Hines v. Saint Vincent's Medical Center

Borden, J.,

concurring. I join the majority opinion. I write separately, however, to explicate more fully why “we now hold that the mere fact that a witness is equally available to both parties does not preclude a trial *641 court from delivering a, Secondino charge.” Although ordinarily it is jurisprudentially wiser not to address issues that are not necessary to the decision in a particular case, in my view that wisdom does not apply in this case, because, as this record indicates, there is apparently some question among the trial bench about the proper rule, the parties fully briefed and argued the issue, and the answer to the question seems to me to be clear beyond any doubt. I therefore see no benefit in postponing the issue, and see considerable benefit in clarifying it.

As the majority points out, the two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce. Secondino v. New Haven Gas Co., 147 Conn. 672, 675 , 165 A.2d 598 (1960). Put another, perhaps more accurate, way, “[t]he failure of a party to produce as a witness one who [1] is available and [2] . . . naturally would be produced permits the inference that such witness, if called, would have exposed facts unfavorable to the party’s cause.” State v. Brown, 169 Conn. 692, 704 , 364 A.2d 186 (1975).

I agree with the majority that our cases have not been fully consistent on whether equal availability of the witness to both parties precludes a Secondino instruction. See footnote 8 of the majority opinion. It is clear to me, however, both from the weight of our precedent and from the rationale of Secondino itself, that the proper rule is that “it is irrelevant that . . . the witness was also available to other parties.” Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191 , 510 A.2d 972 (1986).

*642 Starting with Secondino itself, the first, or “availability,” prong of the rule applied despite the fact that the witness was available by subpoena to both parties. “It would not be enough for [the plaintiff] to say that [the witness] was available by subpoena to both parties. He was a witness whom the plaintiff naturally would produce.” Secondino v. New Haven Gas Co., supra, 147 Conn. 676 ; see also Russell v. Dean Witter Reynolds, Inc., supra, 200 Conn. 191 ; Kelsey v. Connecticut State Employees Assn., 179 Conn. 606, 616 , 427 A.2d 420 (1980) (witness was in courtroom, and therefore available to both parties); Zack v. Guzauskas, 171 Conn. 98, 102 , 368 A.2d 193 (1976) (same).

The confusion in our case law has been sown primarily by dictum in State v. Brown, supra, 169 Conn. 705 (“when a witness is equally available to both parties no inference unfavorable to either may be drawn”), which cited Turner v. Scanlon, 146 Conn. 149, 161 , 148 A.2d 334 (1959), for that proposition. In Turner v. Scanlon, supra, 149 , the question involved a medical report of a doctor who had testified for the plaintiff without reference to the report. When the defendant requested the report for purposes of continuing his cross-examination, “the plaintiff agreed to bring to court the following morning such written reports concerning the plaintiff as were available in [the doctor’s] office and to permit the defendant to introduce them in evidence without objection.” Id., 160 . The next morning, no mention was made of the reports. Id. Nonetheless, in final arguments each party sought to persuade the jury to draw adverse inferences from the failure of the other to produce the reports, prompting the trial court to address the issue in its instructions. Id., 161 .

This court stated that “[w]e have no way of knowing upon this record whether the report was made available as agreed and, if it was, whether it contained the information which the defendant suspected it did. As *643 the matter stood before the jury, the defendant had requested the report, the doctor had offered to produce a copy of it if he had such a copy, and the court left it to the defendant to call the doctor as his witness.” Id., 160-61 . Addressing the claim of instructional error, we then stated, in a somewhat confusing and self-contradictory passage: “The [trial] court then referred to the claims of the parties and charged the jury that if it was within the power of both to bring the report into court, no inference unfavorable to either could be drawn, but that if the jury found that the report was so related to the whole proof in the case that one of the parties and not the other would be expected to produce it, an inference would be justified that the report, if produced, would be unfavorable to that party. Under the circumstances of this case this charge was appropriate and correct.” Id., 161 .

If the language of Turner is dictum, I would specifically disavow it and its progeny dictum in State v. Brown, supra, 169 Conn. 705 . If the Turner language is a holding, I would specifically overrule it as wrongly decided because it is inconsistent with the very prong of Secondino that it purports to explain.

The first prong of Secondino is that the missing witness be available. The rationale for this requirement is that it would be fundamentally unfair to penalize, by an adverse inference, a party for failing to produce a witness whom the party was unable to produce. If, however, a witness is available—in the sense that he or she could be subpoenaed—to one party, by definition the same witness is also available to the other party. Consequently, to say that Secondino does not apply when the witness is available to both parties is to say that Secondino never applies.

Therefore, I join the majority in squarely and explicitly disavowing the lingering proposition that *644 equal availability of the witness to the subpoena power of both parties precludes a Secondino adverse inference instruction. With these comments, I concur in the majority opinion.