This appeal
On September 5,1974, the plaintiff, Axel Campbell, visited the office of the defendant Charles Pommier
After a trial during which a great deal of the plaintiff’s evidence was successfully objected to by the defеndants, the defendants moved for a directed verdict. The motion was granted by the court which concluded (1) that there was no evidence of intent on the part of Byron, (2) that there was no evidence of any defect in the x-ray machine caused by insufficient maintenance, and (3) that, with respect to the negligence clаims, there was no evidence of either a violation of the requisite standard of care or a causal relationship between such a violation and the plaintiff’s injuries. From the judgment rendered after the denial of his motion to set aside the directed verdict, the plaintiff filed the present appeal. We conсlude that the court erred in directing a verdict for the defendants on the first count.
I
“A directed verdict is not favored but is justified if, on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed.” Kegel v. McNeely,
In the present case, although the briefs and oral argument focused primarily on the negligence claims, the directed verdict encompassed all three counts of the complaint and we must review each оf them separately.
A
The Plaintiffs Allegations of Negligence on the Part of Byron and Pommier
The defendants conceded at oral argument that there was “a lot of testimony” on the issue of what the appropriate standard of care was with respect to the taking of bite wing x-rays. It is only with respect to proof of breach of that standard and proximate cause that the parties disagree.
In Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony. Grody v. Tulin,
Allan Reiskin, a professor of radiology of the school of dental medicine at the University of Connecticut, testified that the standard of care with regard to the taking of x-rays, as advocated by the American Dental Association, “would be to keep the exposure as low as possible, which would include factors, such as keeping the x-ray field as small as possible, which is usually done by having . . . the source as close to the object as possible.” Reiskin then went on to testify, on the basis of an arc of unexposed film on one of the x-rays caused by a “cone cut,” that the machine used in this case was “approximately fourteen inches” from
Related to that testimony was the testimony of Arthur Heubner, director of radiation control for the state department of environmental protection, that, if placed at the cheek, the machine would irradiate an area of 5.5 inchеs in diameter while at fourteen inches from the cheek, the machine would irradiate an area of 8.25 inches in diameter. This evidence clearly was sufficient to enable the jury to conclude that the x-ray machine was, in fact, farther from Campbell than was proper, and that, if the machine was, in fact, fourteen inchеs from Campbell’s face, his eyes could have been within its field and hence his injuries could have been caused by it.
Further, the testimony was clearly sufficient to enable the jury to infer that the x-ray exposure lasted longer than the standard allowed. Reiskin testified that the exposure should be "as low as possible.” Byron testified that from thrеe-quarters of a second to one second was the usual exposure and Campbell testified that he heard buzzing sounds ranging between four and fifteen seconds. This, coupled with Byron’s testimony and that of Heubner regarding the noise made by the machine while it was activated, brought the issue within the jury’s power to decide.
With regard to the issue of proximate cause, David H. Fogel, a privately practicing physician, testified that he treated Campbell on several occasions after his visit to Pommier. He further testified that his conclusion after treating Campbell was that Campbell’s injuries were caused by x-ray radiation. From this, he concluded
We notе, with regard to all of the evidence referred to above, that it was far from compelling. Nor was it uncontroverted. That does not, however, nullify the fact that it could have been believed and that, if believed, it would have supported a jury verdict in favor of the plaintiff on the first count. “A party has the same right to submit a weak case as he has to submit a strong one.” Strickland v. Vescovi,
B
The Plaintiff’s Allegations of Negligent Failure to Maintain the Machine
The plaintiff testified that he heard buzzing or humming sounds coming from the x-ray machine for periods of four to eight seconds and twelve to fifteen seconds. In one case, the sound was interrupted a number of times. While he was not allowed to testify that these sounds were actually caused by operation of the machine, both Byron and Heubner did testify that operation of the machine caused such sounds to emаnate from its head. This evidence, coupled with Byron’s testimony, referred to earlier, that she set the time on the machine for three-quarters of a second or one second, clearly presented enough evidence to the jury from which it could infer that the actual exposure time did not conform to the time which wаs set by Byron on the timer.
C
The Plaintiffs Allegations that Byron Acted Wilfully
Byron testified, at trial, to the effect that she usually placed the cone of the x-ray machine at or near the cheek of her patient and that, depending on the region of the mouth to be x-rayed, the proper exposure time was from three-quarters of a second to one second. Byron also testified that, as to the plaintiff, she did not remember аny deviation from her usual procedure. The plaintiff asserts that sufficient proof of wilfulness to submit the question to the jury is found in the following inconsistencies in the evidence: (1) Byron’s testimony regarding her usual procedures and her testimony that she did not remember any deviation therefrom in this case; (2) her conflicting deposition testimony regаrding the distance between the x-ray machine and Campbell’s face; (3) her further conflicting answers on this issue in her responses to the plaintiff’s interrogatories; and (4) Reiskin’s conflicting trial testimony regarding his estimation of the distance between the x-ray machine and the plaintiff. We disagree.
Even if all of the conflicting evidence is tаken in the light most favorable to the plaintiff, it contains no infer
II
The plaintiff also raises eight claims of error with regard to evidentiary rulings made by the trial court. We concludе that, with the exception of three of these claims, they are without merit as the court’s rulings were within the bounds of its discretion in such matters. Hardisty v. Hardisty,
A
The Court’s Refusal to Allow Diagnosis Testimony Regarding a Mental Condition From Other Than a Board-Certified Psychiatrist
The рlaintiff presented two witnesses to testify regarding his mental condition. The first of these was Kermit Shulman, a licensed clinical psychologist who tested and treated the plaintiff from April, 1977, to trial. Shulman has a masters degree in psychology from Columbia University and has done advanced studies in clinical psychology at Washington School of Psychiatry and in psychoanalysis at the New York Psychiatrics Institute. He has further studied at both the Theodore Wright Clinic and Bellevue Hospital in New York.
“The true test for the admissibility of expert testimony is ‘whether the witnesses offered as еxperts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.’ ” Schomer v. Shilepsky,
Clearly there is a distinction between psychologists and psychiatrists, and that distinction should be made clear to a jury. The distinction, however, dоes not make one an expert and the other not an expert. In fact, psychologists have in the past been recognized as expert witnesses. See Stale v. Toste,
The second expert presented by the plaintiff was David Danzer. Danzer is a graduate of the medical
Danzer testified that he saw the plaintiff in what was essentially a social setting during the period just after the plaintiff’s visit to the defendants. He, on one оccasion, inspected the injuries to the plaintiff’s tongue and testified as to what he saw although that was not a formal inspection for diagnostic purposes. The court refused to allow Danzer to testify as to the plaintiff’s psychiatric condition, concluding that “[h]e can tell about the personality he took, and thе tests that he took, and what he found as a result of the test and he did, but we refuse to allow him to give a psychiatric opinion.”
As with Shulman’s testimony, we conclude that the court erred in failing to qualify Danzer as an expert. Although the transcript of his testimony reveals that he had very little substantive evidence to provide to the court and that his credentials were skimpy in the psychiatric field, such matters affect the weight of his testimony, not his expertise in and of itself. Thus, the court erred in failing to allow Danzer to testify as to his diagnosis, from his meetings with the plaintiff, of the plaintiff’s psychiatric state at that time.
B
The Court’s Refusal to Allow Testimony With Regard to Machine Malfunction Prior to Testimony as to the Cause of the Plaintiff’s Injuries
It is within the discretion of the trial court to control the order of the testimony. State v. McCall,
Finally, the plaintiff claims that the court erred in denying his motion for mistrial on the ground of the court’s expressions “including facial and physical actions,” and in denying his motiоn to set aside the directed verdict. Our conclusion in part I of this opinion renders further discussion of these claims unnecessary.
There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that a new trial is ordered with respect to count one of the plaintiff’s complaint.
In this opinion the other judges concurred.
Notes
This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).
On January 14,1980, Pommier died and the co-executors of his estate were thereafter substituted herein as parties.
In substance, this calculation was made by computing the diameter of the exposure area from thе arc on the film. From that diameter it is then possible to compute the distance between the machine and the subject.
Although the plaintiff’s preliminary statement of issues refers to two separate claims of error at this point, his argument consolidates them. Hence, the two remaining claims of error in the court’s evidentiary rulings are consolidated here.