Demaria v. City of Bridgeport ( 2019 )

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VICTOR DEMARIA v. CITY OF BRIDGEPORT
(AC 41234)
Lavine, Sheldon and Prescott, Js.*
Syllabus
The plaintiff sought, pursuant to the municipal defective highway statute
(§ 13a-149), damages for personal injuries he sustained when he fell on
a sidewalk owned by the defendant city of Bridgeport. After his fall, the
plaintiff experienced certain symptoms and sought medical treatment
at a veterans affairs hospital, where he consulted his primary care
provider, V, and other medical professionals. V wrote a document for
the plaintiff’s medical file, in which she concluded that the plaintiff’s
injuries, including injuries to his fingers, a permanent disability of neu-
ropathy, and left hand permanent weakness, were caused with a reason-
able degree of medical certainty by his fall on the city’s sidewalk. Prior
to trial, the city filed a motion in limine to preclude the admission
of V’s treatment records, treatment reports, findings, conclusions, and
medical opinions as evidence at trial. It claimed that V’s treatment
records and report were inadmissible under the applicable statute (§ 52-
174 [b]) because the city would have no opportunity to cross-examine
her, either at a deposition or at trial, as she was prevented from testifying
by the applicable federal regulation (38 C.F.R. § 14.808). The trial court
denied the city’s motion in limine. After the jury returned a verdict for
the plaintiff, the trial court denied the city’s motion to set aside the
verdict, and the city appealed to this court. Held that the trial court
improperly admitted into evidence V’s treatment records and report
under § 52-174 (b): the plaintiff was incorrect in his assertion that our
Supreme Court, in Rhode v. Milla (287 Conn. 731), previously had recog-
nized a standard for the admissibility of medical records under § 52-174
(b) that requires only that the plaintiff testify as to the relevance of the
records and that the records originate from a hospital, as our Supreme
Court in Rhode determined that it would have been improper to admit
medical records under § 52-174 (b) if the opposing party had had no
opportunity to cross-examine their author, either at a deposition or at
trial, and in the present case, the medical records V authored should
not have been admitted into evidence because V, who was prohibited
from providing any opinion or expert testimony in any forum by 38
C.F.R. § 14.808, was unavailable for cross-examination at any time, and,
therefore, to admit such medical records would enable a plaintiff, solely
because he was treated at a veterans affairs hospital, to present favorable
expert opinions from his medical provider without subjecting the author
of those opinions to the crucible of cross-examination; moreover, the
city was harmed by the trial court’s error because the medical records
concerned the central issues in the case, as the plaintiff’s counsel
expressly relied on V’s report in closing argument to establish damages
and a causal link between the plaintiff’s fall and his lingering symptoms,
the court did not take any measures, such as the giving of corrective
instructions, which might have mitigated the effect of the evidentiary
impropriety, and the improperly admitted medical records were not
merely cumulative of other validly admitted testimony, as there was no
other evidence from a treating medical provider rendering an opinion
on either causation or the permanency of the plaintiff’s injuries.
Argued January 28—officially released June 11, 2019
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of an allegedly defec-
tive highway, and for other relief, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Hon. William B. Rush, judge trial referee,
denied the defendant’s motion to preclude certain evi-
dence; thereafter, the matter was tried to the jury; ver-
dict for the plaintiff; subsequently, the court denied
the defendant’s motion to set aside the verdict, and
rendered judgment in accordance with the verdict, from
which the defendant appealed to this court. Reversed;
new trial.
Eroll V. Skyers, for the appellant (defendant).
John H. Harrington, for the appellee (plaintiff).
Opinion
SHELDON, J. The defendant, the city of Bridgeport,
appeals from the judgment of the trial court, rendered
upon the verdict of a jury, awarding damages to the
plaintiff, Victor DeMaria, for injuries he sustained in a
fall that occurred on the defendant’s sidewalk. On
appeal, the defendant claims that the trial court improp-
erly admitted into evidence certain medical records that
had been written by Miriam Vitale, a physician assistant
who was the plaintiff’s primary care provider at the
veterans affairs hospital (hospital) in West Haven,
under General Statutes § 52-174 (b).1 We agree with
the defendant that the court improperly admitted the
medical records written by Vitale into evidence under
§ 52-174 (b), and that the defendant was harmed by the
court’s error. Accordingly, we reverse the judgment of
the trial court and remand the case for a new trial.
The record reveals the following procedural history
and facts, as the jury reasonably could have found them.
On March 27, 2014, the plaintiff tripped while walking
on the sidewalk of Fairfield Avenue in Bridgeport, when
he caught his foot on a raised portion of the sidewalk.
As a result, the plaintiff fell forward onto his face and
hands, causing him to suffer abrasions to his nose and
hands, a broken nose and a broken finger on his left
hand. Approximately two months after his fall, the plain-
tiff began to experience a burning sensation in his left
arm, weakened grip strength and a limited range of
motion in his left hand. He sought medical attention at
the hospital, where he consulted neurologists, radiolo-
gists, physical therapists, occupational therapists and
his primary care provider, Vitale, concerning his symp-
toms. After the plaintiff had received approximately
two and one-half years of treatment, including extensive
physical and occupational therapy, Vitale wrote a docu-
ment for his medical file titled ‘‘Final Report of Injury,’’
in which she opined that the plaintiff had reached the
maximum potential use of his left hand, he retained
only 47 percent of his former grip strength and he con-
tinued to experience pain and neuropathy in that hand.
She further concluded that ‘‘these injuries were caused
with a reasonable degree of medical certainty by the
March 27, 2014 accident, [specifically], [to the] left
fourth and fifth digit, a permanent disability of neuropa-
thy, as well as left hand permanent weakness occurring
as a result of fall and impact of [the plaintiff] during
the fall.’’
The plaintiff brought this action against the defendant
for economic and noneconomic damages under General
Statutes § 13a-149,2 alleging that his injuries had been
caused by the defendant’s failure to remedy a defect
in its sidewalk, which it knew or should have known
would cause injuries to pedestrians. Prior to trial, the
defendant filed a motion in limine to preclude the admis-
sion of Vitale’s treatment records, treatment reports,
findings, conclusions, and medical opinions as evidence
at trial. The defendant argued that Vitale’s medical
records were inadmissible under § 52-174 (b) because
the defendant would have no opportunity to cross-
examine her, either at a deposition or at trial, because
she was prevented from testifying by 38 C.F.R. § 14.808.3The plaintiff responded that precluding the medical
records would result in an injustice to him merely
because his treating physician was made unavailable
to testify by federal regulation and that that is the very
type of injustice that § 52-174 (b) was intended to rem-
edy. After a hearing, the court denied the defendant’s
motion in limine.
Following a three day trial, the jury returned a verdict
for the plaintiff, awarding him $15,295.47 in economic
damages and $77,500 in noneconomic damages, for a
total award of $92,795.47. The court denied the defen-
dant’s subsequent motion to set aside the verdict, in
which it argued, inter alia, that the trial court erred in
admitting the medical records written by Vitale because
the defendant had had no opportunity to cross-examine
her at a deposition or at trial in violation of its common-
law right to cross-examination. This appeal followed.
Additional facts will be set forth as necessary.
‘‘Whether the trial court improperly admitted evi-
dence under § 52-174 (b) is an evidentiary question, and
our review is for abuse of discretion.’’ Rhode v. Milla,
287 Conn. 731, 742, 949 A.2d 1227 (2008). ‘‘To the extent
[that] a trial court’s admission of evidence is based on
an interpretation of [our law of evidence], our standard
of review is plenary. . . . We review the trial court’s
decision to admit [or exclude] evidence, if premised on
a correct view of the law, however, for an abuse of
discretion. . . . The trial court has wide discretion to
determine the relevancy of evidence and the scope of
cross-examination. . . . Thus, [w]e will make every
reasonable presumption in favor of upholding the trial
court’s ruling[s] [on these bases] . . . . In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court . . . reasonably
[could have] conclude[d] as it did.’’ (Internal quotation
marks omitted.) Weaver v. McKnight, 313 Conn. 393,
426, 97 A.3d 920 (2014).
Section 52-174 (b) provides in relevant part: ‘‘In all
actions for the recovery of damages for personal injur-
ies or death, pending on October 1, 1977, or brought
thereafter . . . any party offering in evidence a signed
report and bill for treatment of any treating . . . physi-
cian assistant . . . may have the report and bill admit-
ted into evidence as a business entry and it shall be
presumed that the signature on the report is that of
such treating . . . physician assistant . . . and that
the report and bill were made in the ordinary course
of business. . . .’’ Section 52-174 (b) ‘‘permits a signed
doctor’s report to be admitted as a business [record].
. . . [The statute] creates a presumption that the doc-
tor’s signature is genuine and that the report was made
in the ordinary course of business. . . . Thus, once the
statutory requirement that the report be signed by a
treating physician [or physician assistant] is met, the
evidence in that report is admissible and has the same
effect as a business [record]. This does not mean, how-
ever, that the entire report is automatically admitted.’’
(Citation omitted; footnote omitted.) Aspiazu v. Org-
era, 205 Conn. 623, 626–27, 535 A.2d 338 (1987).
In Struckman v. Burns, 205 Conn. 542, 543, 548–49,
534 A.2d 888 (1987), our Supreme Court considered
whether § 52-174 (b) would infringe upon a defendant’s
common-law right to cross-examination4 if it were con-
strued to permit the admission into evidence of records
from a plaintiff’s physician who, because he resided
out of state, could not be subpoenaed for trial and,
thus, would be unavailable for cross-examination at
trial by the opposing party. The court concluded that
such a reading of § 52-174 (b) did not significantly cur-
tail the right of cross-examination in the case before it
because it did not preclude the taking of the out-of-
state physician’s deposition in which he could have
been effectively cross-examined. Id., 552.
In Rhode v. Milla, supra, 287 Conn. 732–33, 744, our
Supreme Court applied its holding in Struckman to a
case in which the plaintiff sought to introduce medical
records from a chiropractor who, having invoked his
fifth amendment privilege against self-incrimination,
became unavailable to testify either at a deposition or
at trial. In those circumstances, the court found that
‘‘the defendants did not have an adequate opportunity
to cross-examine [the chiropractor] in a meaningful
manner about his [records] either at his deposition or
at trial because of his invocation of the fifth amendment
privilege. . . . Thus, [it concluded] that the trial court
improperly admitted the [records] into evidence pursu-
ant to § 52-174 (b).’’ Id., 744.
The defendant claims that the present case is indistin-
guishable from Rhode and, thus, that the trial court
improperly admitted the medical records containing
Vitale’s entries under § 52-174 (b). The plaintiff argues
that the defendant’s reliance on Rhode is misplaced
because that case can be distinguished from the present
one. The plaintiff’s argument that Rhode is not control-
ling precedent is unavailing.
The plaintiff claims that our Supreme Court recog-
nized that medical records and bills are admissible
‘‘where the [plaintiff testifies] that the bills have been
incurred as a result of the injuries received’’; (internal
quotation marks omitted) id., 745; and there is ‘‘corrobo-
ration as to the attendance of the doctor upon the plain-
tiff . . . furnished by hospital records admitted into
evidence.’’ Bruneau v. Quick, 187 Conn. 617, 622, 447
A.2d 742 (1982). Thus, the plaintiff contends that Rhode
supports the admission of Vitale’s records because the
plaintiff here, like the plaintiff in Rhode, testified that
he received the medical treatment detailed in the
records, and the records of such treatment were pro-
duced by the hospital. However, the plaintiff’s interpre-
tation of Rhode ignores the context in which the quoted
language was used and, thus, misstates the rule govern-
ing the admission of records under § 52-174 (b). The
language quoted by the plaintiff immediately followed
the court’s conclusion that it had a ‘‘fair assurance that
[the] evidentiary impropriety likely did not affect the
jury’s verdict.’’ (Internal quotation marks omitted.)
Rhode v. Milla, supra, 745. This language acknowledged
that our Supreme Court had found error in the trial
court’s admission of the medical records and served as
a transition to its discussion of harm. Therefore, the
plaintiff is incorrect in his assertion that our Supreme
Court recognized a standard for the admissibility of
medical records under § 52-174 (b) that requires only
that the plaintiff testify as to the relevance of the records
and that the records originate from a hospital. To the
contrary, the court in Rhode determined that it would
have been improper to admit records under § 52-174
(b) if the opposing party had had no opportunity to
cross-examine their author, either at a deposition or at
trial. Id., 744. Ultimately, the court found that the error
in the case before it was harmless because, inter alia,
the medical records did not bear upon a central issue
in the case. Id., 744–46.
The plaintiff also claims that the Rhode court distin-
guishes, in its harmless error analysis, between medical
evidence in personal injury cases and medical evidence
in medical malpractice cases. The plaintiff argues that
a complete reading of Rhode ‘‘reveals an equivocal treat-
ment of medical records admission’’ but provides no
further explanation or support for this argument.
Here, again, the plaintiff misinterprets the language
used by the Rhode court. The language at issue appears
in the court’s discussion of the first factor of its harm-
less error analysis, where it stated: ‘‘[I]nasmuch as this
case is not a medical malpractice action . . . the medi-
cal validity of [the chiropractor’s] treatment methods
is not a central issue herein.’’ (Emphasis omitted.)
Rhode v. Milla, supra, 287 Conn. 745. The court’s lan-
guage did not thereby limit the application of § 52-174
(b) to medical malpractice cases or give ‘‘equivocal
treatment’’ to medical records in that context. Instead,
it mentioned medical malpractice cases as a group of
cases in which the treatment methods detailed in the
medical records would likely be a central issue at trial.
Moreover, as is apparent from the plain language of
§ 52-174 (b), the statute applies broadly to ‘‘actions for
the recovery of damages for personal injuries or death
. . . .’’ We, therefore, conclude that Rhode cannot
meaningfully be distinguished from the present case
and is controlling precedent.
Like the defendant in Rhode, the defendant in the
present case did not have an opportunity to cross-exam-
ine the witness against it, Vitale, either at a deposition
or at trial because she was legally unavailable to offer
opinion testimony in any forum. Because, more particu-
larly, she was prohibited from providing any opinion
or expert testimony by 38 C.F.R. § 14.808 and, thus,
was unavailable for cross-examination at any time, the
medical records she authored should not have been
admitted into evidence. To admit such records would
enable a plaintiff, solely because he was treated at a
veterans affairs hospital, to present favorable expert
opinions from his medical provider without subjecting
the author of those opinions to the crucible of cross-
examination.
‘‘This conclusion does not, however, end our inquiry,
because [e]ven when a trial court’s evidentiary ruling
is deemed to be improper, we must determine whether
that ruling was so harmful as to require a new trial.
. . . [A]n evidentiary ruling will result in a new trial
only if the ruling was both wrong and harmful. . . .
[T]he standard in a civil case for determining whether
an improper ruling was harmful is whether the . . .
ruling [likely] would [have] affect[ed] the result. . . .
Moreover, an evidentiary impropriety in a civil case is
harmless only if we have a fair assurance that it did not
affect the jury’s verdict.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Hayes v.
Camel, 283 Conn. 475, 488–89, 927 A.2d 880 (2007).
‘‘A determination of harm requires us to evaluate the
effect of the evidentiary impropriety in the context of
the totality of the evidence adduced at trial. . . . Thus,
our analysis includes a review of: (1) the relationship
of the improper evidence to the central issues in the
case, particularly as highlighted by the parties’ summa-
tions; (2) whether the trial court took any measures,
such as corrective instructions, that might mitigate the
effect of the evidentiary impropriety; and (3) whether
the improperly admitted evidence is merely cumulative
of other validly admitted testimony. . . . The overrid-
ing question is whether the trial court’s improper ruling
affected the jury’s perception of the remaining evi-
dence.’’ (Citations omitted; internal quotation marks
omitted.) Id., 489–90.
The following additional facts are relevant to our
determination of harm. The plaintiff testified about his
fall, his resulting injuries, and the medical treatment he
received for those injuries. He explained that, since his
fall, the grip strength in his left hand was less than that
in his right hand, causing him to have trouble opening
a bottle of water and picking up items with his left
hand. By his own lay assessment, the grip strength in
his left hand was ‘‘40 or 38’’ percent while the grip
strength in his right hand was 90 percent. He further
stated that, through physical therapy, he had been able
to improve the grip strength in his left hand to 48
percent.
During the plaintiff’s testimony, medical records
were admitted into evidence as full exhibits, which
detailed the plaintiff’s treatment in the ambulance, at
the emergency room, and in various follow-up appoint-
ments at the hospital. Included in the records was the
report at issue, titled ‘‘Final Report of Injury,’’ that had
been written by Vitale. In the report, Vitale stated: ‘‘[The
plaintiff] did not have these losses prior to his injuries
sustained in the fall of March 27, 2014, and therefore it
is concluded that [the plaintiff’s] injuries were sustained
from the fall on said date.’’
Vitale further opined that, ‘‘[a]fter extensive [physical
therapy] and [occupational therapy], [the plaintiff’s]
diminished potential shown in the above grip strength
amounts to 47 [percent] strength in his left hand as
compared with his right hand. As such, this is his impair-
ment rating in his left hand and he is considered to
have achieved a maximum potential at this point.’’
Nowhere else in the medical records that were admitted
into evidence did any other treating medical provider
comment on the plaintiff’s impairment rating or opine
as to the cause of his ongoing symptoms. The medical
records from the plaintiff’s occupational therapist, how-
ever, listed the results of multiple grip strength tests
of both of his hands.
In his closing argument, the plaintiff’s counsel first
noted that his client had sustained ‘‘permanent injur-
ies,’’ then read to the jury from Vitale’s report. The
plaintiff’s counsel emphasized that the plaintiff was
‘‘considered to [have achieved] maximum potential,’’
stating: ‘‘He can—he can squeeze all the—all the instru-
ments, and squeezy balls and everything he wants, it’s
not [going to] get any better, that’s it, he’s stuck, stuck
with this injury.’’ Counsel then read from Vitale’s report
a second time, emphasizing her conclusions that the
fall caused the plaintiff’s injuries. He stated: ‘‘So there’s
no question that a competent medical professional not
only found his injuries, but connected them to the acci-
dent in writing. I think that’s—not only meets the bur-
den of proof of, you know, preponderance of the
evidence, I think it’s—it’s—it would [meet] a higher
standard of clear and convincing evidence that these
injuries were caused by the accident.’’
In the closing argument of the defendant’s counsel,
he questioned the reliability of Vitale’s opinion by high-
lighting that the jury knew nothing about her qualifica-
tions and questioning the likelihood that a broken pinky
could lead to the loss of function of which the plaintiff
complained. In his rebuttal, the plaintiff’s counsel
attempted to rehabilitate Vitale by emphasizing her
medical training and the length of time she had treated
the plaintiff.
To determine whether the defendant was harmed
by the admission of such improper evidence, we first
consider the relationship of the evidence to the central
issues in the case, particularly as highlighted by the
parties’ closing arguments. The plaintiff’s counsel
expressly relied on Vitale’s report in his closing argu-
ment to establish a causal link between the plaintiff’s
fall and his lingering symptoms. To that end, the plain-
tiff’s counsel read from Vitale’s report twice, high-
lighting her opinion on causation and specifically noting
that that opinion established that the plaintiff had more
than met his burden of proof on the issue of causation.
In Rhode, our Supreme Court concluded that the medi-
cal records at issue did not bear on a central issue in the
case because there was no question about the medical
validity of the treatment methods detailed in those
records and additional evidence was presented to sup-
port the plaintiff’s claims of injury and disability. Rhode
v. Milla, supra, 287 Conn. 745–46. Here, by contrast,
the medical records at issue were the only evidence
connecting the plaintiff’s injuries that resulted from the
fall to his lingering symptoms. Such evidence, thus,
established causation while broadening the scope of
damages to include compensation for prolonged suffer-
ing, disability, and resulting medical treatment. Because
the plaintiff relied on the records at issue, as highlighted
in his counsel’s closing argument, to establish causation
and damages, we conclude that such records concerned
the central issues in the case.
We next consider whether the trial court took any
measures, such as the giving of corrective instructions,
which might have mitigated the effect of the evidentiary
impropriety. No such measures were taken. To the con-
trary, the court cautioned the jury in its final charge
that it was not to draw any adverse inference against
the plaintiff from his decision to submit medical records
instead of live testimony from his medical provider to
prove his case.
Finally, we must consider whether the improperly
admitted records were merely cumulative of other val-
idly admitted testimony. We conclude that they were
not. In our review of the record, we could find no other
evidence from a treating medical provider rendering an
opinion on either causation or the permanency of the
plaintiff’s injuries. Although the plaintiff testified about
the loss of grip strength in his hand and the records
from the occupational therapist reflect the results of
his grip strength tests over time, such evidence, which
might have supported a lay inference of permanency,
is not supported by expert opinion. Vitale’s expert con-
clusion was, thus, not merely cumulative of such lay
testimony on the issues of causation and permanency.
For the foregoing reasons, we conclude that the court’s
evidentiary impropriety was harmful because we do not
have a fair assurance that it did not affect the jury’s
verdict.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant claims on appeal, in the alternative, that the court erred
in admitting Vitale’s medical records for three additional reasons: (1) the
admission of Vitale’s written expert opinion was precluded under the
supremacy clause of the United States constitution and 38 C.F.R. § 14.808;
(2) Vitale was not qualified as an expert, as required by § 7-2 of the Connecti-
cut Code of Evidence; and (3) there was no testimony regarding the method-
ology that she employed in arriving at her medical opinion to establish its
validity. See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied,
523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Because we conclude
that it was improper to admit Vitale’s medical records under § 52-174 (b),
we do not reach these claims. We note, however, that the only foundation
that is required for the admission of medical records or bills under § 52-
174 (b) is that the record or bill be signed by a treating medical professional.
See Aspiazu v. Orgera, 205 Conn. 623, 627, 535 A.2d 338 (1987). ‘‘Thus, once
the statutory requirement that the report be signed by a treating physician
[or physician assistant] is met, the evidence in that report is admissible and
has the same effect as a business [record].’’ Id. Because § 52-174 (b) merely
treats the report as a business record, it does not allow for the admission
of medical records or parts of a medical record that would otherwise be
inadmissible. See Struckman v. Burns, 205 Conn. 542, 554, 534 A.2d 888(1987) (‘‘[§] 52-174 [b] in no way eliminates a plaintiff’s burden of establishing
the relevancy of the expert opinions expressed [in the report]’’).
2
General Statutes § 13a-149 provides in relevant part: ‘‘Any person injured
in person or property by means of a defective road or bridge may recover
damages from the party bound to keep it in repair. . . .’’
3
Title 38 of the Code of Federal Regulations, § 14.808, provides in relevant
part: ‘‘(a) [Department of Veterans Affairs] personnel shall not provide,
with or without compensation, opinion or expert testimony in any legal
proceedings concerning official [Department of Veterans Affairs] informa-
tion, subjects or activities, except on behalf of the United States or a party
represented by the United States Department of Justice. . . .’’
4
The court in Struckman ‘‘relied on Gordon v. Indusco Management
Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973), for the principle that there
is an absolute common-law right to cross-examination in a civil case.’’ (Foot-
note omitted; internal quotation marks omitted.) Rhode v. Milla, supra, 287
Conn. 742–43.