Quirion v. Forcier

QUIRION_V_FORCIER.91-354; 161 Vt. 15; 632 A.2d 365

[Filed 24-Sep-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                    No. 91-354


 Sandra S. Quirion, Administratrix              Supreme Court
 of the Estate of Peter R. Quirion

                                                On Appeal from
      v.                                        Orleans Superior Court

 R. Jackson Forcier, M.D. and                   March Term, 1993
 Hitchcock Clinic


 Shireen Avis Fisher, J.

 Gregory P. Howe, Newport, for plaintiff-appellant

 David L. Cleary and Kaveh S. Shahi of David L. Cleary Associates,
   Rutland, for defendants-appellees


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   This is a medical malpractice action by Sandra Quirion,
 spouse of decedent Peter Quirion and administratrix of his estate, against
 Dr. R. Jackson Forcier and the Hitchcock Clinic, a part of Dartmouth
 Hitchcock Medical Center.  After trial in the Orleans Superior Court, the
 jury brought in a defendants' verdict.  On appeal, plaintiff claims that the
 trial court erred in allowing in evidence that (1) plaintiff settled with
 three other doctors prior to trial; (2) these other doctors were negligent
 in their treatment of decedent; and (3) plaintiff regularly used marijuana.
 We affirm.
      Decedent complained of chest pains from 1978 until his death in 1985,
 at thirty-three.  During the period between 1982 and October 3, 1985, he was

 

 treated for this condition by Dr. James Holcomb, his primary physician; Dr.
 Richard Beloin, partner of Dr. Holcomb; and Dr. Alan Feltmarch, an emergency
 room physician at North Country Hospital.  Each of these doctors practices
 in the area of decedent's residence in Newport, Vermont.
      Decedent became dissatisfied with the lack of relief from the Newport-
 area doctors and, on the advice of a neighbor, consulted defendant Forcier
 in his office in Hanover, New Hampshire.  Following a one-hour examination
 on October 3, 1985, defendant sent letters to decedent and Dr. Holcomb
 outlining his conclusions.  The letter to Dr. Holcomb outlined the medical
 history, as conveyed by decedent, and the examination findings, and
 concluded, "I do not believe that Mr. Quirion's chest pain is related to
 coronary artery disease."  The letter suggested that the pain might be
 related to "reflux esophagitis" and recommended certain tests.  It also
 suggested that the symptoms might be brought on by anxiety.  There was no
 follow-up to this letter by Dr. Holcomb.   A little over a month later,
 decedent died of a heart attack and an autopsy showed blockage of the
 coronary arteries.
      Plaintiff sued the three Newport-area doctors, as well as defendants,
 and retained Dr. Alan Markowitz of Cleveland, Ohio as her expert witness.
 Dr. Markowitz was deposed by counsel for each of the defendants in 1990.
 Thereafter, plaintiff settled with the Newport-area doctors, leaving only
 defendants Forcier and the Hitchcock Clinic in the case.  Because Dr.
 Markowitz would not be available for trial, plaintiff conducted a second
 deposition of him by video, with cross-examination by counsel for
 defendants.  This video deposition, with certain parts excised, became Dr.
 Markowitz's testimony at trial.  Similarly, an expert witness for

 

 defendants, Dr. Thomas Ryan, testified at a videotaped deposition, and this
 deposition became his testimony at trial.
      After two days of testimony, the jury found that defendants had not
 been negligent in their treatment of decedent.  Plaintiff's appeal relates
 to certain evidentiary issues that were raised before trial by motions in
 limine and during trial by appropriate objections.  The issues involve the
 admissibility of the evidence of the settlement with the Newport-area
 doctors, evidence of their negligence, and evidence of decedent's marijuana
 usage.  We take them in this order.
      During the video deposition of Dr. Markowitz, defendants' counsel
 asked questions related to plaintiff's settlement with the Newport-area
 doctors, attempting to show that Dr. Markowitz changed his testimony between
 the two depositions.  According to defendants, in the first deposition Dr.
 Markowitz testified that the negligence of Doctors Holcomb, Beloin and
 Feltmarch was primarily responsible for decedent's death and that Dr.
 Forcier was largely blameless.  In defendants' view, Dr. Markowitz changed
 his analysis with respect to Dr. Forcier after learning of the settlement
 and targeted him with responsibility.  Defendants argue that the evidence of
 the settlements was necessary to show the reason for Dr. Markowitz's change
 of testimony.
      Plaintiff moved in limine to exclude "any references to culpability on
 the part of former defendants Holcomb, Beloin and Feltmarch" as irrelevant
 to Dr. Forcier's negligence and specifically to exclude from the Markowitz
 testimony references to plaintiff's settlement with these doctors.  The
 trial court denied these motions, and admitted the evidence at trial.  As
 to the involvement of the other doctors, the court ruled that this would

 

 inevitably be part of the background and would go to the ability to diagnose
 decedent's condition from the symptoms.  The court ruled that the fact of the
 settlement could be used in cross-examining Dr. Markowitz and was related to 
 his
 credibility.  It left to trial any further reasons to develop the settlement
 information.  At trial, the court stated in its instructions to the jury that 
 the
 fact of the settlements could be considered only as bearing on Dr. Markowitz's
 credibility and not on defendants' negligence.  The court also stated that the
 jury was not to consider whether the former defendants were negligent or how 
 that
 negligence would compare with that of Dr. Forcier.
    On the first point, plaintiff relies primarily on Slayton v. Ford Motor Co.,
 140 Vt. 27, 29, 435 A.2d 946, 947 (1981), in which we held "that where there 
 has
 been a liquidated settlement between one of several defendants and a 
 plaintiff .
 . . the jury not be informed of such fact, or the sum paid, and that it be the
 function of the court ... to find the amount by which such verdict should be
 reduced."  We explained the rationale:
              If the jury is informed of either the fact or the
         amount of a settlement, there is a danger that it will
         draw improper inferences.  A jury might conclude that
         the settling defendant was the party primarily
         responsible for the injury, and that the remaining
         defendants should therefore be exonerated. . . .  It
         might take the amount of the settlement as a measure of
         the plaintiff's damages. . . .  It might consider one
         defendant's settlement to be an admission of negligence,
         and then impute this negligence to a nonsettling
         defendant. . . .

 Id. at 29-30, 435 A.2d  at 947 (citations omitted).  In this case, the jury
 was informed of the settlements but not their amounts.  Nevertheless,
 plaintiff alleges that one of the concerns in Slayton, that the jury would
 shift responsibility away from defendants to the doctors who settled, is 
 exactly what occurred here.

 

      Following the adoption of the Vermont Rules of Evidence, the holding of
 Slayton was explained in Sampson v. Karpinski, 147 Vt. 315, 515 A.2d 1066
 (1986).  There we held that the admissibility holding of Slayton is now
 controlled by Rule 408 of the Vermont Rules of Evidence, and further that the
 Slayton rule "is not absolute or unyielding."  Id. at 320, 515 A.2d  at 1070; 
 see
 also Gilman v. Towmotor Corp., ___ Vt. ___, ___, 621 A.2d 1260, 1264 (1992)
 (Slayton rule modified following adoption of Rule 408 "to allow the trial court
 to admit evidence of settlement where it would be unfair and prejudicial to
 exclude such evidence").  When failure to disclose the settlement to the jury
 "has unfair and prejudicial results, admission of sufficient evidence to
 alleviate that prejudice is within the sound discretion of the trial 
 judge."  Id.
 Rule 408 prohibits the admission of settlement information "to prove liability
 for, the invalidity of, or the amount of the claim or any other claim"(FN1) but
 allows the evidence to be admitted for another purpose, "such as proving bias 
 or prejudice of a witness."  V.R.E. 408.  In addition to the considerations
 discussed in Slayton, the trial judge may also consider the underlying policy 
 of Rule 408 favoring voluntary settlements of disputes.  See McInnis v. A.M.F.,
 Inc., 765 F.2d 240, 247 (1st Cir. 1985) (decided under similar Federal Rule of
 Evidence 408).
      Defendants introduced the evidence of the settlements through plaintiff's
 expert in order to impeach his opinion because, they argued, he changed his

 

 testimony from virtually exonerating defendants, and blaming the Newport-area
 doctors, to blaming defendants.  They offered the settlements as the motive for
 the changes of opinion.  Thus, the settlement was used to show bias or 
 prejudice
 of the expert witness, exactly one of the uses contemplated by Rule 408.
      Other courts have recognized the admissibility of settlement evidence to
 attack credibility in similar circumstances.  In a similar case, the Wisconsin
 Supreme Court authorized a medical malpractice defendant to show that the
 plaintiff had settled with other doctors in order to impeach the plaintiff's
 liability testimony:
           It is argued by defendants that the evidence of a
         prior settlement between Dr. Bowden and [plaintiffs] . .
         . was admissible to show prejudice on the part of
         [plaintiff] . . . as a witness because she had a
         financial interest in playing down the negligence of Dr.
         Bowden and emphasizing that of [defendants] . . . .  We
         agree, and we conclude that evidence of a settlement can
         be used, as in this case, to show possible bias of a
         witness, although it cannot be used to prove liability
         or invalidity of a claim at issue.

 Hareng v. Blanke, 279 N.W.2d 437, 441-42 (Wis. 1979).
      Plaintiff argues that the exclusion from the prohibition of Rule 408
 does not apply because the expert never changed his testimony so that there
 was no legitimate credibility issue.  We are unable to evaluate fully this
 argument from the record before us.  After defendants cross-examined Dr.
 Markowitz with excerpts from his earlier deposition, plaintiff failed to
 show the parts that were consistent with his testimony, and the earlier
 deposition is not in the record.  Certainly, the parts of the deposition
 highlighted by defendants suggest a change of testimony.  From what we have
 before us, defendants have a tenable claim that Dr. Markowitz changed his
 testimony from his earlier deposition when all doctors were still defendants
 to his testimony given after the plaintiff settled with the three Newport-
 area doctors.
      We recognize that the fact that defendants had a legitimate reason for
 offering the settlement evidence does not end the inquiry.  Because there is
 a substantial risk that the jury will use the evidence for an impermissible
 purpose, the evidence must pass the balancing test of Rule 403, weighing
 probative value against the "danger of unfair prejudice, confusion of the
 issues, or misleading the jury."  V.R.E. 403; see also 23 C. Wright & K.
 Graham, Federal Practice & Procedure { 5311, at 264 (1980) (exclusion of
 settlement evidence may be called for under Rule 403 unless evidence is
 quite probative on issue of bias).  In many of the reported opinions in
 which settlement evidence was excluded, the decision was grounded on Rule
 403 considerations.  See Myers v. Pennzoil Co., 889 F.2d 1457, 1461 (5th
 Cir. 1989); Dongo v. Banks, 448 A.2d 885, 891 (Me. 1982).
      The trial court has broad discretion in ruling on 403 questions, and
 review here is only for abuse of discretion.  See State v. Percy, ___ Vt.
 ___, 612 A.2d 1119, 1123 (1992).  The burden of showing abuse is a heavy
 one.  See State v. McElreavy, 157 Vt. 18, 23, 595 A.2d 1332, 1335 (1991).
 For a number of reasons, we do not believe that plaintiff has shown an abuse
 of discretion here.
      First, the risk of improper usage of the evidence by the jury is
 reduced somewhat by the requirement of Sampson that "the court must clearly
 instruct the jury to disregard the settlement when determining liability and
 damages," 147 Vt. at 321, 515 A.2d  at 1070, and the requirement of Slayton
 that the jury not be told the settlement amount.  140 Vt. at 29, 435 A.2d  at
 947.  The jury was not told of the settlement amount in this case, and there

 

 was a clear instruction, agreed to by plaintiffs.   Consistent with the
 instruction, defendants' counsel stated in closing argument that the
 settlement was relevant to the credibility of Dr. Markowitz.
      Second, the court gave thorough and thoughtful consideration to the
 merits of the issue in response to the motion in limine.  The issues were
 revisited and reconsidered by the different judge who presided at trial.
 Thus, it is clear that the two judges carefully exercised the discretion
 accorded them.
      Third, the evidence had substantial probative value in the context of
 this case.  Cf. State v. Bruyette, 158 Vt. 21, 30-31, 604 A.2d 1270, 1274
 (1992) (probative value of evidence of defendant's past sexual activity to
 prove central issue of identity in rape prosecution outweighed prejudicial
 value).  The trial was relatively short.  Plaintiff's case on liability was
 built almost entirely on the testimony of Dr. Markowitz.  Defendants had to
 attack the weight of the doctor's testimony in the minds of the jury, and
 the changes in testimony, combined with the motive shown by the settlement,
 were probative to do so.
      Finally, it would be apparent to the jury that if plaintiff had a claim
 against defendants, she also had claims against the Newport-area doctors,
 whose involvement with decedent was much more extensive and who failed to
 diagnose his heart condition.  The court could conclude in these
 circumstances that the risk of prejudice to both parties would be reduced by
 making the jury aware of the settlement rather than having it speculate on
 what happened to the other claims.
      Plaintiff's second argument is similar to the first.  Here, plaintiff
 faults the trial court for allowing defendants to offer evidence of the

 

 negligence of the Newport-area doctors.  In plaintiff's view, defendants
 were allowed to change the focus to the negligence of these doctors in the
 hope that the jury would overlook defendants' negligence.
      Plaintiff's allegations of misuse are overstated.  Defendants raised
 the negligence of the other doctors solely in the cross-examination of Dr.
 Markowitz, primarily to impeach him by showing the change in his testimony
 between the depositions.(FN2) They did not claim that the negligence of the
 other doctors in any way exonerated them.  In fact, none of the direct
 evidence pointed in this direction.  In closing, defense counsel stated that
 the jury should focus on the responsibility of others only in determining
 the credibility of Dr. Markowitz.  The court charged that the jury was not
 to consider the negligence of the other doctors in determining the
 negligence of defendants.
      The actions of the Newport-area doctors were inextricably intertwined
 in this case.  See Sheldon v. Wright, 80 Vt. 298, 304, 67 A. 807, 809 (1907)
 (history of condition from date of medical problem to date of trial, along
 with the treatment received and the results of that treatment, are
 admissible "to throw light upon the question of liability and the question
 of damages").  They explained why decedent went to Dr. Forcier, the medical

 

 history decedent presented and why Dr. Forcier's main work product was a
 letter to Dr. Holcomb.  As we explained above, the jury was aware that the
 Newport-area doctors had failed to diagnose decedent's condition in a course
 of treatment of his chests pains that stretched over years.
      As with the settlement information, the real question is whether the
 court abused its discretion in allowing the impeachment evidence.
 Considering the context in which the evidence was offered, the court's
 careful consideration of the issues in ruling on the motion in limine and at
 trial, the limited purpose of the evidence and the charge to the jury, we
 find no abuse of discretion.
      Plaintiff's third argument faults the trial court for allowing
 defendants to show that decedent was a regular user of marijuana.(FN3) The
 evidence of decedent's use was that it was found in his blood during the
 autopsy, and plaintiff testified he was a regular user.  Although
 defendants have not been entirely consistent on the relevance of this
 information, two related theories emerge from the various arguments over the
 evidence.  Both relate to the fact that decedent failed to disclose the
 marijuana use in stating his medical history to Dr. Forcier.
      The first theory is based on the testimony of plaintiff's expert that
 marijuana smoking is linked to heart disease just as cigarette smoking is
 linked to heart disease.  In fact, plaintiff's expert testified that
 marijuana smoking is a greater cause of heart disease than cigarette
 smoking.  Defendants argue that decedent's failure to disclose the marijuana

 

 usage was a factor in Dr. Forcier's failure to diagnose heart disease and
 was contributory negligence.  Dr. Forcier was not asked, however, whether
 his opinion would have been different for this reason.
      The second theory is based on the fact that marijuana usage can make a
 person appear anxious.  As a result, according to Dr. Forcier's testimony,
 decedent's failure to disclose his marijuana usage threw Dr. Forcier off and
 led him to believe that decedent's symptoms might be psychosomatic, at least
 in part, as he stated in the letter to Dr. Holcomb.  Again, defendants argue
 that the failure to disclose the usage directed Dr. Forcier away from the
 correct diagnosis and was contributory negligence.
      Our rules provide a broad definition of relevance.  See V.R.E. 401
 (evidence is relevant if it has "any tendency to make the existence of any
 fact that is of consequence to the determination of the action more probable
 or less probable than it would be without the evidence").  The evidence of
 decedent's marijuana usage is relevant under this standard.
      Plaintiff's claim is that the jury is less likely to be responsive to
 her case if they know decedent is an illegal drug user.  Normally, the issue
 of "crimes, wrongs or acts" arises when there is a risk that the jury will
 infer from a past bad act of a party the propensity to do it again, and the
 repetition of the act is related to the conduct in issue before the court.
 Such propensity evidence is inadmissible "to prove the character of a person
 in order to show that he acted in conformity therewith" but may be
 admissible for other purposes.  V.R.E. 404(b).  There is no propensity
 concern here.  No relevant character trait was in issue in the medical
 malpractice proceeding.

 

      Thus, the issue, like the others in this case, turns on whether the
 probative value of the drug-usage evidence is substantially outweighed "by
 the danger of unfair prejudice,"  V.R.E. 403, and review here is for abuse
 of the broad discretion of the trial court.  Again, we do not believe the
 discretion was abused.
      The failure of decedent to provide an adequate and accurate medical
 history to Dr. Forcier was a central point of the defense.  The marijuana
 usage, decedent's failure to disclose it and its importance to a proper
 diagnosis had substantial probative value in support of the defense.
 Defendants did not overemphasize the marijuana usage; the evidence about it
 was relatively brief, and it was not mentioned in closing argument.
      On the other hand, decedent's credibility was not in issue, and there
 is a lesser risk that the jury would translate their reaction to decedent's
 illegal drug use to plaintiff.  Plaintiff was allowed to explain that
 decedent used marijuana because it gave him relief from the pain.  As with
 the other issues raised by the motion in limine, the court carefully
 considered plaintiff's claim of prejudice and balanced it against probative
 value.  Other courts have upheld the admission of drug use evidence in
 analogous circumstances as within the discretion of the trial court.  See
 O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200-01 (8th Cir. 1990) (allowing
 brief questioning of plaintiff concerning marijuana and cocaine use to
 explore plaintiff's voluntary exposure to risk of harm in negligence
 action); Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1475-76 (11th Cir.
 1984) (in malpractice action, evidence of drug and alcohol use relevant to
 plaintiff's ability to communicate with doctor for treatment and respond to
 rehabilitative therapy).  We concur.

 

      Affirmed.
                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice


-------------------------------------------------------------------------------
                                  Footnotes


FN1.    The reference to the "claim" in the rule is to the claim for which
 there has been a settlement or offers or negotiation.  In this case, it is
 the claim between plaintiff and the Newport-area doctors.  The rule is broad
 enough to preclude information related to the settlement of that claim from
 being introduced to show the validity or invalidity of "any other claim."
 Therefore, if a claim against one party is settled, the "fact of settlement
 is not admissible as to remaining claims."  Reporter's Notes, V.R.E. 408.

FN2.    Defendants did argue that the failure of Doctor Holcomb to act on
 the letter from Doctor Forcier was negligence and constituted an
 intervening cause that broke any chain of causation between defendants'
 actions and decedent's death.  On this theory, defendants' negligence, if
 any, would not be a proximate cause of death.  Although there was some
 limited factual development of this theory, the court decided, after the
 evidence was concluded, not to charge the jury on this theory.  In any
 event, the jury found defendants were not negligent and never reached the
 question of proximate cause.  In view of the limited development of the
 theory and the action of the court and jury, it is fair to say that the
 negligence of the Newport-area doctors was raised only to impeach Dr.
 Markowitz.

FN3.    Plaintiff also moved in limine to exclude evidence that decedent
 used hard drugs while in the service in Viet Nam.  The motion was initially
 denied but was granted by a different judge at trial and resulted in editing
 of the video depositions.