McCrea v. Cumberland Farms, Inc.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
YOLANDA MCCREA ET AL. v. CUMBERLAND
FARMS, INC., ET AL.
(AC 42985)
Elgo, Cradle and Alexander, Js.
Syllabus
The plaintiffs, M and P, sought to recover damages for the defendants’
alleged negligence as a result of injuries they sustained when their
vehicle was struck from behind by the defendants’ vehicle. The defen-
dants filed a special defense alleging that P was contributorily negligent.
Interrogatories were not submitted to the jury, which returned a general
verdict for the defendants, and the trial court rendered judgment in
their favor. On appeal to this court, the plaintiffs claimed, inter alia,
that the trial court improperly prevented them from testifying, for the
purpose of rehabilitating their credibility after it had been challenged
by the defendants, that the reason their attorney referred them to certain
medical providers was because they lacked adequate medical insur-
ance. Held:
1. The trial court did not abuse its discretion when it allowed the defendants’
counsel to question the plaintiffs about their selection of medical provid-
ers from a list curated by their attorneys and about a lawsuit M previously
had filed that pertained to injuries she sustained in a prior motor vehicle
accident: the examination of the plaintiffs by the defendants’ counsel
as to those issues was relevant to the defendants’ claims that the testi-
mony of the plaintiffs’ medical providers was biased and that M’s asser-
tion about her injuries being causally related to the motor vehicle colli-
sion at issue lacked credibility; moreover, that evidence was properly
admitted to challenge the plaintiffs’ credibility as to whether they were
actually harmed or merely seeking treatment to establish and to augment
their damages claim, as credibility was a particularly important issue
at trial given the parties’ differing versions of the events.
2. The trial court improperly precluded the plaintiffs from presenting evi-
dence that they sought treatment from medical providers referred to
them by their attorneys due to their lack of adequate medical insurance;
the plaintiffs were entitled to present that evidence to rebut the defen-
dants’ claim that their treatment may have been motivated not by pain
but for purposes of litigation and establishing damages, nothing in the
record revealed the authority on which the trial court relied in precluding
the plaintiffs’ evidence as to why certain medical providers were chosen,
the defendants’ assertion that the collateral source rule (§ 52-225a) pre-
cluded evidence of the absence of insurance was untenable, as that rule,
which is premised on third-party payments toward damages sought by
a plaintiff, was simply not implicated in this case, and, because the
defendants repeatedly emphasized the role of the plaintiffs’ attorneys
in selecting medical providers, the court’s preclusion of evidence the
plaintiffs sought to present to rehabilitate their credibility likely affected
the jury’s verdict and thus constituted harmful error.
3. The defendants’ contention that the general verdict rule precluded review
of the plaintiffs’ claims was unavailing; the defendants’ challenge to the
plaintiffs’ credibility permeated all aspects of the trial, and, this court
having determined that the trial court improperly precluded the plaintiffs
from offering evidence to rehabilitate their credibility, the prejudicial
effect of the trial court’s ruling on their credibility could not be limited
to the complaint or to the defendants’ special defense of contributory
negligence and, thus, necessarily tainted the entire case.
Argued October 19, 2020—officially released May 25, 2021
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiffs as a result of the defendants’
alleged negligence, brought to the Superior Court in
the judicial district of Fairfield, where the court, Welch,
J., denied the plaintiffs’ motion to preclude certain evi-
dence; thereafter, the matter was tried to the jury; ver-
dict for the defendants; subsequently, the court, Welch,
J., denied the plaintiffs’ motion to set aside the verdict
and rendered judgment in accordance with the verdict,
from which the plaintiffs appealed to this court.
Reversed; new trial.
Michael E. Skiber, for the appellants (plaintiffs).
Tara F. Racicot, with whom was Matthew G. Con-
way, for the appellees (defendants).
Opinion
ELGO, J. In this negligence action regarding injuries
sustained by the plaintiffs, Yolanda McCrea and Derrick
Pettway, in a motor vehicle accident, the jury returned
a general verdict in favor of the defendants, Cumberland
Farms, Inc. (Cumberland Farms), and its employee,
Trevor Johnie. The trial court thereafter denied the
plaintiffs’ motion to set aside that verdict and rendered
judgment accordingly. On appeal, the plaintiffs contend
that the court improperly (1) permitted the defendants’
counsel to pursue certain lines of questioning that alleg-
edly were irrelevant and prejudicial, and (2) prevented
the plaintiffs from testifying that the reason they were
referred to certain medical providers by their attorney
was because of a lack of adequate medical insurance.
The defendants respond by arguing that the general
verdict rule precludes our consideration of the plain-
tiffs’ evidentiary claims. We agree with the plaintiffs’
second claim and, accordingly, reverse the judgment
of the trial court.1
The following facts and procedural history are rele-
vant to this appeal. On November 23, 2015, while Pett-
way was driving on Interstate 95 in Milford, Pettway’s
vehicle was struck from behind by a vehicle driven
by Johnie that was owned by Cumberland Farms. On
August 17, 2017, the plaintiffs served the defendants
with a summons and a four count complaint. Counts
one and three alleged that the plaintiffs were injured
as a result of Johnie’s negligence,2 and counts two and
four alleged that Cumberland Farms was vicariously
liable for their injuries. In their answer to the complaint,
the defendants admitted that Johnie was acting within
the scope of his employment but denied that the plain-
tiffs had been injured as a result of any negligence. As to
counts three and four of the complaint, the defendants
alleged, as a special defense, contributory negligence
on the part of Pettway.3 See General Statutes § 52-572h.
On November 13, 2017, the defendants filed an appor-
tionment complaint against Pettway, in which they
claimed that any damages awarded to McCrea must be
proportionately reduced by the percentage of Pettway’s
negligence pursuant to § 52-572h (c) and General Stat-
utes § 52-102b.4
A trial was held before a jury from March 6 to 8,
2019. When it concluded, the court instructed the jury
on the applicable law, including negligence, proximate
cause, and damages. Neither party objected to those
instructions. Interrogatories were not submitted to the
jury, which returned a general verdict in favor of the
defendants.
The plaintiffs thereafter moved to set aside the jury’s
verdict. The defendants filed an opposition to that
motion, claiming, inter alia, that the general verdict rule
precluded disruption of the jury’s verdict. After hearing
argument from the parties, the court denied the plain-
tiffs’ motion to set aside the verdict and rendered judg-
ment in accordance with the jury’s verdict. This appeal
followed.
I
The plaintiffs first claim that the court improperly
permitted the defendants’ counsel to pursue certain
lines of questioning at trial.5 More specifically, they
argue that the court abused its discretion in allowing
the defendants to question (1) McCrea about the fact
that she had brought a lawsuit related to a prior motor
vehicle accident, (2) both plaintiffs on the fact that they
had hired a previous attorney and the timing in which
they contacted that attorney, and (3) both plaintiffs as
to the fact that their medical providers were referred
to them by their attorney. In response, the defendants
contend that each line of questioning was relevant to
the plaintiffs’ credibility. We agree with the defendants.
The following additional facts and procedural history
are relevant to those claims. On February 13, 2019, the
plaintiffs filed a motion in limine to preclude evidence
of (1) when they hired their previous attorney, (2)
McCrea’s lawsuit that was related to a past motor vehi-
cle accident, and (3) a referral made by the plaintiffs’
prior attorney to a physical therapist. On March 1, 2019,
the defendants filed an objection to the motion in
limine, arguing that those facts were admissible ‘‘for
purposes of aiding the jury in appraising the parties’
credibility.’’ The court thereafter denied the motion
in limine.6
During the defendants’ cross-examination of McCrea
at trial, the following colloquy occurred:
‘‘[The Defendants’ Counsel]: At some point . . .
after going to the emergency room the next day, you
went to see a physical therapist, Core Physical Therapy?
‘‘[McCrea]: It wasn’t right after the emergency
room. . . .
‘‘[The Defendants’ Counsel]: . . . You saw Dr. [Eric
J.] Katz . . . because he was on a list given to you by
your attorney?
‘‘[McCrea]: That’s correct.
‘‘[The Defendants’ Counsel]: And you were repre-
sented by a different attorney at the time?
‘‘[McCrea]: That’s correct.
‘‘[The Defendants’ Counsel]: So, it’s fair to say that,
as of December 17, 2015, you . . . had retained counsel
in regard to this accident?
‘‘[The Plaintiffs’ Counsel]: Objection, Your Honor; rel-
evance.
‘‘The Court: Overruled. . . .
‘‘[McCrea]: So—
‘‘[The Defendants’ Counsel]: Well, the answer is either
a yes or a no, ma’am. Is it true that, as of December
17, 2015, you had retained an attorney in regard to this
accident, which we’re here in court for today?
‘‘[McCrea]: It’s true that I retained an attorney after—
‘‘[The Defendants’ Counsel]: Thank you. You’ve
answered the question.’’
After that exchange, the court took a lunch recess.
The issue of attorney referrals came up again during
the defendants’ cross-examination of Pettway:
‘‘[The Defendants’ Counsel]: Let’s turn to your medi-
cal treatment. You testified that you went to St. Vin-
cent’s [Medical Center in Bridgeport] day one, correct?
‘‘[Pettway]: Yes. . . .
‘‘[The Defendants’ Counsel]: . . . You went to a doc-
tor from an attorney who provided you a list? . . .
‘‘[Pettway]: . . . I was calling doctors, and they told
me I’ll have to get a lawyer. So, the attorney gave me
a list.
‘‘[The Defendants’ Counsel]: So, is it fair to say that
the day after you went to the emergency room, you
went to a lawyer to find a doctor.
‘‘[Pettway]: No.
‘‘[The Plaintiffs’ Counsel]: Objection, Your Honor, rel-
evance.
‘‘The Court: Sustained.’’
The defendants’ counsel then asked Pettway about
McCrea’s medical treatment:
‘‘[The Defendants’ Counsel]: . . . [L]et’s talk about
the medical documents that you’ve seen. You testified
that you’re aware of who . . . McCrea has seen as well,
correct?
‘‘[Pettway]: Only some—some of the ones we’ve seen
together. Yeah.
‘‘[The Defendants’ Counsel]: Well, [your counsel], on
direct examination asked you if she went to Dr. Katz
as well, and she did.
‘‘[Pettway]: Yes.
‘‘[The Defendants’ Counsel]: In fact, you went
together to see Dr. Katz?
‘‘[Pettway]: Yes.
‘‘[The Defendants’ Counsel]: And she has testified
on direct examination that she went to Core Physical
Therapy and you went to Core Physical Therapy.
‘‘[Pettway]: Yes.
‘‘[The Defendants’ Counsel]: She’s testified on direct
examination that she went to [a] chiropractor. You went
to . . . the [same] chiropractor . . . .
‘‘[Pettway]: Yes.
‘‘[The Defendants’ Counsel]: She’s testified in exami-
nation that she had a lawyer and then she had a different
lawyer. . . . And you had that same lawyer and then
you had [a different lawyer]?
‘‘[Pettway]: Yes.’’
Finally, during McCrea’s direct examination, she tes-
tified that she suffered neck and back pain from a previ-
ous motor vehicle accident in 2011. During recross-
examination, the following colloquy took place between
the defendants’ counsel and McCrea:
‘‘[The Defendants’ Counsel]: So, [after your prior]
motor vehicle accident in 2011, you filed a lawsuit for
that accident. Correct?
‘‘[McCrea]: Yes, I did.
‘‘[The Defendants’ Counsel]: Thank you.
‘‘[McCrea]: And my car was totaled out, yes.’’7
On appeal, the plaintiffs challenge the propriety of
that questioning. We begin by setting forth the relevant
standard of review. ‘‘Upon review of a trial court’s deci-
sion, we will set aside an evidentiary ruling only when
there has been a clear abuse of discretion. . . . The
trial court has wide discretion in determining the rele-
vancy of evidence and the scope of cross-examination
and [e]very reasonable presumption should be made in
favor of the correctness of the court’s ruling in
determining whether there has been an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Edwards, 202 Conn. App. 384, 407, 245 A.3d 866, cert.
denied, 336 Conn. 920, 246 A.3d 3 (2021).
Section 4-1 of the Connecticut Code of Evidence
defines ‘‘relevant evidence’’ as ‘‘evidence having any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more proba-
ble or less probable than it would be without the evi-
dence.’’ ‘‘To determine whether a fact is ‘material’ or
‘consequential,’ it is necessary to examine the issues in
the case, as defined by the underlying substantive law,
the pleadings, applicable pretrial orders, and events
that develop during the trial. Thus, the relevance of an
offer of evidence must be assessed against the elements
of the cause of action, crime, or defenses at issue in
the trial. The connection to an element need not be
direct, so long as it exists.’’ (Internal quotation marks
omitted.) State v. Fasano, 88 Conn. App. 17, 36–37, 868
A.2d 79, cert. denied, 274 Conn. 904, 876 A.2d 15 (2005),
cert. denied, 546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed.
2d 873 (2006). Section 4-3 of the Connecticut Code of
Evidence provides: ‘‘Relevant evidence may be
excluded if its probative value is outweighed by the
danger of unfair prejudice or surprise, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time or needless presentation of
cumulative evidence.’’ ‘‘In order to exclude evidence on
the ground of prejudice, there must be undue prejudice
great enough to threaten an injustice. . . . The burden
of showing that the evidence may unduly arouse the
jurors’ emotions of hostility or sympathy rests with the
party claiming prejudice.’’ (Citations omitted; internal
quotation marks omitted.) Hayes v. Manchester Memo-
rial Hospital, 38 Conn. App. 471, 475, 661 A.2d 123,
cert. denied, 235 Conn. 922, 666 A.2d 1185, and cert.
denied, 235 Conn. 922, 666 A.2d 1185 (1995).
The plaintiffs argue that each of these issues raised
by the defendants ‘‘created a side issue that unduly
distracted the jury’’ from whether Johnie was negligent
and whether that negligence was the proximate cause
of the plaintiffs’ injuries. In response, the defendants
submit that ‘‘credibility is always relevant,’’ and ‘‘the
fact that the plaintiffs first consulted with an attorney
and then treated with doctors the attorney referred
them to tends to show that the plaintiffs’ treatment may
have been motivated, not by any purported pain, but
instead for purposes of the litigation and establishing
damages.’’ (Emphasis omitted.) We conclude that the
defendants’ examination of the plaintiffs with respect
to this evidence was relevant to the issue of credibility
and was not unduly prejudicial.
‘‘Once a witness has testified to certain facts . . .
his credibility is a fact that is of consequence to [or
material to] the determination of the action, and evi-
dence relating to his credibility is therefore relevant
. . . .’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Fasano, supra, 88 Conn. App. 37.
It is well established that ‘‘[c]ross-examination is an
indispensable means of eliciting facts that may raise
questions about the credibility of witnesses and, as a
substantial legal right, it may not be abrogated or
abridged at the discretion of the court to the prejudice of
the party conducting that cross-examination.’’ (Internal
quotation marks omitted.) Tiplady v. Maryles, 158
Conn. App. 680, 696–97, 120 A.3d 528, cert. denied, 319
Conn. 946, 125 A.3d 527 (2015).
Here, evidence that McCrea filed a lawsuit after she
sustained injuries in the 2011 motor vehicle accident
was relevant to the defendants’ claim that McCrea’s
assertion that her injuries were causally related to her
accident in this action lacked credibility. The fact that
the plaintiffs selected medical providers from a list
curated by their attorneys was also relevant to the
defendants’ claim that the testimony of the plaintiffs’
medical providers was biased in favor of the plaintiffs.
That evidence was also properly admitted to challenge
the plaintiffs’ credibility with respect to whether the
plaintiffs were actually harmed or merely were seeking
treatment from these providers to establish and to aug-
ment their damages claim for litigation purposes. More-
over, evidence that the plaintiffs’ former attorney had
referred the plaintiffs to Dr. Katz was similarly relevant
to motive, bias, and credibility. Finally, as the defen-
dants asserted in their objection to the plaintiffs’ motion
in limine, ‘‘the credibility of the plaintiffs is a particu-
larly important issue at trial given the differing versions
of events proffered by the plaintiffs as opposed to what
the [defendants claim] occurred.’’ For those reasons,
we conclude that the court did not abuse its discretion
when it allowed the defendants’ counsel to explore
these issues of credibility at trial.
II
The plaintiffs also claim the court improperly pre-
cluded them from testifying that their lack of adequate
medical insurance was the reason for seeking treatment
from medical providers referred by their attorney.
We agree.
The following additional facts are relevant to this
claim. Following the denial of the plaintiffs’ motion in
limine, the trial commenced with opening statements
by counsel. In his opening statement, the defendants’
counsel suggested that the plaintiffs were exaggerating
their injuries, stating that ‘‘[t]his case is entirely about
credibility,’’ that ‘‘the [plaintiffs’] attorneys sent [the
plaintiffs] to certain doctors for the treatment,’’ and
that ‘‘it all adds up . . . .’’ After noting during his open-
ing statement that the plaintiffs’ counsel had ‘‘[allud]ed
to the fact that the attorneys have sent them to the
doctors to treat,’’ the defendants’ counsel stated that
the plaintiffs’ counsel had ‘‘sent’’ Pettway to Dr. Michael
J. Giordano and had ‘‘sent [Pettway] to Dr. [Abra-
ham] Mintz.’’
After opening statements concluded but before the
presentation of evidence began, the plaintiffs requested
permission from the court to offer testimony that the
attorney referrals were necessary because the medical
provider did not accept the plaintiffs’ medical insur-
ance. The court rejected the plaintiffs’ request:
‘‘The Court: We’re not going there.
‘‘[The Plaintiffs’ Counsel]: But, Your Honor, he’s—
he’s already—he’s able to throw the—
‘‘The Court: No, he—he said, how did you get refer-
rals. We’re talking about referrals.
‘‘[The Plaintiffs’ Counsel]: Right.
‘‘The Court: Now you’re bringing insurance into
the case.
‘‘[The Plaintiffs’ Counsel]: But the reason we made
referrals, Your Honor, and I think I should be able to
explain that, is because [the medical providers do not]
accept [the plaintiffs’ insurance]—
‘‘The Court: Then you’re—you’re—it’s testimony.
That’s where I thought we were moving.
‘‘[The Plaintiffs’ Counsel]: Right. But he’s already
thrown the—the gauntlet down by saying the [plain-
tiffs’] attorneys send clients to their own doctors . . .
and I think I have the—I should have the ability to
[explain why the plaintiffs were] sent to these particular
doctors; well, because the other doctors didn’t accept
[their] insurance. . . .
‘‘[The Defendants’ Counsel]: No—no way. . . .
[T]here’s not a case in the state that we allow insurance
issues to come in.
‘‘The Court: Right. And insurance is not coming in.
. . . [Y]ou have a list, if I gather correctly, that you
refer doctors. That’s how they got there. The money
issue is not part of this.’’
Nothing in the transcripts or record before us reveals
the authority on which the court relied in precluding
evidence of the plaintiffs’ lack of adequate medical
insurance as the reason for seeking treatment from
medical providers referred by their attorney. On appeal,
the defendants cite to Capozziello v. Robinson, 102
Conn. App. 93, 95, 924 A.2d 876 (2007), for the precept
that ‘‘it is a well established rule that the existence of
collateral sources should not be revealed to the jury.’’
(Emphasis omitted.) With no further analysis, the defen-
dants suggest that the collateral source rule justifies
the court’s ruling.8 In response, the plaintiffs argue that
evidence of insurance, or more precisely, their lack
thereof, was necessary to properly explain why certain
medical providers were chosen. They contend that such
evidence was relevant and necessary to rehabilitate
their credibility in light of the defendants’ portrayal of
them as ‘‘litigious malingerers who only chose to treat
for their injuries at the suggestion of their attorneys.’’
In 1986, our legislature abolished the common-law
collateral source rule in personal injury cases to prevent
a plaintiff from receiving a double recovery for injuries.
Mack v. LaValley, 55 Conn. App. 150, 167, 738 A.2d 718,
cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). General
Statutes § 52-225a (a) provides in relevant part that, in
a civil action sounding in tort in which the plaintiff seeks
to recover damages resulting from personal injuries
that occurred on or after October 1, 1987, and in which
the jury determines liability and awards damages to
compensate the plaintiff, ‘‘the court shall reduce the
amount of such award which represents economic dam-
ages . . . by an amount equal to the total of amounts’’
paid by collateral sources. As this court has noted, ‘‘[t]he
language and legislative history of § 52-225a clearly indi-
cate that [it] was intended to prevent plaintiffs from
obtaining double recoveries, i.e., collecting economic
damages from a defendant and also receiving collateral
source payments.’’ (Internal quotation marks omitted.)
Corcoran v. Taylor, 65 Conn. App. 340, 344–45, 782 A.2d
728, cert. denied, 258 Conn. 925, 783 A.2d 1027 (2001).
In enacting § 52-225a, the legislature sought to strike
an ‘‘equitable balance . . . between preventing defen-
dants from benefiting from reduced judgments due to
collateral source payments, on the one hand, and bar-
ring plaintiffs from recovering twice for the same loss,
on the other.’’ (Internal quotation marks omitted.) Jones
v. Kramer, 267 Conn. 336, 346, 838 A.2d 170 (2004).
The legislature plainly was concerned that evidence of
third-party payments could accrue to the benefit of the
defendant because a jury might be tempted to factor
in and deduct paid medical bills from a plaintiff’s claim
for damages. At the same time, in the absence of a
collateral source hearing pursuant to § 52-225a, a plain-
tiff inadvertently could be awarded a double recovery.
With the mechanism embodied in § 52-225a in place,
‘‘[e]vidence of an injured person’s income or recovery
from loss-reducing sources is ordinarily barred by the
collateral source rule.’’ Hammer v. Mount Sinai Hospi-
tal, 25 Conn. App. 702, 721, 596 A.2d 1318, cert. denied,
220 Conn. 933, 599 A.2d 384 (1991).
Given the principles underlying the collateral source
rule, which are premised on third-party payments
toward the claim of damages sought by a plaintiff, the
defendants’ suggestion that it operates to preclude evi-
dence of the absence of insurance is untenable. For
that reason, the collateral source rule is simply not
implicated in the present case. Even if third-party pay-
ments were at issue, however, the appellate courts of
this state have long held that, when evidence of collat-
eral source payments is relevant to credibility, the
admission of such evidence is not improper. See
Acampora v. Ledewitz, 159 Conn. 377, 384, 269 A.2d
288 (1970) (although evidence that third party paid
plaintiff’s bills ordinarily is irrelevant and inadmissible
under collateral source rule, that evidence is admissible
if relevant to credibility); cf. Hammer v. Mount Sinai
Hospital, supra, 25 Conn. App. 722 (court did not abuse
its discretion in excluding evidence of plaintiff’s income
from disability insurance payments when such evidence
would have been cumulative because it related to his
credibility about his finances).
Our Supreme Court’s analysis in Acampora v. Lede-
witz, supra, 159 Conn. 377, is instructive. In that case,
the plaintiff sought damages for injuries she suffered
from a fall on the defendant’s property. At trial, the
plaintiff’s physician testified that he treated the plaintiff
for those injuries between the years 1965 through 1967.
The plaintiff nevertheless had submitted into evidence
a medical bill indicating that her last visit with the
physician was on December 8, 1964. In an apparent
attempt to explain the discrepancy between the bill and
his testimony, the physician testified that he did not
charge the plaintiff for her visits in the ensuing years
because she was worried about her ability to pay and
that he kept no record of her visits. On cross-examina-
tion, the defendant was precluded from attempting to
show that the plaintiff’s bills were paid under workers’
compensation, which, he argued, was relevant to chal-
lenging the physician’s credibility with respect to his
testimony that he had not kept a record or billed the
plaintiff because of her inability to pay. Because the
issue of payment was deemed vital with respect to the
physician’s credibility, our Supreme Court held that,
although the collateral source rule ordinarily would
preclude evidence of payments by third parties, it was
reversible error to preclude the defendants from pursu-
ing the matter on cross-examination. Id., 383–84.
In the present case, the defendants’ case was prem-
ised on the claim that the plaintiffs were not credible,
in part because their medical providers were referred
to them by their attorneys. As discussed in part I of
this opinion, such testimony properly was admitted into
evidence, as the defendants claim, ‘‘to show that the
plaintiffs’ treatment may have been motivated, not by
any purported pain, but instead for purposes of the
litigation and establishing damages.’’ It is for precisely
this reason that the plaintiffs sought to rebut this char-
acterization of their motives with evidence that strikes
at the heart of their attorneys’ role in the procurement
of their treatment. Thus, the plaintiffs were entitled
to present evidence that they sought treatment from
medical providers referred to them by their attorneys
due to their lack of adequate medical insurance. We,
therefore, conclude that the court improperly precluded
the plaintiffs from introducing such evidence.
Our inquiry does not end with the conclusion that
the court’s ruling was erroneous. We also must consider
whether it constituted harmful error. ‘‘Even when a trial
court’s evidentiary ruling is deemed to be improper, we
must determine whether that ruling was so harmful as
to require a new trial. . . . In other words, an eviden-
tiary ruling will result in a new trial only if the ruling
was both wrong and harmful. . . . It is the plaintiff’s
burden to show harmful error.’’ (Internal quotation
marks omitted.) Suntech of Connecticut, Inc. v. Law-
rence Brunoli, Inc., 173 Conn. App. 321, 347, 164 A.3d
36 (2017), appeal dismissed, 330 Conn. 342, 193 A.3d
1208 (2018).
The defendants argues that, even if the court erred
in precluding this testimony from the plaintiffs, the
error was harmless because the plaintiffs were able to
explain that they chose certain providers for conve-
nience,9 that they provided their doctors with letters of
protection,10 and that they received treatment from
other doctors who were not referred to by the plaintiffs’
attorneys.11 We conclude that such ancillary evidence
does not mitigate the taint on the plaintiffs’ motives or
their overall credibility.
In this regard, it bears emphasis that, in his opening
statement to the jury, the defendants’ counsel alleged
that the case was ‘‘about [the plaintiffs] taking advan-
tage of the system’’ and that the plaintiffs’ attorneys
‘‘sent them to certain doctors for the treatment . . . .’’
In light of that narrative to the jury, the defendants’
counsel proceeded to question both plaintiffs about the
fact that their attorneys had referred them to some of
their medical providers. Finally, during closing argu-
ments, while discussing Pettway’s claimed injuries, the
defendants’ counsel argued that the fact that the plain-
tiffs’ attorneys were ‘‘sending people to doctors, by [the
plaintiffs’ counsel’s] own words, it’s not a good look
. . . .’’ Because the defendants’ theory at trial repeat-
edly emphasized the role of the plaintiffs’ attorneys in
selecting medical providers, we are not persuaded that
other reasons given by the plaintiffs mitigate the preju-
dice to them. Unlike convenience and proximity, the
plaintiffs’ lack of insurance was offered not simply to
explain their choice of providers but, more precisely,
to explain the role their attorneys played in securing
them. Such testimony bore directly on a central chal-
lenge to their credibility by the defendants at trial. By
precluding that testimony, the court permitted the
defendants to attack the plaintiffs’ credibility while
denying the plaintiffs the opportunity to rehabilitate
their credibility. For that reason, we conclude that the
court’s ruling likely affected the jury’s verdict and, thus,
constitutes harmful error.
III
As a final matter, we address the defendants’ con-
tention that the general verdict rule precludes review
of the plaintiffs’ claims.12 ‘‘Under the general verdict
rule, if a jury renders a general verdict for one party,
and [the party raising a claim of error on appeal did
not request] interrogatories, an appellate court will pre-
sume that the jury found every issue in favor of the
prevailing party. . . . Thus, in a case in which the gen-
eral verdict rule operates, if any ground for the verdict
is proper, the verdict must stand; only if every ground
is improper does the verdict fall. . . . The rule rests
on the policy of the conservation of judicial resources,
at both the appellate and trial levels.’’ (Internal quota-
tion marks omitted.) Garcia v. Cohen, 335 Conn. 3,
10–11, 225 A.3d 653 (2020).
‘‘On the appellate level, the rule relieves an appellate
court from the necessity of adjudicating claims of error
that may not arise from the actual source of the jury
verdict that is under appellate review. In a typical gen-
eral verdict rule case, the record is silent regarding
whether the jury verdict resulted from the issue that
the appellant seeks to have adjudicated. Declining in
such a case to afford appellate scrutiny of the appel-
lant’s claims is consistent with the general principle of
appellate jurisprudence that it is the appellant’s respon-
sibility to provide a record upon which reversible error
may be predicated. . . . [T]he general verdict rule
applies to the following five situations: (1) denial of
separate counts of a complaint; (2) denial of separate
defenses pleaded as such; (3) denial of separate legal
theories of recovery or defense pleaded in one count
or defense, as the case may be; (4) denial of a complaint
and pleading of a special defense; and (5) denial of a
specific defense, raised under a general denial, that had
been asserted as the case was tried but that should
have been specially pleaded.’’ (Citation omitted; inter-
nal quotation marks omitted.) Id., 11–12.
In the present case, we analyze the applicability of
the general verdict rule under the fourth scenario
because the pleadings here included a denial of the
complaint and the assertion of a special defense.13
As this court has noted, the general verdict rule ‘‘oper-
ates . . . to insulate a verdict that may have been
reached under a cloud of error, but which also could
have been reached by an untainted route.’’ (Internal
quotation marks omitted.) Klein v. Quinnipiac Univer-
sity, 193 Conn. App. 469, 487, 219 A.3d 911 (2019),
appeal dismissed, Conn. , A.3d (2020).
In the present case, the defendants argue that the
general verdict rule applies because they filed special
defenses of contributory negligence as to Pettway and
because the plaintiffs failed to request interrogatories.
As this court has noted, a defendant’s ‘‘denial of negli-
gence and . . . allegations of contributory negligence
constitute two discrete defenses, either of which could
[support a] jury’s general verdict. . . . The verdict
[could be] predicated on the [defendant’s] freedom from
negligence or on the plaintiff’s comparatively greater
negligence. . . . In light of [a] plaintiff’s failure to
request interrogatories to ascertain the basis of the
jury’s verdict, [the verdict] must [be upheld] . . . under
the general verdict rule, if either defense is legally sup-
portable.’’ (Internal quotation marks omitted.) Id.A review of cases in which this court has addressed
the applicability of the general verdict rule to eviden-
tiary claims is instructive. In Bergmann v. Newton Buy-
ing Corp., 17 Conn. App. 268, 269, 551 A.2d 1277 (1989),
the plaintiff sued the defendant in connection with injur-
ies she sustained when she slipped and fell in the defen-
dant’s department store. In responding to the complaint,
the defendant filed a special defense alleging contribu-
tory negligence on the part of the plaintiff. Id. At trial,
no interrogatories were submitted to the jury, which
returned a general verdict for the defendant. Id. On
appeal, the plaintiff argued that the court improperly
had granted a motion in limine that precluded her from
offering evidence of the defendant’s refusal to permit
inspection of its premises until after the surface of the
floor was changed. The purpose of the excluded evi-
dence was to allow the jury to draw an inference
adverse to the defendant, namely, that the defendant’s
initial refusal to let the plaintiff inspect the floor was
an admission of liability by conduct. Id., 269–70. In
considering the applicability of the general verdict rule,
this court observed that the court’s evidentiary ruling
affected only the plaintiff’s claims regarding the defen-
dant’s negligence and not the defendant’s special
defense of contributory negligence. Id., 270. As such,
we reasoned that, if the plaintiff’s claim of error as to
the defendant’s special defense was without merit, the
general verdict rule would preclude review of the plain-
tiff’s other three claims of error relative to the defen-
dant’s negligence. Id., 270–71. The court then turned to
the merits of the plaintiff’s additional claim of instruc-
tional error as to the defendant’s special defense. Hav-
ing concluded that the trial court did not err in its jury
instruction on contributory negligence, we held that the
general verdict stood, irrespective of any other claim
of error, including the plaintiff’s assertion of evidentiary
error. Id., 271–73.
In Spears v. Elder, 124 Conn. App. 280, 284, 5 A.3d
500, cert. denied, 299 Conn. 913, 10 A.3d 528 (2010),
the plaintiff brought an action against the defendant
alleging, inter alia, defamation by slander and fraud. At
the conclusion of trial, neither party submitted interrog-
atories to the jury, which returned a general verdict
in favor of the plaintiff. Id. On appeal, the defendant
challenged the propriety of several evidentiary rulings.
Id., 285. This court concluded that, to the extent that
certain evidentiary claims pertained solely to the slan-
der count, the general verdict rule precluded review of
the fraud claim. However, to the extent that an eviden-
tiary error implicated the credibility of the plaintiff, the
general verdict rule did not preclude review because
the plaintiff’s credibility applied to both causes of
action. Id., 292.
In part I of this opinion, we concluded that the court
properly allowed the defendants to elicit evidence chal-
lenging the plaintiffs’ motives in filing the lawsuit and
their credibility in general. Although the defendants
have argued that the evidence was proper because it
tended ‘‘to show that the plaintiffs’ treatment may have
been motivated, not by any purported pain,’’ but instead
for purposes of litigation and establishing damages,
their challenge to the plaintiffs’ credibility permeated
all aspects of the trial. As the defendants’ objection to
the plaintiffs’ motion in limine made clear, ‘‘the credibil-
ity of the plaintiffs [was] a particularly important issue
at trial given the differing versions of events proffered
by the plaintiffs as opposed to what the [defendants
claim] occurred.’’ Because we have concluded that the
court improperly precluded the plaintiffs from offering
evidence to rehabilitate their credibility, and given that
the prejudicial effect on their credibility cannot be lim-
ited to the complaint or the defendants’ special defense
of comparative negligence, the preclusion of that evi-
dence necessarily taints the entire case. Cf. Spears v.
Elder, supra, 124 Conn. App. 292. Because no untainted
route to the jury’s verdict remains, we conclude that
the general verdict rule does not apply.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
The plaintiffs also claim that the court improperly denied their motion
to set aside the verdict because it was against the weight of the evidence.
In light of our conclusion that the court committed reversible error by
precluding evidence of insurance, we do not address that claim.
2
The plaintiffs alleged, inter alia, that Johnie was negligent in having
failed (1) to operate his motor vehicle at a reasonable rate of speed, (2) to
keep his vehicle under proper control, (3) to keep a proper lookout for
other motor vehicles on the highway, (4) to apply the brakes in time to
avoid a collision and (5) to turn his vehicle in such a manner as to avoid
a collision.
3
The defendants alleged, inter alia, that Pettway was negligent in having
failed (1) to keep a proper lookout for other motor vehicles on the highway,
(2) to keep a proper and reasonable control of his vehicle, (3) to apply his
brakes or to steer his vehicle in a manner so as to avoid the collision and
(4) to pass the vehicle driven by Johnie safely and in accordance with
General Statutes § 14-233.
4
General Statutes § 52-572h (c), which governs the apportionment of
liability among multiple tortfeasors, provides in relevant part: ‘‘[I]f the dam-
ages are determined to be proximately caused by the negligence of more
than one party, each party against whom recovery is allowed shall be liable
to the claimant only for such party’s proportionate share of the recoverable
economic damages and the recoverable noneconomic damages . . . .’’
(Emphasis added.)
General Statutes § 52-102b provides in relevant part: ‘‘(a) A defendant in
any civil action to which section 52-572h applies may serve a writ, summons
and complaint upon a person not a party to the action who is or may be
liable . . . for a proportional share of the plaintiff’s damages in which
case the demand for relief shall seek an apportionment of liability. . . .’’
(Emphasis added.)
Although the issue is not presently before us, we note that Superior Court
authority is divided on the issue of whether a defendant may bring an
apportionment claim against a plaintiff. ‘‘The majority of cases considering
this issue . . . have refused to allow a defendant to bring an apportionment
claim against a plaintiff.’’ (Internal quotation marks omitted.) Ulic v. Cacio-
poli, Superior Court, judicial district of New Haven, Docket No. CV-03-
0473774-S (February 4, 2004) (36 Conn. L. Rptr. 474, 475). ‘‘Courts adopting
the majority view have generally done so on the basis of the plain language
and legislative history of § 52-102b as well as the fact that apportionment
is already available to parties in negligence actions.’’ (Internal quotation
marks omitted.) Harding v. Mrini, Superior Court, judicial district of Anso-
nia-Milford, Docket No. CV-XX-XXXXXXX-S (February 3, 2020) (70 Conn. L.
Rptr. 31, 34).
5
Although we reverse the judgment and remand the case for a new trial
on other grounds, we address these evidentiary claims because they are
likely to arise again in the new trial; see, e.g., State v. Norman P., 169 Conn.
App. 616, 618 n.2, 151 A.3d 877 (2016), aff’d, 329 Conn. 440, 186 A.3d 1143(2018); and because a discussion of these claims underscores the centrality
of the plaintiffs’ credibility in this case.
6
Although the plaintiffs have not provided this court with a transcript of
the trial court’s ruling on their motion in limine, it is undisputed that the
court denied that motion prior to trial.
7
The defendants do not contend that the evidentiary claims discussed in
part I of this opinion were unpreserved. See Practice Book § 60-5; cf. Cima
v. Sciaretta, 140 Conn. App. 167, 173 n.5, 58 A.3d 345 (evidentiary claim
preserved for appellate review by filing of pretrial motion in limine), cert.
denied, 308 Conn. 912, 61 A.3d 532 (2013).
8
The collateral source rule, codified at General Statutes § 52-225a provides
in relevant part: ‘‘(a) In any civil action, whether in tort or in contract,
wherein the claimant seeks to recover damages resulting from (1) personal
injury or wrongful death . . . and wherein liability is admitted or is deter-
mined by the trier of fact and damages are awarded to compensate the
claimant, the court shall reduce the amount of such award which represents
economic damages, as defined in subdivision (1) of subsection (a) of section
52-572h, by an amount equal to the total of amounts determined to have
been paid under subsection (b) of this section less the total of amounts
determined to have been paid, contributed or forfeited under subsection
(c) of this section, except that there shall be no reduction for (A) a collateral
source for which a right of subrogation exists, and (B) the amount of
collateral sources equal to the reduction in the claimant’s economic damages
attributable to the claimant’s percentage of negligence pursuant to section
52-572h.
‘‘(b) Upon a finding of liability and an awarding of damages by the trier
of fact and before the court enters judgment, the court shall receive evidence
from the claimant and other appropriate persons concerning the total
amount of collateral sources which have been paid for the benefit of the
claimant as of the date the court enters judgment. . . .’’
9
More specifically, the defendants note that McCrea was permitted to
explain that she chose Dr. Katz (a doctor to whom she was referred by her
former attorney) because Dr. Katz’ practice stayed open later than other
practices. During Pettway’s direct examination, he testified that he selected
Dr. Katz because the practice was close to one of his properties and that
he went at the same time as McCrea because the appointment times
‘‘work[ed] for both of’’ them. McCrea and Pettway also testified that Dr.
Katz’ practice was located in the same building as Core Physical Therapy,
which both plaintiffs attended for treatment.
10
On this issue the defendants specifically cite the fact that (1) during
opening statements, the plaintiffs’ counsel referred to ‘‘letters of protection,’’
and (2) during McCrea’s direct examination, she testified that there was a
gap in her treatment because she was no longer represented by her first
attorney and, as a result, Dr. Katz could no longer see the plaintiffs on ‘‘a
letter of protection status.’’ We note, however, that opening statements are
not evidence and that ‘‘letter of protection’’ is a term of art. Thus, mere
reference to a ‘‘letter of protection’’ without affording the plaintiffs the
opportunity to explain its significance does not mitigate harm.
11
The defendants note that Pettway testified that Dr. Katz referred him
to Dr. Rahul S. Anand for lumbar epidermal injections. They further note
that McCrea also testified that she was referred to the Orthopedic Specialty
Group, P.C., in Fairfield by Dr. Joseph J. Firgeleski III for neck and back
pain, was referred to a specialist at Gaylord Hospital by her oral surgeon,
found another provider, Dr. Brijesh Chandwani, on her own after her pain
worsened, did not recall who referred her to Dr. William C. DeAngelo,, and
was referred to Dr. M. Joshua Hasbani, a neurologist, by Dr. DeAngelo.
12
We note that the plaintiffs did not address the applicability of the general
verdict rule in their appellate brief. Although the plaintiffs were provided
an opportunity at oral argument before this court to explain why they
believed the general verdict rule did not apply, they declined to provide any
such argument.
13
The defendants contend that the present case may be analyzed pursuant
to the first and second scenarios. We disagree. Scenario one applies when
a complaint asserts several counts against a defendant, and a prevailing
plaintiff seeks application of the rule because at least one count is not
implicated by a defendant’s claim of error. Because the plaintiffs are taking
the appeal and there is only one count alleged against each defendant,
scenario one clearly does not apply. See generally Curry v. Burns, 225
Conn. 782, 792–93, 626 A.2d 719 (1993). The second scenario similarly has
no application to the present case, as there is only one special defense
asserted by each defendant as to Pettway.
We further note that the defendants have failed to address the operation
of the general verdict rule relative to the apportionment complaint filed with
respect to Pettway. See footnote 4 of this opinion and accompanying text.