Opinion
No. TTD CV-09-5004834 S
October 7, 2011
MEMORANDUM OF DECISION ON MOTION TO PRECLUDE (#110)
In this personal injury action stemming from a motor vehicle accident which allegedly occurred in October 2007, the defendant has moved to preclude the plaintiff from offering evidence at trial regarding a left knee tear or any need for future medical treatment on said knee tear, including surgery; and to preclude the plaintiff from offering any expert testimony at trial. The plaintiff filed an objection thereto (#119). On October 6, 2011, the court held a hearing on the motion at which the parties presented oral argument. The court has considered the parties' submissions and arguments.
The defendant argues that the plaintiff's knees previously were allegedly injured in a motor vehicle accident which occurred in 2006. In the plaintiff's Trial Management Conference Report, dated September 26, 2011, he has included exhibits concerning his medical condition, including: results of a June 16, 2008 MRI examination at Johnson Memorial Hospital (plaintiff's Exhibit 10); a record of an office visit on May 19, 2008 by Timothy A. Fignar, M.D. (plaintiff's Exhibit 11); and a September 22, 2008 letter from Dr. Fignar, addressed "To Whom It May Concern," concerning a medial meniscus tear (also part of plaintiff's Exhibit 11). The Trial Management Conference Report lists only the plaintiff as a trial witness. No expert witness is listed.
None of these documents contains an opinion from Dr. Fignor stating that the October 2007 motor vehicle accident caused the medial meniscus tear.
General Statutes § 52-174 governs the admissibility of medical records and reports as business entries. In Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987), the Supreme Court stated, "Section 52-174(b) in no way eliminates a plaintiff's burden of establishing the relevancy of the expert opinions expressed therein. To be entitled to damages a plaintiff must establish a causal relation 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 causal relation between an injury and its later physical effects may be established 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 upon a hypothetical question . . . Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation . . . To be reasonably probable, a conclusion must be more likely than not." (Internal quotation marks omitted; citations omitted.)
"Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person . . . An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life . . . Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff's evidence creates a probability so strong that a lay jury can form a reasonable belief . . . Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person." (Citations omitted; internal quotation marks omitted.) Sherman v. Bristol Hospital, Inc., 79 Conn.App. 78, 88-89, 828 A.2d 1260 (2003).
Evidence of causation of a meniscus tear and as to whether surgery would be needed to address it clearly involve the medical effect on the human system of the infliction of injuries, and are subjects which are generally not within the sphere of the common knowledge of the lay person. Here, an MRI was ordered to assess the plaintiff's condition. Interpretation of an MRI examination requires expertise which is beyond a lay person's knowledge.
Also, the situation here is not one in which the medical condition is obvious or common in everyday life. A meniscus tear contrasts with other conditions, such as pregnancy, which "is such a common condition that a woman may give her opinion that she herself is pregnant." State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967). See also, in contrast, Parker v. Supermarkets General Corp., 36 Conn.App. 647, 652 A.2d 1047 (1995), where the trial court instructed the jury that it could award damages for future pain and suffering without expert testimony if it inferred from the evidence that the fall caused an aggravation of the plaintiff's preexisting back condition that was permanent in nature. In contrast to the situation here, there "[t]he nature and the source of the injury was confirmed by a medical report from one of the plaintiff's physicians." (Footnote omitted.) Id., 648. Here, the plaintiff has not presented such a report.
Likewise, the evidence of a meniscus tear, shown on an MRI in June 2008, more than seven months after the alleged incident of October 2007, contrasts with Gannon v. Kresge Co., 114 Conn. 36, 37-38, 157 A. 541 (1931), which involved evidence of ingesting glass, a nervous condition and hysteria, hospitalizations, and a miscarriage, where the plaintiff previously had given birth to ten children without ever having a miscarriage. In Gannon, 114 Conn. 38, the Supreme Court stated, with regard to whether ingesting the glass caused the miscarriage, "There may be sets of circumstances, especially when no other cause than that claimed is suggested, sufficient to remove determination of the issue from the realm of conjecture without the aid of positive expert opinion and create a probability so strong as to induce and warrant a reasonable belief in an impartial mind . . . The evidence offered by the plaintiff . . . as to the sequence of events and circumstances, the relevant effect of hysteria, and her history as to absence of previous miscarriages, was not so clearly without effective significance . . ." as to require the court to remove the issue from the jury's consideration.
In addition, this case does not involve allegations of professional negligence, let alone allegations of professional negligence which is so gross as to be clear even to a lay person. Also, Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961), cited by the plaintiff, involved evidence of the absence of a proper or suitable porch railing which allegedly caused the plaintiff to fall, not evidence of causation of an internal injury, such as a meniscus tear. Similarly, the issue here differs substantially from that in Costin v. Bhandari Constructors Consultants, Inc., 285 F.Sup.2d 165 (D.Conn. 2003), a case concerning whether expert testimony was required to show the cause of an accident, not the injuries resulting therefrom. There, the plaintiff was injured when she was struck when one or more ceiling tiles fell on her when she was walking in the corridor of a building. See 285 F.Sup.2d 166. There, summary judgment was denied when the movant failed to show that causation of the accident was beyond the ordinary knowledge and experience of a jury. See 285 F.Sup.2d 172.
Further, evidence of causation of a meniscus tear is also far afield from that in State v. Smith, 273 Conn. 204, 211-16, 869 A.2d 171 (2005), where the court concluded that the harmful effects of orally ingesting crack cocaine are within the knowledge of a typical juror. It also differs materially from the situation in State v. Padua, 273 Conn. 138, 157, 869 A.2d 192 (2005), where the court concluded "that it was reasonable for the jury to infer, on the basis of its own common knowledge and experience, that the ingestion of raw marijuana would likely be harmful to the health of a child."
Therefore, as the Appellate Court reiterated more recently, in Peatie v. Wal-Mart Stores, Inc., 112 Conn.App. 8, 22, 961 A.2d 1016 (2009), in order to prove that the defendant's negligence caused the meniscus tear, the plaintiff would have to establish, through expert medical evidence, that on the basis of reasonable medical probability, there was a causal relation between the alleged injuries he suffered in the October 2007 accident and the alleged meniscus tear which was found in June 2008. In the absence of such medical evidence, the jury would be left to speculation, which is not permissible.
In the absence of medical evidence presented by the plaintiff which would support a finding that the meniscus tear was causally connected to the alleged negligence of the defendant, evidence of the meniscus tear, and any testimony concerning the menicus tear, must be excluded. See Budney v. Zalot, 168 Conn. 388, 389, 362 A.2d 861 (1975). Whether, after redaction, the exhibits discussed above would be admissible for another purpose, may be determined at trial.
Under these circumstances, the court need not determine whether Dr. Fignar's September 22, 2008 letter, discussed above, is a report of a treating physician which comes within § 52-174(b). Also, the defendant raised the issue of whether the letter is such a report in reply, at oral argument, without citation to authority. In the absence of law and analysis, the court need not consider this argument at this juncture. See Doe v. Rapoport, 80 Conn.App. 111, 119, 833 A.2d 926 (2003). Accordingly, the court also need not consider the plaintiff's sur-reply oral argument, that, in the event that the court concluded that the letter does not come within the statute for this reason, the plaintiff would like to call Dr. Fignar as a trial witness, to state that his correspondence was based on his review of the MRI.
This ruling also does not prevent the plaintiff from presenting evidence concerning the alleged unavailability of medical treatment due to lack of financial resources. Whether such testimony may be admissible also remains to be determined at trial.
Accordingly, the motion to preclude is granted. Plaintiff's counsel is instructed to advise the plaintiff to make no reference in his testimony to the meniscus tear. It is so ordered.