Opinion
No. CV00 037 45 34 S
September 20, 2004
MEMORANDUM OF DECISION RE MOTION TO PRECLUDE
The plaintiff has filed an action pursuant to General Statutes § 31-290a claiming that he was discharged from his employment with the defendant Town of Stratford in retaliation for his filing a claim for Workers' Compensation benefits. The plaintiff alleges that he was injured in the course of his employment on October 15, 1993. He filed for and received Workers' Compensation benefits. He returned to work in December 1995. Beginning in January 1996 and continuing to April 1997, the defendant required the plaintiff to undergo random drug testing. The plaintiff alleges that during this time period the defendant harassed him and placed him under surveillance. On April 15, 1997, the plaintiff refused to submit to drug testing, alleging that this test was his third in the span of approximately one month. The defendant held a termination of employment hearing on May 1, 1997 and recommended the discharge of the plaintiff. On May 7, 1997, the plaintiff was discharged from his employment. Subsequently, the plaintiff was rehired by the defendant.
The plaintiff claims that his discharge and the defendant's alleged discriminatory behavior towards him was in retaliation for his exercising his rights to file for and receive Workers' Compensation benefits, and that said discharge and behavior was in violation of General Statutes § 31-290a. The plaintiff seeks damages for lost wages and employee benefits, as well as damages for extreme emotional distress, attorneys fees and punitive damages.
In response, the defendant denies the plaintiff's allegations and states that the defendant did not institute its policy of random drug testing until February 1995, and the plaintiff was not subjected to a first test until November 1995. In November 1995 the plaintiff's drug test was positive for the presence of drugs. He was, thereafter, required to submit to follow-up testing. The plaintiff complied with this testing on numerous occasions between January 1996 and April 1997 with negative results. On April 15, 1997, the plaintiff refused to submit to a third drug test in a five-week period. He was then discharged from his employment.
The defendant has filed a motion to preclude the plaintiff from offering expert testimony regarding the plaintiff's psychiatric treatment from Dr. David Zucker in support of the plaintiff's claim for emotional distress. The motion to preclude also seeks to preclude the plaintiff from offering any testimony or evidence with respect to his psychiatric treatment. The defendant in filing this motion to preclude, argues that the plaintiff has failed to file a disclosure of expert witnesses in accordance with Practice Book § 13-4. Furthermore, the defendant argues that the proposed report from Dr. Zucker fails to qualify as admissible evidence in several ways. First, it does not state that the plaintiff suffers from extreme emotional distress, although the report does state that the plaintiff is depressed and cannot work. Second, the report predates the plaintiff's termination of employment, which is the subject of this action. There is no report being offered by the plaintiff regarding his mental state following the termination. Third, there is nothing in the report that establishes a causal connection between the plaintiff's depression and his termination of employment by the defendant. Lastly, there is no information in Dr. Zucker's records that some pattern of harassment by the defendant occurred at the plaintiff's work that caused any emotional distress to the plaintiff.
The plaintiff in opposing the motion to preclude argues that the report and other documents from Dr. Zucker have been in the defendant Town of Stratford's personnel files for the plaintiff since 1996 and 1997, and therefore, the defendant cannot now claim to be prejudiced by their admission into evidence. Secondly, the plaintiff states that the report and documents are not expert testimony. Three documents indicate the dates on which the plaintiff was under the doctor's care and could not return to work. The fourth document that the court has referred to as Dr. Zucker's report states that the plaintiff is under Zucker's care for depression and cannot work. The report states that the plaintiff's depression "appears to stem from work related conflicts, as well as, relationship issues." The plaintiff cites Arnone v. Enfield, 79 Conn.App. 501, 523-26, 831 A.2d 260, for the proposition that Dr. Zucker's records are not being offered as the records of an expert witness, but only as a reporter of facts. The plaintiff additionally argues that a doctor's late-disclosed report may still be admitted with the expert opinion omitted. Opotzner v. Bass, 63 Conn.App. 555, 567-69 (2001), cert. denied, 259 Conn. 930 (2002).
The court, therefore, must first determine the capacity under which Dr. Zucker's reports are offered before turning to whether they should be admitted without prior disclosure pursuant to Practice Book § 13-4.
I EXPERT WITNESSES AND FACT WITNESSES
A lay witness or fact witness provides facts that are within his or her personal knowledge without providing an opinion concerning such facts. The test for determining whether a witness is an expert is whether the witness has any peculiar knowledge or experience, not common to the world, that renders his opinion of assistance to the trier of fact. See Jaffe v. State Dept. of Health, 135 Conn. 339, 348, 64 A.2d 330 (1949). The test for expert testimony, requires (1) whether the witness has peculiar knowledge or experience; LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002); and (2) whether that knowledge or experience renders his opinion of assistance to the trier of fact.
"The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions." State v. Sherman, 38 Conn.App. 371, cert. denied, 235 Conn. 905 (1995). "The exercise of this discretion will not be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Citations omitted.) Id. at 407-08. An expert may testify in the form of an opinion and give his reasons therefore, provided that sufficient facts are shown as the foundation for the expert's opinion. See Code of Evidence Sec. 7-4(a); see also, State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).
Section 7-2 of the Connecticut Rules of Evidence requires that expert testimony be allowed if it will assist the trier of fact. In order to find that the evidence is of assistance to the trier of fact, the trial court must essentially find that the evidence is relevant and that it is necessary. Daley v. Wesleyan, 63 Conn.App. 119, 772 A.2d 725 (2001). An expert's opinions are only of assistance if the opinions are based on probability. It is of no assistance to the trier of fact if the opinion rendered is merely a personal opinion or if it is not an opinion regarding proximate cause or the standard of care. Vona v. Lerner, 72 Conn.App. 179, 190, 804 A.2d 1018 (2002). Expert testimony is usually required to show the cause of injury or disease because "the medical effect on the human system of the infliction of injuries is not generally within the sphere of the common knowledge of the lay person." Shegog v. Zabrecky, 36 Conn.App. 737, 745-46, 654 A.2d 771, cert, denied, 232 Conn. 922, 656 A.2d 670 (1995); Poulin v. Yasner, 64 Conn.App. 730, 781 A.2d 422 (2001), cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001). When a plaintiff's medical condition is obvious, no expert testimony is required. Poulin v. Yasner, supra, quoting Shegog v. Zabrecky, supra.
The plaintiff wishes to introduce records from Dr. Zucker consisting of one report dated December 12, 1996 and three work restriction notes dated November 26, 1996, December 6, 1996 and January 10, 1997, respectively. The work restriction notes inform the defendant employer that the plaintiff is under Dr. Zucker's care and is restricted from working for various periods of time between November 26, 1996 and January 22, 1997. The report also confirms that the plaintiff is under Dr. Zucker's care and states, "At the present time I feel that he (the plaintiff) is extremely depressed and cannot work. His depression appears to stem from work related conflicts, as well as relationship issues . . ." Dr. Zucker then informs the defendant that the plaintiff's disability is anticipated to be four weeks from the date of the report. The report does not set forth a patient history, nor does it state in any specific detail the source or description of any "work-related conflicts" or "relationship issues." The report does not state that the doctor has affirmatively diagnosed a clinical condition of depression or that he is medically certain that the plaintiff is suffering from depression. Rather, the doctor states he "feels" that the plaintiff is "extremely depressed." The doctor also says that "it appears" that any depression stems from work-related conflicts, as well as, relationship issues. The relationship issues have not been sufficiently tied to the work-related conflicts. One could be left to speculate whether the relationship issues are work relationships or personal relationships. To allow the plaintiff to introduce this one-page report consisting of eight lines of text would be more prejudicial than probative. There is no foundation for Dr. Zucker's ultimate conclusions.
The opinions stated in Dr. Zucker's report are clearly medical opinions based upon the specialized medical field of psychiatry, and as such, are the opinions of an expert witness, not a fact witness. The symptoms of depression, such as could cause the plaintiff to be absent from work from November 26, 1996 to January 22, 1997, are not symptoms readily within the knowledge of the lay person. "Expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Internal quotation marks omitted.) Richards v. Richards, 82 Conn.App. 372, 375, 842 A.2d 1177 (2004); Ahern v. Fuss O'Neill, Inc., 78 Conn.App. 202, 209, 826 A.2d 1224, cert. denied, 266 Conn. 903, 832 A.2d 64 (2003). The brevity of the report and the speculation and uncertainty of a clear diagnosis and causal connection to the plaintiff's allegations against the employer would not assist the trier of fact, even if the court were to admit the report, despite the question of the late disclosure of Dr. Zucker as an expert.
II LATE DISCLOSURE OF AN EXPERT WITNESS
The defendant argues that the plaintiff has never filed a disclosure of expert witnesses in accordance with Practice Book § 13-4, and thus, has never identified the person who would support the plaintiff's claim of extreme emotional distress and its causal relationship to the allegations against the defendant. The defendant claims that it has a right to know well before testimony is to begin who will be called as an expert witness. The plaintiff first disclosed that it wished to admit as exhibits Dr. Zucker's report and notes on the first day of jury selection.
Practice Book § 13-4, formerly known as Practice Book § 220, reads in relevant part:
(4) In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any 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 other 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 progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. Once the substance of any opinion or opinions of an expert witness who is expected to testify at trial becomes available to the party expecting to call that expert witness, disclosure of expert witness information shall be made in a timely fashion in response to interrogatory requests pursuant to subdivision (1)(A) of this rule, and shall be supplemented as required pursuant to Section 13-15. Any expert witness disclosed pursuant to this rule within six months of the trial date shall be made available for the taking of that expert's deposition within thirty days of the date of such disclosure. In response to any such expert disclosure, any other party may disclose the same categories of information with respect to expert witnesses previously disclosed or a new expert on the same categories of information who are expected to testify at trial on the subject for that party. Any such expert or experts shall similarly be made available for deposition within thirty days of their disclosure. Nothing contained in this rule shall preclude an agreement between the parties on disclosure dates which are part of a joint trial management order.
The disclosure requirements of Practice Book § 13-4 apply with equal force to treating physicians, as well as, independent experts. Sung v. Butterworth, 35 Conn.App. 154, 158, 644 A.2d 395 (1994). Merely supplying opposing counsel with an expert's report is not enough to satisfy the requirement of Practice Book § 13-4(4). Caccavale v. Hospital of St. Raphael, 14 Conn.App. 504, 506-08 (1988), cert. denied, 208 Conn. 812 (1988).
"Three requirements must be met for a trial court's order of sanctions for a violation of a discovery order to withstand scrutiny. First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court's intended meaning . . . Second, the record must establish that the order was in fact violated . . . Third, the sanction imposed must be proportional to the violation." (Internal quotation marks omitted) Menna v. Jaiman, 80 Conn.App. 131, 135, 832 A.2d 1219 (2003).
The mandates of Practice Book § 13-4 are reasonably clear. The plaintiff was required to disclose Dr. Zucker as an expert within a reasonable time prior to trial. This merely required the plaintiff to comply with the rules of practice. Id. 135-36; see also, Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 759, 785 A.2d 588 (2001). The record reveals and it is admitted by the plaintiff that he did not previously disclose his intent to use Dr. Zucker's report and notes for the substance and expert opinion regarding the plaintiff's depressed state of mind and the possibility that it was work-related. "Practice Book § 13-4(4) sets forth an affirmative duty that "[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 . . ." Id. at 136. The plaintiff did not comply with the requirements of Practice Book § 13-4(4).
The question is therefore whether the sanction of excluding the report and notes of Dr. Zucker is proportionate to this violation by the plaintiff. Practice Book § 13-4(4) specifically authorizes the court to preclude expert testimony if the plaintiff fails to disclose such experts properly. The court feels that preclusion of Dr. Zucker's report and the "three return to work" notes would be proportionate and proper.
Allowing the plaintiff to use Dr. Zucker's reports and notes without prior disclosure to the defendant would cause undue prejudice to the defendant. Neither party has requested a continuance, but the court determines that to delay the trial, where a jury has now been selected, would cause undue interference with the orderly progress of the trial. The court does not find bad faith by the plaintiff, as the defendant did have these reports and notes in its possession since 1996, and in fact, the defendant at a deposition of the plaintiff, did pose questions to the plaintiff relating to his treatment with Dr. Zucker. However, the defendant should not be left in a position of guessing whether or not the plaintiff relies upon Dr. Zucker for an expert opinion regarding the plaintiff's alleged depression and emotional distress. Additionally, the defendant should not have to speculate, whether the plaintiff will present opinions of Dr. Zucker regarding a causal connection between these symptoms and the alleged actions of the defendant in discharging the plaintiff from his employment.
The disclosure requirements of Practice Book § 13-4 apply to treating physicians, as well as, independent experts, as previously noted. See. Rosenberg v. Castaneda, 38 Conn.App. 628, 662 A.2d 1308 (1995); see also, Gemme v. Goldberg, 31 Conn.App. 527, 535, 626 A.2d 318 (1993); Bank of Boston v. Ciarleglio, 26 Conn.App. 503, 509, 604 A.2d 359, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992); Yale University School of Medicine v. McCarthy, 26 Conn.App. 497, 500, 602 A.2d 1040 (1992). The disclosure requirements are also applicable to written medical reports, despite the otherwise admissibility of medical reports as business entries under General Statutes § 52-174(b). Rosenberg v. Casteneda, supra, 38 Conn.App. 628. "It is readily apparent that introducing a medical report at the time of trial is of no value to a defendant in preparation for trial. `The rules of discovery are designed to make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.' (Internal quotation marks omitted.) Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106, 476 A.2d 1074 (1984)." Id. at 632. The plaintiff has not offered the court any explanation showing good cause for why Practice Book § 13-4 was not complied with.
The court is not insensitive to the plaintiff's plight, however. The court is cognizant that the defendant was not totally unaware of the plaintiff's treatment with Dr. Zucker during the time periods relevant to the plaintiff's allegations against the defendant. The defendant did examine the plaintiff at a deposition regarding his treatment with Dr. Zucker. The defendant has had copies of the reports and notes at issue, in its possession since 1996. The court, thus, feels that it would be unreasonable to omit all references to Dr. Zucker from the trial and the plaintiff's own testimony. Instead, the court has reviewed the case of Opotzner v. Bass, 63 Conn.App. 555, 777 A.2d 718 (2001), and concludes that a redaction of portions of Dr. Zucker's report is a more proportionate penalty to impose for the plaintiff's non-disclosure. Therefore, the court will not preclude the use of the three "back-to-work" notes from Dr. Zucker. Further, regarding the report of Dr. Zucker, the court orders that all references to the plaintiff's depression be redacted, as well as, references to work-related conflicts and relationship issues. The report, therefore, will only state that the plaintiff "is under my care" and that the plaintiff "has denied current substance abuse." The report in this form has omitted any reference to an expert opinion regarding depression and any speculation as to what caused the depression. This ruling takes into account the lack of compliance with Practice Book § 13-4, as well as, the lack of foundation for the conclusions contained, by Dr. Zucker in the non-redacted report.
THE COURT
Arnold, J.