represents the defendant hospital, and one attorney represents the defendant doctor and related (or claimed to be related) entities.
The court notes that in their written submissions relating to unity of interest as submitted in connection with jury selection, both sides have relied, at least in part, on Marshall v. Hartford Hospital, 65 Conn.App. 738, 783 A.2d 1085 (2001). To the extent that the rationale in that decision is claimed to carry over to the more generalized concept of unity of interest, further discussion of the case is needed. In that regard, the court believes that the parties seem to have missed a critical consideration in applying that decision to this case (especially to the extent that it was cited for the peremptory challenge issue). As set forth in the citation to the case, the decision was issued in 2001--the appeal was argued in May of that year, and decision was issued in September. The underlying trial, according to the decision, took place in 1999.
Prior to the argument of that appeal, in early 2001, a proposed amendment to § 51-241 was submitted to the General Assembly, and signed into law in July 2001 as Public Act 01-152. Public Act 01-152 effected significant changes to the statute, including adding a presumption relating to unity of interest as well as capping the potential disparity between challenges available to plaintiffs and defendants in any given trial. The court's preliminary research did not disclose whether the public act had been proposed in response to the trial-level decision in Marshall (the alternative being pure coincidence of timing) but it is clear that any consideration of the decision as controlling authority after 2001 must take into account the changes in the statute, and especially so if the statutory changes were intended to negate the analysis in that decision (again, to the extent that the trial court decision was affirmed). To the extent that efforts are being made to analogize to Marshall, there is the question of the impact of what appears to have been a legislative response, significantly altering the concept of unity of interest for purposes of jury selection. Putting it differently, whatever pre-2001 persuasiveness there might have been in analogizing unity of interest in jury selection to other aspects of a trial, the amendment to the statute decouples the two concepts.
Under Marshall, it is not free from doubt as to whether the current situation would constitute a unity of interest. In Marshall, the distinction was that the liability of the hospital could have been dependent upon the negligence of the " other" defendant, a treating doctor (claimed to be the situation here), or it could have been based on the separate negligence of other of the hospital's employees, a scenario not present here. However, in Marshall, the very existence of agency did not seem to be in dispute; would a dispute as to the existence of agency as an area of claimed disparity between the potential liabilities of defendants be sufficient to have precluded a finding of unity of interest under that analysis?
Actually, there is another issue that inserts another element of asymmetry, although its significance to a Marshall -based analysis is uncertain. The plaintiff claims that the EMP defendants were negligent in their training, etc. of the defendant doctor; see, e.g., footnote 2 in #304.00, a claim that would not seem to be applicable to the hospital.
Without reference to any specific cases (including Marshall ), this court made it clear during argument that it perceived the issue of unity of interest for purposes of jury selection, under the statute, as wholly distinct from the other aspect of unity of interest being pursued by the plaintiff, and the foregoing is ample justification for the distinction. The statute is intended solely for purposes of jury selection, and includes definitions and presumptions, none of which would be directly applicable to the broader proposition being advanced by the plaintiff. Nonetheless, the court recognizes that even without reference to the statute and case law interpreting the statute, the plaintiff has raised an issue that should be addressed and resolved.
During the course of argument on a different motion, counsel for the plaintiff made a comment, referring to this dispute, which the court believes provides an appropriate frame of reference for some of the discussion of this issue. Counsel characterized this aspect of this motion as being roughly the equivalent of a directed verdict on the issue of apparent agency, in turn based on the recent Connecticut's Supreme Court decision in Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016). In addition to substantive issues, the extent to which that metaphor (?) approaches reality presents the court with a procedural concern.
Depending upon context, " apparent agency" can have two distinct meanings--somewhat loosely, it can mean the apparent scope of authority of an actual agent (see, e.g., Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941)), and it can mean that someone who is not actually an agent is treated as if he/she were an agent, having apparent authority to act as an agent for a principal without regard to the existence of actual authority (Cefaratti ).
As noted earlier, there is at least some question as to whether Marshall would apply to this situation in the jury selection context, absent the 2001 amendment to the statute. In Marshall, the court noted that there was an obvious lack of unity insofar as the hospital might be liable based on the doctor's negligence but that it also could be found liable based on the negligence of other employees (agents) even if the doctor were not negligent. Here, the hospital can only be found liable if the doctor were found to be liable, but unlike Marshall, here there is at least an unresolved issue relating to the existence of a situation that might impose respondeat superior liability in the first instance. Is the issue of existence of agency-type liability in this case the equivalent of the alternate means of establishing agency-type liability in Marshall, in terms of precluding unity of interest--one scenario in which the hospital would be liable and one scenario in which the hospital would not be liable? The court cannot presume that the facts that the plaintiff claims will give the defendants no " wiggle room" on the existence of apparent agency will be unrebutted, and the court is not in a factfinding mode when considering this motion (or its implied extension).
It is not clear whether the issue identified in footnote 5 might allow for EMP liability without hospital liability.
There is no mechanism by which the court can rule at this time, especially conclusively, i.e., determining, as a matter of law and in advance, that the hospital has apparent agency liability under Cefaratti . In a literal sense, the court cannot grant a directed verdict, prior to the offer of any evidence by anyone. It is highly questionable whether the court could have granted summary judgment in the absence of a determination of liability of the doctor, since absent a determination of the doctor's liability, the most that the court would be able to conclude is that if the doctor were to be found liable, then the hospital also would be liable. In a sense, then, the plaintiff is asking the court to issue what amounts to an interlocutory declaratory ruling, without any record-evidence (or opportunity for the hospital to respond in an evidentiary setting), that if the doctor were to be found liable, then the hospital also would (must) be liable. The plaintiff has not identified a procedural path to that result, and therefore cannot establish that he has satisfied the requirements for such a procedure.
The parties have cited and discussed John T. Brady & Co. v Stamford, 220 Conn. 432, 451-53, 599 A.2d 370 (1991). The court finds the case not to control the outcome here, on at least two levels. First, the Supreme Court concluded that it had not been an abuse of discretion for the trial court to have precluded the contractor from examining witnesses, thereby adhering to the presumption that such matters properly are to be left to the sound discretion of the trial court. Note that the precise language used in Brady is even less definitive than a simple declaration that it is a matter of discretion--the court stated (220 Conn. at 452-53): " On this record, we are persuaded that the contractor was not prejudiced by the ruling of the trial court and that the ruling therefore was not an abuse of discretion." It is not clear how much weight was given to the absence of any demonstrable prejudice.
To the extent that it often is said that " [a]ll evidence adverse to a party is, to some degree prejudicial, " State v. Polynice, 164 Conn.App. 390, 405, 133 A.3d 952, 960 (2016), was the court simply referring to prejudice in that sense (which would not seem to warrant any mention at all), or was the court referring to prejudice in the sense of having an improper (adverse) impact?
Denial of a right to examine a witness has potential due process implications (as argued by the defendant), whereas there is no " right" being directly (adversely) implicated by allowing a party to examine a witness even if it were not strictly required (due to an identity of interest). In other words, there is not a strict symmetry--the defendant has asserted a cognizable substantive right whereas the plaintiff is relying on a more general (inchoate) claim of fairness, implicating the court's inherent authority to control a trial and limit cumulative or otherwise unnecessary evidence.
As a complementary factor, the Brady court also distinguished the case from other cases, based on the perception that there was an " identity of interest" as a result of the contractor's assignment of its rights to the surety, where the surety was a party who had an unfettered right to examine witnesses. In an assignment of rights, there is precise congruence of rights, with no material distinction. There is no suggestion in the decision that the existence or scope of the assignment was ever in issue, and the claims being pursued belonged to the possessor of those rights. Here, as noted earlier, there is at least a theoretical divergence of interests with respect to the existence of vicarious liability on the part of the hospital for the conduct of the defendant doctor. Therefore, even assuming that the " identity of interest" in Brady is the same as a " unity of interest, " the current case has an as-yet formally unresolved dispute as to whether the hospital is or would be vicariously liable for any malpractice of the doctor, a distinguishing factor.
The same was even more applicable to the aspect of Brady in which the contractor and surety were defendants. As noted on page 451, they were defendants in connection with a suit against the surety on the bond, rather than a suit against the contractor on the contract. Therefore, the contractor was characterized as an " interested" party but only in an apparently-unchallenged derivative sense.
There are practical concerns inherent in the position advanced by the plaintiff, if it were to be adopted. Is there to be a similar preclusion in all cases involving claimed vicarious liability--especially including cases in which agency is being disputed? If the agency or agency-like relationship is not admitted, how can or would a trial court make the determination, absent some level of factfinding (the situation here)? Could/would/should the principle be applied to all personal injury cases with respect to the damages aspect of the trial, since regardless of the number of independent actors claimed to be liable, the evidence as to damages would be identical for all defendants such that there still could or would be a concern about " [examination] of witnesses in relays" (220 Conn. at 452 (internal quotation marks and citations, omitted)) as to injuries sustained and resulting claims of damages?
The court currently has at least two sets of cases involving challenges to the existence of an agency relationship. One trio of cases arise from an accident in which there are pending motions for summary judgment claiming that the driver of a business vehicle was not an authorized or permissive user; see, FSTCV166030052S and FSTCV166030171S (the two principal cases in the trio). If summary judgment were to be denied, would the court be compelled to limit separate defense counsel's ability to examine witnesses, except as to the agency issue (assuming the driver were to obtain representation)?
At most, there is authority for the court to exercise discretion. This is not a case with a contractual transfer of rights (as in Brady ) which probably is the strongest possible scenario--and there it was characterized as discretionary. For purposes of jury selection, the amended statute made it virtually compulsory for the court to find a unity of interest; there is no comparable (or even persuasive) reason for the court to preclude, presumptively, a distinct party, with separate interests and separate counsel, from participating in the trial independent of other defense counsel (representing other parties).
Conclusion
In Brady, the court stated that " [a]s a general matter, because identity of interest is not to be presumed, separate defendants . . . are entitled to be treated as separate parties for purposes of cross examination." Id. The plaintiff is asking the court to act as if she already had established the necessary framework for treating defendant Maryles as an apparent agent of defendant hospital, under one of the two alternatives set forth in Cefaratti --to " presume" identity of interests notwithstanding the existence of a dispute based on the current record. From the plaintiff's perspective, it may seem to be something of a nominal or otherwise less-than-substantial issue, but it nonetheless is an issue in the case.
In a civil case, the Supreme Court has held that [t]he right of cross examination is not a privilege but is an absolute right and if one is deprived of a complete cross examination he has a right to have the direct testimony stricken . . . It is only after the right of cross examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court. (Internal quotation marks and citations, omitted.) Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn.App. 253, 262-63, 566 A.2d 431, 436 (1989).
In particularized circumstances such as presented in Brady (220 Conn. at 452), it might be within the discretion of the court to abridge that right (taking into account possible prejudice to the precluded party). The court does not find the situation as clear as in Brady, and the court does not find the circumstances such as to warrant a blanket restriction as has been sought. To put it differently: in Brady, the court defaulted to a protocol where questions could not be asked but allowed for the possibility of circumstances warranting a departure from that presumptive posture; here, the court is reversing the default situation, allowing both defense counsel to ask questions but subject to possible limitations to ensure fairness to the plaintiff.
The potential for unfairness or prejudice arising from " [examining] witnesses in relays" can be addressed by the court under its broad authority to control the conduct of a trial. For example, the court could require the defendants to examine all witnesses consecutively, whereby the plaintiff never is placed in a position of examining a witness " between" the defendants. Similarly, the court could require the direct vs. cross examination characterization of an examination of a witness to apply to both counsel to avoid any setting up of a witness for friendly cross examination. The court can be mindful of the need to avoid unnecessary repetition and duplication, without the need to have one defense attorney (the actual examiner) having veto power over questions sought to be asked by the other or compelling an attorney to ask questions that he/she would prefer not to ask.
The parties are invited to discuss the foregoing among themselves, and suggest either jointly or individually any protocols that they believe the court should adopt in order to strike a proper balance between the competing interests--consistent with the court's position as articulated above.
Accordingly, the (implied) motion seeking to preclude the defendants from separate questioning of witnesses under the rubric of unity of interest or identity of interest is denied, without prejudice to the ability of the parties to suggest protocols that might minimize or avoid the potential for unfairness of multiple examinations of witnesses.
Subject to the foregoing considerations, the court declines to treat all defendants as having a sufficient identity of interest to warrant ordering that only one of the attorneys for the defendants can ask questions of each witness. Some limitations on questioning may be appropriate, but the draconian order sought, precluding simultaneous participation of counsel for separate and distinct parties, with separate representation, is not justified.