Public Act 95-42, an Act Concerning Reports of Physical Therapists, amends §52-174 to add physical therapist to the list of experts and medical providers whose reports, bills and records may be admissible under certain circumstances.

Subsection (a) of §52-174 identifies the following medical providers: physician, dentist, chiropractor, osteopath, natureopath, podiatrist, psychologist, emergency medical technician, optometrist, and physical therapist. Subsection (a) also applies to professional engineers and land surveyors. The "reports and records" of these experts are admissible under this subsection if the expert has died, or has become physically or mentally disabled. The medical provider under this subsection does not have to be a treating provider.

Subsection (b) of 52-174 is applicable to treating medical providers and makes admissible signed reports and bills (not records). It now also applies to treating physical therapists.

Section 52-174 of the general statutes is repealed and the following is substituted in lieu thereof:

(a) In all actions for the recovery of damages for personal injuries or death, (1) if a physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, optometrist, professional engineer or land surveyor has died prior to the trial of the action, or (2) if a physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, optometrist, professional engineer or land surveyor is physically or mentally disabled at the time of the trial of the action to such an extent that he is no longer actively engaged in the practice of his profession, the party desiring to offer into evidence the written records and reports of the physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician or optometrist concerning the patient who suffered the injuries or death and the reports and scale drawings of the professional engineer or land surveyor concerning matter relevant to the circumstances under which the injuries or death was sustained shall apply to the court in which the action is pending for permission to introduce the evidence. Notice of the application shall be served on the adverse party in the same manner as any other pleading. The court to which the application is made shall determine whether the person is disabled to the extent that he cannot testify in person in the action. Upon the court finding that the person is so disabled, the matters shall be admissible in evidence as a business entry in accordance with the provisions of section 52-180 when offered by any party in the trial of this action.

(b) In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, any party offering in evidence a signed report and bill for treating of any treating physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, or optometrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, or optometrist and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, optometrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, or optometrist.

(c) This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, osteopath, natureopath, PHYSICAL THERAPIST, podiatrist, psychologist, emergency medical technician, or optometrist as a witness.

Under subsection (a) the party offering the record must show or do the following:

(a) Show that the expert died prior to trial, or is physically or mentally disabled at the time of trial to the point that he is no longer actively engaged in the practice of his profession. A certified copy of the death certificate, or appropriate medical evidence, and someone from the expert’s office or a family member will probably be necessary.

(b) File an application for permission to introduce the written records and reports of the expert, with notice to all adverse parties. The application should disclose the "records and reports" which are sought to be admitted.

(c) The court makes a finding that the person is dead or disabled to the extent that he cannot testify in person in the case.

(d) Upon this finding, the "written records and reports" become admissible as business entries. This requires a showing that the written records and reports were made at or about the time of the event reported, that it was the regular course of the business of the expert to make these records, and that the records in fact were made and kept in the regular course of business.

(e) The statute only applies to actions for the recovery of damages for personal injuries or death.

In order for reports and bills to be admissible under subsection (b), the offeror must prove the following:

(a) That the expert is a treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist.

(b) That the report is signed by the expert.

(c) That the bill is signed by the expert.

(d) If the report and bill are signed, admission of the documents as a business entry is automatic because it is presumed that the signature on the report is that of the treating expert and that the report and bill were made in the ordinary course of business.

The purpose of the presumption is to obviate the need for the treating expert, or someone from his or her office, to come to court to establish that the report is a business entry. All that is needed is a signed report and signed bill. The statute makes them admissible as business entries, and presumes that the signature on the report is that of the treating expert, and that the report and bill were made in the ordinary course of business

An unsigned report and bill do not come within §52-174(b).

Causal relation must be established by expert testimony, which must rest on more than surmise or conjecture. The trier is not concerned with possibilities but with reasonable probabilities. There are exceptions. These involve mental suffering and emotional distress; circumstances under which an inference of permanency may be made; complaints of pain and suffering after initial causation has been established; injuries within common knowledge; and possible consequences of a probable injury (loss of a chance cases).

Can a written report can satisfy the common law requirement of expert testimony to establish an injury? The answer is an emphatic "yes."

The court held that it was error to charge out of the case the plaintiff's claim for future medical expenses or surgery involving the nose injury. The court stated that an expert witness who was unwilling to state a conclusion with absolute certainty is competent to express an opinion in terms of the probable.

The defendant further argued that the opinions in the report submitted were not stated with the requisite standard of reasonable medical probability. In a report submitted by a Florida dentist, the opinion expressly stated that not all the disease found in the patient's teeth was due to the accident. A chiropractic report was also admitted which alluded to preexisting back difficulty, but stated that "I certainly believe that there is some permanent ligamentous damage in her back." 205 Conn. at 554.

The court expressly rejected the defendant's claim that the report must employ the "magic words" that the doctor's opinion is based on "reasonable probability." The court held that as long as it is clear from the report that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for the jury's consideration. 205 Conn. at 555.

Public Act 89-153 reversed the effect of this decision by amending §52-174(b) by providing that the use of any medical report in lieu of the testimony of the treating expert "shall not give rise to any adverse inference concerning the testimony or lack of testimony" of the treating expert.

On October 12, 1993 Carl Testo, Director of Legal Services in the Office of the Chief Court Administrator, and counsel to the Rules Committee, wrote to CTLA, CDLA, CBA Litigation Section and CBA Court Rules Advisory Committee requesting comment on several proposals which had been submitted to the Rules Committee. CTLA responded by letter dated January 19, 1994 and the CBA on January 25, 1994.

Based on these letters, Attorney Testo on February 25, 1994 again wrote to the CTLA, CBA and CDLA concerning discovery issues pending before the Superior Court Rules Committee. In that memo he requested on behalf of the Rules Committee that the attorney representing CTLA coordinate a meeting of representatives from interested Bar Association committees concerning resolution of the issues which had been raised, and further requested that a report be submitted to Judge Robert C. Leuba, Chief Administrative Judge of the Civil Division, and chair, at that time, of the Civil Rules Task Force.

A meeting was called with representatives of CTLA, CDLA, CBA Litigation Section, CBA Court Rules Advisory Committee, University of Connecticut Law School, Quinnipiac College Law School, CCDLA and the CBA Criminal Justice Section for Leon’s Restaurant March 29, 1994. The meeting was well attended, and a consensus was reached that §220(D) had to go. No consensus was reached on other matters. A follow-up meeting was held at Leon’s Restaurant in New Haven on June 23, 1994.

In the interim, the Civil Rules Task Force Subcommittee on Discovery, chaired by Judge George Thim, met on May 24, 1994. A report was made to the Task Force Subcommittee concerning the progress at the meeting in March, and the plans for another meeting in June. The problem was not getting rid of §220(D), but in substituting a workable rule. There had been considerable discussion to tie the disclosure of experts in to the status conference, usually held three to six months before trial. This was the practice in the larger counties, however it was clear that a rule utilizing the status conference as a disclosure of experts deadline would not work because the smaller counties did not utilize the same system as the larger counties. After much discussion, Judge Thim suggested the language "a reasonable time prior to trial."

At the June meeting and over the summer months two specific proposals developed: the "Task Force Proposal" and the "Ecker Proposal." CTLA endorsed the "Ecker Proposal." CDLA and Judge Hendel, a member of the Task Force Subcommittee, had reservations. The CBA Litigation Section had not yet met.

The Task Force again met on the afternoon of September 21, 1994, with representatives of CBA Litigation Section, CTLA, and CDLA in attendance. CDLA had a slightly different proposal. CTLA supported the CDLA modifications to the "Ecker proposal." At the Litigation Section meeting on the evening of September 21 the Section voted to support the "CDLA Proposal."

Since there was now agreement from CTLA, CDLA, and the CBA Litigation Section, the proposal was submitted to the Task Force Subcommittee as a joint proposal by CTLA, CDLA, and the CBA Litigation Section. This in turn was submitted by Judge Thim to Judge Leuba, who in turn submitted it to the Rules Committee. The Rules Committee endorsed the proposal, included it in the proposed amendments, and adopted it, effective October 1, 1995.

[All of the referenced letters and proposals referred to in this section can be found in the appendix to this article in the College of Evidence seminar materials. These letters and various proposals are not reproduced here].

The old rule required permission to obtain further discovery of the expert, beyond the interrogatories authorized in subsection (A)(1). This restriction was widely ignored and when invoked discovery was routinely approved. The amendment brings the rule up to date to reflect current practice.

As noted, the language "a reasonable time prior to trial" is Judge Thim’s suggestion. What constitutes a reasonable time will depend on the circumstances, and must of necessity be fact specific to each case.

(c) Subsection (D): Late disclosure.

The old rule provided that the expert "shall not testify except in the discretion of the court for good cause shown." The revised rule is a reflection of the case law that developed under the old rule.* The disclosure filed any time before trial is now timely unless, upon motion to preclude or in limine, the court determines that the disclosure is not filed a reasonable time prior to trial. If this determination is made, the expert cannot be precluded unless the court also finds that the participation of the expert will cause undue prejudice to the moving party, or will cause interference with the orderly progress of the trial of the case, or involves bad faith delay of disclosure by the disclosing party.

(d) 220(D): Disclosure when opinion becomes available.

The purpose of this provision is to prevent a party from withholding disclosure until the last minute. The concern of defense counsel, especially in malpractice and products cases, was that as soon as the new rule becomes effective plaintiff’s counsel would fail to disclose until the latest time that would be within a "reasonable time prior to trial." To meet this, this provision was adopted which requires the opinion to be disclosed when it is available. Note that it is drafted in terms of the duty of continuing disclosure based on interrogatory requests. If no interrogatories are filed, or the right questions are not asked, the defendants will run the risk of a borderline disclosure, made as late in the case as possible but still within a reasonable time before trial.

(e) 220(D): Experts disclosed within six months of trial.

Special provisions are made for experts disclosed six months or less from the trial date. Based on this the obvious argument will be that an expert disclosed six months or more prior to trial is a "reasonable time prior to trial."

The purpose of the provision is to permit the defendant to immediately depose an expert disclosed by plaintiff within six months of trial date. This is accomplished by placing the burden on the plaintiff to make the expert available within thirty days of the disclosure. Although the rule came about at the insistence of defense counsel, it certainly applies to the situation where the defendant discloses at the last minute. The problem encountered is in obtaining the availability of the expert for the deposition. Provision is also made for a responsive disclosure of expert on the same category of information, and if necessary the retention of a new expert to meet the late disclosed expert.

(f) 220(D): Joint trial management order.

If a joint trial management order has been agreed upon, the time frame may be somewhat different than what is provided in the rule. It was felt that the rule should recognize this possibility.

The plaintiff appealed, and the Appellate Court rejected the plaintiff’s claim that the expert was not "formally" retained until trial, holding that the claim of "formal" retention of the expert at the commencement of trial was a "tactical subterfuge," and upheld the trial court’s discretionary exclusion of the offered testimony on the basis of Practice Book §231. §231 provides various sanctions for failure to comply with interrogatories or other disclosures, or failure to answer them fairly.

(d) The failure to disclose expert as a fact witness is

not fatal.

On February 19, 1987 the trial court granted the defendant’s motion for summary judgment on the basis that the plaintiff lacked expert testimony as to the standard of care and proximate cause of the death.

But this is exactly what occurred on the trial. A very poorly reasoned decision. Defendant claimed work product excuse for not disclosing, but then used "work product" information on the trial, viz., the opinion of the expert that the cause of the fire was arson.

(k) Motion for continuance discretionary.

During jury selection on June 29, 1989, defendant advised for the first time, that she intended to call Dr. Robinson, a neurosurgeon, as his expert witness. On July 17, 1989, plaintiff moved in limine to preclude Dr. Robinson's testimony, which was granted by Judge Hodgson on the basis of Practice Book §220(D).

On appeal, defendant argued that it was not possible for her to comply with §220(D) as the pleadings in the case were closed and the case claimed to the trial list eight months before §220(D) became effective. The court noted that procedural statutes apply retrospectively, but will not be so applied if considerations of "good sense and justice" dictate that they should not be retrospective. The defendant did not, however, offer any explanation why she did not comply with the rule within the two years and nine months that lapsed between the effective date of §220(D) (10/1/86) and June 29, 1989.

Significantly, defense counsel conceded in oral argument before the Supreme Court that it was his firm's policy not to disclose "independent medical examinations" and it was a practice he had seen with other firms. The court characterized this as equivalent to a "willful disregard" of the rules of practice.

In affirming the trial court exercise of discretion precluding Dr. Robinson's testimony, the Supreme Court noted the misleading nature of the disclosure, and the fact that the plaintiff was lulled into thinking that the defendant did not intend to use Dr. Robinson as an expert. The court was also authorized by §231 of the Practice Book to preclude the defendant from calling Dr. Robinson as an expert because the interrogatory was answered in a manner calculated to mislead.

The issue of whether treating physicians and so-called "independent" examiners for insurance companies are the type of expert contemplated to be disclosed under §220(D) was discussed at 215 Conn. at 211 n. 6. The court noted in footnote 6 that "this issue lacks merit." The significance for plaintiff's attorneys is manifest: All treating doctors must be disclosed if their opinions are to be used on the trial, even though medical reports have been furnished.

Although the court characterized defense counsel's firm's practice of not disclosing medical experts as "willful disregard of the rules of practice," it is a common failing and is as prevalent among plaintiffs as defendants. The defendant had disclosed Dr. Robinson's report, and her counsel obviously felt that Dr. Robinson's testimony should have been permitted to the extent of the disclosure, especially in light of the fact that the plaintiff was first advised of the issue on June 29, 1989 and trial did not start until July 17, 1989, ample time for a deposition.

Plaintiffs argued on appeal: (1) The necessary foundation had not been laid to ask a hypothetical question. The testimony read was general in nature. The expert opinion of a witness may properly be based upon his personal knowledge of the subject matter without resort to a hypothetical question. (2) Defendant's reading of the deposition testimony violated Practice Book §220(D) requiring disclosure of an expert within 120 days from the day a case is claimed for the trial list. Cross-examination of a witness is not equivalent to calling the witness; the witness was a treating physician; when the plaintiffs called this witness as an expert through his deposition, they took the risk that other evidence contained in the deposition might be offered by the defendant; and §220(D) provides for admission of an undisclosed expert for good cause shown.

The trial court granted the defendant Orthodontist's motion in limine for an order precluding the plaintiff from offering any expert testimony against him, based on the plaintiff's failure to disclose expert witnesses pursuant to Practice Book §220(D). The trial court also granted defendant Surgeon's motion to preclude the testimony of certain experts. The jury rendered verdicts for the plaintiff against both defendants.

The Appellate Court reversed the judgment rendered against Orthodontist on the ground that no expert testimony could be used against him pursuant to the court's ruling on his motion in limine precluding all expert testimony. Since the plaintiff had to establish both the duty and the breach of that duty as to Orthodontist by expert testimony, the trial court should have granted his motion for a directed verdict. In contrast, the court upheld the verdict as to Surgeon because his motion in limine precluded testimony of only certain experts. The jury could have found, based on his own testimony, that he had violated the standard of care as to the plaintiff.

Plaintiff argued that the trial court failed to recognize a distinction between disclosing a physician as an expert and disclosing a treating physician who would provide expert opinion as well as factual evidence. On appeal the plaintiff asked the court to create a new hybrid factual expert category of witnesses "who could give expert testimony restricted to those matters about which the witness gave factual testimony." 35 Conn. App. at 158.

The Appellate Court found that §220(D) applied with equal force to treating physicians as to independent experts. The court further found that it was irrelevant that the plaintiff had provided opposing counsel with a copy of this treating physician's deposition testimony, which had been taken in a medical malpractice action based on the same facts as the present case.

The Appellate Court also found that §220(D) had not been complied with since no claim was made that the trial court had been asked to find good cause to except the treating physician's testimony from the rule. "Absent a good cause assessment by the trial court, we are unable to rule whether the trial court abused its discretion." 35 Conn. App. at 159.

Note that the new rule deletes the "good cause" requirement, substituting a specific finding of prejudice, delay, or bad faith.