Seperack v. Solaz, 6581

• Decision Date: 26 April 1989
• Docket Number: No. 6581,6581
• Court: Connecticut Court of Appeals
• Parties: Edward J. SEPERACK et al. v. Effie SOLAZ.

Page 175

556 A.2d 175

17 Conn.App. 684

Edward J. SEPERACK et al. v. Effie SOLAZ.

No. 6581.

Appellate Court of Connecticut.

Submitted on Briefs Dec. 22, 1988.

Decided March 21, 1989.

Petition for Certification Denied April 26, 1989.

Laurence V. Parnoff, Bridgeport, filed a brief for appellants (plaintiffs).

Lawrence A. Ouellette, Jr., Bridgeport, filed a brief for appellee (defendant).

Before BORDEN, DALY and FOTI, JJ.

FOTI, Judge.

In this negligence action, stemming from an automobile accident, the plaintiffs ¹ appeal from the judgment rendered in their favor, after a jury trial, challenging the adequacy of the jury's award of damages. The plaintiff claims the court erred (1) in giving a Secondino instruction to the jury, (2) in failing to admit certain medical reports into evidence, (3) in failing to instruct the jury, as the plaintiff requested, on the issue of permanency, and (4) in failing to set aside the verdict as inadequate. We find no error.

I

The plaintiff's first claim is that the trial court erred in instructing the jury that it could draw an adverse inference from the fact that he failed to call as witnesses his treating physicians, whose reports had been submitted into evidence pursuant to General Statutes § 52-174(b). ² We disagree.

The plaintiff's complaint did not specify the exact nature of the injuries sustained as a result of the accident but only that he had suffered "permanent" and "serious" injuries. Prior to trial, the only related medical conditions disclosed by the plaintiff were an injury to his upper back and neck, headaches and memory loss. On August 24, 1987, the date the case was called for trial, the plaintiff disclosed that in addition to his neck and upper back injury, he was also claiming a related injury to his lower back. He claimed that he had been receiving treatment for a herniated disc in his lower back since May, 1986, and that surgery was required to cure this ailment.

During the trial, pursuant to General Statutes § 52-174(b), the plaintiff introduced into evidence a number of documents relating to the injuries he sustained as a result of the accident, including certain Bridgeport Hospital records indicating that the plaintiff had complained of pain in his neck and right shoulder and the following reports prepared by the plaintiff's treating physicians: Eugene Citrano's report diagnosing the plaintiff's injuries as "muscular and ligamentous strain and sprain of the neck and back"; David B. Brown's report which referred only to injuries to the upper back and neck; K.N. Sena's report, prepared more than fourteen months after the accident, which indicated that the plaintiff was suffering from mid lower back pain; and the report of Robert Russo, Jr., which noted "a minimal bulge of the annulus ... at L5-S1."

The defendant presented evidence that Citrano, Brown, Sena and Guido were available and requested the court to give a Secondino charge. ³ The defendant argued that the plaintiff had the burden of showing that the herniated disc in his lower back was caused by the accident, and that, consequently, the treating physicians should have been produced by the plaintiff to clear up the ambiguities in their respective reports.

In addition to giving a Secondino charge, the court read General Statutes § 52-174(b) and (c) verbatim to the jury. The court instructed the jury that in considering whether it would be natural for the plaintiff to produce a witness, the jury also should consider General Statutes § 52-174(b), which permits the plaintiff to introduce reports and bills of a treating physician without the necessity of producing the physician as a witness at trial. The court also instructed the jury that it should consider evidence of the plaintiff's attempts to present these witnesses and the difficulties involved in procuring a doctor's in-court appearance.

The plaintiff's first challenge to this charge is that it was improper per se for the court to instruct the jury that it could draw an adverse inference from his failure to produce the treating physicians at trial because such a charge specifically negates the purpose, intent and rationale of General Statutes § 52-174(b). We find this argument unpersuasive.

This court has implicitly affirmed the use of a Secondino charge as a proper vehicle for a defendant to challenge a plaintiff's medical evidence albeit introduced pursuant to General Statutes § 52-174(b). See Pulaski v. Ledwith, 5 Conn.App. 629, 632, 501 A.2d 396 (1985), cert. denied, 198 Conn. 803, 503 A.2d 1186 (1986); see also Grabowski v. Fruehauf Trailer Corporation, 2 Conn.App. 167, 477 A.2d 685 (1984). The inclusion of a Secondino charge in a case in which a plaintiff takes advantage of the liberal evidentiary provisions of General Statutes § 52-174(b) does not, as the plaintiff asserts, negate the purpose of this provision, nor does the language of the statute preclude such a charge.

General Statutes § 52-174(b) permits a party, in an action for personal injuries, to introduce as a business record a physician's signed treatment report and bills. This statute serves the remedial purpose of relieving a party from the burden of establishing the evidentiary prerequisites for introducing a business record. See General Statutes § 52-180. The rationale for allowing self-authenticating documents from physicians in personal injury or wrongful death actions is to avoid trial delays due to the difficulty in scheduling doctors' appearances; especially because in the majority of cases the physician's testimony is consistent with his treatment report. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 3, 1977 Sess., pp. 689-90, testimony of Richard Bieder and Sen. Salvatore C. DePiano.

Furthermore, the language of this statute is permissive, and does not preclude the giving of a Secondino charge in a case in which a party utilizes General Statutes § 52-174(b). Section (c) of the statute expressly provides: "This section shall not be construed as prohibiting either party or the court from calling the treating physician.... as a witness." Thus, even though a party takes advantage of this evidentiary shortcut to the introduction of a physician's report, he or opposing counsel remains at liberty to call the witness to explain or supplement a written report. When a party's failure to produce a physician can be attributed to General Statutes § 52-174, that party can request a jury instruction explaining the statute and its purpose.

General Statutes § 52-174 is a rule of judicial economy and does not, by implication or statutory fiat, lend instant credibility to a doctor's report. "Once in evidence, the [physician's] report and the hospital records are subject to the same standards of credibility as any other evidence." Pulaski v. Ledwith, supra, 5 Conn.App. at 632, 501 A.2d 396. "It is basic that the merit of each party's presentation is to be evaluated not only in the light of the evidence he produces at trial but also in consideration of the evidence available to him that he would naturally be expected to produce if it were favorable to him. 'It is an ancient maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.' Secondino v. New Haven Gas Co., 147 Conn. 672, 674, 165 A.2d 598 (1960)." Pedersen v. Vahidy, 209 Conn. 510, 524-25, 552 A.2d 419 (1989). On the basis of the language of this statute and its purpose, we conclude that it is not improper per se to give a Secondino charge in a case in which a party has introduced physicians' reports pursuant to General Statutes § 52-174(b).

Having determined that General Statutes § 52-174 does not preclude the court from giving an adverse inference charge, we must decide whether the charge was appropriately given under the circumstances of this case. We conclude that the instruction was proper.

The Secondino rule is well established and permits a jury to draw the adverse inference that the failure of a party to produce a witness implies that that witness, if called, would have exposed facts unfavorable to the party's cause. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn.App. 447, 460, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986); Secondino v. New Haven Gas Co., supra, 147 Conn. at 675, 165 A.2d 598. In order to draw this inference, the jury must first find (1) that the witness was available, and (2) that the witness was one the party would naturally produce. Grabowski v. Fruehauf Trailer Corporation, supra, 2 Conn.App. at 170, 477 A.2d 685; Secondino v. New Haven Gas Co., supra. " ' "To charge a party on this rule, the party claiming the benefit of the rule must show he is entitled to it...." ' " (Citations omitted.) Grabowski v. Fruehauf Trailer Corporation, supra, citing Nichols v. Coppola Motors, Inc., 178 Conn. 335, 340-41, 422 A.2d 260 (1979).

The plaintiff does not contest the availability of the physicians but argues that there was no basis in the evidence for the court to give the adverse inference charge because the evidence demonstrated that the physicians, if called to testify, would have supported the plaintiff's position. We presume that the plaintiff is challenging the second requirement under Secondino and arguing that he would not naturally produce the physicians because their testimony would merely have been repetitious of their treatment reports. The record in this case demonstrates that the trial court could reasonably have found that their testimony might have aided the jury in reaching its verdict, and would not have been merely cumulative.

Guido's report indicated a diagnosis of a ruptured disc in the plaintiff's lower back. The balance of the other medical evidence showed no indication of related lower back problems for approximately fifteen months of treatment after the accident. Russo's x-ray report indicated only a minimal...