Campbell v. Pommier

496 A.2d 975, 5 Conn. App. 29, 1985 Conn. App. LEXIS 1096
CourtConnecticut Appellate Court
DecidedAugust 20, 1985
Docket2774
StatusPublished
Cited by23 cases

This text of 496 A.2d 975 (Campbell v. Pommier) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Pommier, 496 A.2d 975, 5 Conn. App. 29, 1985 Conn. App. LEXIS 1096 (Colo. Ct. App. 1985).

Opinion

Hull, J.

This appeal1 arises out of the trial court’s judgment rendered upon a jury verdict for the defendants, directed by the court. In addition, the plaintiff appeals several of the trial court’s evidentiary rulings. We find error in part.

On September 5,1974, the plaintiff, Axel Campbell, visited the office of the defendant Charles Pommier2 for a dental checkup. During the course of his visit, Campbell underwent four bite wing x-rays administered [31]*31by the defendant Elaine Byron, Pommier’s dental hygienist. There is a dispute over precisely what thereafter occurred. Campbell’s complaint alleges, in three counts, that due to either (1) the negligence of Byron and Pommier, (2) negligence in maintaining the x-ray machine, or (3) the wilful acts of Byron, he suffered excessive doses of x-ray radiation which caused him injuries including tissue damage, eye pain, photophobia, headaches and accompanying emotional distress and inability to work.

After a trial during which a great deal of the plaintiff’s evidence was successfully objected to by the defendants, the defendants moved for a directed verdict. The motion was granted by the court which concluded (1) that there was no evidence of intent on the part of Byron, (2) that there was no evidence of any defect in the x-ray machine caused by insufficient maintenance, and (3) that, with respect to the negligence claims, there was no evidence of either a violation of the requisite standard of care or a causal relationship between such a violation and the plaintiff’s injuries. From the judgment rendered after the denial of his motion to set aside the directed verdict, the plaintiff filed the present appeal. We conclude that the court erred in directing a verdict for the defendants on the first count.

I

“A directed verdict is not favored but is justified if, on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed.” Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984); Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984). “On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Johnson v. Consolidated, Industries, [32]*32Inc., 153 Conn. 522, 524, 218 A.2d 380 (1966); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470 A.2d 705 (1984).” Kegel v. McNeely, supra.

In the present case, although the briefs and oral argument focused primarily on the negligence claims, the directed verdict encompassed all three counts of the complaint and we must review each of them separately.

A

The Plaintiffs Allegations of Negligence on the Part of Byron and Pommier

The defendants conceded at oral argument that there was “a lot of testimony” on the issue of what the appropriate standard of care was with respect to the taking of bite wing x-rays. It is only with respect to proof of breach of that standard and proximate cause that the parties disagree.

In Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony. Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887 (1975); Ardoline v. Keegan, 140 Conn. 552, 558, 102 A.2d 352 (1954). We conclude that expert testimony was presented on both of these issues.

Allan Reiskin, a professor of radiology of the school of dental medicine at the University of Connecticut, testified that the standard of care with regard to the taking of x-rays, as advocated by the American Dental Association, “would be to keep the exposure as low as possible, which would include factors, such as keeping the x-ray field as small as possible, which is usually done by having . . . the source as close to the object as possible.” Reiskin then went on to testify, on the basis of an arc of unexposed film on one of the x-rays caused by a “cone cut,” that the machine used in this case was “approximately fourteen inches” from [33]*33Campbell’s cheek,3 and he testified that taking the x-ray at a distance away from the cheek would violate the standard of care.

Related to that testimony was the testimony of Arthur Heubner, director of radiation control for the state department of environmental protection, that, if placed at the cheek, the machine would irradiate an area of 5.5 inches in diameter while at fourteen inches from the cheek, the machine would irradiate an area of 8.25 inches in diameter. This evidence clearly was sufficient to enable the jury to conclude that the x-ray machine was, in fact, farther from Campbell than was proper, and that, if the machine was, in fact, fourteen inches from Campbell’s face, his eyes could have been within its field and hence his injuries could have been caused by it.

Further, the testimony was clearly sufficient to enable the jury to infer that the x-ray exposure lasted longer than the standard allowed. Reiskin testified that the exposure should be "as low as possible.” Byron testified that from three-quarters of a second to one second was the usual exposure and Campbell testified that he heard buzzing sounds ranging between four and fifteen seconds. This, coupled with Byron’s testimony and that of Heubner regarding the noise made by the machine while it was activated, brought the issue within the jury’s power to decide.

With regard to the issue of proximate cause, David H. Fogel, a privately practicing physician, testified that he treated Campbell on several occasions after his visit to Pommier. He further testified that his conclusion after treating Campbell was that Campbell’s injuries were caused by x-ray radiation. From this, he concluded [34]*34that the x-rays at issue in this case caused the injuries because “[t]he only history that I obtained from the patient was the sole x-ray exposure that he had from the dental x-ray machine.” Thus, not only was there expert testimony regarding whether x-rays caused Campbell’s injuries, but that, as far as Fogel could tell, the x-rays in question caused those injuries.

We note, with regard to all of the evidence referred to above, that it was far from compelling. Nor was it uncontroverted. That does not, however, nullify the fact that it could have been believed and that, if believed, it would have supported a jury verdict in favor of the plaintiff on the first count. “A party has the same right to submit a weak case as he has to submit a strong one.” Strickland v. Vescovi, 3 Conn. App. 10, 16, 484 A.2d 460 (1984).

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Bluebook (online)
496 A.2d 975, 5 Conn. App. 29, 1985 Conn. App. LEXIS 1096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-pommier-connappct-1985.