DocketNumber: No. CV98-0486909S
Citation Numbers: 2000 Conn. Super. Ct. 2203
Judges: KOCAY, JUDGE.
Filed Date: 2/10/2000
Status: Non-Precedential
Modified Date: 7/5/2016
It is within the discretion of this court to entertain the defendants' motion in limine at this point in the proceedings. "The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. If a case has not yet been assigned for trial, a judicial authority may, for good cause shown, entertain the motion. Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. All interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding." (Emphasis added.) Practice Book §
In light of the above and for the reasons stated below, this court hereby grants pursuant to the movants' request that Roberts' expert witness and treating orthopedic, Doctor David M. Kruger, M.D., refrain from commenting on, mentioning and/or discussing the alleged shoulder injury or any treatment thereof in the presence of the jury during the trial of this action. Thus, it is ordered that Roberts' attorney must first secure a ruling from this court, outside the presence of the jury, that anticipated evidence, discussion or testimony that might concern Dr. Kruger and Roberts' shoulder injury is admissible by evidentiary standards.
The relevant facts of this case are as follows: On December 31, 1996, Roberts allegedly sustained physical injuries, including but not limited to a left shoulder injury, when she was a passenger in a motor vehicle that was being driven by Stewart when struck by a motor vehicle operated by Lin and owned by Ton-Yong. On March 23, 1998, Roberts filed suit against Stewart, Lin and Ton-Yong for claims sounding in negligence. In her complaint, Roberts alleges that her injuries and losses were proximately caused by the defendants' carelessness and negligence in the operation of their motor vehicles. By way of the motion in limine sub judice, the defendants are moving to preclude from evidence any testimony relating to Roberts' alleged shoulder injury on the ground that Roberts' expert testimony does not meet the requisite legal standard of medical probability as to the causal connection between Roberts' shoulder injury and the subject motor vehicle accident. In her objection to the motion in limine, Roberts argues that her expert's testimony is based on reasonable medical probabilities. Yet, this court finds otherwise after CT Page 2206 reviewing Dr. Kruger's deposition testimony in light of the prevailing legal authority.
Notwithstanding the obvious to a person learned in legal principles, this court notes that in order for Roberts to prevail on her claim of an alleged shoulder injury she must prove, inter alia, that her shoulder injury was proximately caused by the motor vehicle accident resulting from the defendants' negligence. "Causation may be proved by circumstantial evidence and expert testimony." (Quotation marks omitted.) Shelnitz v. Greenberg,
"To be entitled to damages a plaintiff must establish a causal relationship between the injury and the physical condition which he claims resulted from it. . . . This causal connection must rest upon more than surmise or conjecture. . . . A trier is not concerned with possibilities but with reasonable probabilities . . . [The causal relationship between an injury and its later physical effects may be established] by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question. . . . Any expert opinion that describes a `condition' as possible or merely fifty-fifty is based on pure speculation." (Citations omitted; quotation marks omitted.) Aspiazu v. Orgera, supra,
"To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony." (Citation omitted.) Struckman v. Burns,
"An expert opinion or conclusion need not be based on absolute certainty so long as the opinion is stated in terms of the probable and not merely the possible." C. Tait J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 7.16.1, p. 172. "To avoid speculation, opinions and conclusions must be reasonably probable and not merely possible." C. Tait J. LaPlante, supra, § 7.16.4, p. 176.
In light of the foregoing legal authority, Roberts may use circumstantial evidence and direct expert testimony to prove her alleged shoulder injury was caused by the motor vehicle accident. As such, any medical expert testimony Roberts might seek to admit into evidence as to the causal connection between her alleged shoulder injury and the accident must meet the requisite legal standard of medical probability, for its failure to would prejudice and unduly influence the minds of the jurors. This court finds that Dr. Kruger's deposition testimony does not meet the requisite standard of medical probability necessary to establish the element of causation required for Roberts' claim that her shoulder injury resulted from the defendants' negligent operation of their motor vehicles. Excerpts from Dr. Kruger's deposition testimony and medical report dated October 12, 1999, both submitted by the parties involved, support this court's ruling.
The deposition testimony reveals that although Dr. Kruger first treated Roberts for injuries relating to the instant motor vehicle accident on January 7, 1997, and again treated her on January 16, 1997, and March 3, 1997, Roberts did not complain of shoulder pain to Dr. Kruger until her March 3, 1997 treatment date. (Depo. p. 10, lines
In response to a direct examination deposition question posed by Roberts' attorney, "if this particular patient had prior problems with her skeletal system and muscle related problems, could that develop into shoulder pain," Dr. Kruger answered, in part: "She did say that she was using a walker because of her legs. And, actually, she was having difficulty using the walker, she claims now, in part because of her shoulder pain and would use a cane. She was using a cane in her right hand, which she now says she couldn't use, and used her left hand because her shoulder hurt. In fact, one would construct an idea that she either hurt her shoulder in the car accident and had other areas of pain and didn't mention it to anyone for over a month, close to two months. Or, one could construct the idea that here is a sick woman who has had a bad shoulder in the past and now she is limping around using assistive devices, that being a cane or a walker, and she injured her shoulder which already had a preexisting condition and now she's hurt her shoulder as a consequence from her injuries from this motor vehicle accident. Or, one can construct the theory that she had injuries from the motor vehicle accident and two months later had a shoulder problem that has nothing to do with it and she is a sick lady who gets shoulder problems from time to time. I think those are three possible explanations, and I think the causalty of this shoulder problem is a problem." (Depo. p. 12-14.) When Roberts' counsel later asked, "Doctor, would you give an opinion as far as the effect of trauma on her shoulder as far as the car accident within reasonable medical probability," Dr. Kruger responded: "I'm gray on this. I really am. And I want to be fair to everyone involved here and I'm not sure I have medical certainty." (Depo. p. 14, lines 6-12.) As to which Roberts' counsel immediately reiterated: "Not certainty. Probability." (Depo. p. 14, line 13.) Dr. Kruger thereafter replied: "Probability. In my gut, based on not a lot of science, I suspect that she probably did not injure her shoulder in the motor vehicle accident. But it is not unreasonable to think that because she was hobbling from her legs CT Page 2209 that she exacerbated a preexisting condition where-she is a sick woman. She was on steroids. She has bad tissues and she was using a walker or a cane or toting herself around because of her bad legs and may have exacerbated her shoulder that way. But again, in all fairness to everyone, and I'm just trying to be honest about this, I'm not sure that true either. She had a bad shoulder in the past. Bad shoulders act up from time to time. It is a difficult issue." (Depo. pp. 14-15.)
In testifying to his opinion, Dr. Kruger stated "I'm not sure. She had [a] long history of shoulder problems. She never mentioned her shoulder for weeks, close to months after the accident. My gut feeling is she didn't hurt it at the time of the accident, although she could have. It's plausible that this bad shoulder became inflamed and overused because she was walking around with assistive devices as a direct consequence of the injuries from the motor vehicle accident. And also, as noted by that, she had a rheumatoid or lupus flare-up in her hand and that she could have just independently had a reactivation of her shoulder problem. Of those three things, I'm somewhat leaning towards thinking the second thing is the truth, but I don't know. . . . The second thing is that she had a bad shoulder to start with and tooling around with the walker and the cane and limping and pulling stirred up an underlying shoulder disease." (Depo. p. 20-21.) When asked "is it your opinion, Doctor, within a reasonable medical probability that the use of a cane and/or walker would lead to a problem with her left shoulder," Dr. Kruger opined "[t]hat's possible. I don't know that's a fact. I think I said a few times already that it's not an unreasonable presumption of the three possibilities I put out. I am not aware of the other possibilities. But of the three possibilities I put out, that's probably my favorite, but I'm not sure." (Depo. p. 22, lines
Furthermore, Dr. Kruger opined: "I have thought about this case a lot this week, I think my opinion is sort of maturing on the subject after having reviewed it twice this week. If it didn't, it's my current opinion that it's one of those things with some leaning that it may have been a preexisting condition exacerbated by waking around on canes and crutches. I think Mrs. Roberts actually believes she was injured in the accident. I don't have any documentation to that effect and I don't know that either the injury or the exacerbation are true." (Depo., p. 28, lines 15-24.) "These, to me, are the three possibilities. I think the best bet is the second one, which is an exacerbation from a CT Page 2210 preexisting condition from using assistive devices and being gimpy and pulling herself around, but I don't know that to be a fact. And I have tried to be very fair and honest about this." (Depo. p. 40-41.) "[M]y gut feeling is she didn't get an acute injury in the car crash or if walking around with crutches put her over the edge, I don't know." (Depo. p. 46, lines
In light of the foregoing excerpts, Dr. Kruger's deposition testimony is not based on medical probabilities, but possibilities. It is evident from his deposition testimony that he could not state with medical probability that Roberts' shoulder injury was causally connected to the motor vehicle accident involved in the instant suit. Although it consists of educated possibilities, Dr. Kruger's deposition testimony concerning the causalty of Roberts' shoulder injury is nonetheless speculation. "Speculation filtered through a jury is still speculation." (Internal quotation marks omitted.) Petriellov. Kalman,
Additionally, this court hereby denies without prejudice to its later renewal that part of the motion in limine that requests Roberts herself or her attorney be precluded from mentioning or referencing her alleged shoulder injury at any time during trial. This court's research has not turned up any case in which a plaintiff has been precluded from testifying to an alleged injury and its cause for lack of supporting expert testimony based on medical probability as to the causation of the alleged injury; however, there are cases in which reviewing courts have reversed judgments rendered in favor of plaintiffs because the plaintiffs' own testimony on the causation of the alleged injury failed to satisfy the plaintiffs' burden of proof. In such cases, the alleged injury at issue was not of a type within the common knowledge of a lay person but within the field of expert knowledge thereby mandating expert medical testimony to support an award of damages for the plaintiffs. CT Page 2211
In support of the foregoing, see Sickmund v. Connecticut Co.,
In light of above legal authority, Roberts and her attorney are not precluded from commenting on the alleged shoulder injury and its alleged cause during the trial of this matter, provided that the anticipated evidence is found to be relevant and not barred by any evidentiary exceptions. "Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. . . ." (Citations omitted; internal quotation marks omitted.) State v. Evans,
In summation, this court rules as follows on the defendants' motion in limine: one, it is granted in part only as to the request to precluding testimony or discussion as to Roberts' expert medical witness, Dr. Kruger, regarding Roberts' alleged shoulder injury; and, two, denied without prejudice as to the CT Page 2213 request precluding Roberts, her attorney or her other witnesses from testifying as to the alleged shoulder injury.
Kocay, J.