author: RONAN, J. SCUALLER, J.,

text:
    STATE OF CONNECTICUT v. CHRISTOPHER G. BERNIER
    (AC 15731)
    Dupont, C. J., and Schaller and Ronan, Js.

      Argued February 28
    officially released August 26, 1997

      Jack Fischer, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Guy Wolf III, senior assistant state’s attorney, for the appellant (state).

      Joseph F. Keefe, with whom, on the brief, was A. Thomas Waterfall, for the appellee (defendant).
   Opinion

RONAN, J.

The principal issue in this appeal is whether the state constitution, article first, § 7, requires that a search warrant be obtained prior to conducting laboratory tests on charred wood flooring samples seized from the defendant’s home. The flooring samples were seized incident to an investigation to determine the cause and origin of a fire that caused substantial damage to the defendant’s home.

The defendant, Christopher G. Bernier, was charged with arson in the first degree in violation of General Statutes § 53a-111. The trial court denied the defendant’s initial motion to suppress evidence obtained during a warrantless seizure incident to a fire investigation of the fire scene. The court ruled that the warrantless seizure was legally justified due to exigent circumstances and because it was part of an investigation of the cause and origin of the fire. Thereafter, in an amended motion to suppress, the defendant moved to suppress as the fruit of an illegal search any and all evidence obtained as a result of the chemical analysis of the charred flooring samples. The trial court granted that motion and ordered the chemical analysis of the flooring samples suppressed. The trial court then granted the defendant’s motion to dismiss the charges against him, and the state requested permission to appeal pursuant to General Statutes § 54-96. Upon denial of this request by the trial court, the state moved for review of the trial court’s denial and requested permission to appeal. The state’s motion for review and permission to appeal was subsequently granted by this court. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the state’s appeal. On November 15, 1990, the fire department of the town of Morris responded to a house fire alarm at the defendant’s home. Firefighters and equipment arrived at the scene at 8:37 a.m. to begin fire suppression measures. At 9:11 a.m., Joel Skilton, the local fire marshal, requested the state fire marshal’s assistance in conducting an investigation to determine the cause and origin of the fire. At 10:53 a.m., Detectives James Pierpont and Julio Fernandez of the state fire marshal’s office, arrived at the house and met with Skilton. Pierpont was accompanied by an accelerant detecting dog. The detectives and Skilton walked around the exterior of the house inspecting the fire damage and photographing the exterior. While taking photographs, they entered the interior of the home. As a part of their investigative inspection, they checked various rooms and moved various items of debris and furniture. In the living room, they observed a low bum pattern and pour patterns on the living room floor. These indicated the presence of a flammable liquid. Thereafter, the accelerant detecting dog was brought into the house. The dog alerted the fire investigators to several pour pattern areas. Because of those findings, four samples of charred wood flooring were taken from four different areas of the house. The cause and origin investigation was concluded prior to the investigators’ leaving the scene of the fire.

The samples were placed in four separate cans and transmitted to the state police forensic science laboratory on November 16, 1990, the day after the fire. A moderate odor of petroleum was detected when the laboratory personnel opened one of the cans containing the samples. Gas chromatographic analysis revealed the presence of something similar to gasoline in three of the samples and a “medium range petroleum distillate” in all four samples. The laboratory report was dated November 29, 1990.

The state argues that although the trial court’s decision rests on state constitutional grounds, it is based on an improper application of several Connecticut Supreme Court decisions, particularly State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), and State v. Miller, 227 Conn. 363, 630 A.2d 1315 (1993). The state urges this court to adopt its view that a warrant was not and should not have been required to test the samples that were seized at the scene of the fire as part of the cause and origin investigation. The underlying rationale of the state’s argument is that such a requirement would add little or no privacy protection, while unnecessarily hampering the compelling public interest in determining the cause and origin of a fire.

I

General Statutes § 29-3 ll entrusts the state fire marshal and any local fire marshal within his jurisdiction with the responsibility of investigating the cause and origin of any fire or explosion. General Statutes § 29-311 (a) allows a fire marshal to make a warrantless entry onto any premises where a fire or explosion had occurred in order (1) to investigate to determine the cause and origin of the fire or explosion, (2) to prevent the intentional or unintentional destruction of evidence and (3) to prevent a rekindling of the fire. Other statutory sections, including General Statutes §§ 29-302 and 29-310, describe additional duties of the state and local fire marshals.

The constitutions of Connecticut and the United States “ ‘equally and conjointly prohibit unreasonable warrantless searches of private property. U.S. Const., amends. IV and XIV, § 1, Conn. Const., art. I, § 7.’ ” State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978).

“ [Warrantless searches and seizures inside a house are presumptively unreasonable.” State v. Gant, 231 Conn. 43, 63, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); see State v. Zindros, supra, 189 Conn. 237; State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). The state bears the burden of showing that an exception to the warrant requirement applies. See State v. Blades, 225 Conn. 609, 618, 626 A.2d 273 (1993); State v. Vargas, supra, 496; State v. Glenn, 30 Conn. App. 783, 785, 622 A.2d 1024 (1993). “[Ajbsent consent to entry or exigent circumstances, a judicial determination of probable cause must stand in between the police and the door of a person’s home, whether the object of an entry is to search and seize or to arrest.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92 n.17, 675 A.2d 866 (1996); State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).

In recent years, our Supreme Court has decided a number of cases on the basis of the state constitution noting that “ ‘the law of the land’ may not, in state constitutional context, also be the ‘law of the state of Connecticut.’ ” State v. Dukes, 209 Conn. 98, 113-14, 547 A.2d 10 (1988); see also State v. Miller, supra, 227 Conn. 379-80; State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). The Supreme Court has pointed out that “federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . We have also, however, determined in some instances that the protections afforded to citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Morales, 232 Conn. 707, 716-17, 657 A.2d 585 (1995); State v. Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990).

“In determining whether the results of [a] chemical test . . . should have been suppressed under the state exclusionary rule, as the product of a search that violated the state constitution, we employ the same analytical framework that would be used under the federal constitution. We must determine (1) whether there was a reasonable expectation of privacy in the [samples], (2) whether the testing of the [samples] at the state laboratory constituted a search, and (3) if so, whether the circumstances of this case fall within a recognized exception to the warrant requirement.” State v. Joyce, supra, 229 Conn. 18-19. Here, the trial court conducted a fact specific inquiry into all the circumstances and made the determination that the defendant did manifest the requisite subjective expectation of privacy with respect to his living room floor and that expectation is one that society would consider reasonable. We conclude that (1) the defendant had an expectation of privacy in the samples and that expectation was reasonable, (2) the testing was a search within the meaning of article first, § 7, of the Connecticut constitution, and (3) the search did not fall within a recognized exception to the warrant requirement.

A

For the samples to fall within the protection of article first, § 7, the defendant must have had a reasonable expectation of privacy. See State v. Joyce, supra, 229 Conn. 20; see also State v. Hill, supra, 237 Conn. 92. To meet this rule of standing, a two part test must be satisfied: (1) the owner or custodian of the property must have manifested a subjective expectation of privacy with respect to it; and (2) that expectation must be one that society would consider reasonable. See State v. Hill, supra, 92; State v. Joyce, supra, 20; State v. DeFusco, 224 Conn. 627, 633, 620 A.2d 746 (1993). This test is applied on a case-by-case basis. See State v. Joyce, supra, 20; State v. Reddick, 207 Conn. 323, 331, 541 A.2d 1209 (1988).

1

The state cannot persuasively argue that there is no reasonable expectation of privacy in one’s home, just as in Joyce the state had to concede that there is such an expectation in “the clothes that one wears.” State v. Joyce, supra, 229 Conn. 21. Here, the state contends that the defendant’s privacy interests in the charred wood flooring samples from the defendant’s home were “negligible—if not nonexistent.” The state suggests that, because the samples of flooring were lawfully seized, the defendant no longer can claim a reasonable expectation of privacy in them. The Joyce court made it clear that even a claimed personal possession (clothing) that was presumably no longer fit for use (charred, wet, cut up etc.) was still a personal possession in which the owner had a legitimate expectation of privacy. See id., 23. The state’s argument also fails in the face of the heightened protection that the Supreme Court and this court have granted to the privacy interest one has in one’s home. See, e.g., State v. Geisler, supra, 222 Conn. 687-89; State v. Mooney, 218 Conn. 85, 111, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

In Joyce, our Supreme Court held that a warrantless chemical analysis of the defendant’s wet, cut up and partially burned clothing constituted an unconstitutional search under article first, § 7, of the Connecticut constitution. As in Joyce, the defendant in the present case left his property behind out of necessity because of the fire in his home. He did nothing to suggest that he was discarding or abandoning his living room flooring. If anything, the facts in this case are more supportive of the defendant’s subjective expectation of privacy than those in Joyce, in that the flooring seized was a part of the interior of the defendant’s home as opposed to being a pile of wet, cut up, burned clothing found in the street.

2

The next issue is whether the defendant’s subjective expectation of privacy is one that society would consider objectively reasonable. See State v. DeFusco, supra, 224 Conn. 633.

“Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 92. “In reviewing this claim, this court must take the facts found by the trial court unless those facts are clearly erroneous.” State v. Carter, 22 Conn. App. 118, 122, 576 A.2d 572 (1990); see also State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989); State v. Zindros, supra, 189 Conn. 242. “A trial court’s finding that a defendant did not have a reasonable expectation of privacy in the area searched may not be overturned by the reviewing court unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” (Internal quotation marks omitted.) State v. Torres, 36 Conn. App. 488, 499, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995).

The location of the place searched can be an important factor indicating whether a person’s expectation of privacy is one that society is prepared to recognize as reasonable. See, e.g., id., 500. “[E]xpectations of privacy in some places are afforded greater constitutional legitimacy than in others.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 94-95; see State v. DeFusco, 27 Conn. App. 248, 259, 606 A.2d 1 (1992), aff'd, 224 Conn. 677, 620 A.2d 746 (1993). “In considering whether an expectation of privacy in a particular place is one that society is prepared to recognize as reasonable, we ask whether it is one in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” (Internal quotation marks omitted.) State v. Mooney, supra, 110. The fact that the search took place elsewhere, i.e., the state forensic laboratory, is not the relevant consideration. The germane consideration in this case is the area from which the item searched was taken. This area was not exposed or accessible to the public in any way. The samples searched were taken from a personal residence belonging to the defendant.

Ownership is another important factor in determining whether society will view an expectation of privacy as a reasonable one. See, e.g., State v. Zindros, supra, 189 Conn. 246. Legitimate expectations of privacy may derive from concepts of real or personal property law. State v. Hill, supra, 237 Conn. 94 n.19. “One of the main rights attaching to property is the right to exclude others . . . and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right'to exclude.” (Citation omitted; internal quotation marks omitted.) Id.; State v. Mooney, supra, 218 Conn. 95. Given these considerations, the defendant’s ownership of the building from which the charred flooring was taken may well be, alone, enough of a factual foundation for society to view his expectation of privacy as reasonable.

These two factors, location and ownership, are present in tandem in cases, such as this one, involving searches of a person’s home. “Privacy expectations are normally highest and are accorded the strongest constitutional protection in the case of a private home . . . ,” State v. Brown, 198 Conn. 348, 356-57, 503 A.2d 566 (1986); see State v. DeFusco, supra, 224 Conn. 634 (explicitly recognizing strongest protections under state constitution for expectations of privacy in home); State v. Geisler, supra, 222 Conn. 687. A person’s presence in his or her home “ ‘raises a reasonable inference that he intends to have privacy, and if that inference is borne out by his actions, society is prepared to recognize his privacy.’ ” State v. Benton, 10 Conn. App. 7, 10, 521 A.2d 204 (1987), aff'd, 206 Conn. 90, 536 A.2d 572 (1988). At the very core of the state and federal constitutional protections against unwarranted search and seizure “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. . . . The right of officers to thrust themselves into a home is ... a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.” (Citations omitted; internal quotation marks omitted.) State v. Geisler, supra, 689-90. The fact that the defendant’s house was burned does not mean his expectation of privacy is any less reasonable because “a fire does not necessarily diminish the owner’s reasonable expectation of privacy in the burned building.” State v. Schonagel, 189 Conn. 752, 761, 459 A.2d 106 (1983), vacated and remanded, 465 U.S. 1002, 104 S. Ct. 990, 79 L. Ed. 2d 224, withdrawal of appeal noted, 192 Conn. 652, 473 A.2d 300 (1984). Warrantless searches and seizures inside a home are presumptively unreasonable. See State v. Gant, supra, 231 Conn. 63; State v. Zindros, supra, 189 Conn. 237; State v. Scott, 27 Conn. App. 403, 406, 606 A.2d 720, cert. denied, 222 Conn. 911, 608 A.2d 1184 (1992). Here, where the defendant left his home to go to work, there is nothing about the factual circumstances to support the conclusion that the state has overcome the presumption.

We conclude that the defendant’s expectation was one that society would deem reasonable because (1) the place searched is one that society traditionally regards as worthy of considerable protection, (2) the defendant was the owner of the property searched and society views ownership as providing safeguards against invasions of privacy and (3) society affords a particularly high degree of deference to expectations of privacy in the home. “We believe that under these particular circumstances, society’s code of values and its notions of custom and civility would cause it to recognize as reasonable the defendant’s expectation of privacy . . . .” State v. Mooney, supra, 218 Conn. 111-12.

Additionally, employing a balancing test as is used in some circumstances; see id., 96; we conclude that, in this case, weighing society’s interest in law enforcement against the defendant’s expectation of privacy, “we perceive no significant impairment of society’s interest in law enforcement by requiring the police in this case to have secured a warrant before searching the defendant’s [home], in order to preserve the same privacy interest.” Id., 112. “In determining that the exclusionary rule should be invoked to suppress evidence under the state constitution, we are mindful of the costs to society that result from excluding such evidence.” State v. Geisler, supra, 222 Conn. 686. We are also cognizant, however, that failure to invoke the exclusionary rule provides incentives for law enforcement officials to ignore proscriptions of the state constitution. See id., 687.

We reject the state’s argument that the defendant’s expectation was objectively unreasonable. The state claims that, in the context of this case, the overruling interest in public safety outweighs the defendant’s privacy interests. The state’s reasoning appears to be that the objective reasonableness requirement may be informed by the statutes requiring thorough cause and origin investigations—i.e., that society would not consider reasonable an expectation of privacy that would thwart the compelling public interest in the protection of human life and safety served by the statutorily required cause and origin investigations. Statutes, it is true, in some circumstances help define the contours of constitutional rights. See State v. Lamme, 216 Conn. 172, 180-81, 579 A.2d 484 (1990); cf. State v. Joyner, 225 Conn. 450, 468, 625 A.2d 791 (1993). The statutes requiring thorough cause and origin investigations may have as their purpose the same goal—the protection of life and safety—as the arson statutes. Cf. State v. Parmalee, 197 Conn. 158, 163 n.5, 496 A.2d 186 (1985). We need not determine, however, whether we need to carve out an exception based on this reasoning because, in this case, there was testimony by Skilton, the Morris fire marshal, that the cause and origin investigation was completed on the day of the fire, i.e., at the scene, and the trial court properly made that finding. Skilton’s testimony provides a basis for the trial court’s finding, which is not clearly erroneous. Thus, there is no adequate rationale for allowing a search under a cause and origin exception.

B

The next question is whether the testing done on the charred wood flooring samples constituted a search within the meaning of article first, § 7. The answer “borders on the obvious.” State v. Joyce, supra, 229 Conn. 23. It cannot be disputed that the government examined the samples “through the use of a machine designed to detect the presence and identity of many organic compounds by heating clothing items and analyzing the resultant vapors.” Id., 24. The trial court correctly concluded that “this chemical test, capable of determining a multitude of private facts about an individual, constituted a search under article first, § 7, of the state constitution.” Id.

C

The third part of the test of whether the search was made in violation of article first, § 7, of the state constitution involves a determination of the applicability of any recognized exception to the warrant requirement. The state argues that the test results need not be suppressed because (1) the search was conducted incident to exigent circumstances, (2) the search was made pursuant to the police’s investigatory function rather than their community caretaking function and, therefore, Joyce is inapplicable, (3) the search was similar to the search made incident to the arrest in State v. Castagna, 170 Conn. 80, 364 A.2d 200 (1976), and thus that case controls.

1

The four samples of charred wood flooring were seized by the fire marshal investigators at the scene of the fire during their cause and origin investigation. The trial court properly found that the entry and reentry into the defendant’s premises to investigate the cause and origin of the fire, as well as the seizures of the four samples, were consistent with the exigencies of the situation.

The state, disputing the subsequent suppression of the laboratory tests of the seized flooring samples, argues that this search was a part of the cause and origin investigation required by the exigent circumstances flowing from the fire.

“The phrase ‘exigent circumstances’ refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978); see State v. Gant, supra, 231 Conn. 63-64; State v. Scott, supra, 27 Conn. App. 407.

While the seizure of the samples can be found to have occurred due to the exigency of the on-the-scene fire investigation, the same conclusion cannot be reached as to the laboratory tests. The living room flooring samples, once seized, were in the safe care of law enforcement personnel. The samples were safeguarded in a state police evidence locker and were no longer subject to tampering, removal or further destruction. Furthermore, time was not a factor, and there is no evidence to suggest that the laboratory tests would be flawed if the testing was not conducted post haste.

The exigencies of the fire scene seizure do not serve to justify the subsequent warrantless search by means of laboratory testing of the seized wood flooring. The United States Supreme Court and our Supreme Court have “ ‘repeatedly emphasized that mere convenience or saving of time will not excuse the failure to obtain a warrant. Some element of emergency must exist which would render a search ineffective if delayed by the time necessary to get a warrant.’ ” State v. Guertin, 190 Conn. 440, 448-49, 461 A.2d 963 (1983); State v. Krause, 163 Conn. 76, 81, 301 A.2d 234 (1972).

2

The state also asserts that the seizure of the clothing in Joyce was made by the police pursuant to their community caretaking function, as opposed to a seizure that was made pursuant to an investigation, as in this case. The state urges that this distinction—community caretaking versus investigatory seizures—is the prime reason that the decision of the Supreme Court in Joyce is inapplicable and should not have been relied on by the trial court.

The community caretaking function serves several interests, including protecting the owner’s personal property, deterring false claims against the police, protecting the police from danger potentially posed by the property, and inhibiting careless handling of articles taken from arrested persons. See State v. Gasparro, 194 Conn. 96, 108, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985); State v. Billias, 17 Conn. App. 635, 641, 555 A.2d 448 (1989).

The United States Supreme Court first described the community caretaking functions in Cady v. Dombrow-ski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). There, the Supreme Court stated that “[l]ocal police officers, unlike federal officers, frequently . . . engage in what, for want of a better term, may be described as community caretaking functions, totally devoid from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id., 441.

Obviously, the investigatory function, which includes the acquisition of evidence related to a possible criminal violation, is normally not conducted for any of the foregoing reasons. Thus, the distinction the state is suggesting should be drawn here is not persuasive or supportable in light of the often enunciated preference for search warrants. See State v. Joyce, supra, 229 Conn. 25; State v. Miller, supra, 227 Conn. 385-86; see generally State v. Geisler, supra, 222 Conn. 686-89.

The reasoning of the Joyce court is not logically diminished in any way by the distinction between community caretaking and investigatory seizures and searches. If anything, a finding that a search was made pursuant to the police’s investigatory functions rather than their caretaking functions is apt to enhance the likelihood that the protections of article first, § 7, would attach.

3

The state also claims that the trial court’s ruling ignored the holding of the case most on point, State v. Castagna, supra, 170 Conn. 80. In Castagna, the defendant claimed that article first, § 7, of the Connecticut constitution, as well as the federal constitution, required suppression of the results of tests made of his clothing that had been taken from him by police without a search warrant approximately six hours after his arrest. The defendant contended that the seizure of his clothing and the testing done on the clothes were too remote from his arrest to be considered part of the search incident to the arrest and that a warrant should have been obtained. In rejecting this claim, our Supreme Court relied on the reasoning of the United States Supreme Court in United States v. Edwards, 415 U.S. 800, 804-805, 92 S. Ct, 1234, 39 L. Ed. 2d 771 (1974), where it was held that because the defendant was under arrest, the police were entitled to take any evidence from the defendant’s possession, i.e., his clothing, and subject it to laboratory analysis.

Castagna is distinguishable from this case for several reasons. First, while the defendant claimed protection under article first, § 7, of the state constitution, Cas-tagna was decided under the federal fourth amendment. The decision included no separate state constitutional analysis and is grounded solely on the fourth amendment. Second, this decision was based on the fact that the search was incident to a lawful arrest. That recognized exception to the warrant requirement is inapplicable to the present case. Third, the Castagna, facts are that the search was made after the defendant was in lawful custody and involved only those possessions that he had with him when he was taken into custody. In this case, the defendant was not in custody when the samples were seized or searched. Consequently, the seized flooring samples did not find their way into the custody of the law enforcement officers in the same manner as the clothing in Castagna. Fourth, in Castagna the seizure was made the next day, which the court found was as soon as reasonably possible. In the present case, while some of the items seized were transported to the state laboratory the day after the fire, it is unclear when the testing, i.e., the search, took place; it could have been any time between the day after the fire to two weeks after the fire. There is nothing in the record to indicate that the testing was done as soon as reasonably possible. The state finally claims that Castagna stands for the proposition that “evidence . . . validly seized and in the custody of the police . . . may be tested or analyzed within a reasonable time without the need for a warrant.” The application of that holding to this case must be tested in light of the particular facts and circumstances of Castagna as opposed to this case. As previously discussed, the Cas-tagna facts and circumstances are different in many ways from those of Joyce and. this case. We conclude that Joyce and its predecessor cases compel a different conclusion than Castagna.

II

The state also argues that the trial court’s ruling should not be upheld because the holding of Joyce that a search warrant was required for laboratory testing of the seized objects, i.e., the samples of flooring, should be applied prospectively. In support of this argument, the state points out that the fire investigation in this case occurred in 1990, four years before Joyce was decided. The contention is that the fire and police investigators acted in good faith reliance on the fact that no warrant was needed to test the samples of wood flooring.

The facts in Joyce involved the same testing procedures, performed in the same laboratory, for the same purposes as in this case. The testing procedures in Joyce were conducted in the spring of 1990 whereas the testing in this case occurred in November of 1990.

While the state correctly points out that law enforcement considerations may sometimes outweigh the interests of retroactive applications; see State v. Ryerson, 201 Conn. 333, 340, 514 A.2d 337 (1986); as a general rule, judicial decisions apply retroactively. See Robinson v. Neil, 409 U.S. 505, 507-508, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973). Indeed, a legal system based on precedent has a presumption of retroactivity. See Solem v. Stumes, 465 U.S. 638, 642, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984); State v. Marsala, 42 Conn. App. 1, 4-5, 679 A.2d 367, cert. denied, 239 Conn. 912, 682 A.2d 1010 (1996) (test for reviewing warrants applied retroactively); State v. Jackson, 32 Conn. App. 724, 731-32 n.6, 630 A.2d 164, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).

In Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985), our Supreme Court, in reviewing the “comprehensive if somewhat confusing” federal court rules on retroactivity, described the three part test set down in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971). “First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed .... Second, it has been stressed that we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further retard its operation. . . . Finally, we have weighed the inequity imposed by retroactive application, for [w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.” (Citations omitted; internal quotation marks omitted.) Neyland v. Board of Education, supra, 179-80.

The state’s argument against retroactivity fails to meet the first prong of the test in Chevron Oil Co. The decision in Joyce cannot be viewed as a new rule of law that is a clear break with the past or as a decision that was not clearly foreshadowed. While the Joyce decision can be said to have enlarged the constitutional rights of criminal defendants, it did not overrule established state constitutional precedent. Given the general decisional support for retroactivity, there must be cogent reasons to tip the scale and hold otherwise. Such reasons are lacking in this case.

The judgment is affirmed.

In this opinion DUPONT, C. J., concurred.

SCUALLER, J.,

dissenting. Because I conclude that a warrant was not required to test the charred wood flooring samples that were lawfully seized at the scene of the fire during the course of the cause and origin investigation, I respectfully dissent. My analysis differs from the majority opinion in two basic respects. First, I believe that the trial court’s finding that the investigation of the cause and origin of the fire was completed on the day of the fire was clearly erroneous. Second, I disagree that the defendant’s subjective expectation of privacy was one that citizens of Connecticut would consider reasonable.

I

The majority determines that the trial court properly found that the investigation was completed on the day of the fire. The majority bases its determination on the testimony of Joel Skilton, fire marshal of the town of Morris. Although Skilton did testify at the suppression hearing that he believed the cause and origin investigation was completed sometime before the investigators left the defendant’s home on the day of the fire, Detective Julio Fernandez, Jr., investigator with the state fire marshals’ office, testified to the contrary. In his testimony, Fernandez stated that the cause of the fire in this case absolutely depended on an entire examination of the fire scene plus subsequent laboratory analysis. He testified that his duty as state fire marshal to investigate the cause and origin of fires consists of two inquiries—one is cause and the other is origin—and that in this case, although he believed that he had accurately determined the origin of the fire, he could not accurately determine the cause of the fire until the laboratory analysis on the flooring samples was completed. The trial court, therefore, should have credited Fernandez’ testimony in light of the fact that Skilton called Fernandez to the scene to supervise the investigation. See General Statutes § 29-302 (state fire marshal may supervise and direct fire investigation conducted by local fire marshal). Simply because Skilton’s duties as local fire marshal may have been concluded when he left the scene, Fernandez’ duty to investigate thoroughly the cause and origin of the fire was not complete and, according to his testimony, would not be so until he was able to evaluate the laboratory analysis of the flooring samples.

Additionally, § 29-302 mandates that the local fire marshal and General Statutes § 29-310 mandates that the state fire marshal “thoroughly investigate the cause ... of all fires ... to which his attention has been called . . . .’’In this case, a vital part of the fire marshal’s thorough investigation was the testing of the charred wood flooring samples to determine whether an accelerant had been used. Accordingly, it was improper for the trial court to conclude that the cause and origin investigation specifically authorized by § § 29-302 and 29-310 was completed on the day of the fire.

II

The majority further determines that the defendant’s subjective expectation of privacy with respect to his charred living room floor was one that the citizens of our state would consider reasonable. I disagree.

There is no doubt that “[t]he sanctity of the home has a well established place in our jurisprudence”; State v. Geisler, 222 Conn. 672, 687, 610 A.2d 1225 (1992); and that warrantless searches and seizures inside a home are presumptively unreasonable. Id., 681, citing Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). In fire investigation cases, however, our legislature has expressly authorized state officials to conduct a warrantless search in a house where a fire has occurred and to seize any such materials that may be useful in determining the cause and origin of the fire. See General Statutes § 29-311. Moreover, our legislature has clearly authorized and directed the state fire marshal to “thoroughly investigate the cause, circumstance and origin of all fires ... to which his attention has been called . . . .” General Statutes § 29-310; see also General Statutes § 29-302. It would be incongruous, therefore, to conclude that the legislature authorized, within the course of a cause and origin fire investigation, a seizure of investigative materials but failed to provide for the completion of the investigation by allowing the testing of those materials. If that were the case, fire officials would be required to establish probable cause for a search warrant, without access to the crucial test results, in order to gain access to the materials seized for testing. Clearly, the investigation authorized in §§ 29-302,29-310 and 29-311 contemplated both the seizure and testing of those materials without the need for additional authorization, the original thorough investigation and seizure already having been authorized.

Furthermore, the fire investigation statutes have as their compelling purpose the protection of human life and safety of the public. This legislative expression points to the conclusion that citizens of our society would not consider reasonable an expectation of privacy in the lawfully seized charred wood flooring samples when weighed against the public interest in the protection of human life and safety served by the statutory requirement of a thorough cause and origin investigation. Although “[o]ur constitutional preference for warrants is overcome only in specific and limited circumstances”; State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993); in this case, where the legislature has expressed an overriding public policy interest and where practicalities demand it, the state officials should not be required to obtain a warrant in order to test the charred wood flooring samples as part of their cause and origin investigation.

The majority relies heavily on State v. Joyce, 229 Conn. 10, 639 A.2d 1007 (1994), for the proposition that our state constitution requires an additional warrant to test the validly seized material. I believe, however, that Joyce is distinguishable from this case. First, Joyce involved the limited community caretaking function as opposed to the thorough investigation for reasons of public safety and preservation of human life. Second, the seizure of personal articles of clothing in Joyce did not involve the element of plain smell or plain view. Id., 22 n.14. Third, nothing in the Joyce majority opinion suggests that the holding would extend to this situation in which the seizure was authorized and directed by arson statutes specifying an overriding policy concern for public safety.

Finally, I note that a persuasive decision of the Rhode Island Supreme Court crystallizes this analysis. State v. Moretti, 521 A.2d 1003 (R.I. 1987), is a decision of the Rhode Island Supreme Court involving remarkably similar factual circumstances. In Moretti, a fire inspector seized samples of flooring and furniture in the course of his cause and origin investigation. The defendant challenged the subsequent testing, which occurred in “due course.” Id., 1005. The Rhode Island Supreme Court, referring to Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), recognized the valid warrantless seizure of evidence while inspecting the premises in the course of determining the cause of a fire, and concluded: “No principle of constitutional law requires any law enforcement official to obtain a warrant prior to testing any item seized during a valid search. To hold otherwise in this case would be effectively to neutralize the power of the governmental fire inspector, who is expected by his or her employer to determine the cause and origin of fires occurring within the inspector’s area of responsibility and to prevent them in the future.” State v. Moretti, supra, 1009. This reasoning is fully applicable to this case.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 53a-lll provides in relevant part: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.....”

       The evidence included photographs and samples of charred flooring from the defendant’s house.

       General Statutes § 54-96 provides: “Appeals by the state from Superior Court in criminal cases. Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       General Statutes § 29-311 provides: “Fire investigations. Warrant requirements. The Commissioner of Public Safety as State Fire Marshal, any local fire marshal within his jurisdiction, and all duly authorized fire and police personnel acting within their jurisdiction may enter into and upon any premises or building where any fire or explosion has occurred and premises adjacent thereto, without liability for trespass or damages reasonably incurred, to conduct investigations in accordance with sections 29-302 and 29-310, under the following circumstances and conditions:
      “(a) During an emergency by reason of fire or explosion on any premises, they or any of them may, without a warrant, enter such premises during the suppression of the fire or explosion or within a reasonable period of time following the suppression thereof and remain for a reasonable period of time following the suppression of the fire or explosion to: (1) Investigate in order to determine the cause and origin of the fire or explosion, (2) prevent the intentional or unintentional destruction of evidence and (3) prevent a rekindling of the fire.
      “(b) After expiration of a reasonable period of time following the suppression of the fire or explosion, they or any of them shall apply in writing under oath to any judge of the Superior Court for a warrant to enter upon the premises to determine the cause and origin of the fire or explosion, if such cause or origin has not been previously determined. The application shall describe: (1) The premises under investigation, (2) the owner or occupant of the premises, if reasonably ascertainable, (3) the date and time the fire or explosion which is the subject of the investigation was reported to apolice or fire agency, and (4) the date and times during which the investigative activities to determine the cause and origin of such fire or explosion are to be conducted. The judge to whom an application for a warrant is made may issue such a warrant upon finding that the requirements of this subsection have been met, and that the proposed activities are a reasonable intrusion onto the private premises to determine the cause and origin of the fire or explosion.”

       General Statutes § 29-302 provides: “Investigations. The local fire marshal shall, in accordance with the provisions of section 29-311, investigate the cause, origin and circumstances of any fire or explosion within his jurisdiction, by reason of which property has been destroyed or damaged, or any person injured or killed, or any incidents which threatened any property with destruction or damage or any person with injury or death by reason of fire or explosion, and shall especially investigate whether such fire was the result of an incendiary device or the result of carelessness, design or any criminal act; and the Commissioner of Public Safety as State Fire Marshal, or the deputy fire marshal under his direction, may supervise and direct such investigation.”

       General Statutes § 29-310 (a) provides: “The Commissioner of Public Safety as State Fire Marshal shall thoroughly investigate the cause, circumstances and origin of all fires or explosions to which his attention has been called, in accordance with the provisions of this part, by reason of which any property has been destroyed or damaged, or any person injured or killed, and shall especially examine and decide as to whether such fire was the result of carelessness, design, an incendiary device or any other criminal act. He may take the testimony under oath of any person supposed to be cognizant of or to have means of knowledge in relation to the matters as to which an examination is being made, and shall cause the same to be reduced to writing and filed in his office; and if, in his opinion, there is sufficient evidence to warrant that any person should be charged with the crime of arson or any other crime, he shall forthwith submit such evidence, together with the names of the witnesses and all other information obtained by him, to the proper prosecuting officer. He may, in any investigation, issue subpoenas for the purposes of summoning and compelling the attendance of witnesses before him to testify. He may administer oaths or affirmations to witnesses before him, and false swearing therein shall be perjury. He may, in the performance of his duties, enter, by himself or his assistants, into and upon the premises or building where any fire or explosion has occurred and premises thereto adjacent in accordance with the provisions of section 29-311.”

       “The courts have identified a number of factors indicating that a person’s expectation of privacy in a particular place is one that society is not prepared to recognize as reasonable. Where the person occupying the property is a trespasser, ordinarily he has no reasonable expectation of privacy in that place. United States v. Ruckman, [806 F.2d 1471, 1473 (10th Cir. 1986)]; Amezquita v. Hemandez-Colon, 518 F.2d 8,11 (1st Cir. 1975), cert. denied, 424 U.S. 916, 96 S. Ct. 1117, 47 L. Ed. 2d 321 (1976); see also Rakas v. Illinois, [439 U.S. 128, 143-44 n.12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)] .... Furthermore, leaving one’s property in an area ‘readily accessible to animals, children, scavengers, snoops, and other members of the public’ may render one’s expectation of privacy less than reasonable. California v. Greenwood, 486 U.S. 35, 40, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988) .... ‘Hence, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” ’ Id., 41, quoting Katz v. United States, [389 U.S. 347, 351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)].” State v. Mooney, supra, 218 Conn. 96; see also Washington v. Meachum, 238 Conn. 692, 723-24, 680 A.2d 262 (1996) (correctional institution inmates’ expectation of privacy in their nonprivileged telephone calls “is not one that the citizens of our state would recognize as reasonable” because of need for institutional security and general law of privacy attendant upon incarceration).
      Such factors are “relevant as helpful guides, but should not be undertaken mechanistically. They are not ends in themselves; they merely aid in evaluating the ultimate question in all fourth amendment cases—whether the defendant had a legitimate expectation of privacy, in the eyes of our society, in the area searched.” (Internal quotation marks omitted.) State v. Mooney, supra, 218 Conn. 97.

       While it is true that, “[e]ven in a private home . . . there is no absolute protection of privacy”; State v. Brown, 198 Conn. 348, 357, 503 A.2d 566 (1986); the defendant here did nothing to indicate his expectation of privacy was lessened. He did not “knowingly expose to the public”; id.; any part of the home, nor was the object searched “visible to others in areas expressly or impliedly open to the public . . . .” Id., 356-57.

       As the Connecticut Supreme Court stated in Geisler. “The sanctity of the home has a well established place in our jurisprudence. The English common law, upon which much of this country’s constitutional and common law is based, recognized that intrusion into the home constituted an especially egregious conduct. From earliest days, the common law drastically limited the authority of law officers to bréale the door of a house to effect an arrest. Such action invades the precious interest of privacy summed up in the ancient adage that a man’s house is his castle. As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man’s house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle: The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement! Miller v. United States, 357 U.S. 301, 306-307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). In discussing burglary, defined as nocturnal house-breaking, Blackstone wrote, [a]nd the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity .... 4 Blackstone’s Commentaries (1822) p. 222.” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 687-88; State v. Santiago, 224 Conn. 494, 520, 619 A.2d 1132 (1993).

       We note, however, that the state’s conclusion that the public safety interests outweigh the individual’s privacy interests does not necessarily follow from its reasoning. If it did, there would be virtually limitless exceptions to the warrant requirement, since many criminal statutes have as their goals the protection of human life and safety. Given this court’s and our Supreme Court’s view of the sanctity of the home and the clearly expressed preference for warrants, this conclusion does not comport with precedent. Cf. State v. Zindros, supra, 189 Conn. 260-61 (Spada, J., dissenting).

       The United States Supreme Court addressed the issue of retroactivity in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). In Linkletter, the court applied its holding in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), to cases that were pending on direct appeal at that time.

       For purposes of this opinion, I accept the conclusion that the testing at the state laboratory constituted a search and that the defendant manifested a subjective expectation of privacy with respect to his charred living room floor.

       Statutes may, in some circumstances, help to define the contours of constitutional rights. See State v. Joyner, 225 Conn. 450, 468, 625 A.2d 791 (1993); State v. Lamme, 216 Conn. 172, 180-81, 579 A.2d 484 (1990).

       Here, the state’s chemist testified 1hat he smelled gasoline when he opened the can containing one of the pieces of the charred wood. In State v. Joyce, supra, 229 Conn. 22, the court made note of the fact that there was no evidence that the defendant’s clothing emitted “any odor detectable by the human sense of smell.” Since this would be analogous to a plain view discovery, it may be unreasonable for a person to have an expectation that such a fact would be private. State v. Wilson-Bey, 21 Conn. App. 162, 166-67, 572 A.2d 372 (1990), this court cited with approval a United States Supreme Court case in which a fire investigation turned up equipment that later was identified as drug manufacturing equipment. In that case, all the items were seized during the overhaul procedure as part of the cause and origin investigation, and all of the items were in plain view of the investigators. “Once the investigators were legitimately inspecting the refrigerator, the evidence they found therein was in plain view.” Id., 167.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    MAUREEN BAXTER, EXECUTRIX (ESTATE OF MARY GREENE COVE) v. CARDIOLOGY ASSOCIATES OF NEW HAVEN, P.C., ET AL.
    (AC 14999)
    O’Connell, Lavery and Spear, Js.
    Argued May 27
    officially released August 26, 1997

      Barbara E. Crowley, with whom was John R. McGrail, for the appellants-appellees (named defendant et al.).

      Ernest F. Teitell, with whom were Mario Dinatale and, on the brief, Jonathan L. Mannina, for the appel-lee-appellant (plaintiff).
   Opinion

O’CONNELL, J.

This is a medical malpractice case in which the defendants appeal from a judgment in favor of the plaintiff following a jury trial. The defendants claim that the trial court improperly (1) held that apportionment of liability with regard to a settled or released person was not an issue in the case, (2) refused to allow the defendants to introduce a portion of a deposition into evidence, and (3) precluded one of the defendants from testifying as to his reliance on a hospital resident. The judgment is affirmed..

The jury reasonably could have found the following facts. The plaintiff is the executrix of the estate of her deceased mother. The plaintiffs decedent was admitted to Yale-New Haven Hospital for a cardiac catheterization, a diagnostic procedure, during the course of which a blood vessel was perforated, permitting blood to escape into the retroperitoneal area. No complaint was made concerning the fact of perforation because that is a recognized risk of the procedure and may occur without negligence. After the procedure was performed, the defendant Arthur Seltzer, the cardiologist who had performed the procedure, failed to monitor, diagnose and treat the decedent’s condition in that he failed to order and infuse blood in a timely fashion and in adequate amounts. The decedent ultimately bled to death.

Prior to trial, the plaintiff settled her claim against the hospital and withdrew her claim against it and certain defendants. Thus, when the trial commenced the only defendants were Seltzer and the medical group Cardiology Associates of New Haven, P.C., of which Seltzer was a member. Additional facts are included in the analysis of individual issues.

I

The defendants first complain that the trial court improperly ruled that the jury could not consider apportionment of liability against the hospital. Because the plaintiff had settled her case against the hospital, the hospital became a “settled or released person. ” A settled or released person under General Statutes § 52-572h (n) must be a person, not necessarily a party, who received a release of liability. Donner v. Kearse, 234 Conn. 660, 672, 662 A.2d 1269 (1995).

The trial court ruled that if the defendants wanted to seek apportionment against the hospital as “a released or settled party, they must raise that issue in a definitive fashion and as to that issue they had the burden of proof which, because of the nature of this case, would require expert medical testimony.”

The defendants disagree and contend that they have no obligation to raise the issue with respect to the hospital’s liability for apportionment purposes nor do they have any burden of proof in regard to the hospital’s apportionment liability. The defendants take the position that the question of apportionment and liability of a settled or released party arises automatically by virtue of the statute. Consequently, the defendants refused to answer the court’s numerous inquiries concerning whether they intended to seek apportionment until examination of the plaintiffs final witness, when they conceded that they were seeking apportionment.

The defendants rely on Donner v. Kearse, supra, 234 Conn. 669, for the proposition that it is mandatory for the trier of fact to consider the negligence of a settled or released person. The Kearse case; id., 666-70; traces the development of apportionment among joint tortfeasors from the common-law doctrine, which did not generally permit any contribution among joint tortfeasors, through Tort Reform I; Public Acts 1986, No. 86-338; and Tort Reform II; Public Acts 1987, No. 87-227; to our present statute, General Statutes § 52-572h (c) (d) and (e).

Under our present statute, where the damages are proximately caused by the negligence of more than one party, each party is liable only for his proportionate share. The statute “[s]ets forth two classes of persons whose negligence must be considered by the trier of fact: (1) the ‘parties’ to the action; and (2) ‘settled or released persons,’ as that term is illuminated in subsection (n).” Donner v. Kearse, supra, 234 Conn. 671. In the present case, we are concerned with the apportionment liability of the hospital as a “settled or released person.”

We agree with the defendant that a primary purpose of enacting the statute was to change the common law of joint and several liability such that a defendant would be liable only for that proportion of the damages for which he was responsible. See 30 H.R. Proc., 1987 Sess. Pt. 16, pp. 5689-97, 5703-5709 and 5715-19. Subsection (f) of § 52-572h prescribes the method by which the fact finder will determine the percentage of negligence attributable to a party. We also agree with the defendants that to determine the percentage of liability attributed to a settled or released person, the jury must first consider the negligence or lack thereof of the settled or released person.

We do not, however, agree with the defendants that the statute requires that the jury automatically consider the issue of apportionment of the hospital’s negligence. As with any issue, the trial court must not submit the issue of the settled person’s negligence to the jury unless there is evidence to support it. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Because this is a medical malpractice case, any evidence of the hospital’s negligence would have to come from qualified medical experts. Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).

The Supreme Court of the state of Washington was confronted with a similar issue in Adcox v. Children’s Orthopedic Hospital & Medical Center, 123 Wash. 2d 15, 25-26, 864 P.2d 921 (1993). The Washington Supreme Court held that “[the Washington apportionment statute] is not self-executing. It does not automatically apply to each case where more than one entity could theoretically be at fault. Either the plaintiff or the defendant must present evidence of another entity’s fault to invoke the statute’s allocation procedure. Without a claim that more than one party is at fault, and sufficient evidence to support that claim, the trial judge cannot submit the issue of allocation to the jury. Indeed, it would be improper for the judge to allow the jmy to allocate fault without such evidence. If the plaintiff signals an intention to present evidence of fault solely against one defendant, as in this case, it is incumbent upon the defendant to provide proof that more than one entity was at fault. The Hospital failed to present any evidence of the possible negligence of [the treating physicians]. Instead, the Hospital chose the legal theory that there was no negligence in this case. Moreover, the Hospital did not even take a clear position on the issue of whether allocation of fault was required under Washington’s statutes. The Hospital cannot now be heard to complain it was not afforded allocation.” (Emphasis added.) Id.

The defendants claim that the testimony of Howard Winer, a plaintiffs witness, shows that the hospital was negligent. The trial court properly held that, from Win-er’s testimony, the jury could not reasonably have concluded that the hospital was negligent. The testimony in question concerns causation, not negligence. On cross-examination, Winer was allowed to give his opinion concerning the standard of care of the hospital. This testimony, however, was permitted by the trial court on the representation of defense counsel that it was being offered solely for purposes of credibility, not apportionment.

The defendants argue that the trial court, in effect, held that it was a matter of judicial discretion as to whether a jury may consider the negligence of a settled or released person in apportioning damages. We do not agree with this interpretation of the trial court’s remarks. We interpret the trial court’s comments to mean that the party claiming apportionment had a duty to advise the court and the plaintiff that it intended to claim apportionment and by so doing it assumed the burden of proving the negligence of the released person. See Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 9, 327 A.2d 583 (1973). The defendants’ argument that apportionment is automatic would require the trial court to instruct the juiy on apportionment even if the evidence would not have supported a finding of negligence on the part of the settled party. In Seymour v. Garcia, 24 Conn. App. 446, 453-54, 589 A.2d 7 (1991), aff'd, 221 Conn. 473, 604 A.2d 1304 (1992), this court affirmed the trial court’s refusal to instruct a jury on apportionment under those circumstances where there was insufficient evidence to warrant such an instruction.

The defendants next contend that the trial court improperly disallowed apportionment evidence because of the defendants’ failure to give timely notice to the court and to the plaintiff that they were seeking apportionment against the hospital. Our statute is silent as to any requirement of notice.

As a consequence of its ruling, the trial court subsequently excluded evidence that the defendants attempted to offer on the issue of the hospital’s negligence. In effect, the trial court ruled that, having failed to disclose that it was seeking apportionment, it was too late at the conclusion of the plaintiffs case to introduce the element of apportionment for the first time. A trial court has broad discretion in determining the admissibility of evidence. Voluntown v. Rytman, 21 Conn. App. 275, 282, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). In the present case, the defendants necessarily knew that apportionment could be an issue in the case. During the discovery stage of the proceeding, the defendants did not claim that they intended to seek apportionment. Although the defendants’ experts apparently held opinions concerning possible negligence on the part of the hospital, the disclosures of the nature of their testimony did not indicate that they would testify as to the hospital’s negligence.

After the commencement of trial, the defendants continued this strategy, consistently refusing to claim that they were seeking apportionment. Although on several occasions the trial court inquired as to whether the defendants intended to claim apportionment, the defendants never asserted a definite claim for apportionment until they were cross-examining Winer at the conclusion of the plaintiffs case-in-chief. At that stage in the proceedings, when the plaintiff had already presented her case, it would have been unfairly prejudicial if the defendants had been permitted to claim apportionment against the hospital.

This issue has been considered by the courts of several other states. The New Jersey Supreme Court, interpreting a statute similar to the Connecticut apportionment statute; N.J. Stat. Ann. § 2A: 15-5.2 (West 1987); held that “a non-settling defendant [does not have] free rein to assert the liability of a settling defendant without first providing the plaintiff with fair and timely notice. . . . Our system of discovery is designed to make available information that is reasonably calculated to lead to relevant evidence concerning the respective positions of the parties. ... A litigation strategy that features surprise to the adversary is no longer tolerated.” (Citations omitted.) Young v. Latta, 123 N.J. 584, 597, 589 A.2d 1020 (1991); see also Adcox v. Children’s Orthopedic Hospital & Medical Center, supra, 123 Wash. 2d 15.

In Young v. Latta, supra, 123 N.J. 597, the trial court held that “a plaintiff should know as early in the case as possible whether a defendant will seek to prove the fault of a co-defendant. . . . A defendant who produces no expert report (whether its own or that of another party) and fails to allege well before trial the causative fault of a co-defendant may be precluded from asserting at trial that co-defendant’s fault in the event of a settlement.” (Citation omitted.)

The trial court in Young further concluded that “trial courts should not countenance delay—that, is, the court should not permit the non-settler to wait until the last minute before alerting the court and the plaintiffs lawyer that the settler’s conduct will be at issue. . . . [T]ac-tics cannot be allowed to foil discovery . . . .” Id., 597-98. In Johnson v. Pratt & Whitney of Canada, Inc., 28 Cal. App. 4th 613, 626-27, 34 Cal. Rptr. 2d 26 (1994), the California Appellate Court affirmed the trial court’s refusal to let the jury consider the issue of apportionment where the defendant repeatedly failed to provide information in response to the plaintiffs discovery request.

A plaintiffs preparation for trial may be substantially different if it knows that apportionment against a settled person is an issue in the case. We conclude that the trial court did not abuse its discretion in ruling that apportionment was not part of the case because the defendants did not explicitly claim that they were seeking it until virtually the close of the plaintiffs case.

II

The defendants next allege that the trial court improperly refused to allow them to introduce into evidence those portions of Sherwin Kevy’s deposition relating to possible negligence on the hospital’s part. This issue arose near the completion of juiy selection when the defendants filed a preliminary request to charge. This request, although claiming that the jury should apportion liability, did not identify the other party whom the defendants claimed was negligent nor did it identify the experts on whose testimony the defendants would rely to prove negligence. The next day, the trial court furnished the parties with a proposed jury instruction. The thrust of the defendants’ objection to the charge was that it improperly (1) required them to make a formal claim that another party was negligent and (2) imposed on them the burden of proving negligence on the part of the hospital. See part I of this opinion.

The trial court asked the defendants to identify the expert witnesses whom they intended to call to prove that the hospital was negligent. The defendants objected on the ground that they had no duty to make an expert disclosure and that to require them to do so would unfairly mandate disclosure of their trial tactics.

The trial court explained how lack of information concerning the defendants’ experts would impact unfairly on the plaintiff. In response, the defendants advised the court that they intended to use a portion of Kevy’s deposition. Kevy had, at the defendants’ objection, been precluded from testifying as a plaintiffs expert. The trial court declined to allow the defendants to read only a portion of Kevy’s deposition but offered the defendants the option of reading Kevy’s testimony in its entirety to the jury. See Practice Book § 248 (1) (e). The defendants rejected the court’s offer, whereupon, on the basis of fundamental fairness the court denied the defendants’ selective use of Kevy’s deposition.

A

“The admissibility of a deposition into evidence under Practice Book § 248 is permissive in nature, leaving the ultimate determination to the trial judge.” (Internal quotation marks omitted.) Cahn v. Cahn, 225 Conn. 666, 678, 626 A.2d 296 (1993). It is within the inherent discretion of the trial court to exclude a deposition if it is confusing and prejudicial. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 2.3.2, p. 22. “Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 566, 525 A.2d 954 (1987). In the present case, the trial court found that the deposition testimony of Kevy concerning the negligence of the defendants and the negligence of the hospital was intertwined. The testimony was both favorable and unfavorable to the plaintiff and to the defendants. The trial court declined to allow the defendants to introduce only the selected portions favorable to them.

Under the circumstances, we conclude that the trial court did not clearly abuse its discretion in precluding the defendants from introducing into evidence only a portion of Kevy’s deposition.

B

The day following the denial of the defendants’ attempted use of a portion of Kevy’s deposition statements, the defendants disclosed twelve experts, including Kevy, whom they intended to use against the hospital. The plaintiff moved to preclude these witnesses. During argument on the motion, the defendants continued to equivocate on whether they were seeking apportionment. They informed the court that they were not “raising” an apportionment claim but neither were they “abandoning” it.

The trial court granted the plaintiffs motion to preclude the witnesses because (1) the disclosure was untimely, (2) the defendants did not offer “good cause” for the delay and (3) the plaintiff would be prejudiced if disclosure at such a late stage in the proceedings were allowed. Additionally, the court found that the disclosure failed to “recite the specific substance of facts and opinion to which the expert is expected to testify, nor [did] it contain a summary of the grounds for such opinion.” See Practice Book § 220 (D).

Whether to allow a late disclosure is clearly within the discretion of the trial court. Examination of the record in this case does not disclose any reason for us to conclude that the trial court abused its discretion in precluding the defendants from calling as witnesses the experts listed in the defendants’ untimely disclosure. Furthermore, the trial court properly held that the disclosure did not meet the requirements of Practice Book § 220 (D), and the defendants do not contest the lack of compliance with the mies of practice.

Ill

In their final claim, the defendants argue that the trial court improperly precluded them from questioning Seltzer concerning his reliance on the hospital resident to order blood on an expedited basis. Seltzer, one of the defendants, was called as a plaintiff’s witness. During cross-examination, the defendants sought to ask Seltzer two questions concerning his subjective understanding of the procedures followed by hospital personnel in obtaining blood for the plaintiffs decedent. The plaintiff objected on the ground that the defendants were trying to admit expert testimony concerning the hospital resident’s standard of care. The court inquired as to the purpose of the questions, and the defendant explained that they were directed at determining Seltzer’s subjective beliefs regarding reliance on the hospital staff to provide the blood needed by the decedent. The trial court sustained the plaintiffs objection on grounds of relevancy. The defendants contend, on appeal, that even though Seltzer was a physician, in answering these two questions, he would have been testifying not as an expert, but as a lay observer of the relevant events and as a party to the litigation. The defendants did not make a formal offer of proof as to what Seltzer’s answers would have been if they had been allowed. The defendants rely on Robinson v. Faulkner, 163 Conn. 365, 372, 306 A.2d 857 (1972).

“Evidence is admissible only if it is relevant. . . . The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995). The two questions sought information that would be relevant only if it was later supported by expert testimony that a cardiologist would rely on a resident to order blood on an expeditious basis. The defendants declined to furnish the court with assurance that they would furnish such expert evidence later in the case.

Regardless of whether the answers were categorized as expert or lay opinion, the information sought would have to have been relevant to be admissible. Under the circumstances of the case, the trial court did not abuse its discretion in excluding the questions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-572h (f) provides: “The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant.”
      General Statutes § 52-572h (n) provides: “A release, settlement or similar agreement entered into by a claimant and a person discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the total award of damages is reduced by the amount of the released person’s percentage of negligence determined in accordance with subsection (f) of this section.”

       The court explained: “The position that I’ve taken in the past, and I’m going to follow it in this case is . . . that the party claiming a right to allocation must advise me and this should be made available to the plaintiff, number one, the way in which the remaining defendant claims that the settled or released party is negligent so as to give us a clue as to what the evidence is to—that we are to look for in the trial of the case. Secondly, with respect to establishing negligence of the party-—settled or released party that is, the party claiming allocation has, I’m going to use the word, the burden of proof with respect to establishing negligence on the part of that particular person.”

       General Statutes § 52-572h provides in relevant part: “(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1,1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.
      “(d) The proportionate share of damages for which each party is liable is calculated by multiplying the recoverable economic damages and the recoverable noneconomic damages by a fraction in which the numerator is the party’s percentage of negligence, which percentage shall be determined pursuant to subsection (f) of this section, and the denominator is the total of the percentages of negligence, which percentages shall be determined pursuant to subsection (f) of this section, to be attributable to all parties whose negligent actions were a proximate cause of the ipjury, death or damage to property including settled or released persons under subsection (n) of this section. Any percentage of negligence attributable to the claimant shall not be included in the denominator of the fraction.
      “(e) In any action to which this section is applicable, the instructions to the jury given by the court shall include an explanation of the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party. . . .”

       See footnote 1.

       See footnote 1.

       The pertinent part of Winer’s testimony was as follows: “I would estimate that if her, she’d received blood, an adequate amount of blood before Dr. Seltzer had arrived, that it’s overwhelmingly likely that she would have survived. That by 9 there was a fifty percent chance of her surviving. By the time she went to the operating room there was probably a twenty percent chance of her surviving.”

       The relevant portion of the court’s proposed preliminary jury charge was as follows. “The defendant . . . claims that the settled or released person or party was negligent, which negligence caused the plaintiffs damages. As to this issue, the defendant . . . has the burden of proof.”

       The trial court stated: “I should not divide the man’s testimony. I mean if it’s permitted to come in, it should come in all the way against your client as well as against the hospital or it shouldn’t come in at all.”

       Practice Book § 248 (1) (e) provides: 'Tf only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.”

       The trial court stated: “The use of Dr. Kevy as an expert witness was vigorously objected to by [the defendants] . . . and I did sustain [their] objection . . . which had the effect of depriving the plaintiff of the use of that witness, and I might say any decision that the plaintiff might have predicated on that fact. I feel that now to permit the very party who objected to the use of Dr. Kevy, to permit that party to now use it for some purpose that suits his present posture in the case would be unfair . . . .”

       Practice Book § 220 (D), as in effect at the time of the action here, provided: “In addition to and notwithstanding the provisions of subsections (A), (B) and (G) of this section, 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 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. 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 that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       See footnote 11.

       The two questions were: (X) “Doctor, did you have a right to expect that when ordering the blood that [the hospital resident] would do so on an expeditious basis?” (2) “Doctor, did you rely on [the hospital resident] to order blood in an expeditious fashion?”

       We view Robinson v. Faulkner, supra, 163 Conn. 365, as inapposite. Although our Supreme Court discusses exceptions to the general rule that witnesses must state facts and not opinions, there is nothing in the case that supports a claim that Seltzer’s subjective beliefs were relevant.


author: LAVERY, J.

text:
    HAROLD STOWE v. JOHN M. MCHUGH
    (AC 16366)
    Dupont, C. J., and O’Connell and Lavery, Js.
    Argued June 5
    officially released August 26, 1997

      Robert J. Cooney, for the appellant (named defendant).

      Lisa M. Ferraro, for the appellee (plaintiff).

      S. Peter Sachner, for the appellee (apportionment defendant William Fisher).

      Lois Tanzer, for the appellee (apportionment defendant Darrell Daniels).

      Trudie R. Hamilton, with whom, on the brief, was George M. Moreira, for the appellees (apportionment defendant Waterbury Hospital et al.).
   Opinion

LAVERY, J.

The defendant, John McHugh, appeals from the summary judgment rendered by the trial court in favor of four defendants that the court allowed to be cited in for the purpose of apportionment in this medical malpractice action. On appeal, McHugh claims that the trial court improperly (1) ruled that expert testimony was required on the issue of the apportionment defendants’ proportionate share of liability, (2) determined that the affidavits of his experts were insufficient to support his claims against the apportionment defendants, and (3) ruled that no issue of material fact existed. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for the disposition of this appeal. McHugh, a podiatrist, removed the nail from the right great toe of the plaintiff, Harold Stowe. Subsequent to that procedure, the plaintiff was admitted to Waterbury Hospital on two occasions for treatment of an infection in his right leg. During his treatment at Waterbury Hospital, the plaintiffs right hip prosthesis was removed because of the infection. While at Waterbury Hospital, the plaintiff was treated by three physicians, Darrell Daniels, William Fisher and George Thornton.

The plaintiff subsequently commenced a medical malpractice action against McHugh. Pursuant to General Statutes §§ 52-102 and 52-572h (c), McHugh moved to cite in Daniels, Fisher, Thornton and Waterbury Hospital for purposes of apportionment, claiming that their alleged negligent treatment of the plaintiff caused his injuries. The trial court granted McHugh’s motion to cite in the additional defendants. The plaintiff, however, did not plead over against any of the new defendants.

Each of the newly joined defendants filed motions for summary judgment because McHugh had not disclosed a qualified expert to offer medical evidence concerning their standard of care. In his opposition to the apportionment defendants’ motions for summary judgment, McHugh contended that an expert need not be disclosed because the apportionment defendants were parties in name only and no relief was being sought from them apart from apportionment. Additionally, McHugh contended that should expert testimony be required, he and a podiatric expert disclosed by him could offer expert testimony because their training in podiatry included the diagnosis and treatment of infections. After a hearing, the trial court granted each of the apportionment defendants’ motions for summary judgment. McHugh now appeals the judgment of the trial court.

I

McHugh first claims that the trial court improperly ruled that expert testimony was required on the issue of the apportionment defendants’ share of liability. We disagree.

It is well established that ordinarily “[i]n a medical malpractice action, expert testimony is required to establish the standard of professional care to which the defendant is held . . . .” (Citation omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1988). The medical expert must testify to the applicable standard of care and deviation from that standard. Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064 (1990).

This court recently addressed this issue in Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 699 A.2d 271 (1997). In that case, this court held: “We do not, however, agree with the defendants that the statute requires that the jury automatically consider the issue of apportionment of the hospital’s negligence. As with any issue, the trial court must not submit the issue of the settled person’s negligence to the jury unless there is evidence to support it. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). Because this is a medical malpractice case, any evidence of the hospital’s negligence would have to come from qualified medical experts. See Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).

“The Supreme Court of the state of Washington was confronted with a similar issue in Adcox v. Children’s Orthopedic Hospital & Medical Center, 123 Wash. 2d 15, 25-26, 864 P.2d 921 (1993). The Washington Supreme Court held that “[the Washington apportionment statute] is not self-executing. It does not automatically apply to each case where more than one entity could theoretically be at fault. Either the plaintiff or the defendant must present evidence of another entity’s fault to invoke the statute’s allocation procedure. Without a claim that more than one party is at fault, and sufficient evidence to support that claim, the trial judge cannot submit the issue of allocation to the jury. Indeed, it would be improper for the judge to allow the jury to allocate fault without such evidence. If the plaintiff signals an intention to present evidence of fault solely against one defendant ... it is incumbent upon the defendant to provide proof that more than one entity was at fault.” (Emphasis in original.) Baxter v. Cardiology Associates of New Haven, P.C., supra, 46 Conn. App. 381-82.

We, therefore, do not agree with McHugh that expert testimony was not required on the issue of the apportionment defendants’ share of liability. Since this is a medical malpractice action, the trial court was correct in not submitting the issue of the four apportionment defendants’ negligence to the jury unless there was evidence from qualified medical experts.

II

McHugh next claims that the trial court improperly ruled that the affidavits of McHugh’s experts were insufficient to support his claims against the apportionment defendants. Because this is a medical malpractice action, McHugh had to present affidavits from qualified medical experts to defeat a motion for summary judgment.

In the present case, McHugh offered the affidavits of himself and Harold Harinstein, both podiatrists, in opposition to the apportionment defendants’ motions for summary judgment. General Statutes § 52-184c (d) provides: “Any health care provider may testify as an expert in any action if he: (1) Is a ‘similar health care provider’ pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.”

Here, neither McHugh nor Harinstein, as podiatrists, could provide expert medical evidence concerning the infection in the plaintiffs right leg and hip. General Statutes § 20-50 provides in relevant part: “ ‘Podiatric medicine’ means the diagnosis and treatment, including medical and surgical treatment, of ailments of the foot and the anatomical structures of the foot and the administration and prescription of drugs incidental thereto. It shall include treatment of local manifestations of systemic diseases as they appear on the foot. . . .” A podiatrist, while able to give an expert medical opinion on matters concerning the foot, cannot render expert medical testimony on an infection in a person’s hip or leg.

We conclude that neither McHugh nor Harinstein are similar health care providers, as required by § 52-184c (d), to the apportionment defendants who are physicians. Furthermore, the determination of the qualification of an expert is largely a matter for the discretion of the trial court. Poole v. Bell, 209 Conn. 536, 542, 551 A.2d 1254 (1989). We agree, therefore, with the well reasoned opinion of the trial court, holding: “Connecticut courts have ‘approved the grant of a summary judgment in a medical malpractice case when ... it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care.’ Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 314, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1966). In the present case, it appears that expert testimony has not been offered and will not be offered establishing the applicable standard of care and breach of that standard with respect to Fisher, Daniels, Thornton and Waterbury Hospital.”

Furthermore, “[i]n order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Citations omitted; internal quotation marks omitted.) Williams v. Chameides, 26 Conn. App. 818, 822-23, 603 A.2d 1211 (1992). Pursuant to General Statutes § 52-572h (c), for apportionment purposes, to maintain a negligence action to recover damages the injury must be proximately caused by more than one person.

McHugh, however, in both his argument and supporting affidavits in opposition to the motions for summary judgment failed to establish a causal connection between the apportionment defendants’ alleged breach of the standard of care and the claimed injury. McHugh’s and Harinstein’s supporting affidavits are silent on the issue of causation. Additionally, Harinstein, in his deposition, stated that he could not “testify to breach of standard of care of an infectious disease, because it’s not my expertise.” McHugh’s other disclosed expert, Ernest Atlas, stated at his deposition that he had no opinion as to breach of the standard of care of any of the apportionment defendants. Further, when Atlas was asked about the applicable standard of care regarding the apportionment defendants, he replied that he “was not really asked to review these records from that viewpoint, so I have no opinion.” Moreover, McHugh’s medical experts did not offer their opinions as to any of the apportionment defendants’ conduct. Thus, McHugh failed to establish that the plaintiffs injuries were proximately caused by the apportionment defendants, as required by § 52-572h (c).

Ill

McHugh finally contends that the trial court improperly ruled that no issue of material fact existed and, therefore, should not have granted the apportionment defendants’ motions for summary judgment. In the present case, it is evident that McHugh would be unable to produce at trial an expert witness to testify regarding the applicable standard of care. Therefore, the trial court was correct in granting the apportionment defendants’ motions for summary judgment. Bourquin v. B. Braun Melsungen, supra, 40 Conn. App. 314.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-102 provides: “Upon motion made by any party or nonparty to a civil action, the person named in the party’s motion or the nonparty so moving, as the case may be, (1) may be made a party by the court if that person has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or (2) shall be made a party by the court if that person is necessary for a complete determination or settlement of any question involved therein; provided no person who is immune from liability shall be made a defendant in the controversy.”
      General Statutes § 52-572h (c) provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against, whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       McHugh also disclosed Ernest Atlas, an infectious disease specialist, as a possible witness at trial.