NICOLE DINAPOLI v. STEVEN REGENSTEIN ET AL.
(AC 38576)
Lavine, Mullins and Pellegrino, Js.
Syllabus
The plaintiff sought to recover damages from the defendant dentist, R, and
his dental practice for, inter alia, dental malpractice in connection with
a teeth whitening procedure that R had performed on the plaintiff. The
matter was tried to a jury, which returned a verdict in favor of the
defendants. From the judgment rendered thereon, the plaintiff appealed
to this court. She claimed, inter alia, that the trial court improperly
excluded certain portions of the testimony of her expert witness, M,
relating to the standard of care. Held:
1. The trial court did not abuse its discretion in striking certain portions of
M’s testimony, as the testimony was either irrelevant or not responsive
to the questions posed by counsel; the portions of M’s testimony that
did not pertain to how he treats patients who want to undergo the same
teeth whitening procedure as the plaintiff did here were not relevant
because they did not make the defendants’ alleged breach of the standard
of care in treating the plaintiff more or less probable, and the portions
of M’s testimony in which he explained the reasoning behind the explana-
tions he gave to his patients were not responsive because the answers
went beyond the scope of the specific questions posed by the plain-
tiff’s counsel.
2. The plaintiff could not prevail on her claim that the trial court improperly
precluded her from presenting testimony regarding the facts that formed
the basis of the opinion of M, who stated on direct examination that
the sources he had reviewed to form his opinion were found on the
Internet from people who had issues with and complaints about the
same teeth whitening procedure, but was precluded from summarizing
those comments and complaints; because the comments and complaints
themselves were inadmissible hearsay, testimony summarizing their con-
tents would have been admissible only for the limited purpose of
explaining the basis on which M had formed his expert opinion, and
the trial court did not abuse its discretion in precluding M from testifying
on that point, as the plaintiff failed to show that comments posted on
the Internet and complaints made with a federal agency by unknown
individuals were the types of sources on which experts in the dental
field reasonably rely when rendering expert opinions.
3. The trial court did not abuse its discretion by precluding the plaintiff
from questioning the defendants’ expert, K, on cross-examination about
certain materials received from a company associated with the teeth
whitening product used on the plaintiff that he had reviewed to form
his expert opinion, the questions having concerned matters outside the
scope of direct examination; moreover, although experts are permitted
to testify about the materials on which they rely in forming their opinions,
it was not an abuse of discretion for the trial court to sustain the
defendants’ objection to certain cross-examination of K where the plain-
tiff’s counsel did not ask K to explain the content of the sources on
which he relied, but, rather, asked him to state whether he thought
those sources were factually accurate.
4. The plaintiff’s claim that the trial court abused its discretion by failing
to permit M to answer a hypothetical question posed by her counsel
was unavailing; the hypothetical question posed by the plaintiff’s counsel
failed to present the facts in such a manner as to bear a true relationship
to the evidence presented at trial, and, therefore, the defendants’ objec-
tion to it was properly sustained by the court.
Argued March 16—officially released August 15, 2017
Procedural History
Action to recover damages for, inter alia, dental mal-
practice, brought to the Superior Court in the judicial
district of Fairfield, where the court, Radcliffe, J.,
granted the plaintiff’s motion to cite in Novsam-
Regenstein, P.C., as a party defendant; thereafter, the
complaint was withdrawn as to the defendant Discus
Dental, LLC, et al.; subsequently, the matter was tried
to the jury before Hon. William B. Rush, judge trial
referee; verdict and judgment for the named defendant
et al., from which the plaintiff appealed to this court.
Affirmed.
G. Oliver Koppell, pro hac vice, with whom was Rich-
ard T. Meehan, Jr., for the appellant (plaintiff).
Beverly Knapp Anderson, with whom was Craig A.
Fontaine, for the appellees (named defendant et al.).
Opinion
LAVINE, J. The plaintiff, Nicole DiNapoli, appeals
from the judgment, rendered after a jury trial, in favor
of the defendants, Steven Regenstein, a dentist, and his
practice, Novsam-Regenstein, P.C., doing business as
Westport Esthetic Dental Group.1 The plaintiff claims
that the trial court abused its discretion by (1) striking
four portions of the testimony of her expert witness
regarding the standard of care, (2) precluding her from
presenting testimony regarding the facts that the
experts relied on in forming their opinions, and (3)
precluding her expert from giving his opinion in
response to a hypothetical question. We affirm the judg-
ment of the trial court.2
The following facts and procedural history are neces-
sary to our resolution of the plaintiff’s appeal. On June
2, 2011, the plaintiff, a then thirty-one year old woman,
went to Westport Esthetic Dental Group for a full clean-
ing, X-rays, and a consultation regarding ‘‘Zoom!’’ teeth
whitening (Zoom). Zoom is a teeth whitening procedure
in which a dentist applies a gel to a patient’s teeth and
puts a bright light in close proximity to the patient’s
mouth for three fifteen minute periods. When the plain-
tiff arrived, she filled out an intake form, indicating that
she had a history of bleeding gums, acid reflux, anxiety,
headaches, and tooth sensitivity. While cleaning the
plaintiff’s teeth, a dental hygienist and the plaintiff
spoke ‘‘at length’’ about her history of tooth sensitivity,
including that her teeth were ‘‘very sensitive’’ to the
use of certain whitening strips. Afterward, Regenstein
examined the plaintiff’s teeth, and they ‘‘went over
almost the exact information’’ that she and the hygienist
spoke about, talking a ‘‘good amount’’ about her history
of sensitive teeth. The plaintiff did not inform
Regenstein that she had a history of ‘‘extreme sensitivity
to bleach.’’ Either Regenstein or the hygienist suggested
to the plaintiff that she use fluoride rinse, Sensodyne
toothpaste, and Motrin prior to the Zoom whitening
procedure in order to alleviate any sensitivity and pain
she may feel during or after the procedure. After the
consultation, the plaintiff made an appointment to
undergo the procedure on June 22, 2011, but she did
not receive or sign a consent form explaining the known
risks associated with Zoom whitening.
On June 22, 2011, the plaintiff returned to Westport
Esthetic Dental Group to undergo the Zoom whitening
procedure. During the second exposure to the bright
light, she began to experience aching in her mouth, and
during the third exposure, she experienced ‘‘extreme
pain.’’ Later that day, the plaintiff called the Westport
Esthetic Dental Group because she was in ‘‘excruciating
pain’’ and was told that she could take Motrin, use relief
gel, and rinse with fluoride to relieve the pain. Her pain
did not subside, and she as well as members of her
family continued to call Westport Esthetic Dental
Group. On June 29, 2011, the plaintiff spoke with
Regenstein, and he prescribed her fluoride gel and fluo-
ride toothpaste. As recommended, the plaintiff brushed
with the fluoride toothpaste, rinsed with fluoride rinse,
wore fluoride molds, used relief gel, and gargled with
warm water and baking soda for the next couple of
months. She continued to experience pain and tooth
sensitivity in her mouth for four years, however, and,
during that time, she suffered from hair loss for six
months.
On March 11, 2015, the plaintiff filed an amended
complaint, alleging (1) dental malpractice arising from
the defendants’ breach of the standard of care prior
to, during, and after administering the Zoom whitening
treatment, and (2) lack of informed consent and failure
to warn arising from the defendants’ failure to warn
her of the known risks associated with Zoom whitening3
or the defendants’ failure to recommend alternative
treatment options. She alleged that, as a direct and
proximate result of the defendants’ actions, she suf-
fered from and will continue to suffer from increased
tooth sensitivity, incurred expenses for medical treat-
ment, hair loss, ongoing physical pain, and anxiety.
A number of witnesses testified during the plaintiff’s
case-in-chief, including the plaintiff and Regenstein. She
also called Andrew Mogelof, a dentist at Mogelof Dental
Group, as an expert witness. The defendants, in turn,
presented the testimony of Peter Katz, a dentist in pri-
vate practice, as an expert witness. On direct examina-
tion, the plaintiff’s counsel asked Mogelof a number of
questions pertaining to the standard of care that dentists
should follow when treating new patients for Zoom
whitening. The defendants’ counsel objected to four
lines of questioning, and the court sustained the objec-
tions. The plaintiff’s counsel then asked Mogelof a hypo-
thetical question regarding breach of the standard of
care. In addition, the plaintiff’s counsel questioned
Mogelof and Katz about the facts on which they relied
in forming their opinions. The defendants’ counsel
objected to both lines of questioning, and the court
sustained the objections.
Mogelof did testify as to the standard of care in 2011
for consulting and treating patients for Zoom whitening.
He also testified that, in his expert opinion, the defen-
dants breached the standard of care prior to and after
treating the plaintiff and that they failed to inform her
of the known risks associated with Zoom whitening
before obtaining her consent. Notably, Mogelof never
testified, in any way, that the Zoom whitening or any
subsequent treatment caused the plaintiff’s injuries. See
footnote 14 of this opinion.
On October 6, 2015, the jury found that the defendants
had not breached the standard of care in treating the
plaintiff, but found that they had failed to obtain the
plaintiff’s informed consent. It rendered a verdict in
favor of the defendants, however, because it found that
their failure to obtain her informed consent was not the
proximate cause of her injuries. This appeal followed.
Additional facts will be set forth as needed.
As a threshold matter, we set forth the standard of
review for all of the plaintiff’s claims, which all concern
the court’s evidentiary rulings. ‘‘The decision to pre-
clude a party from introducing expert testimony is
within the discretion of the trial court.’’ (Internal quota-
tion marks omitted.) Amsden v. Fischer, 62 Conn. App.
323, 325–26, 771 A.2d 233 (2001). ‘‘We will make every
reasonable presumption in favor of upholding the trial
court’s ruling, and only upset it for a manifest abuse
of discretion. . . . [Thus, our] review of such rulings
is limited to the questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Internal quotation
marks omitted.) Maynard v. Sena, 158 Conn. App. 509,
513–14, 125 A.3d 541, cert. denied, 319 Conn. 910, 123
A.3d 436 (2015).
I
The plaintiff’s first claim is that the court abused its
discretion by striking four portions of Mogelof’s testi-
mony relating to the standard of care. She argues that
the excluded testimony was necessary to her dental
malpractice claim because the testimony was relevant
to establishing the standard of care and ‘‘would have
enabled the jury to find that the defendants departed
from the standard of care . . . .’’ We disagree.
During the plaintiff’s direct examination of Mogelof,
her counsel asked: ‘‘[W]hat do you do with respect—
let’s take a patient who is not a prior patient of the
office. What is your practice?’’ During his lengthy expla-
nation,4 the plaintiff’s counsel interrupted him and
asked if he could ‘‘confine [his testimony] only to
patients seeking Zoom.’’ The defendants’ counsel
objected and moved to strike Mogelof’s testimony
because his answer was not confined to patients seek-
ing Zoom whitening treatment. The court sustained the
objection, thereby striking the testimony.
Then, the plaintiff’s counsel asked Mogelof: ‘‘What is
the conversation you have with them . . . only with
respect to the person coming in and saying they want
Zoom.’’ While Mogelof was giving a lengthy answer to
the question,5 the defendants’ counsel objected because
it was a ‘‘narrative response,’’ and the court sustained
the objection.
The plaintiff’s counsel also asked Mogelof: ‘‘What
. . . do you specifically tell them about the Zoom pro-
cess, if anything?’’ During his answer,6 Mogelof stated:
‘‘In addition, we know, dentists know, anybody that
uses Zoom knows—.’’ The defendants’ counsel objected
and moved to strike that sentence, and the court sus-
tained the objection, thereby striking the testimony.
Finally, the plaintiff’s counsel asked Mogelof: ‘‘So
let’s confine [this to] what you tell patients, no[t] why
you tell them but what you tell them.’’ During his
answer,7 he stated: ‘‘In addition, I also tell them that
sometimes patients may have sensitivity of their teeth
as a result of Zoom because that’s what the experience
is and that’s what [Discus Dental, a company associated
with Zoom whitening] has informed all of us who use
Zoom.’’ The defendants’ counsel objected and moved
to strike his testimony about what ‘‘the Discus company
did at any point in time,’’ and the court sustained the
objection, thereby striking the testimony.
‘‘Evidence is admissible only if it is relevant. . . .
Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . It is well settled
that questions of relevance are committed to the sound
discretion of the trial court.’’ (Internal quotation marks
omitted.) Pickel v. Automated Waste Disposal, Inc., 65
Conn. App. 176, 184, 782 A.2d 231 (2001). In addition,
testimony that is not responsive to a question is inadmis-
sible. See State v. Ankerman, 81 Conn. App. 503, 516–17,
840 A.2d 1182 (no abuse of discretion in sustaining
prosecutor’s objection because defendant’s answer not
responsive to question posed), cert. denied, 270 Conn.
901, 853 A.2d 520, cert. denied, 543 U.S. 944, 125 S. Ct.
372, 160 L. Ed. 2d 256 (2004).
On the basis of our review of the record, we conclude
that the court did not abuse its discretion in striking
certain portions of Mogelof’s wide ranging testimony
because that testimony was either irrelevant or not
responsive to the questions posed by the plaintiff’s
counsel. The court did not abuse its discretion by con-
cluding that the portions of Mogelof’s testimony that
did not pertain to how he treats patients who want to
undergo Zoom whitening were irrelevant because they
did not make the defendants’ alleged breach of the
standard of care in treating the plaintiff for Zoom whit-
ening more or less probable. In addition, it was not an
abuse of discretion to exclude portions of Mogelof’s
testimony that were not responsive because the
answers went beyond the scope of the specific ques-
tions posed by the plaintiff’s counsel.
II
The plaintiff’s second claim is that the court abused
its discretion when it excluded another portion of
Mogelof’s testimony and two portions of Katz’ testi-
mony that regarded the facts on which they had based
their expert opinions. She argues that the jury did not
find that the defendants departed from the standard of
care in her dental malpractice claim, in part, because
‘‘[Mogelof] . . . was not allowed to support his opin-
ion,’’ and she was ‘‘deprived of an opportunity to fully
examine the veracity of the process in which [Katz]
reached his expert opinion . . . .’’ We disagree.
A
Mogelof’s Testimony
During the plaintiff’s direct examination of Mogelof,
her counsel asked him what sources he ‘‘reviewed’’
before testifying. Mogelof said that he reviewed ‘‘com-
ments I found on the web [from people] who were
having issues with going through the Zoom process’’
and ‘‘complaints that were listed with the [Food and
Drug Administration] . . . .’’ When he attempted to
give a summary of the comments and complaints, the
defendants’ counsel objected on the grounds of hearsay
and relevance. The plaintiff’s counsel argued that
Mogelof’s testimony was admissible because ‘‘an expert
can testify with respect to matters that might otherwise
be considered hearsay if they have assisted the expert
in . . . forming his expert opinion.’’ The court sus-
tained the objection.8
‘‘An out-of-court statement used to prove the truth
of the matter asserted is hearsay and is generally inad-
missible unless an exception applies.’’ (Internal quota-
tion marks omitted.) State v. Owen, 101 Conn. App. 40,
42, 919 A.2d 1049, cert. denied, 283 Conn. 902, 926 A.2d
671 (2007). However, ‘‘[a]n expert may base his opinion
on facts or data not in evidence, provided they are of
a type reasonably relied on by experts in the particular
field. . . . [W]hen the expert witness has consulted
numerous sources, and uses that information, together
with his own professional knowledge and experience,
to arrive at his opinion, that opinion is regarded as
evidence in its own right and not as hearsay in disguise.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) In re Barbara J., 215 Conn. 31, 43, 574
A.2d 203 (1990). ‘‘Whether inadmissible facts are of a
type customarily relied on by experts in forming opin-
ions is a preliminary question to be decided by the trial
court.’’ Conn. Code Evid. 7-4 (b), commentary.
In giving his or her opinion, an ‘‘expert must, of
course, be allowed to disclose to the trier of fact the
basis facts for his [or her] opinion, as otherwise the
opinion is left unsupported in midair with little if any
means for evaluating its correctness . . . .’’ (Internal
quotation marks omitted.) Carusillo v. Associated
Women’s Health Specialists, P.C., 72 Conn. App. 75,
88, 804 A.2d 960, quoting C. McCormick, Evidence (3d
Ed. 1984) § 324.2, p. 910. ‘‘[O]ur appellate courts have
construed [Conn. Code Evid. § 7-4] to permit the admis-
sion of otherwise inadmissible hearsay evidence for the
limited purpose of explaining the factual basis for the
expert’s opinion. . . . [I]nformation on which an
expert relied that is not offered for its truth but is
offered to show that the expert relied on it is not hearsay
and may be the subject of proper cross-examination
to test the basis of that expert’s opinion.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) R.T. Vanderbilt Co., Inc. v. Hartford Acci-
dent & Indemnity Co., 171 Conn. App. 61, 287–88, 156
A.3d. 534 (2017), petitions for cert. filed (Conn. May
15, 2017) (Nos. 160445, 160446), cross petition for cert.
filed (Conn. June 26, 2017) (No. 160509). It is at the
discretion of the court to decide whether the sources
an expert relied on should be admitted and subjected
to cross-examination. See id. 289–90 (no abuse of dis-
cretion in court admitting information on which expert
relied in forming opinion and allowing opposing party
to test reliability of information through cross-exami-
nation).
We conclude that the court did not abuse its discre-
tion in sustaining the defendants’ objection. The com-
ments and complaints themselves were inadmissible
hearsay, and, therefore, testimony summarizing their
contents would have been admissible only for the lim-
ited purpose of explaining the basis on which Mogelof
formed his expert opinion. We find no abuse of discre-
tion in the court’s decision to preclude Mogelof from
testifying on this point because the plaintiff failed to
show that comments posted on the Internet and com-
plaints made to the Food and Drug Administration by
unknown individuals were the types of sources on
which experts in the dental field reasonably rely when
rendering expert opinions.
B
Katz’ Testimony
The plaintiff further claims that the trial court abused
its discretion by precluding her from asking Katz about
materials that he had reviewed for purposes of forming
his expert opinion. Specifically, she claims that the trial
court improperly precluded her inquiry into Katz’ reli-
ance on (1) certain documents from Discus Dental, and
(2) two of the plaintiff’s exhibits. We disagree.
1
During the defendants’ direct examination of Katz,
the defendants’ counsel asked him about the materials
he reviewed before testifying. Katz listed a number of
sources that he had reviewed,9 but he did not state that
he reviewed any documents from Discus Dental, or that
he received any documents from Discus Dental. During
the plaintiff’s cross-examination of Katz, her counsel
asked: ‘‘You testified, Dr. Katz, that you had received
certain materials from Zoom, from Discus Dental . . . .
Is that correct, you got some documents from them,
right?’’ The defendants’ counsel objected on the ground
that the question was outside the scope of direct exami-
nation and irrelevant. The court sustained the objection.
‘‘It is a well established rule of evidence that cross-
examination is restricted to matters covered on direct
examination. . . . A question [on cross-examination]
is within the scope of the direct examination if it is
designed to rebut, impeach, modify, or explain any of
the defendants’ direct testimony. . . . The trial court
is given broad discretion to determine whether a partic-
ular line of cross-examination is within the scope of
the direct examination.’’ (Citations omitted; internal
quotation marks omitted.) State v. Ramos, 261 Conn.
156, 176–77, 801 A.2d 788 (2002), overruled on other
grounds by State v. Elson, 311 Conn. 726, 740, 91 A.3d
862 (2014).
We conclude that the court did not abuse its discre-
tion in sustaining the defendants’ objection. Katz did
not testify during direct examination that he reviewed
any documents from Zoom or Discus Dental or that he
received documents from Discus Dental. Thus, the
court did not abuse its discretion in concluding that
the question was outside the scope of the direct exami-
nation.
2
During the plaintiff’s cross-examination of Katz, he
stated that he relied, in part, on two of the plaintiff’s
exhibits in forming his expert opinion: a dental assis-
tant’s notes dated June 22, 2011,10 and an instructional
form for dentists on how to administer Zoom whiten-
ing.11 The plaintiff’s counsel asked Katz: ‘‘And did you,
in coming to your opinion that the standard of care was
not violated by Dr. Regenstein in his response to the
problems that are set forth here, you considered all of
these facts as stated in the record?’’ After Katz stated
yes, the plaintiff’s counsel then asked him: ‘‘In coming
to your opinion that Dr. [Regenstein] did not violate
the standard of care, did you take these facts as true?’’
The defendants’ counsel objected on multiple grounds,
including that the plaintiff’s counsel was ‘‘making a
closing argument’’ because she was asking Katz to opine
on the ‘‘[v]eracity of [the] evidence,’’ the question was
‘‘inappropriate,’’ and that the question was ‘‘not within
the scope of direct examination . . . .’’ The court sus-
tained the objection.12
‘‘As a rule, the extent of a cross-examination is within
the court’s discretion, although it should be liberally
allowed. . . . Nonetheless, the court may restrict a
cross-examination to evidence which is competent,
material, and relevant, and when the examination has
been carried as far as will serve to develop the issues
involved and aid the search for the truth, we approve
of the trial court curtailing the length and the limit
of examinations.’’ (Internal quotation marks omitted.)
State v. Ballas, 180 Conn. 662, 676, 433 A.2d 989 (1980).
We conclude that the court did not abuse its discre-
tion in sustaining the objection by the defendants’ coun-
sel. Although we are cognizant of the fact that experts
are permitted to testify about the materials on which
they rely in forming expert opinions; see Carusillo v.
Associated Women’s Health Specialists, P.C., supra, 72
Conn. App. 88; the plaintiff’s counsel did not ask Katz
to explain the content of the sources, but, rather, the
plaintiff’s counsel asked him to state whether he
thought those sources were factually accurate. It is
difficult to imagine an expert conceding that he or she
relied upon an unreliable source in rendering an opin-
ion. In any event, although another judge might have
handled this evidentiary issue differently, we are not
persuaded that the court abused its discretion in lim-
iting the plaintiff’s cross-examination of Katz.
III
The plaintiff’s third claim is that the court abused
its discretion in not permitting Mogelof to answer a
hypothetical question posed by the plaintiff’s counsel.
She argues that the jury did not find that the defendants
breached the standard of care in her dental malpractice
claim, in part, because the hypothetical was ‘‘her oppor-
tunity to present to the jury her claim that the defen-
dants had deviated from the applicable standard of
care,’’ and its exclusion forced the jury to ‘‘disregard
Dr. Mogelof’s expert testimony . . . .’’ We disagree.
During the plaintiff’s direct examination of Mogelof,
her counsel asked him to answer the following hypo-
thetical: ‘‘A patient has a known history of sensitivity
. . . informs the dentist that she has clenching and
grinding, that she suffers from migraines, that she suf-
fers from anxiety, that she has acid reflux, and informs
the dentist that she has very sensitive teeth and she
had an uncomfortable experience in the past using
bleaching trays and she came to the dentist for tooth
whitening, and the dentist went ahead with that proce-
dure without conducting further history into her—
further examination into her history of sensitivity,
did not provide her with an informed consent form, did
not warn her about usage of contraindicated medica-
tion, and did not warn her of the potential for exacer-
bated sensitivity and pain due to the procedure. Could
you say on this hypothetical within a reasonable degree
of medical certainty that the standard of care for a
dentist in 2011 would be violated?’’ (Emphasis added.)
The defendants’ counsel objected on the ground that
certain facts in the hypothetical were not supported by
the evidence, specifically, that ‘‘the dentist went ahead
with that procedure without conducting . . . further
examination into her history of sensitivity,’’ and the
dentist ‘‘did not warn her of the potential for exacer-
bated sensitivity and pain due to the procedure.’’ The
court sustained the objection.
‘‘[A]n expert may testify in the form of an opinion
and give reasons therefor, provided sufficient facts are
shown as the foundation for the expert’s opinion. . . .
[A]n expert may obtain information at trial by having
factual testimony summarized in the form of a hypothet-
ical question at trial.’’ (Citations omitted; internal quota-
tion marks omitted.) Viera v. Cohen, 283 Conn. 412,
444, 927 A.2d 843 (2007). ‘‘An expert may give an opinion
in response to a hypothetical question provided that
the hypothetical question (1) presents the facts in such
a manner that they bear a true and fair relationship
to each other and to the evidence in the case, (2) is not
worded so as to mislead or confuse the jury, and (3)
is not so lacking in the essential facts as to be without
value in the decision of the case. A hypothetical ques-
tion need not contain all of the facts in evidence.’’
(Emphasis added.) Conn. Code Evid. § 7-4 (c); see also
State v. David N.J., 301 Conn. 122, 133–34, 19 A.3d
646 (2011).
On the basis of our review of the record, we conclude
that the court did not abuse its discretion in sustaining
the defendants’ objection. First, the court did not abuse
its discretion in concluding that the phrase, ‘‘the dentist
went ahead with that procedure without conducting
. . . further examination into [the patient’s] history of
sensitivity,’’ did not bear a true relationship to the evi-
dence presented at trial. Regenstein testified that, dur-
ing the June 2, 2011 consultation, he and the plaintiff
discussed her medical history, specifically, her history
of suffering from sensitive teeth, and he conducted an
oral examination of her mouth in order to determine
the cause of her sensitivity. The plaintiff testified that
they ‘‘talked about the sensitivity in [her] teeth . . .
a good amount’’ with both Regenstein and the dental
hygienist during the June 2, 2011 consultation.
Second, the court did not abuse its discretion in con-
cluding that the phrase ‘‘[the dentist] did not warn [the
patient] of the potential for exacerbated sensitivity and
pain due to the procedure’’ did not bear a true relation-
ship to the evidence presented at trial. Regenstein testi-
fied that, at the June 2, 2011 consultation, he and the
plaintiff discussed how she should expect to experience
sensitivity after the procedure because she had a history
of sensitive teeth. He also testified that they had a
detailed discussion about how to lessen the sensitivity
that she would feel, which included taking Motrin, using
fluoride rinse, and using Sensodyne toothpaste in a
tray13 during the weeks prior to the procedure. Although
the plaintiff testified that no one told her that Zoom
whitening was a painful procedure or that she should
use the trays, she also testified that either Regenstein
or a dental hygienist explained to her that she could
brush her teeth with Sensodyne toothpaste and take
Motrin prior to the procedure in order to ‘‘alleviate any
pain’’ that she may feel. The court, therefore, properly
sustained the objection.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
The amended complaint also named Discus Dental, LLC, Philips Oral
Healthcare, Inc., and Philips Electronics North America Corporation as
defendants. On September 8, 2015, the plaintiff withdrew the action against
them and, therefore, in this opinion we refer to Regenstein and Westport
Esthetic Dental Group individually by name and collectively as the
defendants.
2
The plaintiff also claims that the court abused its discretion by precluding
her from introducing into evidence the medical records of Gail Whitman,
the plaintiff’s dermatologist, concerning the plaintiff’s hair loss. She argues
that the evidence was relevant to prove that she suffered from anxiety and
emotional distress as a result of the treatment at issue, and ‘‘[t]his exclusion
severely prejudiced the plaintiff’s ability to establish a claim for damages
. . . .’’ (Emphasis added.) In support of her argument, the plaintiff stated
in her rely brief to this court that she ‘‘did not seek to have the records
. . . introduced as expert evidence that showed there was causation with
respect to the . . . procedure and accompanying hair loss. Rather, the plain-
tiff sought to have Dr. Whitman’s records admitted as evidence that [she]
suffered great anxiety about the loss of her hair due to the . . . treatment.’’
In light of our conclusion that the court did not abuse its discretion in its
evidentiary rulings regarding expert testimony, the question of damages is
not relevant, and, thus, we need not address this claim.
3
The plaintiff alleged in her amended complaint that the known risks of
Zoom whitening included that ‘‘Zoom whitening is contraindicated for
patients using Accutane,’’ and that ‘‘Zoom whitening is not recommended
for patients with sensitive teeth or that Zoom whitening may increase [teeth]
sensitivity.’’ She did not specifically allege that the defendants knew or
reasonably should have known about the known risks.
4
The following is an excerpt of Mogelof’s stricken testimony in response
to the question: ‘‘And let’s take the patient coming in and seeing the dental
hygienist as a first visit. Patient usually has various treatments provided, full
mouth series of X-rays would be taken, if appropriate, and a very thorough
examination by me or my son, a doctor’s exam. If there’s medical information
or dental history information, usually forms are filled out by the patient.
. . . And once the patient is in the office and has filled out all [of] the forms,
usually if there is any information on the forms, for instance, in the medical
history, that are concerning to us in any way, I will come into the treatment
room and I will introduce myself to the patient and review a couple of those
items if they’re concerning or questionable to me. If not, then the patient
will have—usually have a cleaning, and, as I said, they would have a full
set of X-rays. And the hygienist would then perform her examination and
take her detailed information, which would include an oral cancer screening
exam . . . . They may take photographs of the patient’s teeth with an
intraoral . . . camera, which we have. So those images are loaded into the
patient file. If there’s a particular concern that the patient brings up about
a problem they’re having, then that problem is examined and documented
by the hygienist to report to me when I come back into the room for
an examination.’’
5
Mogelof gave the following stricken testimony in response to the ques-
tion: ‘‘The conversation is, if there are any things in their dental history or
their dental information or their medical form that they filled out that relate
to the Zoom process, then I need to go into that in more depth. . . . [F]or
instance, if a patient says that they have extreme dry mouth and it’s on the
basis of a medication that they are taking, then I have to determine whether
or not, if they have a dry mouth, what influence is a dry mouth on using a
Zoom product. If they say that they are taking—they have a hip problem
and they are taking noninflammatory medication, noninflammatory medica-
tions, I have to determine whether or not those medications, whatever they
are, have any influence of the Zoom process because the Zoom company
Discus has provided information to us regarding a list of [medications] that
may render the patient—may create a problem with the patient if they go
through the Zoom process. So let’s say that the patient has taken a medication
that I feel—.’’
6
Mogelof gave the following testimony in response to the question: ‘‘Spe-
cifically, I tell them about the Zoom process itself. I describe the steps in
the process. I describe the importance of using various materials that are
recommended by the Zoom company. And I tell the patient that this process
involves materials that are applied to the teeth. And they’re applied to the
teeth by having the teeth isolated away from the rest of the lips and the
tongue and the cheeks of the mouth so that just the teeth are exposed. And
the material that’s placed on the teeth that’s part of the Zoom process is
an agent or a material that will, through the process of the use of a light
that activates the material, will cause teeth to whiten. And the stains or
colors of the teeth will hopefully be whitened. I say hopefully because every
patient may have a different result from Zoom. And people need to know
that. In addition, we know, dentists know, anybody that uses Zoom
knows—.’’ (Emphasis added.)
7
Mogelof gave the following testimony in response to the plaintiff’s ques-
tion: ‘‘So I tell them that Zoom may not whiten their teeth as much as they
want. I tell them that it is a process of about two and a half hours in the
office, during which time their mouth is prepared for and isolated for the
Zoom process. We have some photographs that we show the patient, what
the apparatus looks like, so they have an understanding of what they’re
going to have in their mouth. In addition, I also tell them that sometimes
patients may have sensitivity of their teeth as a result of Zoom because
that’s what the experience is and that’s what the Discus company has
informed all of us who use Zoom.’’ (Emphasis added.)
8
The court stated in response to the argument of the plaintiff’s counsel:
‘‘In certain case[s] that’s true, but just because he read something on the
web doesn’t mean it’s [true] in this one.’’
9
Specifically, Katz stated that he reviewed ‘‘[t]he complaint, the revised
complaint, the depositions of the plaintiff, the defendant, and Dr. Mogelof,
the other expert witness, dental records of Dr. Regenstein, [and] Dr. Diette.
There were medical records from the skin doctor, her primary care physician,
her neurologist, [and] some [pharmacy] records on medications.’’
10
Regenstein testified that the notes were written by Jennifer Schreier, a
dental assistant in the office. The notes were broken up into two parts. The
first part referred to the notes taken immediately after the procedure, and
the second referred to the notes taken immediately after the plaintiff called
the office. The first part read as follows: ‘‘6/22/11: Begin Zoom starting
[value] lower arch D2, max arch posteriors A1—[patient] has veneers/crown
6-11 tried in [patient’s] trays—[previously] done at another DDS, max tray
does not fit properly—[advised] need for new tray—offered to take [impres-
sion]—[patient] not concerned [with] color of max teeth. ‘Does not have a
wide smile and can’t see that far back.’ [Patient] very concerned about
[sensitivity]—used Sensodyne 2 [weeks] prior to today—[dispensed] 800
mg Motrin prior to Zoom. Completed 2 full cycles and 2 [minutes] into 3rd
cycle—[experienced] [too] many zingers and is very uncomfortable—wanted
to stop. [Advised] may [experience] Zingers for next 24 [hours]. [Advised]
[r]elief gel, Sensodyne, ACT Rinse and Motrin.’’ The second part read as
follows: ‘‘6/22/11: [Patient] called—‘I have so much discomfort, I can’t even
open my mouth. I’m ready to leave work.’ [Advised] to stay [with] Motrin/
Advil every 6 [hours]—[Patient] states she took 600 mg 1 [hour] ago.
[Advised] to utilize the relief gel as well as ACT Rinse and also to continue
use of Sensodyne. [Advised] may be uncomfortable for next 24 hours. Per
[patient] ‘there is no way I can.’ ’’
11
The plaintiff’s counsel did not indicate which sections of the form he
was referencing.
12
The court did not indicate upon which ground or grounds it sustained
the objection.
13
Regenstein testified that a tray is similar to a mouth guard, in which a
patient puts toothpaste and puts the tray in his or her mouth for one-half
an hour.
14
As an alternative basis to affirm the judgment, on the basis of our review
of the record, we agree with the defendants and conclude that, even if the
court abused its discretion, any errors were harmless because the plaintiff
failed to prove causation for her medical malpractice claim.
‘‘[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 stan-
dard 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.’’ (Emphasis added; internal quotation marks omitted.) Gold
v. Greenwich Hospital Assn., 262 Conn. 248, 254–55, 811 A.2d 1266 (2002).
‘‘[T]he causal relation between an injury and its later physical effects may
be established by the direct opinion of a physician, by his deduction by the
process of eliminating causes other than the traumatic agency, or by his
opinion based upon a hypothetical question. . . . [T]he expert opinion must
be based on reasonable probabilities. . . . An expert, however, need not
use talismanic words to show reasonable probability.’’ (Citations omitted;
internal quotation marks omitted.) Shegog v. Zabrecky, 36 Conn. App. 737,
746, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).
The plaintiff was required to provide expert testimony to prove causation
in her malpractice claim. See id., 746–47 (explaining three exceptions to
rule requiring expert testimony to prove causation). First, the effects that
Zoom whitening may have on a patient with sensitive teeth are not obvious.
See Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 89, 828 A.2d
1260 (2003) (effect morphine may have on patient with heart condition not
obvious). Second, the evidence presented at trial did not create a probability
that was so strong that a lay juror could form a reasonable belief that the
plaintiff’s injuries were caused by the Zoom whitening procedure. See Shegog
v. Zabrecky, supra, 36 Conn. App. 747. Although the plaintiff testified that
her teeth sensitivity had significantly increased after the Zoom whitening
procedure, she also testified that she suffered from sensitivity prior to the
procedure and that she suffered from other ailments prior to the procedure,
such as teeth grinding. Third, and finally, we do not believe that the present
case involves gross negligence. Cf. Puro v. Henry, 188 Conn. 301, 307–308,
449 A.2d 176 (1982) (gross negligence when needle found in patient after
hernia operation). Thus, expert testimony was required to prove causation
for her dental malpractice claim.
Mogelof was the only expert who testified for the plaintiff. Although we
are mindful that ‘‘talismanic words’’ are not required to prove causation;
(internal quotation marks omitted) Shegog v. Zabrecky, supra, 36 Conn.
App. 746; Mogelof’s testimony failed to support an argument for causation.
Mogelof testified that, in his expert opinion, the defendants had breached
the standard of care when treating the plaintiff and had failed to properly
inform her of the known risks associated with Zoom whitening before
obtaining her consent. The plaintiff’s counsel, however, never asked him to
opine on the issue of causation. Mogelof did not testify, on the basis of a
reasonable medical probability, that there was a causal relation between
the plaintiff’s injuries and the Zoom whitening. In fact, Mogelof testified on
cross-examination that he could not say without speculating that the plain-
tiff’s upper teeth sensitivity was related to the Zoom whitening. He also
never gave an opinion, through the process of elimination, on whether other
factors, apart from the Zoom whitening, could have caused her injuries.
Finally, he did not give his opinion through a hypothetical question because
the plaintiff’s counsel never asked him a hypothetical question pertaining
to the issue of causation.
We need not determine whether the plaintiff proved causation for her lack
of informed consent claim because, even if the court abused its discretion in
its evidentiary rulings, the jury still found that the defendants’ failure was
not the proximate cause of her injuries.