Petition for Writ of Certiorari — Prentice v. Dalco Electric, Inc., 127 S. Ct. 1494 (2007) (No. 06-981)
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No.__94-981 JAN 16 2007
OFFICE OF THE CLERK
In The
Supreme Court Of The United States
mes & aes
DAVID PRENTICE
Petitioner,
v.
DALCO ELECTRIC, INC.
Respondent.
_ — se aigietsnanioesicnt
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF CONNECTICUT
—
PETITION FOR WRIT OF CERTIORARI
a
Attorneys For The Petitioner:
* JURI FE. TAALMAN TIMOTHY BRIGNOLE
Brignole, Bush & Lewis Brignole. Bush & Lewis
73 Wadsworth Street 73 Wadsworth Street
Hartford, CT 06106 Hartford. CT 06106
(860) 527-9973 (860) 527-9973
* Counsel of Record
QUESTIONS PRESENTED FOR REVIEW
l. Whether the Supreme Court of Connecticut failed
properly to apply the standard for determination of and
admissibility for scientific evidence established in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed.2d 469 (1993) (“Daubert”), when it ruled that
the opinion of an expert, based on his own experience, that
prevailing wind conditions could not have overturned a ladder
if the ladder was set up properly and free from defects, was
scientific evidence that required-a reliability and validity
assessment in order to be admissible at a personal injury trial,
although the expert’s opinion was supported by other
evidence and was tested on cross-examination.
es Whether the Supreme Court of Connecticut failed
properly to apply the Daubert standard in ruling that the trial
court abused its discretion in determining that the expert’s
opinion was not scientific evidence and did not require a
hearing to determine its reliability and validity on standards
established by the Supreme Court of Connecticut in State v.
Porter, 241 Conn. 57, 698 A.2d 739 (1997).
PARTIES TO THE PROCEEDING
Petitioner, David Prentice, is a resident of Hartford,
Hartford County, Connecticut. Petitioner was the Plaintiff in
the proceeding in the Superior Court for the judicial district
of Hartford, at Hartford and was the Appellee before the
Supreme Court of Connecticut.
Respondent, Dalco Electric, Inc. is a corporation
organized and existing under the laws of the State of
Connecticut, with an office and principal place of business in
Hartford, Connecticut, and was the Defendant in the
proceeding in the Superior Court for the judicial district of
Hartford, at Hartford and the Appellant before the Supreme
Court of Connecticut.
Respondent Dalco Electric, Inc. appealed from the
judgment of the trial court to the Appellate Court of
Connecticut. The Supreme Court of Connecticut then
transferred the appeal to itself, pursuant to Connecticut
General Statutes Sec. 51-199(c) and Connecticut Practice
Book Sec. 65-1.
There are no other parties to this action.
125 Research LLC, is a Connecticut limited lability
corporation, which was a Defendant in the proceedings before
the Superior Court for the judiciai district of Hartford at
Hartford and owned the building where Dalco Electric, Inc.
operated its business. After the trial, the jury returned a
verdict in favor of the Defendant 125 Research LLC.
Petitioner David Prentice did not appeal from the judgment
rendered on said verdict and, accordingly, 125 Research LLC
=e
was not a party to the Appeal before the Supreme Court of
Connecticut and 1s not a party to this action.
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TABLE OF CONTENTS
Page
Questions Presented for Review .................. i
a | i
TD 55-0 4.0 06-9.0-9 0-696 oN SS Ee ene iv
SIS os 5-0 46-5 Uber eseeeeearesses vi
Opinion and Orders Below ...........0.0000000: ]
eB 2
Constitutional and Statutory Provisions ............ 2
Statement of Case ..... 00sec eceeces ere are a
Reasons for Granting Writ
I. The Supreme Court of Connecticut failed properly to
apply the standard for determination of and
admissibility for scientific evidence established in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993)
(“Daubert”), when it ruled that the opinion o/ an
expert, based on his own experience, that prevailing
wind conditions could not have overturned a ladder if
the ladder was set up properly and free from defects,
was scientific evidence that required a reliability and
validity assessment in order-to be admissible at a
personal injury trial, although the expert’s opinion
-1V-
was supported by other evidence and was tested on
Ce ee er er ee ee 8
II. The Supreme Court of Connecticut failed properly to
apply the Daubert standard in ruling that the trial court
abused its discretion in determining that the expert’s
opinion was not scientific evidence and did not
require a hearing to determine its reliability and
ee occa ao rer Se ee eee 19
CE oa 5-5 s k5- 04 Kcce hae Se Ee 27
pe ee Pe ee rae ene In eae oe Al
A. Opinion of the Connecticut Supreme Court ... A2
B. Memorandum of Decision (Frazzini, J.) Defendant’s
Motion to Set Aside Verdict ............ A32
TABLE OF AUTHORITIES
Page
CASES
Daubert v. Merrell Dow
Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469
SOE ice cthaaicoanscuaiaiousseees 8, 9, 10, 11, 18, 21, 23, 25
Frye v. United States,
a FE iikctkardciccbscenreunecttevussions 12
Hayes v. Decker, 263 Conn. 677, 683,
822 A.2d 228
| ENTER Ce Rn co re 12, 19, 20, 21, 23, 24
Maher v. Quest Diagnostics, 269 Conn. 154,
847 A.2d 978
Si eciitiensannssdeadeivdbads Ba, 03, §5, #6, 17, 1%, 23, 22
Message Center Management v.
Shell Oil Product,
85 Conn. App. 401, 422, fn. 12
EIU cikcaos te aeiseniiscscdiedaioedinnadtavueien delle ceieipabesaboneosetnaiied 1]
State v. Borrelli, 227 Conn. 153, 163,
ee Lo eae 9,17,18
State v. Dehaney, 261 Conn. 336, 358,
803 A2d 267 (2002),
-Vi-
cert. denied, 537 U.S. 1217,
123 S.Ct. 1318, 154 L.Ed.2d 1070
TE eeicehceansheciuiciartadaa bcliaeiasaps ie Alata salad iat 20, 21
State v. Grifin, 273 Conn. 266, 276,
BE 2 GO aD csncttncncnstesertesssrevetesnetecuisevcess 8,12
State v. Hasan, 205 Conn. 485, 489,
FO e Fae EF CT Rivihincsisexnincnttincnaueiomal 9,17,18
State v. Kirsh, 263 Conn. 390, 399,
re Fa ee os dictcsuiiesacninnbeidacinabaiadeauaghen 16
State v. Perkins, 271 conn. 218, 252,
I aE il 16
State v. Porter, 241 Conn. 57,
698 A.2d 739 (1997) certiorari denied,
523 U.S. 1058, 118 S. Ct. 1384,
140 L.Ed. 2d 645 (1998)..........cccccccosesssscveveree 9,10, 22
State v. Reid, 254 Conn. 546,
757 A.2d 482 (2000) .................. seaman 8, 17, 18, 23
State v. Vega, 259 Conn. 374, 392,
788 A.2d 1221, cert. denied,
537 US. 836, 123 S. Ct. 152,
Sw Bik SO ee EF ierestcrnpcnancnisenietenipenoonecuns 20
STATUTES
CE Se PAE. ciccinsteinchiceleeincsceisacan 12
-Vil-
IN THE
SUPREME COURT OF THE UNITED STATES
DAVID PRENTICE
Petitioner
Vv.
DALCO ELECTRIC, INC.
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF CONNECTICUT
The Petitioner, David Prentice, respectfully requests
that a writ of certiorari tissue to review the judgment and
opinion of the Supreme Court of the State of Connecticut in
David Prentice v. Dalco Electric, Inc. entered in this case on
October 17, 2006
OPINION AND ORDERS BELOW
The opinion of the Supreme Court of Connecticut
No. 17444, entered on October 17, 2006, reversing the
judgment of the Superior Court for the judicial district of
Hartford at Hartford No. CV 01027625, and remanding the
case for a new trial. The opinion of the Supreme Court of the
State of Connecticut is reported at 280 Conn. 336, 907 A.2d
1204 (2006), and is reprinted in the Appendix hercto at App.
1A.
The Superior Court of Connecticut, judicial district of
Hartford at Hartford, Memorandum of Decision (Frazzini, J.)
was issued on February 17, 2005, and is unofficially reported
at 2005 WL 602569 (Conn. Super. 2005), and reprinted at
App. I8A.
*
STATEMENT OF JURISDICTION
On October 17, 2006, the Supreme Court of
Connecticut issued a Memorandum of Decision reversing the
judgment of the Superior Court and remanding the case for a
new trial based on its interpretation of Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed.2d 469 (1993). This Court has jurisdiction based on
28 U.S.C. Section 1257 and 28 U.S.C. 1254 (1).
The Petitioner is relying upon Rule 10 (b) and ( c)of
the Rules of the Supreme Court of the United States in filing
this petition.
The jurisdiction of this Court is invoked under Title
28, United States Code, Section 1257 and 1254 (1) (“Cases
in the highest court of a State may be reviewed by the
following methods: (1) By writ of certiorari granted upon the
petition of any party to any civil or criminal case )
eee ee meme we we ee eee eee ee eee ee ee we ee ee ee ee eee eee
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
1. Constitutional Provisions
a. Constitution of the United States Amendment V:
“No person shall be ...deprived of life, liberty,
or property without due process of law”
b. Constitution of the United States, Amendment XIV:
Section 1. All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside.
No State shall make or enforce any law which
shall abridge the privileges and immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
2. Statutes
a. Federal
28 U.S.C. Sec. 1257
(a) Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had may be reviewed by the Supreme
Court by writ of certiorari where the validity
of a treaty or statute of the United States is
drawn in question or where the validity of a
statute of any State is drawn in question on the
ground of its being repugnant to the
Constitution treaties or laws of the United
a
States , or where any title, right, privilege or
immunity is specially set up or claimed under
the Constitution or the treaties or statutes of ,
or any commission held or authority exercised
under, the United States
STATEMENT OF THE CASE
_ The plaintiff brought this personal injury action
against the defendant alleging negligence. Prior to trial, the
plaintiff identified Mervin Strauss, a professional forensic
engineer and accident reconstruction expert, who was
admitted by the court as plaintiff's expert witness. The
defendant filed a motion in limine seeking to preclude
Strauss’ testimony and requested a Porter [Daubert] hearing.
The trial court declined to rule on this motion prior to trial
and, over the defendant's objections, allowed Strauss’ expert
testimony to be entered into evidence. The jury returned a
verdict for the plaintiff awarding the plaintiff $1.2 million in
damages. Subsequently, the defendant filed a motion to set |
aside the jury's verdict. Following extensive pos-trial
hearings, the trial court concluded that Strauss’ testimony was
admissible and did not constitute scientific evidence that
required a validity assessment under Porter. Accordingly, the
trial court denied the defendant's motion to set aside the jury's
verdict and rendered judgment thereon. This appeal followed.
The jury could reasonably have found the following facts:
Plaintiff, David Prentice and Benedict Gagliardi, Jr.,
his partner at B.G. Graphics, Inc. had been hired by the
defendant, Dalco Electric, Inc. to instal a sign on the front of
-4-
its building in Meriden, Connecticut. Although Gagliardi and
the plaintiff had decided to take measurements only, and to
install the defendant's sign on another day, Luft, a part owner
of the defendant, located a second extension ladder in one of
the defendant's storage areas and, with the assistance of one
of his employees, brought it to the front of the building where
the sign was to be installed. Luft leaned the second ladder
against the side of the building approximately eight to ten feet
to the left of where the plaintiff had positioned the first
ladder. The plaintiff informed Luft that he and Gagliardi
would not use the second ladder because it was in poor
condition and because they were only taking measurements,
which did not require multiple people or ladders to complete.
In particular, the plaintiff noticed that the second ladder was
missing braces required for stability and that someone had
tried to repair it by bolting pieces of iron to the bottom of the
ladder's legs. A5-A6
The second ladder was subsequently fully extended to
the roof of the building. Although the record is not clear as to
who fully extended the second ladder and completed its set
up, both the plaintiff and Gagliardi testified that they never
touched the second ladder and had observed only Luft and his
employees handle it. A6
The plaintiff fully extended the first ladder, resting the
top edge of the ladder against the aluminum edge of the
building’s roof. Plaintiff then climbed approximately ten feet
up the first ladder in order to take the necessary measurements
for the sign’s future installation. As the plaintiff was
completing his work on the first ladder, the second ladder,
which was approximately ten feet to the left of where the
plaintiff was working, fell to the right, sliding along the edge
ie
of the defendant's roof and struck the ladder on which the
plaintiff was standing, causing the plaintiff to fall to the
ground and to sustain serious injuries. No one was standing
on or touching the second ladder when it fell and collided
with the plaintiff. A6
Evidence was produced at trial to show that on the day
of the incident, Meriden and the surrounding area experienced
winds of 11.5 to 18 miles per hour. The safety label on the
ladder that collided with the plaintiff stated that it should not
be used in high wind. A meteorologist testified that a high
wind warning occurs when winds exceed 39 miles per hour,
and a high wind advisory occurs when a sustained wind
exceeds 45 miles per hour. Neither a high wind advisory or a
high wind warning had been issued for-Meriden on the day
the plaintiff was injured. Plaintiff's expert, Mervin Strauss,
testified- as a forensic engineer and as an_ accident
reconstruction expert, that it was not possible for wind
conditions of 11.5 to 18.0 miles per hour to have overturned
a ladder that was properly set up and free from defects. He
based this on his years of experience as an engineer and
accident construction expert in investigating more than a
dozen ladder accident cases. However, since none of
defendant’s employees who set up the second ladder could be
identified, the manner in which the second ladder had been set
up, its position and angle relative to the ground and the
building, and the topography of the ground on which it rested,
could not be determined. Strauss testified that without
knowing how and exactly where the ladder was set up, it was
not possible to determine whether the defect in the ladder, the
ladder set up, or the wind, or all three (3) factors together or
in various combinations caused the ladder to fall over and
strike the ladder being used by the plaintiff. A meteorologist,
ie
Robert Cox, also testifying as plaintiff's expert, stated that
“most people wouldn’t really even notice a ten mile per hour
wind ...[which] might move the leaves on trees.” (Cox testi,
23). Cox also testified that winds of 11.5 or 18 miles per hour
would cause small branches on a t'2e to move a little, and
light objects on the ground, such as paper, to move, but not
sturdy or heavy objects on the ground. On trial defendant
conducted a thorough and searching cross-examination of
both experts, but did not produce any experts of its own to
provide rebuttal testimony regarding causation as to the
ladder’s fall. A44-45
The plaintiff claimed res ipsa loguitur applied and the
court delivered a res ipsa charge to the jury. The defendant
did not submit interrogatories regarding causation to the jury.
After deliberating, the jury returned a general verdict
awarding the plaintiff $1,200,000.00 in damages against the
defendant. Thereafter, the defendant moved to set aside the
verdict and for judgment notwithstanding the verdict,
claiming that the trial court erred in that it (1) permitted two
experts to testify without whose evidence they claim that
there was insufficient evidence to sustain a plaintiff's verdict,
and (2) that the Court improperly submitted the case to the
jury on a theory of res ipsa loquitur. Following extensive
post-trial hearings, the trial court concluded that Strauss’
testimony was not so speculative as to be irrelevant, and that
his testimony was admissible and did not constitute scientific
evidence that required a validity assessment under Porter.
The court also concluded that it had properly instructed the
jury regarding the plaintiff's theory of negligence under the
doctrine of res ipsa loquitur. Accordingly, trial court heard
and denied defendant’s motion to set aside the verdict. The
defendant’s appealed to the Appellate Court, and
ns
subsequently the Supreme Court of the State of Connecticut,
pursuant to Connecticut. General_Statutes 51-199(c) and
Connecticut Practice Book Sec. 65-1, removed the Appeal to
itself for disposition. The decision of the Supreme Court of
Connecticut is printed in the Appendix at A2.
REASONS FOR GRANTING THE WRIT
I. THE SUPREME COURT OF CONNECTICUT
FAILED PROPERLY TO APPLY THE STANDARD
FOR DETERMINATION OF AND ADMISSIBILITY
FOR SCIENTIFIC EVIDENCE ESTABLISHED IN
DAUBERT V. MERREL DEW PHARMACEUTICALS,
INC., 509 U.S. 579, 113 S. CT. 2786, 125 L.ED.2d 469
(1993) (“DAUBERT”) WHEN IT RULED THAT THE
OPINION OF AN EXPERT, BASED ON HIS OWN
EXPERIENCE, THAT PREVAILING WIND
CONDITIONS COULD NOT HAVE OVERTURNED A
LADDER IF THE LADDER WAS SET UP PROPERLY
AND FREE FROM DEFECTS, WAS SCIENTIFIC
EVIDENCE REQUIRING A RELIABILITY AND
VALIDITY ASSESSMENT IN ORDER TO BE
ADMISSIBLE AT A PERSONAL-INJURY JURY
TRIAL, ALTHOUGH THE EXPERT’S OPINION WAS
SUPPORTED BY OTHER EVIDENCE AND WAS
TESTED ON CROSS-EXAMINATION.
This petition raises important issues regarding the
interpretation and application of standards established by this
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993)
(“Daubert”) in determining what constitutes scientific
evidence and under what circumstances such evidence may be
-8-
admissible through an expert on trial. The Daubert standards
were explicitly adopted by the Connecticut Supreme Court in
State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) certiorari
denied 523 U.S. 1058, 118 S.Ct 1384, 140 L. Ed.2d 645
(1998). The Connecticut Supreme Court has noted that:
“Although this court in Porter explicitly
adopted the Daubert test to determine the
admissibility of scientific evidence; see State v.
Porter, supra, 24] Conn. at 68, 698 A.2d 739;
we did not explicitly overrule Connecticut
precedent regarding the evidence to which such
a test should apply. Prior to Porter, this court
had recognized that the Frye test for
admissibility should not apply to all expert
testimony, but only to that which involves
‘innovative scientific techniques «--’ State v. |
Borrelli ], 227 Conn. 153, 163, 629 A.2d 1105
(1993); State v. Hasan, 205 Conn. 485, 489,
534 A.2d 877 (1987). In Porter we recognized
that Daubert 's vagueness as to how and when
to apply the factors of the test was necessary.
State v. Porter, supra, at 78, 698 A.2d 739. In
order to maintain flexibility in applying the
test, we did not define what constitutes
‘scientific evidence.’ Id., at 78-79, 698 A.2d
739.” State v. Reid, supra, 254 Conn. at 546,
757 A.2d 482.” State v. Griffin 273 Conn.
266, 276, 869 A.2d 640 (2005)
In the present case, the Supreme Court of Connecticut
concluded that the trial court “improperly admitted certain
testimony by plaintiff's expert which testimony was scientific
-9-
evidence that required a validity assessment designed to ensure
reliability pursuant to State v. Porter, 241 Conn. 57, 698 A.2d
739 (1997) cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140
L.Ed.2d 645 (1998).”
Since Porter “explicitly” adopted Daubert’s standards,
what constitutes “scientific evidence” under Daubert needs to
be specifically defined in order to eliminate the perceived
vagueness by state courts as to how and when to apply the
Daubert standards for testing the validity and reliability of such
scientific evidence. Because it is essential for states which, like
Connecticut, have adopted the Daubert standards to resolve
this important and unsettled area of evidentiary law in the
constitutional context of a citizen’s right to due process and
equal protection of the laws in a jury trial, certiorari 1s
warranted.
In Daubert this Court noted that, when faced with the
proffer of expert scientific testimony, “the trial judge must
determine at the outset ...whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier
of fact to understand or determine a fact in issue. This entails
a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts at issue. We are confident that federal
judges possess the capacity to undertake this review. Many
factors will bear on the inquiry, and we do not presume to set
out a definitive checklist or test’ Daubert, supra, 593 U.S. at
593, 113 S. Ct. at 2796. This Court also observed that “well
established propositions are less likely to be challenged than
those that are novel, and they are more handily defended.
Indeed, theories that are so firmly established as to have
-10-
attained the status of scientific law, such as the laws of
thermodynamics, properly are subject to judicial notice...” Id.,
fn. 10.
As for the possibility that abandonment of the Frye
“general acceptance” requirement for admission of scientific
evidence will result in a “free-for-all” of absurd and irrational
pseudoscientific assertions that will get by the judge-
gatekeeper, this Court in Daubert reaffirmed its faith in the
capabilities of the jury and of the adversary system generally
by noting: “Vigorous cross-examination, presentation of
contrary evidence and careful instruction on the burden of
proof are the traditional and appropriate means of attacking
shaky but admissible evidence. Id , 593 U.S. at 595, 113 S.Ct.
at 2798.
This Court in Daubert, however, did not specifically
define what constitutes “scientific evidence” and, in the
opinion of the Supreme Court of Connecticut, was “vague” as
to how and when to apply the factors of the validity test. State
v. Porter, supra, at 78, 698 A.2d 739.
Accordingly, in Maher v. Quest Diagnostics, 269 Conn.
154, 847 A.2d 978 (2004) the Connecticut Supreme Court
established that what is to be considered as scientific must be
assessed on a case by case basis. See Message Center
Management v. Shell Oil Product, 85 Conn. App. 401, 422, fn.
12 (2004). In Maher, the Court stated that “the standard
articulated in Porter applies generally to scientific evidence,
unless that scientific evidence is so well established that a
threshold admissibility analysis is rendered unnecessary, Id. at
168, fn. 19. “Thus, we exclude from the Porter standard the
very few scientific principles that are so firmly established as
\
to have attained the status of scientific law and properly are
subject to judicial notice.” (Citations omitted; internal
quotation marks omitted; internal alterations omitted) Id. at
169.
The Supreme Court of Connecticut has ruled that
‘“[c¢]xpert testimony should be admitted when: (1) the witness
has a special skill or knowledge directly applicable to a matter
in issue, (2) that skill or knowledge is not common to the
average person, and (3) the testimony would be helpful to the
court or jury in considering the issues.” (Internal quotation
marks omitted.) Hayes v. Decker, 263 Conn. 677, 683, 822
A.2d 228 (2003); see also Conn.Code Evid. § 7-2.
As the Connecticut Supreme Court noted 1n State v.
Griffin, “In adopting the Daubert approach in Porter, we “held
that scientific evidence should be subjected to a flexible test,
with differing factors that are applied on a case-by-case basis,
to determine the reliability of the scientific evidence:-: Porter
explicitly stated that the flexible Daubert approach was a
better approach than the test of general acceptance in the
scientific community, which was established in Frye v. United
States, 293 F. 1013 (D.C.Cir.1923).” "’ (Citation omitted.)
However, the Connecticut Supreme Court has also
ruled that “evidence, even evidence with its roots in scientific
principles, which is within the comprehension of the average
juror, and which allows the jury to make its own conclusions,
based on its independent powers of observation and physical
comparison, and without heavy reliance on the testimony of
expert witnesses, need not be considered [by the trial court]
“scientific” in nature for the purposes of evidentiary
admissibility” (Citations omitted, quotation marks omitted.)
]2
—
Maher v. Quest Diagnostics, supra 269 Conn at 170-71, fn. 2.
In the present case, the trial judge and the Connecticut
Supreme Court both applied what they believed to be the
Daubert standards, but arrived at diametrically opposite
results. Since a trial judge has wide discretion in ruling on the
admission of evidence, a claimed error can only be reviewed
on appeal on the basis of an abuse of that discretion.
Accordingly, the finding of an experienced trial judge that the
testimony of plaintiff's expert, Mervin Strauss, was not
scientific evidence, and the finding of the Supreme Court that
such testimony was scientific evidence and that the trial court
abused its discretion in ruling otherwise, when both courts
applied the same Daubert standard, places into sharp contrast
the apparent vagueness of the Daubert standard itself, as will
be shown by a closer examination of the facts of the present
case as set forth hereafter.
In the present case, no innovative scientific techniques
were used when Mervin Strauss, plaintiffs expert testified that
the factors involved in determining causation included the
force of the prevailing wind, the manner in which the ladder
had been set up and the defects existing in the ladder. Since the
defendant’s employee, who set up the ladder, could not be
identified, how the ladder was set up, the topology of the
ground at the exact location of the ladder, and the effect of the
prevailing wind on the defective ladder , were also factors that
could not be precisely determined. However, Strauss, as a
forensic engineer and an accident reconstruction expert, also
testified that, based on his years of experience in dealing with
ladder fall cases, a properly set up ladder with no defects
would not have been toppled by winds of 11.5 to 18 miles per
hour prevailing on that day. A 43. The Defendant's conceded
-13-
that Strauss’ testimony, that a properly set up ladder will not
fall over but for the application of external force, was
uncontroversial common sense, not requiring a Porter analysis.
A 42 They claimed, however, that Strauss’ testimony that
winds of 11.5 or 18 miles per hour would not provide
sufficient force to knock over a properly set up ladder in good
condition, was scientific evidence requiring a Porter hearing.
Id.
The trial court concluded that the issue to be
determined was “whether in the context of the facts of this
case, Strauss’ testimony that wind speeds of 11.5 or 18 miles
per hour would not knock over a properly set up ladder in good
condition was “scientific evidence” subject to a Porter
[| Daubert] -type validity assessment by the court.” A 42-43
Strauss, however, as the trial court noted, had testified
that he was a_ professional engineer and _ accident
reconstructionist, and the court qualified him as an expert,
without objection, in mechanical and forensic engineering.
Strauss also testified that as an engineer, he had pnor
experience assessing ladder accidents and evaluating whether
wind would overturn ladders or cause them to close. A 47. He
further testified that he had examined “a couple of-dozen
ladders” in this capacity and every single case involved, as a
factor, the application of external forces. Furthermore,
testimony from three or four witnesses at the scene supported
a jury finding that the prevailing winds on that day were
neither high nor strong. A 45 On cross examination, Strauss
conceded that he had not done wind tunnel studies or
performed mathematical calculations as to the forces applied
on the ladder that day.
-14-
Plaintiff's other expert, meteorologist Robert Cox,
testified that a 10 mile an hour wind would barely move the
leaves on a tree, and that an 11.5 to 18 mile per hour wind
would cause small branches on a tree to move a little, and light
objects on the ground such as paper to move, but not sturdy or
heavy objects on the ground. Cox also testified that the
National Weather Service issues a high wind watch or high
wind warning when “winds in the fifties were expected” and
high wind advisories when winds of 39 miles per hour were
expected. The ladder that fell onto the plaintiffs ladder had a
warning label attached that stated “Do not use in high winds.”
Strauss testified that the American National Standards Institute
for Ladders standards, adopted by the American Ladder
Institute require that ladders contain such a warning label.
A4S.
The trial court therefore, in the exercise of its broad
discretion, concluded that Strauss’ opinion testimony “did not
require a preliminary gatekeeper Porter-type validity
assessment.” The court found that the opinion testimony
Strauss provided regarding the effect of wind speeds on a
properly set up ladder in good condition “was supported by
other evidence, thoroughly tested on cross-examination and
[was] not the sort of scientific evidence that would place the
jury in the position of abandoning common sense and
sacrificing independent judgment to the expert’s assertions
based on his skill or special knowledge...’ Maher _v. Quest
Diagnostics, Inc., supra, 269 Conn. at 170-71, fn. 2. A49-50
Nevertheless, the Connecticut Supreme Court, on
appeal by the defendant, reversed the jury award in favor of the
plaintiff of $1,200,000, and remanded the present case for a
new trial, holding that the trial court had abused its discretion
of 5.
in determining that Strauss’ testimony was not the type of
scientific evidence requiring the court to perform its gate-
keeper function of having a Daubert/Porter type validity
hearing.
The principles applicable to review of a trial court’s
ruling on evidentiary matters are well established in
Connecticut. “It is axiomatic that [t]he trial court's ruling on
the admissibility of evidence is entitled to great deference. In
this regard, the trial court is vested with wide discretion in
determining the admissibility of evidence---- Accordingly, [t]he
trial court's ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court's discretion.”
(Citations omitted; internal quotation marks omitted.) State v.
Perkins, 271 Conn. 218, 252, 856 A.2d 917 (2004).
Furthermore, “{i]n determining whether there has been an
abuse of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court's ruling «-"”
Id. Because a trial court's ruling under Porter involves the
admissibility of evidence, we review that ruling on appeal for
an abuse of discretion. See e.g., State v. Kirsch, 263 Conn.
390, 399, 820 A.2d 236 (2003).
In Maher v. Quest Diagnostics, Inc., 269 Conn. 154,
1847 A.2d 978 (2004), the Connecticut Supreme Court ruled
that “evidence, even evidence with its roots in scientific
principles, which is within the comprehension of the average
juror and which allows the jury to make its own conclusions
based on its independent powers of observation and physical
comparison, and without heavy reliance upon the testimony of
an expert witness, need not be considered ‘scientific’ in nature
for the purposes of evidentiary admissibility.” Maher v. Quest
Diagnostics, Inc., supra, 269 Conn. at 170-71 n. 22, 847 A.2d
-16-
978. See also State v. Hasan, 205 Conn. 485, 534 A.2d 877
(1987); State v. Reid, 254 Conn. 540, 757 A.2d 482 (2000).
Earlier, in State v. Borrelli, 227 Conn. 153, 629 A.2d
1105, the Supreme Court- of Connecticut, relying on its
analysis in Hasan, held that “satisfaction of the Frye test [was]
not a necessary precondition for the admission of expert
testimony on battered woman's syndrome.” Id., at 165, 629
A.2d 1105. Id. at 165, 629 A.2d 1105. In Borrelli, the Court
observed that the witness “did not offer any opinion as to
whether [the victim] was a battered woman -: did not apply
any scientific instrument or test to specific evidence in the
case, [and] did [not] use battered woman's syndrome as a
diagnostic tool. --- Instead, [the witness'] testimony was based
on his observations of a large group of battered women
through the lens of his educational background and
experience.” Id., at 164-65, 629 A.2d 1105. Citing Hasan, the
Court noted “the jury is in a position to weigh the probative
value of the testimony without abandoning common sense and
sacrificing independent judgment to the expert's assertions
based on his special skill or knowledge’: Furthermore, where
understanding of the method is accessible to the jury, and not
dependent on familiarity with highly technical or obscure
scientific theories, the expert's qualifications, and the logical
bases of his opinions and conclusions can be effectively
challenged by cross-examination and rebuttal evidence.”
(Citation omitted.) State v. Hasan, supra, 205 Conn. at 491.
lt should be noted that Hasan was analyzed by the trial
court in the present case, with court concluding that Mervin
Strauss’ testimony, although rooted in scientific principles,
was nevertheless admissible because it was based on his years
of experience in the accident reconstruction field and in the
afh.
handling of ladder cases. The trial court also found that the
logical bases of his opinions and conclusions were effectively
challenged by the defendant on cross examination. They could
have been further attacked had the defendant offered rebuttal
evidence through his own expert, which defendant failed to do.
The trial court, therefore, properly applied Daubert
standards in considering the past experience of the expert and
noting that weaknesses in the testimony of Strauss were
exposed by effective cross-examination. See Daubert _v.
Merrell Dow Pharmaceuticals, Inc. 593 U.S. at 595, 113 S.Ct.
at 2798.
The Maher, Hasan, Borelli and Reid cases established
that not everything grounded on scientific principles
necessarily has to be subjected to a Daubert/Porter reliability
evaluation. but the Supreme Court of Connecticut’s case by
case determination still failed to provide a definition of what
constituted scientific evidence requiring exercise of the gate-
keeper function by the trial court. These cases also left
unanswered the question: under what circumstances does the
trial court’s exercise of its broad discretion in admitting or
excluding evidence under Daubert/Porter, become an abuse of
discretion requiring reversal? .
Plaintiff seeks to have this Court define what
constitutes “scientific evidence” for purposes of the Daubert
test so that Daubert standards can be consistently and
uniformly applied by the state courts, such as Connecticut,
which have adopted them. The present case points out the stark
difference of perception by the courts of what may be
considered scientific evidence and how and when to apply the
factors of the Daubert test to such evidence. Expert testimony
-18-
based on scientific principles is presented in the courts of the
United States every day in innumerable cases, both civil and
criminal. A clear definition by this Court of what constitutes
scientific evidence and a clarification of how and when to
apply Daubert standards to test the admissibility and reliability
of such evidence is of vital importance to all litigants and
warrants the granting of certiorari in this case.
The plaintiff maintains that the trial court correctly
applied the Daubert criteria in determining that Mervin
Strauss’ testimony was not scientific evidence subject to a
Daubert/ Porter validity assessment and prays that this Court
reverse the judgment of the Supreme Court of Connecticut and
reinstate the judgment entered by the trial court, that plaintiff
recover of the defendant the sum of $1,200,000.
II. THE SUPREME COURT OF CONNECTICUT
FAILED PROPERLY TO APPLY THE DAUBERT
STANDARD IN RULING THAT THE TRIAL COURT
ABUSED ITS DISCRETION IN DETERMINING THAT
THE OPINION OF PLAINTIFF’?S FORENSIC
ENGINEER AND ACCIDENT RECONSTRUCTION
EXPERT WAS NOT SCIENTIFIC EVIDENCE AND DID
NOT REQUIRE A HEARING TO DETERMINE ITS
RELIABILITY AND VALIDITY
The Connecticut Supreme Court in the present case,
stated that “we limit the scope of our review to whether the
trial court abused its discretion in determining that Strauss’
opinion was not scientific evidence and that a Porter hearing
was not required.” A.8.
In Hayes v. « cker, 263 Conn. 677, 683, 822 A.2d 228
-19-
(2003), the Court reaffirmed the standard for reviewing trial
court rulings on evidentiary matters: “The trial court's ruling
on evidentiary matters will be overturned only upon a showing
of a-clear abuse of the court's discretion::- 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-:--"(Citations omitted.)
“Concerning expert testimony specifically, we note that
the trial court has wide discretion in ruling on the admissibility
of expert testimony and, unless that discretion has been abused
~ or the ruling involves a clear misconception of the law, the
trial court's decision will not be disturbed::-- Expert testimony
should be admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2) that skill
or knowledge is not common to the average person, and (3) the
testimony would be helpful to the court or jury in considering
the issues.” (Internal quotation marks omitted.) State v. Vega,
259 Conn. 374, 392, 788 A.2d 1221, cert. denied, 537 U.S.
836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002).
The Connecticut Supreme Court has also ruled that
“It]he trial court's discretionary determination that the
probative value of evidence is not outweighed by its
prejudicial effect will not be disturbed on appeal unless a clear
abuse of discretion is shown::- [B]ecause of the difficulties
inherent in this balancing process - every reasonable
presumption should be given in favor of the trial court's
ruling; Reversal is required only whe[n] an abuse of
discretion is manifest or whe{n] injustice appears to have been
-20)-
done.” (Internal quotation marks omitted.) State v. Dehaney,
261 Conn. 336, 358, 803 A.2d 267 (2002), cert. denied, 537
U.S. 1217, 123 S.Ct. 1318, 154 L.Ed.2d 1070 (2003).
On appeal of the present case, the Connecticut Supreme
Court also affirmed that “[i]n Porter, this Court followed the
United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc. .... and held that scientific evidence
should be subjected to a flexible test, with different factors that
are applied on a case by case basis to determine the reliability
of ths scientific evidence.” A 8.
Mervin Strauss, plainuff’s expert, was qualified by the
trial court, without objection from the defendant, as an expert
in the field of mechanical and forensic engineering. The
Connecticut Supreme Court has noted that, once qualified as
an expert, the expert’s testimony will “assist the jury in
understanding the evidence or in determining a fact in issue.
Hayes v. Decker, supra, 263 Conn. 686, citing to Conn. Code
Evid. Sec.7-2, which states that an expert witness is permitted
to give opinion testimony provided that the “witness {has been]
qualified as an expert --- if the testimony will assist the trier of
fact in-understanding the evidence or in determining a fact in
issue.”
In reviewing the admissibility of an expert’s opinion in
Hayes _v. Decker, supra, 263 Conn. 677, 683, the Court
observed: “We further note that the trial court stated explicitly
that its ruling was based on the fact that Friedlander's opinion
was not supported by any treatises or studies. Peer review and
publication is, however, only one of several nonexclusive
factors. See State v. Porter, supra, 241 Conn. at 77-81, 698
A.2d 739. No single Porter factor is dispositive. Indeed, as the
United States Supreme Court stated in Daubert, “[m]any
factors will bear on the inquiry [of whether the proffered
scientific evidence is valid], and we do not presume to set out
a definitive checklist or test.” Daubert _v. Merrell Dow
Pharmaceuticals, Inc., supra, 509 U.S. at 593, 113 S.Ct. 2786.
Morcover, as this court neted in Porter, mechanical factor tests
have little analytical value, tend to obscure the principles upon
which the court should be relying and serve as a label to justify
a court's instinctive reaction. State v. Porter, supra, at 79-80,
698 A.2d 739. By excluding Friedlander's testimony on the
basis of one Porter factor, the trial court improperly treated
Porter as a mechanical factor test rather than the flexible
analysis that it is intended to be.”
The trial court in the present case concluded that
Strauss’ opinion testimony did not require a “preliminary gate-
keeper Porter type assessment because his opinion “was
supported by other evidence {and was] thoroughly tested on
cross-examination.” The trial court’s evaluation 1s consistent
with this Court’s holding in Daubert_v. Merrell Dow
Parmaceuticals, supra, 509 U.S. 593, 113 S.Ct. 2796 that
“(vjigorous cross exmination, presentation of contrary
evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence. Id., 509 U.S. at 596, 113 S. Ct. 2798.
(Citation omitted.).
Furthermore, in the exercise of its discretion, the trial
court in the present case ruled that a Daubert /Porter type
hearing was not required because, although Strauss’ testimony
_was rooted in scientific principles, it was “not the sort of
scientific evidence that would place the jury in the position of
abandoning common sense and sacrificing independent
¥4.
judgment to the expert’s assertions based on his special skill or
knowledge”. Maher v. Quest Diagnostics, Inc., supra, 269
Conn. 154, 170-71 n. 22, 847 A.2d 978 (2004). “[T]he jury is
in a position to weigh the probative value of the testimony
without abandoning common sense and _ sacrificing
independent judgment to the expert’s assertions based on his
special skill or knowledge ... Furthermore, where
understanding of the method is accessible to the jury, and not
dependent on familiarity with highly technical or obscure
scientific theories, the experts qualifications and the logical
basis of his opinions and conclusions can be effectively
challenged by cross-examination and rebuttal evidence. Hayes
v. Decker, supra, 263 Conn. 686.
The defendant in the present case has not claimed that
the underlying methodology in this case, the physics of force
acting on matter as defined by the laws of motion, is
“innovative” so as to require a Daubert/Porter analysis.
“{S]lome scientific principles may have become so well
established that an explicit Daubert analysis is not necessary
for admission of evidence thereunder...” Hayes v. Decker,
supra, 263 Conn. at 687. In State v. Reid, 254 Conn. 540, 546
(2000) the Connecticut Supreme Court had held that the court
need not conduct a Porter-type hearing because the scientific
principles of ballistics and firearm analysis “are so well
established that they can be admitted on a mere showing of
relevance.” In Daubert, it should be noted, this Court has
specifically ruled that theories that are so firmly established as
to have attained the status of scientific law, such as the laws of
thermodynamics, properly are subject to judicial notice.
Daubert v. Merrell Dow Parmaceuticals, supra, 509 U.S. 593.
113 S.Ct. 2796. In the present case, the effect of a force on an
object is determined by the universally accepted /aws of
9%.
motion formulated by Sir Isaac Newton in the seventeenth
century, and were subject to judicial notice by the tral
court.under Daubert standards. Moreover, it should be noted
that the Supreme Court of Connecticut itself has ruled that
“under Porter, a trial court does not have the discretion to
exclude expert opinion because he believes there are better —
grounds for an alternative conclusion.” Hayes v. Decker, supra,
263 Conn. at 686 (Citation omitted.) Accordingly, even if the
trial court believed that mathematical calculations using the
laws of motion would have provided better grounds for
admitting Strauss’ opinion, the court still had no discretion to
exclude his opinion to the extent that it was based on Strauss
experience in investigating ladder accidents as a forensic
enginecr.
The Supreme Court of Connecticut dismissed Strauss’
opinion based on experience by observing that it “was hardly
extensive with respect to the specific question on which he was
asked to opine.” A22. Whether Strauss’ experience was
sufficiently extensive may have affected the weight to be given
his testimony; it did not affect its admissibility. Experience has
been recognized as a Daubert factor by the Connecticut
Supreme Court itself in other cases. See Hayes v. Decker.
This Court has acknowledged in Daubert that it did not
provide a complete check list of a Il the factors that could or
should be considered for admissibility of scientific evidence.
Consequently, other factors considered by the trial court in the
present case in assessing the admissibility of Strauss’
testimony, such as evidence from other witnesses and experts,
particularly the meteorologist, are not precluded from
consideration as Daubert factors.
Furthermore, the Connecticut Supreme Court failed to
note or although the defendant had the full opportunity to
cross-examine Mervin Strauss, defendant never identified or
used an expert of its own or presented contrary evidence
refuting Strauss’ opinion. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means
of attacking shakey but admissible evidence. ’Daubert_v.
Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, 506.
113 S.Ct. 2786, 2798 (Citation omitted.)
As the Connecticut Supreme Court has acknowledged,
some “evidence with its roots in scientific principles, which 1s
within the comprehension of the average juror and which
allows the jury to make its own conclusions based on its
independent powers of observation and physical comparison,
and without heavy reliance upon the testimony of an expert
witness, need not be considered ‘scientific’ in nature for the
purposes of evidentiary admissibility.” Maher _v. Quest
Diagnostics, Inc., supra, 269 Conn. at 170-71 n. 22, 847 A.2d
978. This observation applies to the present case as well. In
fact the jurors could well have found that the proximate cause
of the plaintiff's injuries was the negligence of the defendant’s
employees in placing the ladder in such proximity to the
plaintiff's ladder, that it would have struck the plaintiff's
ladder no matter what the cause of its fall. Therefore, even if
the wind had been a factor that caused the ladder to topple
over, if the distance to the plaintiff's ladder had been such that
the falling ladder would not have reached and struck it, no
harm to the plaintiff would have occurred.
Since the jury returned a general verdict, and defendant
failed to submit specific questions to the jury on liability, it
7.
cannot be said that Mervin Strauss’ testimony was prejudicial
to the defendant in that it “affected the jury’s evaluation of the
remaining evidence presented at the trial.”. Accordingly, the
res ipsa loquitur charge given by the trial court was
appropriate, although the Supreme Court of Connecticut did
not consider that issue because 1t ruled that failure to provide
a validity assessment to what it termed scientific evidence was
dispositive of the case.
In summary, the plaintiff maintains that the Supreme
Court of Connecticut for the reasons stated, erred in applying
the Daubert/Porter standard in the present case in concluding
that the trial court abused its discretion when it ruled that
Mervin Strauss’ testimony was not scientific evidence
requiring a Daubert/Porter type reliability hearing to
determine its admissibility. This Court in Daubert did not
define what constitutes scientific evidence and did not
undertake to list all of the factors to be considered in making
a Daubert evaluation. Without a more specific definition by
this Court of what constitutes scientific evidence and how it is
to be evaluated on the principles of Daubert, lower courts will
continue to come to inconsistent and confusing results, even in
the same case, as in the present matter. Various state courts
have created their own menus of Daubert factors to be
considered in the determination and evaluation of scientific
evidence, with no indication as to which factors take
precedence, and which are necessary, non-exclusive or
optional. This has led to confusing and unpredictable results.
As in the present case, a trial court in exercising its
wide discretion in evidentiary rulings, and attempting to follow
the Daubert standard by using one set of Daubert factors, may
find that it has abused its discretion when an appellate court
-26-
selects other Daubert factors and comes to a different
conclusion. This Court, therefore, should define what
constitutes scientific evidence and how and what Dauhert
contemplated factors courts in the exercise of their discretion
can apply to determine the reliability and ultimate admissibility
of such evidence.
CONCLUSION
The plaintiff maintains that the trial court in the present
case correctly applied the Daubert critena in determining that
Mervin Strauss’ testimony was not scientific evidence subject
to a Daubert/Porter validity assessment and prays that this
Court reverse the judgment of the Supreme Court of
Connecticut and reinstate the judgment on a jury verdict
entered by the trial court, that plaintiff recover of the defendant
the sum of $1,200,000.
Respectfully submitted,
PETITIONER
DAVID PRENTICE
JURI E. TAALMAN, ESQ.
Counsel of Record
TIMOTHY BRIGNOLE, ESQ.
Counsel
Brignole, Bush & Lewis
73 Wadsworth Street
Hartford, CT 06106
Tel: (860) 527-9973/Fax: (860) 527-5929
27.
No.
In The
Supreme Court Of The United States
: =
DAVID PRENTICE
Petitioner,
V.
DALCO ELECTRIC, INC.
Respondent.
+
ON PETITION FOR WRIT OF CERTIORARI __.
TO THE SUPREME COURT OF CONNECTICUT
4
APPENDIX
: a a
TABLE OF CONTENTS
Supreme Court of Connecticut Opinion
David Prentice v. Dalco Electric, Inc., et al
Superior Court of Connecticut, Judicial District of New
Haven at New Haven, Memorandum of Decision
(Frazzini, J.) Defendant’s Motion to Set Aside Verdict A30
Al
Supreme Court of Connecticut.
David PRENTICE
V.
DALCO ELECTRIC, INC., et al.
No. 17444.
280 Conn. 336, 907 A.2d
1204 (2006)
Argued April 17, 2006.
Decided Oct. 17, 2006.
Background: Sign installer brought personal injury action
against company which contracted for installation of sign,
alleging he was injured while installing sign. Following a jury
trial, the Superior Court, Judicial District of New Haven at
Meriden, Levine, J., entered judgment for installer. Company
appealed, and the Supreme Court transferred the appeal from
the Appellate Court.
Holdings: The Supreme Court, Borden, J., held that:
(1) expert opinion testimony that prevailing wind conditions
could not have overturned ladder if ladder was set up properly
and free from defects was scientific evidence that required a
reliability and validity assessment;
(2) reliability hearing was required even though underlying
physical laws governing mass, force and motion were
fundamental and dealt with low level forces on common
objects; and
(3) error in admitting testimony without a reliability hearing
was prejudicial to company.
A-2
BORDEN, J.
The dispositive issue in this appeal is whether the trial court
properly admitted scientific evidence without first holding a
hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d
739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140
L.Ed.2d 645 (1998). The defendant, Dalco Electric, Inc.
(Dalco), appeals ' from the judgment of the trial court in favor
of the plaintiff, David Prentice, following a jury trial.’ The
defendant claims that the trial court improperly admitted
certain expert testimony because the testimony lacked the
required scientific foundation.’ We conciude that the
testimony in question was scientific evidence that required a
validity assessment designed to ensure reliability pursuant to
our analysis in Porter. Accordingly, we reverse the judgment
of the trial court and remand the case for a new trial.
' The named defendant appealed from the judgment of the trial
court to the Appellate Court. We then transferred the appeal to
this court pursuant to General Statutes § 51-!99(c) and Practice
Book § 65-1.
* The plaintiff's employer, B.G. Graphics, In.., was permitted to
intervene as a plaintiff in this matter but did not file a brief and
waived its right to oral argument. For convenience, we refer to
Prentice as the plaintiff.
* The defendant also claims that the evidence was inadmissible
on other grounds, and that the tria! court improperly instructed
the jury on the theory of res ipsa loquitur. In light of our order
for a new trial on the issue of a Porter hearing, we decline to
review these claims because we conclude that it is unlikely that
they will arise on remand.
A-3
In addition, the plaintiff also brought this action
against 125 Research, LLC, which owns the building where
Dalco operates its business and where the negligence at issue
allegedly occurred. After the jury returned a verdict in favor
of 125 Research, LLC, the trial court rendered judgment
‘accordingly and the plaintiff has not appealed from that
judgment. As a result, 125 Research, LLC, is not a party to
this appeal and we refer to Dalco as the defendant.
The plaintiff brought this personal injury action against the
defendant alleging negligence. Prior to trial, the plaintiff
identified Mervin Strauss, a professional forensic engineer
and accident reconstructionist, as an expert witness. The
defendant filed a motion in limine seeking to preclude
Strauss’ testimony and requested a Porter hearing. The trial
court declined to rule on this motion prior to trial and, over
the defendant's repeated objection, allowed Strauss’ expert
testimony to be entered into evidence.’ The jury returned a
verdict for the plaintiff awarding the plaintiff $1.2 million in
damages. Subsequently, the defendant filed a motion to set
aside the jury's verdict. Following extensive posttrial
hearings, the trial court concluded that Strauss’ testimony was
4
The trial court declined to rule on several other motions filed by
the defendant to exclude Strauss’ expert testimony, inciuding a
motion to strike, which was filed immediately following the
conclusion of Strauss’ testimony at trial, and a motion for a
directed verdict, which was filed at the conclusion of the plaintiff's
case. Additionally, throughout the four days of Strauss’ testimony,
the defendant repeatedly reitcrated its objection to Strauss’ expert
opinion and asked the trial court to conduct a Porter hearing. Over
the defendant's objection, the trial court declined to make a ruling
on the issue and allowed Strauss’ testimony to proceed.
A-4
admissible and did not constitute scientific evidence that
required a validity assessment under Porter.’ Accordingly, the
trial court denied the defendant's motion to set aside the jury's
verdict and rendered judgment thereon. This appeal followed.
The jury reasonably could have found the following facts. The
plaintiff was employed by B.G. Graphics, Inc., a sign making
company hired by the defendant to install a sign on the front
of its building in Meriden. The plaintiff accompanied
Benedict Gaglhiardi, Jr., a partner at B.G. Graphics, Inc., to
‘complete the installation. Upon arriving at the defendant's
building in Meriden and learning of the precise location on
the building where the sign was to be installed, the plaintiff
and Gagliardi informed Daniel Luft, a part owner of the
defendant, that they would be unable to complete the work
that day because the ladders that they had with them were too
short. Luft offered Gagliardi the use of one of the defendant's
extension ladders in order to install the sign. Gagliardi
accepted Luft's offer solely to enable the plaintiff to take the
necessary measurements to facilitate the installation of the
sign on a future date. Gagliardi and the plaintiff informed
Luft, however, that two people and two extension ladders
were required to install the sign and that borrowing an
extension ladder did not mean that the sign would go up that
day.® Luft offered the plaintiff the use of another one of the
*The trial court also concluded that Strauss’ testimony was not so
speculative as to be irrelevant, and that it had properly instructed
the jury regarding the plaintiff's theory of negligence under the
doctrine of res ipsa loquitur. See footnote 3 of this opinion.
“Gagliardi also informed Luft that the plaintiff was able to climb
an extension ladder, but that Gagliardi was afraid of heights and
was unable to do so.
A-5
defendant's extension ladders and informed him that he was
willing to provide any help necessary to complete the
installation. Neither the plaintiff nor Gagliardi accepted Luft's
offer to locate a second ladder or to provide assistance.
The plaintiff and Gagliardi used the first extension ladder
provided by the defendant and positioned it at the front of the
building so that the plaintiff could take the necessary
measurements for the sign's future installation. Although
Gagliardi and the plaintiff had decided to take measurements
only, and to install the defendant's sign on another day, Luft
located a second extension ladder in one of the defendant's
storage areas and, with the assistance of one of his employees,
brought it to the front of the building where the sign was to be
installed. Luft leaned the second ladder against the side of the
building approximately eight to tea fect to the left of where
the plaintiff had positioned the first ladder.’ The plaintiff
informed Luft that he and Gagliardi would not use the second
ladder because it was in poor condition and because they were
only taking measurements, which did not require multiple
people or ladders to complete. In particular, the plaintiff
noticed that the second ladder was missing braces required for
stability and that someone had tried to repair it by bolting
pieces of iron to the bottom of the ladder's legs.
The plaintiff fully extended the-first4adder and rested the top
section of the ladder against the aluminum edge of the
“The second ladder subsequently was fully extended to the roof
of the building. The record is unclear as to who fully extended
the second ladder and completed its sct up. The plaintiff and
Gagliardi testified, however, that they never touched the second
ladder and had observed only Luft and his employees handlec it.
A-6
building's roof. The plaintiff then climbed approximately ten
feet up the first ladder to take measurements for the sign's
future installation. As the plaintiff was completing his work,
the second ladder, which was positioned approximately ten
feet to the left of where the plaintiff was working, fell to the
right, slid against the edge of the defendant's roof and struck
the first ladder, on which the plaintiff was standing, causing
him to fall to the ground and to sustain serious injuries. No
one was standing on or touching the second ladder when it
fell and collided with the plaintiff.
On the day of the incident, Meriden and the surrounding area
experienced sustained winds of 11.5 miles per hour, with
gusts of wind up to 18 miles per hour. The safety label on the
ladder that collided with the plaintiff stated that it should not
be used in high wind. Meteorologically, a high wind warning
occurs when winds exceed thirty-nine miles per hour, and a
high wind advisory occurs when a sustained wind exceeds
forty-five miles per hour. Neither a high wind advisory nor a
high wind warning had been issued for Meriden on the day
the plaintiff was injured. Building on the facts surrounding
the weather conditions on the day of the accident, the plaintiff
introduced Strauss' expert testimony in an attempt to
demonstrate that it would have been physically impossible for
the prevailing winds to have overturned a ladder that was
properly set up and free from defects. Additional facts will be
set forth as necessary.
We begin with the standard of review that governs this case.
It is well established that “[t]he trial court's ruling on
evidentiary matters will be overturned only upon a showing
of a clear abuse of the court's discretion.” (Internal quotation
marks omitted.) State v. Billie, 250 Conn. 172, 180,738 A.2d
A-7
586 (1999). Concerning expert testimony specifically, “the
trial court has wide discretion in ruling on the admissibility of
expert testimony and, unless that discretion has been abused
or the ruling involves a clear misconception of the law, the
trial court's decision will not be disturbed: :-: Expert testimony
should be admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2) that
skill or knowledge is not common to the average person, and
(3) the testimony would be helpful to the court or jury in
considering the issues.” (Citations omitted; internal quotation
marks omitted.) Id.
“Beyond these general requirements regarding the
admissibility of expert testimony, [t]here is a further hurdle to
the admissibility of expert testimony when that testimony is
based on -- scientific [evidence]. In those situations, the
scientific evidence that forms the basis for the expert's
opinion must undergo a validity assessment to ensure
reliability. State v. Porter, supra, 241 Conn. at 68-69, 698
A.2d 739. In Porter, this court followed the United States
Supreme Court's decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993), and held that scientific evidence should
be subjected to a flexible test, with differing factors that are
applied on a case-by-case basis, to determine the reliability of
the scientific evidence:::: Following State v. Porter, supra, at
81-84, 698 A.2d 739, scientific evidence, and expert
testimony based thereon, usually is to be evaluated under a
threshold admissibility standard assessing the reliability of the
methodology underlying the evidence and whether the
evidence at issue is, in fact, derived from and based upon that
methodology:::.” (Citations omitted; internal quotation marks
omitted.) Maher v. Quest Diagnostics, Inc., 269 Conn. 154,
A-8
168, 847 A.2d 978 (2004). Accordingly, we limit the scope of
our review to whether the trial court abused its discretion in
determining that Strauss’ opinion was not scientific evidence
and that a Porter hearing was not required. See State v.
Kirsch, 263 Conn. 390, 399, 820 A.2d 236 (2003); State v.
Pappas, 256 Conn. 854, 878, 776 A.2d 1091 (2001).
By way of further background, we are also mindful that “[i]n
State v. Porter, supra, 241 Conn. at 78-80, 698 A.2d 739, we
expressly recognized that, because the term scientific
evidence houses such a large and diverse variety of topics, the
formulation of a mechanical evidentiary standard of
admissibility designed to apply universally to the many forms
scientific evidence may take is an unworkable concept.
Rather, the better formulation is a general, overarching
approach to the threshold admissibility of scientific
evidence:::: In accordance with this philosophy, we set forth
in Porter a number of different factors, nonexclusive and
whose application to a particular set of circumstances could
vary, as relevant in the determination of the threshold
admissibility of scientific evidence’: In particular, we
recognized the following considerations: general acceptance
in the relevant scientific community; whether the
methodology underlying the scientific evidence has been
tested and subjected to peer review; the known or potential
rate of error; the prestige and background of the expert
witness supporting the evidence; the extent to which the
technique at issue relies upon subjective judgments made by
the expert rather than on objectively verifiable criteria;
whether the expert can present and explain the data and
methodology underlying the testimony in a manner that
assists the jury in drawing conclusions therefrom; and
whether the technique or methodoiogy was developed solely
A-9
for purposes of litigation.” (Citations omitted; internal
quotation marks omitted.) Maher v. Quest Diagnostics, Inc.,
supra, 269 Conn. at 179-80, 847 A.2d 978.
In Porter, we also set forth a “fit” requirement for scientific
evidence. Id., at 180, 847 A.2d 978. We stated that the
“proposed scientific testimony must be demonstrably relevant
to the facts of the particular case in which it is offered, and
not simply be valid in the abstract:-:; Put another way, the
proponent of scientific evidence must establish that the
specific scientific testimony at issue is, in fact, derived from
and based upon [the scientifically reliable] methodology: :::
[A |Ithough some conclusions can be reasonably inferred from
the methodology employed, others cannot.” (Citations
omitted; internal quotation marks omitted.) Id.
Similarly, we recognized in Porter that “a critical postulate
that underlies the Porter factors and indeed underlies the
entire Porter analysis [is that] in order for the trial court, in the
performance of its role as the gatekeeper for scientific
evidence, properly to assess the threshold admissibility of
scientific evidence, the proponent of the evidence must
provide a_ sufficient articulation of the methodology
underlying the scientific evidence. Without such an
articulation, the trial court is entirely ill-equipped to
determine if the scientific evidence 1s reliable upon
consideration of the various Porter factors. Furthermore,
without a clear understanding as to the methodology and its
workings, the trial court also cannot properly undertake its
analysis under the fit requirement of Porter, ensuring that the
proffered scientific evidence, in fact, is based upon the
reliable methodology articulated.” Id., at 181, 847 A.2d 978.
A-10
The defendant claims that a new trial is necessary because the
trial court improperly admitted Strauss' expert opinion
testimony. In particular, the defendant contends that Strauss’
testimony was scientific evidence that lacked the required
scientific foundation and was, therefore, inadmissible because
it had not been subjected to a reliability and validity
assessment under Porter. Conversely, the plaintiff contends
that the trial court properly concluded that Strauss’ testimony
was not scientific evidence and, therefore, that its
admissibility was not dependent on the outcome of a Porter
hearing. We agree with the defendant.
The following additional facts are relevant to our analysis of
the question of whether a Porter hearing was required in this
case. The plaintiff alleged that the defendant had erected a
defective ladder, which “gave out at the defective portion of
the foot, and began to slide across the front of the building
striking the ladder [that] the [p]laintiff was on” In
particular, the plaintiff claimed that the defendant was
negligent due to its numerous acts and omissions related to
the “defective condition” of the ladder and its improper
installation.
Strauss was qualified by the trial court, without objection, as
an expert in the field of mechanical and forensic engineering.
At trial, Strauss opined, over the defendant's objection, that
the prevailing wind conditions in Meriden on the day of the
accident would not have caused a properly set up ladder, free
of defects, to fall from the building and collide with the
plaintiff. Strauss further testified, however, that he could not
state, within a reasonable degree of engineering probability,
that the wind conditions on the day of the accident were not
the sole cause of the second ladder's becoming dislodged from
A-I1
its resting position and colliding with the plaintiff.’ Strauss
also acknowledged at trial that determining the amount of
force required to move a particular object is an exercise
within the realm of physics that requires the accumulation of
certain factual data and the completion of mathematical
calculations. Specifically, Strauss noted that, in order to make
the necessary calculations in this case, an expert would need
to know the wind speed, the weight of the ladder, and the
coefficient of friction applicable to the ladder and to the
aluminum edge of the defendant's roof. Equipped with this
information, an engineer could then calculate whether an 11.5
to 18 mile per hour wind could apply sufficient force to cause
a properly set up ladder of the same size, weight, and
condition as the ladder in this case, to fall. Strauss
acknowledged that he had not acquired any of this
information as part of his investigation and experimentation
at the accident site, and had not performed the scientific
calculations that would allow him to express his opinion to a
“reasonable degree of engineering probability.”
Indeed, Strauss testified that his conclusions were based on
his experience as an engineer and that, despite his ability to
undertake such an effort, at no point had he attempted to
apply the readily available and applicable tools of physics and
mathematics with which he could have tested his hypothesis.
We also note that Strauss asserted that common experience
may allow a layperson to conclude that a ladder will fall only
if it is set up improperly, is defective, or 1s subjected to
*Strauss' recognition that he could not offer an opinion about the
wind's effect on the ladder within a “reasonable degree of
engineering probability” was a disclaimer about his expert
opinion that was also echoed in his deposition testimony prior to
trial.
A-12
sufficient external force to knock it over. Strauss maintained,
however, that common experience was not sufficient to
enable a layperson to assess the likely effect of a wind at a
certain speed on an immobile ladder. To the contrary, Strauss
asserted that what distinguished him from an ordinary
layperson was his engineering experience and education,
which allowed him to apply the laws of physics to make such
a calculation.
The trial court concluded that Strauss’ opinion testimony did
not require a “preliminary gatekeeper Porter-type validity
assessment.” In particular, it noted that “[t]he opinion
testimony [that Strauss] provided -:: regarding the effect of
certain wind speeds on a properly setup ladder in good
condition was supported by other evidence [and was]
thoroughly tested.on cross-examination:::-” Additionally, the
trial court ruled that a Porter hearing was not required
because, although Strauss' testimony was rooted in scientific
principles, it was “not the sort of scientific evidence that
would place the jury in the position of abandoning common
sense and sacrificing independent judgment to the expert's
assertions based on his special skill or knowledge.” (Internal
quotation marks omitted.) We conclude that Strauss’ opinion
was scientific evidence within the meaning of Porter, and that
the trial court abused its discretion by permitting Strauss’
expert opinion testimony without first assessing the validity
of the methodology underlying his opinion as part of a Porter
hearing.
First, by concluding that a separate validity assessment was
not required under Porter, at least in part because Strauss'
opinion testimony was supported by other evidence and was
tested thoroughly on cross-examination,’ the trial court
misconstrued the task that was before it. Specifically, the fact
that there was other evidence in the record concerning the
wind, namely, the subjective impressions of laypersons, a ’
meteorologist's description of the prevailing winds on the day
of the accident,'’ and the warning that the ladder should not
*Over the course of four days of testimony, Strauss was asked
several times for his opinion as to whether the wind could have
caused a ladder that had been set up properly and was in good
condition to fall over. On direct examination, he offered the
opinion that an 11.5 to 18 mile per hour wind would not cause
such a ladder to fall. On cross-examination, however, Strauss
testified, as he had at his deposition, that he could not offer such
an opinion “within a reasonable degrec of engineering
probability.” As part of redirect examination by the plaintiff,
Strauss changed his answer and testified that an 11.5 to 18 mile
per hour wind would not have caused such a ladder to fall
“within a reasonable degrec of engineering probability.” On
recross-examination, however, Strauss contradicted this
statement once again and stated that he could not rule out an
11.5 mile per hour wind as the sole cause of the plaintiff's
accident “within a reasonable degree of enginecring
probability.” The cquivocal nature of Strauss' testimony during
cross-cxamination does not render his opinion unscientific.
Strauss’ contradictory testimony, however, docs highlight the
importance of a trial-court conducting a reliability and validity
assessment of Strauss’ methodology pursuant to our analysis in
Porter.
In particular, in addition to testifying that the prevailing winds
in Meriden ranged from 11.5 and 18 miles per hour on the day of
the accident, Robert Cox, a meteorologist, testified that the
winds likely would move Icaves and small branches on trees, but
not stable objects on the earth's surface. The plaintiff does not
A-14
be used in high winds, does not render Strauss’ opinion
unscientific per se. In short, otherwise scientific evidence
does not become unscientific simply because the opposing
party has had an opportunity for cross-examination, or
because there is unscientific evidence that tends to
corroborate the expert's testimony. Indeed, all scientific
evidence is subject to cross-examination and likely will find
some corroboration from other evidence in the record. This
fact, however, does not obviate the need for the trial court
separately to determine whether Strauss’ testimony required
a validity assessment under Porter.
Second, with respect to the trial court's conclusion that a
Porter hearing was not required because Strauss’ testimony,
although rooted in scientific principles, would not place the
jury in the position of abandoning common sense and
sacrificing its independent judgment, Strauss’ own statements
at trial do not support the trial court's ruling. As discussed
previously, Strauss acknowledged that common experience
was not sufficient to enable a layperson to assess the likely
effect of a wind at a certain speed on an immobile ladder. To
the contrary, Strauss testified that the determination of the
amount of force required to move a particular object 1s an
exercise within the realm of physics, and requires the
accumulation of certain factual data and the completion of
mathematical calculations. This exercise is very different
from an understanding of the general principle, which may be
claim, however, that the testimony of Cox, who is a
meteorologist but is not an engineer, would have been sufficient
for the jury to find liability. It is clear from the record that it was
Strauss’ testimony that formed the necessary basis for the
plaintiff's claim of negligence.
A-15
known to the average layperson, that if an external force is
exerted on an object, that object may fall over. Indeed, an
understanding of how to apply the sciences of physics and
mathematics is necessary to determine the amount of force
required to dislodge the defendant's ladder from the building,
and whether that force could have been exerted by the
prevailing winds in Meriden on the day of the accident, and
the average person does not possess such an understanding.
Strauss acknowledged this reality when he testified that he
would need to know several variables, including the weight of
the ladder and the coefficient of friction between the ladder
and the building. Additionally, Strauss testified that physics
and mathematics are scientific tools relied upon by engineers,
but that he was unable to state his opinion to a “reasonable
degree of engineering probability” because his investigation
of the accident did not include any scientific calculations
concerning what forces were applied to the ladder by the
wind.'' Accordingly, although
Specifically, during cross-examination at trial, the following
colloquy took place between Strauss and the defendant's
counsel:
“Q. You - testified last Friday that among the tools that the
engineer has at his disposal is physics?
“A. Yes.
“Q. And physics is a science?
“A. Yes.
“Q. That relics heavily on mathematics?
A-16
“A. Yes, it is a tool.
“Q. The science of :: physics relies on algebra, trigonometry and
calculus docs it not?
“A. Yes.
“Q. And in your file you have no mathematical calculations at
ail concerning what forces were applied to exhibit 40 on March
16, 2000, isn't that truc?
“A. That is true.
“Q. There isn't a single mathematical calculation in your file
concerning that subject, right?
“A. Correct.
“Q. Nor are you able as you sit here now to undertake those
mathematical calculations because you don't know onc of the
components of the equation, namely, the weight, isn't that right?
“A. As of the moment, no.
“Q. Now the ladder was available to you to weigh, wasn't it?
“A. Yes.
“Q. And if you had wanted to weigh it nobody told you that you
couldn't, correct?
“A. Correct.
“Q. And you knew, didn't you, as an engineer who uses physics,
that in order to do a mathematical computation you need to
A-17
know, among other things, what is the weight, right?
“A. That is one of the factors.
“Q. But you didn't ascertain what it was?
“A. I did not sir
“Q. Do I understand your testimony here to be that a wind of
11.5 miles per hour cannot in your opinion as an engineer cause
a properly set up ladder that is not defective to fall over, is that
your opinion?
“A. That is my opinion.
“Q. But that is based on no mathematical calculations?
“A. Based on years of experience sir.
“{The Defendant's Counsel]: I didn't ask you that.
“Q. | asked you, that is based on no mathematical computations,
correct?
“A. That is correct.
“Q. And it is based on your not knowing what the ladder
weighed?
“A. That is true.
“Q. Even though you recognized that in order to properly apply
the principles of physics to this problem you [would] need to
work out a mathematical equation that calculates not only the
force which in this case would be 11.5 miles per hours in this
A-18
Strauss failed to gather the relevant data that would have
enabled him to complete the required calculations,'’FN 12 his
opinion that the force created by the prevailing wind
conditions in Meriden on the day of the accident was not
sufficient to have caused a ladder that had been set up
properly and was free of defects to fall over, was dependent
on the result of scientific measurement and calculation. This
opinion, therefore, constituted scientific evidence that
required a validity assessment pursuant to our analysis in
Porter.
Additionally, by exempting Strauss’ opinion from a validity
assessment under Porter, the trial court ignored the “critical
postulate” that underlies the entire Porter analysis, which is
that any exemption for scientific evidence that depends upon
hypothetical, but also the weight of the ladder, correct?
“A. You would need to know all of that information, yes.”
‘We note that Strauss’ failure to gather and analyze scientific
data in forming his conclusion is exactly the sort of flaw in his
expert opinion that a validity assessment pursuant to Porter was
meant to identify. In particular, as we stated in Maher v. Quest
Diagnostics, Inc., supra, 269 Conn. at 181, 847 A.2d 978, the
“critical postulate” underlying the entire Porter analysis is that
“the proponent of the evidence must provide a sufficient
articulation of the methodology underlying the scientific
evidence. Without such an articulation, the trial court is entirely
ill-equipped to determine if the scientific evidence is reliable
[and] also cannot properly undertake its analysis under the ‘fit’
requirement --- ensuring that the proffered scientific evidence, in
fact, is based upon the reliable methodology articulated.”
A-19
existing techniques must presuppose an ability on the part of
the proponent of the evidence to “provide a sufficient
articulation of the methodology underlying the scientific
evidence.” Maher v. Quest Diagnostics, Inc., supra, 269
Conn. at 181, 847 A.2d 978. In this case, by Strauss’ own
admission, and despite his familiarity with the scientific
calculations that would have allowed him to have tested his
theory that the force of the prevailing wind was not sufficient
to upset a ladder that was properly set up and was free from
defects, he used no methodology to arrive at his conclusions.
In light of our previous conclusion that Strauss’ opinion on the
effect of the wind was “scientific evidence” for the purposes
of a Porter analysis, the trial court was obliged to hold a
hearing and the plaintiff was obliged to explain the
methodology underlying Strauss’ opinion. This information
was necessary to assess the scientific reliability and validity
of Strauss’ opinion.
x
The plaintiff argues that pugsuant.to our holdings in State v.
Reid, 254 Conn. 540, 546-49, 757 A.2d 482 (2000), and State
v. Hasan, 205 Conn. 485, 490-91, 534 A.2d 877 (1987), a
validity assessment by the trial court was not required in this
case because not all testimony grounded in scientific
principles requires a Porter hearing. We disagree.
In Maher v. Quest Diagnostics, Inc., supra, 269 Conn. at
170-71 n. 22, 847 A.2d 978, we noted a line of cases dealing
with scientific evidence that falls within a narrow category of
exceptional situations whercin “although ostensibly rooted in
scientific principles and presented by expert witnesses with
scientific training, [the evidence 1s] not scientific for the
purposes of our admissibility standard for scientific evidence,
either before or after Porter.” (Internal quotation marks
A-20
omitted.) In particular, we referenced State v. Reid, supra, 254
Conn. at 547-49, 757 A.2d 482, in which we concluded that
the testimony of a criminologist regarding — visible
characteristics of, and similarities between, strands of hair
was not scientific evidence for Porter purposes,"’ and State v.
Hasan, supra, 205 Conn. at 490, 534 A.2d 877, in which we
held that a podiatrist's testimony as to the likelihood that a
certain pair of sneakers would fit on the defendant's feet was
not scientific evidence.'’ We conclude that Strauss’ opinion
"Specifically, in State v. Reid, supra, 254 Conn. at 545-49, 757
A.2d 482, we held that a validity assessment was unnecessary
when the state sought to present the expert testimony of a
criminologist who had performed a microscopic analysis and
comparison of hair samples. The witness presented enlarged
photographs of the hair samples and explained to the jury how
he had compared them. The jurors were then free to make their
own comparison and decide for themselves whether the hairs
matched, leading us to conclude that a Porter hearing was not
required because the criminologist's testimony “simply required
the jurors to use their own powers of observation and
comparison.” Id., at 547, 757 A.2d 482.
Specifically, in State v. Reid, supra, 254 Conn. at 545-49, 757
A.2d 482, we held that a validity assessment was unnecessary
when the state sought to present the expert testimony of 4
criminologist who had performed a microscopic analysis and
comparison of hair samples. The witness presented enlarged
photographs of the hair samples and explained to the jury how
he had compared them. The jurors were then free to make their
own comparison and decide for themselves whether the hairs
matched, leading us to conclude that a Porter hearing was not
required because the criminologist’s testimony “simply required
the jurors to use their own powers of observation and
comparison.” Id., at 547, 757 A.2d 482.
A-2]
does not fit within the category of expert opinion identified in
these cases, nor does it fit within the rationale employed in
those cases to conclude that a validity assessment pursuant to
Porter was not required.
This narrow and distinct line of cases “indicates that
evidence, neither scientifically obscure nor instilled with an
aura of mystic infallibility --- which merely places a jury -- in
a position to weigh the probative value of the testimony
without abandoning common sense and _ sacrificing
independent judgment to the expert's assertions based on his
special skill or knowledge --- is not the type of scientific
evidence within the contemplation of Porter ---.” (Citations
omitted; internal quotation marks omitted.) Maher v. Quest
Diagnostics, Inc., supra, 269 Conn. at 170 n. 22, 847 A.2d
978. In particular, we noted that “Hasan and Reid stand for
the proposition that evidence, even evidence with its roots in
scientific principles, which is within the comprehension of the
average juror and which allows the jury to make its own
conclusions based on its independent powers of observation
and physical comparison, and without heavy reliance upon the
testimony of an expert witness, need not be considered
scientific in nature for the purposes of cvidentiary
admissibility.” (Internal quotation marks omitted.) Id., at
170-171 n. 22, 847 A.2d 978. In short, in Hasan and Reid, the
expert witness taught the jury how to look at physical
evidence and then left the jury to look at that evidence and
reach its own conclusions.
Strauss did not teach the jury how to calculate the force that
a wind of 11.5 to 18 miles per hour would exert on a ladder or
how much force is required to cause a ladder that is properly
set up and in good condition to be set into motion and to slide
A-22
against the aluminum edge of the defendant's roof. Similarly,
Strauss did not provide the jury with the necessary factual
data to undertake such a calculation because he never
performed that analysis as part of his own investigation.
Consequently, the jury in this case lacked any of the data,
education or tools required to determine whether a particular
wind speed could have overturned such a ladder. Contrary to
the plaintiff's assertion, therefore, the jury largely was
dependent on Strauss’ assessment of the role that the wind
played in the accident, and had no meaningful way to evaluate
independently the amount of force that the prevailing wind
would have exerted on a ladder leaning against the
defendant's building. As a result, this case must be
distinguished from Reid and Hasan because the jury in this
case could not evaluate Strauss’ hypothesis or compare the
likely effect of the force of the prevailing wind on the ladder
that collided with the plaintiff, as opposed to a ladder that was
properly set up and free from defects.
The problem with the jury's dependence on Strauss' testimony
is that his opinion, by his own admission, was based only on
his experience, and was formed without the benefit of an
established scientific methodology. Strauss’ opinion
nevertheless was introduced at trial under the seal of science
because it came from an individual qualified as an expert in
the fields of mechanical and forensic engineering. The
implication of a scientific foundation for his opinion was
especially misleading because, although Strauss testified that
as a forensic engineer he had previous experience in assessing
whether wind would overturn an object on the earth's surface
and had examined “at least a couple of dozen of ladders or
more over the years” in connection with accidents, he also
acknowledged that he did not have experience in determining
A-23
what force a wind must exert on a ladder to cause it to fall
over, and that none of his previous ladder cases dealt with a
fact pattern similar to this case. Strauss’ experience, therefore,
was hardly extensive with respect to the specific question on
which he was asked to opine.
Furthermore, the trial court highlighted the perceived expert
nature of Strauss’ testimony by excluding the lay opinion of
an eyewitness to the incident who testified that he believed
that a gust of wind had caused the second ladder to fall and to
collide with the plaintiff.'° sum, if Strauss’ expertise as a
"Specifically, the following colloquy took place at trial during
direct examination of Keith Donahue, an employee of the
defendant, by the defendant's counsel:
“Q. So this ladder here, exhibit 40, slid to the right coming in
contact with the ladder that [the plaintiff] was on, correct?
“A. Correct.
“Q. And do you know what caused this ladder to fall over?
“The Court: This is just, yes or no.
“A. Yes.
“Q. Can you tell us what?
“A. I believe that it was the wind.
“(The Plaintiff's Counsel}: Objection.
“(The Defendant's Counsel]: What is the basis?
A-24
scientist made his opinion admissible, as compared to the
opinion of a layperson who witnessed the accident but had no
scientific training, then it was incumbent on the trial court to
conduct a Porter hearing to determine whether Strauss had
used his expertise to develop his opinion.'* of such a validity
assessment by the trial court in its role as gatekeeper, the jury
in this case was confronted with a scientific conclusion, from
an individual qualified as a scientific expert and presumably
“The Court: Wait, what is the objection?
“(The Plaintiff's Counsel]: It calls for a conclusion. It calls for an
opinion, a legal opinion, with regard to causation.
“The Court: Counsel sidebar please.
“(The Plaintiff's Counsel]: It is without foundation.
“The Court: I am going to sustain the objection to that question.
Membcrs of the jury, I am striking that answer. You are not to
consider that answer in your deliberations.”
‘We are also mindful that in order for an expert's opinion to be
admissible, it must assist the tricr of fact in “understanding the
evidence or in determining a fact in issue.” Conn.Code Evid. §
7-2. Additionally, in order to be heipifui and, therefore, relevant,
an expert's opinion must be derived from the application of
whatever skill or knowledge he or she brings to the case. See
State v. Billie, supra, 250 Conn. at 178-81, 738 A.2d 586
(expert's knowledge concerning behavioral effects caused by
components of drug mixture not admissible where expert had no
knowledge of mixture ratio). Strauss' opinion failed to mect this
standard because, by his own admission, it was based only on
his experience, rather than on calculations derived from the laws
of physics and mathematics.
A-25
rooted in scientific principles, when in fact the opinion had no
basis in science and was derived from the expert's limited
experience with the particular factual situation at issue. The
trial court's failure to characterize Strauss' testimony as
scientific evidence and to carry out its role as a gatekeeper by
conducting a Porter hearing, constituted an abuse of its
discretion.
The plaintiff also argues that a Porter hearing was not
required because the underlying physical laws governing
mass, force and motion were so fundamental and dealt with
such low level forces on common objects that it was
unnecessary for Strauss, given his experience and
qualifications as an engineer, to conduct any experimentation
or testing. We disagree.
First, we reiterate that the question of whether the prevailing
winds in Meriden on the day of the plaintiff's accident were
capable of generating enough force to overturn an immobile
ladder leaning against the defendant's building is more
complicated than simply understanding that a force applied to
an object may cause the object to fall over. Specifically, as
Strauss acknowledged at trial, he never calculated the amount
of force that was generated by the wind on the day of the
accident or how this force was hindered by the coefficient of
friction attributable to the building's roof when he
investigated the accident. Moreover, both figures would have
required scientific data gathering and experimentation that
would have been inaccessible to the average juror and could
not have been performed by the average juror.
Additionally, the general acceptance in the scientific
community of Newtonian physics does not eliminate the need
A-26
for a validity assessment in this case pursuant to Porter. In
short, a party may not circumvent a validity assessment
simply by asserting that generally recognized physical laws
serve as ithe underpinnings for the scientific methodology on
which they seek to rely. Most scientific methodologies are
capable of being reduced to a well recognized set of scientific
principles. Under Porter, however, it is the methodology itself
that is subject to a validity assessment. See Maher v. Quest
Diagnostics, Inc., supra, 269 Conn. at 179, 847 A.2d 978.
Accordingly, if the stated methodology,'’ apart from its
foundational physical laws, is not accessible to the jury, as
was the case here, the trial court 1s required to conduct a
validity assessment pursuant to Porter.
Finally, the plaintiff contends that the defendant was not
prejudiced by the trial court's admission of Strauss’ opinion
without a preliminary Porter hearing and, therefore, any error
was harmless. In particular, the plaintiff argues that the fact
that there was other evidence in the record to support the
jury's verdict, and that the defendant had the opportunity to
take Strauss’ deposition, to cross-examine him at trial, and to
present rebuttal evidence, all negated any prejudice that may
have occurred by admitting Strauss' expert opinion without an
assessment of its reliability. We disagree.
'’We note that in this case, Strauss did not state a methodology
for his opinion, other than his experience as a professional
engineer, which made it impossible for the trial court to evaluate
whether the methodology was reliable and whether the expert
opinion was “in fact, derived from and based upon that
methodology’: Maher v. Quest Diagnostics, Inc., supra, 269
Conn. at 168, 847 A.2d 978.
A-27
We acknowledge that “[e}ven when a trial court's evidentiary
ruling 1s deemed to be improper, [as is the case here] we
[still] must determine whether that ruling was so harmful as
to require a new trial: In other words, an evidentiary ruling
will result in a new trial only if the ruling was both wrong and
harmful: [T]he standard in a civil case for determining
whether an improper ruling was harmful is whether the --:
ruling [likely] would [have] affect[ed] the result.” (Citations
omitted; emphasis added; internal quotation marks omitted.)
Ryan Transportation, Inc. v. M & G Associates, 266 Conn.
520, 530, 832 A.2d 1180 (2003); see also Swenson v.
Sawoska, 215 Conn. 148, 153,575 A.2d 206 (1990) (rejecting
standard that would have required treating as harmless error
any evidentiary ruling, regardless of its effect upon verdict, so
long as evidence not implicated by ruling was sufficient as
matter of law to sustain verdict). Additionally, we have held
that “any error in the admission of evidence does not require
reversal of the resu!ting judgment if the improperly admitted
evidence is merely cumulative of other validly admitted
testimony.” (Internal quotation marks omitted.) Fink _v.
Golenbock, 238 Conn. 183, 211, 680 A.2d 1243 (1996). We
conclude that the trial court's improper decision to admit
Strauss’ testimony without first conducting a Porter hearing
likely affected the result of the trial and, therefore, warrants
a new trial.
First, in the context of a harmless error analysis, it is not
enough that there was other evidence in the record to support
the jury's verdict. As noted previously, we specifically
rejected such a standard in Swenson v. Sawoska, supra, 215
Conn. at 153, 575 A.2d 206, in which we concluded that the
“sufficient other evidence standard --: is too restrictive in that
it does not encompass situations where the erroneously
A-28
admitted evidence, while not necessary itself to sustain the
jury's verdict, may nonetheless have affected the jury's
perception of the remaining evidence.” (Internal quotation
marks omitted.) Similarly, the fact that the defendant had the
opportunity to take Strauss’ deposition, to cross-examine him
at trial, and to present rebuttal evidence, while indicative of
the sufficiency of the evidence presented at trial to support the
jury's verdict, does not demonstrate conclusively that the
defendant was not harmed by the trial court's evidentiary
ruling. As noted previously, the relevant question is whether
the “ruling «: [likely] would [have] affect[ed] the [trial’s]
result”; (internal quotation marks omitted) Ryan
Transportation, Inc. v. M & G Associates, supra, 266 Conn.
at 530, 832 A.2d 1180; and, as we stated in Swenson, this
assessment can include merely whether the trial court's ruling
“affected the jury's perception of the remaining evidence.”
Swenson v. Sawoska, supra, at 153, 575 A.2d 206.
Second, Strauss’ opinion was the only evidence to support the
plaintiff's principal theory of liability, namely, that the
defendant's negligence in setting up the ladder, rather than the
wind, was the proximate cause of the ladder's falling over. In
this regard, Strauss’ opinion regarding whether an 11.5 to 18
mile per hour wind could generate sufficient force to dislodge
a ladder that was properly set up and free from defects, from
its resting place against the roof of the defendant's building,
was critical to the plasntiff's case. Simply put, the plaintiff
could not make his case that the defendant's negligence
caused the ladder in this case to fall unless he could establish
that it was impossible for the prevailing wind on the day of
the accident to knock over a ladder that had been set up
properly and was in good condition. Once the wind was
eliminated as a potential cause of the collision, the plaintiff
A-29
was able to argue to the jury, under a theory of res ipsa
loquitur, that the second ladder must have fallen: (1) because
the defendant negiigently had set up the device; (2) because
the defendant had erected a damaged and unstable ladder next
to where the plaintiff was working; or (3) due to some
combination of these two actions. Accordingly, Strauss'
opinion as to the effect of the wind on a ladder that was
properly set up and-in good condition likely played a role in
how the jury viewed the other evidence presented by the
plaintiff regarding the defendant's negligence.'* Moreover,
during closing argument, counsel for the plaintiff noted that
the “issue of the wind [was] critical,”’’ and read to the jury the
opinion Strauss had offered during direct examination
2
'*We also note that Strauss' expert opinion was unique and was
not cumulative of other evidence in the record. Indeed, the only .
other expert to testify concerning the wind was Cox, who did not
testify about the effect of the wind on the ladder and limited his
testimony to a discussion of the prevailing wind speeds in
Meriden on the day of the accident, as well as to the likely
appearance of such conditions to the average observer. By
stipulation, the plaintiff's counsel stated: “Cox, is not going to
testify as to causation, a wind speed knocking over this ladder.
That's causation. I am not going to ask --- Cox --- whether a
[certain] wind speed --: will knock over a ladder.”
The trial court similarly acknowledged the critical nature of
Strauss’ testimony. Specifically, it instructed the jury as follows:
“Thus, unless you find it proven, by a preponderance of the
evidence, that the wind wouldn't have blown over a ladder in
good condition properly set up, [the] plaintiff's case fails, and
you must return a defendant's verdict for each defendant.”
A-30
regarding the effect of the wind on a properly set up ladder.”
Indeed, the plaintiff devoted a significant portion of his
closing argument to Strauss’ opinion about the prevailing
winds on the day of the accident. His emphasis on Strauss'
opinion about the wind further suggests that Strauss’ opinion
affected the jury's evaluation of the remaining evidence
presented at trial.
The judgment is reversed and the case is remanded for a new
trial.
In this opinion the other justices concurred.
"Specifically, during closing argument, counsel for the plaint:ff
emphasized certain portions of Strauss' testimony by reading
from the transcript as follows:
“Question: ‘Mr. Strauss, the question that we Icft off with on
Friday was, would a properly set up ladder with no defects in -~:
Meriden with a -: sustained [wind] speed of approximately 1}.
miles per hour be knocked over based upon the wind? Again,
assume proper set up and no defects.’ Answer: *[n my opinion it
would not be overturned.’ --- Next question::-- “Would a properly
set up ladder with no defects in --- Meriden [leaned] against the
side of a building, again, the same twenty-cight foot ladder on
the side of a building with a five second interval or gust of wind
at ‘-- eighteen miles an hour cause this properly set up,
nondefective, extension ladder to fall over?” Answer: ‘In my
opinion, it would not.’ ”
A-31
Superior Court of Connecticut,
Judicial District of New Haven
DAVID PRENTICE
v.
DALCO ELECTRIC, INC., ET AL
NO.; CV010276254S
Feb. 17, 2005
Brignole & Bush, LLC, Hartford, for David Prentice.
Montstream & May, LLP, Glastonbury, for B.G. Graphics Inc.
Mulvey, Oliver, Gould & Crotta, for Dalco Electric Inc and
One Twenty Five Research LLC.
STEPHEN F. FRAZZINI, Judge.
The defendants Dalco Electric, Inc., and 125 Research,
L.L.C., have moved te set aside the verdict rendered by a jury
and accepted by the court on March 12, 2004, awarding the
plaintiff damages of $1,200,000 against Dalco and instead
enter judgment for the defendants. The gravamen of their
motion js that the court improperly (a) permitted two experts
to testify, without whose evidence they claim that there was
insufficient evidence to sustain a plaintiff's verdict, and (b)
submitted the case to the jury on a theory of res ipsa loquitur.
For the reasons explained below, their motion is denied.
1 - SUMMARY OF FACTS
On March 16, 2000, the plaintiff was an employee of BG
Graphics, which had been hired by the defendant to construct
and install a sign on the front of the building where Dalco's
A32
office is located. The building is owned by the other
defendant, 125 Research. The plaintiff arrived at Dalco that
day with Ben Gagliardi, one of his employers at BG Graphics,
to install the sign. He later fell to the ground and suffered
severe injuries after a ladder owned by Dalco fell over and
toppled a ladder on which plaintiff was standing while
making marks on the building as to where to place the sign.
The plaiatiff brought this action to recover damages for those
injuries.
All four persons on the scene that day denied having set up
that other ladder. The plaintiff offered expert testimony from
a meteorologist, Robert Cox, that the National Weather
Service measures wind velocity at the Meriden municipal
airport, some distance from the Dalco office. A Weather
Service report of wind speed readings at the airport that day
showed maximum prevailing wind speeds, lasting at least two
minutes, of 11.5 miles per hour and maximum wind gusts,
lasting at least five seconds, of 18 miles per hour. Melvin
Strauss, an engineer calicd as an expert witness by the
plaintiff, testified that a properly setup ladder in good
condition will not fall without application of sufficient
external force. Strauss testified that winds of these speeds
would not supply sufficient external force alone to knock over
a properly setup ladder in good condition.
Il - ISSUES PRESENTED
The defendants challenge the court's decision to admit expert
testimony from Strauss and Cox. They claim that Cox's
testimony about wind speeds at the municipal airport was not
relevant to the site where the plaintiff's injuries occurred and
that Strauss’ testimony did not meet the threshold
A33
admissibility standard for assessing the reliability of the
methodology underlying expert scientific testimony, as
required by State v. Porter, 241 Conn. 57, 698 A.2d 739
(1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140
L.Ed.2d 645 (1998).
The defendants also claim the court improperly charged the
jury on res ipsa loquitur because plaintiff failed “to establish
that the defendants’ negligence was the only reasonable
explanation for the plaintiff's injuries [and] that the
defendants retained control over the ladder.” (Def.s' Motion
to Set Aside, p. 2.)
Finally, defendants claim that the verdict was against the
weight of evidence and excessive.
iff - DISCUSSION
A. Strauss’s Testimony
l. The Porter Standard
In State v. Porter, the Connecticut Supreme Court adopted the
rule enunciated by the United States Supreme Court in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) for admissibility of scientific evidence: “scientific
evidence that forms the basis for [an] expert's opinion must
undergo a validity assessment to ensure reliability” before
being submitted to the jury. Haves v. Decker, 263 Conn. 677,
684, 822 A.2d 228 (2003). That validity assessment requires
the trial court to assess whether “the reasoning or
methodology underlying the [scientific theory or technique in
question] is scientifically valid and «- that reasoning or
A34
methodology properly can be applied to the facts in issue.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509
U.S. at 592-93.
The Porter court did not, however, specify what types of
“scientific evidence” are subject to the validity assessment.
As the court later explained in State v. Reid, 254 Conn. 540,
546, 757 A.2d 482 (2000), “we recognized that Daubert's
vagueness as to how and when to apply the factors of the test
was necessary -* [In order to maintain flexibility in applying
the test, we did not define what constitutes ‘scientific
evidence.’ “ (Citations omitted.). In Hayes v. Decker, supra,
263 Conn, at 687, the court expressly pointed out that
“fallthough this court in Porter explicitly adopted the
Daubert test to determine the admissibility of scientific
evidence «- we did not explicitly overrule Connecticut
precedent regarding the evidence to which such a test should
apply.” As the Appellate Court recently noted in Message
Center Management v. Shell Oil Product, 85 Conn.App. 401
(2004), ‘* Maher v. Quest Diagnostics, Inc., {269 Conn. 154,
847 A.2d 978 (2004) | - established that what is to be
considered as scientific must be assessed on a case-by-case
basis.” /d., at 422, fn. 12.
In Maher v. Quest Diagnostics, Inc., our Supreme Court
recently discussed which cases do and do not require the court
to exercise Porter's gatekeeper role: “the standard articulated
in Porter applies generally to scientific evidence, unless that
scientific evidence is so well established that a threshold
admissibility analysis is rendered unnecessary.” /d., at 168, fn.
19. The court then provided some guidance as to the nature of
these other types of cases for which the Porter assessment is
not necessary:
A35
[S]ome scientific principles have become so well established
that [a threshold admissibility] analysis is not necessary for
admission of evidence thereunder. Evidence derived from
such principles would clearly withstand [such an] analysis,
and thus may be admitted simply on a showing of relevance.
Thus, we exclude from the Porter standard the very few
scientific principles that are so firmly established as to have
attained the status of scientific law and properly are subject to
judicial notice.
(Citations omitted; internal quotation marks omitted; internal
alterations omitted.) /d., at 169. In a footnote, the court in
Maher further described this type of evidence:
[C]Jertain types of evidence, although ostensibly rooted in
scientific principles and presented by expert witnesses with
scientific training, are not “scientific” for the purposes of our
admissibility standard for scientific evidence, either before or
after Porter --- [E|vidence, neither scientifically obscure nor
instilled with an aura of mystic infallibility which merely
places a jury in a positten to weigh the probative value of the
testimony without abandoning common sense and sacrificing
independent judgmert *@ tae expert's assertions based on his
special skill or knowledge is not the type of scientific
evidence within the contemplation of Porter, and similarly
was not within the ambit of our standard for assessing
scientific evidence prior to Porter.
‘+ [E]vidence, even evidence with its roots in scientific
principles, which is within the comprehension of the average
juror and which allows the jury to make its own conclusions
based on its independent powers of observation and physical
A36
comparison, and without heavy reliance upon the testimony
of an expert witness, need not be considered “scientific” in
nature for the purposes of evidentiary admissibility.
(Citations omitted; quotation marks omitted.) /d., at 170-71,
fn. 22.
The Maher court cited State v. Reid, supra, and State v..
Hasan, 205 Conn. 485, 534 A.2d 877 (1987), as examples of
cases involving evidence of a scientific nature not requiring
a Porter-type validity assessment. In State v. Reid, ari expert
testified about the visible characteristics of, and similarities
between, hair from the defendant and hair recovered from the
victim's clothing and displayed enlarged photographs of the
two samples to the jury. The court held that
[t]he jurors were free to make their own determinations as to
the weight they would accord the expert's testimony in the
light of the photograph and their own powers of observation
and comparison. The jurors were not subject to confusing or
obscure scientific evidence, but were able to use the testimony
to guide them in their own determination of the similarity of
the two hairs.
Id., at 547-48.
In State v. Hasan, the prosecution offered testimony from a
podiatrist that sneakers recovered from the defendant's
bedroom belonged to the defendant. The podiatrist testified
that “it is common pediatric practice in the treatment of foot
ailments to assess the suitability of a patient's shoes for his
feet.” /d., at 492. The podiatrist also testified that “with wear,
shoes conform to the contours of the foot and that the foot's
characteristics are manifested in the outline of the shoe.” /d.,
A37 -
at 492-93. He then testified, based on his physical
examination of certain sneakers linked to the crime and the
feet of the defendant, that the particular sneakers belonged to
the defendant. The defendant claimed that this testimony was
improperly admitted because not shown to comply with the
then-prevailing Frye standard of general acceptance in the
scientific community.
Whether the Frye standard governed the case was important
because the podiatrist admitted that there was no scierice
within the field of podiatry for matching sneakers to people
and that he had not performed any blind studies or conducted
research in the area. In concluding that the podiatrist
testimony in that case need not meet the Frye test, the court
went back to the very reason why courts impose limits on
scientific evidence: the normal human tendency of lay jurors
to be overly influenced by scientific evidence beyond their
own ken. “The Frye test finds its rational basis in the degree
to which the trier of fact must accept, on faith, scientific
hypotheses not capable of proof or disproof in court and not
_ even generally accepted outside the courtroom.” People v.
Marx, 54 Cal.App.3d 100, 110, 126 Cal.Rptr. 350 (1975),
cited in State v. Hasan, supra, 205 Conn. at 490. As our
Supreme Court itself said,
Frye contemplates those situations in which the evidence
sought to be admitted is beyond the understanding of the
ordinary juror who must sacrifice his independent judgment
in deference to the expert. Among the dangers created by such
scientific evidence is its potential to mislead lay jurors awed
by an aura of mystic infallibility surrounding scientific
techniques, experts and the fancy devices employed.
(Citations omitted; quotation marks omitted.) /d.
The Hasan court noted two types of cases where expert
evidence is not subject to the risk that jurors will be overly
swayed by expert evidence and thus unable to exercise their
own independent judgment. The court described one of those
types as “cases in which the method used by the expert was a
matter of physical comparison rather than scientific test or
experiment.” Jd. The Maher court identified State v. Reid,
discussed above, where an expert compared two hair samples
that the jurors were also able to compare to guide them in
their own determination of the similarity between the two, as
an example of this first type of case.
The Hasan court described the case before it as an example of
another type of expert evidence not subject to /rve: “where
established techniques were applied to the solution of novel
problems.” /d. In both such instances, the court explained, the
jury is in a position to weigh the probative value of the
testimony without abandoning common sense and sacrificing
independent judgment to the expert's assertions based on his
special skill or knowledge. Furthermore, where understanding
of the method is accessible to the jury, and not dependent on
familiarity with highly technical or obscure scientific theories,
the expert's qualifications, and the logical bases of his
opinions and conclusions can be effectively challenged by
cross-examination and rebuttal evidence.
Id. Although noting the lack of scientific studies or research
to corroborate the podiatrist's testimony, the court noted that
the jury could assess his testimony adequately on its own: His
conclusions relied on no advanced technology, nor did he
employ scientifically sophisticated methods, the
A39
understanding of which lies beyond the intellectual powers of
the ordinary layperson. The jury was not required to accept
blindly the merit of his conclusions or methods. It had before
it the same sneakers which had been examined by the
pediatrist and, during the course of the trial, had seen the
defendant try them on and walk in them. The value of
Rinaldi's expertise lay in its assistance to the jury in viewing
and evaluating the evidence. Cross-examination exposed the
jury to the lack of literature pertaining to matching shoes to
feet and to the absence of studies or research in this area by
Rinaldi or others. His credentials and methodology were
before the jurors, who were competent to assess the reliability
of the evidence and who could freely accept or reject his conclusions.
Id., at 494.'
'The recent case of Message Center Management v. Shell Oil
Products, 85 Conn.App. 401 (2004), is another example of
evidence with “its roots in scientific principles,” but admissible
without a Porter analysis becausc it is “within the
comprehension of the average juror [ - ] allows the jury to make
its own conclusions based on its independent powers of
observation and physical comparison, and without heavy
reliance upon the testimony of an expert witness, [and therefore]
need not be considered ‘scientific’ in nature for the purposes of
evidentiary admissibility .” /d., at 423, citing Maker v. Quest
Diagnostics, Inc., supra, 269 Conn. at 170-71 n. 22. In the
Message Center case, plaintiff offered expert testimony from its
bookkeeper on a “statistical method of inferring lost profits by
use of past, similar sales statistics by the plaintiff.” 85
Conn.App. 420. The court held that this testimony was not
subject to a Porter analysis:
There can be little uncertainty over the application of the
statistical theory posited by the plaintiff as a measure of
A40
damages. It was relatively simplistic and was well explained by
the plaintiff's witnesses. This court, in fact, fails to see how one
would need a traincd statistician to testify as to its application.
[The bookkeeper's] testimony was “expert” in nature because
she had experience in negotiating contracts and knew how the
wireless communications technology and business worked, an
experience unique from that of a layperson. Thus, her testimony
was reliable, although she was not a statistician and the
testimony was not scientific.
Id., at 423.
Two years carlicr, in Hayes v. Decker, supra, 263 Conn. at 677,
the Supreme Court approved a cardiologist's expert testimony
that “although the discontinuation of the plaintiff's blood
pressure medication did not cause his heart attack, it did cause
his blood pressure to rise and resulted in more tissue damage
than otherwise would have occurred had he not stopped taking
the medication.” /d., at 681. The expert had based his testimony
on gencrally accepted vicws within the scientific community that
“]) an increase in blood pressure causes an increase in the
heart's demand for oxygen; (2) oxygen deprivation to the heart
causes heart tissue death; and (3) increased blood pressure
during a heart attack causes increased heart tissue damage.” /d.,
at 688-89. The court held that
This 1s not the type of “junk science” that Porter is intended to
guard against. Nor are these principles “obscure scientific
theories --- that had the potential to mislead lay jurors awed by
an aura of mystic infallibility surrounding scientific techniques,
experts and the fancy devices employed.” Rather, these are well
established principles of the scientific community to which
Porter simply docs not apply.
(Citation omitted; internal quotation marks omitted.) /d., at 689.
A4l
The analysis of the court in Hasan is entirely consistent with
the reason the court in Porter adopted the judicial role of
gatekeeper for scientific evidence:
[ W Je first note the concern expressed by many authorities that
juries will be overwhelmed by complex scientific evidence
and will give such evidence more weight than it deserves.
[Jjuries mainly have to rely on in-court testimony for their
understanding of scientific evidence; that is, they are largely
dependent upon the presentations of the parties and their
experts. There is evidence, however, that expert presentations
Similarly, in State v. Sherman, 38 Conn.App. 371, 410-11, 662
A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995), the
court concluded, as it later noted in Hayes v. Decker, supra, 263
Conn. at 688, that “ /rye did not apply to expert testimony on
time of death based on generally accepted principles of
pathology and general expertise in ficld of pathology.”
The weight to be accorded Galvin's estimate, however, is
something the jury could determine because direct and cross-
examination revealed that her estimate as to the cffect of the
temperature was a hypothesis and not dependent on established
standards. The jury's understanding of this fact, and of Galvin's
method, was not dependent on familiarity with highly technical
or obscure scientific theories. Thus, because the jury was in a
position to weigh the probative valuc of the testimony without
abandoning common sense and sacrificing independent
judgment, we conclude that the trial court did not abuse its
discretion in admitting Galvin's testimony into evidence.
(Citation omitted; internal quotation marks omitted.) State v.
Sherman, supra, 38 Conn.App. at 411-12.
A42
may often be misleading and, at the same time, that cross-
examination of experts may often be difficult and ineffective
in bringing out flaws in the expert's reasoning.
Although the extent to which juries give scientific evidence
undue deference is uncertain, the potential risk can be greatly
reduced simply by allowing the judge, as the participant in the
judicial process with both the greater access and ability to
gather relevant information, to exclude wholly invalid
scientific testimony altogether. Moreover, a trial judge who
does admit scientific evidence will be in a better position, by
virtue of the knowledge gained during the preliminary
assessment, to conduct the trial and instruct the jury in such
a way as to minimize the risk that jurors will give that
evidence undue deference.
(Citations omitted; quotation marks omitted.) State v. Porter,
supra, 241 Conn. at 70-74. The ultimate purpose of the Porter
gateway admissibility screening is for “trial judges to
minimize, to the extent possible, the confusion and prejudice
that scientific evidence may generate.” /d., at 73, fn. 18.
2. The Porter issue here.
The defendant concedes that Strauss's testimony that a
properly setup ladder will not fall over but for the application
of external force was uncontroversial common sense not
requiring a Porter analysis. (Def.s' Compliance with Order for
Supplemental Briefing, at 2.) ’ They assert, however, that the
“Although they claim that this testimony “was within the jury's
competence to understand without expert evidence,” Defs.'
Motion to Sct Aside, at 2, they are not here challenging the
admission of that testimony.
A43
court improperly admitted Strauss's testimony that the winds
of 11.5 or 18 miles per hour wind would not provide
sufficient force to knock over a properly setup ladder in good
condition. They claim that this testimony “improperly relied
on subjective judgments -~ rather than on objectively
verifiable criteria, and should have been precluded because
Strauss could offer no data or methodology in support of his
conclusions.” (Quotation marks omitted.) (Def.s' Supp. Reply,
at 6.) They thus argue that the court erroneously failed to
exercise the gatekeeper function required for scientific
evidence by Porter to exclude the evidence.
The plaintiff claims, on the other hand, that “the engineering
principles used by Strauss were so basic, fundamental,
rudimentary and dealt with such low level forces on common
objects that there was no need for experimentation and
testing.” (P1.'s Short Reply to Def.s' Supp. Brief) The plaintiff
thus attempts to locate Strauss's testimony within the category
of evidence that does not require a Porter validity assessment.
The question this case raises, therefore, is whether, in the
context of the facts of this case, Strauss's testimony that wind
speeds of 11.5 or 18 miles per hour would not knock over a
properly setup ladder in good condition was “scientific
evidence” subject to a Porter-type validity assessment by the
court. There was extensive evidence that a ladder should not
be used in “high” or “strong” wind ’ and testimony from three
Strauss testified that the American Ladder Institute has adopted
safety standards and requirements for ladders, approved by the
American National Standards Institute (“ANSI”), that
“promulgate what you are supposed to do or not supposed to do
with regard to ladders;” (T.2-27-04, at 20); and establish a
A44
of the four persons on the scene that day supporting a jury
finding that the winds that day were neither high nor strong.”
“standard of care.” Jd., at 44. He told the jury that the federal
and state government “use these standards in order to assist
everybody in understanding what they should do” when using
ladders. ( /d., at 19.) The ANSI ladder standards, introduced into
evidence, require that ladders contain a warning label advising
“Do not use ladder in high winds.”
The ladder on which the plaintiff was standing that day had such
a warning label stating, among other warnings, “Do not use
during high winds or during storm.”
The ladder that fell over onto the plaintiff's ladder also had a
partially obscured warning label stating “Do not use in high
winds «:” The wording next to “winds” was partly covered by
drops of paint; the final word of the sentence was “storm.”
The plaintiff introduced into evidence a summary of OSHA
regulations, which Strauss told the jury were regulations of a
federal agency governing “how people are to conduct business
in the workplace.” /d., at 45. That summary contained as one of
its “general safety rules for all ladders,” the directive: “Never
setup or use a ladder in a high wind «”
Other exhibits said the same thing: “Never use a ladder in a
strong wind.” (Ohio State University Extension Fact Sheet on
“Purchase and Proper Use of Ladders”); “Do not use a ladder in
a strong wind.” (Online Ladder Safety Advice from the Mackay
Company .)
‘The plaine?? testified that he had no problems with the wind
that day. ##e vestified that when he arrived at the defendants’
premises he carried the sign off the truck in which he and
Gagliardi had arrived there to the front of the building. He
A45
Although there was some evidence to the contrary, * the jury
was entitled to find, from the testimony of those three, that the
wind conditions that day could not be described as either high
or strong. The meteorologist, Cox, testifying about the effect
of the wind speeds that day on objects on the ground, said that
“most people wouldn't really even notice a ten mile per hour
wind --- [, which} might move the leaves on trees.” (Cox testi,
23) He stated that winds of 11.5 or 18 miles per hour would
cause small branches on a tree to move a little and light
objects on the ground, such as paper, to move but not sturdy
described the sign that his employer had made for the defendant
Dalco as having dimensions of approximately four fect by
twelve feet and weighing betwecn 20 and 30 pounds. He said it
was somewhat flimsy and hard to control and balance. He
testified that wind can make it difficult to carry a sign by
blowing the sign like a giant shect on a kite but that on this day
he had no trouble carrying the sign from the truck. He said that
the wind conditions that day did not attract his attention. When
asked on cross-cxamination whether he felt the wind that day,
Gagliardi testified that “I don't remember. I don't think I felt the
wind blowing. I am not, no”; Gagliardi testi., 69; and that it was
a “little windy” ( /d., at 113) that day. Luft, a vice-president of
Dalco and partner in 125 Rescarch Parkway, LLC, testified that
it was a nice day and maybe a little breezy.
‘Donahue testified on direct examination by defendants that it
was clear and breezy and he fclt a gust of wind just before the
ladder fell over, but he admitted on cross-cxamination having
said at a deposition that he could not recall wind conditions that
day. Gagliardi admitted having said shortly after the accident
that the wind blew over the ladder, but he explained statement at
trial by saying that he just “assumed that was the way the ladder
went over, just it was just standing there by itself. What clse
would cause it to go over.” Gagliardi testi., 69
A46
or heavy objects on the ground. He said wind of 11.5 m.p.h.
would cause chimney smoke not to go straight up in the air
but to rise at a “bit of an angle”; Cox testi., 103; and that a
wind gust of 18 m.p.h. would make the angle of inclination “a
little bit sharper.” /d., at 59.° Although the court precluded
Strauss from testifying whether sustained wind gusts of 18
m.p.h. are considered “high wind” because the plaintiff had
not disclosed such an opinion from Strauss, Cox testified that
the National Weather Service issues a high wind watch or
high wind warning when “winds in the fifties were expected”;
id., at 6; and high wind advisories when wind of 39 m.p.h. or
more is expected.
Cox testified that with a wind speed of 11.5 miles per hour “if
you looked closely, you'd probably notice some of the Icaves on
trees would move back and forth a little bit. Most objects on the
ground wouldn't be affected by something like that.” (Cox testi.,
55) “It may also move small branches on the tree. It may pick up
light object on the ground, such as paper. And you could also
notice that if you look at a smoke stack, where smoke was
coming out if it, instead of coming straight up, it would tend to
come out at a bit of an angle. It would not be strong cnough to
move sturdy or heavy objects on the ground.” /d., at 103. A wind
gust of 18 miles per hour “would tend to have the same effects,
only to a slightly greater degree. So the leaves would move a
little bit more. The smaller branches would move a little bit
more. It might pick up a little bit more paper. It still wouldn't be
affecting sturdy and heavy objects.” /d., at 102 “If you were
looking closely, the leaves on the trees that may have been
moving a little would move a little bit more. Perhaps some of the
smaller branches even would move a bit. If you were looking at
a chimney that had smoke coming out of it, the angle of that
would become a little bit sharper.” /d., at 59.
A47
Defense counsel extensively cross examined Strauss on the
basis for this testimony. Strauss conceded that he had not
done wind tunnel studies or performed mathematical
calculations as to the forces applied on the ladder that day. He
did not determine the weight of the ladder or the coefficient
of friction of the ladder placed against the building. He did
not test or calculate wind vectors or acceleration or calculate
the degree of force necessary to blow the ladder over. Instead,
he testified that he based his conclusion that those wind
speeds could not blow over a properly setup ladder in good
condition on his years of experience. The defendants claim,
in essence, is that relying on “years of experience” rather than
on specific experimental studies or scientific research
amounts to mere “subjective judgment” rather than a
permissible expert opinion.
Yet the evidence belies the defendants’ claim and shows,
instead, that Strauss's opinion was, similar to that of the
podiatrist in Hasan, the application of established techniques
regularly used by expert-here, the evaluation of the effect of
wind forces on objects on the ground-to a particular situation.
Strauss testified that he was a professional engineer and
accident reconstructionist. The court qualified him as an
expert, without objection, in mechanical and _ forensic
engineering. As an engineer, he had prior experience
assessing ladder accidents and evaluating whether the wind
would overturn an object on the earth's surface or cause it to
close. (Strauss testi., 3-2-04, 141-42.) He testified that he has
examined “a couple of dozen” ladders in this capacity and that
the application of externa} forces to the ladder is a factor he
has had to consider in every single case.
in this case, just as in Hasan, thorough and lengthy cross-
A48
examination put the jury “in the position to weigh the
probative value of [Strauss's] testimony without abandoning
common sense and sacrificing independent judgment to the
expert's assertions based on his special skill or knowledge.”
State v. Hasan, supra, 205 Conn. at 490. Strauss's opinion did
not depend on highly technical or obscure scientific theories;
nor was it the infamous “junk science.” The defendant
extensively challenged the logical bases of his opinions and
conclusions in rigorous and lengthy cross-examination. Cross
examination exposed to the jury that he did not conduct any
scientific or experimental tests to arrive at his opinion. “His
conclusions relied on no advanced technology, nor did he
employ scientifically sophisticated methods, the
understanding of which lies beyond the intellectual powers of
the ordinary layperson.” /d., at 494.
Strauss's opinion that 11.5 or 18 m.p.h. winds would not
provide sufficient external force to knock over a properly
setup ladder in good condition also coincided with the other
evidence before the jury about wind and the use of ladders-
Cox's testimony describing the effect of such winds on objects
on the earth's surface, the use of the term “high wind” by the
National Weather Service for winds greater than 39 m.p.h.,
and the various documents and warning labels on the two
ladders specifying not to use ladders in high or strong winds.’
’On direct examination Strauss said that winds coming from the
side pose the most danger to ladders. Cox testified that the wind
accclerates when it flows around an object in its path. Pursuing
these two points together, the defense on cross examination
asked “So, if | understand correctly the wind was blowing right
at these ladders, isn't that right?” (Strauss testi., 3/2/04, 161.
Strauss replied that “That is not true,” id., because of a scientific
A49
principle known as the Venturi effect, which meant that the
particular ladders set up at the Dalco building that day would not
suffer the full force of ambient wind speeds that day because of
where they were sct up. The wind that day came from the
southwest. The ladders were set up at the northeast corner of the building.
We are talking what is called fluid mechanics and air is even
though it is a gas it acts like a fluid. What will happen ts that it
comes towards the building and then it hits the wall and then
comes over the building and at the same time the air will find a
way around the building and join back on both sides of the
building. What happens on this side of the building [referring to
the northwest side where the ladders were located] is there ts
less pressure on this side of the building particularly since these
ladders except for only [one] foot [the portion of the ladder
extending above the roof linc] are directly below the main path
of the wind. In other words, these ladders are shielded from the wind.
Id., at 161
Thus, according to Strauss, the Venturi effect is a principle
explaining the flow of liquids-and the wind functions as a liquid
in this respect-around objects. When the wind encounters a
building, it accelerates in its flow around the building. After
separating to flow around the object, the winds rejoin the
gencral air mass at a location on the other side of the objcct that
Strauss testified is called the “confluence point:” but the
position of the two ladders near the building put them out of the
“main path of the wind. “The principle is that when you
constrict flow, in any manner, that the fluid, in this case the air,
will speed up -- [T]he object that this fluid is going over, creates
a shadow (Strauss testi., 3/3/04, 157-48.) He explained that this
“shadow area” is an area where the wind velocity is at a slower
speed because shiclded from the wind. He testified that the
ladders, next to the northeast corner of the building, were in the
A50
With ample evidence that a properly setup ladder in good
condition will not topple from winds unless they are high or
strong, Cox's testimony describing the effect of wind at 11.5
or 18 miles per hour, coupled with the testimony of fact
witnesses about the wind that day, would have been sufficient
for the jury to find that the wind speeds that day would not
have toppled the ladder if it had been in good condition and
properly set up.
The court therefore concludes that Strauss's opinion testimony
did not require a preliminary gatekeeper Porter-type validity
assessment. The opinion testimony he provided here
regarding the effect of certain wind speeds on a properly setup
ladder in good condition was supported by other evidence,
thoroughly tested on cross-examination, and not the sort of
scientific evidence that would place the jury in the position of
“abandoning common sense and sacrificing independent
judgment to the expert's assertions based on his special skill
or knowledge ---” Maher v. Quest Diagnostics, Inc., supra,
269 Conn. at 170-71, fn. 12.
> Defendants’ claim that Strauss's testimony was
“hypothetical” and speculative
In their memorandum in support of the motion to set aside the
verdict, the defendants also claim that the court improperly
allowed the plaintiff to try portions of his case “in the
hypothetical -- because no foundation was laid for this
evidence.” Jd., at 8-9. They use this argument to challenge
Strauss's testimony that a ladder will not fall but for one of
“shadow area” of the wind and hence the wind velocity there
would have been less than in the “general air mass.”
ASI
three things occurring independently or conjointly-improper
setup, defect, or external force.
Because no facts were offered to establish that the ladder was
set up incorrectly and because Strauss testified that the ladder
was capable of supporting its own weight and probably that
of a human being, there was no factual support ever laid for
the hypothetical so that its use was misleading and all the
evidence that proceeded from it should have been stricken.
Id., at 9.
Such evidence, however, was a legitimate part of the
plaintiff's case to proof causation circumstantially. For
example, although there was no direct evidence that the
ladder was set up improperly-indeed, no one there that day
admitted setting it up, the testimony of Strauss and Cox
together provided a basis for inferring negligence on the
defendants’ part. Strauss testified that the ladder, though
defectively repaired, could stand on its own. Cox described
the effect that winds of 11.5 and 18 m.p.h. would have on
objects on the earth's surface. Their testimony was sufficient
to infer that the wind that day would not have blown that
ladder over if set up properly and in good condition.
B. Cox’s Tesimony
Meteorologist Robert Cox testified that the National Weather
Service measures wind speed at the Meriden airport and
reports two types of wind speed data: (1) “sustained wind,”
defined as ‘‘a measured wind speed for an interval of time that
exceeds two minutes,” and (ii) “wind gusts,” defined as wind
speed lasting five seconds or more. He testified without
A52
objection that the highest sustained wind speed reported at the
Meriden airport on the day the plaintiff was injured was 11.5
miles per hour, that this was the sustained wind speed at both
11:45 a.m. and 12:45 p.m. at the airport that day, and that the
highest wind gust lasting at least five seconds at the airport
that day measured 18 miles per hour at 12:15 p.m.
(approximately 30 minutes before plaintiff fell from the
ladder). When asked “with a reasonable degree of
meteorological probability, whether [the airport data) is
indicative of the weather in the Town of Meriden in its
entirety?” Cox testified that “I believe that these records are
representative of the general area, including the entire Town
of Meriden.” The plaintiff also introduced into evidence
without objection a letter from Cox stating that the average
wind speed for the wind was “about 6-12 miles per hour” and
“(t]he peak wind gust that day (sustained for 5 seconds) was
18 miles per hour.” In the letter, Cox attested that these
readings were “a true and accurate account of the weather
conditions in Meriden, Connecticut, within a reasonable
degree of scientific certainty, on the day in question.”
(PI.Ex.42.) The defendants neither objected to nor moved any
of this testimony.*
‘The defendants' principal objection at tria! to Cox's testimony
pertained to his testimony about the effect of these wind speeds
on objects on the ground. The plaintiff stipulated before trial
that Cox would not offer direct evidence of causation. At trial
defendants then objected to evidence about the effect of wind
speeds on objects on the carth's surface because they claimed
that such evidence was “direct evidence of causation.” The court
had deferred until trial ruling on a defense motion in liminc to
preclude testimony from Cox “as it pertains to the impact and
effect of various wind speeds on the ground.” The basis for that
motion was that such testimony was “beyond the scope of his
A53
The defendants’ motion to set aside now claims that this
testimony from Cox was “unfounded, unreliable, irrelevant
and inadmissible and so not an aid to the trier of fact ---”
(Def's Motion to Set Aside, at 2). More particularly, their
motion claims that the data on which his evidence depended
was for scientific value only for the site where the
instrumentation used to collect the data was maintained, this
was some distance from the site of the accident, and the
foundation for his “opinion” that the wind as measured at the
site of the instrumentation was the same throughout Meriden
was entirely unseated by his evidence on cross-examination
that winds do not follow geopolitical lines, that he did not
know the compass direction of the site from the location
where his data was collected; that winds can increase in force
and speed as they come into contact with other winds and
objects on the earth's surface and also move at higher speeds
at higher elevations, and that he had no knowledge of the
elevations either of the location of the instrument readings or
of the site of the accident ---
Id., at 3.
expertise as a metcorologist” and “not based upon scientific,
technical or specialized knowledge.” (Mem. In Support of
Motion in Limine to Preclude Testi. Of Plaintiff's Expert
Witness Robert B. Cox, 1.) They also claimed inadequate notice
that Cox would offer such testimony at tria] because of
testimony he gave in his deposition. At trial the court held that
testimony as to the effect of wind spceds was properly disclosed
in advance of trial, outside the ken of the jury, and a proper
subject for expert testimony.
A54
This claim was not raised to-the court at trial. The defendants
did not object to the exhibit that contained Cox's letter
attesting that wind speed readings at the Meriden airport
accurately represented weather conditions in the City of
Meriden that day nor object to or move to strike his testimony
to that effect. They thus never presented the court with the
issue that they now argue as a basis for setting aside the
verdict. Although rigorous cross-examination certainly
challenged that assertion, the evidence was validly before the
jury and properly a subject on which Strauss could be
questioned.
a Res Ipsa Loquitur
“The doctrine of res ipsa loquitur applies only when two
prerequisites are satisfied. First, the situation, condition or
apparatus causing the injury must be such that in the ordinary
course of events no injury would have occurred unless
someone had been negligent. Second, at the time of the injury,
both inspection and operation must have been in the control
of the party charged with neglect.” Barretta v. Otis Elevator
Co., 242 Conn. 169, 173-74, 698 A.2d 810 (1997).
Strauss's testimony that ladders, when properly set up and in
good condition, are stable and will not fall over except upon
application of sufficient external force provided part of the
basis, in conjunction with other evidence, for inferring that
defendants had been negligent. Plaintiff's evidence on the first
component of res ipsa was that the wind that day would not
have caused a properly setup ladder in good condition to fall
over. This evidence served to negate nonhuman
instrumentality as the cause of plaintiff's injuries. On the
second clement of res ipsa loquitur, control over inspection
AS55
and operation, the plaintiff offered evidence that the ladder
had long been in the control of Dalco, that Dalco had
improperly tried to repair a defective side rail with a missing
diagonal brace by using a perforated angle iron, that the
ladder as repaired was defective and violated the directive of
ANSI standards not to attempt repairs to defective side rails,
that the defect was visible and obvious to all, that this defect
by itself would not cause the ladder to topple but might lessen
the ability of the ladder to remain stable upon application of
external force, that Luft and/or Donahue had been the ones
who carried the ladder out from the back and set it against the
wall, that Luft and/or Donahue had been standing near the
ladder when it fell, and that neither plaintiff nor his boss had
carried out that ladder, set it up, or been in control of the ladder.
Since the jury could have found that both setup and the
condition of the ladder had been under Dalco's control and
that nonhuman factors were not the sole cause for the ladder
to fall, the jury had evidence providing the basis for a res ipsa
loquitur instruction. The court thus submitted the case on a
theory of res ipsa loquitur, charging the jury that if it found
that the ladder would not have fallen over that day but for
negligence and that inspection and operation of the ladder had
been in control of a defendant, then it could draw an inference
of negligence on that defendant's part. The defendants’ motion
to set aside the verdict challenges the res ipsa loquitur
instruction on several grounds-that the accident could have
occurred free of their negligence, plaintiff presented evidence
of specific negligence that would preclude a res ipsa
instruction, they did not have control over the ladder that
caused plaintiff's injuries, and plaintiff failed to conduct a
sufficient reasonable investigation.
AS6
The following additional facts are relevant to addressing this
aspect of their motion to set aside the verdict. When the
plaintiff and Gagliardi first arrived at Dalco that day to install
the sign, Prentice first carried the sign to the front of the
building. They next found Luft, who showed them where
Dalco wanted the sign placed on the building. Gagliardi and
the plaintiff testified that then they realized that the ladders
they had brought would not reach high enough on the building
to install the sign where Dalco wanted it. They walked to the
rear of the building, where Luft offered a Dalco ladder for
them to use. ’ Those three, plus, a 17-year-old Dalco
apprentice, Keith Donahue, were the only persons at
defendants’ premises that day. After some discussion, all four
walked to the front of the building. All four persons testified
at trial that a Dalco ladder was carried from the back to the
front and that this ladder later fell over and knocked over a
ladder on which plaintiff was standing. All four also agreed
that both ladders were placed against the building. At trial,
however, cach person denied being the one who carried out
the ladder that knocked over the plaintiff's ladder or set that
ladder up against the building. The plaintiff testified that Luft
carried out the other ladder and set it up. Since these four
*There were two extension ladders at the front of the building
when the plaintiff was injured. All four persons there that day
agrecd that one of those ladders was the one with defectively
repaired side rail. All four agree that this is the ladder that fell
first. The testimony was not unanimous about the origin of the
other ladder, the one on which the plaintiff was standing-
Gagliardi testified that this was one of his company's ladders and
that Dalco only supplied one ladder. The other three testified
that Dalco supplied both ladders. But that factual disagreement
had no significance for the outcome of this case.
A57
were the only people there, one of the four obviously carried
the Dalco ladder from the back to the front and one of them
set it up against the building. If the jury found the testimony
of the plaintiff and Gagliardi credible that neither one of them
had carried out or set up that ladder and/or the plaintiff's
testimony that Luft carried the ladder out and set it up '"""'°
'’Gagliardi and the plaintiff both testified that it takes two
people to install a sign. They also testified that Gagliardi had
initially, when they arrived at the building, planned to assist in
the sign installation and thus they brought two step ladders from
their truck to the front of the building right after arriving. They
testified that when they thereafter met Luft to find out where on
the building to install the sign, he showed them a spot higher up
than their step ladders would reach. They both also testified that
Gagliardi never climbs on extension ladders and that, once they
found out that the step ladders would not work, Gagliardi told
Luft that they would have to come back later to install the sign
using a truck: Both plaintiff and Gagliardi also testified that,
afier deciding not to install the sign that day, Gagliardi told the
plaintiff to measure and mark on the building where the sign
would go so that when they returned with a truck they would
know whcre to install the sign. According to them, they only
needed one ladder for the plaintiff to do that. -
There was thus some reason for the jury to credit the testimony
from the plaintiff and Gagliardi that they did not bring out or set
up the second ladder. Donahue testified that Luft's father, the
chief principal in Dalco, had said earlier that day that he wanted
the sign installed that day and that was the reason he and Luft
were there that day. According to the plaintiff, after Gagliardi
told Luft their ladders were too short and that he wouldn't go up
a regular extension ladder, Luft offered to help them install the
sign and brought out the second ladder. The jury might have
inferred that Luft, in a desire to accede to his father's expressed
A58 =—
(and disbelieved the denials of Luft and Donahue that neither
Luft nor Donahue had done so), the jury could reasonably
have inferred that Luft or Donahue had carried that ladder out
and set it up against the building.
Plaintiff's expert witness Melvin Strauss testified that he
could not identify the cause of the accident. Strauss testified
that, without information about the setup of that ladder that
day, he could not give an expert opinion on what caused the
ladder to fall over. An improperly-setup or defective ladder,
he testified, might require less force to be toppled than a
properly setup ladder in good condition. He also testified that
the ladder that fell over onto plaintiff's ladder was defective,
because of an improperly repaired side rail, that he believed
this defect contributed to the cause of the accident, but could
not so testify to a reasonable degree of engineering certainty.
He also testified that he believed the setup probably
contributed to the fall, but he could not say how because of
lack of information about the actual setup. He also ruled out
the known winds that day having sufficient force to knock
over a properly setup ladder in good condition.
3 Defendants’ argument that plaintiff presented
evidence of specific negligence that presented
a reasonable explanation for the accident other
than their negligence.
“Res ipsa loquitur instructions are appropriate when a
plaintiff cannot prove with direct evidence the proximate
desire to have the sign installed that day, brought the second
ladder out and set it up against the building.
A59
cause of an injury, and has shown that the only reasonable
explanation for the incident is that the injury must be
attributable to the defendant's negligence.” Pineau v. Home
Depot, Inc., 45 Conn.App. 248, 257 (1997). The defendants
make two related arguments that a res ipsa instruction was
inappropriate because of the opinion testimony from
- plaintiff's engineering expert Melvin Strauss that the ladder
that fell over onto plaintiff's ladder was defective because of
an improperly repaired side rail. They point out that Strauss
testified that the repairs to the ladder violated OSHA
regulations that incorporate the ladder manufacturers' ANSI
standards and that such evidence is “direct evidence of a
breach of the standard of care.” (Def.'s Mem. in support of
Motion to Set Aside, 7.) They thus maintain that this evidence
offered direct evidence of specific negligence on their part.
Similarly, they also argue that this evidence offered a
reasonable explanation for the plaintiff's injuries other than
their negligence: “of the three potential causes of a ladder's
failing posted by Strauss, the only cause proved at trial was
that the external force of the wind acting on the ladder could
have been the sole cause of its fall ---" /d., at 12. But the
evidence on this point was not so neat as they claim. In fact,
Strauss gave evidence supporting plaintiff on direct
examination and supporting defendants on _ cross
examination'' '*''. The questions posed to him on cross
''Strauss testified on direct examination that winds of 11.5 or 18
miles per hour would not provide sufficient force to blow over a
properly setup ladder in good condition. During a lengthy and
rigorous cross-cxamination, however, Strauss said that he could
not preclude the possibility that winds of such speed could
knock over a properly setup ladder in good condition. On
A60
examination, however, often involved double negatives or
were convoluted, whereas those on direct examination tended
to be simple and direct and there was ample other evidence
supporting his testimony on direct. Here the evidence, viewed
most favorably to the plaintiff, did not show direct causation
and allowed the jury to find that the only reasonable
explanation for plaintiff's injuries was negligence of the
defendant.
The defendants’ position seems to be that if the evidence,
viewed most favorably to the defendants, shows direct
causation or reasonable causes for the accident other than
their negligence, then a res ipsa instruction 1s improper.
Neither of the cases they cite for this proposition, however,
supports their claim. In Barretta v. Otis Elevator Company,
242 Conn. 169, 698 A.2d 810 (1997), the plaintiff suffered
injuries when an escalator she was riding stopped suddenly.
A professional engineer testified that the escalator probably
stopped because of a loose wire or a “ ‘gremlin,’ a generic
term for a minor malfunction that disrupts the operation of a
mechanical system and that can be very difficult to trace.” /d.
Though negligence requires, at a minimum, that a defendant
knew or should have known of the dangerous condition, there
was no evidence that the defendant could have discovered
either possible cause of the accident by a safety inspection or
through reasonable maintenance. The court affirmed the trial
court's refusal to charge on res ipsa because “[t]he doctrine of
res ipsa loquitur does not extend to situations in which the
plaintiffs own evidence provides no basis on which to
redirect examination, he then again repeated what he said on
original direct examination, and on re-cross examination
repeated what he said previously on cross examination.
Aél
conclude that the defendan{_has been negligent and, in fact,
suggests as the only possible cause of the accident factual
scenarios that do not arise from the defendant's negligence.”
Id., at 176. As the court explained, testimony of the plaintiff's
expert, which was the only causation evidence presented at
trial, specifically indicated that, in general, escalators such as
the defendant's may stop for reasons unrelated to anyone's
negligence, failed to establish any possibility that the
plaintiff's injuries were caused by the defendant's negligence,
and specifically indicated that the escalator stopped for
reasons completely divorced from any negligence on the
defendant's part --- When, as in the present case, evidence on
the question of causation is presented at trial, and a// such
evidence affirmatively indicates that the accident inquestion
would, in fact, have happened in the absence of anyone's
negligence, an instruction on the doctrine of res ipsa loquitur
is inappropriate.
(Emphasis added.) /d., at 177-78. In Barretta, there was thus
no evidence linking the probable causes of the accident to
negligence of the defendant.
In Boretti v. Panacea Co., 67 Conn.App. 223, 786 A.2d 1164
(2001), the plaintiff suffered injuries after she slipped and fell
in an icy parking lot owned by the defendants. The court
upheld the trial court's refusal to instruct on res ipsa loquitur
because “[v]iewing the evidence in the light most favorable
to supporting the plaintiffs charge, we conclude that the
plaintiff's injury could have occurred in the absence of
negligence. In this case, the plaintiff could have fallen while
exiting her motor vehicle for a variety of reasons, without any
negligence on the part of the defendants.” /d., at 230. The
court specifically noted that a trial court should charge on res
A62
ipsa when requested by the plaintiff and when the evidence,
viewed most favorably to the plaintiff, supports such an instruction:
A. trial court should instruct the jury in accordance with a
party's request to charge if the proposed instructions are
reasonably supported by the evidence --- We therefore review
the evidence presented at trial in the light most favorable to
supporting the plaintiff's proposed charge.
Id., at 229.
Those two cases are quite different from the present one.
Unlike Barretta v. Otis Elevator Company, all the evidence
on causation did not indicate that the ladder would have fallen
anyway. Rather, the evidence here was mixed and ther
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