EDITORIAL

by William F. Gallagher

Brown v. Blauvelt

December 15, 1964 to August 24, 1999

R.I.P.

On August 24, 1999 the Supreme Court, in George v. Ericson, 250 Conn. 312, overruled Brown v. Blauvelt, 152 Conn. 271 (December 15, 1964). I was the lawyer who argued Brown v. Blauvelt in the Supreme Court on December 2, 1964. Let me tell you the story.

I had been practicing law on December 2, 1964 for just over a year. Although I had appeared in the Connecticut Supreme Court a few times before, I was particularly nervous and apprehensive about this case. Cyril Cole, my boss and trial counsel in Brown and a trial lawyer who was "master of all situations in the courtroom," as one judge described him to me, wanted me to argue the case – and win it. Cyril believed that the Darrigan rule, as it was then called, that statements made by a patient for treatment were admissible through the treating doctor, but inadmissible if the doctor was not treating, was utter nonsense and should be done away with once and for all. Cyril was particularly irritated with the way the ruling came about.

Dr. Frank Stafford Jones, a Hartford orthopedic surgeon, who examined the plaintiff Margaret Brown for the defendant, had given her a 10% permanent partial disability of the back. Plaintiff’s own treating orthopedic surgeon, Dr. Sidney McPhearson, also of Hartford, was of the opinion that the plaintiff would recover from her injuries. The plaintiff called Dr. Jones and the defendant called Dr. McPhearson. Each doctor testified concerning the history, examination, findings, results of other tests, and his opinion concerning causation and permanency, or the lack of it. The day after Dr. Jones testified the trial judge, Elmer Ryan, struck Dr. Jones’ testimony based on the Darrigan rule.

Judge Ryan, a highly regarded judge who later became a justice on the Supreme Court, stated that he had re-read the applicable case law overnight and believed that he had made an error in admitting Dr. Jones’ testimony, and was obliged to strike it. By then – the next morning – Cyril could not call Dr. Jones back, as Dr. Jones told him just before he went on the witness stand that he was leaving the next day for Bermuda. The case went to the jury, whose verdict of $3,000 was quite low, judged by standards in the early 1960s.

Besides being irritated at the manner in which the ruling had been made, it was the stupidity of the Darrigan rule that truly irked Cyril. Doctors based their opinions routinely on numerous sources, including their own physical examination, tests that they have administered, available medical records, x-rays, the results of tests of other physicians, and the statements that a party made during the course of the examination. If a plaintiff exaggerated to a defendant doctor, the exaggeration would be used on cross-examination by defense counsel. To exclude a non-treating physician’s opinion because the statements by the party being examined were unreliable was idiotic. Exaggeration, if it existed, supplied material for cross-examination. As Justice Borden put it in George v. Ericson, "grist for the mill of cross-examination." 250 Conn. at 323.

In preparing the brief I took a very cautious approach and first attempted to distinguish the Darrigan rule on the basis that Dr. Jones was not examining at the request of a plaintiff, but rather at the request of the defendant. Since no doctor-patient relationship existed, the rule was inapplicable. It was not a particularly persuasive argument and the court rejected it.

Our more important argument was that even under the Darrigan rule, the plaintiff’s history and complaints to Dr. Jones were nonetheless admissible because it did not matter the source of the doctor’s knowledge of the details upon which the opinion was based, the doctor could rely on hearsay, and the statements of the plaintiff to the doctor, although admissible, were not evidence of the truth of the matter asserted, but could come in only to explain the basis, or lack thereof, of the doctor’s opinion. Authority was cited based on Wigmore, a collection of cases in a law review article in the Southern California Law Review, and an ALR annotation exactly on point. The rule proposed was the same as existed then in California, and later became part of the Federal Rules of Evidence, Rule 703.

Needless to say, the argument did not go well. I remember to this day Chief Justice King observing that I was very close to advocating the abolition of the hearsay rule. The court wasted no time in making its decision. The decision came out two weeks later, on December 15, 1994 affirming Judge Ryan’s decision and the Darrigan rule, and causing untold mischief for the next 34 years and 8 months.

Although it is a pleasure to see the Brown v. Blauvelt rule (formerly the Darrigan rule) go down, there is a very puzzling part of the George decision that bears mention. The trial judge in George v. Ericson, Melville, J., had granted a motion of the defendant to preclude the plaintiff from calling the non-treating defendant physician as a witness. Justice Borden described the principal issue in the appeal as "whether the evidentiary rule barring the admission of the testimony of a non-treating physician, as previously articulated by this court in Brown v. Blauvelt, ... should be overruled." 250 Conn. at 313.

The problem I have is that Brown v. Blauvelt never held that the plaintiff was precluded from calling a defense doctor or any other non-treating doctor as a witness. In fact, plaintiffs have been doing this for the past 34 years routinely, and I myself have done it at least a half dozen times in the last three years, most recently in November 1998. The Brown case never stood for the proposition that the non-treating physician could not testify as a witness. It merely held that the statements of the plaintiff by way of history and complaints of pain were inadmissible if the testimony was offered by the plaintiff. The testimony, of course, if offered by the defendant would be admissible because the statements of the plaintiff would be admitted as admissions. But if offered by the plaintiff, they were hearsay because, under Brown, the guarantee of reliability did not exist because the statements were not made for the purpose of obtaining treatment. All the court really had to do in George was to hold the ruling precluding the non-treating physician from testifying as manifest error and remand the case with direction to let the doctor testify. The plaintiff could then present the doctor, qualify him as an expert, ask him if he conducted an examination, determine from the doctor what findings were made on the examination, determine what the doctor’s diagnosis was, and then present the doctor with a hypothetical question for the purpose of eliciting the doctor’s opinion with respect to causation and permanency.

The court stated, 250 Conn. at 319:

Not so! The court decides only those issues that it wants to, and it certainly reached out to get rid of Brown v. Blauvelt. I applaud the result, but am disappointed at the failure of the court to own up to what it was doing.

There are three other points that are worth noting. The first is that the court’s analysis on why Brown should be overruled is exemplary. In fact, the Brown court was mistaken when it noted that an expert’s opinion is inadmissible if it is based on hearsay evidence. The proposition was incorrect when it was stated in the Brown opinion, just as it is incorrect today. Moreover, the policy justification set out in Brown was correctly held to be absolutely without sound basis. Justice Borden correctly points out (250 Conn. at 322):

The second observation worth making is that most of us had the notion that Brown v. Blauvelt had been overruled sub silentio by In re Barbara J., 215 Conn. 31, 42-43 (1990). In that case the court held that the fact that an opinion is drawn from sources not in themselves admissible does not render the opinion inadmissible, provided the sources are fairly reliable and the witness has sufficient experience to evaluate the information. This is simply a statement of Federal Rule 703, which provides that an expert may base his opinion on facts or data not in evidence, provided they are of a type reasonably relied upon by experts in the particular field.

Third, as Cyril Cole from time to time would rail about, psychiatrists in criminal cases were routinely permitted to testify as to their opinion regardless of who set up the examination – the State or the defendant – and regardless of the fact that most of the statements made by the person being examined were not admitted in evidence. These opinions were admitted because psychiatrists routinely relied on statements made by patients in order to reach a diagnosis. This was the case in the early 1960s with respect to the admission of psychiatric testimony in criminal cases, just as it is today, as noted by Justice Borden in George, 250 Conn. at 325.

The Supreme Court should have bought my argument, nervously rendered on December 2, 1964. Indeed, the disposition we then proposed is exactly the result under George. We were urging that the statements had no probative value, but would be admitted not for the truth, but only to show the basis of a doctor’s opinion. Under George the statements in the future if admitted will not be substantive evidence. Conn. Code of Evidence §704(b).

In all, the decision is a tribute to the wisdom of a master trial lawyer, Cyril Cole, albeit 35 years late.