Opinion
No. CV 01-0276254S
February 17, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SET ASIDE VERDICT (# 157)
The defendants Dalco Electric, Inc., and 125 Research, L.L.C., have moved to 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 is 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.
I — 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 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 plaintiff 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 called 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.
II — 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's testimony did not meet the threshold 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.
III — DISCUSSION A. Strauss's Testimony 1. 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. Hayes 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 methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 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. 687, the court expressly pointed out that "[a]lthough 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." Id., 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." Id., 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:
[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.) Id., 169. In a footnote, the court in Maher further described this type of evidence:
[C]ertain 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 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, 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 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.) Id., 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, an 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., 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." Id., 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." Id., 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 science 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. 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.) Id.
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." Id. 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 Frye: "where established techniques were applied to the solution of novel problems." Id. 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 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 podiatrist 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.
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 because 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." Id., 423, citing Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 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 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 trained 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., 423.
Two years earlier, in Hayes v. Decker, supra, 263 Conn. 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." Id., 681. The expert had based his testimony on generally accepted views within the scientific community that "1) 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." Id., 688-89. The court held that
This is 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 does not apply.
(Citation omitted; internal quotation marks omitted.) Id., 689. 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, CT Page 2222 263 Conn. 688, that " Frye did not apply to expert testimony on time of death based on generally accepted principles of pathology and general expertise in field 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 effect 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 value 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. 411-12.
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]e 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.
. . .
[J]uries 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 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. 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." Id., 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 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.
Although they claim that this testimony "was within the jury's competence to understand without expert evidence," Defs.' Motion to Set Aside, at 2, they are not here challenging the admission of that testimony.
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." (Pl.'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 of the four persons on the scene that day supporting a jury finding that the winds that day were neither high nor strong. 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 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." Id., 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., 6; and high wind advisories when wind of 39 m.p.h. or more is expected.
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 "standard of care." Id., 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. ( Id., 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." Id., 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 plaintiff testified that he had no problems with the wind that day. He testified 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 described the sign that his employer had made for the defendant Dalco as having dimensions of approximately four feet by twelve feet and weighing between 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 sheet 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-examination 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" ( Id., 113) that day. Luft, a vice-president of Dalco and partner in 125 Research 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 felt a gust of wind just before the ladder fell over, but he admitted on cross-examination 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 else would cause it to go over." Gagliardi testi., 69
Cox testified that with a wind speed of 11.5 miles per hour "if you looked closely, you'd probably notice some of the leaves 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 enough to move sturdy or heavy objects on the ground." Id., 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." Id., 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." Id., 59.
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 external 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-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. 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." Id., 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. 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.
On direct examination Strauss said that winds coming from the side pose the most danger to ladders. Cox testified that the wind accelerates when it flows around an object in its path. Pursuing these two points together, the defense on cross examination asked "So, if I 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 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 set 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 is 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 is 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 line] are directly below the main path of the wind. In other words, these ladders are shielded from the wind.
Id., 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 general air mass at a location on the other side of the object 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 shielded from the wind. He testified that the ladders, next to the northeast corner of the building, were in the "shadow area" of the wind and hence the wind velocity there would have been less than in the "general air mass."
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. 170-71, fn. 12.
3. 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." Id., 8-9. They use this argument to challenge Strauss's testimony that a ladder will not fall but for one of 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., 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 Testimony
Meteorologist Robert Cox testified that the National Weather Service measures wind speed at the Meriden airport and reports two types of wind speed data: (i) "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 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." (Pl. Ex. 42.) The defendants neither objected to nor moved any of this testimony.
The defendants' principal objection at trial 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 earth'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 limine 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 expertise as a meteorologist" 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 trial because of testimony he gave in his deposition. At trial the court held that testimony as to the effect of wind speeds was properly disclosed in advance of trial, outside the ken of the jury, and a proper subject for expert testimony.
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., 3.
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.
C. 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 element of res ipsa loquitur, control over inspection 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.
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, each 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 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 (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.
There were two extension ladders at the front of the building when the plaintiff was injured. All four persons there that day agreed 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.
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, after 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 where 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 desire to have the sign installed that day, brought the second 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.
1. Defendants' argument that plaintiff presented evidence of specific negligence that presented a reasonable explanation for the accident other than their negligence CT Page 2212"Res ipsa loquitur instructions are appropriate when a plaintiff cannot prove with direct evidence the proximate 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 falling 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 . . ." Id., 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 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.
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-examination, 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 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.
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 is 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." Id. 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 plaintiff's own evidence provides no basis on which to conclude that the defendant 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., 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 all 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.) Id., 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 plaintiff's 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." Id., 230. The court specifically noted that a trial court should charge on res 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., 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 there were legitimate reasons, in the evidence, that the jury might find Strauss's testimony on direct examination credible, conclude that his contradictory statements on cross examination were the result of his being confused by or not understanding the questions, and thus reject the causation evidence favorable to defendants. Other evidence not only corroborated his testimony on direct examination but was sufficient proof independent of Strauss's testimony, that wind of 11.5 or 18 m.p.h. would not have caused a properly setup ladder in good condition to fall over. In the light of the wide range of documentary evidence, ranging from the voluntary ANSI standards adopted by ladder manufacturers to OSHA regulations incorporating those standards and governing the workplace to ladder warning labels that ladders should not be used in high winds, Cox's testimony describing the effect of winds of these speeds on objects on the ground and the testimony of the fact witnesses (viewed most favorably to the plaintiff, was sufficient for the jury to find that the winds were not high that day and, hence, not a danger to the ladder. Thus the evidence, viewed most favorably to the plaintiff, supported a jury finding, by a preponderance of the evidence, that the wind was not the sole cause of the ladder falling and that negligence of the defendants was the most reasonable explanation for the plaintiff's injuries.
The defendants also argue that the meteorologist's testimony "concerning how a 11.5 m.p.h. wind will affect objects on the earth's surface was direct not circumstantial evidence of causation." Id., 8. Yet the plaintiff did not offer direct evidence from either Strauss or Cox explaining specifically how or why the ladder fell over. Strauss did testify that the ladder was defective and that the defect in the ladder weakened the ladder's stability. Although the defective repair might violate the standard of care, the evidence here does not show a causal link between that defect and the ladder falling. Strauss testified that the ladder could probably support the weight of a person. He further testified that a weakened or improperly setup ladder might require less external force to topple it. Since he did not know how the ladder had been set up that day, however, he said he could not give an opinion on how or why the ladder actually fell over. Viewed most favorably to the defendant, the testimony from Strauss thus did not show the specific means of causation — how the ladder fell over. Similarly, Cox's testimony about how wind of 11.5 or 18 m.p.h. affects objects on the ground supported a conclusion that the wind was not the sole cause for the ladder to fall, but was not specific evidence as to what in fact caused the ladder to fall over. If the evidence is viewed in the light most favorable to the plaintiff as Boretti v. Panacea Co. requires this court to do, a res ipsa instruction was not just appropriate, but, since requested by the plaintiff, required.
2. Defendants' claim that the evidence did not establish the element of control necessary for a charge on res ipsa loquitur
The plaintiff was on the defendants' premises that day as an employee of an independent contractor hired by Dalco. Ordinarily, a defendant is not responsible for injuries sustained by an employee of an independent contractor or for injuries occurring as a result of activities or conduct in areas under the independent contractor's exclusive control. Darling v. Burrone Bros., Inc., 162 Conn. 187, 196, 292 A.2d 912 (1972). The court thus instructed the jury that "when an independent contractor assumes control over the premises and its instrumentalities, such as a ladder here, the property owner is not responsible for injuries caused by the instrumentality if the independent contractor knew or ought to have known of its condition." The court further instructed the jury, however, on two long-accepted exceptions to the independent contractor rule:
the first is when the employer retains control of the premises or portion thereof and its instrumentalities, such as the ladder, and the second is when the employer's own negligence is what caused the plaintiff's injuries.
See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003).
The court charged the jury that it could not find liability unless it found that the defendant had control over the ladder that fell and knocked over the plaintiff's ladder. Viewed most favorably to the plaintiff, the evidence of control by the defendant Dalco was that the ladder that first fell over had long belonged to Dalco and that Dalco had made the improper repair to the defective side rail. Someone obviously brought the ladder from the back of the building to the front and set it up against the building. The plaintiff testified that Luft carried out and set up the ladder. The testimony of the plaintiff and Gagliardi denying that either of them brought that ladder from the back of the building to the front or set it up against the building, moreover, was sufficient for the jury to infer that one of the Dalco employees, either Luft or Donahue, brought the ladder out and set it up against the building. The plaintiff and Gagliardi both testified that the plaintiff was on a ladder and that Gagliardi was nearby providing support. Gagliardi said the other ladder was 8 to 10 feet away. This evidence was sufficient, viewed most favorably to the plaintiff, for the jury to find that Dalco, not plaintiff or Gagliardi, was in control of the ladder that fell on plaintiff's ladder when this accident occurred.
3. Defendants' claim that plaintiff did not conduct a reasonable investigation into the causes of his injuries
The defendants also assert that an inadequate investigation by plaintiff into the causes for the ladder to fall precluded the court from instructing on res ipsa loquitur. The gist of their argument is that plaintiff's engineering expert Melvin Strauss "conduct[ed] no experiments, tests, calculations or studies" shows that the "plaintiff chose not to determine causation." (Def.s' Mem. in Support of Motion to Set Aside, 17.) Instead, they assert, the plaintiff improperly relied on res ipsa loquitur to establish what they chose not to prove. This was an argument that the defendants made to the jury as well.
Although Strauss acknowledged that he did not conduct scientific tests or perform various mathematical calculations, he also gave a cogent reason for his not doing so. All four persons on the scene that day denied having set up the ladder that fell onto the plaintiff's ladder. Since he did not know the manner in which that other ladder was set up, he could not create an experiment or test replicating the situation that day. Tests or experiments would thus not have provided valid, or admissible, data on causation. Without information on the setup of the ladder that day, plaintiff was unable to prove how or why the ladder fell over. The plaintiff instead sought to preclude sole causes of nonhuman origin. Plaintiff then introduced evidence from which the jury might infer that if nonhuman instrumentality was not the sole cause for the ladder to topple, then the defendants were responsible, in whole or part, for its fall:
That the ladder was defective;
That although this defect might not affect the stability of the ladder if properly set up, it might make the ladder more susceptible, as Strauss testified, to fall if set up near or close to the "tip point."
That Dalco had been in control of the ladder before its use that day.
That Luft or Donahue brought that ladder out to the front and set it up.
That Dalco was, hence, in control of the instrumentality that fell onto plaintiff's ladder and that caused his injuries (in whole or in part aided by the wind).
Under these circumstances, therefore, while the defendants' assertion that the plaintiff did not conduct an adequate investigation was certainly an argument they could make to the jury (and did vigorously), the evidence viewed most favorably to the plaintiff also permitted the court to instruct on res ipsa loquitur.
The defendants also argue that the court improperly charged on res ipsa loquitur because "the defendants had not been properly put on notice until well after the jury was impaneled that the plaintiff intended to proceed on that theory." Def.'s Supp. Motion to Set Aside the Verdict, 3. Although the defendants made this argument pretrial, they did not raise it post-judgment until more than ten days after acceptance of the verdict. It is thus not now properly before the court and the court here will not rule on the claim. Practice Book Section 16-35 provides, in part, that "motions to set aside a verdict . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time."
The court notes, however, that it has long been the law that a defendant must be put on notice that plaintiff seeks to rely on a theory of res ipsa loquitur. Although their motion to set aside cites Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 755 A.2d 903 (2000) and certain trial court decisions for the proposition that the complaint must put a defendant on notice that plaintiff intends to rely on res ipsa, a plaintiff need not plead res ipsa as a separate and distinct cause of action. See Gifford v. City of Meriden, 49 Conn.Sup. 157 (2004). After plaintiff's final expert disclosure explicitly disclosed plaintiff's intention to rely on res ipsa, the court ordered an additional deposition of plaintiff's expert, at plaintiff's cost, to provide defendant with an opportunity to explore this issue. At the time of the order, the court also stated: "then I'll leave it to [defense counsel] as to make any further claims after that deposition is concluded." (Transcript, 2/3/04, 106.) Although defendants at that hearing complained about their inability at that time to retain an expert, they did not later request a continuance to retain an expert after that subsequent deposition of Strauss.
D. Defendants' claim that the verdict was against the weight of evidence.
The defendants' motion to set aside claims that the verdict is against the weight of evidence for three reasons. First, they claim, "no evidence was offered to establish the factual foundation for the expert's hypothetical opinion concerning the three potential causes of a ladder's fall." (Motion to Set Aside, 4.) The court disagrees. Plaintiff's engineering expert explained the three reasons that a ladder will fall over (defect, improper setup, or application of external force). As explained above, the plaintiff's case then showed circumstantially that no nonhuman agent was the sole cause for the ladder to fall over, that Dalco had been in control of the ladder before this day and made the defective repair, that Dalco was in control of the ladder that day, and hence that the ladder would not have fallen over but for Dalco's negligence.
Their second assertion is that "direct evidence was offered through the plaintiff's liability expert that the sole proximate cause of the ladder's fall could have been the 11.5 m.p.h. wind blowing at the site . . ." Id. The expert also testified that the winds that day could not have caused a properly setup ladder in good condition to fall over. The defendants thus ask the court to construe the expert's evidence "in a light most favorable to the defense — as the party against whom the expert's opinion was called to testify," (Mem. in support of Motion to Set Aside, 10), but, as explained above, such is not the law. Boretti v. Panacea Co., 67 Conn.App. 223, 786 A.2d 1164 (2001) Alternatively, they claim that the expert's testimony, since it contained contradictions, should have been treated as "unreliable, irrelevant, and inadmissible." Id.
Allowing Strauss' "inconsistent" testimony . . . was prejudicial precisely because there was no substance to it. Allowing it without giving full weight to the direct evidence that defeated the foundation for a res ipsa loquitur charge was clear and manifest error.
In Robillard v. Asahi Chemical, Superior Court, judicial district of Waterbury, Complex Litigation Docket No. X01 CV94-0147579 (September 14, 1999) (Hodgson, J.), a plaintiff injured in a swimming pool offered expert testimony that a blue pool liner used in the defendant's swimming pool was a defect in the pool that had caused plaintiff's injuries because it did not adequately assist a diver to recognize the bottom of the pool and its depth. The court excluded the proposed expert testimony because no causal relationship was shown between the alleged defect and the plaintiff's injury. Although acknowledging a scientific basis for the expert's testimony that a white pool liner would have provided better visibility than the blue liner used by defendant, the court held that plaintiff had shown no scientific evidence supporting the expert's claim that a difference in visual acuity would increase safety and thus precluded that portion of the expert's proposed opinion.
This case, though repeatedly cited by defendants, does not govern the present situation. Strauss did not give specific expert opinion that the defective ladder was the sole cause of plaintiff's injuries here or how the plaintiff's injuries were incurred. Throughout his testimony, Strauss repeatedly stated that he could not offer an expert opinion fixing the cause of the accident, because he did not know how the ladder had been set up. Instead, his testimony was offered to exclude nonhuman causation as the sole cause. Although he acknowledged that he believed the defect and setup probably contributed to the accident, he clarified in follow-up questions that he could not give expert opinion that either or both were sole or contributing causes for the ladder to fall. No one moved to strike this testimony about his belief, but it was clear at trial that he was distinguishing between that belief, mentioned only briefly and near the end of lengthy testimony covering three days, and his expert opinion offered to a reasonable degree of engineering certainty.
(Citations omitted.) Id., 10-11. As explained above, however, the jury could reasonably have concluded that the plaintiff's testimony on direct examination was what he intended to say. And there was other evidence consistent with his testimony on direct examination about the effect of the wind speeds that day. Under the facts of this case, the inconsistencies in the expert's testimony and the credibility of his opinions were matters for the jury to assess.
E. Defendants' claim that the verdict was excessive
"A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." Marchell v. Whelchel, 66 Conn.App. 547, 582, 785 A.2d 253 (2001). The verdict should be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice. Only the most compelling evidence justifies setting aside a jury verdict because doing so interferes with a litigant's constitutional right to have issues of fact decided by a jury. Hunte v. Amica Mutual Insurance Co., 68 Conn.App. 534, 541, 792 A.2d 132 (2002). The court must view the evidence and all the inferences drawn in the light most favorable to the prevailing party; id.; a standard that requires the court here to consider the evidence on damages in the light most favorable to the plaintiff.
In support of their claim that the verdict was excessive, the defendants cite three reasons. They cite no authority for their novel claim that the court should reduce the verdict because it exceeded the offer of judgment filed by the plaintiff and the value placed upon the case by another judge during pretrial settlement discussions. The court agrees with the plaintiff that purpose of the rule and statute permitting offers of judgment is to promote settlements, not bind litigants. A rule that offers of judgment place a cap on the amount of a verdict, or should be used to assess the fairness of verdicts, would discourage parties from using this mechanism. The settlement value placed on a case by a pretrial court is often a compromise amount, one that might lead a defendant to concede liability against damages and a plaintiff to reduce its claim for damages in order to reach an agreement, the very device that juries themselves are prohibited from employing.
The defendants do not brief their claim that the verdict amount was "excessive in light of the injuries claimed, the continuing improvement of the plaintiff's nerve damage [, and) . . . the absence of any claim that the plaintiff cannot earn his living." Motion to Set Aside, 5. The defendant did not challenge his claim for past medical expenses of $109,000. He was out of work for more than three years and offered evidence showing lost and reduced wages exceeding $85,000. His doctor testified that future surgeries would cost between $22,000 and $27,000. The jury's award of $200,000 in economic damages was fully supported by the evidence.
The jury also awarded plaintiff one million damages in non-economic damages. The evidence here showed that the defendant suffered severe injuries that completely changed his life. He testified that he suffers from daily pain, testimony that the medical evidence supported. To his credit, though unable to perform his old job, he has found a new vocation. But the activities of his daily life that characterized the lifestyle that he enjoyed with his fiance are now completely foreclosed to him. On the state of this record, the court cannot find that the verdict shocks the conscience or the court's sense of justice.
IV — CONCLUSION
For the reasons stated above, the defendants' motion to set aside the verdict is therefore denied.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT