Argued
January 28, 2019
Appeal
from the Superior Court, Judicial District of Fairfield,
William B. Rush, Judge Trial Referee.
Page 99
[Copyrighted Material Omitted]
Page 100
Eroll
V. Skyers, for the appellant (defendant).
John H.
Harrington, for the appellee (plaintiff).
Lavine,
Sheldon and Prescott, Js.[*]
OPINION
SHELDON,
J.
[190
Conn.App. 451] The defendant, the city of Bridgeport, appeals
from the judgment of the trial court, rendered upon the
verdict of a jury, awarding damages to the plaintiff, Victor
DeMaria, for injuries he sustained in a fall that occurred on
the defendants sidewalk. On appeal, the defendant claims
that the trial court improperly admitted into evidence
certain medical records that had been written by Miriam
Vitale, a physician assistant who was the plaintiffs primary
care provider at the veterans affairs hospital (hospital) in
West Haven, under General Statutes § 52-174
(b).[1] We agree with the defendant that the
court improperly admitted the medical records written by
Vitale into evidence under § 52-174 (b), and that the
defendant was harmed by the courts error. Accordingly, we
reverse the judgment of the trial court and remand the case
for a new trial.
The
record reveals the following procedural history and facts, as
the jury reasonably could have found them. [190 Conn.App.
452] On March 27, 2014, the plaintiff tripped while walking
on the sidewalk of Fairfield Avenue in Bridgeport, when he
caught his foot on a raised portion of the sidewalk. As a
result, the plaintiff fell forward onto his face and hands,
causing him to suffer abrasions to his nose and hands, a
broken nose and a broken finger on his left hand.
Approximately two months after his fall,
Page 101
the plaintiff began to experience a burning sensation in his
left arm, weakened grip strength and a limited range of
motion in his left hand. He sought medical attention at the
hospital, where he consulted neurologists, radiologists,
physical therapists, occupational therapists and his primary
care provider, Vitale, concerning his symptoms. After the
plaintiff had received approximately two and one-half years
of treatment, including extensive physical and occupational
therapy, Vitale wrote a document for his medical file titled
"Final Report of Injury," in which she opined that
the plaintiff had reached the maximum potential use of his
left hand, he retained only 47 percent of his former grip
strength and he continued to experience pain and neuropathy
in that hand. She further concluded that "these injuries
were caused with a reasonable degree of medical certainty by
the March 27, 2014 accident, [specifically], [to the] left
fourth and fifth digit, a permanent disability of neuropathy,
as well as left hand permanent weakness occurring as a result
of fall and impact of [the plaintiff] during the fall."
The
plaintiff brought this action against the defendant for
economic and noneconomic damages under General Statutes §
13a-149,[2] alleging that his injuries had been
caused by the defendants failure to remedy a defect in its
sidewalk, which it knew or should have known would cause
injuries to pedestrians. Prior to [190 Conn.App. 453] trial,
the defendant filed a motion in limine to preclude the
admission of Vitales treatment records, treatment reports,
findings, conclusions, and medical opinions as evidence at
trial. The defendant argued that Vitales medical records
were inadmissible under § 52-174 (b) because the defendant
would have no opportunity to cross-examine her, either at a
deposition or at trial, because she was prevented from
testifying by 38 C.F.R. § 14.808.[3] The plaintiff responded
that precluding the medical records would result in an
injustice to him merely ...