Hines v. Saint Vincent's Medical Center

657 A.2d 578, 232 Conn. 632, 1995 Conn. LEXIS 101

• Court: Supreme Court of Connecticut
• Decided: April 11, 1995
• Docket: 15113
• Status: Published

Opinions

Berdon, J.

The sole issue in this appeal is whether the trial court was correct in refusing to instruct the jury that an adverse inference could be drawn from the defendant’s failure to call a witness to testify.¹ The plaintiff, Christina Hines, is administratrix of the estate of her deceased daughter, Jessica Hines.² She commenced this medical malpractice action against the defendant, Saint Vincent’s Medical Center (hospital), for damages as the result of Jessica’s death. The jury returned a verdict in favor of the hospital. The plaintiff moved to set aside the verdict, but the trial court denied this motion. The plaintiff appealed to the Appellate Court and the case was transferred to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts necessary to decide the issue on appeal are not in dispute. The plaintiff gave birth to a daughter, Jessica Lynn, on March 3,1987, at the hospital. Four days later, mother and daughter were discharged from the hospital. On March 11, however, Jessica became ill, and her parents, the plaintiff and her husband, George Hines, returned to the hospital.

Jessica’s parents first were interviewed by Belinda Saxon, a register clerk in the emergency room. Saxon solicited information from the family, including the baby’s name, address and insurance information. Saxon also engaged in a brief discussion about Jessica’s health, and why the family had taken her to the hospital. Saxon recorded this information on a medical record that she established for Jessica, which the plaintiff then signed. This record reflected the plaintiff’s statement to Saxon that Jessica’s medical problem was “swollen stomach, twice stop breathing.”

The plaintiff³ next took the baby to meet a triage nurse, Kathy Martin,⁴ who interviewed the family and inquired about the nature of the baby’s illness. After the nurse conducted this interview, the baby was examined by a physician, Gerald Golding, and a second nurse, Dawn Martin. Golding diagnosed the baby as suffering from constipation and discharged her from the hospital’s care. Her parents took Jessica home with them that night. The following morning, March 12, 1987, Jessica’s parents found her dead in her crib. An autopsy revealed that the baby had died from “a massive bacterial meningitis (Streptococcus) complicated by acute pneumonitis, pulmonary congestion and edema.”

At trial, the parties called witnesses to testify about what had occurred at the hospital during the evening of March 11,1987, when Jessica’s parents brought her to the emergency room. The plaintiff called as witnesses herself and Golding, the doctor who had examined Jessica. The defendant hospital called as witnesses the triage nurse, Kathy Martin, and the second nurse who had been present during the doctor’s examination, Dawn Martin. The court also admitted into evidence the medical record that Saxon, the register clerk, had prepared. Neither party, however, called Saxon to testify.

Before the close of the plaintiff’s case, the plaintiff informed the court and the hospital that, if the hospital did not call Saxon to testify, the plaintiff would ask the court to instruct the jury that it could draw an adverse inference from the hospital’s failure to call Saxon as a witness.⁵ Before the close of the defendant’s case, the defendant asked the court to rule on whether it would issue such an instruction, but the court reserved decision on the matter until both sides had rested. The hospital did not call Saxon as a witness before resting its case. The plaintiff thereafter submitted a supplemental request to charge, seeking to have the court instruct the jury that it could infer that, because the hospital had failed to call Saxon to testify, her testimony would have been unfavorable to it.⁶

During a conference in chambers prior to delivering the jury charge, the court informed both parties that it would not deliver the adverse inference instruction because Saxon had been equally available as a witness to both parties.⁷ After the court delivered the jury charge without the requested instruction, the plaintiff took exception to the charge as given. The jury thereafter returned a verdict in favor of the hospital.

The plaintiff moved to set aside the jury verdict, arguing that the trial court should have issued the adverse inference instruction. In an oral decision, the trial court found that Saxon was not a witness who would naturally have been produced by the hospital. The court concluded that, because Saxon had failed to satisfy that part of the test for the instruction on adverse inferences, such an instruction would have been inappropriate. The trial court, therefore, denied the motion to set aside the verdict and rendered judgment for the hospital on the verdict. This appeal followed.

On appeal, the plaintiff argues that the trial court acted improperly in two ways. First, the plaintiff argues that the trial court should not have refused to instruct the jury on an adverse inference merely because Saxon was equally available as a witness for either party. Second, the plaintiff argues that the trial court incorrectly determined that Saxon was not a witness who would naturally have been produced by the hospital. Because we conclude that the trial court was correct in finding that Saxon was not a witness who would naturally have been produced by the hospital, we affirm the court’s decision not to deliver the requested instruction.⁸

This court first articulated the conditions under which such an instruction is appropriate in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). “The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce. . . . A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” (Citations omitted; internal quotation marks omitted.) Id., 675; see State v. Grant, 221 Conn. 93, , 602 A.2d 581 (1992); State v. Greene, 209 Conn. 458, 469-70, 551 A.2d 1231 (1988); Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986); State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975); Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963 (1975).⁹

A party, however, is not entitled to receive such an instruction in all circumstances. To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. Blake v. Blake, 211 Conn. 485, 493, 560 A.2d 396 (1989); Queen v. Gagliola, 162 Conn. 164, 169, 292 A.2d 890 (1972). The party seeking the adverse inference instruction bears the burden of proving that the witness is both available and would naturally have been produced; Shelnitz v. Greenberg, supra, 200 Conn. 73; and the trial court must make a preliminary determination that there is evidence in the record to support these elements. See, e.g., State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988); Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 43, 368 A.2d 206 (1976).

The trial court concluded that Saxon failed to meet the requirements of the second prong of Secondino, and therefore refused to give the requested instruction. According to the trial court, “[a] review of the deposition transcript shows that [Saxon] remembered virtually nothing of her brief encounter with Mrs. Hines in the emergency room and I just don’t see that there was anything that she has to add which was peculiar or superior, especially in light of the admission of the emergency room record as an exhibit in the matter.” We agree.

At trial, the plaintiff testified about what happened during her brief meeting with Saxon. She testified that she had told the register clerk that Jessica had not been eating well that day, and that Jessica had stopped breathing for about thirty seconds. The plaintiff explained to Saxon how Jessica looked and acted during the incident, and told her that Jessica’s body had stiffened. The plaintiff testified that during the time that Saxon saw Jessica and her parents, Jessica was making grunting noises, but then stated that the baby “really wasn’t doing anything. She was just laying there.”

The medical record prepared by Saxon was admitted into evidence. This record revealed that the baby’s problem, according to Saxon’s interview with the plaintiff, was “swollen stomach, twice stop breathing.” A transcript of Saxon’s deposition testimony reveals that she could have added nothing to the medical record evidence already before the trial court. Saxon stated repeatedly during her deposition that she could not recall specifically what had happened at the hospital during the evening of March 11, 1987, some six and one-half years earlier.¹⁰ She stated that a typical interview with a patient might take “a minute’s time, it might even be shorter.” She did remember that “a young lady with a baby” had come to the hospital that night, but that she could not see the baby’s face. Saxon remembered that the plaintiff “answered questions, she sat there, answered them brief—I ask brief little questions. She answered them brief, signed the chart, and [I] told her to take a seat in the waiting room and the nurse will be with you as soon as possible.” Finally, Saxon remembered that the plaintiff had said “that the baby was sick, stomach was swollen, not eating and stopped breathing, and she specified, she said twice.” Saxon could not remember, however, if she listened to the baby’s breathing, and she could not remember anything else about the baby’s behavior.

Saxon's deposition makes clear that she could not “ ‘reasonably be expected to have peculiar or superior information material to the case . . . .’ ” State v. Grant, supra, 221 Conn. 105-106; State v. Greene, supra, 209 Conn. 470; Secondino v. New Haven Gas Co., supra, 147 Conn. 675. Indeed, her deposition makes clear that she could hardly remember what had happened that tragic evening some six and one-half years earlier. Furthermore, the only material bits of information Saxon could recall were reflected in Jessica’s medical record, which was admitted into evidence. Under these circumstances, Saxon would not be a witness whom the hospital would naturally have called to testify. The trial court, therefore, was correct in refusing to instruct the jury that it could infer from the hospital’s failure to call her as a witness that she would have offered damaging testimony.

The judgment is affirmed.

In this opinion the other justices concurred.

1 See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).

2 The action was filed by two plaintiffs: Christina Hines in her capacity as administratrix of the estate of her daughter, and Christina Hines in her individual capacity. The complaint, however, states a cause of action only in her capacity as administratrix. Our references herein to “the plaintiff,” however, also include Christina Hines as the mother of Jessica Hines.

3 The plaintiff and her husband had borrowed a ear to go to the hospital, and George Hines needed to return the car while Jessica was being treated at the hospital. He therefore was not present at all times during the hospital visit.

4 A triage nurse, according to Martin, “is the first person that the patient usually sees upon arriving to the [emergency room]. They do a brief assessment of the patient and decide who can go in first, who can wait, who is more critical. You have to kind of prioritize the patients that come through the door.”

5 Connecticut has abandoned the common law “voucher rule,” which stated that a party “vouched” for the credibility of his or her witness and, consequently, would not be allowed to impeach the witness. State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986) (“[w]e are persuaded by the weight of authority that there is no longer justification for the common law rule prohibiting a party from impeaching his own witness”); see General Statutes § 52-178; see also C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, p. 151 (“[tjhe rule originated at a time when parties ‘vouched’ for the veracity of their witnesses so that an opponent dared not call an adverse witness”). The plaintiff, therefore, could have called Saxon to testify without vouching for her credibility.

6 The plaintiff sought to have the court instruct the jury as follows: “ ‘In the course of the argument of this case, attention was called to the failure to call certain witnesses who it was claimed might by their testimony have thrown light on the situation before you. Where a party fails to call to the stand a witness who is within his power to produce and who would naturally have been produced by him, you are entitled to infer that had she testified, that testimony would have been unfavorable to the party failing to call her, and to consider that fact in arriving at your decision.

“ ‘There are two requirements for the operation of this rule: (1) the witness must be available, and (2) she must be a witness whom the party would naturally produce. A witness who would naturally be produced by a party is one who is known to that party and who, by reason of her relationship to that party, or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case, which, if favorable, the party would produce.’ . . .

“The evidence indicates that on March 11, 1987, Belinda Saxon, who was the defendant’s employee at the time, was the receptionist who took Mrs. Hines’ initial complaint and started the chart. Nurse Martin has testified that Mrs. Saxon still works at St. Vincent’s Medical Center and the parties have stipulated that Mrs. Saxon was under subpoena and available to testify in this case.

“Belinda Saxon is a witness whom the defense would naturally be expected to produce to rebut the plaintiff’s contention that her initial complaint included the fact that her baby had stopped breathing and to support the defendant’s version of Mrs. Hines’ complaint when she entered the emergency room. I charge you that since the defense did not call Mrs. Saxon to testify, you may infer the reason she was not called was because her testimony would have been unfavorable to the defense. . . . Secondino v. New Haven Gas Co., [147 Conn. 672, 675, 165 A.2d 598] (1960).” (Citations omitted.)

7 The parties had stipulated to the availability of Saxon, who was under subpoena by the plaintiff to testify.

8 As the parties have pointed out in their briefs, Connecticut law is not entirely consistent on whether equal availability of a witness precludes a trial court from delivering a Secondino charge. Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); compare, e.g., Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191, 510 A.2d 972 (1986) (“it is irrelevant that . . . the witness was also available to other parties”), with State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975) (“[wjhen a witness is equally available to both parties no inference unfavorable to either may be drawn”); see also Turner v. Scanlon, 146 Conn. 149, 161, 148 A.2d 334 (1959) (“if it was within the power of both to bring the report into court, no inference unfavorable to either could be drawn”).

Nevertheless, as long as the Secondino adverse inference instruction remains viable in Connecticut; see footnote 9, and the concurring opinion of Justice Palmer; we now hold that the mere fact that a witness is equally available to both parties does not preclude a trial court from delivering a Secondino charge.

9 At oral argument before this court, the defendant raised for the first time a claim that we should discard the Secondino adverse inference instruction and leave it to the parties, in closing arguments, to argue that the jury should draw a negative inference from a party’s failure to call a “missing witness.” We recognize that the rule in Secondino has come under attack from at least one commentator; see, e.g., C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, p. 150 (“[t]he continuing validity of the ‘missing witness’ rule should be called into question”); see also Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 706 n.l, 651 A.2d 1286 (1995) (.Berdon, J., concurring and dissenting) (questioning validity of Secondino rule in view of our discard of voucher rule). Nevertheless, the parties in this case have not briefed this point. We leave the resolution of this issue, therefore, for another day.

10 Saxon had been deposed on October 5, 1993.