Filippelli v. Saint Mary's Hospital

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PHILIP FILIPPELLI III ET AL. v. SAINT
MARY’S HOSPITAL ET AL.
(SC 19148)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
Vertefeuille, Js.
Argued December 2, 2014—officially released October 13, 2015
Stephanie Z. Roberge, for the appellant (named
plaintiff).
Ellen M. Costello, for the appellees (defendant Water-
bury Orthopaedic Associates, P.C., et al.).
Opinion
PALMER, J. The plaintiff, Philip Filippelli III,1 brought
this medical malpractice action against the defendants,
Dennis M. Rodin and Waterbury Orthopaedic Associ-
ates, P.C.,2 claiming that Rodin negligently failed to
timely diagnose and treat the plaintiff’s compartment
syndrome,3 resulting in severe and permanent injuries
to the plaintiff’s lower left leg. Following a trial, the
jury found that the defendants had not breached the
standard of care and returned a verdict in favor of
the defendants. The trial court rendered judgment in
accordance with the jury verdict, and the plaintiff
appealed to the Appellate Court, which affirmed the
trial court’s judgment. Filippelli v. Saint Mary’s Hospi-
tal, 141 Conn. App. 594, 597, 61 A.3d 1198 (2013). On
appeal to this court following our grant of certification;
Filippelli v. Saint Mary’s Hospital, 308 Conn. 947, 67
A.3d 289 (2013); the plaintiff claims that he is entitled
to a new trial because the Appellate Court improperly
concluded that the trial court did not abuse its discre-
tion in (1) restricting his use of an article from a medical
journal to impeach certain witnesses, and (2) preclud-
ing him from (a) questioning the defendants’ expert
witness about his previous work as an expert on behalf
of Rodin, and (b) making an offer of proof and marking
a document for identification in connection with that
proffered questioning. We disagree with the plaintiff’s
claims and, accordingly, affirm the judgment of the
Appellate Court.
The opinion of the Appellate Court sets forth the
relevant facts and procedural history in detail. See Fili-
ppelli v. Saint Mary’s Hospital, supra, 141 Conn. App.
597–600. To briefly summarize, the plaintiff sustained
a comminuted tibial plateau fracture4 while playing bas-
ketball on March 4, 2005. At approximately 10 p.m. that
evening, he was taken to the emergency department
of Saint Mary’s Hospital, where he was treated and
released. The plaintiff returned at approximately 7:30
a.m. the following morning complaining of severe pain
in his left leg, and Rodin admitted the plaintiff for obser-
vation. At approximately 6:45 p.m. that evening, Rodin
diagnosed the plaintiff with compartment syndrome
and treated it by performing a four compartment fas-
ciectomy.5 Thereafter, the plaintiff commenced this
action alleging that Rodin was negligent in failing to
diagnose and treat his compartment syndrome on the
morning of March 5, 2005, and that the delay in treat-
ment caused, among other things, severe and perma-
nent injuries. Following a trial, in response to an
interrogatory, the jury found that the defendants had
not breached the standard of care. The jury returned a
verdict for the defendants and the trial court rendered
judgment in accordance with that verdict.
On appeal to the Appellate Court, the plaintiff claimed
that the trial court abused its discretion in barring him
from using an article from a medical journal for the
purpose of impeaching Rodin’s credibility, and in lim-
iting his use of the same article in his cross-examination
of Andrew Bazos, the defendants’ expert witness. Id.,605–607. In addition, the plaintiff claimed that the trial
court improperly precluded him from questioning Bazos
about his previous work as an expert on behalf of Rodin
in other malpractice actions. Id., 623. With respect to
the plaintiff’s attempt to ask Bazos about his prior work
on behalf of Rodin, the plaintiff also contended that
the trial court precluded him from creating an adequate
record of that claim for appellate review by denying
him the opportunity to make an offer of proof and
to mark a particular document for identification. The
Appellate Court concluded that none of the challenged
evidentiary rulings constituted an abuse of the trial
court’s discretion. Id., 600–601. The Appellate Court
further concluded that, although the trial court should
not have barred the plaintiff from making a record as
requested, that impropriety was harmless.6 Id., 623–26.
Accordingly, the Appellate Court affirmed the judgment
of the trial court. Id., 626. On appeal to this court, the
plaintiff challenges the Appellate Court’s conclusions
with respect to each of these issues. Additional facts
and procedural history will be set forth as necessary.
Before turning to the merits of the plaintiff’s claims,
we briefly set forth the standard of review applicable
to those claims. 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 discretion.’’ State v. Saucier, 283 Conn. 207, 218, 926
A.2d 633 (2007). 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. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Hurley v.
Heart Physicians, P.C., 298 Conn. 371, 402, 3 A.3d 892(2010). Moreover, ‘‘[b]efore a party is entitled to a new
trial because of an erroneous evidentiary ruling, he or
she has the burden of demonstrating that the error was
harmful. . . . [A]n evidentiary impropriety in a civil
case is harmless only if we have a fair assurance that
it did not affect the jury’s verdict. . . . A determination
of harm requires us to evaluate the effect of the eviden-
tiary impropriety in the context of the totality of the
evidence adduced at trial. . . . [Finally, our] review of
the Appellate Court’s conclusions of law, including the
determination that any evidential improprieties were
harmless, is plenary.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Klein v. Nor-
walk Hospital, 299 Conn. 241, 254–55, 9 A.3d 364 (2010).
I
The plaintiff first claims that the Appellate Court
improperly determined that the trial court did not abuse
its discretion in (1) prohibiting him from using the jour-
nal article to impeach Rodin, who had read the article
prior to his deposition, and (2) limiting his use of the
article during his cross-examination of Bazos. We reject
both of these contentions.
A
We first address the plaintiff’s claim concerning the
trial court’s ruling precluding him from using the article
to impeach Rodin’s credibility. Specifically, the plaintiff
maintains that, although Rodin suggested during his
deposition that the article in question supported his
testimony concerning the diagnosis and treatment of
compartment syndrome, the article actually contradicts
his deposition testimony in several respects. According
to the plaintiff, he was entitled to use the article to
establish that Rodin did not testify truthfully during
his deposition.
The following facts and procedural history, some of
which is set forth in the opinion of the Appellate Court,
are relevant to this claim. ‘‘Counsel for the plaintiff
deposed Rodin in March, 2009. At that time, Rodin testi-
fied that, in preparation for his deposition, he had
reviewed an article in the Journal of the American Acad-
emy of Orthopaedic Surgeons, but that he had not
brought the journal article to the deposition.7 Later, the
plaintiff’s counsel undertook a literature search and
found an article published in the subject journal that
she believed to be the one Rodin reviewed. On March
6, 2011, as trial was about to begin, the plaintiff filed
a supplemental list of exhibits that included, among
other things, ‘[S. Olson & R. Glasgow, ‘‘Acute Compart-
ment Syndrome in Lower Extremity Musculoskeletal
Trauma,’’ 13 J. Am. Acad. Orthopaedic Surgeons, No.
7 (November, 2005)].’
‘‘The defendants filed an objection to the plaintiff’s
supplemental list of exhibits, including the journal arti-
cle. The defendants claimed prejudice due to the plain-
tiff’s late disclosure of the journal article and sought
to preclude its use at trial. . . . On May 10, 2011, the
court held a hearing regarding the defendants’ objection
to putting the journal article into evidence at trial. The
plaintiff’s counsel argued that Rodin had referred to
the journal article during his deposition . . . . [The
defendants] . . . contended that Rodin had referred in
general to a journal article, not to a specific journal
article, and that the plaintiff had failed to demonstrate
that the article found by the plaintiff’s counsel was,
in fact, the one Rodin had reviewed. Moreover, [the
defendants argued that the article was not admissible
pursuant to the learned treatise exception to the hear-
say rule; see Conn. Code Evid. § 8-3 (8);8 because] Rodin
was a fact witness, not an expert witness, and no expert
had testified that the journal article was a standard
authority in accordance with § 8-3 [8] of the Connecticut
Code of Evidence. . . . The court . . . conditionally
overruled the defendants’ objection with respect to
Rodin.’’ (Footnotes added.) Filippelli v. Saint Mary’s
Hospital, supra, 141 Conn. App. 602–603.
At trial, the court instructed plaintiff’s counsel that,
before questioning Rodin about the article in the pres-
ence of the jury, she would be required to make an
offer of proof. Outside the presence of the jury,9 ‘‘Rodin
testified that he did not recall reading a journal article
before his deposition. . . . [He] acknowledged [how-
ever] that, during his deposition, he testified that he
had reviewed a journal article. [The] [p]laintiff’s counsel
presented Rodin with a copy of the journal article that
she had located and asked him if it was the article he
had reviewed. Rodin did not recognize the journal arti-
cle nor did he remember reading it. [The] [p]laintiff’s
counsel then presented Rodin with copies of what she
represented were the tables of contents of the Journal
of the American Academy of Orthopaedic Surgeons for
[2004 through 2009]. The table[s] of contents disclosed
only one article concerning compartment syndrome,
which was published in November, 2005.
‘‘Following the plaintiff’s offer of proof with respect
to the tables of contents, the court found that the journal
article discovered by the plaintiff’s counsel published
in the Journal of the American Academy of Orthopaedic
Surgeons in November, 2005, entitled ‘Acute Compart-
ment Syndrome in Lower Extremity Musculoskeletal
Trauma,’ was the article reviewed by Rodin prior to his
deposition. The court [initially indicated that it would
admit] into evidence a copy of the journal article
because Rodin testified that ‘he relied on this journal
article in preparation for his deposition . . . .’ ’’ Id.,608–609. After additional argument on the issue, how-
ever, the court indicated that it would reconsider its
ruling based on arguments provided by the parties prior
to the next trial day.
‘‘Prior to the next trial day, the defendants submitted
a memorandum of law in opposition to the admission
of the journal article through a nonexpert witness to
impeach the credibility of that witness. Rodin had not
been disclosed as an expert witness. The defendants
argued that the journal article was hearsay and the
learned treatise exception to the hearsay rule did not
apply because the article had not been identified as
authoritative nor was it relied upon by an expert wit-
ness. The defendants further argued that the plaintiff
intended to use the journal article for substantive pur-
poses. Counsel for the plaintiff [argued] that Rodin’s
deposition testimony was untruthful as it was at odds
with the substance of the journal article, although Rodin
had testified that his testimony was consistent with the
journal article.’’ Id., 609. The plaintiff made clear that
he was not offering the article under the learned treatise
exception or for the truth of the matter asserted in the
article. Rather, the plaintiff explained that he intended
to use the article for the nonhearsay purpose of
impeaching Rodin’s credibility by establishing that
Rodin had been untruthful in his deposition testimony.
Specifically, the plaintiff pointed to the following
exchange between the plaintiff’s counsel and Rodin
during Rodin’s deposition:
‘‘Q. Did you review any literature in preparation for
your deposition today?
‘‘A. I did look at one . . . article.
‘‘Q. What did you look at?
‘‘A. Journal of American Academy of Orthopaedic
Surgery.
‘‘Q. What article did you review?
‘‘A. An article on compartment syndrome.
‘‘Q. When was that article published?
‘‘A. I believe 2005; I’m not sure exactly.
‘‘Q. What did the article say?
‘‘A. Just a review about what compartment syndrome
is, and diagnosis and treatment.
‘‘Q. What did it list in there about diagnosis and
treatment?
‘‘A. Similar to things I’ve already mentioned in terms
of specific things to look at on clinical examination.’’
The plaintiff claimed that this portion of Rodin’s
deposition testimony suggested that the article was con-
sistent with his opinion concerning the diagnosis and
treatment of compartment syndrome when, in fact, the
article was inconsistent with his testimony in several
respects.10 To demonstrate that Rodin’s deposition testi-
mony was false in that regard, the plaintiff’s counsel
sought to question Rodin about his deposition testi-
mony describing the diagnosis and treatment of com-
partment syndrome, to confront Rodin with portions
of the article that contradicted his testimony on certain
points, and to introduce those excerpts from the article
into evidence.11 The trial court vacated its order from
the previous day and ruled that the article was inadmis-
sible. The court did allow the plaintiff’s counsel to sup-
plement her offer of proof on this issue and, for that
purpose, she confronted Rodin with the contradictions
between his deposition testimony and the article.12
On appeal to the Appellate Court, the plaintiff claimed
that the trial court improperly precluded him from using
the journal article to impeach Rodin’s credibility. The
plaintiff maintained that Rodin had not been truthful in
testifying that his deposition testimony was consistent
with the journal article, and that he ‘‘was entitled to
bring . . . Rodin’s lack of candor to the attention of
the jury.’’ Filippelli v. Saint Mary’s Hospital, supra,
141 Conn. App. 607. The plaintiff further maintained
that the learned treatise exception to the hearsay rule
was inapplicable to his claim because he had not sought
admission of the article as substantive evidence but,
rather, merely to impeach Rodin’s credibility by demon-
strating that he was untruthful when he suggested in
his deposition testimony that the article supported his
opinion. The Appellate Court rejected the plaintiff’s
claim, concluding that the trial court did not abuse its
discretion in precluding him from using the article to
cross-examine Rodin because ‘‘[t]he trial court has dis-
cretion to limit the admissibility of a learned treatise
when used to undermine or bolster credibility depen-
dent on the facts of a particular case.’’ Id., 611. In sup-
port of its conclusion, the Appellate Court further
observed that Rodin had not been disclosed as an expert
witness and that ‘‘no expert in this case had identified
the article as standard authority . . . .’’ Id. The Appel-
late Court, believing that the plaintiff had questioned
Rodin in front of the jury about his failure to recall at
trial that he had reviewed an article in preparation for
his deposition; see footnote 9 of this opinion; also con-
cluded that, even if the trial court had abused its discre-
tion in precluding the plaintiff from introducing the
article to impeach Rodin’s credibility, any such impro-
priety was harmless. Filippelli v. Saint Mary’s Hospi-
tal, supra, 611–12.
On appeal to this court, the plaintiff challenges the
Appellate Court’s conclusion that the trial court prop-
erly exercised its discretion in refusing to admit the
article pursuant to the learned treatise exception
because that was not the theory on which he relied in
seeking to introduce the article at trial. The plaintiff
also contends that the Appellate Court’s conclusion was
predicated on the mistaken belief that the plaintiff had
questioned Rodin in the presence of the jury with
respect to his failure to recall that he had reviewed the
article in preparation for his deposition. We agree with
the plaintiff both that the learned treatise exception
has no bearing on whether the article was admissible
for the purpose of impeaching Rodin’s credibility and
that the record indicates that the questioning at issue
took place outside the presence of the jury. We never-
theless conclude that the trial court did not abuse its
discretion in precluding the plaintiff from using the
article to impeach Rodin’s credibility. Even if Rodin did
suggest during his deposition that the article supported
his testimony; but see footnote 10 of this opinion; the
article was inadmissible for that purpose because
extrinsic evidence generally is not admissible to
impeach a witness by proving that he or she engaged
in an act of misconduct.13
Although our rules of evidence generally prohibit evi-
dence of misconduct to prove the character of a wit-
ness; see Conn. Code Evid. § 4-5; one exception to that
rule allows a party to impeach the credibility of a wit-
ness by asking about particular acts of misconduct that
tend to demonstrate the witness’ lack of veracity. Conn.
Code Evid. § 6-6 (b) (1).14 As we previously have recog-
nized, ‘‘[a] claim that [a] witness gave false testimony
[under oath] in a prior [proceeding] is directly relevant
to a witness’ credibility.’’ Weaver v. McKnight, 313
Conn. 393, 427, 97 A.3d 920 (2014). Our evidentiary rules
also provide, however, that extrinsic evidence generally
may not be used to establish that a witness engaged
in such misconduct.15 Conn. Code Evid. § 6-6 (b) (2).
Rather, ‘‘the only way to prove misconduct of a witness
for impeachment purposes is through examination of
the witness. See, e.g., Martyn v. Donlin, 151 Conn.
402, 408, 198 A.2d 700 (1964). The party examining
the witness must accept the witness’ answers about a
particular act of misconduct and may not use extrinsic
evidence to contradict the witness’ answers. State v.
Chance, [236 Conn. 31, 60, 671 A.2d 323 (1996)].’’16
Weaver v. McKnight, supra, 427. This limitation on the
use of extrinsic evidence to prove specific acts of mis-
conduct ‘‘prevents a trial within a trial on the collateral
question of whether the witness did, in fact, commit
the alleged misconduct.’’ Id., 430; see also C. Tait & E.
Prescott, Connecticut Evidence (5th Ed. 2014) § 6.32.5,
pp. 400–401.
In the present case, the plaintiff sought to introduce
the article for the improper purpose of proving through
extrinsic evidence that Rodin testified falsely in
response to questioning at his deposition. A review of
the transcript from the plaintiff’s offer of proof demon-
strates that allowing the plaintiff to use the article for
this purpose would have created a ‘‘trial within a trial’’
on the collateral issue of whether Rodin had, in fact,
testified falsely at his deposition. See Weaver v.
McKnight, supra, 313 Conn. 430. First, because the
plaintiff did not request the article at the time of the
deposition, and because Rodin testified in connection
with the offer of proof that he could not recall reading
the article, the plaintiff would have had to present
extensive evidence merely to establish that the article
in question was the article that Rodin had read prior
to the deposition. In attempting to do so in his first
offer of proof, the plaintiff confronted Rodin with his
deposition testimony in which he indicated that he had
read an article from the Journal of American Academy
of Orthopaedic Surgery about the diagnosis and treat-
ment of compartment syndrome that he believed was
published in 2005. The plaintiff then asked Rodin
whether the article in question was the article that he
had reviewed. Because Rodin could not recall reading
the article prior to his deposition, the plaintiff then
introduced the tables of contents from all of the issues
of that journal that had been published between 2004
and 2009 for the purpose of establishing that the 2005
article was the only one dealing with compartment syn-
drome. All of this evidence was offered to establish that
the article in question was the article that Rodin had
reviewed prior to his deposition. In support of the plain-
tiff’s supplemental offer of proof, he adduced additional
evidence to demonstrate that the information contained
in the article was inconsistent with Rodin’s deposition
testimony. To that end, the plaintiff’s counsel asked
Rodin several questions about the contents of the arti-
cle, and Rodin responded to each one that he could
not answer without first reading the article. Finally,
counsel confronted Rodin with several portions of his
deposition testimony wherein he had provided informa-
tion concerning the diagnosis and treatment of compart-
ment syndrome that differed from the information
contained in the article.
The plaintiff sought to introduce all of this evidence
solely for the purpose of establishing that, despite
Rodin’s alleged suggestion to the contrary, the article
on which he relied to prepare for his deposition was
inconsistent with his deposition testimony. Because
Rodin was a fact witness and not an expert witness,
however, he testified only about his own treatment of
the plaintiff, and did not offer an expert opinion on the
standard of care for the diagnosis and treatment of
compartment syndrome.17 Thus, whether the article and
Rodin’s deposition testimony were consistent was col-
lateral to the substantive issue of whether he was negli-
gent in his diagnosis and treatment of the plaintiff. See
Martyn v. Donlin, supra, 151 Conn. 407–408 (in wrong-
ful death action, trial court properly excluded docu-
ments offered for collateral issue of whether defendant
police officer lied on job application). We have long
recognized that ‘‘[s]uch a minitrial about a collateral
issue distracts from the main issues at trial, wastes the
court’s and the jury’s time, and is frequently based on
hearsay evidence of questionable value.’’ Weaver v.
McKnight, supra, 313 Conn. 430; see also State v.
O’Neill, 200 Conn. 268, 277, 511 A.2d 321 (1986); State
v. Horton, 8 Conn. App. 376, 380–81, 513 A.2d 168, cert.
denied, 201 Conn. 813, 517 A.2d 631 (1986). As the
plaintiff’s offers of proof demonstrate, allowing the
plaintiff to introduce the article to impeach Rodin’s
credibility would have resulted in extended, potentially
confusing testimony about an issue that was not rele-
vant to any substantive issue to be decided by the jury.
Under § 6-6 (b) (2) of the Connecticut Code of Evidence,
extrinsic evidence was inadmissible for that purpose.18
Accordingly, we conclude that the Appellate Court
properly concluded that the trial court did not abuse
its discretion in precluding the plaintiff from introduc-
ing the journal article to impeach Rodin’s credibility.
B
The plaintiff next claims that the Appellate Court
incorrectly concluded that the trial court did not abuse
its discretion in limiting his use of the same journal
article in connection with his cross-examination of the
defendants’ expert, Bazos. We reject this contention
as well.
The following additional facts and procedural history
are relevant to this claim. At trial, Ronald M. Krasnick,
an orthopedic surgeon, testified as an expert witness
on behalf of the plaintiff. Krasnick testified that the
Journal of the American Academy of Orthopaedic Sur-
gery is ‘‘a standard authority in the field of orthopedic
surgery.’’19 When Bazos later testified as an expert on
behalf of the defendants, the plaintiff sought, during
cross-examination, to introduce portions of the article
that contradicted Bazos’ testimony regarding the stan-
dard of care for the diagnosis and treatment of compart-
ment syndrome. The plaintiff argued that the article
was admissible under the learned treatise exception to
the hearsay rule because Krasnick had identified the
Journal of the American Academy of Orthopaedic Sur-
gery, in which the article was published, as a standard
authority in the field of orthopedic surgery. See Conn.
Code Evid. § 8-3 (8). The defendants objected, arguing
that the article was inadmissible because, although
Krasnick had testified that the Journal of the American
Academy of Orthopaedic Surgery was a standard
authority, he did not identify the specific article in ques-
tion as a standard authority. The defendants further
argued that, if the article was admitted under the
learned treatise exception, only the portions of the arti-
cle that the plaintiff used to impeach Bazos’ testimony
should be admitted as a full exhibit. The trial court
concluded that the plaintiff would be allowed to cross-
examine Bazos about the article, but that only those
portions that the plaintiff used during his cross-exami-
nation would be admitted as a full exhibit and published
to the jury.
After the trial court’s ruling, the plaintiff initially
attempted to read certain statements directly from the
article during his questioning of Bazos. The defendants
objected to the plaintiff reading from the article, how-
ever, and the trial court sustained the objection and
directed the plaintiff to ask questions without reading
from the article. Thereafter, without reading from the
article, the plaintiff incorporated portions of the article
into his questions by asking Bazos whether he agreed
with certain statements. The plaintiff also twice
approached Bazos and directed him to certain state-
ments in the article on which the plaintiff’s questions
were based. After questioning Bazos and directing him
to the statements in the article, the plaintiff sought
permission to read those statements into the record,
but the trial court denied the plaintiff’s request. After
the completion of the plaintiff’s cross-examination, the
trial court ruled that the portions of the article on which
the plaintiff had not questioned Bazos would be
redacted, with the redacted version being admitted as
a full exhibit.
On appeal to the Appellate Court, the plaintiff claimed
that the trial court had improperly limited his use of
the article in connection with his cross-examination
of Bazos. The plaintiff argued that the trial court had
admitted the entire article as a full exhibit, and that it
was improper for the court to prohibit him from reading
directly from the article and directing Bazos’ attention
to certain portions of the article during his cross-exami-
nation. The plaintiff also claimed that the trial court
improperly permitted only a redacted version of the
article to be published to the jury after admitting the
entire article as a full exhibit. The Appellate Court con-
cluded that the trial court did not abuse its discretion
in limiting the plaintiff’s cross-examination of Bazos
because the plaintiff had failed to meet the requirements
of § 8-3 (8) of the Connecticut Code of Evidence regard-
ing the admission of a learned treatise. Specifically, the
Appellate Court explained that ‘‘[b]oth Krasnick and
Bazos testified that there is no standard authority
regarding the diagnosis of compartment syndrome and
that their knowledge of the care and treatment of such
a condition is based on their reading of the whole of
orthopedic literature and their education, training and
experience as orthopedic surgeons.’’ Filippelli v. Saint
Mary’s Hospital, supra, 141 Conn. App. 613. The Appel-
late Court also concluded that the trial court did not
abuse its discretion in admitting only those portions of
the article on which Bazos was questioned. Id., 613 n.18.
The plaintiff now claims that the Appellate Court
improperly determined that the trial court did not abuse
its discretion by limiting his use of the journal article
during his cross-examination of Bazos because, con-
trary to the conclusion of the Appellate Court, the plain-
tiff had met the foundational requirements of the
learned treatise exception. The plaintiff maintains that,
because the trial court found that the article was admis-
sible as a learned treatise under § 8-3 (8) of the Connect-
icut Code of Evidence, it was improper for the trial
court to limit his use of the article. The defendants
contend to the contrary that the article should not have
been admitted into evidence for any purpose because
the plaintiff failed to meet the foundational require-
ments of the learned treatise exception and, in the alter-
native, that the trial court had the discretion to limit
the plaintiff’s use of the article on cross-examination.
We reject the plaintiff’s claim because, even if the plain-
tiff did meet the requirements for the admission of the
article as a learned treatise, the trial court properly
exercised its discretion in limiting the plaintiff’s use of
the article during cross-examination.
Under § 8-3 (8) of the Connecticut Code of Evidence,
‘‘a statement contained in a published treatise, periodi-
cal or pamphlet on a subject of history, medicine, or
other science or art’’ may be admitted into evidence as
an exception to the hearsay rule if two foundational
requirements are satisfied. ‘‘First, the work must be
recognized as a standard authority in the field by the
witness, other expert witness or judicial notice, and,
second, the work must either be brought to the attention
of the witness on cross-examination or have been relied
on by that expert during direct examination.’’ (Internal
quotation marks omitted.) Pestey v. Cushman, 259
Conn. 345, 367, 788 A.2d 496 (2002). Connecticut’s
learned treatise rule ‘‘differs from that of most other
jurisdictions, including the federal rule, in that we allow
the material to be taken into the jury room as a full
exhibit. . . . Most other jurisdictions bar such material
from the jury room, limiting their use to an oral reading
in connection with an expert witness’ testimony. . . .
This limitation seeks to avoid the danger of misunder-
standing or misapplication by the jury and ensures that
the jurors will not be unduly impressed by the text
or use it as a starting point for reaching conclusions
untested by expert testimony. . . . The Connecticut
rule, on the other hand, has the advantage of allowing
the jurors to examine more fully the text of what fre-
quently is a technical and complicated discussion that
may be unfathomable to a nonexpert juror who merely
heard a single oral recitation. Although the concerns
which underlie the federal rule cannot be completely
obviated when the materials are allowed in the jury
room, the dangers can be minimized by the judicious
exercise of discretion by the trial court in deciding
which items ought to be admitted as full exhibits.’’
(Internal quotation marks omitted.) State v. Gupta, 297
Conn. 211, 239, 998 A.2d 1085 (2010); see also C. Tait &
E. Prescott, supra, § 7.11.3, pp. 478–79.
As stated previously, for a writing to be admissible
under the learned treatise exception, it must be identi-
fied as a ‘‘standard authority in the field,’’ either by an
expert witness or by judicial notice. Conn. Code Evid.
§ 8-3 (8). The question arises, however, whether admis-
sibility under the learned treatise exception requires
testimony by the expert witness that the particular arti-
cle is a standard authority, or whether it is sufficient,
as occurred in the present case, that the expert merely
identify the journal as such authority.
Although we have not had occasion to do so, the
Appellate Court previously addressed this issue in
Musorofiti v. Vlcek, 65 Conn. App. 365, 382–85, 783 A.2d
36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). In
that case, after the plaintiff’s treating physician identi-
fied the Journal of the American Dental Association as
a standard authority in the dental profession, the trial
court allowed the defendants to introduce an article
from that journal pursuant to the learned treatise excep-
tion. Id., 382–83. On appeal, the plaintiffs claimed that
‘‘acceptance of the journal that contained the article
[as a standard authority in the field] was insufficient
to qualify the article contained therein as a learned
treatise.’’ Id., 384. In support of this claim, the plaintiffs
relied on Meschino v. North American Drager, Inc.,
841 F.2d 429, 434 (1st Cir. 1988), in which the United
States Court of Appeals for the First Circuit, addressing
a similar claim, stated that it ‘‘would not accept [the]
plaintiff’s argument that the contents of all issues of a
periodical may be qualified wholesale under [r]ule 803
(18) [of the Federal Rules of Evidence] by testimony
that the magazine was highly regarded. In these days of
quantified research, and pressure to publish, an article
does not reach the dignity of a ‘reliable authority’ merely
because some editor, even a most reputable one, sees
fit to circulate it. Physicians engaged in research may
write dozens of papers during a lifetime. Mere publica-
tion cannot make them automatically reliable
authority.’’
The Appellate Court generally agreed with the reason-
ing of the court in Meschino, stating that it ‘‘would not
accept that all articles in a periodical may be qualified
as learned through the mere demonstration that the
periodical itself is highly regarded.’’ (Emphasis in origi-
nal.) Musorofiti v. Vlcek, supra, 65 Conn. App. 384.
The Appellate Court further observed, however, that
Meschino should not be read as creating a per se rule,
and that there may be circumstances in which a particu-
lar periodical is so highly regarded within a field that
all articles published therein would be admissible as a
learned treatise. Thus, the Appellate Court endorsed
the approach taken by the United States Court of
Appeals for the Second Circuit in Costantino v. Herzog,
203 F.3d 164, 172 (2d Cir. 2000), wherein the court
stated that ‘‘[p]ublication practices vary widely, and an
article’s publication by an esteemed periodical which
subjects its contents to close scrutiny and peer review,
obviously reflects well on the authority of the article
itself. Indeed, because the authoritativeness inquiry is
governed by a ‘liberal’ standard, good sense would seem
to compel recognizing some periodicals—provided
there is a basis for doing so—as sufficiently esteemed
to justify a presumption in favor of admitting the articles
accepted for publication therein.’’ The Appellate Court
concluded in Musorofiti that, under the circumstances
of that case, the trial court did not abuse its discretion
in admitting the article based on testimony that the
journal ‘‘was widely read, recognized and accepted in
the dental profession as authoritative.’’ Musorofiti v.
Vlcek, supra, 382–83; see id., 385. We agree generally
with the approach adopted by the Appellate Court in
Musorofiti.
In the present case, it is questionable whether Kras-
nick’s testimony provided an adequate foundation for
establishing the admissibility of the article under § 8-3
(8) of the Connecticut Code of Evidence. Although we
agree, as the Appellate Court recognized in Musorofiti
v. Vlcek, supra, 65 Conn. App. 385, that evidence that
a journal is particularly esteemed within a field may
‘‘justify a presumption in favor of admitting the [article]
accepted for publication therein,’’ it is by no means
clear that Krasnick’s testimony met that standard with
respect to the Journal of the American Academy of
Orthopaedic Surgery. Indeed, Krasnick testified that
‘‘[a]ll journals are used as reference tools by orthopedic
surgeons.’’ Krasnick’s testimony that the Journal of the
American Academy of Orthopaedic Surgery is one publi-
cation among many relied on by orthopedic surgeons
as a general reference tool does not provide a particu-
larly firm basis for concluding that that publication is
regarded as so authoritative and respected within the
field of orthopedic surgery that all articles published
therein merit learned treatise status.
Even assuming that the plaintiff satisfied the require-
ments of § 8-3 (8) of the Connecticut Code of Evidence
for admission of the article as a learned treatise, how-
ever, the trial court did not abuse its discretion in lim-
iting the plaintiff’s use of the article on cross-
examination. The essence of the plaintiff’s claim is that
the trial court unduly limited his use of the article by
requiring him to incorporate portions of it into his ques-
tions, rather than allowing him to read directly from
the article, because it had been marked as a full exhibit.
Significantly, however, the plaintiff’s assertion that the
trial court had marked the entire article as a full exhibit
is belied by the record. Although the trial court initially
indicated that the entire article would be admitted as
a full exhibit, after hearing further argument from the
defendants, the court indicated that only the portions
of the article on which the plaintiff questioned Bazos
would be marked as a full exhibit and published to the
jury.20 Moreover, the mere fact that the trial court found
that the article met the requirements for admissibility
under the learned treatise exception does not mean
that the court was required to allow the plaintiff unfet-
tered use of the article. Section 8-3 (8) merely provides
that materials which meet the foundational require-
ments of the learned treatise exception are ‘‘not
excluded by the hearsay rule,’’ and does not mandate
the admission of such materials or otherwise ‘‘purport
to circumscribe the discretion generally afforded to a
trial court to determine the admissibility of evidence
in light of the facts of record.’’ Harlan v. Norwalk Anes-
thesiology, P.C., 75 Conn. App. 600, 607, 816 A.2d 719,
cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). As
discussed previously, we have long recognized that this
state’s approach to the learned treatise exception,
which allows materials admitted under the rule to be
treated as full exhibits and taken into the jury room
during deliberations, carries ‘‘the danger of misunder-
standing or misapplication by the jury’’ that other juris-
dictions seek to avoid by precluding the admission of
such materials as full exhibits. Cross v. Huttenlocher,
185 Conn. 390, 396, 440 A.2d 952 (1981). We therefore
have explained that trial courts may minimize the risks
posed by the rule by use of ‘‘the judicious exercise of
discretion . . . in deciding which items ought to be
admitted as full exhibits.’’ Id., 396–97; see also id.,397–98 (trial court properly exercised discretion in
excluding portions of medical texts recognized as stan-
dard authority in field that were likely to confuse or
mislead jury).
In the present case, it was well within the trial court’s
discretion to preclude the plaintiff from reading directly
from the article during his cross-examination of Bazos,
and to admit as a full exhibit only the portions of the
article about which Bazos was questioned. The trial
court did not, as the plaintiff argues, preclude him from
‘‘engaging in any cross-examination of [Bazos] with the
article . . . .’’ Rather, the record reveals that the plain-
tiff’s counsel questioned Bazos extensively as to
whether he agreed with the information contained in
the article and, in many instances, counsel quoted the
article verbatim in connection with his questioning.21
On at least two occasions, counsel approached Bazos,
directed him to the portion of the article on which the
question was based, and asked whether he agreed with
a particular statement. Finally, the redacted version of
the article that the trial court admitted as a full exhibit
contained all of the sections of the article that the plain-
tiff’s counsel had incorporated into her questions. Thus,
although the trial court did not allow the plaintiff to
read the article into the record, the jury was able to read
the article for itself and compare it to Bazos’ testimony.
Additionally, it bears emphasis that, contrary to the
plaintiff’s claim, the article was not a full exhibit until
after he completed his cross-examination and the trial
court was able to redact the portions of the article on
which the plaintiff did not rely. It was not an abuse of
discretion for the trial court to preclude the plaintiff
from reading from a document that was not yet a full
exhibit; see Kaplan v. Mashkin Freight Lines, Inc., 146
Conn. 327, 334–35, 150 A.2d 602 (1959); and to postpone
admitting the article as a full exhibit until after the
plaintiff had finished his cross-examination, when the
court could determine which portions of the article
were relevant to Bazos’ testimony. See State v. Wade,
96 Conn. 238, 251, 113 A. 458 (1921) (‘‘The question
of the cross-examiner [confronting a witness with a
learned treatise] must be confined to such parts of the
authority as tend to contradict the opinion as expressed
by the witness. It cannot be based upon some illustra-
tion or isolated case used by the authority to explain
or illustrate his opinion.’’). Accordingly, the Appellate
Court properly concluded that the trial court did not
abuse its discretion in limiting the plaintiff’s use of the
article while cross-examining Bazos.
II
The plaintiff also claims that the Appellate Court
improperly concluded that the trial court did not abuse
its discretion in precluding him from questioning Bazos
about his previous experience as an expert on behalf
of Rodin. The plaintiff maintains that this evidence was
relevant because Bazos falsely testified at his deposition
that he had never worked with Rodin and that the only
other case in which he remembered giving deposition
testimony was one in which Rodin was not a party.
According to the plaintiff, he should have been allowed
to ask Bazos about this prior experience with Rodin
for the purpose of impeaching Bazos’ credibility.
Finally, the plaintiff asserts that, contrary to the deter-
mination of the Appellate Court, the trial court’s failure
to permit him to make an offer of proof and to mark
an exhibit for identification prevented him from making
an adequate record of this claim. We reject each of
these contentions.
The following additional facts and procedural history
are relevant to this claim. On April 4, 2011, approxi-
mately one month prior to the commencement of trial,
counsel for the plaintiff deposed Bazos. During the
deposition, the plaintiff’s counsel briefly questioned
Bazos about his prior experience serving as an expert
witness, and whether he had ever heard of or worked
for Rodin. When asked whether he remembered the
names of any physicians for whom he previously had
provided expert deposition testimony, Bazos stated,
‘‘[t]he only one I remember, because it was relatively
recent, was [a physician named] Geiger.’’ When asked
whether he had ever heard of Rodin before his involve-
ment in this case, Bazos testified, ‘‘I’ve seen his name;
I’ve not worked with him, but Waterbury is not that far
away, and we’ll occasionally see patients that live there
and may have been treated out there in the past.’’
Prior to trial, the defendants filed a motion in limine
to preclude evidence relating to other malpractice
actions against Rodin. At a pretrial hearing on the
motion, the plaintiff indicated that, although he did not
intend to question Rodin with respect to other malprac-
tice claims, he did intend to ask Bazos whether he had
served as an expert witness on behalf of Rodin in any
other cases. The plaintiff claimed that Bazos had testi-
fied falsely during his deposition when asked about
his relationship with Rodin, and that he intended to
impeach Bazos’ credibility by bringing that false testi-
mony to the jury’s attention. Specifically, the plaintiff
indicated that, prior to the present case, Bazos had been
disclosed as an expert witness on behalf of Rodin in
two other medical malpractice cases. The plaintiff
argued that Bazos intentionally concealed his relation-
ship with Rodin when he stated that he only remem-
bered testifying as an expert witness on behalf of Geiger
and suggested that he had no knowledge or familiarity
with Rodin other than having come across his name in
the course of his practice. The plaintiff maintained that
he should be allowed to question Bazos regarding his
previous work as an expert on behalf of Rodin to show
that Bazos lied during his deposition. The defendants
argued that Bazos did not testify falsely at his deposi-
tion, but simply had misunderstood the questions asked
by the plaintiff’s counsel,22 and that Bazos intended
to submit an errata sheet to clarify his answers. The
defendants further argued that allowing the plaintiff to
present evidence that Bazos had served as an expert
on behalf of Rodin in other malpractice cases would be
unfairly prejudicial because it would reveal that Rodin
previously had been sued by other patients. The trial
court agreed with the defendants that evidence of other
malpractice claims against Rodin would be unduly prej-
udicial, but also concluded that the plaintiff should be
allowed to ask Rodin whether he lied under oath at his
deposition. The trial court therefore granted in part the
defendants’ motion in limine, ruling that the plaintiff
could ask Bazos whether he had a prior ‘‘working rela-
tionship’’ with Rodin, but not whether he had previously
served as an expert witness on Rodin’s behalf.
At trial, the plaintiff renewed his request to question
Bazos about his prior work for Rodin. As an additional
basis for the plaintiff’s belief that Bazos had testified
falsely at his deposition when he claimed only to
remember testifying as an expert on behalf of Geiger,
the plaintiff indicated that Bazos gave deposition testi-
mony on behalf of Rodin in another case just two
months prior to his deposition in the present case,
whereas his deposition testimony on behalf of Geiger
was given approximately one year earlier. The plaintiff
also claimed that, just five days before his deposition
in this case, Bazos signed an errata sheet for a deposi-
tion he had given on behalf of Rodin in another case.
The plaintiff then requested the opportunity to make
an offer of proof outside the presence of the jury. The
trial court reaffirmed its original ruling and denied the
plaintiff’s request to make an offer of proof.
Following Bazos’ testimony, the plaintiff asked to
mark for identification the certification page of a depo-
sition Bazos had given on behalf of Rodin in another
case. The trial court denied the plaintiff’s request, but
allowed the plaintiff to read the certification page into
the record.
On appeal to the Appellate Court, the plaintiff claimed
that the trial court had abused its discretion both by
precluding him from questioning Bazos about his work
as an expert on behalf of Rodin and by denying his
request to make an offer of proof and mark the certifica-
tion page as an exhibit for identification. With respect
to the first claim, the Appellate Court concluded that
the trial court reasonably precluded the plaintiff from
introducing evidence of other medical malpractice
actions in which Bazos had testified on behalf of Rodin
on the ground that such evidence was more prejudicial
than probative. Filippelli v. Saint Mary’s Hospital,
supra, 141 Conn. App. 622. With respect to the plaintiff’s
second contention, the Appellate Court concluded that,
although the trial court improperly denied the plaintiff’s
request to make an offer of proof and mark an exhibit
for identification, both errors were harmless. Id.,623–26.
As discussed in part I of this opinion, our evidentiary
rules allow a party to impeach a witness by asking
about specific acts of misconduct that are probative of
the witness’ lack of veracity; Conn. Code Evid. § 6-6
(b) (1); and false testimony given under oath is a classic
example of misconduct that may be used for such pur-
poses. See Weaver v. McKnight, supra, 313 Conn. 427.
We have long recognized, however, that the right to
cross-examine a witness with respect to such acts is not
unlimited. ‘‘First, cross-examination may only extend to
specific acts of misconduct other than a felony convic-
tion if those acts bear a special significance upon the
issue of veracity . . . . Second, extrinsic evidence of
such acts is generally inadmissible [unless the prior acts
of misconduct are relevant to a material or substantive
issue in the case]. Conn. Code Evid. § 6-6 (b) (2).’’ (Cita-
tion omitted; footnote omitted; internal quotation marks
omitted.) State v. Annulli, 309 Conn. 482, 492, 71 A.3d
530 (2013). Finally, consistent with the broad leeway
that trial courts have in regard to rulings pertaining to
the admissibility of evidence, ‘‘[w]hether to permit
cross-examination as to particular acts of misconduct
. . . lies largely within the discretion of the trial court.’’
Id., 492–93; see also C. Tait & E. Prescott, supra, § 6.32.4,
p 399 (‘‘[c]ross-examination into the misconduct of a
witness for impeachment purposes is discretionary with
the trial judge, as to both allowance and extent’’).
In the present case, it is apparent that the trial court
properly exercised its discretion in precluding the plain-
tiff from questioning Bazos as to whether he previously
had testified as an expert on behalf of Rodin. First,
whether Bazos previously served as an expert on behalf
of Rodin was a collateral matter because it was relevant
only to Bazos’ credibility and not to any substantive
issue in the case. See State v. Annulli, supra, 309 Conn.
494–95 (‘‘[a]n issue is collateral if it is not relevant to
a material issue in the case apart from its tendency to
contradict the witness’’ [emphasis in original; internal
quotation marks omitted]). In other words, although
Bazos’ alleged false deposition testimony bore on his
veracity, his relationship with Rodin was not relevant
to the plaintiff’s claim that Rodin was negligent in failing
to timely diagnose and treat the plaintiff’s compartment
syndrome.23 Furthermore, for obvious reasons, evi-
dence of prior claims of professional negligence against
Rodin, which were not otherwise admissible, would
have been highly prejudicial to the defendants. Thus,
as the trial court concluded, allowing the plaintiff
unrestricted inquiry into Bazos’ work as an expert for
Rodin would have injected a collateral issue into the
case that was extremely prejudicial to the defendants.
More importantly, the trial court did not bar the plain-
tiff from questioning Bazos whether he had testified
falsely during his deposition, but simply precluded the
plaintiff from asking Bazos about the nature of his rela-
tionship with Rodin, because allowing the plaintiff to
do so would have revealed to the jury that other patients
had filed malpractice actions against Rodin. As the trial
court recognized, allowing the plaintiff to conduct this
line of inquiry would have created a substantial risk
that the jury might infer that Rodin was negligent in
the present case because he had been a defendant in
other medical malpractice actions. See Lai v. Sagle, 373
Md. 306, 323, 818 A.2d 237 (2003) (‘‘similar acts of prior
malpractice litigation should be excluded to prevent a
jury from concluding that a doctor has a propensity to
commit medical malpractice’’); cf. Conn. Code Evid.
§ 4-5 (a) (‘‘[e]vidence of other crimes, wrongs or acts
of a person is inadmissible to prove the bad character
or criminal tendencies of that person’’); 1 K. Broun,
McCormick on Evidence (7th Ed. 2013) § 189, pp. 1025–
26. The court also recognized, however, that the plaintiff
had a legitimate interest in impeaching Bazos’ credibil-
ity by questioning him about his allegedly false or mis-
leading deposition testimony. The court sought to
balance these concerns by allowing the plaintiff to con-
front Bazos with the portion of his deposition testimony
in which he stated that he was only familiar with Rodin’s
name because he had seen it in his patients’ medical
records and to ask whether Bazos had a ‘‘working rela-
tionship’’ with Rodin, but precluded the plaintiff from
inquiring more specifically about other malpractice
cases against Rodin.
Thus, on cross-examination, the plaintiff asked Bazos
whether he had ‘‘an ongoing working relationship with
[Rodin] since about 2008,’’ which was three years before
his deposition testimony, and Bazos responded in the
affirmative. The plaintiff then confronted Bazos with
the portion of his deposition testimony in which, when
counsel for the plaintiff asked whether he had ever
‘‘heard of [Rodin] before being involved in this case,’’
Bazos stated that he had ‘‘seen [Rodin’s] name’’ but had
‘‘not worked with him . . . .’’ Bazos testified that he
did, in fact, have a working relationship with Rodin,
but that he had met Rodin for the first time the day
before the trial. At that time, the plaintiff expressly
underscored the contradiction between Bazos’ deposi-
tion testimony and his admission that he had an ongoing
relationship with Rodin for about three years, and sug-
gested that Bazos’ deposition testimony ‘‘made it appear
as though [Bazos] may have come across [Rodin’s]
name . . . in one of [his] patient’s records.’’
Although this cross-examination likely would have
been more damaging to Bazos’ credibility had the plain-
tiff been permitted to ask about his prior work as an
expert on behalf of Rodin, the trial court properly
weighed the plaintiff’s interest in impeaching Bazos
against the substantial likelihood of prejudice to the
defendants had such questioning been permitted. The
record reveals that the trial court carefully considered
the arguments of the parties24 in the interest of fashion-
ing a solution that gave the plaintiff an opportunity to
bring the alleged false testimony to the jury’s attention
without the high risk of unfairness to the defendants
that have would resulted from evidence revealing other
malpractice actions against Rodin. The decision on how
best to preserve the fairness and integrity of the trial
in this situation is precisely the kind of determination
best left to the discretion of the trial court, and that
decision will not be disturbed on appeal unless it was
arbitrary or unreasonable.25 State v. Annulli, supra, 309
Conn. 495. Because the trial court carefully weighed
the competing interests and afforded the plaintiff the
opportunity to impeach Bazos’ credibility by asking him
about his allegedly false deposition testimony, the trial
court’s handling of the issue was fair and reasonable.
Accordingly, we agree with the Appellate Court that
the trial court did not abuse its discretion in precluding
the plaintiff from questioning Bazos about his work on
behalf of Rodin in other cases.
Finally, we also agree with the Appellate Court that,
although the trial court should have allowed the plaintiff
both to make an offer of proof regarding Bazos’ previous
work as an expert on behalf of Rodin and to mark for
identification the certification page from Bazos’ deposi-
tion in one of those previous cases, neither such impro-
priety was harmful to the plaintiff. See Filippelli v.
Saint Mary’s Hospital, supra, 141 Conn. App. 623–26.
As a general matter, a trial court should always allow
a party to make an offer of proof and mark an item as
an exhibit for identification, for both practices generally
are necessary to preserving the trial record for appellate
review. See State v. Silva, 201 Conn. 244, 253, 513 A.2d
1202 (1986) (‘‘the general rule has evolved that the trial
court must mark as an exhibit for identification any-
thing offered by counsel’’ [emphasis in original]); State
v. Zoravali, 34 Conn. App. 428, 433, 641 A.2d 796 (‘‘The
appellant bears the burden of providing an adequate
appellate record through the offer of proof, among other
vehicles. . . . A trial court cannot prevent a defendant
from doing so.’’ [Citation omitted.]), cert. denied, 230
Conn. 906, 644 A.2d 921 (1994); C. Tait & E. Prescott,
Connecticut Appellate Practice and Procedure (4th Ed.
2014) § 8-2:1.1, p. 437 (‘‘[i]f necessary [to properly pre-
serve a claim for appellate review], the appellant also
must make an offer of proof or offer an exhibit for
identification’’). In the present case, however, the
record is adequate for review of the plaintiff’s claims
despite the trial court’s denial of his request to make
an offer of proof and to mark the document for identifi-
cation. As the Appellate Court observed, ‘‘although the
court improperly failed to permit the plaintiff’s counsel
to make an offer of proof, the court permitted the plain-
tiff’s counsel to argue extensively, on more than one
occasion, the legal basis on which she wanted to present
evidence of other medical malpractice actions in which
Bazos testified as an expert witness . . . .’’ Filippelli
v. Saint Mary’s Hospital, supra, 624. In addition, ‘‘[t]he
[trial] court permitted the plaintiff’s counsel to read the
document [she had sought to mark for identification]
into the record, which is available for our review.’’ Id.,
626. Accordingly, neither of the improper rulings preju-
diced the plaintiff in any way.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA and
ROBINSON, Js., concurred.
1
Philip Filippelli’s wife, Linda Filippelli, initially alleged claims for loss
of consortium, but withdrew those claims prior to trial. All references to
the plaintiff in this opinion are to Philip Filippelli III.
2
The plaintiff withdrew his claims against Saint Mary’s Hospital prior to
trial. We therefore refer to Rodin and Waterbury Orthopaedic Associates,
P.C., as the defendants.
3
Compartment syndrome is ‘‘a condition in which increased pressure in
a confined anatomic space adversely affects the circulation and threatens
the function and viability of the structures therein.’’ Stedman’s Medical
Dictionary (28th Ed. 2006) pp. 1894–95.
4
A comminuted fracture occurs when ‘‘the bone is broken into more than
two fragments.’’ Stedman’s Medical Dictionary (28th Ed. 2006) p. 769. ‘‘A
tibial plateau fracture occurs at the top of the shin bone, and involves the
cartilage surface of the knee joint.’’ J. Cluett, ‘‘Tibial Plateau Fractures,’’
(last modified May 16, 2014), available at http://orthopedics.about.com/od/
brokenbones/a/tibia_2.htm (last visited September 22, 2015).
5
A fasciectomy is the ‘‘[e]xcision of strips of fascia.’’ Stedman’s Medical
Dictionary (28th Ed. 2006) p. 706. The fascia is ‘‘[a] sheet of fibrous tissue
that envelops the body beneath the skin; it also encloses muscles and groups
of muscles and separates their several layers or groups.’’ Id., p. 700
6
The plaintiff also claimed on appeal to the Appellate Court that the trial
court improperly precluded him from using the article to confirm the opinion
of Ronald M. Krasnick, the plaintiff’s expert witness. See Filippelli v. Saint
Mary’s Hospital, supra, 141 Conn. App. 605–607. The Appellate Court
rejected that claim, and it is not before us in the present appeal.
7
At that time, plaintiff’s counsel did not ask Rodin or Rodin’s counsel to
produce the article.
8
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness . . .
‘‘(8) Statement in learned treatises. To the extent called to the attention
of an expert witness on cross-examination or relied on by the expert witness
in direct examination, a statement contained in a published treatise, periodi-
cal or pamphlet on a subject of history, medicine, or other science or art,
recognized as a standard authority in the field by the witness, other expert
witness or judicial notice.’’
9
The opinion of the Appellate Court indicates that the plaintiff questioned
Rodin in the presence of the jury as to whether he remembered reading the
article. See Filippelli v. Saint Mary’s Hospital, supra, 141 Conn. App. 608.
Our review of the record, however, indicates that the plaintiff questioned
Rodin about the article only in connection with the offer of proof, which
was conducted outside the presence of the jury. As we explain hereinafter,
this discrepancy does not alter our conclusion that the trial court did not
abuse its discretion in precluding the plaintiff from introducing the article
to impeach Rodin’s credibility.
10
We note that it is questionable whether the portion of Rodin’s deposition
testimony on which the plaintiff relies would have been construed by the
jury to suggest that the article supported his testimony regarding the diagno-
sis and treatment of compartment syndrome. Rather, it seems much more
likely that, when Rodin testified that the information in the article was
‘‘[s]imilar to things I’ve already mentioned in terms of specific things to
look at on clinical examination,’’ he meant only that the article covered
similar subject matter, not that it necessarily was consistent with his testi-
mony. The trial court, in the exercise of its discretion, reasonably could
have excluded the evidence on that ground. Cf. State v. Annulli, 309 Conn.
482, 496, 71 A.3d 530 (2013) (fact that testimony was unclear as to whether
witness gave false statement weighed against its admission). As discussed
hereinafter, however, it is clear that the article also was inadmissible because
it constituted extrinsic evidence offered to prove an act of misconduct.
11
Specifically, the plaintiff’s counsel underscored the following discrepan-
cies between Rodin’s testimony and the journal article: Rodin testified that
compartment pressures are used only to confirm a diagnosis of compartment
syndrome and are not taken to make a diagnosis in questionable cases,
whereas the article recommends that compartment pressures be taken in
order to make a diagnosis under such circumstances; Rodin testified that
a patient with compartment syndrome will experience extreme pain upon
passive range of motion of the big toe, whereas the article indicates that
pain is merely aggravated in such circumstances; and Rodin testified that
irreversible tissue damage can occur in two hours, whereas the article
indicates that such damage takes eight hours.
12
In ruling that the article was inadmissible to impeach Rodin, the trial
court explained: ‘‘The grounds on which the court is not allowing the [article]
in is based on the fact that the court finds the journal article to be hearsay.
And I’ve had no satisfactory exception provided to the court for that hear-
say.’’ The court further explained that the article ‘‘is a learned treatise,’’
that, under our Code of Evidence, ‘‘the witness to which this article would
be presented would have to be an expert witness,’’ and that the plaintiff
could not attack Rodin’s credibility because ‘‘Rodin has not been designated
as an expert witness . . . .’’ Finally, the court noted that ‘‘the article is
dated eight months after the care and treatment of [the plaintiff]’’ and that
‘‘Rodin testified he did not review . . . this article in preparation for the
care and treatment of [the plaintiff].’’ The plaintiff, however, did not offer
the article pursuant to the learned treatise exception or for the truth of its
contents but, rather, to impeach Rodin’s credibility by demonstrating that
his alleged statement that the article supported his deposition testimony
was false. As explained hereinafter, despite the trial court’s failure to
squarely address the plaintiff’s arguments, it is clear that the article was
not admissible for the purpose for which the plaintiff offered it.
13
As noted previously; see footnote 12 of this opinion; the trial court did
not rely on this reasoning in ruling that the article was inadmissible to
impeach Rodin. The court concluded, rather, that the article was hearsay,
that the plaintiff had offered ‘‘no satisfactory [hearsay] exception’’ pursuant
to which the article was admissible, and the article was not otherwise
admissible under the learned treatise exception. Although at trial the defen-
dants principally argued that the article was inadmissible because it did not
meet the requirements of the learned treatise exception, the defendants also
asserted that, to the extent it was offered for impeachment purposes, the
article related to ‘‘a collateral issue.’’ Similarly, in their brief to this court,
the defendants argue primarily that the article was inadmissible under the
learned treatise exception, but also claim that ‘‘there was no other way for
the [journal] article to be used against the defendant, a fact witness . . . .’’
To the extent the defendants have not expressly renewed their contention
that the article was inadmissible as extrinsic evidence offered to impeach
Rodin on a collateral matter, we note that ‘‘[w]here the trial court reaches
a correct decision but on mistaken grounds, this court has repeatedly sus-
tained the trial court’s action if proper grounds exist to support it.’’ (Internal
quotation marks omitted.) State v. Ruffin, 206 Conn. 678, 683, 539 A.2d 144(1988); see also State v. Henry, 253 Conn. 354, 363–66, 752 A.2d 40 (2000)
(although trial court admitted testimony under coconspirator exception to
hearsay rule, this court affirmed on ground that testimony was not hearsay);
State v. John, 210 Conn. 652, 679–80, 557 A.2d 93 (affirming trial court’s
ruling admitting out-of-court statement on different grounds than articulated
by trial court, noting that ‘‘this court is free to sustain a ruling on a different
basis from that relied upon by the trial court’’), cert. denied, 493 U.S. 824,
110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Badgett, 200 Conn. 412, 433,
512 A.2d 160 (‘‘this court may . . . consider grounds for affirming a judg-
ment that may have been overlooked by counsel in an appeal to this court’’),
cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Because
it is clear from the record that the plaintiff sought to use the article for the
improper purpose of demonstrating by use of extrinsic evidence that Rodin
had engaged in an act of misconduct, we affirm the judgment of the Appellate
Court on that basis.
14
Section 6-6 (b) (1) of the Connecticut Code of Evidence provides: ‘‘A
witness may be asked, in good faith, about specific instances of conduct
of the witness, if probative of the witness’ character for untruthfulness.’’
15
Extrinsic evidence may be used for such purposes, however, ‘‘[w]here
. . . prior acts of misconduct are relevant to a substantive or material issue
in the case . . . .’’ (Internal quotation marks omitted.) State v. Annulli, 309
Conn. 482, 492 n.7, 71 A.3d 530 (2013).
16
We note that the plaintiff does not claim that the trial court improperly
precluded him from asking Rodin whether he testified falsely at his deposi-
tion. He claims, rather, that the trial court improperly precluded him from
using the article only to demonstrate that Rodin did, in fact, testify falsely.
17
The parties agree that Rodin did not testify as an expert witness.
18
The plaintiff makes two additional arguments to support his claim that
the trial court abused its discretion in precluding him from introducing the
article to impeach Rodin’s credibility. Neither of these claims has merit.
First, the plaintiff argues that, because Rodin would have testified at trial that
he did not recall reviewing the article prior to his deposition, his deposition
testimony that he had reviewed the article was a prior inconsistent statement,
and the article and the tables of contents therefore were admissible to
demonstrate that Rodin was lying when he testified that he did not remember
reading the article. This claim fails because whether Rodin reviewed the
article prior to his deposition was a collateral issue, and extrinsic evidence
is not admissible to impeach a witness regarding an inconsistent statement
on a collateral matter. See State v. Diaz, 237 Conn. 518, 548, 679 A.2d
902 (1996).
Second, the plaintiff argues that the article was relevant to demonstrate
that Rodin was untruthful when he sought to explain the meaning of certain
statements contained in his medical records. Specifically, on the morning
of March 5, 2005, after Rodin first examined the plaintiff upon his return
to the emergency department, Rodin documented that there was a ‘‘question
of compartment syndrome’’ and that ‘‘[t]his may very well be an impending
compartment syndrome . . . .’’ According to the article, ‘‘[o]n diagnosis of
impending . . . compartment syndrome, immediate measures must be
taken,’’ and ‘‘measuring compartment pressures is recommended’’ in ques-
tionable cases. Rodin testified at trial that he was certain that the plaintiff
did not have compartment syndrome when he examined him that morning,
and that his notation in the medical records merely reflected his concern
that the plaintiff ‘‘was at risk for the development of compartment syn-
drome.’’ The plaintiff claims that Rodin came up with this explanation about
the meaning of his medical records only after reading the article, and that
he should have been allowed to introduce the article and ask Rodin whether
he reviewed it prior to his deposition to impeach his credibility on that
issue. The plaintiff never argued at trial that the article was admissible for
that purpose and we, therefore, will not consider it on appeal. Travelers
Ins. Co. v. Namerow, 257 Conn. 812, 831, 778 A.2d 168 (2001) (‘‘[o]ur review
of evidentiary rulings made by the trial court is limited to the specific legal
ground raised [at trial]’’ [internal quotation marks omitted]).
19
In response to questioning from counsel for the plaintiff, Krasnick testi-
fied as follows:
‘‘Q. . . . [D]o you subscribe to any medical journals or any other medi-
cal literature?
‘‘A. Primarily two . . . the Journal of Bone and Joint Surgery and the
Journal of the American Academy of Orthopaedic Surgery. . . .
‘‘Q. And is the Journal [of the American Academy of Orthopaedic Surgery]
generally used as a reference tool by orthopedic surgeons?
‘‘A. All journals are used as reference tools by orthopedic surgeons.
‘‘Q. Is the Journal of the American Academy of Orthopaedic Surgery used
in that capacity as well?
‘‘A. Absolutely.
‘‘Q. And is that publication a standard authority in the field of orthope-
dic surgery?
‘‘A. Yes.’’
20
Before the plaintiff questioned Bazos on the article, the trial court
initially indicated that the entire article would be admitted as a full exhibit.
The defendants argued, however, that only the portions used for impeach-
ment should be admitted, and the trial court responded, ‘‘[w]ell, I’m going
to wait and see what [plaintiff’s counsel] brings up on cross, it’ll be marked
in full and will not be published to the jury and then we’ll . . . see what
she brings out.’’ At the conclusion of the plaintiff’s cross-examination of
Bazos, the defendants again inquired as to which portions of the article
would be admitted as a full exhibit, and the trial court stated, ‘‘my ruling
on what should and shouldn’t come in is everything that [Bazos] was ques-
tioned on. . . . And I want you to work with [the plaintiff’s] counsel on
that, everything else is redacted.’’ Consistent with the transcript, a review
of the exhibits reveals that only the redacted version of the article was
marked as a full exhibit. Thus, although the trial court’s initial ruling may
have suggested that the entire article would be admitted in full, the court
ultimately admitted only the redacted version, and did so only after the
plaintiff had completed his cross-examination of Bazos.
21
For example, the plaintiff asked Bazos whether he agreed that ‘‘pain
out of proportion to the injury aggravated by passive stretching of muscle
groups in the corresponding compartment is one of the earliest and most
sensitive clinical signs of compartment syndrome,’’ and that ‘‘[p]eripheral
pulses are palpable and, unless a major arterial injury is present, capillary
refill is routinely present.’’ This and other language used by the plaintiff in
his questioning of Bazos is identical to that appearing in the article. See S.
Olson & R. Glasgow, supra, 13 J. Am. Acad. Orthopaedic Surgeons 436.
22
Specifically, although acknowledging that the plaintiff’s counsel had
asked Bazos at his deposition whether he ‘‘remember[ed] the names of any
of the physicians for which [he had] given deposition testimony’’; (emphasis
added); the defendants explained that Bazos had responded that he only
recalled testifying on behalf of Geiger because he mistakenly thought that
the plaintiff’s counsel was merely seeking to ascertain whether he had
previously testified as an expert at trial, and Bazos had not previously
testified at trial on behalf of Rodin. Counsel for the defendants also argued
that Bazos’ deposition testimony that he had not previously worked with
or met Rodin was not false because, although he had served as an expert
on Rodin’s behalf, his relationship was with Rodin’s counsel and her firm,
rather than with Rodin himself.
23
The dissent maintains that Bazos’ previous relationship with Rodin was
not collateral because it ‘‘was relevant to the issue of his potential bias or
interest in the outcome of the case’’ and that ‘‘evidence tending to show a
witness’ bias, prejudice or interest is never collateral.’’ (Internal quotation
marks omitted.) To the extent the plaintiff preserved this claim at trial and
has raised it on appeal, we disagree that the mere fact that an expert witness
previously served as an expert on behalf of the same party in an unrelated
matter is admissible to demonstrate bias. It is well established that, although
a trial court may not unduly restrict a party from impeaching a witness with
evidence of bias, the court maintains the discretion to limit the scope of
such evidence when it is of limited probative value; see State v. Lee, 229
Conn. 60, 69–70, 640 A.2d 553 (1994); C. Tait & E. Prescott, supra, § 6.30.6 (b),
p. 393; and to exclude relevant evidence that will result in unfair prejudice to
the opposing party. Conn. Code Evid. § 4-3 (‘‘[r]elevant evidence may be
excluded if its probative value is outweighed by the danger of unfair preju-
dice’’); see also Cousins v. Nelson, 87 Conn. App. 611, 622–24, 866 A.2d 620(2005). Thus, in addressing the identical issue in Cousins, the Appellate
Court concluded that the trial court did not abuse its discretion in precluding
the plaintiff from questioning the defendant’s expert about other cases in
which he had served as an expert on the defendant’s behalf and, instead,
limiting the plaintiff to asking whether the expert had a ‘‘personal relation-
ship’’ with the defendant. (Internal quotation marks omitted.) Cousins v.
Nelson, supra, 623–24. As the Appellate Court observed in that case, evidence
that an expert witness previously served as an expert on behalf of the same
party in an unrelated case ‘‘could not [reveal] any potential personal stake
on the part of [the expert] in the outcome of the trial.’’ Id., 623.
As in Cousins, the trial court in the present case did not completely bar
the plaintiff from asking Bazos about his previous relationship with Rodin,
but merely precluded him from asking Bazos whether he had worked as an
expert for Rodin in other cases. It bears noting, moreover, that although
the trial court indicated that the plaintiff could ask Bazos whether he had
a ‘‘working relationship’’ with Rodin, the court also expressly informed the
plaintiff’s counsel that it was willing to consider other suggestions as to
how the relationship could be described without alerting the jury to the
other cases in which Rodin was named as a defendant. Of course, the
plaintiff also was free to explore Bazos’ potential bias in favor of Rodin by
asking whether he was being compensated for his work in the present case.
Testimony about previous cases, however, would have had little or no
probative value and would have been extremely prejudicial to the defense
because it would have revealed that Rodin had been a defendant in other
medical malpractice actions. Thus, the trial court properly exercised its
discretion in precluding this evidence to forestall the serious risk that the
jury would conclude that Rodin likely was negligent in the present case
merely because he had been a defendant in other malpractice actions.
24
For example, at the pretrial hearing on the defendants’ motion in limine,
in response to the defendants’ argument that the plaintiff should not be
permitted to question Bazos about his prior relationship with Rodin, the
court explained: ‘‘It’s not as if he’s walking into this not knowing anything
about [Rodin], he’s had prior experience with [Rodin] on two previous
occasions. And what I’m trying to get from you is a way counsel can bring
out that there is this preexisting relationship between the parties . . . with-
out going into what it was.’’ The court further explained that ‘‘[t]he fact
that there has been previous malpractice claims against [Rodin] is highly
prejudicial and its prejudicial value outweighs is probative value. However,
the plaintiff is entitled to bring out the fact that . . . there’s some sort of
relationship here between these parties, this is not someone who is blindly
looking at [Rodin] for the first time.’’ At trial, following the plaintiff’s con-
tention that asking Bazos about his work as an expert for Rodin in other
cases was necessary to put the alleged false testimony in its proper context,
the court responded, ‘‘you’re going to be given an opportunity to attack his
credibility on that issue, just not in the direction you want to take it on the
other issues.’’
25
The plaintiff’s reliance on Hayes v. Manchester Memorial Hospital, 38
Conn. App. 471, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185(1995), is misplaced. In Hayes, the Appellate Court concluded that the trial
court had abused its discretion by precluding the plaintiff in a medical
malpractice action from cross-examining the defendant’s expert witness
concerning an action pending against the expert himself that included claims
of medical negligence similar to those at issue in Hayes. Id., 473–76. The
Appellate Court reasoned that, because the allegations against the expert
resembled the allegations against the defendant, the expert had a motive
to testify that the defendant’s actions conformed to the standard of care.
Id., 473. Hayes is readily distinguishable because the plaintiff in that case
sought to introduce evidence of other malpractice claims that had been
filed against the defendant’s expert, not against the defendant himself, and,
therefore, there was no risk that the jury would presume that the defendant
was negligent merely because he was a defendant in separate medical mal-
practice action.