Date: 12-31-2013

Case Style: Leslie Milliun v. New Milford Hospital

Case Number: SC18845

Judge: McDonald

Court: Supreme Court of Connecticut

Plaintiff's Attorney: David S. Golub, with whom were Jonathan M. Levine
and, on the brief, Marilyn J. Ramos, for the appellee
(substitute plaintiff).

Defendant's Attorney: Michael G. Rigg, for the appellant (named
defendant).

Description: In the present case, we principally
examine the circumstances under which a treating physician’s
medical records can be admitted as expert evidence
of causation in a medical malpractice action. The
trial court rendered summary judgment in favor of the
defendant New Milford Hospital1 on the ground that the
plaintiff, Lynnia Milliun, the conservator of her sister,
Leslie Milliun (Leslie),2 had failed to offer the requisite
expert testimony to create an issue of material fact
regarding the defendant’s alleged negligence as the
proximate cause of Leslie’s injuries. The Appellate
Court reversed that judgment, rejecting the trial court’s
conclusions that: (1) certain medical records of Leslie’s
treating physicians were inadmissible as expert opinion
on causation because statements in the reports on that
matter were both hearsay and made by lay witnesses;
and (2) its order granting the plaintiff’s motion for the
appointment of a commission so that Leslie’s out-ofstate
treating physicians could be deposed should be
withdrawn because the physicians could not be compelled
to offer expert opinion on causation. Milliun v.
New Milford Hospital, 129 Conn. App. 81, 20 A.3d 36
(2011). Upon our grant of certification, the defendant
appeals from the Appellate Court’s judgment challenging
both of these determinations. We affirm the judgment
of the Appellate Court.
The Appellate Court’s opinion sets forth the following
undisputed factual and procedural history. ‘‘Prior to
[July, 2002, Leslie] had been a patient in the defendant’s
care in connection with the treatment of her stiff man
syndrome (SMS) [a rare, disabling neurological disorder
characterized by progressive, severe muscle stiffness
or rigidity as well as painful muscle spasms triggered
by sensory stimuli.3 From July 9, 2002 to July 14, 2002,
Leslie was admitted to the defendant for treatment relating
to that condition.] In her amended complaint, the
plaintiff alleged that, while in the defendant’s care, Leslie
suffered severe respiratory dysfunction, during
which time her rate of breathing was reduced to two
breaths per minute for a period of four minutes. As a
result of this anoxic4 incident, the plaintiff further
alleged, Leslie had suffered severe injury to her cognitive
functioning, including memory loss, loss of motor
function and speech impairment. The plaintiff claimed
that Leslie’s brain injury was caused by the defendant’s
negligence, namely, failure to monitor Leslie properly,
failure to respond to her respiratory dysfunction and
the administration of medication that is known to cause
respiratory dysfunction [when combined with other
medications such as Valium].
‘‘In April, 2003, prior to the commencement of this
action, Leslie had sought treatment at the Mayo Clinic
in Rochester, Minnesota, [seeking a second opinion
regarding her diagnosis of SMS and expressing concerns
about, inter alia, diminished cognitive function
since the previous July]. At the Mayo Clinic, she first
was seen by Kathleen M. McEvoy, a physician. McEvoy
reported that Leslie had brought extensive outside
records with her, along with an investigative report
from the department of health [state board] regarding
the anoxic incident that occurred while she was in
the care of the defendant. McEvoy’s admittance notes
indicated that the plaintiff also reported this event to
her. At that time, McEvoy reported in her evaluation
that Leslie was suffering from a severe neurological
disorder, and, although some manifestations suggested
SMS, ‘she obviously has additional deficits and involvement
that would not be expected with [SMS] alone.’
‘‘In February, 2005, Leslie returned to the Mayo Clinic
to address [concerns about her SMS and diminished
cognitive functioning following the July, 2002 hospitalization].
In her evaluation report, McEvoy stated her
impressions of Leslie’s condition as follows: ‘It is still
my clinical impression based on the temporal profile
of the onset of her symptoms, that [Leslie] has a primary
autoimmune disorder consistent with [SMS], which by
history was associated with dysarthria5 but no cognitive
impairment, along with a superimposed anoxic encephalopathy6
which developed by her report of July 10,
2002 . . . .’
‘‘McEvoy then referred Leslie to physicians Keith A.
Josephs and Stefan A. Dupont at the Mayo Clinic’s
behavioral neurology unit for the purpose of assessing
her cognitive functions. Upon his neurological examination,
Dupont, a resident at the Mayo Clinic [under
Josephs’ supervision], reported in his neurology consult
that her ‘cognitive dysfunction appears to be multidomain
in nature, and based on the recounted temporal
events, this all seems to have occurred because of
anoxic encephalopathy suffered during her respiratory
arrest in 2002.’
‘‘Josephs’ evaluation echoed Dupont’s conclusion. He
reported as follows: ‘It is my opinion that [Leslie’s]
cognitive impairment is secondary to whatever event
occurred or whatever transpired in 2002. The family
member tells me that there was anoxia and that there
was a change after that. Therefore, one must conclude
that her cognitive impairment was secondary to the
event that occurred in 2002. Arguing for this being the
process of her cognitive impairment also is the fact that
she has not had any significant progression since 2002.
The cognitive impairment in my opinion is not related
to the patient’s diagnosis [of SMS] and is not in keeping
with a neurodegenerative syndrome given the lack of
progression.’ Josephs went on to diagnose her as suffering
from ‘cognitive impairment (static encephalopathy
secondary to anoxic brain damage).’
‘‘In July, 2008, the plaintiff filed the underlying
amended complaint in which she alleged that the defendant
was negligent in its care and treatment of Leslie.
The court scheduled trial to commence on January 21,
2009, and the plaintiff was required to disclose all of
her expert witnesses by September 15, 2008. On that
date, the plaintiff disclosed nine expert witnesses, [five
of whom were Mayo Clinic physicians or neuropsychologists]
including McEvoy and Josephs. All [of the Mayo
Clinic providers] were identically disclosed on the
issues of causation and damages.
‘‘In November, 2008, the defendant filed a motion to
preclude the plaintiff from calling any of her expert
witnesses at trial, contending that she had failed to
make them available for depositions and, therefore, that
it would be prejudiced by having to conduct pretrial
discovery so close to the forthcoming trial date. At a
subsequent hearing before the court on the motion to
preclude, counsel for both parties indicated that they
were experiencing difficulty deposing the plaintiff’s
experts, as the Mayo Clinic had an internal policy that
limited the depositions of its treating physicians. In
response to the court’s concerns, the plaintiff represented
that none of the witnesses from the Mayo Clinic
had been retained as experts to be called at trial but
instead had been disclosed as experts for the purpose
of introducing their medical records. At the conclusion
of the hearing, the parties agreed to take the depositions
by teleconference, limited to questions concerning the
information contained in the treating physicians’ medical
reports.
‘‘On January 26, 2009, the court held a hearing on the
status of the depositions. At the hearing, the defendant
again expressed concern over not having had the opportunity
to depose all of the plaintiff’s experts. The court
thereafter stressed to the parties that the defendant
had the right to obtain the deposition testimony of any
treating physicians on whose medical reports the plaintiff
intended to rely at trial. The plaintiff then explained
that, because the witnesses were not within her control,
the most appropriate action would be to have a commission
appointed in order to compel the experts to attend
their depositions in Minnesota in accordance with General
Statutes § 52-148c.7 The following day, the plaintiff
filed a motion for the appointment of a commission to
summon by subpoena and to obtain the depositions of
the treating physicians [which the trial court granted].
‘‘On January 29, 2009, the parties reported back to
the court that no additional depositions for the plaintiff’s
Mayo Clinic witnesses had been taken. The defendant
thereafter repeated its request that, because of
undue prejudice and delay in the taking of their depositions,
the plaintiff should be precluded from relying on
the medical reports of the treating physicians on the
issue of causation. [The defendant further contended
that the depositions would be pointless because none
of the witnesses thus far deposed had offered opinions
that the defendant’s conduct had caused Leslie’s injuries.]
In response, the plaintiff asserted that the medical
records themselves were sufficient evidence to establish
the cause of Leslie’s cognitive impairments and, on
the court’s request, she identified the portions of the
medical reports [of both McEvoy and Josephs] that she
claimed contained adequate opinions on causation.
. . .
‘‘At that point, the court expressed concern over the
fact that [the physicians’] impressions appeared to be
based exclusively on the plaintiff’s and Leslie’s own
reports of the anoxic incident. After much discussion,
the court ruled that the Mayo Clinic records, without
any supporting testimony, were insufficient to establish
a proper foundation for expert medical opinion on causation
because they were predicated on layperson opinion
and inadmissible hearsay. [Nonetheless, the court
denied without prejudice the defendant’s motion in
limine to preclude the reports or testimony of the Mayo
Clinic physicians.] The court, over objection from the
defendant, proceeded to grant in part the plaintiff’s
motion for the appointment of a commission to permit
the taking of McEvoy’s and Josephs’ depositions, and
indicated that if those physicians did not testify adequately
to support the basis of the plaintiff’s theory
on causation, their records would only be admissible
insofar as they reflected Leslie’s treatment at the Mayo
Clinic, with any portions connected to the causation of
her injuries being redacted.
‘‘On February 2, 2009, the parties went forward with
Josephs’ deposition. At the outset, counsel for the Mayo
Clinic, appearing on behalf of Josephs, stated that he
would not be opining on the issues of standard of care
or causation and that he would only testify as to his
care of Leslie as a treating physician. Upon his initial
examination by the defendant, Josephs testified, consistent
with his counsel’s opening remarks, that it was
not his intent to give an opinion as to whether the
defendant’s care and treatment of Leslie led to an anoxic
event and that he was unaware of what in fact caused
the anoxia. Additionally, Josephs stated that he had not
reviewed the defendant’s records of Leslie’s hospitalization,
and that the circumstances surrounding her anoxic
event were relayed to him by Leslie and the plaintiff.
‘‘During the plaintiff’s examination, however, Josephs
testified that there was information available to him
that indicated that while Leslie was in the care of the
defendant her rate of breathing was reduced to somewhere
between one and four breaths per minute and
that upon his review of the materials available to him
he concluded that her cognitive deficits were caused
by this anoxic event. Although both sides, and the court,
were under the assumption that Josephs’ examination
would last four hours, counsel for the Mayo Clinic unilaterally
terminated the deposition after the second
hour of questioning [each party having approximately
equal time].
‘‘The following day, the plaintiff issued subpoenas
seeking to compel the continued deposition of Josephs
and the deposition of McEvoy, and counsel for the Mayo
Clinic filed a motion for a protective order seeking to
preclude the plaintiff from completing Josephs’ deposition
and from conducting McEvoy’s deposition, contending
that these examinations constituted an
annoyance and were unduly burdensome. The defendant
joined in the Mayo Clinic’s motion and, in its supplemental
brief in opposition to the continued
depositions, argued that neither Josephs nor McEvoy
could be compelled to testify as to their expert medical
opinions on causation. [In light of the plaintiff’s objection
that the Mayo Clinic’s motion could not properly
be accepted by the court without its counsel having filed
an appearance, the court decided, without objection,
to address the defendant’s renewed objection to the
depositions.] The court agreed [with the defendant] and
vacated its previous order [appointing a commission]
for the depositions of Josephs and McEvoy. Accordingly,
the court advised counsel for the Mayo Clinic that
Josephs and McEvoy were no longer under subpoena.
‘‘On February 6, 2009, the defendant filed a motion
for permission to file a motion for summary judgment.
The court granted the motion for permission on February
9, 2009, and the defendant filed its motion for summary
judgment that day. The court also ordered the
plaintiff to file her opposition to the motion the following
day.
‘‘On February 17, 2009, the court heard oral argument
on the defendant’s motion for summary judgment. The
defendant claimed that it was entitled to summary judgment
because the plaintiff could not establish the element
of causation by expert testimony. Specifically, it
argued that the treating physicians’ opinions contained
within their medical reports were insufficient to establish
that the alleged injuries were caused by the defendant.
The court agreed and granted the defendant’s
motion for summary judgment.’’ (Footnotes altered.)
Id., 85–92.
The plaintiff appealed from the judgment to the
Appellate Court, claiming that the trial court improperly
had: (1) deemed the opinions of the treating physicians
in the medical records inadmissible on the issue of
causation; and (2) precluded the continuation of
Josephs’ deposition and the taking of McEvoy’s deposition
in toto, effectively affording the treating physicians
a testimonial privilege that is not recognized under Connecticut
law. Id., 84. The Appellate Court agreed with
both claims. Id.
With respect to the first claim, the Appellate Court
determined that the trial court’s ruling that the medical
records were inadmissible because the physicians’
statements were predicated on hearsay and recitations
of lay opinions was based on a misapprehension of the
law rather than a reasoned exercise of discretion. As
such, the Appellate Court held that the trial court’s
decision could not stand as a proper use of its discretion.
Id., 95–99. In so holding, the Appellate Court posited
that ‘‘our case law is clear that a physician’s medical
opinion is not inadmissible because it is formed, in
whole or in part, on the basis of hearsay statements
made by a patient.’’ Id., 96. The court rejected the proposition
that it was fatal to the admission of the physicians’
reports that Leslie and the plaintiff had reported the
anoxic incident. Id., 97. In doing so, the court concluded
that the information available to the physicians—
including the results of comprehensive testing of Leslie’s
cognitive functioning at the Mayo Clinic and the
investigative report from a state board regarding Leslie’s
2002 hospitalization—demonstrated that the
‘‘detailed conclusions of the treating physicians . . .
were sufficiently reliable to establish that the medical
conclusions recorded in the treaters’ reports were more
than mere recitations of lay opinions.’’ Id., 97–98. The
Appellate Court also rejected alternate grounds raised
by the defendant that the treating physicians had not
opined on causation with a reasonable degree of medical
probability; id., 99–102; and that the defendant had
been unable to fully cross-examine the physicians.
Id., 102–103.
With respect to the plaintiff’s second claim regarding
the termination of the commission, the Appellate Court
concluded that the trial court had abused its discretion
by precluding McEvoy’s deposition after instructing the
plaintiff that she could not meet her evidentiary burden
without expert testimony.8 Id., 105. In so concluding, the
court rejected the defendant’s contention that treating
physicians enjoy an absolute privilege not to be pressed
into service as experts. Id., 106–109. Accordingly, the
Appellate Court reversed the trial court’s judgment in
favor of the defendant and remanded the case with
direction to deny the defendant’s motion for summary
judgment and for further proceedings. Id., 109.
Thereafter, this court granted the defendant’s petition
for certification to appeal, limited to the following question:
‘‘Did the Appellate Court properly conclude that
the trial court abused its discretion in its failure to admit
certain statements contained within medical records to
establish a causal connection between [Leslie’s] injuries
and the alleged negligence?’’ Milliun v. New Milford
Hospital, 302 Conn. 920, 28 A.3d 338 (2011). For the
reasons that follow, we answer that question in the affirmative.
I
The defendant claims that the Appellate Court misinterpreted
the trial court’s decision and failed to identify
what law the trial court had misapprehended when it
deemed the reports by McEvoy and Josephs inadmissible.
According to the defendant, the trial court did not
conclude that a physician is precluded from forming
an expert opinion regarding the causes of a patient’s
condition on the basis of out-of-court statements made
by a patient, but, rather, that a physician may not rely on
such statements from someone other than the patient
in forming such an opinion. The defendant therefore
contends that the trial court properly concluded that
the proffered causation opinions were unreliable on
the grounds that the report of the anoxic incident was
impermissible hearsay because it was supplied by the
plaintiff, not Leslie, and because the reports reflected
the treating physicians’ uncertainty as to the essential
facts relating to the alleged anoxic incident. In response,
the plaintiff contends that the defendant itself has mischaracterized
the basis of the trial court’s ruling and
that the Appellate Court properly concluded that the
trial court had abused its discretion in precluding the
reports as evidence of causation. We agree with the
plaintiff.9
Certain established principles guide our resolution of
the defendant’s claims. In a medical malpractice action,
‘‘[e]xpert medical opinion evidence is usually required
to show the cause of an injury or disease because the
medical effect on the human system of the infliction of
injuries is generally not within the sphere of the common
knowledge of the lay person.’’ (Internal quotation
marks omitted.) Poulin v. Yasner, 64 Conn. App. 730,
738, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d
1245 (2001); accord Boone v. William W. Backus Hospital,
272 Conn. 551, 567, 864 A.2d 1 (2005). Such expert
opinion may be provided through a signed report of a
treating physician in lieu of live testimony, as long as
the defendant is afforded an opportunity to cross-examine
the author of the report. See General Statutes § 52-
174 (b); Practice Book § 13-4 (a) and (d) (1); Struckman
v. Burns, 205 Conn. 542, 552, 534 A.2d 888 (1987).
Under the rules of evidence governing expert opinions
generally, ‘‘[t]he facts in the particular case upon
which an expert bases an opinion may be those perceived
by or made known to the expert at or before
the proceeding. The facts need not be admissible in
evidence if of a type customarily relied on by experts
in the particular field in forming opinions on the subject.
The facts relied on . . . are not substantive evidence,
unless otherwise admissible as such evidence.’’ Conn.
Code Evid. § 7-4 (b). ‘‘[I]nadmissible ‘facts’ upon which
experts customarily rely in forming opinions can be
derived from sources such as conversations, informal
opinions, written reports and data compilations. . . .
Subsection (b) [of § 7-4 of the Connecticut Code of
Evidence] expressly forbids the facts upon which the
expert based his or her opinion to be admitted for their
truth unless otherwise substantively admissible under
other provisions of the Code. Thus, subsection (b) does
not constitute an exception to the hearsay rule or any
other exclusionary provision of the Code.’’ (Emphasis
added.) Conn. Code Evid. § 7-4 (b), commentary; see
State v. Copas, 252 Conn. 318, 328, 746 A.2d 761 (2000)
(‘‘[a]lthough some of the facts considered by the experts
. . . may not [be] substantively admissible . . . the
parties [are] not precluded from examining the experts
about those facts insofar as they related to the basis
for the experts’ opinions’’ [citations omitted]). Thus,
‘‘[w]hen the expert witness has consulted numerous
sources, and uses that information, together with his
own professional knowledge and experience, to arrive
at his opinion, that opinion is regarded as evidence in
its own right and not as hearsay in disguise.’’ (Internal
quotation marks omitted.) In re Barbara J., 215 Conn.
31, 43, 574 A.2d 203 (1990).
Therefore, ‘‘an expert’s opinion is not rendered inadmissible
merely because the opinion is based on inadmissible
hearsay, so long as the opinion is based on
trustworthy information and the expert had sufficient
experience to evaluate that information so as to come
to a conclusion which the trial court might well hold
worthy of consideration by the jury.’’10 (Internal quotation
marks omitted.) George v. Ericson, 250 Conn. 312,
321, 736 A.2d 889 (1999). The fact that a physician’s
report includes hearsay statements, whether from a
patient or someone else, would not bar the report’s
admission on that basis unless those statements were
being offered for substantive purposes, i.e., the truth
of the matter asserted.11 Compare Farrell v. Bass, 90
Conn. App. 804, 816–19, 879 A.2d 516 (2005) (concluding
that trial court properly precluded plaintiffs’ expert
from testifying regarding contents of article written by
another physician because article was not being used
as factual basis of expert’s opinion but instead to prove
truth of matter asserted in article), with State v. Henry,
27 Conn. App. 520, 529–30, 608 A.2d 696 (1992)
(rejecting claim that trial court improperly admitted
prejudicial hearsay by allowing into evidence eyewitness’
statement through psychiatrist’s testimony
because statement was introduced not for its truth but
to show basis of expert opinion).
In the present case, the plaintiff was not offering
her own statements and those of Leslie in the reports
relaying the 2002 anoxic incident as substantive evidence
of the fact that Leslie had in fact suffered anoxia
while in the defendant’s care and due to the defendant’s
negligence. Rather, she was offering those statements
as evidence of the information on which Josephs and
McEvoy had based their respective diagnoses of anoxic
encephalopathy arising from the 2002 incident as the
cause of Leslie’s cognitive deficits. Therefore, to the
extent that the trial court deemed the reports not to
be competent evidence due to the inclusion of hearsay
statements, the Appellate Court properly concluded
that this determination was predicated on a misapprehension
of the controlling legal principles.
With respect to the reliability of those statements as
a basis on which to form a medical opinion, which is
a proper consideration; George v. Ericson, supra, 250
Conn. 322; the only concern articulated by the trial
court that might have any bearing on this matter was
the court’s view that the physicians’ reports contained
nothing more than impermissible expert opinion from
lay witnesses on the issue of causation. We find several
defects in this reasoning. It appears that the trial court
focused exclusively on the fact that the reports indicated
that Leslie or the plaintiff had reported the
‘‘anoxia,’’ or ‘‘anoxic’’ incident, to the physicians and
assumed: (1) that Leslie and the plaintiff actually used
this diagnostic term, as opposed to the indicia of that
term, to characterize the 2002 incident in their meetings
with the physicians; and (2) that the reports’ recitation
of those statements reflected the physicians’ obsequious
acceptance of that ‘‘diagnosis’’ without ascertaining
the underlying facts and without bringing any independent
judgment to bear on the question of whether an
anoxic incident during Leslie’s July, 2002 hospitalization
had caused her cognitive impairments. Given the
Mayo Clinic’s well established reputation as a preeminent
medical facility, such assumptions, devoid of factual
predicates that would support them, seem dubious.
More importantly, however, these assumptions are contradicted
by the reports when reviewed in their
entirety.12
‘‘Expert opinions must be based upon reasonable
probabilities rather than mere speculation or conjecture
if they are to be admissible in establishing causation.13
. . . To be reasonably probable, a conclusion must be
more likely than not. . . . Whether an expert’s testimony
is expressed in terms of a reasonable probability
. . . does not depend upon the semantics of the expert
or his use of any particular term or phrase, but rather,
is determined by looking at the entire substance of the
expert’s testimony. . . . [Similarly, when] reports are
the substitute for testimony, the entire report should
be examined, not only certain phrases or words.’’ (Citations
omitted; emphasis added; footnote added.)
Struckman v. Burns, supra, 205 Conn. 554–55.
Thus, the trial court was obliged to consider the
reports in their totality to determine whether they were
competent evidence as to whether the defendant’s acts
or omissions had caused Leslie’s cognitive impairment
rather than focus on a particular word or phrase. Cf.
Mather v. Griffin Hospital, 207 Conn. 125, 134–36, 540
A.2d 666 (1988) (concluding that testimony of three
expert witnesses collectively was sufficient to establish
causation). When considered in the fullness of their
content, those reports reflect the following information.
The plaintiff and Leslie had provided the Mayo Clinic
with information that, prior to Leslie’s 2002 hospitalization,
she had been on considerable amounts of Valium
without any decline in cognitive functioning. While an
in-patient at the defendant and while still taking Valium,
Leslie went for a period of time breathing at a rate of
somewhere between one and four breaths per minute.
This event was witnessed by a nurse, but was not treated
aggressively.14 Although Leslie’s cognitive function
appeared normal up to one hour before this period of
respiratory dysfunction, almost immediately thereafter
her family noticed severe cognitive deficits.15 By 2005,
Leslie and the plaintiff described Leslie’s cognitive functioning
as static or slightly improved from the substantial
decline in functioning that occurred in July, 2002.
McEvoy’s February, 2005 report stated: ‘‘It is still my
clinical impression based on the temporal profile of
the onset of her symptoms, that [Leslie] has a primary
autoimmune disorder consistent with [SMS], which by
history was associated with dysarthria but no cognitive
impairment, along with a superimposed anoxic encephalopathy
which developed by her report of July 10, 2002,
in [a] hospital in Connecticut at the time of uncontrolled
muscle spasms from her SMS. Her cognitive function,
by her and [the plaintiff’s] report, has improved and
pretty much stabilized, as might be expected after an
anoxic [incident].’’ (Emphasis added.)
These records further reflect that McEvoy thereafter
directed Leslie to various clinicians for extensive cognitive
and neurological testing. Following his own testing
and physical examination of Leslie, as well as a review
of the history obtained by Dupont, Josephs’ March, 2005
report stated more definitively: ‘‘It is my opinion that
[Leslie’s] cognitive impairment is secondary to whatever
event occurred or whatever transpired in 2002.
The family member tells me that there was anoxia and
that there was a change after that event. Therefore,
one must conclude that her cognitive impairment was
secondary to the event that occurred in 2002. Arguing
for this being the process of her cognitive impairment
also is the fact that she has not had any significant
progression since 2002. The cognitive impairment in
my opinion is not related to [Leslie’s] diagnosis [of SMS]
and is not in keeping with a neurodegenerative syndrome
given the lack of progression.’’ (Emphasis
added.) In the ‘‘Diagnoses’’ section of the report,
Josephs listed ‘‘[c]ognitive impairment (static encephalopathy
secondary to anoxic brain damage).’’ Following
her review of the diagnostic impressions of Josephs and
others who had examined and tested Leslie, McEvoy
similarly adopted as her diagnosis in her March, 2005
report ‘‘Cognitive impairment (static encephalopathy
secondary to anoxic brain damage).’’
These records reflect that McEvoy and Josephs concluded
that they had sufficient, reliable information to
diagnose Leslie’s condition and the cause of that condition
with the requisite degree of confidence. The physicians
ruled out Leslie’s SMS or some other
neurodegenerative condition as the cause of those injuries
and apparently concluded that the anoxic incident,
as described, was the presumptive cause of Leslie’s
cognitive deficits because such a causal relationship
was consistent with the timing of the onset of symptoms,
the symptoms manifested and the results of comprehensive
examination and testing. Such a deductive
process is a proper method on which to base an opinion
as to causation. See Struckman v. Burns, supra, 205
Conn. 554 (‘‘[t]he causal relation between an injury and
its later physical effects may be established by the direct
opinion of a physician, by his deduction by the process
of eliminating causes other than the traumatic agency,
or by his opinion based upon a hypothetical question’’
[emphasis added]); see also Klein v. Norwalk Hospital,
299 Conn. 241, 252, 9 A.3d 364 (2010) (‘‘differential
diagnosis is a method of diagnosis that involves a determination
of which of a variety of possible conditions
is the probable cause of an individual’s symptoms, often
by a process of elimination’’ [internal quotation marks
omitted]). Although there may be other possible causes
that the physicians did not consider, such matters go
to weight, not admissibility.16 See Eisenbach v. Downey,
45 Conn. App. 165, 176, 694 A.2d 1376 (concluding that
defendants’ argument that trial court improperly admitted
medical reports to establish causal connection
because reports did not consider and eliminate plaintiffs’
prior injuries as cause, went to weight and not
admissibility), cert. denied, 241 Conn. 926, 696 A.2d
1264 (1997).
The defendant contends, however, that Josephs’ use
of the phrase ‘‘whatever event occurred or whatever
transpired in 2002’’ and McEvoy’s recitation of ‘‘an
apparent anoxic event’’ reflect uncertainty as to the
essential facts on which any purported causation opinion
was predicated. We note that the trial court identified
no such concerns as a basis for its decision.
Moreover, we view these terms simply as the physicians’
acknowledgment that, because they did not have independent
verification of the facts provided, they were
assuming the truth of those facts for the purpose of
rendering a diagnosis.
Indeed, in this regard the trial court’s reasoning and
the defendant’s positions in support thereof suffer from
a similar defect. Neither the trial court nor the defendant
has brought any authority to our attention, and
we are aware of none, that would require the plaintiff
to establish the truth of all of the foundational facts on
which the expert relies through the expert’s testimony.
There is, however, authority to the contrary. See Hally
v. Hospital of St. Raphael, 162 Conn. 352, 358–59, 294
A.2d 305 (1972) (citing authority for proposition that
jury is not obligated to accept ultimate opinion of expert
witnesses ‘‘since the jury might reject the opinion . . .
because the opinion was based on subordinate facts
which they do not find proven’’); see also Conn. Code
Evid. § 7-4 (a), commentary (‘‘Subsection [a] contemplates
that disclosure of the ‘foundational’ facts will, in
most cases, occur during the examination undertaken
by the party calling the expert and before the expert
states his or her opinion. The requirement of preliminary
disclosure, however, is subject to the trial court’s
discretionary authority to admit evidence upon proof of
connecting facts, or subject to later proof of connecting
facts.’’). The plaintiff readily acknowledges that she will
have to establish, through witnesses with personal
knowledge of the circumstances, that the defendant’s
acts or omissions actually caused Leslie to suffer respiratory
distress. Accordingly, we conclude that the
Appellate Court properly determined that the trial court
had misapprehended the law in concluding that the
reports did not contain competent evidence to create
a material issue of dispute as to causation.
II
The defendant asserts a second ground on which it
claims that the Appellate Court improperly concluded
that the trial court’s decision to preclude the reports
was an abuse of discretion. This claim, variously stated,
challenges the Appellate Court’s conclusions relating
to the trial court’s decision to withdraw its previous
order granting the plaintiff’s motion for the appointment
of a commission, which effectively quashed the subpoenas
compelling Josephs and McEvoy to submit to the
depositions. Analyzing this claim through a slightly different
framework than applied by the Appellate Court,
the defendant contends that: (1) the trial court properly
determined that the Mayo Clinic physicians had a testimonial
privilege against being compelled to testify as
expert witnesses on causation; (2) as a result of their
effective invocation of that privilege, the defendant was
deprived of an opportunity to cross-examine the plaintiff’s
experts; and (3) the trial court properly conditioned
the admission of the reports on the availability
of the plaintiff’s experts in part due to prejudice to the
defendant if such an opportunity was not afforded.17
In defense of the trial court’s decision regarding the
testimonial privilege, the defendant contends that case
law from our Superior Court as well as from other
jurisdictions supports the conclusion that compelling
a physician to serve the interests of a private litigant
is tantamount to involuntary servitude prohibited under
the thirteenth amendment to the United States constitution
because it requires the physician to provide for
free a commodity that has value, namely, the physician’s
expertise. The defendant further contends that, in order
to justify abrogating this privilege in light of these substantial
interests, there must be a compelling necessity
for the testimony. Because there is no basis in the record
on which to conclude that the plaintiff could not have
procured any experts other than her treating physicians
to opine on causation to demonstrate such a compelling
necessity, the defendant contends that the trial court
properly terminated the commission.
We conclude that the defendant was not deprived of
an opportunity for cross-examination. In light of the
facts in the record supporting that conclusion and representations
from counsel at oral argument before this
court, we further conclude that it is unnecessary to
examine the Appellate Court’s determination that the
trial court improperly ruled that Leslie’s treating physicians
could not be compelled to provide expert testimony
with regard to opinions expressed in the reports.
We begin by noting that the trial court did not cite
this ground as a basis for rendering summary judgment
in the defendant’s favor. The sole stated basis for the
judgment was that there was ‘‘nothing in the records,
nor any other evidence, to indicate that the person(s)
who had made the comments to the treating physicians,
advocating a causal connection between [Leslie’s]
symptoms and her stay at the [defendant], were qualified
to give expert testimony regarding causation.’’ Even
if we were to consider the defendant’s claim as a properly
raised alternate ground for affirmance, however,
the defendant cannot prevail.
The record reveals the following additional facts. At
the outset of Josephs’ deposition, the defendant elicited
responses indicating that Josephs had neither been
retained by the plaintiff to provide expert testimony
nor been informed that his opinions and records would
be used as expert testimony. Immediately thereafter,
the defendant reiterated for the record its objections
to the depositions as burdensome, expensive and prejudicial.
It further stated an objection on the ground that
a physician cannot be compelled to provide expert testimony,
citing Superior Court case law as support.18 In
response, Joanne L. Martin, counsel for the Mayo Clinic,
stated that Josephs and the Mayo Clinic had the understanding
that Josephs was there solely to testify as to
‘‘his care and treatment of [Leslie] and not to render
expert opinions that go to standard of care [or] causation
. . . .’’ The defendant then elicited responses from
Josephs indicating that he did not intend to offer testimony
outside the scope of the matters reflected in Leslie’s
medical records as regard to her care and treatment
or to offer any opinion as to the cause of any problems
she claims to have suffered as a result of the defendant’s
conduct. Thereafter, the defendant examined Josephs
at length about the substance of his report and the
basis for statements therein, including the sources of
information. The defendant obtained direct answers to
questions as to: whether Josephs’ stated opinion that
Leslie’s cognitive impairment is secondary to whatever
event occurred or whatever transpired in 2002, was
based on information provided by the plaintiff and Leslie;
whether Josephs had any idea as to what events had
transpired while she was in the care of the defendant;
whether he had intended to give an opinion as to
whether the 2002 event triggered the anoxic incident;
and whether he had any idea what had caused the
anoxia, if in fact anoxia had been caused. The plaintiff
thereafter questioned Josephs with regard to the same
matters. Martin objected to questions only insofar as
they were directed to the standard of care, went beyond
Josephs’ expertise, or were irrelevant to Josephs’ care
and treatment of Leslie. Martin terminated the deposition
at the end of two hours, divided equally between
the parties, a period one half as long as the court had
authorized. She indicated that additional time requested
by the plaintiff would need to be scheduled with the
deposition coordinator at the Mayo Clinic.
Two days later, Martin participated in a telephonic
conference with the trial court and the parties, at which
time the court discussed a motion for a protective order
filed by Martin on behalf of the Mayo Clinic as well as a
renewed objection to the appointment of a commission
and the continuation of the depositions asserted by the
defendant. Martin stated that she had filed the motion
because the depositions had been loud, disruptive and
argumentative, and had extended beyond the time she
had anticipated for a normal deposition. Following the
plaintiff’s objection that the court could not consider
Martin’s motion because she had not filed an appearance,
the court declined to rule on that motion and it
was never docketed as part of the court record. The
court instead considered the defendant’s renewed
objection to the depositions. The defendant began by
recounting Josephs’ deposition testimony indicating
that he had neither formed an opinion as to whether
the defendant had caused Leslie’s cognitive injuries nor
intended to offer an expert opinion as to that matter.
The defendant contended that this testimony, as well
as the plaintiff’s failed efforts to get Josephs to ‘‘bootstrap
his testimony onto the records of other record
keepers,’’ demonstrated that the plaintiff could not elicit
the requisite evidence from Josephs to support the
admission of the reports as expert opinion on causation.
It further contended that continuing the depositions
would be an abuse of the discovery process because,
under Superior Court case law, physicians cannot be
pressed into service as experts against their will.19 In
response, the plaintiff argued that the testimony that
she thus far had elicited demonstrated that further
deposition testimony would be fruitful and that the
authority cited by the defendant did not address the
examination of a treating physician with regard to an
opinion previously expressed. After the court ascertained
from Martin that McEvoy similarly would refuse
to offer an expert opinion as to standard of care or
causation, the trial court sustained the defendant’s
objection to the continuation of the depositions and
withdrew its approval of the plaintiff’s request for the
appointment of a commission on the ground that the
physicians could not be compelled to be expert witnesses.
In light of these facts, we readily can dispose of the
defendant’s claim that the trial court properly precluded
the reports because the defendant had been unable to
fully cross-examine the plaintiff’s proposed experts. It
is evident that whatever limits the Mayo Clinic placed
on the testimony of its physicians had no impact on the
defendant’s ability to cross-examine Josephs. Josephs
answered every question that was posed to him by the
defendant. Indeed, Josephs’ testimony provided the
defendant with substantial evidence to impeach, potentially,
the reports as an expert opinion that the defendant’s
conduct had caused Leslie’s cognitive injuries.
There is no reason to conclude that the defendant would
not be afforded a similar opportunity to fully crossexamine
McEvoy.
The depositions reveal that, if anyone was hampered
by the limits placed on testimony by the Mayo Clinic,
it was the plaintiff. At oral argument before this court,
however, the plaintiff’s counsel represented that, after
having obtained clarification of the Mayo Clinic’s policy,
he does not foresee any obstacle to obtaining relevant
testimony from the physicians if the depositions were
to be continued. In particular, he represented that,
although the Mayo Clinic precludes its physicians from
providing expert testimony as to standard of care, causation
and damages generally, its policy does not preclude
its physicians from testifying regarding the basis
of opinions previously expressed in the course of treatment.
Thus, contrary to the Appellate Court’s suggestion;
Milliun v. New Milford Hospital, supra, 129 Conn.
App. 104 n.15; the assertion of privilege as an obstacle
to the depositions no longer appears to be an issue
likely to arise on remand.
The plaintiff suggested at oral argument, however,
that it would be useful to the bench and bar for this
court to address questions that have arisen in the trial
courts with regard to whether physicians have a testimonial
privilege against being compelled to provide
expert testimony under various circumstances. To do
so, however, would contravene this court’s jurisprudential
rule against rendering advisory opinions. See Echavarria
v. National Grange Mutual Ins. Co., 275 Conn.
408, 419, 880 A.2d 882 (2005) (‘‘[w]here the question
presented is purely academic, we must refuse to entertain
the appeal’’ [internal quotation marks omitted]);
State v. McElveen, 261 Conn. 198, 204–205, 802 A.2d 74
(2002) (‘‘[t]he first factor relevant to a determination
of justiciability—the requirement of an actual controversy—
is premised upon the notion that courts are
called upon to determine existing controversies, and
thus may not be used as a vehicle to obtain advisory
judicial opinions on points of law’’). We underscore that
the narrow issue that was raised in the present case is
whether a treating physician can be compelled to testify
as an expert regarding an opinion previously expressed
by that physician. As we have explained, there is no
need to resolve that question under the particular circumstances
of this case. The plaintiff has never claimed
that she is entitled to compel expert opinion regarding
matters on which Leslie’s treating physicians had
expressed no opinion in their reports. Indeed, the Appellate
Court’s opinion did not address that broader issue.20
Accordingly, we need not address that issue either.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1 The revised complaint also named as defendants Associated Family
Physicians, P.C., and Janice Lynn Sumner, a physician. Prior to the commencement
of trial, Sumner successfully moved to dismiss the complaint
as to her, and thereafter the trial court granted a motion for summary
judgment in favor of the professional corporation. Accordingly, because
New Milford Hospital is the sole remaining defendant in the case, we refer
to it as the defendant in this opinion.
2 Leslie was named as the plaintiff in this action when it originally was
commenced in 2004. In 2006, her attorney withdrew from the case. In 2007,
the Probate Court for the district of Washington appointed her twin sister,
Lynnia Milliun, as conservator over Leslie’s person and estate after finding
that Leslie was incapable of managing her affairs or caring for herself,
including exercising her civil and personal rights, by reason of stiff man
syndrome, cognitive impairment and ataxic dysarthria. Thereafter, Leslie
successfully moved, through counsel, to have Lynnia Milliun substituted as
the plaintiff in this action, and new counsel appeared in the action. For
convenience, we refer to Lynnia Milliun as the plaintiff in this opinion.
3 See Mayo Clinic, ‘‘Paraneoplastic Syndromes of the Nervous System,’’
available at http://www.mayoclinic.com/health/paraneoplastic-syndromes/
DS00840/DSECTION=symptoms (last visited December 11, 2013); see also
The Dictionary of Modern Medicine (J. Segen ed., 1992) p. 695 (defining
syndrome as rare motor dysfunction disorder that can cause muscle stiffness,
painful muscle spasms and motor and gait abnormalities).
4 Anoxia is the ‘‘[a]bsence or almost complete absence of oxygen from
inspired gases, arterial blood, or tissues.’’ Stedman’s Medical Dictionary
(28th Ed. 2006) p. 98. As we explain later in this opinion, the use of the
terms ‘‘anoxic’’ or ‘‘anoxia’’ have particular significance in the issues in this
appeal because the trial court focused on statements in the reports at issue
suggesting that the plaintiff or Leslie may have used such medical terminology.
We therefore note that, except when such terms are specifically attributed
to a declarant, we use these terms simply for convenience to
characterize the alleged incident and its effect. The plaintiff did not use
either term in her complaint.
5 Dysarthria is ‘‘[a] disturbance of speech’’ due to various causes including
stiffness of the muscles used for speaking. Stedman’s Medical Dictionary
(28th Ed. 2006) p. 595.
6 Encephalopathy is ‘‘[a]ny disorder of the brain.’’ Stedman’s Medical Dictionary
(28th Ed. 2006) p. 636.
7 ‘‘General Statutes § 52-148c allows a party to apply to the court for a
commission to take the deposition of an out-of-state witness. Once the
commission is granted by the court in this state, a subpoena can be obtained
in the proposed deponent’s state to force the deponent to attend a deposition
in his [or her] state.’’ Struckman v. Burns, 205 Conn. 542, 552, 534 A.2d 888
(1987). We note that there is conflicting information in the record as to
whether the plaintiff applied for the commission because the trial court
indicated that she was obligated to make her experts available to the defendant
for cross-examination or because the trial court deemed the records
insufficient without supporting testimony from the experts.
8 The Appellate Court did not specifically address whether the trial court
abused its discretion in issuing its order withdrawing its permission for the
commission with respect to further deposing Josephs, whose deposition
had been prematurely terminated by Mayo Clinic counsel but after both
parties had been afforded essentially equal time to question him.
9 With regard to the standard of review, we note that the Appellate Court
reviewed the trial court’s decision to preclude the reports under the abuse
of discretion standard that this court has deemed applicable to decisions
regarding the admission of medical records under General Statutes § 52-
174 (b). See Milliun v. New Milford Hospital, supra, 129 Conn. App. 95,
citing Rhode v. Milla, 287 Conn. 731, 742, 949 A.2d 1227 (2008) (reviewing
decision to admit reports). The Appellate Court acknowledged that, in DiPietro
v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 610–12, 2 A.3d
963 (2010), it had concluded that plenary review applies to a trial court’s
ruling regarding the admissibility of expert testimony when such a ruling
is rendered in the course of a summary judgment proceeding. Milliun v.
New Milford Hospital, supra, 95 n.11. Noting that a certified appeal to this
court was then pending in DiPietro on this and other issues, the Appellate
Court concluded that it need not decide whether the DiPietro standard
would apply in the present case because the trial court had misapprehended
the law, which in any event constitutes an abuse of discretion. Id.; see
Misthopoulos v. Misthopoulos, 297 Conn. 358, 372, 999 A.2d 721 (2010) (‘‘a
trial court’s ruling . . . may be reversed if, in the exercise of its discretion,
the trial court applies the wrong standard of law’’ [internal quotation marks
omitted]). We note that this court ultimately did not need to reach the
standard of review issue in the certified appeal in DiPietro. See DiPietro
v. Farmington Sports Arena, LLC, 306 Conn. 107, 111 n.2, 49 A.3d 951
(2012). We also note that it is well settled that ‘‘when the trial court’s decision
to exclude evidence is premised on a correct view of the law, our standard
of review is for an abuse of discretion.’’ (Emphasis added.) State v. Annulli,
309 Conn. 482, 491, 71 A.3d 530 (2013). Because we agree with the Appellate
Court that the trial court misunderstood the governing legal principles in
the present case, we need not now consider whether the court in DiPietro
v. Farmington Sports Arena, LLC, supra, 123 Conn. App. 583, correctly
decided that plenary review applies to an evidentiary ruling rendered in the
course of a summary judgment proceeding.
10 We note that the Appellate Court stated the more limited principle that
‘‘a physician’s medical opinion is not inadmissible because it is formed, in
whole or in part, on the basis of hearsay statements made by a patient.’’
(Emphasis added.) Milliun v. New Milford Hospital, supra, 129 Conn. App.
96. In support of this more limited principle, the Appellate Court relied on
the following statements in George v. Ericson, 250 Conn. 312, 320, 736 A.2d
889 (1999): ‘‘[I]t is the general rule that an expert’s opinion is inadmissible
if it is based on hearsay evidence. . . . One exception to this rule . . . is
the exception which allows a physician to testify to his opinion even though
it is based, in whole or in part, on statements made to him by a patient for
the purpose of obtaining from him professional medical treatment or advice
incidental thereto.’’ (Citation omitted; internal quotation marks omitted.)
See Milliun v. New Milford Hospital, supra, 96. The Appellate Court in
Milliun appears to have overlooked the fact that George cited this ‘‘general
rule’’ in the context of overruling the case that had articulated the rule.
Specifically, in George, this court considered whether to overrule Brown v.
Blauvelt, 152 Conn. 272, 205 A.2d 773 (1964), which had precluded the
admission of a nontreating physician’s opinion premised in part on the
aforementioned ‘‘general rule.’’ In concluding that Brown must be overruled,
this court explained: ‘‘[O]ur holding in Brown, even at the time that it was
rendered, was based on a faulty premise, namely, that ‘[i]t [was] the general
rule that an expert’s opinion is inadmissible if it is based on hearsay
evidence.’ Id., 274. This proposition was incorrect when it was stated, and
it remains incorrect today. Although in Brown we cited to Vigliotti v.
Campano, [104 Conn. 464, 465, 133 A. 579 (1926)], as support for this
proposition, Vigliotti actually stands for the opposite proposition, namely,
that an expert’s opinion is not rendered inadmissible merely because the
opinion is based on inadmissible hearsay, so long as the opinion is based
on trustworthy information and the expert had sufficient experience to
evaluate that information so as ‘to come to a conclusion which the trial
court might well hold worthy of consideration by the jury.’ ’’ (Emphasis
added.) George v. Ericson, supra, 321. Accordingly, we underscore that no
such general rule or limited exception thereto exists.
11 Because the hearsay nature of the statements at issue is irrelevant, we
have no occasion to consider whether, in light of Leslie’s disabilities and
other circumstances, the statements made by the plaintiff to Leslie’s treating
physicians would fall within the hearsay exception for statements made for
the purpose of medical treatment. See Conn. Code Evid. § 8-3 (5). We note,
however, that the plaintiff’s statements regarding the 2002 anoxic incident
reflected in the 2005 medical reports appear to be substantively indistinguishable
from Leslie’s statements reflected in the Mayo Clinic’s 2003 medical
reports. Moreover, despite the defendant’s claims to the contrary, the trial
court made no distinction between statements of the plaintiff and those of
Leslie, treating both as suffering from the same defects throughout the
proceedings. Therefore, we see no basis on which to conclude that the
plaintiff’s statements were insufficiently trustworthy for the physicians to
consider them for purposes of forming an opinion.
12 Although the parties were not permitted to depose Dupont, the resident
working under Josephs’ supervision in connection with Josephs’ treatment
of Leslie, we note the following comments in Dupont’s report that undermine
a conclusion that Leslie or the plaintiff came to the Mayo Clinic presenting
that Leslie had suffered an ‘‘anoxic’’ incident. Dupont noted: ‘‘[Josephs and
I] spoke with [Leslie] and [the plaintiff] at length about what we think had
happened to her. Even though they had heard this before, it seemed as
though they appreciated being involved in the thinking process that was
being put into this diagnosis [of anoxic encephalopathy].’’ (Emphasis added.)
13 We note that it is the expert’s ultimate opinion as to causation that
must be expressed in terms of a reasonable probability, not the underlying
facts on which that opinion is predicated. Indeed, expert opinion may be
predicated on hypothetical facts. See Conn. Code Evid. § 7-4. As we later
explain, the plaintiff must produce evidence to prove the underlying facts
on which such an opinion is based, but such proof may be, and often is,
derived from sources other than the expert. See Viera v. Cohen, 283 Conn.
412, 449, 927 A.2d 843 (2007) (‘‘[t]he established rule is that, on direct
examination, the stated assumptions on which a hypothetical question is
based must be the essential facts established by the evidence’’).
14 McEvoy’s 2003 report mentions that Leslie had ‘‘an investigative report
from a state board regarding the incident.’’ The state board’s report was
not made a part of the trial court record, and nothing in the Mayo Clinic
reports disclose the substance of that report. Therefore, although this reference
suggests that at least some of the plaintiff’s allegations were substantiated
in the state board’s report, we have no way of knowing which allegations
were documented in that report.
15 The various ways in which those deficits had manifested were described
in some detail in Dupont’s report. Josephs’ report indicated that he had
‘‘reviewed the history as given to me by my resident, Dr. Dupont . . . .’’
16 Similarly, Josephs’ deposition testimony denying having formed an opinion
as to causation may be submitted to the trier, along with testimony
acknowledging awareness of certain historical facts when making a diagnosis,
to determine what weight to give the conclusions in Josephs’ report.
17 We note that, because the defendant has contended that its myriad
claims all fall within the scope of the certified question, we have slightly
recast its varied arguments so as to give them greater coherence as they
relate to the certified question.
18 The defendant cited Hill v. Lawrence & Memorial Hospital, Superior
Court, judicial district of Hartford, Complex Litigation Docket, Docket No.
X04-CV-05-4034622-S (June 30, 2008) (45 Conn. L. Rptr. 789), a case that the
defendant had brought to the trial court’s attention before the court granted
the plaintiff’s request for appointment of a commission.
19 We note that the Appellate Court raised legitimate questions as to
whether: (1) the defendant actually asserted the privilege, which raises
concerns as to its standing to assert a privilege that would seem to be
personal to the Mayo Clinic physicians; Milliun v. New Milford Hospital,
supra, 129 Conn. App. 107; and (2) the defendant took inconsistent positions
by seeking to discontinue the depositions and then claiming on appeal
that it was deprived of an opportunity to cross-examine McEvoy. Id., 103.
Nonetheless, we assume that the limitations on the depositions asserted by
the Mayo Clinic should be viewed effectively as the assertion of a purported
privilege, as the defendant seems to suggest, and that the defendant’s opposition
to the depositions was aimed at avoiding additional expense and inconvenience
when it believed that the Mayo Clinic’s position precluded the
plaintiff from eliciting the expert opinion necessary to support admission
of the reports.
20 The Appellate Court stated: ‘‘[T]he idea that an expert witness who
already has expressed an opinion in connection with the material facts of
a case cannot be called to testify as to the basis for such opinion is inconsistent
with the very nature of a trial as a search for truth . . . and in stark
contrast to the fundamental maxim that the public . . . has a right to every
man’s evidence. . . . Although we do not hold that a person may be compelled
to offer expert testimony in a case simply because he is an expert
in a particular field . . . that does not mean that a treating physician cannot
be compelled to testify at a deposition as to opinions documented in his
medical records and the statements made therein. In this connection, we
emphasize that both Josephs and McEvoy were disclosed as experts by the
plaintiff because, during the course of their care as treating physicians,
each offered a tangible opinion as to the causal connection between the
defendant’s alleged negligence and Leslie’s injuries. Because [t]here is no
justification for a rule that would wholly exempt experts from placing before
a tribunal factual knowledge relating to the case in hand [or] opinions
already formulated . . . we decline to accept the defendant’s invitation to
create a testimonial privilege that would prevent such witnesses from being
deposed in the present case.’’ (Citations omitted; emphasis in original; internal
quotation marks omitted.) Milliun v. New Milford Hospital, supra, 129
Conn. App. 108–109.

Outcome: The judgment of the Appellate Court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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