DeMaria v. Bridgeport
339 Conn. 477
Conn.2021Background
- Plaintiff Victor DeMaria tripped on a city sidewalk, later developed persistent left hand pain/weakness and received ~2.5 years of treatment at a VA hospital.
- His treating provider, physician assistant Miriam Vitale, authored a “Final Report of Injury” in the medical file opining causation and permanency (neuropathy and reduced grip strength).
- VA regulation (38 C.F.R. § 14.808) effectively prevented Vitale from testifying; defendant City of Bridgeport moved to exclude Vitale’s treatment records and final report for lack of opportunity to cross-examine.
- The trial court admitted the records under Conn. Gen. Stat. § 52-174(b); jury returned a verdict for DeMaria; the Appellate Court reversed, relying on Rhode v. Milla.
- The Connecticut Supreme Court granted certification, held § 52-174(b) permits admission of treatment records made in the ordinary course of care even if the author cannot be cross-examined, and reversed the Appellate Court.
- The Court also found the defendant failed to show that Vitale’s final report was prepared exclusively for litigation, so admission was proper on the trial record presented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether medical/treatment records are admissible under § 52-174(b) when the author cannot be cross-examined | §52-174(b) allows business-entry admission of treating records; no absolute right to cross-examination for such records | Admission without opportunity to cross-examine violates defendant’s right to test evidence; Rhode requires cross-exam when author unavailable | Records prepared in ordinary course of diagnosis/treatment are admissible under §52-174(b) even if author unavailable; Rhode’s absolute-cross-exam reading disavowed |
| Whether a treating provider’s record that states expert opinions (causation/permanency) is inadmissible if prepared for litigation | Presence of expert opinion does not prove the record was created for litigation; still falls within ordinary treatment records | Final report contained expert causation/permanency opinions and therefore was prepared for litigation and required cross-examination | Court: defendant did not prove/report to trial court that report was prepared exclusively for litigation; mere presence of opinion does not make it non‑business record |
| Whether defendant’s procedural and preservation failures (and availability issues) barred its challenge | N/A (plaintiff) | City argued it lacked meaningful opportunity to secure Vitale’s testimony (VA rules) | Court declined to reach unraised exhaustion argument; found defendant did not preserve or present evidence that report was litigation‑prepared and therefore could not prevail on appeal |
Key Cases Cited
- Struckman v. Burns, 205 Conn. 542 (Conn. 1987) (medical records may be admitted as business entries without author testimony when prepared in ordinary course of treatment)
- Rhode v. Milla, 287 Conn. 731 (Conn. 2008) (interpreted to require cross‑examination where author unavailable; Supreme Court here narrowed/ disavowed that absolute reading)
- D'Amato v. Johnston, 140 Conn. 54 (Conn. 1953) (distinguishes records made in ordinary course of business from records prepared for litigation)
- Milliun v. New Milford Hosp., 310 Conn. 711 (Conn. 2013) (discussed admissibility of physician expert opinion under §52-174(b); cited in appellate decisions)
- Lopiano v. Lopiano, 247 Conn. 356 (Conn. 1998) (explains §52-174(b) purpose—to admit treating-provider evidence without cost/delay of testimony)
- Jenzack Partners, LLC v. Stoneridge Assocs., LLC, 334 Conn. 374 (Conn. 2020) (explains business‑records rationale: creators rely on records for business purposes, supporting trustworthiness)