George v. Ericson, (SC 15808)

Decision Date24 August 1999
Docket Number(SC 15808)
CourtConnecticut Supreme Court
PartiesHELENE E. GEORGE v. DONALD W. ERICSON

Callahan, C. J., and Borden, Berdon, Norcott, Palmer, McDonald and Peters, JS. Charles W. Fleischmann, for the appellant (plaintiff).

Thomas M. Murtha, with whom was Michael O. Connelly, for the appellee (defendant).

Opinion

BORDEN, J.

The principal issue in this appeal is whether the evidentiary rule barring the admission of the testimony of a nontreating physician, as previously articulated by this court in Brown v. Blauvelt, 152 Conn. 272, 274, 205 A.2d 773 (1964), should be overruled. The plaintiff, Helene E. George, appeals1 from the judgment of the trial court, rendered upon a jury verdict. The verdict awarded the plaintiff compensatory economic damages only. Prior to the trial, the court had granted the motion of the defendant, Donald W. Ericson, to preclude the plaintiff from calling a nontreating physician as a witness. We conclude that Brown should be overruled, and that the trial court's exclusion of the nontreating physician's testimony was harmful. We therefore reverse the judgment of the trial court and remand the case for a new trial.

The plaintiff brought this negligence action against the defendant for injuries that the plaintiff sustained as a result of a May 13, 1993 collision between the automobiles operated by the plaintiff and the defendant on Post Road in Bridgeport. The jury rendered a verdict for the plaintiff, and awarded her $12,174 in economic damages, but awarded no noneconomic damages. The plaintiff moved: (1) to set aside the verdict and for a new trial; and (2) for an additur. The trial court denied these motions and rendered judgment on the verdict. This appeal followed.

At trial, both the defendant's liability and the extent of the plaintiffs injuries were contested. To the extent relevant to the principal issue in this appeal, the evidence regarding the plaintiffs injuries, both excluded and admitted, was as follows. The plaintiff was taken from the scene of the accident by ambulance to St. Vincent's Hospital. On the day following the accident, the plaintiff made an appointment with Stuart C. Belkin, an orthopedic surgeon. She consulted with Belkin for the first time several days later. During September, 1993, Belkin performed arthroscopic surgery, under general anesthesia, on the plaintiffs right knee. Belkin treated the plaintiff through December, 1993. In April, 1994, the plaintiff began treatment with Walter T. Shanley, also an orthopedic surgeon. Shanley's son was an acquaintance of the plaintiff, and had referred her to Shanley.

During the trial, neither Belkin nor Shanley2 testified in person. The medical reports of both physicians were introduced into evidence and read to the jury. With regard to the plaintiffs permanent disabilities, Belkin stated: "As a result of this patient's injuries I give her a 5 percent permanent partial impairment of her cervical spine and a 5 percent permanent partial impairment of her right knee." Shanley opined that "[d]ue to her motor vehicle accident of May 13, 1993, [the plaintiff] is left with a permanent partial disability of 5 percent to the cervical spine and a permanent partial disability of 20 percent to her right knee."

After the plaintiff had commenced this action, the defendant requested that the plaintiff submit to an independent physical examination3 by Robert C. George,4 a physician selected by the defendant. Thereafter, George evaluated the plaintiff. His evaluation was based on a review of the plaintiffs hospital records,5 a discussion with the plaintiff about her injuries, and a physical examination that included both subjective and objective components. With regard to the plaintiff's permanent injuries, George issued a written report that provided in relevant part: "I have no argument with the permanency rating given to her cervical spine, but would wonder with the history6 given and the findings at least reported on the original neck films ... that perhaps 1 percent or 2 percent of the 5 percent should be related to the prior accident and I would certainly at least raise that comment for consideration. With regard to her knee complaints, I think they are very real .... Since, in this kind of situation it is really difficult to assess a rating for pain and/or the perception thereof, my calculations come up with a permanency rating of 15 percent, and I am struggling to understand where the 20 percent comes from. I am not necessarily arguing that it is wrong. I am indicating that perhaps the rating surgeon ought to be consulted as to how he arrived at the 20 percent. That would at least form a logical basis for any further discussions, in trying to arrive at a `fair' figure...."

In his pretrial disclosure of expert witnesses,7 the defendant had indicated that he planned to call George as an expert witness "to testify as to the examination of the plaintiff ... including diagnosis, testing and the prognosis for the plaintiff." The plaintiff thereafter subpoenaed George to appear to testify during the trial. As a result of the plaintiffs compliance with the court's trial management order, the defendant was apprised that the plaintiff intended to call George as a witness to testify "as to [the] permanency of [the plaintiffs] neck injury and the permanency of her knee injury based upon his review of records and examination of the plaintiff." In a subsequent trial brief, the defendant no longer listed George in his list of witnesses and further indicated that he would object to George being called as a witness by the plaintiff.

Also, the defendant, relying on our decision in Brown v. Blauvelt, supra, 152 Conn. 274, filed a motion to preclude the plaintiff from calling George as a witness. The trial court, after considering the defendant's motion at the commencement of the trial, stated that it was "satisfied that the ... Brown case [was] still good law in this state and that the rationale behind it [was] appropriate to this case." Accordingly, the court granted the defendant's motion.

I

The plaintiff claims that we should overrule Brown and permit the introduction of testimony by a nontreating physician regarding his physical examination of a party in a civil action.8 Specifically, the plaintiff contends that "[w]hen a physician employed by a defendant performs a physical examination of a plaintiff, that physician obtains knowledge which should be available to the jury and not kept from the courthouse because of a single case which has outlived whatever utility it had." Moreover, the plaintiff, in order "[t]o limit the issues necessary to a resolution of the precise question presented," requests only that we overrule Brown in the situation in which a plaintiff, at the request of a defendant, is subject to a compulsory examination by a physician. We conclude, however, that Brown should be overruled in its entirety, and that the question of the admissibility of the opinion of a physician, whether treating or nontreating, should be governed by the same standards that govern the testimony of expert witnesses generally. We begin by recognizing that "[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.... Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996). Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996). It is the most important application of a theory of decisionmaking consistency in our legal culture and it is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.... Id., 658." (Internal quotation marks omitted.) Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 296, 695 A.2d 1051 (1997).

"This court, however, has recognized many times that there are exceptions to the rule of stare decisis. Principles of law which serve one generation well may, by reason of changing conditions, disserve a later one.... Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better.... The adaptability of the common law to the changing needs of passing time has been one of its most beneficent characteristics. A court, when once convinced that it is in error, is not compelled to follow precedent." (Internal quotation marks omitted.) Jolly, Inc. v. Zoning Board of Appeals, supra, 237 Conn. 196. "The arguments for adherence to precedent are least compelling, furthermore, when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants.... Hopson v. St. Mary's Hospital, 176 Conn. 485, 496 n.5, 408 A.2d 260 (1979), quoting B. Cardozo, [The Nature of the Judicial Process (1921)] p. 151.... Rarely do parties contemplate the consequences of tortious conduct, and rarely if at all will they give thought to the question of what law would be applied to govern their conduct if it were to result in injury." (Internal quotation marks omitted.) Conway v. Wilton, supra, 238 Conn. 661.

Finally, "[s]tare decisis is not an inexorable command. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)

]. The court must weigh [the] benefits [of stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust.... If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires." (Citation omitted; internal quotation marks omitted.) Conway v. Wilton, supra, 238 Conn. 660. We conclude that the time has come to overrule...

To continue reading

Request your trial
68 cases
  • Maldonado v. Flannery
    • United States
    • Connecticut Supreme Court
    • May 3, 2022
  • St. George v. Gordon
    • United States
    • Connecticut Supreme Court
    • July 1, 2003
    ... ... Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999) ... We are further mindful that "[i]n assessing the force of stare decisis, our case law has emphasized that ... ...
  • R.T. Vanderbilt Co. v. Hartford Accident & Indem. Co.
    • United States
    • Connecticut Court of Appeals
    • March 7, 2017
  • State v. Peeler
    • United States
    • Connecticut Supreme Court
    • June 7, 2016
  • Request a trial to view additional results
2 books & journal articles
  • 1999 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 74, 1999
    • Invalid date
    ...omitted). 63. See supra, note 3. 64. See supra, note 30. 65. See supra note 39. 66. See supra, note 40. 67.See supra, note 14. 68. 250 Conn. 312, 736 A.2d 889 (1999). 69. See supra, note 36. 70. See supra, note 53. 71. See supra, note 6. 72. 249 Conn. 265 (1999). 73. See Rubin v. Rubin, 204......
  • Workers' Compensation Developments 2009
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 84, 2010
    • Invalid date
    ...was to qualify the physician to testify. Marandino, 294 Conn. at 594. Query whether Cooke remains good law in view of George v. Ericsson, 250 Conn. 312 (1999), which overruled Brown v. Blauvelt, 152 Conn. 274 (1964), on grounds that would arguably apply to Cooke. 83. Id. at 594. 84. Id. at ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT