64 Conn. App. 359 | Conn. App. Ct. | 2001
Opinion
The plaintiff, Elizabeth Mojica, appeals from the judgment of the trial court rendered after it denied her motion to set aside the jury’s verdict for the defendants, Carol Pulliam, Joyce Benjamin and Donald Benjamin. The plaintiff commenced this action against the defendants to recover damages for personal injuries she sustained in an automobile accident. On appeal, the plaintiff contends that (1) the verdict was against
The jury reasonably could have found the following facts. The plaintiff was a passenger in Pulliam’s vehicle as Pulliam proceeded along Poplar Street in Bridgeport near its intersection with Maplewood Avenue. At about the same time, a vehicle that was being driven by Joyce Benjamin was exiting from a driveway along Poplar Street. Pulliam was traveling at approximately fifteen miles per hour when Joyce Benjamin’s vehicle, exiting from the driveway, struck Pulliam’s vehicle on the passenger side. Vehicles were parked on Poplar Street that impeded the view of drivers proceeding along the street and exiting driveways along the street. As a result of the collision, the plaintiff suffered injuries.
The plaintiff thereafter brought this action against the defendants on the theory of negligent operation of a motor vehicle.
Turning to the plaintiffs claims on appeal, we first note that we review the court’s denial of a motion to set aside the verdict under an abuse of discretion standard. The court is vested with wide discretion in such
I
The plaintiff first claims that the verdict in favor of the defendants was against the weight of the evidence. We disagree.
On the basis of our review of the record, we conclude that a reasonable jury could have found that Pulliam did not act negligently in the operation of her vehicle. Pulliam was operating her vehicle at fifteen miles per hour, a speed that the jury reasonably could have found not unreasonably fast. The evidence further showed that Joyce Benjamin’s vehicle struck Pulham’s vehicle as Joyce Benjamin was entering the street from a driveway. From such evidence, the jury reasonably could have concluded that Pulliam kept her vehicle under control. The jury also could have found that Pulliam kept a proper lookout because there was evidence that parked vehicles were obstructing the view of drivers proceeding along Poplar Street. From that evidence, the jury reasonably could have inferred that the view of even the most vigilant driver would have been obscured to the extent that a vehicle entering the street from a driveway could not be seen. Similarly, the jury could have found that Pulliam was not negligent in
Our review of the record also leads us to conclude that a reasonable jury could have found that Joyce Benjamin was not negligent in the operation of her vehicle.
The fact that a collision occurred did not require the jury to find that one or both drivers were negligent. The court, which had heard all of the testimonial evidence at trial, found in its memorandum of decision on the plaintiffs motion to set aside the verdict that the jury,
II
The plaintiff next claims that the court improperly admitted into evidence several medical reports by Donald S. Dworken, an orthopedic surgeon, who previously had treated the plaintiff. The plaintiff had sustained personal injuries in an accident in 1990 for which she brought an action after consulting Dworken. In that action, she claimed injuries to her neck and back, for which Dworken assigned a 7 to 8 percent permanent partial disability of the cervical spine, 7 percent permanent partial disability of the right shoulder and a 4 to 5 percent permanent partial disability of the lower back. The plaintiff contends that the medical reports were improperly admitted into evidence because the defendants had failed to disclose Dworken as an expert witness pursuant to Practice Book § 13-4 (4).
“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 641, 777 A.2d 745 (2001).
Prior to trial, the defendants submitted standard discovery requests to the plaintiff that included, inter alia, a request for any medical reports by any health care providers who may have treated the plaintiff in the ten years preceding the alleged accident for any conditions that were in any way similar or related to the complained of injuries in the present action. The defendants’ request for production also requested written authorization from the plaintiff to copy, photograph or otherwise reproduce her medical records that were related to her claimed injuries and any injuries similar to those claimed in the action.
In a supplemental response to the defendants’ request, the plaintiff responded, in part, that Dworken had treated her for injuries suffered in an automobile accident in 1990. The plaintiff also provided Dworken’s treatment “notes,” but not any “reports.” The defendants thereafter subpoenaed Dworken’s treatment file of the plaintiff and, just days before trial, discovered the medical reports at issue in this appeal. Anticipating that the defendants would attempt to admit those reports, the plaintiff filed a motion in limine to preclude
In its memorandum of decision denying the plaintiffs motion to set aside the verdict, the court found that “[c]ounsel for the plaintiff was unaware of those reports, as were the defendants, until the trial was in progress. Under such circumstances, the defendants cannot be faulted for failing to advise the plaintiff that they intended to utilize those medical reports when it was the plaintiffs obligation to provide those medical reports in the first instance and which was not done.” The court thereafter denied the plaintiffs motion.
At trial, the plaintiff renewed her objection to the admissibility of the medical reports and treatment notes. The court sustained the objection as to the notes, but overruled her objection as to the reports. The court reasoned that had the plaintiff complied with the defendants’ request for production asking for all medical reports, the defendants would have been in a position to disclose such information. As matters stood, however, because of the plaintiffs failure to comply fully with the defendants’ request, the defendants learned of Dworken’s medical reports only days before trial and only after the defendants had subpoenaed Dworken’s complete treatment file of the plaintiff.
We cannot say that under the circumstances, the court abused its discretion in admitting the medical records into evidence. See Ormsby v. Frankel, 255 Conn. 670, 675, 768 A.2d 441 (2001) (ruling on evidentiary matters will be overturned on appeal only where there is evidence of clear abuse of discretion). It was the plaintiffs failure to deliver to the defendants an authorization to release medical records in Dworken’s possession, including the medical reports at issue, cou
The plaintiff cannot reasonably claim on appeal that the defendants’ untimely disclosure caused her to suffer prejudice when she substantially contributed to the complained of delay. Our conclusion is further buttressed by the admission of the plaintiffs counsel that the plaintiff was required to disclose Dworken’s medical reports pursuant to the defendants’ standard production request and, yet, did not do so because counsel’s letter to Dworken merely requested his “treatment notes.” See Collens v.New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967) (relevant, material admissions by counsel admissible against client). Discovery is an equitable procedure rather than a common-law procedure; Lieberman v. Reliable Refuse Co., 212 Conn. 661, 672, 563 A.2d 1013 (1989); and should be guided by the old equitable maxim that a loss ought to fall on the person who caused it. Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn. App. 94, 104, 644 A.2d 933 (1994). We therefore conclude that under the circumstances of this case, the court properly allowed the defendants to submit Dworken’s medical reports into evidence.
Ill
Finally, we address the plaintiffs claim that the court should have given the jury her requested instruction that the defendants had to take the plaintiff as they found her, an instruction commonly referred to as “the eggshell plaintiff’ charge.
The court did not charge the jury as requested, but rather provided the following relevant instruction: “[There has] also been evidence with respect to some [spinal] stenosis and opinions expressed to that with respect to the doctor as to where it came from. The plaintiff is entitled to reasonable — fair, just and reasonable compensation for any injuries if they were caused by the negligence of the defendants, even though the injury, or the effects thereof, might be more serious because of the plaintiffs background; thus, if you find any negligence on the part of any defendant is a substantial factor in producing the injuries to the plaintiff, the plaintiff would be entitled to compensation for those injuries. If you find that any negligence on the part of the defendants was not a substantial factor in producing any such injuries, the plaintiff would not be entitled to compensation for any such injuries.”
As with the evidence in the record, the closing argument of the plaintiffs counsel was consistent with the
Our law regarding the giving of an eggshell instruction was epigrammatically summed up in Olkowski v. Dew, 48 Conn. App. 864, 868, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998), wherein Judge Dupont, writing for the court, stated: “In this case, the plaintiffs concede that the aggravation of a preexisting injury was not a theory of the amended complaint, but rely on the case of Bruneau v. Quick, 187 Conn. 617, 633, 447 A.2d 742 (1982), in support of the position that they were entitled to the preexisting injury charge despite the fact that the aggravation of a preexisting injury was not a theory of the case. In Bruneau, the defendant claimed that the trial court improperly provided the jury with a preexisting injury or ‘take the plaintiff as you find him’ charge because the aggravation of a preexisting injury was not a theory of the plaintiffs case and there had been ‘ “absolutely no testimony which suggested that this condition . . . had been aggravated.” . . .’ Id. In Bruneau, the trial court determined and our Supreme Court affirmed that there was, in fact, evidence from which the jury reasonably ‘ “could find or infer that the effect on this particular [p]laintiff of some of the claimed injuries may be different in degree because she had a [preexisting] condition than if she didn’t.” ’ Id., 634.” Olkowski v. Dew, supra, 868-69.
The judgment is affirmed.
In this opinion the other judges concurred.
We note that the plaintiff brought this action against Donald Beryamin as the owner of the vehicle that was driven by Joyce Benjamin.
In light of our conclusion that there was sufficient evidence for the jury to decide, as it did, that Joyce Beiyamin was not negligent in the operation of her vehicle, we further conclude that the jury properly determined that Donald Benjamin, as the owner of Joyce Benjamin’s vehicle, was not liable for the plaintiffs injuries.
Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly
The plaintiff requested the following' charge: “The plaintiff is entitled to recover full and complete compensation for all her injuries and damage, and the effects caused by or proximately resulting from the Defendants’ neglect. This is so even though her injuries and effects thereof were more severe and serious and were prolonged permanently or longer than would
“In other words, the Defendants take the Plaintiff as they find her. The Defendants are chargeable with all the results of the injuries proximately caused by their neglect or flowing from their negligence and the Defendants cannot now excuse these results by saying that the Plaintiff had a preexisting condition which would make her suffer more and longer or cause her to be more severely injured.” (Citations omitted.)
On direct, examination by her attorney, the plaintiff testified in relevant part:
“Q. Ms. Mojica, prior to this accident, did you ever injure your neck or back, prior to May 22, 1993?
“A. Yes.
“Q. All right. When was that?
•‘A. In 1990.
“Q. And what caused the injury to your neck and back?
“A. An accident.
“Q. What type of accident?
“A. A car accident.
* ** *
“Q. You obviously have experienced the injury from the 1990 incident and 1993; are they different?
“A. Yes, they are.
“Q. And how are they different, Ms. Mojica?
“A. Dr. Dworken was treating me for my shoulders and once in awhile when I had a headache.
“Q. All right. Did he also treat you for your back and neck, though?
“A. A little bit; and I believe the top part of my back.
“Q. All right.”
The plaintiff then explained how her injuries sustained in the May 22, 1993 accident, the subject of the present action, differed from those sustained in the 1990 accident:
“A. I have more — I have damage to my lower back, all right? And with the headaches, that’s injuries to my neck, which is worse than what I had with Dworken. Dworken was just my shoulder; he treated my shoulders mostly. And I had a cortisone shot in my right shoulder.
“Q. All right. Okay, so he treated mostly your shoulder, you indicate, right?
“Q. But he did treat your neck and back some also, Dr. Dworken?
“A. Right, yes; mm-hmm.
“Q. All right. On the date that you were involved in the injury on May 22, 1993, did you have any type of pain or did you feel any type of symptoms from your injury of 1990?
“A. I had lots of pain and my body was different.
* ** *
“Q. Okay. But, no; I guess what I’m asking is, on the date of this — in May of 1993, okay, did you have any pain from your old injury of 1990?
“A. No.
“Q. Okay. Had you recovered from that?
“A. Yes. Yes.”
On cross-examination by the defendants’ attorney, the plaintiff further testified in relevant part:
“Q. Ms. Mojica, you testified earlier that you have no problems with your neck and back before this accident in 1993; is that right?
“A. Right.
“Q. But you did have a prior motor vehicle accident in 1990?
“A. Yes, I did. . . .
“Q. Okay. And Dr. Dworken’s reports . . . [indicate] that he treated you for your neck, back and shoulders.
“A. Right.
“Q. Okay. And isn’t it true at that time you already have problems with sitting, squatting and bending, kneeling?
“A. Not that much.
“Q. Okay. Well did you have a permanent injury from the 1990 accident?
“A. Not that I know of, no.
* * *
“Q. Did you ever tell Dr. [Paul] Carpenter about the prior accident that you were involved in?
“A. No, I didn’t at the time, no.
“Q. Well, did you ever tell him?
“A. I think probably later I told him, but I was so sick when I went to see him, I didn’t even think about my other one.
* * *
“Q. You didn’t think you had any permanent injury in the 1990 accident?
“A. No.”