JANET MCCALL FLEMING, ADMINISTRATRIX (ESTATE OF THOMAS C. FLEMING), ET AL. v. GREGORY DIONISIO ET AL.
(SC 19440)
Supreme Court of Connecticut
Argued April 28—officially released July 14, 2015
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, and Espinosa, Js.*
Joseph M. Busher, Jr., for the appellant (named defendant). Jeffrey M. Cooper, for the appellees (plaintiffs).
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Opinion
ROGERS, C. J. The primary issue in this appeal requires us to resolve whether expert testimony proffered at trial regarding the “crash phase” of withdrawal from stimulant drug use was supported by sufficient scientific methodology to satisfy the standard set forth in State v. Porter, 241 Conn. 57, 80-90, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). The plaintiff, Janet McCall Fleming, brought this action as the administratrix of the estate of Thomas C. Fleming (decedent) and in her individual capacity,1 seeking to recover damages under six allegations, three on behalf of the decedent and three relating to the plaintiff‘s own loss of consortium, for injuries resulting in the decedent‘s death in violation of
We begin with a brief overview of the facts, which the jury reasonably could have found, and the procedural history of this case. On the evening of July 3 and into the early morning of July 4, 2009, the defendant consumed approximately six to eight beers, as well as shots of hard alcohol, at his home in Wilton. Three hours after the defendant stopped drinking, at approximately 9 a.m. on Saturday, July 4, he drove approximately twenty minutes to a restaurant in Stamford where he was employed, then worked until approximately midnight on the morning of July 5. Thereafter, between midnight and 3 a.m., the defendant returned home and drank six to eight more beers. The defendant could not recall his actions between 3 a.m. and 7:30 a.m. on July 5 and his first memory after 3 a.m. was awakening in the driver‘s seat of his father‘s vehicle at approximately 7:30 a.m.
Just prior to awakening, the defendant was operating his father‘s motor vehicle on a roadway approximately two miles from his home, traveling toward the restaurant where he worked. The decedent was operating his motorcycle on the same roadway, traveling in the opposite direction toward the defendant. The defendant‘s vehicle crossed the center line of the roadway and collided with the decedent‘s motorcycle, and the decedent died as a result of this collision.
Shortly after the collision, Eva Zimnoch, a police officer for the Wilton Police Department, was called to the scene and spoke to the defendant, whom she observed to have an odor of alcohol and whose pupils she noticed “were very restricted.” After Zimnoch spoke with the defendant, he was transported to Norwalk Hospital (hospital). Blood test results indicated
While at the hospital, the defendant, upon learning that the decedent had died as a result of the collision, began an internal deliberation of whether he should drink his own urine, which he had excreted into a bedpan and which was designated to be used for a toxicology screening. Around the same time, a nurse entered the defendant‘s hospital room, observed the defendant begin to drink from the bedpan, and removed the bedpan from the defendant‘s control. Shortly thereafter, the defendant was to be discharged from the hospital, but he was found to be “difficult to arouse” for discharge instructions. Additional facts and procedural history will be set forth as necessary.
I
The defendant‘s first claim on appeal is that the trial court should have precluded the plaintiff‘s expert testimony because it was comprised of scientific evidence that fell short of the requisite Porter standards. We disagree.
The following additional procedural history and facts are relevant to this claim. At trial, the jury was made aware that the defendant had submitted to a urine screen following the collision, which indicated a presence of illicit stimulant drugs and metabolites for stimulant drugs. The jury also learned that the defendant had ingested stimulant drugs in the early morning hours of July 4, 2009. During the trial, the court held a Porter-type hearing, at the defendant‘s request, to determine the admissibility of the plaintiff‘s expert testimony concerning how the defendant‘s consumption of an unknown quantity of illicit drugs could have affected his state of mind at the time of the collision. Specifically, the plaintiff‘s expert, Michael J. McCabe, Jr., a board certified toxicologist;10 proposed to testify that the defendant was in a “crash phase” of withdrawal from ecstasy and cocaine at the time of the collision and that the crash phase was a contributing factor in causing the collision. The defendant challenged the scientific methodology offered in support of McCabe‘s conclusions.
At the conclusion of the Porter hearing, the trial court concluded that McCabe‘s testimony specifically referring to the defendant‘s cocaine and ecstasy use two days prior to the collision was prejudicial. The court, however, allowed testimony explaining how consumption of illicit stimulant drugs could ultimately result in a crash phase as being relevant to the issue of whether the defendant had acted recklessly. The court explained that “[t]he stimulant issue is directly related to the crash. To the extent that the defendant brought [this] upon himself . . . according to the expert and according to the plaintiff, this diminished state of awareness and attentiveness and proneness to fatigue and falling asleep and the like . . . is relevant to how and why the accident occurred for purposes of common-law recklessness.”
On appeal, the defendant asserts that no reliable methodology supported McCabe‘s opinion that ingestion of unknown quantities of stimulant drugs two days prior to a collision could result in a crash phase that was a contributing factor to the collision. The defendant claims that the scholarly articles that McCabe relied on were incomplete, irrelevant, and inapposite. The defendant further claims that McCabe‘s methodology was not generally accepted in the relevant scientific community. In addition, the defendant argues that the underlying methodology of McCabe‘s testimony did not “fit” the present case because McCabe could not say
We begin with our standard of review. We review a trial court‘s decision to admit expert testimony for an abuse of discretion. Weaver v. McKnight, 313 Conn. 393, 405, 97 A.3d 920 (2014). “We afford our trial courts wide discretion in determining whether to admit expert testimony and, unless the trial court‘s decision is unreasonable, made on untenable grounds . . . or involves a clear misconception of the law, we will not disturb its decision. . . . Although we afford trial courts significant discretion, [w]here it clearly appears that an expert witness is qualified to give an opinion, the exclusion of his testimony may be found to be [an abuse of discretion]. . . . To the extent the trial court makes factual findings to support its decision, we will accept those findings unless they are clearly improper. . . . If we determine that a court acted improperly with respect to the admissibility of expert testimony, we will reverse the trial court‘s judgment and grant a new trial only if the impropriety was harmful to the appealing party.” (Citations omitted; internal quotation marks omitted.) Id.; see also Conn. Code Evid. § 7-2.
We next set forth the Porter factors that lie at the heart of the defendant‘s claim.6 “In Porter, we 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 testimony based on scientific evidence should be subjected to a flexible test to determine the reliability of methods used to reach a
Id., 232.” (Internal quotation marks omitted.) Weaver v. McKnight, supra, 313 Conn. 413-14.
“Additionally, we recognized in Porter that, [t]he actual operation of each [Porter] factor, as is the determination of which factors should be considered at all, depends greatly on the specific context of each case in which each particular [threshold admissibility] analysis is conducted. . . . There is, however, a critical postulate that underlies the Porter factors and indeed underlies the entire Porter analysis: 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 is 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.” (Citation omitted; internal quotation marks omitted.) Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 180-81, 847 A.2d 978 (2004).
Returning to the present case, we conclude that the trial court properly performed its gatekeeping function and that the decision to allow limited expert testimony regarding the crash phase that follows illicit stimulant drug use was not an abuse of discretion. In reaching this conclusion, we are guided by the noncomprehensive list of factors for reliability and “fit” set forth in State v. Porter, supra, 241 Conn. 80–90. While these factors are not a checklist that the trial court is required to check off by calculated sequence; see id., 75–76; we are nonetheless persuaded that the evidence analyzed under these factors is adequate to support the trial court‘s decision. First, with regard to a general acceptance of the methodology, the trial court reasonably could have found that the theory of a crash phase following the consumption of
described methods to minimize these errors,9 which McCabe employed in his assessment of this case. Again, we note that the trial court had wide discretion to weigh this factor next to others and we find no abuse of that discretion.
McCabe‘s testimony also comports with additional reliability factors of Porter.10
With regard to whether McCabe could assist the jury by presenting and explaining the data and methodology underlying his testimony, McCabe testified extensively at trial regarding toxicological studies of the effects of alcohol and stimulant drugs on human behavior as applied to operating a motor vehicle.11 We therefore conclude that McCabe‘s testimony satisfied this Porter factor.
Finally, with regard to whether the methodology was developed solely for purposes of litigation, studies addressing the effects of stimulant drug use and alcohol consumption on driving clearly are relevant to societal mores and public policy considerations generally. There is no indication that the research cited by McCabe was conducted for the purpose of litigation rather than for the general advancement of knowledge in this area.
We next consider the second step of Porter. With regard to whether the scientific evidence “fit” the present case, we conclude that the methodology that McCabe introduced here fit his conclusion that the defendant was experiencing a crash phase at the time of the collision. The defendant contends that the methodology could not fit the particularities of this case because McCabe based his opinion on an unquantifiable dose of drugs taken at an unspecified time, whereas the reports that McCabe cited all relied upon specific dosage and time markers. We disagree. McCabe explained that he minimized the risk of error by employing recommendations from the articles on which he relied. Specifically, McCabe testified that he based his opinion of the defendant‘s crash phase in part on the defendant‘s urine and blood screen results, which showed that the defendant‘s blood alcohol level was above the legal limit two hours after the collision and that his urine tested positive for illicit stimulant drugs and metabolites. McCabe further relied on the defendant‘s deposition in which he described his drug and alcohol consumption, work hours, and lack of sleep. McCabe also had notice that
II
We further conclude that the defendant‘s remaining claims were properly decided by the trial court and are without merit. The trial court‘s decision to admit or preclude evidence, and its determination as to whether evidence is relevant and probative, are subject to review for an abuse of discretion. See Reville v. Reville, 312 Conn. 428, 461, 93 A.3d 1076 (2014); State v. Saucier, 283 Conn. 207, 218-19, 926 A.2d 633 (2007); Conn. Code Evid. § 4-1.
The defendant claims that the trial court improperly refused to admit into evidence the particularities of the defendant‘s criminal probation arising from the collision,12 which he argues are relevant to mitigate against an award of
The defendant next claims that the trial court improperly admitted evidence of his conduct and his condition in the hospital following the accident.13 The defendant argues that this evidence was unduly prejudicial to him, and that its
With regard to the defendant‘s attempt to drink his own urine, “[s]ubsequent conduct may, in many cases, be given in evidence to affect or to show the character of prior acts or intentions. . . . Conduct of a litigant which is plainly reprehensible, such as the intimidation of a witness or flight from the scene of an accident, has commonly been admitted to show consciousness of a doubtful cause.” (Citation omitted; internal quotation marks omitted.) Batick v. Seymour, 186 Conn. 632, 636, 443 A.2d 471 (1982). In addition, the defendant‘s inappropriate speech and difficulty in being roused were relevant to whether he was still intoxicated or fatigued. See Reville v. Reville, supra, 312 Conn. 461. We conclude that the evidence was clearly relevant and that its probative value was not outweighed by its prejudicial impact, especially where the defendant was given an opportunity to explain his actions.
The defendant‘s final claim is that the trial court improperly refused to strike the plaintiff‘s testimony regarding her future plans following the decedent‘s death because it was irrelevant and prejudicial and described the plaintiff‘s intentions for damages she expected to receive from this case.14 We disagree. The plaintiff‘s response did not specifically reference any potential award she might receive from the resolution of this case, and her answers were generically appropriate. In any event, the trial court, “in an excess of caution,” gave a curative instruction to the jury to disregard the plaintiff‘s future plans when they considered whether to award her damages.
The judgment is affirmed.
In this opinion the other justices concurred.
* This case was originally scheduled to be argued before a panel of this court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald and Espinosa. Although Chief Justice Rogers was not present when the case was argued before the court, she read the briefs and appendices and listened to a recording of the oral argument prior to participating in this decision.