author: BORDEN, J.

text:
    LESLIE MILLIUN v. NEW MILFORD HOSPITAL ET AL.
    (AC 30875)
    DiPentima, C. J., and Bear and Borden, Js.

      Argued January 11
    officially released May 31, 2011

      DavidS. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, for the appellant (substitute plaintiff).

      Michael G. Rigg, with whom, on the brief, were Amy F. Goodusky and Roland F. Young III, for the appellee (named defendant).
   Opinion

BORDEN, J.

In this medical malpractice action, the plaintiff, Lynnia Milliun, the conservatrix of her sister, Leslie Milliun, appeals from the summary judgment rendered by the trial court in favor of the defendant New Milford Hospital. On appeal, the plaintiff claims that the court improperly (1) concluded that the opinions of Leslie’s treating physicians were inadmissible on the issue of causation, (2) refused to compel certain treating physicians to be deposed and (3) denied her request for an extension of time to respond to the defendant’s motion for summary judgment. Because we agree with the plaintiff on her first and second claims, we do not reach her third claim, and we reverse the judgment of the trial court granting the defendant’s motion for summary judgment.

The record reveals the following factual and procedural history. The plaintiff claims that the defendant was negligent in the treatment of Leslie when she was admitted into its care in July, 2002. Prior to that date, she had been a patient in the defendant’s care in connection with the treatment of her stiff man syndrome (SMS). In her amended complaint, the plaintiff alleged that, while in the defendant’s care, Leslie suffered severe respiratory dysfunction, during which time her rate of breathing was reduced to two breaths per minute for a period of four minutes. As a result of this anoxic incident, the plaintiff further alleged, Leslie had suffered severe injury to her cognitive functioning, including memory loss, loss of motor function and speech impairment. The plaintiff claimed that Leslie’s brain injury was caused by the defendant’s negligence, namely, failure to monitor Leslie properly, failure to respond to her respiratory dysfunction and the administration of medication that is known to cause respiratory dysfunction.

In April, 2003, prior to the commencement of this action, Leslie had sought treatment at the Mayo Clinic in Rochester, Minnesota, in connection with her cognitive health. At the Mayo Clinic, she first was seen by Kathleen M. McEvoy, a physician. McEvoy reported that Leslie had brought extensive outside records with her, along with an investigative report from the department of health regarding the anoxic incident that occurred while she was in the care of the defendant. McEvoy’s admittance notes indicated that the plaintiff also reported this event to her. At that time, McEvoy reported in her evaluation that Leslie was suffering from a severe neurological disorder, and, although some manifestations suggested SMS, “she obviously has additional deficits and involvement that would not be expected with [SMS] alone.”

In February, 2005, Leslie returned to the Mayo Clinic to address her worsening cognitive health. In her evaluation report, McEvoy stated her impressions of Leslie’s condition as follows: “It is still my clinical impression based on the temporal profile of the onset of her symptoms, that the patient has a primary autoimmune disorder consistent with [SMS], which by history was associated with dysarthria but no cognitive impairment, along with a superimposed anoxic encephalopathy which developed by her report of July 10, 2002 . . . .”

McEvoy then referred Leslie to physicians Keith A. Josephs and Stefan A. Dupont at the Mayo Clinic’s behavioral neurology unit for the purpose of assessing her cognitive functions. Upon his neurological examination, Dupont, a resident at the Mayo Clinic, reported in his neurology consult that her “cognitive dysfunction appears to be multidomain in nature, and based on the recounted temporal events, this all seems to have occurred because of anoxic encephalopathy suffered during her respiratory arrest in 2002.”

Josephs’ evaluation echoed Dupont’s conclusion. He reported as follows: “It is my opinion that [Leslie’s] cognitive impairment is secondary to whatever event occurred or whatever transpired in 2002. The family member tells me that there was anoxia and that there was a change after that. Therefore, one must conclude that her cognitive impairment was secondary to the event that occurred in 2002. Arguing for this being the process of her cognitive impairment also is the fact that she has not had any significant progression since 2002. The cognitive impairment in my opinion is not related to the patient’s diagnosis [of SMS] and is not in keeping with a neurodegenerative syndrome given the lack of progression.” Josephs went on to diagnose her as suffering from “cognitive impairment (static encephalopathy secondary to anoxic brain damage).”

In July, 2008, the plaintiff filed the underlying amended complaint in which she alleged that the defendant was negligent in its care and treatment of Leslie. The court scheduled trial to commence on January 21, 2009, and the plaintiff was required to disclose all of her expert witnesses by September 15, 2008. On that date, the plaintiff disclosed nine expert witnesses, including McEvoy and Josephs. All were identically disclosed on the issues of causation and damages.

In November, 2008, the defendant filed a motion to preclude the plaintiff from calling any of her expert witnesses at trial, contending that she had failed to make them available for depositions and, therefore, that it would be prejudiced by having to conduct pretrial discovery so close to the forthcoming trial date. At a subsequent hearing before the court on the motion to preclude, counsel for both parties indicated that they were experiencing difficulty deposing the plaintiffs experts, as the Mayo Clinic had an internal policy that limited the depositions of its treating physicians. In response to the court’s concerns, the plaintiff represented that none of the witnesses from the Mayo Clinic had been retained as experts to be called at trial but instead had been disclosed as experts for the purpose of introducing their medical records. At the conclusion of the hearing, the parties agreed to take the depositions by teleconference, limited to questions concerning the information contained in the treating physicians’ medical reports.

On January 26, 2009, the court held a hearing on the status of the depositions. At the hearing, the defendant again expressed concern over not having had the opportunity to depose all of the plaintiffs experts. The court thereafter stressed to the parties that the defendant had the right to obtain the deposition testimony of any treating physicians on whose medical reports the plaintiff intended to rely at trial. The plaintiff then explained that, because the witnesses were not within her control, the most appropriate action would be to have a commission appointed in order to compel the experts to attend their depositions in Minnesota in accordance with General Statutes § 52-148c. The following day, the plaintiff filed a motion for the appointment of a commission to summon by subpoena and to obtain the depositions of the treating physicians.

On January 29, 2009, the parties reported back to the court that no additional depositions for the plaintiffs Mayo Clinic witnesses had been taken. The defendant thereafter repeated its request that, because of undue prejudice and delay in the taking of their depositions, the plaintiff should be precluded from relying on the medical reports of the treating physicians on the issue of causation. In response, the plaintiff asserted that the medical records themselves were sufficient evidence to establish the cause of Leslie’s cognitive impairments and, on the court’s request, she identified the portions of the medical reports that she claimed contained adequate opinions on causation. Specifically, the plaintiff pointed to the portion of McEvoy’s 2005 entry in which she stated that, in her clinical opinion, Leslie was suffering from SMS “along with a superimposed anoxic encephalopathy which developed by her report of July 10, 2002.” The plaintiff posited that such a conclusion could be introduced in lieu of five expert testimony in order to establish the element of causation.

At that point, the court expressed concern over the fact that McEvoy’s impressions appeared to be based exclusively on the plaintiffs and Leslie’s own reports of the anoxic incident. After much discussion, the court ruled that the Mayo Clinic records, without any supporting testimony, were insufficient to establish a proper foundation for expert medical opinion on causation because they were predicated on layperson opinion and inadmissible hearsay. The court, over objection from the defendant, proceeded to grant in part the plaintiffs motion for the appointment of a commission to permit the taking of McEvoy’s and Josephs’ depositions, and indicated that if those physicians did not testify adequately to support the basis of the plaintiffs theory on causation, their records would only be admissible insofar as they reflected Leslie’s treatment at the Mayo Clinic, with any portions connected to the causation of her injuries being redacted.

On February 2, 2009, the parties went forward with Josephs’ deposition. At the outset, counsel for the Mayo Clinic, appearing on behalf of Josephs, stated that he would not be opining on the issues of standard of care or causation and that he would only testify as to his care of Leslie as a treating physician. Upon his initial examination by the defendant, Josephs testified, consistent with his counsel’s opening remarks, that it was not his intent to give an opinion as to whether the defendant’s care and treatment of Leslie led to an anoxic event and that he was unaware of what in fact caused the anoxia. Additionally, Josephs stated that he had not reviewed the defendant’s records of Leslie’s hospitalization, and that the circumstances surrounding her anoxic event were relayed to him by Leslie and the plaintiff.

During the plaintiffs examination, however, Josephs testified that there was information available to him that indicated that while Leslie was in the care of the defendant her rate of breathing was reduced to somewhere between one and four breaths per minute and that upon his review of the materials available to him he concluded that her cognitive deficits were caused by this anoxic event. Although both sides, and the court, were under the assumption that Josephs’ examination would last four hours, counsel for the Mayo Clinic unilaterally terminated the deposition after the second hour of questioning.

The following day, the plaintiff issued subpoenas seeking to compel the continued deposition of Josephs arid the deposition of McEvoy, and counsel for the Mayo Clinic filed a motion for a protective order seeking to preclude the plaintiff from completing Josephs’ deposition and from conducting McEvoy’s deposition, contending that these examinations constituted an annoyance and were unduly burdensome. The defendant joined in the Mayo Clinic’s motion and, in its supplemental brief in opposition to the continued depositions, argued that neither Josephs nor McEvoy could be compelled to testify as to their expert medical opinions on causation. The court agreed and vacated its previous order granting commissions for the depositions of Josephs and McEvoy. Accordingly, the court advised counsel for the Mayo Clinic that Josephs and McEvoy were no longer under subpoena.

On February 6, 2009, the defendant filed a motion for permission to file a motion for summary judgment. The court granted the motion for permission on February 9, 2009, and the defendant filed its motion for summary judgment that day. The court also ordered the plaintiff to file her opposition to the motion the following day.

On February 17, 2009, the court heard oral argument on the defendant’s motion for summary judgment. The defendant claimed that it was entitled to summary judgment because the plaintiff could not establish the element of causation by expert testimony. Specifically, it argued that the treating physicians’ opinions contained within their medical reports were insufficient to establish that the alleged injuries were caused by the defendant. The court agreed and granted the defendant’s motion for summary judgment. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court improperly granted the defendant’s motion for summary judgment for three reasons, namely, that it improperly (1) determined that the treating physicians’ opinions on causation as stated in their medical records were inadmissible, (2) precluded the depositions of Josephs and McEvoy, and (3) denied her request for an extension of time to respond to the defendant’s motion for summary judgment. We agree with the plaintiff that the court improperly granted the defendant’s motion for summary judgment.

We begin our analysis by setting forth the well established standard of review that guides our analysis. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the defendant’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

“The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 464-65, 976 A.2d 23 (2009).

I

We first tum our attention to the plaintiffs claim that the court improperly ruled that the opinions of the treating physicians, as captured in their medical records, were inadmissible on the issue of causation. The defendant counters that the court determined correctly that the reports were inadmissible because the statements of the treating physicians in their reports were both predicated on hearsay and mere recitations of lay opinions. We agree with the plaintiff.

“[T]o 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.” (Internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008). Additionally, “[ejxpert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (Internal quotation marks omitted.) Poulin v. Yasner, 64 Conn. App. 730, 738, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).

In the present case, the court concluded that the treating physicians’ medical reports were inadmissible to establish that Leslie’s injuries were causally connected to the defendant’s care and, therefore, the plaintiff could not put forth any expert testimony to support her claim that the defendant’s alleged negligence caused the injuries claimed by the plaintiff. Specifically, in evaluating the plaintiff’s claim that the opinions of the treating physicians contained in the medical reports could be introduced in lieu of five testimony, the court noted “that the statements contained in the reports pertaining to causation were either predicated on inadmissible hearsay, as they were made by the patient and her sister or predicated upon the ‘expert’ opinions of lay witnesses.” The court reasoned that “nothing in the records, nor any other evidence,” indicated that those individuals who were “advocating a causal connection between [Leslie’s] symptoms and her stay at the hospital were qualified to give expert testimony regarding causation.” Consequently, the court ruled that the medical records were inadmissible insofar as they pertained to the issue of causation.

The admissibility of medical reports and records created by medical experts is governed by General Statutes § 52-174 (b), which makes clear that a party may introduce the reports of treating physicians in lieu of their live expert testimony. See Shegog v. Zabrecky, 36 Conn. App. 737, 750, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). “Whether the trial court improperly admitted evidence under § 52-174 (b) is an evidentiary question, and our review is for abuse of discretion.” Rhode v. Milla, 287 Conn. 731, 742, 949 A.2d 1227 (2008).

“Our Supreme Court has set forth the requirements for a report to be admissible pursuant to § 52-174 (b). [Section 52-174 (b)] permits a signed doctor’s report to be admitted as a business entry. . . . [It] creates a presumption that the doctor’s signature is genuine and that the report was made in the ordinary course of business. . . . Thus, once the statutory requirement that the report be signed by a treating physician is met, the evidence in that report is admissible and has the same effect as a business entry. . . . This statute serves the purpose of getting medical evidence before the jury in the absence of the treating physician. . . . Lopiano v. Lopiano, 247 Conn. 356, 383, 752 A.2d 1000 (1998).” (Internal quotation marks omitted.) Bruneau v. Seabrook, 84 Conn. App. 667, 671, 854 A.2d 818, cert. denied, 271 Conn. 930, 859 A.2d 583 (2004); see also Shegog v. Zabrecky, supra, 36 Conn. App. 737 (signed reports of treating physicians used in lieu of Uve testimony in medical malpractice action). Accordingly, the plaintiffs attempt to estabhsh causation through the medical reports of Leslie’s treating physicians does not present an obstacle to her medical malpractice action.

Furthermore, our case law is clear that a physician’s medical opinion is not inadmissible because it is formed, in whole or in part, on the basis of hearsay statements made by a patient. See George v. Ericson, 250 Conn. 312, 320, 736 A.2d 889 (1999) (although “[i]t is the general rule that an expert’s opinion is inadmissible if it is based on hearsay evidence . . . [o]ne exception to this rule ... is the exception which allows a physician to testify to his opinion even though it is based, in whole or in part, on statements made to him by a patient for the purpose of obtaining from him professional medical treatment or advice incidental thereto”) [citation omitted; emphasis added; internal quotation marks omitted]). The rationale for this exception is that “the patient’s desire to recover his health . . . will restrain him from giving inaccurate statements to a physician employed to advise or treat him.” (Internal quotation marks omitted.) State v. Cruz, 260 Conn. 1, 7, 792 A.2d 823 (2002); see also C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.20.2, p. 520 (“[the] exception is based on the theory that persons who consult a doctor for advice or treatment will be motivated by a desire to recover . . . and that such persons will therefore refrain from giving inaccurate statements to the individual advising or treating them”). Accordingly, we conclude that the treating physicians’ reliance on statements provided by the patient to establish a temporal basis for their medical conclusions did not render their opinions as to causation inadmissible. See George v. Ericson, supra, 325 (“fact that an expert opinion is drawn from sources not in themselves admissible does not render the opinion inádmissible” [internal quotation marks omitted]); Poulin v. Yasner, supra, 64 Conn. App. 743 (trial court improperly precluded physician’s expert testimony that was based in part on statements by injured party).

The defendant also contends that the treatment reports were inadmissible because they embodied little more than mere recitations of Leslie’s and the plaintiff s lay opinions on the cause of Leslie’s injuries. The defendant presses the argument that, because the reports do not reflect the independent expert opinions of the treating physicians, they are insufficient to establish by expert testimony the evidentiary nexus between the injuries and the defendant’s care. We are not persuaded.

Our thorough review of the underlying medical reports reveals that the defendant’s proffered interpretation of the opinions of the treating physicians is inconsistent with the level of treatment and evaluation Leslie received while at the Mayo Clinic and the detailed diagnostic conclusions of those who opined on her medical condition. The reports of McEvoy and Josephs demonstrate that, although the plaintiff and her sister reported the anoxic event to McEvoy, this fact is not fatal to the plaintiffs claim. Even if the treating physicians’ opinions were based in part on lay statements from Leslie and the plaintiff, their final impressions and diagnosis were formed following comprehensive physical and neurological testing in connection with Leslie’s cognitive functioning. For example, after Leslie had been referred to Josephs by McEvoy for an assessment of her cognitive impairments, Josephs “examined [her] in detail,” and administered both cognitive and neurological examinations. After his examinations, Josephs expressly came to his own conclusion concerning Leslie’s condition and opined as follows: “It is my opinion that [Leslie’s] cognitive impairment is secondary to whatever event occurred or whatever transpired in 2002. . . . The cognitive impairment in my opinion is not related to the patient’s diagnosis [of SMS] and is not in keeping with a neurodegenerative syndrome given the lack of progression.” (Emphasis added.) Simply put, this personal assessment by Josephs following his comprehensive testing represents more than a basic recital of the plaintiffs and Leslie’s lay opinions regarding causation.

In addition, the treating physicians’ medical records reflect that they were aware of Leslie’s extensive medical history and the anoxic event that occurred while she was in the care of the defendant before they evaluated her condition. In her “Neurology—Specialty Evaluation” report, McEvoy stated that Leslie had brought detailed outside records in connection with her complex medical history, including an investigative report from the department of health regarding her July, 2002 hospitalization. Although Leslie’s 2003 “Dismissal Summary” indicated that specific details of the hospitalization were not available, and that anoxic encephalopathy developed by Leslie’s own report of her hospitalization, we conclude that the detailed conclusions of the treating physicians following their extensive testing and evaluation of Leslie in 2005, coupled with the statements of the plaintiff and Leslie to the physicians and the investigative report documenting her hospitalization, were sufficiently reliable to establish that the medical conclusions recorded in the treaters’ reports were more than mere recitations of lay opinions. See George v. Ericson, supra, 250 Conn. 323 (nontreating physician’s reliance “on voluminous medical records, including [magnetic resonance images], X rays and hospital records, as well as the medical history that the plaintiff gave him, and his own physical examination of [the patient] ... is hardly material that provides an insufficiently reliable basis for an expert opinion” [emphasis added]).

We conclude, therefore, that the medical reports were improperly precluded on the ground that they were formed exclusively on the basis of unreliable hearsay and nonexpert opinion. Moreover, we conclude that the reports demonstrate that a genuine issue of material fact exists concerning whether the defendant’s alleged malpractice is causally connected to Leslie’s cognitive injuries.

II

We now consider two arguments raised by the defendant, essentially as alternate grounds for affirming the court’s summary judgment. The defendant contends that the medical reports were inadmissible because (1) the treating physicians did not opine on causation with a reasonable degree of medical probability and (2) the defendant did not have an opportunity to cross-examine them. We address both of these issues in turn.

A

The defendant claims that the treating physicians’ did not express their opinions concerning the cause of Leslie’s injuries with a reasonable degree of probability. “To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it. . . . This causal connection must rest upon more than surmise or conjecture. ... A trier is not concerned with possibilities but with reasonable probabilities.” (Citations omitted; internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 554, 534 A.2d 888 (1987). Accordingly, “[ejxpert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Id., 554-55.

“To be reasonably probable, a conclusion must be more likely than not.” Id., 555. “Any expert opinion that describes a ‘condition’ as possible or merely fifty-fifty is based on pure speculation.” Aspiazu v. Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987). “An expert, however, need not use ‘talismanic words’ to show reasonable probability.” Shegog v. Zabrecky, supra, 36 Conn. App. 746. “As long as it is clear that the opinion of the expert is expressed in terms of probabilities, the opinion should be submitted into evidence for a jury’s consideration.” Struckman v. Burns, supra, 205 Conn. 555; see also Mallory v. Mallory, 207 Conn. 48, 54, 539 A.2d 995 (1988) (expert opinion that injuries “most likely” result of abuse expressed in terms of reasonable medical probability); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 720, 596 A.2d 1318 (opinion that injury “might have been caused by a piercing of the subclavian artery” stated with sufficient medical certainty to be considered by jury), cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

The defendant relies on Josephs’ deposition testimony for the proposition that his opinion was not formed on the basis of reasonable medical probability. As set forth previously, at his deposition, Josephs stated dining the defendant’s examination that he could not give an opinion as to whether the events that occurred while Leslie was in the defendant’s care in July, 2002, caused her alleged injuries. Such testimony, however, is directly at odds with the conclusions that are captured in his medical reports, in which he states clearly that, in his opinion, Leslie’s “cognitive impairment is secondary to whatever event occurred ... in 2002.” Moreover, during his examination by the plaintiff, Josephs repeated his conclusion from 2005 that Leslie’s cognitive defects were the result of the anoxic incident in July, 2002. See footnote 7 of this opinion. Additionally, McEvoy, who was not deposed; see part II B of this opinion; reported in her own “clinical impression” that Leslie was suffering from her SMS, “along with a superimposed anoxic encephalopathy which developed by her report of July 10, 2002 . . . .” McEvoy’s clinical impression is reflected in her final evaluation of Leslie in 2005, in which she diagnosed her with SMS and “[c]ognitive impairment (static encephalopathy secondary to anoxic brain damage).”

On the basis of the foregoing, we conclude that the treating physicians’ expert opinions as detailed in their medical reports, viewed in the light most favorable to the plaintiff at this stage of the proceedings, as we must, were sufficiently rehable to meet the requisite “reasonable degree of medical probability” standard. See Aspiazu v. Orgera, supra, 205 Conn. 633. Both McEvoy and Josephs definitively reported that Leslie’s cognitive dysfunction was connected to the anoxic event that occurred while she was in the defendant’s care. Furthermore, the medical records were created after the treating physicians reviewed the results of a series of physical and neurological tests performed on Leslie and following discussions of her extensive medical histoiy. We are therefore confident that there was sufficient evidence from which a jury reasonably could have determined, without resorting to pure speculation, that Leslie’s injuries were causally connected to the defendant’s care. Moreover, to the extent that the defendant raises a dispute between the conclusions expressed in Josephs’ medical reports and his deposition testimony, such concerns go to the weight of that evidence, rather than admissibility. See Eisenbach v. Downey, 45 Conn. App. 165, 176, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). Accordingly, we cannot affirm the summary judgment on the theory that the treating physicians did not opine on causation with a reasonable degree of medical probability.

B

We turn our attention to the defendant’s claim that the medical reports were inadmissible because it was deprived of an opportunity to cross-examine the treating physicians. We are not persuaded.

As set forth previously, the parties experienced difficulty deposing the treating physicians and, consequently, the defendant moved to preclude the plaintiff from introducing their medical reports on the ground that they had not been made available for depositions. The plaintiff, in response, moved the court to obtain a commission for issuance of subpoenas to compel the requested out-of-state depositions of several treating physicians. The court granted the motion as to Josephs and McEvoy, and ordered that their depositions be taken telephonicaily. Josephs’ deposition went forward and, although it lasted only two hours instead of the expected forur hours, both sides had an opportunity to inquire into his treatment of Leslie and his corresponding opinions on causation, with counsel for the defendant examining him first. The following day, however, after the plaintiff had issued subpoenas to compel Josephs to complete his deposition and McEvoy to be deposed, counsel for the Mayo Clinic filed a motion for a protective order seeking to preclude the plaintiff from completing Josephs’ deposition and from conducting McEvoy’s deposition, contending that these depositions constituted an annoyance and were unduly burdensome. The defendant joined in the Mayo Clime’s motion, arguing that neither Josephs nor McEvoy could be compelled to testify. The court, in response to that motion, vacated its previous order and quashed the commissions before McEvoy’s deposition.

The defendant contends, in essence, that because it did not have an opportunity to depose and cross-examine McEvoy, her treatment records are inadmissible on the issue of causation. The defendant is correct insofar as it points out that a party generally is entitled to cross-examine any treating physicians whose reports the opposing party seeks to offer pursuant to § 52-174 (b). See Rhode v. Milla, supra, 287 Conn. 744. In the present case, however, having prompted the court into quashing the subpoenas and blocking McEvoy’s deposition, it cannot be granted appellate affirmance on the ground that it was not presented with an opportunity to depose her. “[T]he appellate courts of this state have made it clear that a party cannot take a path at trial and change tactics on appeal.” Moran v. Media News Group, Inc., 100 Conn. App. 485, 501, 918 A.2d 921 (2007). Accordingly, we conclude that the treatment records are not inadmissible on the ground that the defendant did not have an opportunity to cross-examine the treating physicians.

Ill

We turn now to the plaintiffs second claim on appeal, namely, that the court erred in precluding the continued deposition of Josephs and the deposition of McEvoy in toto. The plaintiff also presses the argument that, in precluding those depositions, the court afforded the treating physicians a testimonial privilege that is not recognized under Connecticut law. We agree with the plaintiff that, under the circumstances of this case, the complete preclusion of McEvoy’s deposition was improper.

The plaintiff, in accordance with § 52-174 (b), sought to introduce the medical reports of Josephs and McEvoy as evidence of causation in lieu of their live testimony. Following the defendant’s requests to have Josephs and McEvoy deposed and the court’s determination that the defendant was entitled to cross-examine them, the plaintiff filed a motion seeking a commission to take their out-of-state depositions by subpoena. The court initially granted the motion, but, following Josephs’ two hour deposition, it quashed the commission and vacated its order before McEvoy was deposed. The court reasoned that, on the basis of Josephs’ testimony in which he indicated that he did not perceive himself as an expert on causation, the treating physicians could not be compelled to provide expert testimony on the issue of causation. The court also noted that it was appropriate to intervene in the discovery proceedings to ensure that they were fair and not being abused.

“We have long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court, and is subject to reversal only if such an order constitutes an abuse of that discretion.” (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006); see also Lougee v. Grinnell, 216 Conn. 483, 491, 582 A.2d 456 (1990) (ruling on motion to quash deposition subpoena reviewed for abuse of discretion), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999) (en banc). “That discretion is limited, however, by the provisions of the rales pertaining to discovery . . . especially the mandatory provision that discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57-59, 459 A.2d 503 (1983).

On the basis of the proceedings, and in light of our Supreme Court’s decision in Rhode v. Milla, supra, 287 Conn. 731, it is our view that the court abused its discretion in precluding the deposition of McEvoy. During the proceedings, the court made it clear, after granting the plaintiffs motion for the appointment of a commission, that if Josephs and McEvoy “did not testify adequately at deposition to support the basis of their purported opinions on causation,” their medical reports would be inadmissible on the issue of causation. The court, however, did not give the plaintiff an opportunity to acquiesce to its demands because in quashing the commission following Josephs’ deposition it effectively precluded the taking of McEvoy’s deposition. In so doing, the court deprived the plaintiff of a chance to seek the expert testimony that it had already declared essential to the plaintiffs evidentiary burden on the issue of causation. See Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 60 (abuse of discretion to preclude plaintiff from discovering information that court “had already recognized . . . was necessary”).

Our Supreme Court’s decision in Rhode v. Milla, supra, 287 Conn. 731, also lends support to our conclusion that the court improperly precluded McEvoy’s deposition. In Rhode, the plaintiff sought to introduce certain medical bills pursuant to § 52-174 (b) in lieu of live testimony from her expert. Id., 734. At the expert’s deposition, he refused to answer any questions that were posed to him by invoking his fifth amendment privilege against self-incrimination. Id. The defendant claimed, and our Supreme Court agreed, that the bills were inadmissible pursuant to § 52-174 (b) because the defendant did not have any opportunity to cross-examine the expert in a meaningful manner concerning those medical bills. Id., 744.

Essentially, Rhode stands for the proposition that the opportunity to cross-examine an expert is a necessary procedural predicate to the admissibility of reports and records pursuant to § 52-174 (b). Naturally, therefore, it would be improper for a court to refuse to permit adequate direct examination of such an expert, as such preclusion would provide the opposing party with a secure path for challenging the admissibility of those materials on the ground that it was denied its right to cross-examination. Accordingly, in the situation where a party seeks to offer an expert’s reports or records into evidence pursuant to § 52-174 (b), it would be improper for the court to assist in precluding the deposition of that expert. We conclude, therefore, that the court abused its discretion in vacating the commission to take the deposition of McEvoy.

In so concluding, we are cognizant that, as in Rhode, a deponent properly may refuse to testify on the ground of an applicable testimonial privilege. We take this opportunity to address the plaintiffs claim that the court’s ruling that precluded McEvoy’s deposition was based, in part, on its erroneous conclusion that the treating physicians enjoyed a testimonial privilege against being compelled to testify as causation witnesses. In response to that claim, the defendant contends that the treating physicians enjoyed an absolute privilege not to be pressed into service as experts for the plaintiff. For the reasons that follow, we disagree with the defendant.

First, to the extent that such a rule would give the subpoenaed expert witnesses in this case the right to refuse to attend a deposition, we fail to see how the defendant has any standing to assert the witnesses’ rights. Even if we were to assume, arguendo, that there was such a privilege, it would be personal to the witnesses and not within the scope of any party’s rights to assert.

Second, insofar as the defendant requests that we craft a testimonial privilege that would permit a qualified person to refuse to testify as an expert witness, even if that person was familiar with the relevant underlying facts that gave rise to the litigation; see, e.g., Ondis v. Pion, 497 A.2d 13, 18 (R.I. 1985) (compelling experts to testify “would in essence involve a form of involuntary servitude that should normally not be inflicted upon aperson merely because of his professional expertise”); we note that such a rule finds no support in our appellate jurisprudence or our long history of trial practice. Moreover, a categorical rule permitting treating physicians to refuse to testify at a deposition is not in harmony with our liberal discovery rules, which explain that “[e]vidence may be elicited at a discovery deposition even though ‘the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.’ Practice Book § [13-2].” Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 139, 491 A.2d 389 (1985).

Finally, the idea that an expert witness who already has expressed an opinion in connection with the material facts of a case cannot be called to testify as to the basis for such opinion is inconsistent “with the very nature of a trial as a search for truth”; Nix v. Whiteside, 475 U.S. 157, 166, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986); and in stark contrast to the “fundamental maxim that the public . . . has a right to every man’s evidence.” (Internal quotation marks omitted.) Jaffee v. Redmond, 518 U.S. 1, 9, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996). For this reason, the United States Supreme Court has cautioned that evidentiary privileges “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004) (testimonial privilege “ ‘tends to prevent a full disclosure of the truth in court’ ”); Kaufman v. Edelstein, 539 F.2d 811, 820 (2d Cir. 1976) (“we perceive no sufficient basis in principle or precedent for holding that the common law recognizes any general privilege to withhold . . . expert knowledge”); 8 J. Wigmore, Evidence (McNaughton Rev. 1961) § 2192, p. 70 (“we start with the primary assumption that there is a general duty to give what testimony one is capable of giving and that any exemptions which may exist are distinctly exceptional”). Although we do not hold that a person may be compelled to offer expert testimony in a case simply because he is an expert in a particular field; see In re American Tobacco Co., 880 F.2d 1520, 1527 (2d Cir. 1989); Statutory Committee of Unsecured Creditors v. Motorola, Inc., 218 F.R.D. 325, 326 (D.D.C. 2003); that does not mean that a treating physician cannot be compelled to testify at a deposition as to opinions documented in his medical records and the statements made therein. In this connection, we emphasize that both Josephs and McEvoy were disclosed as experts by the plaintiff because, during the course of their care as treating physicians, each offered a tangible opinion as to the causal connection between the defendant’s alleged negligence and Leslie’s injuries. Because “[t]here is no justification for a rule that would wholly exempt experts from placing before a tribunal factual knowledge relating to the case in hand [or] opinions already formulated(emphasis added; internal quotation marks omitted) Lane v. Stewart, 46 Conn. App. 172, 176, 698 A.2d 929, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997); we decline to accept the defendant’s invitation to create a testimonial privilege that would prevent such witnesses from being deposed in the present case.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       Leslie Milliun had been named as the plaintiff in the original complaint, filed in October, 2004. In March, 2007, the court granted her motion to substitute Lynnia Milliun as the plaintiff.

       The substitute plaintiffs amended complaint also names Janice Sumner, a physician, and Associated Family Physicians, P.C., as defendants. Those defendants are not involved in this appeal and, therefore, all references herein to the defendant are to New Milford Hospital.

       The trial of this action originally had been scheduled to commence in August, 2007. After being substituted as the plaintiff in March, 2007; see footnote 1 of this opinion; the plaintiff retained new counsel in April, 2007, and, over opposition from the defendant, received further continuances of the trial date.

       The following colloquy transpired on that point:
      “The Court: ... So, how are you going to work around that? It’s your problem. . . . They are your experts.
      “[The Plaintiffs Counsel]: They are treating physicians. I did not pick them. They weren’t specially retained.
      “The Court: Are all , . . of them flying here to Connecticut for trial?
      “[The Plaintiffs Counsel]: No.
      “The Court: So, how are you using . . . them?
      “[The Plaintiffs Counsel]: I’m using their medical records.”

       “General Statutes § 52-148c allows a party to apply to the court for a commission to take the deposition of an out-of-state witness. Once the commission is granted by the court in this state, a subpoena can be obtained in the proposed deponent’s state to force the deponent to attend a deposition in his state.” Struckman v. Burns, 205 Conn. 542, 552, 534 A.2d 888 (1987).

       On January 30, 2009, the defendant filed an objection to the plaintiffs motion for the appointment of a commission to take the out-of-state depositions of the Mayo Clinic physicians, claiming, inter alia, that the experts could not be compelled to testify as causation experts against their will.

       At Josephs’ deposition, counsel for the plaintiff undertook the following examination:
      “Q. You understand how hypoxia causes brain damage, correct?
      “A. Yes.
      “Q. And after you and Dr. Dupont reviewed whatever materials were available to you and whatever you thought was relevant and important, you came to the conclusion that her cognitive deficits were being caused as a result of that incident in July, 2002? . . .
      “A. That was . . . based on the history I got, yes. . . .
      “Q. All right. The information that was available to you was that she was on considerable amounts of Valium and was hypopneic and that she was breathing somewhere between one and four times per minute, correct? . . .
      “A. Yes.”

       On the morning of February 10, 2009, the plaintiff filed a formal request for an extension of time to respond to the defendant’s summary judgment motion. The plaintiff claimed that, pursuant to Practice Book § 17-45, it would be improper for the motion to be heard less than thirty days from the filing of her request. The plaintiffs request for an extension was denied.

       At the argument, counsel for the plaintiff attempted to submit an affidavit from the plaintiff, dated February 17,2009, explaining that she had provided the Mayo Clinic with extensive medical records regarding Leslie’s prior treatment and that McEvoy had explained to both her and her sister that the decreased level of oxygen available to Leslie’s brain, which McEvoy described as anoxia, had caused permanent impairment to Leslie’s cognitive functioning. The court refused to consider the affidavit.

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries or death . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician .... The use of any such report or bill in lieu of the testimony of such treating physician . . . shall not give rise to any adverse Inference concerning the testimony or lack of testimony of such treating physician . . .

       In DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010), this court concluded that, in the course of a summary judgment proceeding, plenary review applies to a trial court’s ruling concerning the admissibility of expert testimony. Id., 610-12. Following our decision, the defendant in that case requested and was granted certification to appeal to our Supreme Court on that issue. See DiPietro v. Farmington Sports Arena, LLC, 299 Conn. 920, 10 A.3d 1053 (2010). We need not decide whether our holding in DiPietro applies to this particular case, however, as we conclude that the trial court’s ruling was based on a misapprehension of the law and therefore constituted an abuse of discretion. See Bartel v. Bartel, 98 Conn. App. 706, 713, 911 A.2d 1134 (2006).

       The following colloquy took place during the plaintiffs examination of Josephs at his deposition:
      “Q. ... Do you know why Dr. McEvoy wanted a behavioral neurology consultation for Leslie?
      “A. Yes.
      “Q. Why?
      “A. She wanted to know whether the cognitive impairment that the plaintiff and her sister described to her was secondary to [SMS] or something else.

        “Q. And what was the something else that was under consideration? . . .
      “A. Hypoxia.”

       Although we recognize that the defendant did not raise these claims in accordance with the strictures of Practice Book § 63-4 (a) (1) (A), it is appropriate for this court to consider the defendant’s claims as alternate grounds for affirmance because it raised the claims in its principal brief to this court, affording the plaintiff an adequate opportunity to respond, which she did in her reply brief. See Gerardi v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010).

       The court refused to order the depositions of the plaintiffs disclosed experts who were nonphysicians, indicating that they were not qualified to opine on causation.

       We address this issue because it is likely to arise on remand, and the claim properly was raised and argued before us. See Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 763 n.12, 916 A.2d 114 (2007).

       The expert had become the subject of a federal criminal investigation into his billing practices. Rhode v. Milla, supra, 287 Conn. 734.

       Although the defendant raises just such a claim as an alternate ground to affirm the court’s summary judgment, we reject that claim insofar as the court’s ruling precluding McEvoy’s deposition was prompted by the defendant. See part II B of this opinion.

       We do not address, because we need not do so, whether if such a deposition witness were to demand payment for his or her appearance, the court could award such a payment by the party issuing the subpoena.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEREMY KELLY
    (AC 30282)
    Bishop, Lavine and Borden, Js.

      Argued March 14
    officially released May 31, 2011

      Matthew Bristol, certified legal intern, with whom were Timothy H. Everett, special public defender, and Irene Kim, certified legal intern, and, on the brief, Jody Mullis and Timothy Nast, certified legal interns, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Jeremy Kelly, appeals from the judgment of conviction following his conditional plea of nolo contendere to possession of cocaine with intent to sell in violation of General Statutes § 2 la-277 (a). The defendant’s plea followed the trial court’s denial, after an evidentiary hearing, of his motion to suppress evidence as the fruit of an illegal seizure of his person. On appeal, the defendant claims that the court improperly (1) determined that the seizure was constitutionally permissible and (2) allocated the burden of proof to the defendant. We affirm the judgment of the trial court.

The court reasonably could have found the following facts from the evidence adduced at the hearing. On March 27,2007, Detective William Rivera of the Hartford police department received information from a reliable confidential informant that a certain Pedro Gomez, residing in the area of Brown Street in Hartford, was in possession of a firearm. Having also discovered that Gomez was the subject of an outstanding arrest warrant for violation of probation, Rivera and Lieutenant Jose Angeles of the department of correction drove to the area in an unmarked car and dressed in plain clothes. They had a description of Gomez as a Hispanic male of medium complexion with short hair, twenty to twenty-two years of age, between 130 and 150 pounds and between five feet, five inches and five feet, seven inches tall. The informant also had alerted Rivera that sometimes Gomez disguised himself by wearing a dark wig.

At approximately 11 a.m., the officers observed two men, later identified as the defendant and Rafael Burgos, walking and talking together on the sidewalk. There was a gas station on the comer that was a known location for drug dealing, and Rivera suspected that the men had just left that location. As the officers approached, they determined that Burgos fit the description of Gomez. As Burgos and the defendant walked into the driveway at 13-15 Brown Street, they made eye contact with the officers and Burgos moved his foot as if he was going to ran. Both men continued to walk slowly toward the rear of the building, looking backwards. Angeles noticed that the defendant was clutching his waistband. Stopping his vehicle in front of the driveway, Rivera displayed his badge and stated, “I’m a police officer,” and, “come to the vehicle.” Angeles also displayed his badge. Burgos replied, “for what?” and the defendant stated, “I five here.” Burgos and the defendant continued walking up the driveway. Rivera then pulled the car into the driveway east of 13-15 Brown Street. The officers did not activate their vehicle’s lights or siren and had not drawn their firearms.

As Angeles began to step out of the vehicle, he ordered the men to “stop, stop, come here.” At that point, they fled. The defendant ran behind the house. Rivera drove the car to the front of 13-15 Brown Street and observed the defendant run around the front of the house and up the street, still clutching his waistband, while Angeles chased him on foot. Rivera drove alongside them up the street and then turned into a driveway to block the defendant’s path. The defendant changed course, and Rivera began chasing him on foot. Rivera saw the defendant drop a clear plastic bag containing a white substance. When the defendant tripped and fell, Rivera tackled him and handcuffed him after a thirty second straggle. Rivera seized the bag that the defendant had dropped and also seized another clear plastic bag containing a large amount of a white, rock like substance from the defendant’s clenched hand.

Following his arrest, the defendant was charged with possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), possession of narcotics within 1500 feet of an elementary school in violation of General Statutes § 21a-279 (d), possession of narcotics in violation of General Statutes § 21a-279 (a), interfering with an officer in violation of General Statutes § 53a-167a and criminal trespass in the third degree in violation of General Statutes § 53a-109. He filed a motion to suppress the evidence seized during the encounter, claiming that he had been illegally seized by the officers when they displayed their badges and told him to approach the vehicle. Following an evidentiary hearing on July 9, 2008, the court issued an oral decision denying the motion. The defendant subsequently entered a conditional plea of nolo contendere to the crime of possession of cocaine with intent to sell in violation of § 21a-277 (a), and the court sentenced him to nine years incarceration, suspended after three and one-half years, and three years probation. This appeal followed.

I

The defendant first claims that he was illegally seized by the officers in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. He argues that he was seized when they displayed their badges and stated, “come to the vehicle” and that this seizure was illegal because the officers lacked a reasonable and articulable suspicion that he had committed or was about to commit a crime independent of any suspicion they harbored toward Burgos. In particular, he argues that the trial court improperly determined that, under these facts, the public interest in police officer safety justified the seizure even in the absence of reasonable suspicion as to the defendant. We agree with the trial court.

We begin with our standard of review and the governing legal principles. “Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Citation omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

“Ordinarily, [w]hen considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any, did the encounter between [the police officer] and the defendant constitute an investigatory stop or seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officer] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Internal quotation marks omitted.) State v. Clark, 297 Conn. 1, 7-8, 997 A.2d 461 (2010). “[In a case] in which we are required to determine whether the defendant was seized by the police, we are presented with a mixed question of law and fact that requires our independent review.” State v. Burroughs, supra, 288 Conn. 843-44.

We begin our analysis with a discussion of the legal test used to determine whether a person is seized. Our Supreme Court has clarified that article first, § 7, of the Connecticut constitution “afford[s] greater protection to the citizens of this state than does the federal constitution in the determination of what constitutes a seizure.” State v. Oquendo, 223 Conn. 635, 649-50, 613 A.2d 1300 (1992). Accordingly, we look to the decisional precedents of our state, rather than federal precedent, to guide our determination of this question. Our Supreme Court has articulated that “a person is seized when, by means of physical force or a show of authority, his freedom of movement is restrained. . . . The key consideration is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . The inquiry is objective, focusing on a reasonable person’s probable reaction to the officer’s conduct.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, supra, 288 Conn. 844-46.

In the present case, the officers stopped their car near the defendant and Burgos, displayed their badges and told the men to approach the vehicle. Because they applied no physical force at this juncture, we restrict our inquiry to whether they engaged in a coercive display of authority such that a reasonable person in the defendant’s position would not have felt free to leave. Under similar facts in Oquendo, in which an armed police officer stood outside his marked vehicle and told the defendant to approach the vehicle and to bring his bag, the Supreme Court determined that the defendant had been seized. State v. Oquendo, supra, 223 Conn. 652-53. Although the officers in the present case were in an unmarked car and did not indicate whether they were armed, they did display the badges of their authority and commanded the defendant and Burgos to approach. On the basis of these facts, we are persuaded that a reasonable person in the defendant’s position would not have believed that he was free to ignore the command and walk away. See id. We conclude, therefore, that the defendant was seized within the meaning of article first, § 7, of the Connecticut constitution.

We next set forth the legal test used to determine whether an investigatory stop or seizure is constitutional. The standards governing our analysis under article first, § 7, of our state constitution, “mirror those set forth by the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)], with regard to [federal] fourth amendment analysis . . . .” State v. Oquendo, supra, 223 Conn. 654. “[T]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security . . . and that reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers . . . .” (Citations omitted; internal quotation marks omitted.) Maryland v. Wilson, 519 U.S. 408, 411, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997). “[A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Clark, supra, 297 Conn. 9; see also Terry v. Ohio, supra, 392 U.S. 21. “[T]he officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 233, 3 A.3d 806 (2010).

The defendant, nevertheless, claims that his seizure was unlawful because the officers lacked a reasonable and articulable suspicion that he was engaged in criminal activity independent of their suspicion of Burgos. The state argues in opposition that an independent reasonable suspicion regarding the defendant was not required because the risk to the officers’ safety during their legal stop of Burgos outweighed the defendant’s liberty interest. We note that the state has a “weighty interest in promoting the safety of its police officers” and that “[wjhile we respect the constitutional rights against unreasonable search and seizure of the citizenry, [c]ertainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” (Internal quotation marks omitted.) State v. Mann, 271 Conn. 300, 317-18, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).

We are bound by the principle that our state constitution may not provide less protection for the exercise of individual rights than the minimum national standard provided under the United States constitution; see State v. Oquendo, supra, 223 Conn. 649; which generally requires that an officer have a particularized suspicion before making an investigatory stop. See Terry v. Ohio, supra, 392 U.S. 21. The United States Supreme Court, however, has recognized that limited, incrementally intrusive seizures that are not based on reasonable suspicion are occasionally required in the interest of officer safety, for example, during a traffic stop or during the execution of a search warrant of premises. See respectively, e.g., Maryland v. Wilson, supra, 519 U.S. 408; Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Whether the reasoning in these cases applies to a nonvehicular on-the-street encounter is a matter of first impression for appellate review.

In the context of a traffic stop, the United States Supreme Court has taken the unprecedented step of authorizing seizures that are unsupported by any individualized suspicion whatsoever and held that, during a traffic stop, an officer also may order any passenger out of the car as a precautionary measure. Maryland v. Wilson, supra, 519 U.S. 415. It noted that many officers have been assaulted and killed during traffic stops. Id., 413. It also reasoned that the presence of passengers increases the possible sources of harm to the officer because any incriminating evidence discovered during the stop likely would implicate a passenger as much as the driver. Id., 413-14. The court then balanced these safety risks against the intrusion on personal liberty required to mitigate them. Id. It found that permitting an officer to direct the movements of the passengers would constitute only a minimal incremental intrusion on their liberty because they were already inconvenienced by virtue of the stop of the vehicle. Id. Consequently, it concluded that the officer permissibly could seize the passengers pending completion of the traffic stop despite a lack of particularized suspicion of the passengers. Id., 414-15.

The United States Supreme Court has struck an analogous balance between the interests of personal liberty and officer safety in the context of the execution of a search warrant of premises, holding that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, supra, 452 U.S. 705. The court reasoned that the execution of a warrant to search for narcotics or weapons is particularly dangerous and that the presence of multiple occupants increases that risk. Id., 702-703; see also Muehler v. Mena, 544 U.S. 93, 100, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). It also stated that “unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Maryland v. Buie, 494 U.S. 325, 333, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Conversely, in regard to the intrusion on the occupants’ liberty, the detention is merely incremental to the search itself, is occasioned by probable cause to search as found by a neutral magistrate and is not stigmatizing because it is not in public. On balance, therefore, the court has held that the suspicionless detention is permissible because “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Michigan v. Summers, supra, 702-703.

The defendant contends that the safety risks to officers attendant to stopping vehicles are not present during an on-the-street stop, and, therefore, the reasoning in the traffic stop and search warrant contexts does not pertain to the present case. The state argues to the contrary that the same safety issues addressed in traffic stop cases may arise in a nonvehicular stop, thereby justifying the momentary suspicionless stop of an individual on the street who is in the company of a person of whom the police have a reasonable and articulable suspicion. We note, as a preliminary consideration, that the constitutional parameters of an investigatory detention are not defined by the location of the encounter. Nevertheless, we recognize that fourth amendment analysis may be affected by contextual circumstances. In particular, the risk of harm to a police officer indeed may depend on context, particularly with respect to the threat posed by persons within the vicinity of a suspect. For example, the United States Court of Appeals for the Second Circuit has recognized that “while it is obviously reasonable to believe that individuals in a private home or vehicle have some connection with one another, it is not reasonable to assume that all of the persons at a public bar have such a connection.” United States v. Jaramillo, 25 F.3d 1146, 1152 (2d Cir. 1994).

As for on-the-street encounters, the United States Supreme Court evaluated the safety concerns in Terry as follows: “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.” Terry v. Ohio, supra, 392 U.S. 23-24. Consequently, the court concluded that officers may conduct investigative stops based on reasonable suspicion that an individual is engaged in criminal activity. Id., 27. Additionally, officers permissibly may frisk a suspect if the officer has a reasonable suspicion that the suspect is “armed and dangerous” and “where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety . . . .” Id., 30.

The defendant argues that the danger from a concealed weapon or an ambush is diminished on the street and, therefore, that the Terry standard of reasonable suspicion, which was formulated directly in regard to an on-the-street encounter, represents the minimum that was required to justify his seizure. Confining ourselves to the particular circumstances of the defendant’s momentary seizure, however, the indices of risk to the officers were similar to those cited in Maryland v. Wilson, supra, 519 U.S. 413-14, and Michigan v. Summers, supra, 452 U.S. 702-703, to justify suspicionless detentions during a traffic stop and the execution of a search warrant. Believing Burgos to be Gomez, the officers had a reasonable suspicion that he was armed. They also reasonably could infer that Burgos had the mindset to elude capture in light of the information that he sometimes disguised himself to avoid being arrested on his outstanding warrant. Additionally, the encounter occurred near a location known for drug dealing. Under these circumstances, there was a real danger that the defendant, whom the officers observed walking and talking with Burgos, would interfere with their investigation in a manner protective of Burgos and potentially harmful to the officers. With the defendant undetained, the officers reasonably could have believed that they were vulnerable to attack from him. In light of the foregoing, the risk to the officers was significant.

The encounter presently at issue also was similar to a traffic stop or execution of a search warrant in its minimal degree of intrusion on the defendant’s personal liberty. In confronting Burgos, the officers could not avoid confronting the defendant as well, whom they reasonably could have believed would also be affected by the show of authority directed at Burgos. Consequently, the fact that the officers directed the defendant’s movement was merely an incremental inconvenience, much like ordering passengers of a car to wait outside during the completion of a traffic stop. See, e.g., Maryland v. Wilson, supra, 519 U.S. 413-14 (“[A]s a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car.”). Furthermore, momentarily directing the defendant’s movement was not as intrusive as a frisk or a physical constraint. See, e.g., Terry v. Ohio, supra, 392 U.S. 27 (to proceed from stop to frisk, officer must reasonably suspect that person stopped is armed and dangerous). Finally, we note that the officers did not approach the men on the basis of an inchoate hunch; see id.; such as would raise the specter of harassment or profiling, but, rather, had a reasonable and articulable suspicion of Burgos, which occasioned the need to detain the defendant.

On balance, therefore, the interest in the officers’ safety during the investigatory stop of Burgos outweighed the defendant’s personal liberty interest in not being inconvenienced. To mitigate the risk of harm, the officers exercised command of the entire scene, including the defendant. See, e.g., Michigan v. Summers, supra, 452 U.S. 702-703. When making a “split second” decision, an officer is “not required to calculate the probability that the defendant would proceed in a certain way before taking reasonable steps to protect himself and his fellow officers.” State v. Mann, supra, 271 Conn. 328. For example, when making a suspicionless detention of a passenger during a traffic stop, a police officer “surely [is] not constitutionally required to give [the defendant] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she [is] not permitting a dangerous person to get behind her.” Arizona v. Johnson, 555 U.S. 323, 334, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). Similarly, for example, in determining the reasonable duration of an investigative stop, a court “should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The risk in the present case was significant and the incremental intrusion was minimal. We conclude, therefore, that the officers made a lawful investigatory stop of the defendant under the facts of this case.

II

The defendant also claims that the trial court improperly allocated the burden of proof to him in the evidentiary hearing on his motion to suppress. We do not agree.

“[A] search [or seizure] conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 434, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). “When a party contests the burden of proof applied by the court, the standard of review is de novo because the matter is a question of law.” (Internal quotation marks omitted.) State v. Petaway, 107 Conn. App. 730, 744, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

Our review reveals that the defendant’s claim is at odds with the record. Although the court incorrectly suggested at the outset of the hearing that the defendant bore the ultimate burden of proof on his motion, it noted that the state had “taken on the burden of going forward [with evidence].” Additionally, in response to this court’s order to articulate what burden of proof it applied and to whom the burden was allocated, the trial court articulated: “The state bore—and successfully met—the burden of proving that its warrantless actions were justified.” Consequently, we conclude that the court properly allocated the burdens of production and persuasion, respectively, to the state, and the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal -within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The confidential informant had given Rivera information in the past that had led him to persons in possession of firearms.

       The trial court subsequently filed an articulation in response to an order from this court.

       The defendant also claims that the seizure violated his rights under article first, § 9, of our state constitution. That section provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” As our Supreme Court has held, “the defendant’s reliance on this section is, in essence, superfluous, because, in the search and seizure context, article first, § 9, is our criminal due process provision that does not provide protections greater than those afforded by either the fourth amendment or its coordinate specific state constitutional provision, article first, § 7.” State v. Jenkins, 298 Conn. 209, 259 n.39, 3 A.3d 806 (2010); see also State v. Oquendo, 223 Conn. 635, 669 n.1, 613 A.2d 1300 (1992) (Borden, J., dissenting).

       The fact that the defendant did, in fact, continue walking away is not pertinent to the objective question of whether a reasonable person would have felt free to leave.

       We note, however, that the defendant was not seized as defined in federal fourth amendment jurisprudence. Under federal law, a person is seized by a show of authority only if he submits to it; California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); which did not occur in the present case. Accordingly, the first seizure under the fourth amendment occurred when Rivera tackled the defendant. By the time that physical force was applied, Rivera had probable cause to believe that the defendant was engaged in criminal conduct when he fled and visibly tossed away a plastic bag while being pursued. Under federal jurisprudence, therefore, the defendant’s claim of illegal seizure would be to no avail.

       The defendant conceded during the suppression hearing that the officers had reasonable suspicion to stop Gomez and that their reasonable belief that Burgos was Gomez justified their stop of Burgos. Although the defendant asserts that the stop of Burgos lasted longer than was necessary to dispel the officers’ suspicion, it remains undisputed that they had a legal ground to initiate the stop.

       Similarly, our state Supreme Court has reasoned that, during a traffic stop, an officer “prudently may prefer to aslc that an occupant exit the vehicle; any intrusion upon an occupant’s personal liberty in directing that action is de minimis because, on balance, it serves to protect the officer.” (Internal quotation marks omitted.) State v. Dukes, 209 Conn. 98, 122, 547 A.2d 10 (1988).

       For example, in regard to investigatory stops, the United States Supreme Court’s reasoning in Terry v. Ohio, supra, 392 U.S. 21, which concerned an on-the-street encounter, was extended to traffic stops shortly thereafter. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). likewise, in relation to suspicionless detentions, the court has applied the reasoning from the traffic stop context in the search warrant context and vice versa. See respectively, e.g., Muehler v. Mena, supra, 544 U.S. 99-100; Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009).

       As a consequence of the “greater protection” against seizure that our Supreme Court recognized in State v. Oquendo, supra, 223 Conn. 649, the police, by a show of authority, might seize not only the legitimate suspect but also anyone else who happens to be in the suspect’s vicinity and who reasonably could believe that the show of authority is directed at him or her. Hypothetically, an officer could try to particularize the show of authority to avoid seizing a suspect’s companions, e.g., saying, “stop, man in the red sweater!” instead of simply saying, “stop!” It seems unrealistic, however, to suggest that the police would be able to make such nice distinctions in situations, such as the present one, that require quick action in the interest of public safety.

       In so concluding, we are not suggesting that it is constitutionally permissible to invade an individual’s personal liberty solely on the basis of his proximity to or association with a suspect. See State v. Rodriguez, 11 Conn. App. 140, 149, 525 A.2d 1384 (1987). Although we are persuaded by opinions from other jurisdictions approving limited suspicionless detentions and frisks in the interest of officer safety; see, e.g., United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971) (establishing “automatic companion rule” permitting frisk of all companions of arrestee within immediate vicinity who are capable of accomplishing harmful assault on officer); Trice v. United States, 849 A.2d 1002, 1009 (D.C. 2004) (narrowly endorsing suspicionless frisk based on exigent safety concerns); People v. Smith, 13 P.3d 300, 306-307 (Colo. 2000) (reasonable for officer to conduct protective search of companion of suspect who apparently intended to interfere with investigation), cert. denied, 531 U.S. 1148, 121 S. Ct. 1088, 148 L. Ed. 2d 963 (2001); Commonwealth v. Fraser, 410 Mass. 541, 544 n.4, 573 N.E.2d 979 (1991) (suspicionless detention was reasonable where report of armed man in high crime area); People v. Gamer, 50 Ill. App. 3d 294, 296, 365 N.E.2d 595 (1977) (although officer may not search companion of arrestee simply because of their association, officer may frisk companion for safety reasons); we are aware, as well, that policy considerations prohibiting the inference of guilt by association may outweigh an officer’s safety concerns at times. See, e.g., United States v. Wheeler, 800 F.2d 100, 103 (7th Cir. 1986) (simply being in company of suspect is not justification for frisk); United States v. Bell, 762 F.2d 495, 499 (6th Cir. 1985) (rejecting BerryhilVs “automatic companion rule”); State v. Doughty, 148 Wn. App. 585, 589, 201 P.3d 342 (2009) (stop requires more than simple presence in high crime area or physical proximity to suspected drug dealer); People v. Terrell, 185 App. Div. 2d 906, 907-908, 587 N.Y.S.2d 8 (1992) (person may not be stopped and frisked solely because he is in company of suspect).
      As the United States Supreme Court has emphasized, “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person” or reasonable suspicion for a frisk. (Emphasis added.) Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979); see also Sibron v. New York, 392 U.S. 40, 62-63, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Having considered the relevant precedents, we conclude that the present case is reconcilable with Ybarra and like precedents because the defendant’s association with Burgos was not the sole justification for the stop.

       See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 241 n.36, 828 A.2d 64 (2003) (distinguishing burdens of production and persuasion).