By Mike A. D’Amico,Esq.
- Admissibility of Expert Medical Opinion: Causation and Substantial Factor
Frequently we encounter a plaintiff who has a pre-existing similar condition, or a subsequent injury, that calls into question the causative role of the current event for the injury claimed. The question is further complicated by a treating doctor’s admittedly difficult task, at times, of opining what condition or event is the cause of plaintiff’s ongoing complaints. If a defendant argues that a treating doctor’s expert opinion on permanency is inadmissible because the current event was not the proximate cause of plaintiff’s ongoing complaints, how can you respond?
1. Expert Medical Testimony on Causation
The Code of Evidence, sections 7-2 thru 7-4, discusses admissibility of expert opinion. In general a doctor with sufficient knowledge and training may express an opinion based on this knowledge if it will assist the jury in determining a fact in issue. Further the doctor may opine on the ultimate issue, causation. However if a doctor’s opinion is not expressed as being probable it will not be of assistance to the jury. Thus the question: what is probable when dealing with issues of proximate cause? For example, if a plaintiff is hurt in a crash and that crash is 20% responsible for plaintiff’s ongoing complaints, is medical opinion to this effect admissible?
In order for a defendant to be liable in negligence for plaintiff’s injury, the defendant’s conduct must be the proximate cause of the injury. The court in Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007), recently reiterated the test for proximate cause under Connecticut law:
The test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries. Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the defendants’ conduct. The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. This causal connection must be based upon more than conjecture and surmise. An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm.
281 Conn. at 56-57, 913 A.2d at 411 (emphasis added; citations and quotation marks omitted).
In Aspiazu v. Orgera, 205 Conn. 623, 535 A.2d 338 (1987), the court relied in part on Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362 (1953), in stating that expert medical testimony may be sufficient to prove proximate cause if the expert can testify that there is a reasonable probability that the defendant’s acts or omissions caused the plaintiff’s injury:
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 compensation must not be a matter of guesswork or speculation but must be based upon results which would reasonably and probably flow from the injuries the plaintiff received at the time of the accident.
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Expert testimony is often used to establish the existence, extent or cause of an injury or disease . . . The medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness. The expert testimony can be presented in a number of ways: 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 on a hypothetical question.
Aspiazu, 205 Conn. at 630-31, 535 A.2d at 342 (citations and quotation marks omitted); see also Eisenbach v. Downey, 45 Conn. App. 165, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997), wherein the Appellate Court stated:
Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue…..Evidence 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…The 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………….
Concerns regarding the reporting physician’s knowledge of prior injuries goes to the weight given the reports, not their admissibility.
If proof of proximate cause requires evidence that a defendant’s acts or omissions were a substantial factor in causing the plaintiff’s injury, and if expert medical testimony is admissible to prove proximate cause based on a reasonable probability, then expert witness testimony need not establish more than that it is reasonably probable that the defendant’s negligence was a substantial factor in the harm caused to the plaintiff. See, e.g., Shegog v. Zabrecky, 36 Conn. App. 737, 564 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 970 (1995); Osiecki v. Bridgeport Health Care Center, No. CV0200800992S, 2005 WL 1331225 (Conn. Super. Ct., May 12, 2005).
Even the possibility of multiple causes would not defeat proof of proximate cause because if a defendant’s negligence is a substantial factor producing the plaintiff’s injuries, then the defendant is not relieved from liability for those injuries even though another force concurred to produce them. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003);Osieki, supra. A defendant’s negligence need not be the sole proximate cause of injury in order to render the defendant liable as long as it a[one] proximate cause the injury claimed. Barksdale v. Harris, 30 Conn. App. 754, 622 A.2d 597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993).
To answer the question earlier posed, if the treating doctor were to say that the current crash was 20% responsible for plaintiff’s ongoing complaints to a reasonable degree of medical probability then the opinion is admissible.
- Admissibility of Expert Medical Opinion on Future Risks: Possibilities v. Probabilities
Another common issue that arises is the admissibility of expert medical testimony for future medical care costs; as well as for the plaintiff’s fear of future medical care and/or risks. For example, a plaintiff suffers a back injury in a crash and the treating doctor opines that she has a 25% chance of requiring a lumbar fusion at some point over the remainder of her life expectancy. Is this opinion admissible?
2. Expert Medical Testimony on Future Medical Risks
The reasonable probability of future medical expenses is not the same as the increased future risk of further injury. In Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court held that a plaintiff may recover for the increased risk of future injury, and for the plaintiff’s anxiety or fear of it, based upon expert testimony that there is a certain possibility of such injury, regardless of whether the future harm is more likely than not to occur.
In Petriello, the plaintiff’s fetus died in utero, and the defendant physician performed a dilation and curettage to remove the fetus from her womb. In the course of the D&C, the defendant perforated the plaintiff’s uterus and drew portions of her small intestine into her uterus and vagina. Another physician had to perform a bowel resection in order to repair the damage. The plaintiff sued the defendant physician for malpractice and at trial the physician who performed the bowel resection testified that the plaintiff suffered an increased 8% to 16% chance of having a bowel obstruction in the future. After a verdict for the plaintiff, the defendant on appeal contended that the trial court had erred in allowing expert testimony as to the plaintiff’s future risks of bowel obstructions. The Supreme Court held that the plaintiff could recover for the increased risk of such injury and the emotional distress that risk has caused her. 215 Conn. at 389-97, 576 A.2d at 481-84.
Specifically, the court held that the plaintiff should be compensated for this present risk:
If the plaintiff in this case had claimed that she was entitled to compensation to the extent that a future bowel obstruction was a certainty, she would have been foreclosed from such compensation solely on the basis of her experts’ testimony that the likelihood of the occurrence of a bowel obstruction was either very remote or only 8 to 16 percent probable. Her claim, however, was for compensation for the increased risk that she would suffer such an obstruction sometime in the future. If this increased risk was more likely than not the result of the bowel resection necessitated by the defendant’s actions, we conclude that there is no legitimate reason why she should not receive present compensation based upon the likelihood of the risk becoming a reality. When viewed in this manner, the plaintiff was attempting merely to establish the extent of her present injuries. She should not be burdened with proving that the occurrence of a future event is more likely than not, when it is a present risk, rather than a future event for which she claims damages. In our judgment, it was fairer to instruct the jury to compensate the plaintiff for the increased risk of a bowel obstruction based upon the likelihood of its occurrence rather than to ignore that risk entirely. The medical evidence in this case concerning the probability of such a future consequence provided a sufficient basis for estimating that likelihood and compensating the plaintiff for it.
215 Conn. at 395-96, 576 A.2d at 483; see also Goodmaster v. Houser, 225 Conn. 637, 625 A.2d 1366 (1993); Catalano v. Falco, No. CV990497592S, 2001 WL 1516872 (Conn. Super. Ct., Nov. 9, 2001), aff’d, 74 Conn. App. 86, 812 A.2d 63 (2002); 6 Robert B. Yules, Connecticut Trial Practice ‘ 5:24 (2006). The Court went on to explain that fear of this future risk(non-economic loss) was fully compensable but that medical expense associated with this future risk(economic loss) should consider the percentage likelihood that the risk would materialize.
In Marchetti v. Ramirez, 240 Conn. 49, 688 A.2d 1325 (1997), the Supreme Court made it clear that expert medical testimony must be in terms of reasonable probabilities rather than possibilities in order for a plaintiff to recover for predicted future medical expenses. It is not impermissible, however, for an expert to testify regarding future medical expenses based upon the plaintiff’s history of medical expenses incurred prior to trial:
It is well established that in assessing damages in a tort action, a trier is not concerned with possibilities but with reasonable probabilities. Consequently, as to future medical expenses, the jury’s determination must be based upon an estimate of reasonable probabilities, not possibilities. Indeed, we expressly reaffirmed this principle in Seymour v. Carcia, supra, 221 Conn. at 481, 604 A.2d 1304. The obvious purpose of this requirement is to prevent the jury from awarding damages for future medical expenses based merely on speculation or conjecture. Because, however, [f]uture medical expenses do not require the same degree of certainty as past medical expenses; Id., at 479, 604 A.2d 1304; [i]t is not speculation or conjecture to calculate future medical expenses based upon the history of medical expenses that have accrued as of the trial date … when there is also a degree of medical certainty that future medical expenses will be necessary. (Emphasis added; internal quotation marks omitted.) Id., at 478-79, 604 A.2d 1304………
240 Conn. at 54-55, 688 A.2d at 1328-29 (some citations and quotation marks omitted); see also Hamernick v. Bach, 64 Conn. App. 160, 779 A.2d 806 (2001); Calvi v. Agro, 59 Conn. App. 732, 757 A.2d 1260 (2000). In Marchetti, supra,as is commonly the case, the treating doctor could not predict the frequency of future medical care but rather opined the care would be “as needed”; nor could the doctor predict the expense; nevertheless the Court allowed the testimony to serve as a basis of an award for future medical care costs allowing the jury to use the history of medical expense that had accrued through the date of trial as a yardstick for what the future care costs might be. Be careful that you elicit testimony from the doctor that the future care will be similar to the past care. Also, in Calvi, supra, the Appellate Court held it is not enough for the treating doctor to say that the plaintiff might need future care only if she engages in strenuous activity, the distinction being that plaintiff could avoid the strenuous activity and thereby avoid the expense presumably; contrast Calvi, supra with Hamernick, supra wherein the Appellate Court held that it was sufficient to support an award for future medical care expenses where the treating doctor stated that plaintiff had a permanent impairment and “most probably” “will require symptomatic care”. The distinction being that the future symptoms that would require care were not limited only to when plaintiff engaged in a strenuous activity but would the injuries presumably were of such a nature that they would be symptomatic regardless of activity.
Answering the question originally posed by example, the treating doctor’s opinion that plaintiff has a 25% chance of needing lumbar fusion at some point in the future is admissible provided the doctor states that this is a present risk based on reasonable medical probability. The plaintiff’s fear of this future surgery is fully compensable; however, the future economic expense must consider the 25% likelihood that the surgery will actually occur.
- Admissibility of Evidence of Intoxication in an Admitted Liability UM Claim
What do you do when the smart defense lawyer admits liability in a UM claim and thereafter argues that your evidence that the defendant was intoxicated is now moot, irrelevant, overly prejudicial and therefore inadmissible? The usual course is that the defendant will admit, for instance, a violation of C.G.S. 14-240(following too closely) without admitting that he was intoxicated and then argue that since liability is no longer in issue any evidence as to liability, including evidence of intoxication is irrelevant and therefore inadmissible. The defendant will usually buttress this position with the further argument that any evidence of intoxication is overly prejudicial and that the UM insurance carrier is not liable for reckless or C.G.S. 14-295 multiple damages and therefore this evidence should be excluded.
3. Evidence of Intoxication in Admitted Liability UM Claim
Generally, the Code of Evidence deals with relevant evidence in section 4-1 thru 4-3. In essence the Code provides that evidence is relevant if it has the tendency to make the existence of any material fact more probable or less probable than it would be without the evidence; that all relevant evidence is admissible unless otherwise prohibited by the Code; and that relevant evidence is prohibited by the Code if the judge feels that it is overly prejudicial, confuses the issues, misleads the jury or wastes time. Defense counsel will likely argue that in the face of admitted liability, evidence of negligence, including and specifically intoxication, is no longer material to any pending issues, and even if relevant, is overly prejudicial and wastes time.
The following case law allows two persuasive arguments for the admission of evidence of intoxication: (1) that the evidence is relevant to show the extent of plaintiff’s injuries, specifically emotional upset from the realization that the crash was absolutely senseless having been caused by the inexcusable intoxication of the defendant, and (2) that plaintiff is allowed to present her best case to the jury without being hamstrung by what the defendant allows her to present by procedural concessions.
(1) Evidence of how a crash occurred is admissible in a personal injury action, even if liability is admitted, if the evidence is relevant to show the probable extent of the plaintiff’s injuries.Berndston v. Annino, 177 Conn. 41, 411 A.2d 36 (1979). In Berndston, the trial court barred the plaintiff from introducing evidence of the defendant’s excessive speed, the length of tire marks after the defendant applied his brakes, and the distance between the cars after impact, because the defendant had already admitted liability. On appeal, the Supreme Court held that such evidence should have been admitted because it was relevant in demonstrating the severity of the plaintiff’s back injuries.
A plaintiff is entitled to a jury instruction concerning mental suffering caused by an automobile accident if there is sufficient evidence of such suffering. See Villa v. Rios, 88 Conn. App. 339, 869 A.2d 661 (2005). If the plaintiff were to testify that the fact that the crash was occasioned by a drunk driver caused her emotional upset, the evidence of defendant’s intoxication should be admissible to explain this mental suffering. See generally Berndston, supra; Sutton v. Hayes, supra; C.C. Marvel, supra.
Also see generally C.C. Marvel, Admission of Liability as Affecting Admissibility of Evidence as to the Circumstances of Accident on Issue of Damages in a Tort Action for Personal Injury, Wrongful Death, or Property Damage, 80 A.L.R.2d 1224 (1961 & Supp. 2006); see, e.g., Sutton v. Hayes, 190 A.2d 655 (D.C. Ct. App. 1963) (whether the intoxication of the defendant, who has admitted liability, bears so directly on the force of the impact and therefore on the plaintiff’s damages so as to make the evidence relevant and admissible is a question within the trial court’s discretion).
(2) The Supreme Court in Berndston, supra also made it clear that the plaintiff should be able to introduce evidence buttressing its case, even if the defendant admits liability, because the plaintiff should be afforded the opportunity to present its best case, unless some rule of evidence excludes it:
It has long been the rule that unless excluded by some rule or principle of law, any fact may be proven which logically tends to aid the trier in the determination of the issue . . .
Speed is relevant to the severity of impact and, inferentially, to the injury sustained. The trial court recognized this fact when it concluded that if the defendant were traveling at a rate of 100 miles per hour, it would allow such testimony. If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. Whether there is such evidence is a question for the judge; whether that evidence is sufficient to establish the fact in controversy is a question for the jury.
The defendant argues that such evidence encroached upon the issue of liability which was not before the jury and thus was properly excluded. This court has held, however, that it is never a sufficient reason for the exclusion of pertinent evidence that it may be also susceptible of a wrong and prejudicial use by the trier. Any confusion or distraction caused by the introduction of this testimony could have been cured by a charge to the jury. Although a trial court has wide discretion as to the admission of questions involving relevance and remoteness, a party cannot be deprived of his right to support his cause by the introduction of evidence tending to prove facts upon which issue has been joined, if the evidence is not excluded by some rule of law.
177 Conn. at 43-44, 411 A.2d at 38-39.
Also, as recognized in Berndston, the general common law rule is that it does not lie in the power of one party to prevent the introduction of relevant evidence of the other party by admitting in general terms the fact which such evidence tends to prove. 71 C.J.S. Pleading 781 (2007); see Berndston, supra; cf. Morgera v. Chiappardi, 74 Conn. App. 442, 813 A.2d 89 (2003); see, e.g., Dunning v. Maine Central Railroad, 39 A. 352 (Me. 1897). A party has the right to present its evidence within the acceptable rules supporting its theory of the case.Berndston, supra; Morgera, 74 Conn. App. at 455, 813 A.2d at 97.
- Proving Intoxication by Inference
What do you do when there are no toxicology studies or even failed sobriety tests to prove intoxication? Or what if you simply want to avoid the hassle and expense of having a toxicologist testify? Can you nevertheless introduce other evidence of intoxication based on the observations of witnesses, or in other words can you present circumstantial evidence of intoxication and allow the jury to infer that the defendant was impaired?
Lay opinions are generally admissible if they are rationally based on the witnesses’ perception. See Code section 7-1. More specifically, there is clear case law that circumstantial evidence is admissible to prove a defendant’s intoxication.
4. Circumstantial Evidence of Intoxication
Circumstantial evidence is admissible to prove a driver’s intoxication, and the jury may infer intoxication from such evidence. Way v. Pavent, 179 Conn. 377, 426 A.2d 780 (1979); Higgins v. Champ, 161 Conn. 200, 286 A.2d 313 (1971). In Higgins, the plaintiff sued the defendant for injuries sustained in an automobile accident, and the plaintiff adduced circumstantial evidence at trial that the defendant was intoxicated at the time of the accident. In charging the jury, the trial court had instructed the jurors that there was no competent evidence of the defendant’s intoxication and that they should ignore that part of the plaintiff’s claim. After a verdict for the defendant, the plaintiff appealed, and the Supreme Court held that the circumstantial evidence of intoxication was sufficient to submit the issue to the jury:
The problem of just how much evidence of an alleged violation of section 14-227a(a) must be adduced to require determination of the truth of the allegation by a jury in a civil action has not been decided in any of our cases. If, however, reasonable minds might differ as to the conclusion to be drawn from the evidence submitted the issue is one to be determined by the trier as a question of fact. Litigants have a constitutional right to have issues of fact decided by the jury; and if there is evidence which will support a finding of fact on a contested issue the sufficiency of the proof must be left to the jury to determine.
While we do not suggest that on this record a trier of fact would be required to find a violation of the statute, we do conclude that it was error on the part of the trial court to remove that issue from the consideration of the jury in the light of the claims of proof as to the behavior and speech of the defendant, that he admitted having a few alcoholic drinks, and that his breath had a strong odor of alcohol. This evidence was sufficient to require that the issue of the operation of his motor vehicle while under the influence of intoxicating liquor be submitted to the jury for decision.
161 Conn. at 203-04, 286 A.2d at 314.
In Way, the court held that expert opinion evidence is not necessary in a civil trial to prove that a defendant was driving under the influence. The trial court had held that circumstantial evidence of the plaintiff’s intoxication was insufficient to raise a jury issue on the affirmative defense that the plaintiff was operating a motor vehicle under the influence of alcohol in violation of Gen. Stat. 14-227. On appeal, the Supreme Court reversed and held that such circumstantial evidence presents an issue for the jury:
There was no opinion evidence that the plaintiff was under the influence of intoxicating liquor at the time of the accident, but such evidence is not required if a conclusion is supported by the subordinate facts which could have been found by the jury. The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters. Expert testimony was not required on this issue.
It cannot be said as a matter of law that reasonable minds could not differ as to whether the plaintiff was driving while under the influence of intoxicating liquor. The evidence included testimony that the plaintiff had consumed ten ten-ounce glasses of beer within three and three-quarter hours, fifteen minutes before the accident occurred. The plaintiff himself testified that he looked but did not see the defendant’s car approaching. The weather was clear, the roadway was dry and the lighting was excellent. The issue should have been submitted to the jury.
179 Conn. at 380, 426 A.2d at 782 (citations omitted); see also Staudinger v. Barrett, 208 Conn. 94, 544 A.2d 164 (1988) (circumstantial evidence that decedent had been drinking beer prior to a police chase was sufficient to allow the jury to decide if the decedent was driving under the influence and was contributorily negligent in the accident); Marsh v. Mashburn, 11 Conn. App. 447, 528 A.2d 382 (1987) (circumstantial evidence of plaintiff’s drinking and erratic operation of the automobile warranted jury charge on impairment or intoxication).
- Admissibility of MySpace.com Photographs: is it just about prejudicial v. probative?
The proliferation of the internet continues to spawn many legal issues. One of these issues is whether photographs of a plaintiff that a defense lawyer/insurance carrier acquires off MySpace.com are admissible in a personal injury action. If the plaintiff’s profile is activated as “Private”, meaning that it can only be viewed with plaintiff’s consent, photographs acquired by defense counsel, insurance carriers or their investigators through false pretense should be inadmissible. To hold otherwise would be encouraging a reprehensible invasion of privacy.
5. (1) Admissibility of Improperly-Obtained Evidence
Internet communications or connections that are publicly available afford the person making the communication or connection no reasonable expectation of privacy. See In re Property of Forgione, 49 Conn. Super. 613, 908 A.2d 593 (New Haven, June 6, 2006) (criminal defendant’s IP address used to hack into ex-boyfriend’s e-mail account was publicly available, like a phone number in the phone book, and the defendant had no reasonable expectation of privacy).However, if a website does not allow public access and is secured or accessible only by the registration of a username or password, there is authority that the owner of such a website does have a reasonable expectation of privacy. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002); cf. J.S. ex rel.H.S. v. Bethlehem Area School District, 757 A.2d 412 (Pa. Cmwlth. Ct. 2000) (school district which disciplined student for his website critical of a teacher did not violate the student’s privacy rights because the website was not a secured, accessible only by password site); Dexter v. Dexter, No. 2006-P-0051, 2007 WL 1532084 (Ohio Ct. App., May 25, 2007) (a father in child custody proceeding did not improperly access information obtained from the mother’s MySpace page where the she admitted the page was open to the general public); see generally, Mitchell Waldman, Expectation of Privacy in Internet Communications, 92 A.L.R.5th 15 (2001 & Supp. 2007).
In Konop an airline pilot operated a secured website on which he made critical comments regarding his employer and invited other pilots to register with a user name and password to make similar comments. The president of the airline registered in the name of another pilot and accessed the website. The pilot sued the airline and its president for violating the federal Wiretap Act and the federal Stored Communications Act (SCA), 18 U.S.C. 2701. The Ninth Circuit held that there was a genuine issue of material fact as to whether the defendants violated the SCA because they had allegedly accessed the secured website without the pilot’s permission. 302 F.3d at 879-80.
Under Connecticut law, all evidence obtained illegally by an electronic device is inadmissible in a civil proceeding. Conn. Gen. Stat. 52-184a; Rivera v. Rivera, 15 Conn. App. 529, 546 A.2d 309 (1988). In the divorce proceeding in Rivera, the husband placed a tap on his wife’s phone to record her conversations with a third party, in violation of Conn. Gen. Stat. 53a-189. The court held that the evidence so obtained was inadmissible under 52-184a. 15 Conn. App. at 530-31, 546 A.2d at 309-10. Conn. Gen. Stat. 52-184a may bar evidence illegally obtained by a person using a computer (certainly an electronic device). And query whether if improperly accessing a secured website violates the SCA, would improper access to someone’s restricted MySpace page be such a violation so that the evidence is not admissible under 52-184a? And there is case law suggesting that other means of illegally-obtained evidence is inadmissible in civil proceedings. See Ryan v. Vegiard, No. CV-90-49622-S, 1993 WL 128570 (Conn. Super. Ct., April 15, 1993) (court refused to decide issue but held that evidence obtained in a physical examination of the property contrary to procedures outlined in the Practice Book was inadmissible).
(2) More Prejudicial than Probative
In general refer to Code section 4-3.
The question of the admissibility of a photograph or a pictorial representation is a preliminary one for the trial court to determine. Hall v. Burns, 213 Conn. 446, 569 A.2d 10 (1990); Katsetos v. Nolan, 170 Conn. 637, 368 A.2d 172 (1976). Evidence of this character may be admitted if, in the opinion of the court, it will assist the jury in understanding the testimony, and the photograph or pictorial representation fairly represents what it purports to represent. Katsetos.
The trial court has broad discretion in determining whether such evidence, which may be logically probative of a fact in issue, ought to be received. Katsetos; Hall. Such evidence should be excluded when it would confuse rather than aid the jury. Katsetos. If a court determines that a photograph has a tendency to prejudice the jury, the question before the court then is whether its value as evidence outweighs its possible prejudicial effect. Pisel v. Stamford Hospital, 180 Conn. 314, 430 A.2d 1 (1980); Barbarula v. Haniewski, No. CV-97-0437585-S, 2002 WL 467797 (Conn. Super. Ct., Mar. 6, 2002). An inflammatory photograph should be admitted into evidence only if its probative value outweighs the prejudicial effect it might have on the jury. Barbarula.
Photographs, even though gruesome or inflammatory, are admissible in evidence when otherwise properly admitted if they have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. State v. LaBreck, 159 Conn. 346, 269 A.2d 74 (1970).
All adverse evidence is prejudicial to one’s case, but it is inadmissible if it creates undue prejudice so that it threatens an injustice were it to be admitted. State v. Slade, 97 Conn. App. 404, 905 A.2d 689, cert. denied, 280 Conn. 931, 909 A.2d 959 (2006). The test for determining whether evidence is unduly prejudicial, and therefore inadmissible, is not whether it is damaging to a party but whether it will improperly arouse the emotions of the jury. Id. Unfair prejudice is that which arouses the jury’s emotions of prejudice, hostility, or sympathy, or tends to have some adverse effect upon the party against whom the evidence is offered beyond tending to prove the fact or issue that justified its admission into evidence. Vasquez v. Rocco, 267 Conn. 59, 836 A.2d 1158 (2003). The potential prejudicial effect of relevant evidence should lead to its exclusion where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues. State v. Harris, 277 Conn. 378, 890 A.2d 559 (2006).
To the extent that a defendant seeks to use photographs as evidence of bad character or reputation, such evidence is inadmissible because [i]n the eyes of the law, the inferences which might be drawn of character and reputation are too vague, uncertain and unreliable to be worthy of consideration in determining the merits . . . the business of the court is to try the case and not the [person]. Bosworth v. Bosworth, 131 Conn. 389, 391, 40 A.2d 186, 187 (1944); Barbieri v. Cadillac Construction Co., 174 Conn. 445, 389 A.2d 1263 (1978). And see code section 4-4 and 4-5.