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Friday, May 14, 2010

It Was Wrong to Preclude Plaintiff's Premises Security Expert

Returning to the Supreme Court for the second time, that court held that the plaintiff’s premises security expert should not have been precluded from testifying in this case involving railroad security.  Sullivan v. Metro-North Commuter Railroad, 292 Conn. 150 (2009).  The preclusion of the expert’s testimony was harmful to the plaintiff’s case because he was plaintiff’s only witness to discuss the crucial issue of foreseeability – an issue that alone dictated the outcome of the case.


  1. On an evening in August of 1992, the plaintiff’s decedent, James P. Sullivan, was shot and killed by Larone Hines in a stairway leading up from Monroe Street to the westbound platform of the South Norwalk train station.
  2. Earlier that night, Sullivan was a passenger on one of the defendant’s trains. He arrived at the station about 10:40 pm, went to a few bars and then had a brief encounter with Hines and a group of men outside a local nightclub.
  3. The encounter became hostile, Sullivan walked away and Hines followed. Sullivan ran into the stairway, but Hines followed him and shot Sullivan there.
  4. The South Norwalk train station is located in a relatively high crime area of Norwalk.
  5. The state owns the stairway where the incident occurred.
  6. The department of transportation has a service agreement with the Metropolitan Transportation Authority, the parent organization of the defendant for commuter rail service in Connecticut.
  7. At trial, the plaintiff sought to introduce the testimony of John Kennish, a premises security expert, to testify as to the lack of security at the South Norwalk train station, as well as “those measures that the defendant could and should have taken to protect the public.” The plaintiff also intended to have Kennish testify that the fatal attack of the decedent was foreseeable, given the overall lack of security at the train station in conjunction with the high crime rate in the surrounding area.
  8. The trial court precluded Kennish’s testimony on the ground that he was not qualified to render an opinion on railroad security because he was a premises security expert.
  9. The plaintiff appealed and the Appellate Court affirmed the decision of the trial court.
  10. The Supreme Court concluded that the Appellate Court improperly affirmed the trial court’s preclusion of the plaintiff’s expert witness, and that such preclusion was harmful.


The test for the admission of expert testimony is as follows.  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. In other words, in order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. The true test of the admissibility of expert testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. Implicit in this standard is the requirement that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.

Once it decided that the plaintiff’s expert should not have been precluded, the Supreme Court next had to determine if the error of the trial court was harmful.  The harmless impropriety standard in a civil case is whether the improper ruling would likely affect the result.  An evidentiary impropriety in a civil case is harmless only if the reviewing court has a fair assurance that it did not affect the jury's verdict.  A determination of harm requires the court to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.  Thus, the court’s analysis includes a review of: 1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; 2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and, 3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony.  The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence.

Because Kennish was plaintiff’s only expert on the issue of foreseeability, a crucial issue in this case that alone dictated its outcome, the court found that it was harmful error for the trial court to have precluded his testimony.

posted by Carey Reilly at 1:44 PM

Wednesday, May 12, 2010

How Much Causation Evidence is Enough?

After a century of confusing, conflicting and ambiguous precedent, the Appellate Court tried to answer the question of how much evidence of causation is enough to take it out of the realm of speculation and conjecture.  In Burton v. Stamford, 115 Conn. App. 47, cert. denied, 293 Conn. 912 (2009), the court held that , absent an evidentiary basis for a finding of a negligent act that more likely than not caused a plaintiff’s injuries, the question of a defendant’s negligence is too conjectural and uncertain to warrant submission to a jury.  The facts in Burton were as follows:


  1. On October 11, 2002, the plaintiff, Godfrey Burton, was driving east on Main Street in Stamford.
  2. James Grabinski, a Stamford police officer, was driving a Stamford police car west on Main Street. He was responding to a “code two call” on Clinton Avenue. He had his lights and siren activated.
  3. As Grabinski approached the intersection of Main Street and Clinton Avenue, he saw Burton’s vehicle stopped and facing east in front of a Jamaican restaurant.
  4. Grabinski turned left in front of Burton’s car, he claimed not to have seen Burton’s car until “it was right in front of him.”
  5. The vehicles collided nearly head on, in the eastbound lane of travel.
  6. Burton had no memory of the collision. He was taken to Stamford Hospital where a neurologist diagnosed him with a spinal cord injury between C-3 and C-6, causing cervical myelopathy. He further suffered a traumatic brain injury.
  7. A civil action was filed. In it the plaintiff alleged that Stamford, pursuant to General Statues § 7-465, negligently caused the accident.
  8. The trial of this case started in November, 2005.
  9. Following the close of plaintiff’s case-in-chief, the defendant moved for a directed verdict on the grounds of governmental immunity and evidential insufficiency.
  10. The trial court granted the defendant's motion on the basis that the evidence presented was insufficient to establish as a matter or law that Grabinski's negligence caused the plaitniff's injuries, citing Winn v. Posades, 281 Conn. 50 (2007).


(Note that, in directing a verdict in the defendant's favor, the court found that sufficient evidence existed for the jury reasonably to find that Grabinski was negligent in that he failed (1) "[to] keep a reasonable lookout for traffic in the moments prior to the collision" and (2) "to take evasive action to avoid a collision despite actual knowledge that a collision was imminent." Those findings were not contested by the defendant in this appeal.)

The Appellate Court reviewed the record to determine if there was an evidential basis upon which a jury could have found that the Grabinski’s negligence was a proximate cause of the plaintiff’s injuries.  In considering this question, the court found significant the fact that the plaintiff provided an eyewitness to the collision.  Grabinski testified as to his recollections.  See Burton v. Stamford, 81-82.  Additionally, there were 24 photographs of the accident scene admitted into evidence.  Id.  The jury also heard testimony for two Stamford police officers who conducted an accident reconstruction.  Id., 83.

The Appellate Court reiterated the applicable standard of proof.  “The standard is not that the plaintiff must remove from the realm of possibility all other potential causes of the accident; rather, it is that the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident." “It may be conceded that the plaintiff's evidence did not exclude the [alternate causation] hypothesis…But [he] was not required to prove beyond a reasonable doubt that the defendant [was the cause]. This being a civil case, it was enough if the evidence induced in the minds of the jurors a reasonable belief that the fact was so….The purpose of the circumstantial evidence was to show that it was more probable that the defendant [was the cause], and to satisfy the jury in view of all the testimony that the defendant probably did it. If it was sufficient for this purpose it was enough." (Citation omitted.)

“Grabinski's eyewitness testimony, the testimony of [the two accident reconstructionists], the police accident report and the photographic evidence regarding the vehicles immediately after the collision together was competent evidence from which the jury could reasonably infer that Grabinski failed to maintain a proper lookout and that Grabinski failed to take evasive action to avoid a collision despite actual knowledge that a collision was imminent. Moreover, on that evidence, the jury reasonably could conclude that Grabinski's negligence more likely than not caused the collision and, by extension, the plaintiff's injuries.”  Therefore, the Appellate Court concluded that the trial court improperly directed a verdict in favor of the defendant.

Practice Note:

1.Your best bet of surviving a directed verdict in a case like this is to get an eye witness to testify!

posted by Carey Reilly at 11:02 AM

Tuesday, January 26, 2010

Defense Expert Not Allowed to Blurt Out Testimony About "Malpractice Crisis"

The jury verdict in favor of the defendant was reversed because the trial court failed to give a curative instruction to mitigate the damage likely caused by the defense expert's testimony regarding his concern about malpractice claims, the need to practice "defensive medicine," the rising cost of health care, doctors being forced out of practice, etc.  In Pin v. Kramer , 119 Conn. App. 33 (2010) (January 19, 2009; Bishop, J.; Trial Court – Shay, J.), the Appellate Court held that the defense expert's testimony was highly prejudicial to the plaintiff.  The thrust of the expert's testimony was to draw the jury’s attention to the claimed economic and professional hardships faced by doctors due to claims made against them.  The inference from such comments was that the only reason the defendant would have ordered additional tests on the plaintiff was to protect himself against litigation.  The jury would not have ignored this implication in assessing the defendant’s liability, thus, the court's failure to give a curative instruction was harmful error.


  1. The plaintiff Erik Pin was a minor who brought this medical malpractice action ppa against Dr. David Kramer, an orthopedic surgeon.
  2. When Eric was 10 he had a scoliosis examination in school that revealed an abnormality in his back.
  3. His pediatrician referred him for X-rays and a CT scan. These tests revealed a benign bone tumor.
  4. Kramer eventually removed the tumor when it began causing irritation. However the tumor grew back.
  5. At no time, before, during or after his surgery, did Kramer order any X-rays or scans to see if he had removed the entire tumor or to monitor the plaintiff to see if it had regrown. One of the allegations of negligence was Kramer’s failure to properly follow Erik’s progress after the surgery.
  6. At trial, the defendant called Dr. Todd Albert, an orthopedic surgeon, as his expert.  Albert testified that the defendant had complied with the standard of care at all times. On direct examination, Albert stated that the standard of care did not require additional radiological tests.  Thereafter, Albert stated that he, however, would have ordered such tests.  Defense counsel then asked Albert to explain why he would have ordered such tests.  Albert stated:
    1. "Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that's wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more--they have another dot in their exposure.
    2. "The second reason is much different than in this part of the country and this state. I live in the worst malpractice community in the world. And people--and we practice a lot of defensive medicine. It's true. It's unfortunate, but it's true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can't get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that's just a fact. And so we get acclimated to practicing like that. So, there's lots of reasons."
  7. Plaintiff’s counsel moved for a mistrial on the basis that Albert’s comments were extremely prejudicial to the plaintiff or, in the alternative, a curative instruction.
  8. The defendant disagreed that a mistrial was necessary; however, defense counsel stated that, if the court wanted to instruct the jury to ignore what Albert had said, he would not object.
  9. In discussing plaintiff’s motion, the court focused on potential prejudice to the defendant, not the plaintiff, due to Albert’s use of the word “insurance.” The court declined to grant a mistrial or to give a curative instruction because it reasoned that “the court did not find the comment to be prejudicial and that, if anything, [the use of the word ‘insurance’] affected the” defendant not the plaintiff.
  10. The jury returned a defendant’s verdict; and, this appeal followed.
  11. The Appellate Court reversed the decision of the trial court.

The primary problem with Albert’s comments was not the mention of insurance.  While it is true that there is a general prohibition against mentioning insurance to protect a defendant from a jury choosing to award damages because an insurance company is the real party paying any award, in this case the topic of insurance arose in the context of discussing the difficulties that doctors face in the current legal climate.  Therefore, although he word “insurance” was used, it was in a context that was helpful, not harmful to the defendant.  Albert’s “testimony painted a picture sympathetic to physicians, portraying them as constantly forced to defend against malpractice claims and to bear the exorbitant cost of insurance.  Whether or not the comment has merit in public discourse, it had no place in this trial.”  A curative instruction should have been given and it was harmful error for the trial court to have failed to do so.

posted by Carey Reilly at 1:15 PM

Wednesday, January 13, 2010

Circumstantial Evidence May Be More Certain, Satisfying and Persuasive

In a recent Apellate Court victory by this office, the court in Curran v. Kroll, 118 Conn. App. 401 (2009) (December 15, 2002; Flynn, C. J.; Trial Court - Berger, J.), the Appellate Court reaffirmed the importance of circumstantial evidence and reversed the directed verdict entered by the trial court in favor of the defendant doctor in a medical malpractice failure to warn case.  It had been necessary to resort to circumstantial evidence during trial because plaintiff's decedent was the only person who had direct evidence of her conversations with the defendant, but she had been killed by the doctor's malpractice.  The Appellate Court agreed that while there was no direct evidence that the defendant breached the standard of care in failing to warn the decedent of the risks of a prescribed course of treatment, there was circumstantial evidence that could have led to a reasonable inference that the standard had been breached, if the jury had chosen to credit such evidence.  “[T]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned….In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.”


  1. The plaintiff, Ryan Curran, Administrator, brought this medical malpractice action on behalf of his deceased mother, Leeann Curran, against the defendant Dr. Sherry Kroll, a primary care physician, alleging that she negligently failed to advise Leeann of the risks of taking birth control pills and negligently failed to inform Leeann of the signs and symptoms associated with those risks.
  2. On May 6, 2002, Leeann, then 45, attended an office visit with Kroll at which time Leeann complained of severe menopausal symptoms, e.g. hot flashes, mood swings, painful, irregular periods, etc.
  3. Kroll prescribed Desogen, a birth control pill, to treat these symptoms.
  4. Near the end of May, Leeann told her mother, Kathy Stilwell, that she “felt terrible” and didn’t want to continue taking the pills because she felt worse than before she started them.
  5. Leeann also told Stilwell that she had telephoned Kroll about this, but Kroll told her to continue with the medication, which she did. (The defendant lost the plaintiff's chart but was able to recreate some of it electronically.)
  6. On June 6, 2002, Leeann and her mother attended a meeting. Leeann left prematurely due to considerable leg pain. Leeann had no idea what was causing her pain.
  7. On June 7, 2002, Leeann left work early also due to continuing significant leg pain. Stilwell testified that Leeann speculated to her that she may have pulled a muscle, but “she truly had no idea what was wrong with her.” Leeann had a similar conversation with her husband. She continued to complain of pain through the evening of June 7, 2002.
  8. Ryan testified that, during the night of June 7-8, he heard his mother grunting in pain as his father helped Leeann downstairs to the couch where she thought she would be more comfortable because she could elevate her leg.
  9. Around 6 am on June 8, 2002, Leeann fell in the bathroom and hit her head, her husband helped her to the couch and called 911. She complained to her husband that she couldn’t breathe. Shortly after assistance arrived, Leeann lost consciousness and stopped breathing; she was taken to the hospital, but she never regained consciousness.
  10. Leeann died on June 8, 2002, as a result of blood clots in her lungs that likely originated in her left thigh, traveled through her venous system and her heart and lodged in her lungs.
  11. At the end of plaintiff’s case, the defendant moved for a directed verdict on the grounds that there was no evidence that Kroll had breached the standard of care and that a failure to warn claim could not be based solely on an inference that might be drawn from the decedent’s failure to seek help.
  12. The trial court granted defendant’s motion and this appeal followed.
  13. The Appellate Court reversed the decision of the trial court.


Evidence comes in two forms, direct and circumstantial. "The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience….Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury….When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.

“An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference….

“Just because a jury could, but is not required to, draw an inference does not mean that it is resorting to speculation….Inferences are based on common experience and probability….Inferences should be based on probabilities, not possibilities, surmise, or conjecture….To state a truism, the only kind of inference the law recognizes is a reasonable one….Connecticut does not subscribe to the oft-repeated rule that an inference cannot be based on an inference. Successive inferences are permissible if justified by the facts….Thus, one inference can be founded upon facts whose determination is the result of other inferences….The only question is whether the successive inferences are rationally justified by the facts….

"[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted; emphasis added.)

Kroll testified that she “definitely” would have advised the patient of the risk of blood clots associated with birth control pills, that blood clots could be life threatening and that symptoms associated with blood clots included pain as a result of leg swelling.  However, the patient’s medical file had no indication that Kroll had given Leeann any warning or advice about the risk of blood clots or the symptoms associated with the same.

Plaintiff’s expert testified that an internist would expect that a reasonable patient, who has been advised properly, will recognize the appropriate side effects of medication and seek medical attention should those signs or symptoms appear.

The Appellate Court agreed with the trial court that a failure to warn claim could not be based solely on an inference drawn from the decedent’s failure to seek help.  But the Appellate Court concluded that there was other evidence from which such an inference reasonably could have been drawn.

In the present case, the evidence, viewed in the light most favorable to the plaintiff, reasonably could have led the jury to find that Kroll prescribed the birth control pill to the decedent slightly more than four weeks before the decedent's death, and that Kroll made no notation that she had given the decedent a proper warning of the risks and the signs and symptoms associated with such risks. Further, the jury could have found that the decedent experienced feelings of ill health shortly after beginning the pills and that she telephoned Kroll's office about this but was told to continue taking the pills. A short time later, when the decedent experienced severe leg pain over the course of a couple of days, she had no idea what was the cause of that pain.  Additionally, the jury could have found that persons generally seek to follow instructions of a medical nature concerning the serious symptoms associated with the side effects of medication. These findings could have led the jury to the reasonable inference that Kroll, four weeks before the decedent's death, had not discussed the signs and symptoms associated with the risks of birth control pills adequately with the decedent, because, if she had discussed them adequately, the decedent would have known that this might be the cause of her pain. In other words, the decedent's complete lack of knowledge and puzzlement as to the cause of her pain, combined with other evidence, reasonably could have led the jury to the inference that the decedent had not been informed adequately by Kroll. Accordingly, the Appellate Court concluded that the court should not have directed a verdict in favor of the defendants but should have given the jury the opportunity to weigh this evidence and decide the issue.

posted by Carey Reilly at 2:46 PM

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