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Circumstantial Evidence May Be More Certain, Satisfying and Persuasive

In a recent Apellate Court victory by this office, the court in Curran v. Kroll, 118 Conn. App. 401 (2009) (December 15, 2002; Flynn, C. J.; Trial Court - Berger, J.), the Appellate Court reaffirmed the importance of circumstantial evidence and reversed the directed verdict entered by the trial court in favor of the defendant doctor in a medical malpractice failure to warn case. It had been necessary to resort to circumstantial evidence during trial because plaintiff's decedent was the only person who had direct evidence of her conversations with the defendant, but she had been killed by the doctor's malpractice. The Appellate Court agreed that while there was no direct evidence that the defendant breached the standard of care in failing to warn the decedent of the risks of a prescribed course of treatment, there was circumstantial evidence that could have led to a reasonable inference that the standard had been breached, if the jury had chosen to credit such evidence. "[T]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned....In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence."


  1. The plaintiff, Ryan Curran, Administrator, brought this medical malpractice action on behalf of his deceased mother, Leeann Curran, against the defendant Dr. Sherry Kroll, a primary care physician, alleging that she negligently failed to advise Leeann of the risks of taking birth control pills and negligently failed to inform Leeann of the signs and symptoms associated with those risks.
  2. On May 6, 2002, Leeann, then 45, attended an office visit with Kroll at which time Leeann complained of severe menopausal symptoms, e.g. hot flashes, mood swings, painful, irregular periods, etc.
  3. Kroll prescribed Desogen, a birth control pill, to treat these symptoms.
  4. Near the end of May, Leeann told her mother, Kathy Stilwell, that she "felt terrible" and didn't want to continue taking the pills because she felt worse than before she started them.
  5. Leeann also told Stilwell that she had telephoned Kroll about this, but Kroll told her to continue with the medication, which she did. (The defendant lost the plaintiff's chart but was able to recreate some of it electronically.)
  6. On June 6, 2002, Leeann and her mother attended a meeting. Leeann left prematurely due to considerable leg pain. Leeann had no idea what was causing her pain.
  7. On June 7, 2002, Leeann left work early also due to continuing significant leg pain. Stilwell testified that Leeann speculated to her that she may have pulled a muscle, but "she truly had no idea what was wrong with her." Leeann had a similar conversation with her husband. She continued to complain of pain through the evening of June 7, 2002.
  8. Ryan testified that, during the night of June 7-8, he heard his mother grunting in pain as his father helped Leeann downstairs to the couch where she thought she would be more comfortable because she could elevate her leg.
  9. Around 6 am on June 8, 2002, Leeann fell in the bathroom and hit her head, her husband helped her to the couch and called 911. She complained to her husband that she couldn't breathe. Shortly after assistance arrived, Leeann lost consciousness and stopped breathing; she was taken to the hospital, but she never regained consciousness.
  10. Leeann died on June 8, 2002, as a result of blood clots in her lungs that likely originated in her left thigh, traveled through her venous system and her heart and lodged in her lungs.
  11. At the end of plaintiff's case, the defendant moved for a directed verdict on the grounds that there was no evidence that Kroll had breached the standard of care and that a failure to warn claim could not be based solely on an inference that might be drawn from the decedent's failure to seek help.
  12. The trial court granted defendant's motion and this appeal followed.
  13. The Appellate Court reversed the decision of the trial court.


Evidence comes in two forms, direct and circumstantial. "The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience....Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury....When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.

"An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference....

"Just because a jury could, but is not required to, draw an inference does not mean that it is resorting to speculation....Inferences are based on common experience and probability....Inferences should be based on probabilities, not possibilities, surmise, or conjecture....To state a truism, the only kind of inference the law recognizes is a reasonable one....Connecticut does not subscribe to the oft-repeated rule that an inference cannot be based on an inference. Successive inferences are permissible if justified by the facts....Thus, one inference can be founded upon facts whose determination is the result of other inferences....The only question is whether the successive inferences are rationally justified by the facts....

"[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted; emphasis added.)

Kroll testified that she "definitely" would have advised the patient of the risk of blood clots associated with birth control pills, that blood clots could be life threatening and that symptoms associated with blood clots included pain as a result of leg swelling. However, the patient's medical file had no indication that Kroll had given Leeann any warning or advice about the risk of blood clots or the symptoms associated with the same.

Plaintiff's expert testified that an internist would expect that a reasonable patient, who has been advised properly, will recognize the appropriate side effects of medication and seek medical attention should those signs or symptoms appear.

The Appellate Court agreed with the trial court that a failure to warn claim could not be based solely on an inference drawn from the decedent's failure to seek help. But the Appellate Court concluded that there was other evidence from which such an inference reasonably could have been drawn.

In the present case, the evidence, viewed in the light most favorable to the plaintiff, reasonably could have led the jury to find that Kroll prescribed the birth control pill to the decedent slightly more than four weeks before the decedent's death, and that Kroll made no notation that she had given the decedent a proper warning of the risks and the signs and symptoms associated with such risks. Further, the jury could have found that the decedent experienced feelings of ill health shortly after beginning the pills and that she telephoned Kroll's office about this but was told to continue taking the pills. A short time later, when the decedent experienced severe leg pain over the course of a couple of days, she had no idea what was the cause of that pain. Additionally, the jury could have found that persons generally seek to follow instructions of a medical nature concerning the serious symptoms associated with the side effects of medication. These findings could have led the jury to the reasonable inference that Kroll, four weeks before the decedent's death, had not discussed the signs and symptoms associated with the risks of birth control pills adequately with the decedent, because, if she had discussed them adequately, the decedent would have known that this might be the cause of her pain. In other words, the decedent's complete lack of knowledge and puzzlement as to the cause of her pain, combined with other evidence, reasonably could have led the jury to the inference that the decedent had not been informed adequately by Kroll. Accordingly, the Appellate Court concluded that the court should not have directed a verdict in favor of the defendants but should have given the jury the opportunity to weigh this evidence and decide the issue.