Rosenberg v. Castaneda

662 A.2d 1308, 38 Conn. App. 628, 1995 Conn. App. LEXIS 352
CourtConnecticut Appellate Court
DecidedAugust 1, 1995
Docket13213
StatusPublished
Cited by9 cases

This text of 662 A.2d 1308 (Rosenberg v. Castaneda) 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
Rosenberg v. Castaneda, 662 A.2d 1308, 38 Conn. App. 628, 1995 Conn. App. LEXIS 352 (Colo. Ct. App. 1995).

Opinion

O’Connell, J.

The plaintiff was injured in a fall on the defendants’ property. The defendants1 appeal from the judgment for the plaintiff rendered after a trial to the court. They claim that (1) the evidence did not support an award of damages to the plaintiff and (2) even if damages were warranted, the amount awarded was excessive.

The plaintiff cross appealed, claiming that the trial court improperly allowed the defendants untimely to amend their answer to include a special defense of con-[630]*630tributary negligence. We reverse the judgment on the defendants’ appeal and affirm the trial court’s action on the plaintiff’s cross appeal.

The court could reasonably have found the following facts. The defendants own a three-family residence in Bristol. The plaintiff, a salesman, was calling on a tenant in the defendants’ building when he slipped on ice-covered steps.

I

We consider the second claim first because it is dis-positive of the appeal. The defendants argue that, even if a judgment against them were warranted, the trial court awarded excessive damages because it relied on improperly admitted evidence in finding that the plaintiff sustained permanent partial disability. The genesis of the issue is a signed medical report from Steven Selden, an orthopedist, in which he expressed his opinion that the plaintiff had sustained a 30 percent permanent partial impairment of the right shoulder. No other evidence of the degree of any permanent partial disability was introduced, and the trial court expressly found that the plaintiff had sustained a 30 percent permanent partial impairment of his right shoulder.

The defendants argue that Selden’s report should not have been admitted into evidence because of the plaintiff’s failure to comply with Practice Book § 220 (D). Section 220 (D) mandates that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such [631]*631expert shall not testify except in the discretion of the court for good cause shown.”

Because § 220 (D) refers to “experts,” we turn first to the question of whether Selden, as a treating physician, comes within the ambit of the rule. This is not a question of first impression. We have held on several occasions that the disclosure requirements of § 220 (D) apply to treating physicians as well as to independent experts. Gemme v. Goldberg, 31 Conn. App. 527, 535, 626 A.2d 318 (1993); Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 509, 604 A.2d 359, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992); Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500, 602 A.2d 1040 (1992).

The plaintiff argues that because his medical evidence was submitted by way of a written report, rather than through a live expert witness on the witness stand, § 220 (D) does not apply. He claims that the medical report was not medical testimony but was a business entry and thus admissible under General Statutes § 52-174 (b).2 He argues that the statute supersedes the rules of practice insofar as medical reports are concerned. We do not agree.

The statute and the rule of practice serve two separate and distinct purposes. The difficulty and expense of getting physicians to come to court and testify is not unknown to most practitioners. Although live testimony is generally more effective than a written report, the latter is understandably superior to no medical evidence [632]*632whatsoever. The statute serves the purpose of getting medical evidence, which is otherwise admissible, before the jury in the absence of the treating physician. See River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 799, 595 A.2d 839 (1991). The plaintiff cites no authority, nor are we aware of any, that suggests that § 52-174 (b) was intended to exempt a party from any other prerequisites of admissibility.

On the other hand, § 220 (D) is intended to furnish a defendant with details of a plaintiffs medical claim to assist in the preparation of the defendant’s case. In this regard, we point out the requirement that the mandated material must be furnished sixty days from the date the case is claimed to the trial list. It is readily apparent that introducing a medical report at the time of trial is of no value to a defendant in preparation for trial. “The rules of discovery are designed to make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984).

The plaintiff also argues that Selden’s report was admissible because it was disclosed as part of an offer of proof for a prejudgment remedy. This contention ignores the holding in Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 506-508, 541 A.2d 893, cert. denied, 208 Conn. 812, 545 A.2d 1107 (1983), that merely supplying opposing counsel with an expert’s report does not satisfy § 220 (D).

Although the trial court may preclude a party from introducing expert testimony because of failure to comply with § 220 (D), such failure is not necessarily fatal. The trial court has discretion “for good cause shown” to allow expert testimony even when there has been [633]*633no § 220 (D) compliance. In the present case, the plaintiff claims that he had no duty to comply with § 220 (D), and, accordingly, made no effort to establish the required good cause on which the trial court could have exercised its discretion and allowed Selden’s report into evidence. In view of the complete absence of a showing of good cause, the trial court abused its discretion in admitting Selden’s report3 into evidence.

The plaintiff additionally argues that the defendants did not properly object to the reports at trial. He contends that it was necessary for the defendants to object to a specific portion of Selden’s report rather than to the entire report. This is a proper statement of the law in general, as it pertains to exclusion of parts of a record that is otherwise admissible. Struckman v. Burns, 205 Conn. 542, 556, 534 A.2d 888 (1987). That principle, however, is not applicable where, as in the present case, the report is a substitute for live testimony.

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Bluebook (online)
662 A.2d 1308, 38 Conn. App. 628, 1995 Conn. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-castaneda-connappct-1995.