Opinion
No. X02 CV-97-0150435
October 12, 2005
MEMORANDUM OF DECISION RE COLLATERAL ESTOPPEL
I. PROCEDURAL HISTORY
The above-entitled matter involves a medical malpractice case in which Michelle DiLieto, the original plaintiff, claims that she had her uterus, ovaries, fallopian tubes, and two pelvic lymph nodes removed due to a concern of cancer, when, in fact, she never had cancer. She originally sued Yale University, Yale-New Haven Hospital, Dr. Vinita Parkash, Dr. Babak Edraki, Dr. Peter E. Schwartz, Dr. Thomas Anderson, Dr. Scott Casper, and County Obstetrics and Gynecology Group, P.C. The matter was originally tried in May and June of 2000. Prior to the commencement of trial the plaintiff withdrew the claims against Yale-New Haven Hospital, Dr. Vinita Parkash, Dr. Babak Edraki and Dr. Peter E. Schwartz since Yale University School of Medicine admitted that the aforementioned doctors were employed by Yale and that it would be vicariously liable if a jury were to find any of the doctors negligent. On June 14, 2000 the jury returned a verdict in favor of Dr. Anderson and Yale. The jury could not reach a verdict as to Dr. Casper and County Obstetrics Gynecology Group, P.C. and, accordingly, a retrial was ordered as to those defendants.
Plaintiff appealed the verdicts as to Yale and Dr. Anderson. On July 29, 2003 the Connecticut Supreme Court upheld the verdict as to Dr. Anderson, but reversed the verdict as to Yale and remanded the case against Yale for a new trial.
The new trial is scheduled to commence evidence on October 18, 2005. Defendants Yale, Dr. Casper and County Obstetrics Gynecology Group, P.C. have filed a motion in limine to preclude any evidence of negligence on the part of Dr. Parkash. They argue that, in view of the fact that the original jury answered an interrogatory to the effect that Dr. Parkash did not violate the standard of care, and further that said finding was not the subject of the appeal reversing the judgment, the plaintiff is collaterally estopped from raising the issue of liability in the second trial. The court initially granted their motion. The plaintiff has now filed a motion for re-argument and reconsideration in which several new cases have been brought to the court's attention which were not raised in the original hearing. Upon review, the court granted the plaintiff's motion to reargue and heard the parties with respect to a reconsideration of the court's prior ruling.
II. LAW
"Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Gladyz v. Planning Zoning Com'n, 256 Conn. 249, 260 (2001). The scope of issue preclusion has also been expanded such that mutuality of parties is no longer required to invoke collateral estoppel. Aetna Cas. Sur. Co. v. Jones, 220 Conn. 285, 300-02 (1991). "To allow a party who has fully and fairly litigated an issue at a prior trial to avoid the force of a ruling against him simply because he later finds himself faced by a different opponent is inappropriate and unnecessary . . . In light of the scarcity of judicial time and resources, the repeated litigation of issues that have already been conclusively resolved by a court carries a considerable price tag in both money and time. Id. At 302.
The doctrine of collateral estoppel is to be applied when four conditions are met:
(1) the issues in both proceedings are identical;
(2) there was a full and fair opportunity to litigate in prior proceeding;
(3) the issues in the prior proceeding were actually litigated and decided; and
(4) the issue previously litigated was necessary to support a valid and final judgment on the merits.
Id. at 296-97.
The case was reversed by the Supreme Court on three grounds. First, the Court held that an. expert should have been allowed to testify regarding the standard of care for a gynecologist and oncologist. Second, the Court held that the trial court should not have charged the jury regarding a claimed judicial admission in the pleadings. Third, the Court held that Michelle DiLieto should have been allowed to testify about what she might have done differently had she been told that her condition possibly was benign. Defendant contends that, since none of these issues involved the conduct of Dr. Parkash, the jury finding that she did not deviate from the standard of care should control. The parties have been unable to locate a Connecticut case precisely on point.
Maltbie, Connecticut Appellate Procedure (2nd Ed.) Section 345, p. 347, states:
If on appeal a judgment is set aside, its effect is destroyed, and the parties are in the same condition as before it was rendered. The case remains on the docket of the trial court and when it goes back it is the same case and stands upon the court or jury docket just as it did before the appeal. The adoption of a finding of facts for the purpose of determining an appeal does not make them res adjudicata or establish them as proven when a new trial is had. If a case is remanded without restriction, to be proceeded with according to law, it proceeds in the trial court as though no judgment had been entered and a new trial of all the issues in the case is required.
Thus, it is the lack of a final judgment in this case which prevents the application of the doctrine of collateral estoppel. Two Connecticut Supreme Court cases are particularly illustrative of this point. In Osterlund v. State, 135 Conn. 498, 501-02 (1949), a workers' compensation award was appealed to the Superior Court. The Superior Court dismissed the appeal. Upon review, the Supreme Court did not find error in any factual aspect of the award denying an increase in compensation, but reversed on the different ground that the commissioner erroneously had made an award for a permanent disability of the foot. The case was remanded, and the commissioner then held that the prior decision was res judicata on the issue of the compensation increase, because the Supreme Court had not found error on that issue. The Superior Court then dismissed the appeal and affirmed the award. The case returned to the Supreme Court, and error was found because the issue was not res judicata. The Court opined:
a decision of this court does not make res adjudicata any issue of fact involved in it . . . The setting aside of the award made on the motion then before us destroyed the effect of that award as concluding any issue of fact, and, when the issues involved in the present award were considered, the plaintiff was entitled to a decision regardless of that award.
Id. at 502-03.
In McIsaac v. Hale, 105 Conn. 249, 250-51 (1926), the Supreme Court initially considered an appeal from a trial court judgment claiming, inter alia, that there was no evidence to support one finding of fact. The Supreme Court rejected that claim of error, finding that the evidence was sufficient. The Court, however, did find error on another phase of the case and reversed and remanded the matter for further proceedings. At the second trial, the trial court concluded that the particular trial court finding, regarding which the Supreme Court found sufficient evidence, was, in fact, incorrect. The trial court made a completely different finding of fact than the one previously approved of by the Supreme Court. The defendant appealed this judgment to the Supreme Court claiming that the trial court had no right on the second trial to reopen the issue previously approved by the Supreme Court in the first appeal. The Supreme Court upheld the second trial court's judgment because the first court's findings had no effect without a valid judgment. The Court stated that "the effect of the finding of error on the first appeal and the remanding of the case to be proceeded with according to law was to destroy entirely the efficacy of the judgment appealed from and require a new trial of all issues in the case." Id.
In this case, the finding of the jury in response to the interrogatory was never reduced to a final judgment. The Supreme Court reversed the judgment of the trial court with respect to Yale and remanded the case for a new trial as to said defendant. There is no limitation of the issues to be tried against Yale. The Supreme Court's mandate, as written, must be strictly followed by the trial court. O'Donnell v. Police Commission of the Town of Greenwich, 4 Conn.App. 196, 197-98 (1985).
It should be noted that the Restatement (Second) Judgments at Section 13 refers to the possibility of collateral estoppel without a final judgment. It appears from a reading of said section, however, that it refers only to interlocutory findings or rulings in other actions against the parties. It does not refer to findings in a prior trial where an appellate court has reversed the judgment.
Defendants cite the case of Scanlon v. Connecticut Light and Power Co., 258 Conn. 436 (2001), in support of their position. Scanlon involved an action brought by dairy farmers against a utility company alleging that the installation of certain electrical equipment caused harm to their dairy herd, thereby causing economic loss to their dairy business, as well as non-economic loss in the form of severe emotional distress. The jury found in favor of the plaintiffs and awarded them $601,000 in economic damages for their business losses and $300,000 in non-economic losses for their emotional distress. The Supreme Court reversed the judgment as to the damages awarded for emotional distress because it found error in the charge on that issue. However, the court upheld the award on the economic damages claim and ordered that the utility company was not entitled to a new trial on that issue. The Court held that ordinarily the reversal of a jury verdict requires a new trial of all the issues in the case. "When, however, the error as to one issue . . . is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole." Id. At 451. Therefore, the Court held that since the issues of economic and non-economic damages were separate and distinct it directed that the new trial be limited to the issue of non-economic damages.
Defendants contend that the Scanlon case stands for the proposition that the Supreme Court is willing to separate issues in a case and remand a trial for certain issues, while affirming the findings of the trial court on the other issues. The court, herein, does not dispute that statement of the law. However, the Scanlon case is not applicable to the situation herein, in that the Scanlon Court considered the issue and made a specific direction to the trial court to re-try the case on the issue of non-economic damages only. In this case the issue of the jury's response to interrogatory regarding Dr. Parkash was never raised in the Supreme Court. The Supreme Court reversed as to Yale, without qualification, and sent a general remand to the trial court to re-try the case as to Yale. In the absence of a specific remand, this court is bound, based upon existing case law, to re-try all issues as they relate to Yale.
Defendants further argue that the doctrine of non-mutual collateral estoppel applies in this case. They argue that, since the verdict in favor of Dr. Anderson was affirmed, and since the testimony regarding deviation from the standard of care was the same as to Dr. Anderson and Dr. Parkash, that the plaintiff should be barred from introducing any new evidence of negligence on the part of Dr. Parkash, with respect to the similar allegations of negligence as to Dr. Anderson. Dr. Anderson and Dr. Parkash prepared separate reports regarding the tissue samples and reached similar conclusions.
Defendants cite numerous cases from foreign jurisdictions to support their argument. It appears to this court that at least one of the jurisdictions does not subscribe to the rule that a reversal requires a new trial on all issues except where the Supreme Court directs otherwise on remand.
This precise issue was not raised on appeal. The jury found in favor of both Dr. Parkash, by way of interrogatory response, and Dr. Anderson, by way of verdict. The judgment was perfected as to Dr. Anderson, but was never perfected, by way of Supreme Court remand, as to Dr. Parkash. In the absence of such direction this court must re-try the case pursuant to the general remand of the Supreme Court.
III. CONCLUSION
For the foregoing reasons, the plaintiff's motion for reconsideration is granted and accordingly, the defendants' motion in limine is denied. Defendants are not to raise the issue of the prior verdict before the jury. However, if the plaintiff offers, through testimony, criticism of Dr. Anderson's report, the door will be opened for the defendants to cross-examine on the fact that another court found that Dr. Anderson did not deviate from the standard of care in the preparation of his report.
THE COURT
Dennis G. Eveleigh, Judge