CTLA Forum Spring 2006 · 6/1/2007 · Winter2008 • Vol25/No.3 • CTLA Forum 137 ForCT uLAm...

Winter 2008 • Vol 25/No. 3 • CTLA Forum 137

ForumCTLA

Ringing in theNew Year — 2008How are we doingso far?

The arrival of a new yearrepresents a time for review,renewal and re- commit-ment. Let’s start this NewYear assessing where wehave been, where wehope to go and how wewill get there. A briefrecap of our 2007 goalsand progress:

1. Legislative Agendafor 2008. The followingresulted from listening toyou at ten regional meet-

ings conducted around the state and a Board of Governors’ fullday legislative retreat held in December:

• Workers’ Compensation, permitting 308a discretionarybenefits, scarring and disfigurement benefits and use ofclaimant’s own doctor. Also, propose legislation clarify-ing the applicability of the final judgment rule to work-ers’ compensation cases.

• Expand insurance protection by requiring conversioncoverage, absent an informed consent waiver.

• Ensure that “pre-settlement funding” is accomplishedwith full disclosure and non-usurious interest rates.

• Pursue tolling the statue of limitation and notice periodswhile waiting for police reports; increasing juror compen-sation; and eliminating hold harmless clauses in releases.

• Stay current and active to prevent anti-plaintiff legisla-tion.

2. Membership Drive. We have had a great response to ourmembership drive. We need sixty new members to meet ourfive-year high and goal of fifteen hundred. With your help wewill continue to serve the needs of the Connecticut plaintiff ’sbar and encourage membership in CTLA.

3. Awards Recognition Program. At this year’s annual meet-ing we will institute an awards recognition program to recog-

A Publication ofThe Connecticut TrialLawyers Association

(Continued on page 138)

Vo l ume 25 , Numbe r 3 • Win t e r 2008 • Pa s t i s s u e s a va i l a b l e on l i n e a t www. c t t r i a l l awye r s . o r g

From the President’s NotebookBy Joseph Mirrione

CTLA Forumnow available online

This past year, CTLA’s website has been going throughsome major changes. One of the most significant changesyou will see in the coming weeks is the presence of theCTLA Forum online. In just a few clicks of the mouse, youwill be able to access current and past issues going backover six years.In addition, we will be placing our Verdicts & Settlements

reports in an online searchable database. You will be able tosearch by attorney, city, case type, or verdict amount. Youwill also be able to easily submit your own verdicts and set-tlements in our easily accessible online form.We hope that you take advantage of these recent

updates, and as always, let us know of other suggestionsthat you might have.

Contents

Message from the Editor . . . . . . . . . . . . . . . . . . . . .139By David Rosen

2007 Update on Evidence . . . . . . . . . . . . . . . . . . . .140By Bob Adelman and Neil W. Sutton,Adelman Hirsch & Newman, Bridgeport

Verdict and Settlement Report . . . . . . . . . . . . . . . . . .151By Kathleen L. Nastri, Associate Editor

Workers’ Compensation Review . . . . . . . . . . . . . . . .157June 1, 2007, Through October 4, 2007By Robert F. Carter

The Attack on Trial Lawyers and Civil Justice . . . . . . .160By Robert S. Peck and John Vail

Understanding the New Physician’s OpinionRequirement for Medical Malpractice Actions . . . . . . .169By Richard A. Silver and Amanda R. Whitman

ExecutiveDirectorNeil H. Ferstand

2007 - 2008Officers &Board ofGovernors

OfficersPresidentJoseph R. Mirrione

President ElectKathryn Emmett

Vice PresidentHumbert J.Polito, Jr.

TreasurerDavid W. Cooney

SecretaryJohn J. Kennedy, Jr.

ParliamentarianMichael J. Walsh

Immediate PastPresidentCarl D. Anderson

Board ofGovernorsRobert B. AdelmanMatthew E. AugerPeter J. Bartinik Jr.James D. BartoliniChristopher D.BernardRichard A. BiederAnthony S. BonadiesKathleen L. BrandtRoger B. CalistroRobert F. CarterStewart M. CasperThomas A. CloutierMary Ann ConnorsDavid W. CooneyMichael A. D’AmicoWilliam R. DavisSteven D. EckerKathryn EmmettSteven J. ErranteJoel FaxonJeffrey A. FriedlerWilliam F. GallagherJoseph D. Garrison

Shelley L. GravesAndrew S. GroherIra B. GrudbergR. Bartley HalloranJoram HirschDaniel J. HorganJames D. HorwitzJohn J. Houlihan Jr.Stephen JacquesMichael C. JainchillJohn J. Kennedy Jr.Richard J. KennyDouglas P. MahoneyJason L. McCoyMartin J. McQuillanJoseph R. MirrioneRalph J. MonacoGarrett M. MooreRon T. MurphyJohn F. NaizbyKenneth P.Namnoum Jr.Kathleen L. NastriRichard L. NewmanGregory E. O’BrienRosemarie Paine

Anthony A. PiazzaHumbert J. Polito Jr.Charles B. Price Jr.Robert I. Reardon Jr.Cindy L. RobinsonBetty Ann RogersChristian G.SarantopoulosAnastasios SavvaidesMatthew ShafnerRobert R. SheldonRichard A. SilverBarry J. SinowayMary E. SommerSandakMichael A. StrattonEugene K. SwainWilliam J. Sweeney Jr.Ernest F. TeitellVincent TrantoloJason E. TremontMartha S. TriplettJoseph G. WalshNicholas E. WoclJames WuAngelo A. Ziotas

AAJ StateGovernorsStewart M. CasperRobert I. Reardon, Jr.

AAJ StateDelegatesJames D. BartoliniKathleen L. Nastri

138 CTLA Forum • Winter 2008 • Vol25/No. 3

ForumCTLA

Officers & Governors

Published quarterly by the Connecticut Trial Lawyers Association100 Wells Street • Hartford, Connecticut 06103-2920

Phone: (860) 522-4345 • Fax: (860) 522-2027 • www.cttriallawyers.org

Staff & BoardEditorial BoardDavid N. Rosen, EditorWilliam F. Gallagher,

Editor EmeritusBob AdelmanFrank BaileyBob CarterSteve EckerProf. Neal FeigensonElizabeth MaurerJoe MirrioneKathleen NastriPaul Slager

Associate EditorsRobert B. AdelmanRobert F. CarterMichael C. JainchillKathryn CalibeyWilliam F. GallagherKathleen L. NastriMary Ann ConnorsSteven D. EckerKerin M. Woods

From The President’s Notebook (Continued from page 137)

nize members who have contributed tothe profession, their communities or theAssociation.

4. Public Service Ads. We have createdand designed a series of public service adsthat our members can place in their localhometown newspapers.

5. Continuing Legal Education. Wecontinue to educate new and veteranlawyers. Our CLE programs have beenwell received and CTLA continues to bethe foremost provider of CLE program-ming in Connecticut. Our CTLA/UConn Trial Advocacy Team is preparingfor the March AAJ regional competition.

David Cooney returns for his eighth yearand Rosemarie Paine is a welcome addi-tion to the teaching team. We are gratefulfor their time-consuming dedication tohelping train our next generation of triallawyers.

6. Strategic Plan and Budget. We areworking toward developing a three-yearstrategic plan, and have improved ourbudget format.

7. Communication. We created a Boardof Governors listserve for rapid and moreinformed decision-making and improvedcommunications. We are now publishingverdicts and settlements online. Notably,

two editions of the Forum have alreadybeen published and the third is plannedfor release in May.

It’s been a busy and hopefully productivefirst half of our year together, and we havemuch more work to do. Thank you forcommitting your time, energy and ideas tothe work of CTLA as we begin 2008 andcontinue to make progress toward ourgoals.

A late-night stroll down the WashingtonMonument Mall

It was in the fall when our CEO, NeilFerstand, and Adam Nicholson, Director

The CTLA Forum is published quar-terly by the Connecticut Trial LawyersAssociation. Inquiries regardingadvertising rates and specificationsshould be made to the CTLA office.Articles, features, and verdicts &settlements can be submitted onlineat www.cttriallawyers.org/forum oremailed to [email protected].

Statements and opinions in editorials orarticles reflect the views of the individualauthors and are not necessarily those ofCTLA. Publication of advertising doesnot imply endorsement. All advertising issubject to approval of the ConnecticutTrial Lawyers Association.

©2008 The Connecticut Trial LawyersAssociation, Inc. Contents may not bereproduced without written permission.

and how we do deter-mines someone else’sfate.

Who wants to dosomething like that!The answer is, notmany people; andmost of them belongto this organization.Cynics say we’re ego-tripping or money-hungry; we like to think we’re tribunes of thepeople, preserving justice and democracy.One thing’s for sure — our jobs are stressful.You’re probably feeling pretty frazzled. So putyour feet up on the desk, take a break, andenjoy this issue.


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I just finished a three-month trial. I wasreminded, as I always am, that what we do isreally hard. We are producers, writers, direc-tors, stage managers, and actors in an elabo-rate improvisational performance before anaudience that is primed to be critical — andthere’s someone else on stage next to uswho’s getting paid to mess up the show. Andnot only do we have to be able to turn on adime as circumstances change, but when wedo we’re in danger of being stopped becausewe didn’t anticipate the new twist in time totell our adversary about it months or yearsbefore the trial. And it goes on day after daywhile we get more and more exhausted untilthe end, when we have to be at our best. Oh,

MESSAGE FROM THE EDITOR

By David Rosen

of Grassroots and Field Organizing, and Itraveled to Washington on behalf of theAmerican Association for Justice. At AAJ’sexpense, 26 state presidents gathered for athree-day effort to enlist support for twobills pending in Congress. Linda Lipsen,Chief AAJ lobbyist, and her staff spenthalf a day briefing us on two bills: curtail-ing mandatory arbitration in consumer con-tracts and a tax bill allowing attorneys todeduct client expenses in the year incurred.

The following day we engaged in a well-orchestrated support effort. We visitedeach of our state’s five representatives andtwo senators. It was daunting because themeetings required multiple trips to theopposite ends of the capital. We were deepin the trenches, traveling through the cap-ital’s underground subway and connectingpedestrian tunnels. This complicated mazeof offices and chambers led me to wonderhow anything gets done. But our veteranstaff prepared well and moved us gracefullythrough nine hours of meetings

After dinner, at about 10 p.m., we walkedtheWashington Monument Mall enjoyingthe crisp night air and colorful trees. It hadbeen a while since I made this walk. Infact, it was 1972, during the May Dayantiwar demonstrations.

It was late, but the Mall was alive. As wewalked, Adam, who had spent time inWashington, was our guide with commen-tary about each of the monuments. Weworked our way down to theWorldWar IImemorial, finished four years ago. It sitsbetween the Washington Monument andthe Lincoln Memorial, adjacent to theJefferson Memorial. You come to it gradu-ally, a circle within a circle, and at eitherend are large pillars commemoratingmajor battles. Along its walls are quota-tions and large bronze plaques honoringthe branches of our armed forces at vari-ous points during the war.

I was the pure tourist, taken in by thesheer beauty — the lighted water fountainand the “star” water pool — everything somajestic and perfect. What stopped me inmy tracks was the plaque depicting theLST naval vessel landing on the beach atNormandy with men and equipment rush-ing forward into battle from its openedbow ramp. Their fierce determination andcourage were apparent. Lost in themoment, I realized this was more than areminder of a defining moment during thewar, but also a testament to my father andall who served so bravely. (He served as a

gunner on an LST, first on the beaches ofNormandy, then in the invasion of south-ern France, and finally the assault onOkinawa.) I saw below a fresh bouquetbelow with a handwritten note: “we shallnever forget you. . .”

Surrounded by the granite-carved words“courage,” “justice,” “freedom,” “ we camenot to conquer but to free,” I felt I was inthe epicenter of democracy. I realized thatI did not possess the courage of my father.I have never made his sacrifices. I won-dered if he felt that his sacrifices wereworthwhile and if he was proud of them.(I certainly was.)

As trial lawyers, we fight a different battle,one of words and ideals to achieve fairnessand justice. Our lives are not at risk so our

sacrifices do not compare to those whohave fought for us. But in fighting for thosewe represent, those who entrust their well-being and futures to us, we do give up apart of ourselves with each trial.

A few days later as I was entering a court-house, gum stuck to my shoe. There werelong lines through security and long waitsat the elevators. As I began to question apotential juror and sat down, the chairbroke. None of this lessened the passion Ibrought home with me. I realized that thisis our imperfect battlefield; this is our fight,to do our very best for those we serve. It isour humble way of honoring all of thosebrave men and women, by carrying on thefight for justice, for freedom, for truth, forhonor. “Rush forward,” friends!

140 CTLA Forum • Winter 2008 • Vol 25/No. 3

CTLA Update on Evidence

CONTENTS

Introduction . . . . . . . . . . . . . . . . . .140

Article IV — Relevancy . . . . . . . . .140

Article VII — Opinions andExpert Testimony . . . . . . . . . . . . . .142

Article VIII — Hearsay . . . . . . . . .145

Discovery . . . . . . . . . . . . . . . . . . . .146

Expert Disclosure . . . . . . . . . . . . . .147

Peremptory Challenges . . . . . . . . .147

Demonstrative Evidence . . . . . . . . .147

Evidence in Arbitration . . . . . . . . .148

Collateral Source Adjustment . . . .148

Apportionment . . . . . . . . . . . . . . .148

Authority To Change the Codeof Evidence . . . . . . . . . . . . . . . . . . .149

Appellate Review of CodeDecisions . . . . . . . . . . . . . . . . . . . .149

Amendments to the Codeof Evidence . . . . . . . . . . . . . . . . . . .150

INTRODUCTIONThis Update on Evidence covers civil

cases (insofar as the rules therein are usefulin civil cases) and criminal cases publishedfrom August 29, 2006 through August 28,2007.It also discusses five amendments to the

Connecticut Code of Evidence (“C.C.E.”)that will take effect on January 1, 2008.The Table of Contents and section

headings follow the format of the C.C.E.Because the C.C.E. does not cover everyevidentiary issue (see commentary to C.C.E.§1-2(b)), this Update includes additionalheadings.

Article IV — Relevancy

§ 4-1 BUILDING CODE ANDCONSUMER PRODUCTSAFETY COMMISSIONREGULATIONS, THOUGHNOT DIRECTLY APPLICA-BLE, ADMISSIBLE ASEVIDENCE OF STANDARDOF CARE — CONSIDINEV. WATERBURY, 279 Conn.830 (2006); Vertefeuille, J.;Trial Judge — Moraghan, J.

RULE: The state building code and

Consumer Product Safety Commissionregulations are admissible as evidence ofthe standard of care, even though, becausethey were enacted after the fact, their vio-lation did not constitute negligence per se.

FACTS: Plaintiff was at a restaurant inthe clubhouse of a municipal golf course.On the way out, while one of his friendsstopped to use the restroom, the plaintiffstood by the exit door to wait for him.Next to the exit door was a floor to ceil-

ing window panel, sometimes called asidelite. Plaintiff ’s leg gave out, and hefell through the sidelite. Because it wasnot made of safety glass, he receivedlacerations.The clubhouse building had been con-

structed in 1962. In 1970, a state buildingcode was enacted, requiring safety glass insidelites. The code specifically exemptedowners of buildings already constructedfrom having to install new sidelites. In1980, the Consumer Product SafetyCommission (“CPSC”) promulgated regu-lations to similar effect.Plaintiff sought to introduce the build-

ing code and CPSC regulations as evi-dence of the standard of care for safesidelites. Plaintiff ’s expert testified that,although the regulations did not requirethe building owner to replace the sidelites,they reflected the judgment of the statebuilding inspector and the CPSC thatsidelites, because they are next to a door,are in a hazardous location that requiresspecial precautions.The trial court admitted the regulations

and the expert’s testimony regarding thoseregulations. The Supreme Court affirmed.

REASONING: The Supreme Courtdistinguished between the admissibility ofa regulation which is enforceable and theadmissibility of a regulation which is not.The violation of an applicable buildingcode regulation is negligence per se. Thefact that a building is not up to the stan-dard of an inapplicable regulation can beconsidered by the jury in deciding whetheror not, under common law principles, theowner conducted himself as a reasonablyprudent person.

“We therefore conclude that the trialcourt properly considered the buildingcode and the federal regulations as some

evidence of the standard of care becausethey reflected the collective experienceand expertise of both the office of thestate building inspector and the federalConsumer Product Safety Commissionand what they believe to be the safe useof glass in entryways.”

279 Conn. at 867-68 (footnote omitted.)

The defense argued that the likelihoodthat the jury would misuse the regulationsand apply them as negligence per se stan-dards was too great to allow their admis-sion. Justice Zarella, in dissent, agreed.

§ 4-1 DEFENDANT DOCTOR’SEXPERIENCE NOT RELE-VANT REGARDINGINFORMED CONSENT —DUFFY V. FLAGG, 279 Conn.682 (2006); Vertefeuille, J.;Trial Judge —Lager, J.

RULE: Defendant doctor’s incompleteanswer to patient’s inquiry regarding thedoctor’s prior experience — which was notclaimed to affect the patient’s risk — is notrelevant on the issue of informed consent.

FACTS: Plaintiff consulted with thedefendant obstetrician regarding having avaginal birth after cesarean section(“VBAC”) with her second child. Inexplaining the VBAC procedure, thedefendant said the risks included uterinerupture which could result in the death ofmother or child.The plaintiff asked the doctor about

the doctor’s personal experience withVBAC and whether the doctor had hadany negative outcomes. The doctor statedthat one of her previous patients had suf-fered a uterine rupture; she did not tell thepatient that the infant had died and thatshe had been sued.Plaintiff elected to attempt the VBAC.

Her uterus ruptured, and her baby died.Defendant filed a motion in limine to

prohibit the plaintiff from introducing anyevidence regarding the earlier case wherethe infant died and the doctor was sued.The trial court granted the motion, rulingthat unless there was evidence that thedefendant doctor’s experience of havinghad one prior death created a statisticallymore significant risk for the patient, it wasnot relevant.

2007 Update on Evidence(and sundry cases of interest to the trial bar)

By Bob Adelman and Neil W. Sutton, Adelman Hirsch & Newman, Bridgeport


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In other words, unless the plaintiffproved that the prior uterine rupture andinfant death increased the risk of the proce-dure for the plaintiff, it was not one of thefour areas doctors must discuss whenobtaining informed consent.In the decision being appealed, Duffy v.

Flagg, 88 Conn. App. 484 (2005), theAppellate Court had held:

“[W]e do not believe that a plaintiffmust first demonstrate a nexus betweena physician’s prior experience with ananticipated procedure and the statisticalrisks of the procedure before evidenceof a physician’s misleading and incom-plete answer to a question related tothat procedure can be presented to ajury. . . .[W]e believe that the court’snarrow construction of the doctrine ofinformed consent is at odds with ourSupreme Court’s determination inLogan that jurors should have theopportunity to determine the scopeand amount of information requiredto support a claim based on a lackof informed consent. See Logan v.Greenwich Hospital Assn., supra, 191Conn. 293-94.”

88 Conn. App. at 492.

The Supreme Court reversed theAppellate Court.The defendants argued that the

Appellate Court failed to confine the doc-tor’s duty to inform to the four factorsrecognized in prior case law: (1) the natureof the procedure; (2) the risks and hazardsof the procedure; (3) the alternatives tothe procedure; and (4) the anticipatedbenefits of the procedure. They contendedthat the court below had added a fifth ele-ment, “an obligation on the part of aphysician to disclose details of his or herprofessional experience even if this experi-ence did not increase the risk to thepatient.” 279 Conn. at 688.

The Supreme Court agreed, rejectingthe idea of a flexible standard:

“First, the [plaintiff ’s] claim runs afoulof our adoption and consistent applica-tion of an objective standard of disclo-sure. We do not require a physician todisclose information that a particularpatient might deem material to his orher decision, but, rather, limit theinformation to be disclosed to thatwhich a reasonable patient would findmaterial. Second, the information thatthe plaintiff sought to admit into evi-dence did not relate to any of the four

specific factors encompassed by in-formed consent as we have defined it.Before granting the defendants’ motionin limine the trial court in the presentcase carefully ascertained that the plain-tiff did not claim, and was not offeringany evidence that, Flagg’s prior experi-ence with vaginal birth after cesareansection increased the risks or hazards ofthat procedure for the plaintiff. Theevidence therefore had no relevance toany of the four established elements ofinformed consent in this state.”

Id. at 693.

COMMENT: The court was careful topoint out that if the physician’s prior expe-rience increased the risk to the patient,that information must be disclosed underthe second factor.Furthermore, the decision does not

limit a patient’s right to recover for a doc-tor’s misrepresentation.

§ 4-1 FACT THAT MOST DRIV-ERS ON A GIVEN ROADEXCEED THE SPEEDLIMIT NOT ADMISSIBLEAS CUSTOM — DEEGANV. SIMMONS, 100 Conn.App. 524, cert. denied, 282Conn. 923 (2007); Bishop, J.;Trial Judge — Arnold, J.

RULE: Testimony as to the average or“normal” speed of drivers on a particularroad is not admissible as custom and prac-tice, the reasonableness of speed beingwithin the common knowledge and expe-rience of the jury.

FACTS: Intersection collision case inwhich the plaintiff pulled out from a stopsign and attempted to make a left turnonto Research Parkway in Meriden andwas hit by a truck.Plaintiff alleged speeding and traveling

unreasonably fast. The speed limit onResearch Parkway was 40 m.p.h. Theplaintiff ’s accident reconstructionistopined that the truck driver was traveling49 to 51 m.p.h. The defendant’s accidentreconstructionist opined that the truckdriver was traveling at 39.03 m.p.h.Over objection, defense counsel was

allowed to elicit from the police officerthat the average speed of traffic onResearch Parkway was between 40 and 50miles an hour, and even higher later atnight. Also over objection, defense counselelicited testimony from a lay eyewitness,who regularly drove on Research Parkway,that the “normal speed” of the flow of traf-

fic on Research Parkway was 45 to 50m.p.h.The Appellate Court reversed.

REASONING:“The general rule unquestionably is

that a party charged with negligentconduct will not be allowed to show thatsuch conduct was common or customaryamong those . . . placed under like circum-stances and owing the same duties.” 100Conn. App. at 531.

“Where the evidence in a case is suchthat the trier, applying to the factsfound proven the common knowledgeand experience of men in general has anadequate basis for determining whetherthe conduct in question is that of anordinarily prudent person, the practiceof other persons would serve no suffi-cient purpose to justify its admission,especially in a jury trial where it mightcreate confusion as to the ultimate testto be applied. . . . When the question is,did a person use ordinary care in a par-ticular case, the test is the amount ofcare ordinarily used by men in general,in similar circumstances. If it be matterof common knowledge, such amountof care needs no proof — the jury takenotice of it.”

Id. at 532 (citations omitted; internalquotation marks omitted).

§ 4-1 PRIOR DWI CONVIC-TIONS ADMISSIBLE ONISSUE OF PUNITIVEDAMAGES — YEAKLEY V.DOSS, Supreme Court ofArkansas, No. 06-851,WestLaw 1560550 (May 31,2007); Corbin, J.

RULE: Even when a defendant driveradmits negligence and intoxication, defen-dant’s earlier drunken driving convictionsare relevant to punitive damages claim.

FACTS: Claim arising from motorvehicle accident. Defendant had pledguilty to DWI on the day in question.Plaintiff sought to introduce evidence thatdefendant had pled guilty to drunken driv-ing twice before. Defendant moved inlimine to exclude the prior convictions.The trial court excluded the prior con-

victions as irrelevant. The jury did notaward punitive damages. The SupremeCourt of Arkansas reversed.

REASONING:The standard for award-ing punitive damages includes an assess-ment of whether the defendant acted reck-



lessly, i.e., “with the knowledge that hisconduct of driving while intoxicated couldresult in injury and that he continued thatconduct in reckless disregard of the conse-quence from which malice could beinferred.” Yeakley at 8.The court held that the earlier convic-

tions were relevant to this determination:

“Specifically, the evidence of his convic-tions is relevant to the question ofwhether he knowingly drove in anintoxicated state in conscious disregardto the fact that his actions could resultin injury, an element that Yeakley wasrequired to prove for an award of puni-tive damages.

. . .

Evidence that Doss was intoxicated inthis one instance versus evidence thatthis was in fact his third conviction forDWI could certainly impact a jury’sability to award punitive damages.”

Id. at 9-10.

COMMENT: The standard inConnecticut for awarding common lawpunitive damages or double/treble dam-ages under C.G.S. §14-295 is similar tothe Arkansas standard.

§ 4-3 EVIDENCE RE: INFORMEDCONSENT NOT ADMISSI-BLE IN SURGICAL ERRORCASE — HAYES V.CAMEL, 283 Conn. 475(2007); Norcott, J.; TrialJudge — Radcliffe, J.

RULE: Where there is no informedconsent claim, evidence that the surgeontold the patient that the consequence thepatient ultimately suffered was a risk of theprocedure is inadmissible because its pro-bative value is outweighed by the danger ofconfusion of the issues.

FACTS: Medical malpractice caseclaiming surgical error. Plaintiff had an L4herniated disc for which Dr. Camel per-formed surgery. During the procedure,Camel pierced the dura, causing a leak ofcerebral spinal fluid and damage to theplaintiff ’s sacral nerves.Plaintiff did not claim lack of informed

consent, but that defendant negligentlypierced the dura.Dr. Camel had informed the plaintiff

before surgery that nerve damage was arisk. Plaintiff filed a motion in limine toprohibit the defendant from offering evi-dence that Camel informed plaintiff of

this risk on the grounds (a) that it was notrelevant in the absence of an informedconsent claim and (b) that it would mis-lead the jury into thinking that, when heagreed to the surgery, the plaintiff assumedthe risk of nerve damage.The trial court ruled that the fact that

nerve damage is a risk of the procedure isrelevant because it demonstrates thatresulting nerve damage does not itselfestablish negligence. (Contrast this with acase in which the complication is not a riskof the procedure, so that the fact that thecomplication occurred may establishnegligence.)The trial court also recognized that, as

there was no informed consent claim,there was danger of the jury being misled,and gave a charge designed to avoid themisuse of this evidence:

“[S]imply because a particular injury isconsidered to be a risk of the proceduredoes not mean that a physician isrelieved of the duty of adhering to theappropriate standard of care and doesnot mean that because the injury was arisk of the procedure injury did notresult from a failure to conform to thestandard of care.”

283 Conn. at 492 n.20.

The Supreme Court held that theadmission of the evidence was error that,in view of this charge, was harmless.

REASONING: The court agreed withthe trial judge that the fact that nervedamage is a risk of the procedure is rele-vant, but held that the fact that that riskwas communicated to the patient is notrelevant.

“[A]dmission of testimony about whatthe plaintiff specifically had been toldraised the potential that the jury mightinappropriately consider a side issuethat is not part of the case, namely, theadequacy of the consent. . . . Thus,although evidence of the risks of a surgi-cal procedure is relevant in the determi-nation of whether the standard of carewas breached, it was unduly prejudicialto admit such evidence in the context ofwhether and how they were communi-cated to the plaintiff. Rather, such evi-dence is properly admitted, without thisrisk of confusion and inappropriate prej-udice, in the form of, for example, testi-mony by the defendants or nonpartyexpert witnesses about the risks of therelevant surgical procedures generally.”

Id. at 487-88.

Article VII — Opinions and ExpertTestimony.

§ 7-1 SPOUSE NOT PERMIT-TED TO GIVE OPINIONON VALUE OF REALPROPERTY — PORTER V.THRANE, 98 Conn. App.336 (2006); McLachlan, J.;Trial Judge — Winslow, J.

RULE: Although a property owner ispermitted to give an opinion regarding thevalue of real property, the owner’s spouse isnot.

FACTS: In this divorce case, the princi-ple issue was the value of the marital resi-dence. The husband had sole ownership ofthe property since 1988. The parties weremarried in 1991. The wife had moved outwhen the parties separated in 2001.The trial court permitted the wife to

testify as to the value of the property, rea-soning that “the owner of the property hasintimate knowledge of the characteristicsof the property, the finances associatedwith the property, the condition of theproperty and so forth. This witness wouldappear to be in a similar situation.” 98Conn. App. at 341.

The Appellate Court reversed.

REASONING:

“[A] party, although having no qualifi-cation other than his ownership, iscompetent to testify as to the value ofhis real property. . . . Commentary to §7-1 of the Connecticut Code ofEvidence acknowledges this narrowexception to the general rule that laywitnesses may not give expert opinions.Absent a proper foundation and theestablishment of reasonable qualifica-tions, a witness who is not the owner ofproperty is not competent to testify asto its value.”

Id. (citations omitted).

“Although we recognize that in somesituations a non-owner may be compe-tent to testify about the value of prop-erty, none of those circumstances ispresent here, and we decline the defen-dant’s urging that we extend this excep-tion further to permit a non-owner,nonresident spouse to testify as to thevalue of real property. At the date ofdissolution, the defendant had not


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lived at the property for almost threeyears.

Id. at 341-42 (footnote omitted).§ 7-2 PORTER ANALYSIS

REQUIRED FOR OPINIONTHAT WIND COULDNOT KNOCK OVERLADDER — PRENTICE V.DALCO ELECTRIC, INC. —280 Conn. 336 (2006);Borden, J.; Trial Judge —Frazzini, J.

RULE:Testimony regarding the amountof force required to move a particularobject is within the realm of physics andbeyond the understanding of the averagejuror; therefore, it is the type of evidencerequiring a validity assessment underPorter.

FACTS: Defendant hired the plaintiffto install a sign on the front of its buildingin Meriden. When plaintiff and a co-worker arrived and inspected the site, theyinformed the defendant that they wouldbe unable to complete the work becausethe ladders they had brought were tooshort. The defendant offered the plaintiffthe use of an extension ladder. Plaintiffsaid they could not complete the installa-tion because they needed two extensionladders, but accepted the loan of the oneextension ladder in order to take measure-ments. The owner then offered a secondextension ladder, which they did notaccept.The plaintiff and his co-worker set up

the first extension ladder to take the meas-urements. The owner got the secondextension ladder and leaned it against thebuilding, 8 to 10 feet from where theplaintiff and his co-worker had placed thefirst ladder. At that point the plaintiffinformed the owner that they could notuse the second ladder because it was miss-ing braces required for stability.While the plaintiff was on the first

ladder taking measurements, the secondladder fell, striking the first and knockingthe plaintiff to the ground. No one wastouching the second ladder when it fell.Plaintiff offered the expert testimony of

Mervin Strauss, a forensic engineer andaccident reconstructionist, who testifiedover objection that the wind conditions atthe time and place of the accident wouldnot have caused a properly set up ladder,free of defects, to fall.Strauss contradicted his own testimony

by conceding that he could not state with

reasonable engineering probability that thewind conditions were not the sole cause ofthe ladder becoming dislodged and collid-ing with the plaintiff.He acknowledged that determining the

amount of force required to move a partic-ular object is an exercise within the realmof physics requiring certain factual data(the wind speed, the ladder’s weight, andthe coefficient of friction between the lad-der and the edge of the roof ) and the com-pletion of calculations. Strauss concededthat he had not obtained any of the data orperformed the calculations that wouldallow him to express his opinion to a rea-sonable probability.The defendant filed a motion in limine

seeking to preclude this testimony, andrequested a Porter hearing. The trial courtdenied the request and admitted thetestimony.The Supreme Court reversed.REASONING: “We conclude that

Strauss’ opinion was scientific evidencewithin the meaning of Porter, and that thetrial court abused its discretion by permit-ting Strauss’ expert opinion testimonywithout first assessing the validity of themethodology underlying his opinion aspart of a Porter hearing.” 280 Conn. at347.Next, the court rejected the argument

that because the effect of wind on a ladderis a matter of common experience uponwhich the jury can exercise independentjudgment, no Porter analysis was necessary.The court pointed out that the criticalissue here was not the effect of wind ingeneral, but whether the specific windspeed on the day in question could gener-ate enough force to knock over the ladder.The court then pointed out that “by

Strauss’ own admission, and despite hisfamiliarity with the scientific calculationsthat would have allowed him to have test-ed his theory. . . he used no methodologyto arrive at his conclusions.” Id. at 351-52.Finally, the court rejected the plaintiff ’s

reliance on a line of cases holding that notall scientific evidence requires a Porterhearing. Those cases are confined to areas,such as hair analysis and footprint analysis,where the jury can exercise its own powersof observation to test the expert’s opinion.The jury in this case had no such tools atits disposal.

§ 7-2 PORTER ANALYSIS NOTREQUIRED FOR TESTI-MONY THAT IS NEITHERSCIENTIFICALLY OBSCURE

NOR INSTILLED WITHAN AURA OF MYSTICINFALLIBILITY —HENDERSON V. DEMATTEOMANAGEMENT, INC.,Superior Court, New London(March 14, 2007); DocketNumber CV-05-5000094;Leuba, J.

RULE: Testimony which is neitherscientifically obscure nor instilled with anaura of mystic infallibility, and whichmerely places a jury in a position to weighthe probative value of the testimony with-out abandoning common sense and sacri-ficing independent judgment, does notrequire a Porter analysis.

FACTS: In this premises liability case,plaintiff had gone into a stall in a handi-capped ladies’ room and hung her eight-pound purse from the hinged grab bar.When she bent down to assist her child inusing the toilet, the bar fell from itsupright position and hit her on the head.The grab bar was designed to rest verti-

cally against the wall next to a toilet untilneeded by a disabled person, who moves itto a horizontal position for railing support.The bar pivots on a hinge with anadjustable clamping mechanism.The evidence at issue in the case related

to the amount of force needed to move thebar from upright to horizontal. The plain-tiff sought to offer the testimony of anengineer that the more an adjustableclamp around the hinge is tightened, theslower the grab bar descends. Plaintiffsought to offer the engineer’s opinion thatin this case the clamp was adjusted tooloose, allowing the bar to “free fall” ratherthan descend at a controlled pace.Defendant filed a motion in limine to

preclude this evidence. The trial courtdenied the motion.

REASONING: The trial court heldthat this testimony “does not involve the’aura of mystic infallibility’ nor is it ’scien-tifically obscure.’ For this reason the courtfinds a Porter analysis inappropriate to thecase.” Henderson at 13.§ 7-2 EXPERT TESTIMONY

NOT REQUIRED TOESTABLISH THAT APROFESSIONAL’S FAIL-URE TO FILE AREQUIRED NOTICE WASNEGLIGENT — VANLINERINSURANCE COMPANY V.FAY, 98 Conn. App. 125



(2006); Gruendel, J.; TrialJudge — Stevens, J.

RULE: While a claim against an insur-ance adjuster sounds in professional negli-gence, expert testimony was not requiredto establish negligence where the adjuster’sfailure to file a required notice constituteda gross and obvious want of care and skill.

FACTS: The defendant insuranceadjuster failed to file a notice to transfer aworkers’ compensation claim from theplaintiff to the Second Injury Fund ontime.

Defendant claimed that expert testimonywas needed to establish the standard ofcare for a workers’ compensation adjusterin Connecticut. The trial court disagreed.The Appellate Court affirmed.

REASONING: Although expert testi-mony as to the standard of care is usuallyrequired in professional negligence cases,there is an exception for an obvious andgross mistake. “In this instance we are sat-isfied that the court was able to discern thevarious days on a calendar without theneed for expert testimony.” 98 Conn. App.125 at 138.

§ 7-2 EXPERT TESTIMONY ISNOT REQUIRED TO APPLYBOATING REGULATIONS— MICHALSKI V. HINZ,100 Conn. App. 389 (2007);Gruendel, J.; Trial Judge —Frankel, J.

RULE: Issues involving the applicabilityof, and compliance with, boating regula-tions are not beyond the ken of the averagetrier of facts.

FACTS: Boating collision in which oneof the plaintiff ’s claims was that the defen-dant failed to sound his horn before thecollision. The 2001 Connecticut Boaters’Guide was admitted as an exhibit. ThatGuide provides that two vessels on a colli-sion course should exchange a one-blastsignal.Defendant claimed that plaintiff could

not establish a prima facie case of negli-gence without the aid of expert testimony.The trial court disagreed. The SupremeCourt affirmed.

REASONING:

“The issues before the court involvedboating regulations and the defendant’scompliance therewith. . . . [O]ur boat-ing regulations require the sounding ofa horn when two vessels are approach-ing in a head-on situation. Whether the

defendant in fact complied with thatprecautionary requirement is a relative-ly straightforward inquiry that is notmanifestly beyond the ken of the aver-age trier of fact.”

100 Conn. App. at 404-05.

§ 7-2 EXPERT TESTIMONYNOT REQUIRED TOADMIT PHOTOS OFVEHICLE DAMAGE —BRENMAN V. DEMELLO,191 N.J. 18, 921 A.2d 1110(2007); Rivera-Soto, J.

RULE: Expert testimony is notrequired for the admission of photographsof vehicle damage offered to show thecause or extent of a plaintiff ’s injury.

FACTS: Plaintiff alleged that, as aresult of a rear-end collision, she requireda three-level cervical fusion. Defendantoffered photographs of plaintiff ’s car,showing minimal bumper damage.Plaintiff filed a motion in limine to

exclude the photographs absent expertbiomechanical testimony connecting theextent of the car damage to the force of theimpact. Defendant argued that the photo-graphs were admissible to prove the extentof the impact, the damage to plaintiff ’svehicle, and, by inference, the forceinvolved and the extent to which plain-tiff ’s injuries were caused by the impact.The trial court admitted the photo-

graphs. The jury found that the defendantdid not cause the plaintiff ’s injuries. TheSupreme Court of New Jersey affirmed.

REASONING:

“We reject a per se rule that requiresexpert testimony as a foundation forthe admissibility of a photograph ofvehicle damage when the photograph isused to show a correlation between thedamage to the vehicle and the cause orextent of injuries claimed by an occu-pant of the struck vehicle. Instead, wecommend that judgment to the sounddiscretion of the trial court. Consistentthere with, a party opposing the admis-sion of photographs of damage to a carremains free to offer expert proofs forthe purpose of showing that there is norelationship between the extend of thedamage and the cause and severity ofthe resulting injuries. Conversely, aparty proposing the use of photographsof impact may tender its own expertproofs to further support the proposi-tion in its case-in-chief — either that

slight impact force results in no orslight injury, or that great impact forceresults in great injury — or to rebut itsopponent’s assertions. In the end, how-ever, such expert proofs address theweight to be given to photographs ofimpact, not their admissibility.”

191 N.J. at 21.

§ 7-2 EXPERT TESTIMONY ISREQUIRED TO PROVETHAT METHADONE INBLOOD IMPACTEDBEHAVIOR — STATE V.LAWSON, 99 Conn. App.233, cert. denied, 282 Conn.901 (2007); McDonald, J.;Trial Judge — Tobin, J.

RULE: The effect of a trace amount ofmethadone in a driver’s blood is relevantonly if it is shown to have affected the dri-ver’s ability to operate, a subject on whichexpert testimony is required.

FACTS: Prosecution for manslaughterwith a motor vehicle, in which defendant,a drunk driver, turned left in front of amotorcycle, killing the motorcyclist. Thedefendant fled the scene.On autopsy, a trace amount of

methadone was found in the motorcyclist’sblood. The State filed a motion in limine topreclude the defendant from offering thisevidence. The trial court granted themotion, ruling that “the effects of a traceamount of methadone on motor skills orjudgment must be shown by testimony froma qualified expert.” 99 Conn. App. at 247.The trial court gave the defendant the

opportunity to produce such expert testi-mony, which the defendant did not do.The Appellate Court affirmed.

REASONING: In support of its claimthat expert testimony is not required, thedefendant pointed to State v. Padua, 273Conn. 138 (2005) in which the SupremeCourt held that expert testimony was notrequired to prove that eating marijuana isbad for children. The Lawson court distin-guished Padua in that “unlike the effects ofmarijuana, the effects of a trace amount ofmethadone on driving impairment is not amatter of common knowledge, experience,and common sense; therefore expert evi-dence would be required.” 99 Conn. App.at 250.

§ 7-2 EXPERT TESTIMONY ISREQUIRED TO LINKMARIJUANA IN BLOODTO BEHAVIOR — DEEGANV. SIMMONS, 100 Conn.App. 524, cert. denied, 282


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Conn. 923 (2007); Bishop, J.;Trial Judge — Arnold, J.

RULE: A laboratory report showingthat a driver’s blood tested positive formarijuana is inadmissible absent experttestimony linking the finding to behavior.

FACTS: When defendant truck driverSimmons was taken to the hospital, a testfor a cannabinoid in his system resulted ina finding of “abnormal.” Plaintiff allegedthat Simmons was operating under theinfluence of marijuana. Defendant filed amotion in limine to exclude the laboratoryreport. The trial court granted the motion.The Appellate Court affirmed.

REASONING: On appeal, plaintiffrelied on State v. Clark, 260 Conn. 813(2002), which held that expert testimonywas not required to demonstrate the effectof marijuana on an eyewitness who testi-fied to smoking five marijuana cigarettesshortly before witnessing the incident inquestion. The Supreme Court distin-guished Clark on numerous points:

“In the case at hand, the court correctlynoted that there was no evidence thatmarijuana had been used prior tothe accident and no evidence thatSimmons was impaired while drivinghis vehicle. Without corroborating evi-dence, the laboratory report itselfwould not explain: (1) how long acannabinoid substance stays in a per-son’s system; (2) the amount ofcannabinoid in Simmons’ system at thetime of the accident; (3) the relation-ship between cannabinoid and marijua-na; (4) what other products mightcause a positive result for a cannabinoidsubstance; (5) whether urine tests couldproduce a false positive result and, if so,how often; (6) the possibility for con-tamination of the sample; and (7) thechain of custody of any sample. Theseare not subject areas within the com-mon knowledge of the jury and yeteach of these factors has evidentiary sig-nificance. Thus, the court correctlyconcluded that the laboratory reportindicating an “abnormal result” for acannabinoid screen was inadmissibleabsent explanatory expert opinion.”


§ 7-3 NUMBER OF M.P.H.OVER SPEED LIMIT ATWHICH OFFICER ISSUESTICKETS INADMISSIBLE— DEEGAN V. SIMMONS,100 Conn. App. 524, cert.

denied, 282 Conn. 923(2007); Bishop, J.; Trial Judge— Arnold, J.

RULE: Police officer’s testimony thathe does not ticket motorists unless they aretraveling more than 15 m.p.h. over thespeed limit is inadmissible opinion testi-mony on the ultimate issue of reasonablespeed.

FACTS: See § 4-1 above. Over objec-tion, the defendant offered the testimonyof Officer Harris that he usually ticketedmotorists only when they went more than15 m.p.h. over the posted speed limit,because he felt it was reasonable.The trial court allowed the testimony.

The Appellate Court reversed.

REASONING:

“Here, it is undisputed, that an ulti-mate issue at hand was the reasonable-ness of the speed at which [defendant]Simmons was driving at the time of theaccident. Thus the question is whetherHarris’ testimony constituted an opin-ion on this ultimate issue. Although thedefendants argue that Harris’ testimonywas factual in nature and not opiniontestimony, we conclude that his testi-mony taken as a whole and given itslogical effect, was an opinion on theultimate issue in the case. Thus, itshould not have been admitted.” 100Conn. App. at 535-36.

“Harris’ testimony regarding the speedshe considers to constitute a chargeableoffense constituted no more than anindirect or disguised opinion of whetherSimmons’ actions were unreasonable.In essence Harris was suggesting byimplication that he does not ticketdrivers for speeds up to fifteen miles perhour over the speed limit because hebelieves it is reasonable for motorists todrive at such speeds on ResearchParkway. Thus, in the guise of a factualrepresentation, Harris was permitted tosuggest that Simmons was traveling ata reasonable speed. Indeed, whenasked why he usually tickets someonedriving more than fifteen miles perhour over the posted speed limit, Harrisresponded ‘[b]cause I feel it’s reason-able.’ Accordingly, we conclude thatunder the facts of the present case, thecourt improperly admitted Harris’ tes-timony because it constituted improperopinion evidence.”


Article VIII — Hearsay.

§ 8-4 POLICE DIAGRAM BASEDON WITNESS STATE-MENTS INADMISSIBLE —PIROLO V. DEJESUS, 97Conn. App. 583 (2006);Schaller, J.; Trial Judge —Zoarski, J.

RULE: A police diagram showing howvehicles collided based on what the driversand witnesses said is hearsay and does notfall within the business record exception.

FACTS: In this rear-end collision case,plaintiff testified that, while stopped at ared light, she was hit from behind by thedefendant. The defendant testified thatplaintiff backed up into defendant afterunsuccessfully attempting a right turn.The cars were not moved before the policeofficer arrived at the scene.The police diagram showed the plain-

tiff ’s vehicle turned slightly to the right atthe corner of the intersection, but thearrows did not indicate that the plaintiffhad backed up. The police officer testifiedthe diagram was based upon the state-ments of the drivers and witnesses.The trial court admitted the diagram.

The Appellate Court found the admissionto be error, but harmless.

REASONING: Police reports are sub-ject to the business record analysis.Statements in a police report must bebased upon the officer’s own observationsor upon information provided by anobserver with a business duty to transmitthe information (e.g., another officer).Therefore, witness statements in policereports are inadmissible unless they fallwithin another hearsay exception, such asstatements of opposing parties.A police diagram showing how the

vehicles collided is treated much like astatement. If it is based upon the accountsof the drivers and witnesses, it is inadmis-sible. If it is based upon the police officer’sown observation, his independent accidentreconstruction, or the observations ofother officers, it is admissible. (If the dia-gram is based on the statement of a partyopponent, it is also admissible.)

Discovery

REFUSAL TO ENFORCEPARTIES’ DISCOVERYRIGHTS REVERSIBLEERROR — RAMIN V.RAMIN, 281 Conn. 324,(Feb. 20, 2007); Borden, J.;Trial Judge — Shay, J.



RULE: Where motions to enforce dis-covery requests are properly presented tothe court, the court has an obligation toconsider these motions and if necessary toallow a party to properly prosecute hercase, enter appropriate orders to enforcethe parties’ discovery rights.FACTS: On August 2, 2000 the plain-

tiff filed her first discovery requests. Thedefendant failed to comply. Plaintiff filed amotion for contempt. In October 2000the court ordered the defendant to comply.The plaintiff filed her second motion

for contempt in January 2001. Defendantprovided an authorization allowing plain-tiff to obtain information directly from hisemployer. Plaintiff was unsuccessful inobtaining the information from theemployer.In July 2001 the plaintiff filed her third

motion for contempt, in response towhich the court ordered the defendant torespond within 30 days and imposed a$2500 sanction. In August, the defendantprovided partial compliance. In October,the plaintiff provided the defendant with adetailed list of documents still missing,and requested the payment of the $2,500.In January 2002 the plaintiff filed her

fourth motion for contempt, which led thecourt to impose attorney’s fees and sanc-tions against the defendant. In February,the parties participated in a discoverymediation which resulted in a court orderfor the production of documents. Still,production was incomplete.In August, the plaintiff filed her fifth

motion for contempt. When the motionfor contempt was presented for a hearingin September, the court pointed out thatthe case was the oldest case on the docketand set it down for trial. When the plain-tiff attempted to bring to the court’s atten-tion the specific items needed for the trial,the court, evincing its frustration with theage of the case and the court’s own case-load, refused to address the issues.The Supreme Court reversed in a 4 to 3

decision.

REASONING:

“We have already squarely addressedthis issue, concluding that, in theabsence of ’an extreme, compellingsituation,’ a trial court that has jurisdic-tion over an action lacks authority torefuse to consider a litigant’s motions.”

281 Conn. at 336.

Discovery

SANCTION OF DEFAULTFOR DISCOVERY VIOLA-TION HELD REVERSIBLEERROR — SWEENEY V.CHOICE HOTELS INTER-NATIONAL, INC., 97 Conn.App. 741 (2006); Flynn. J.;Trial Judge — Gordon, J.

RULE: Before a trial court may imposesanctions for violation of a discovery order,the order must be reasonably clear, and therecord must establish that the order was infact violated. In addition, the sanctionmust be proportional to the violation.

FACTS: Slip-and-fall case in which thedefendant failed to produce its franchiseagreement. The trial court entered adefault against the defendant and added asa further sanction that certain paragraphsof the plaintiff ’s complaint were deemedadmitted. The Appellate Court reversed,finding an abuse of discretion.

REASONING: The Appellate Courtrelied on Millbrook Owners Assn. Inc. v.Hamilton Standard, 257 Conn. 1 (2001),which established the rule set forth abovefor the imposition of sanctions as a resultof the violation of discovery orders. Thecourt held that in this case the first prong(that the discovery order be reasonablyclear and that the record establishes it wasviolated) was not met.

Expert Disclosure

PRECLUSION OF EXPERTREVERSED — WEXLER V.DEMAIO, 280 Conn. 168(2006); Vertefeuille, J.; TrialJudge — Sheldon, J.

RULE: Trial court’s order that partywho had not timely complied with expertdisclosure requirements file a detailed writ-ten expert report; and the subsequentorders precluding the expert and grantingsummary judgment, reversed.

FACTS: Medical malpractice actionagainst four physicians. Three were in onepractice and represented by the same attor-ney. The fourth, Davis, was from a differ-ent practice and represented by separatecounsel.In July 2002 the court issued a schedul-

ing order requiring the plaintiffs to dis-close their experts by November 2002.The plaintiffs did not comply.In May 2003 defendant Davis filed a

motion for summary judgment. Two

weeks later, the plaintiffs filed a motionseeking more time to disclose their expertwitnesses. The court granted the plaintiffs’motion to extend time until June, butrequired that, in addition to fully comply-ing with the Practice Book disclosurerequirements, the disclosure include (a)the expert’s c.v., (b) a list of all materialsand information viewed or considered bythe expert, (c) a copy of all such materialsnot yet disclosed, and (d) a list of all casesin which the expert had testified sinceJanuary 1999.The court also ordered the plaintiffs to

make the expert available for a depositionon specific dates during the first two weeksof July, and to bear all costs associated withthe deposition.The plaintiffs filed their disclosure

within the court’s deadline, but did notinclude a list of the cases in which theexpert had testified.Defendant Davis filed a motion to pre-

clude. The defendants chose not to deposethe plaintiffs’ expert.A hearing was held on September 4,

2003 at which the court found that theplaintiffs’ compliance was insufficient andordered that a written report be suppliedby the expert by September 10, 2003.Fifteen days after this deadline, the

plaintiffs filed an additional supplementaldisclosure which provided more detail, butno written report, billing list, or transcriptsof prior testimony.The trial court then granted the defen-

dant’s motions to preclude and for summa-ry judgment. The Appellate Court affirmed.The Supreme Court unanimously

reversed the Appellate Court.REASONING: The Appellate Court

had upheld the trial court’s authority torequire a written report under the circum-stances of this case: “Given that the courtcould have precluded the plaintiffs’ expertunder § 13-4 (4) or its own inherent pow-ers to compel observance of its rules; seeMillbrook Owners Assn., Inc. v. HamiltonStandard, supra, 257 Conn. 12-13; thecourt was well within its discretion to issuea new, albeit stringent, discovery order.”Wexler v. Demaio, 88 Conn. App. 818,831-32 (2005).Judge Lavery had dissented: “I believe

that the expert disclosure provided bythe plaintiffs . . . met the requirements ofPractice Book § 13-4 (4). Accordingly, Iwould hold that the court order ofSeptember 4, 2003, which imposed addi-


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tional stringent requirements that theplaintiffs were unable to meet and ulti-mately resulted in the dismissal of theircase, was an abuse of discretion.” Id. at834.Judge Lavery continued:

“The plaintiffs argue persuasively thatthe court improperly imported intostate court proceedings the more rigor-ous standard for expert disclosure infederal cases. The current federal rule,in contrast to § 13-4 (4), explicitly con-templates disclosure similar to thatordered by the court, in particular, dis-closure of a detailed “written reportprepared and signed by the witness . . .contain[ing] a complete statement ofall opinions to be expressed and thebasis and reasons therefor; the data orother information considered by thewitness in forming the opinions; anyexhibits to be used as a summary of orsupport for the opinions; the qualifica-tions of the witness, including a list ofall publications authored by the witnesswithin the preceding ten years; thecompensation to be paid for the studyand testimony; and a listing of anyother cases in which the witness has tes-tified as an expert at trial or by deposi-tion within the preceding four years.”Fed. R. Civ. P. 26 (a)(2)(B).

Id. at 837-38.

As this dissent points out, the federalrule was designed to eliminate or reducethe need for deposing experts. In contrast,Connecticut state courts, the disclosureis designed to give the opposing side aframework to be examined in detail atdeposition.In reversing the Appellate Court, the

Supreme Court reiterated that the ruleregarding the imposition of sanctions is setforth in Millbrook Owners Assn., Inc. v.Hamilton Standard, 257 Conn. 1 (2001).The court then addressed whether or

not the plaintiffs’ disclosure met therequirements of § 13-4(4), and held that itdid. The court specifically rejected some ofthe conditions imposed by Judge Sheldonand approved by the Appellate Court. Itheld that the failure of the disclosure todistinguish specifically what opinionsrelated to each defendant was not a viola-tion of § 13-4(4), and rejected the asser-tion that the failure to link the documentsrelied on by the experts to specific opin-ions was a violation of § 13-4(4).The Supreme Court noted that § 13-

4(4) is designed to “apprise the defendantof the basic details of the plaintiffs’claims.” 280 Conn. at 187.

“Indeed, the text of § 13-4(4) wasmodeled on the interrogatory require-ments of Practice Book § 13-4(1)(A),which was not intended to elicit “anoverly detailed exposition of theexpert’s opinion.” R. Ciulla & R. Allen,“Comments on New Practice BookRevisions,” 4 Conn. L. Trib., June 19,1978, p. 3 (explaining amendments torules of practice).

“In the present case, although theplaintiffs’ June disclosure was not asprecise and detailed as it could havebeen, we nevertheless conclude that itcomplied with the minimal require-ments of § 13-4(4) because it adequate-ly disclosed the name of the plaintiffs’expert witness, the subject matter onwhich he was expected to testify thesubstance of the facts and opinions towhich he was expected to testify and asummary of the grounds of eachopinion.”

Id. at 189-90 (footnotes omitted).

Expert Disclosure

INCORPORATINGEXPERT REPORT BYREFERENCE SUFFICIENTFOR DISCLOSURE —MILARDO V. KOWALESKI,101 Conn. App. 822, (June19, 2007); Gruendel, J.; TrialJudge — Aurigemma, J.

RULE: Disclosing that an expert willtestify in accordance with an attachedreport is sufficient to set forth “the sub-stance of the facts and opinions to whichthe expert is expected to testify.”

FACTS: Rear-end collision in whichthe defendants contested whether theplaintiff ’s neck and back pain were causedby the collision. Defendants offered experttestimony that the collision was not thecause of the plaintiff ’s problems.In their disclosure pursuant to Practice

Book § 13-4(4), as to the substance of thefacts and opinions to which the expertwould testify, the defendants stated that hewould testify “in accordance with his writ-ten report (copy attached).” 101 Conn.App. at 833. The trial court admitted theopinions. The Appellate Court affirmed.

REASONING: The court cited theWexler case (above) as well as Catalano v.

Falco, 74 Conn. App. 86 (2002), whichheld sufficient an expert disclosure thatclearly indicated that the expert wasexpected to testify in accordance with histreatment notes and evaluation and con-sultation reports, which had previouslyhad been produced.

Peremptory Challenges

PEREMPTORY CHAL-LENGES CANNOT BEEXERCISED ON THEBASIS OF GENDER —STATE V. GEORGE J., 280Conn. 51 (2006); Katz, J.;Trial Judge — Hadden, J.

RULE:The constitutional rights to dueprocess and a fair trial do not supersede themandates of equal protection so as to ren-der unconstitutional the rule prohibitinggender based peremptory challenges.

FACTS: Defendant was accused of sex-ually assaulting boys. He maintained thatmale jurors were more likely to be biasedagainst him than female jurors, and soughtto exercise peremptory challenges on thebasis of gender. The trial court did notallow the defendant to exercise peremptorychallenges solely on the basis of gender.The Supreme Court affirmed.

REASONING: Under established caselaw, no litigant is permitted to exerciseperemptory challenges on the basis of race.The court rejected the proposition thatgender-based challenges are permissiblebecause a less exacting standard of scrutinyis applied by the court to gender-basedequal protection argument.

Demonstrative Evidence

UNLESS MARKED AS AFULL EXHIBIT, A PIECEOF DEMONSTRATIVEEVIDENCE DOES NOTGO INTO JURY DELIBER-ATION ROOM— BARRYV. QUALITY STEELPRODUCTS, INC., 280Conn. 1 (2006); Borden, J.;Trial Judge — McWeeney, J.

RULES: Evidence that is not marked asa full exhibit cannot be used by the jury indeliberations, even if requested.

FACTS: Plaintiffs, installing a roof,stood on staging attached to the roof withbrackets designed and manufactured bythe defendants. One of the brackets bent,toppling the plaintiffs off the roof.Plaintiffs brought this products liability



case, alleging the bracket was defective.Defendants claimed that the bracket

had not bent, but had been improperlyaffixed to the roof with nails that were toosmall. They claimed that the bend in thebracket after the fall was caused by impactwith the ground.At trial, the defendants used a model of

the roof on which the plaintiffs were work-ing when they fell, and marked it as ademonstrative exhibit.During jury deliberations, the jury

requested access to the model. The trialcourt did not permit the jury access to themodel, because it had not been marked as afull exhibit. The Supreme Court affirmed.

REASONING: The defendants arguedthat the reason the model was neveroffered as a full exhibit was because it waslarge and heavy, but that it model shouldbe treated like a request to view the sceneof an accident, which also would not bemarked into evidence. It would be withinthe court’s discretion to allow a jury visit tothe scene.The court rejected this analogy, noting

that it is within the court’s discretion toadmit demonstrative exhibits and markthem as full exhibits. This would haverequired the defendants to establish thatthe model was “substantially similar to thescene at the time of the accident” whichthey had not done. The defendants hadnot even offered the model as a full exhib-it. 280 Conn. at 20.

COMMENT: The defendants couldhave offered the model as a full exhibitwhen the jury requested to see it.

Evidence in Arbitration

RELAXED RULES OFEVIDENCE IN UNRE-STRICTED ARBITRATION— KRASSNER V. ANSONIA,100 Conn. App. 203 (2007),Bishop, J.; Trial Judge —Nadeau, J.

RULE: In arbitration under an unre-stricted submission, arbitrators are notrequired to follow the rules of evidence.

FACTS: Plaintiff police officer was dis-charged due to abuse of OxyContin, asso-ciation with drug dealers, and lack oftruthfulness. Under the collective bargain-ing agreement between the Police Unionand Ansonia, the matter was submitted toarbitration. The arbitration panel admit-ted unsworn witness statements that theofficer was using drugs and associating

with drug dealers.Plaintiff filed an application to vacate

the award for allowing unsworn state-ments of witnesses into evidence. The trialcourt held that the use of such statementsdeprived the plaintiff of the right to cross-examine these witnesses and vacated thearbitration award. The Appellate Courtreversed.

REASONING: Since arbitrators arenot bound by the rules of evidence, thetrial court must find that the admission ofthe statements amounts to misconductthat substantially prejudiced the movant— in other words, that the improper evi-dentiary ruling likely affected the result.The Appellate Court held that the

unsworn statements were admitted inerror, because under the Regulations ofConnecticut State Agencies, § 31-91-39(a), they were required to be in the formof sworn affidavits. However, the courtheld that the admission did not constitutemisconduct which deprived the officer of afull and fair hearing, and thereforereversed the trial court.

Collateral Source Adjustment

JURY INSTRUCTED TODISREGARD REFERENCESTO MEDICAL INSUR-ANCE — CAPOZZIELLOV. ROBINSON, 102 Conn.App. 93 (2007); per curiam.Trial Judge — Gilardi, J.

RULE: It is not necessary to redact ref-erences in exhibits to medical insurancecoverage or payment of medical bills.

FACTS: In this collision case, defensecounsel questioned of the plaintiff as towhether he had medical insurance. Themedical bills marked as full exhibits con-tained references to payment by medicalinsurance. Plaintiff did not object, andclaimed plain error on appeal. TheAppellate Court affirmed.

REASONING: The Appellate Courtapproved the trial court’s use of the follow-ing charge:

“Now, you’ve heard reference to insur-ance, and there may be reference on themedical bills to insurance, which mayor may not cover some of the medicalexpenses incurred by the plaintiff.You’re not to concern yourself withwhether or not there was insurance cov-erage for some or any of these expenses,nor should you speculate or guess as towhat amount, if any . . . may have been

[paid] by insurance. Any payments madeare not your concern because after thecase is over, the court makes any and allnecessary adjustments to your verdict .. . and we take into account any pay-ment . . . that were made from . . . col-lateral sources.”

102 Conn. App. at 94 n.2 (ellipses inoriginal).

Apportionment

APPORTIONMENT OFNEGLIGENCE IS NOTAVAILABLE AS TO AWITHDRAWN PARTY —VIERA V. COHEN, 283Conn. 412 (2007); Katz, J.;Trial Judge — Eveleigh, J.

RULE: When a plaintiff withdraws acase against one defendant for no consid-eration, remaining defendants cannotclaim apportionment as to the withdrawndefendant.

FACTS: This is a medical malpracticecase arising out of the delivery of JodeeViera, during which she suffered shoulderdystocia.Dr. McNamee attended to Jodee’s

mother during her pregnancy, and waspresent during the early stages of her labor.However, McNamee left during the sec-ond stage of her labor and thereafter wasunavailable.Dr. Cohen, one of McNamee’s part-

ners, attended to the mother during thefinal stages of labor and delivery and deliv-ered the baby.During the delivery, Jodee’s head deliv-

ered but her shoulders became lodged. Inorder to avoid catastrophic neurologicalinjury or death, Jodee was delivered in afashion which injured her brachial plexus,leaving her with permanent injury to herleft arm.The plaintiff, who sued both

McNamee and Cohen, decided duringjury selection to pursue only McNamee,and withdrew the case against Cohen. Theplaintiff ’s theory at trial was thatMcNamee had breached the standard ofcare by failing to ascertain and recognizerisk factors for shoulder dystocia beforeand during the mother’s early stages oflabor, and by failing to perform a cesareansection during those early stages. In partic-ular, the plaintiff ’s expert opined thatJodee’s unusually large size was the pre-dominant cause of the shoulder dystocia.The plaintiff ’s position was that, by the


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time Cohen appeared on the scene, it wastoo late to avoid the injury.After the plaintiff filed the withdrawal,

McNamee filed a notice of claim of appor-tionment as to his partner, the withdrawndefendant Cohen. The trial court refusedto allow McNamee to claim apportion-ment against Cohen. The Supreme Courtaffirmed.

REASONING: C.G.S. § 52-572h(d)allows a jury to apportion to only twoclasses of persons: (1) the present parties tothe action; and (2) “settled or released per-sons under subsection (n).” A “settled orreleased person” under subsection (n) isone who has entered into “release, settle-ment, or similar agreement . . .”Defendant argued that, based on the

public policy of requiring defendants innegligence cases to pay only their fairshare, the statutory definition should beread broadly enough to include a simplewithdrawal that is not a settlement. TheSupreme Court rejected this claim in a 3to 2 decision.The defendant also argued that plaintiff

had conditioned her withdrawal on Cohenagreeing not to meet with defense counsel,endeavor to meet with plaintiff ’s counsel,etc. The Supreme Court held that therecord did not establish that there was aquid quo pro for withdrawing the action.

COMMENT: It is essential that aplaintiff withdrawing an action againsta defendant not seek anything in returnif plaintiff wants to avoid apportionment.For example, an agreement that the doctorwill not bring a vexatious lawsuit claimagainst the plaintiff would likely allow theremaining defendants to claim apportion-ment

Authority to Change the Code ofEvidence

CAN THE SUPREMECOURT CHANGE THEC.C.E., OR MERELYINTERPRET AND APPLYIT? — STATE V. SAWYER,279 Conn. 331 (2006);Zarella, J.; Trial Judge —Espinosa, J.

RULE: While authority to change theC.C.E. lies with the judges of the SuperiorCourt in the discharge of their rule-making function, to the extent that changesto evidentiary rules implicate substantiverights, authority may reside in the SupremeCourt in the exercise of its common-law

authority.FACTS: In State v. Kulmac, 230 Conn.

43 (1994), the Supreme Court had heldthat in sexual assault cases prior misconductevidence may be viewed more liberally.This holding was then codified in theC.C.E.The question raised in Sawyer, a sexual

assault prosecution, was whether or notthe Supreme Court has the authority toreconsider Connecticut’s approach to priormisconduct evidence in sexual assault casesand change the rule.

DISCUSSION: The majority opinion,by Justice Zarella, declined to decide theissue.In a concurring opinion, Justice Katz,

Chair of the Evidence C.C.E. OversightCommittee, set forth her opinion that theSupreme Court cannot “reconsider thatholding absent a rule change by the judgesof the Superior Court, guided by theEvidence Code Oversight Committee.”279 Conn. at 363. Justice Katz continued:

“Nonetheless, the majority questions,but leaves to another day, whether, tothe extent that evidentiary rules may‘implicate substantive rights,’ thoserules properly may be the subject ofsuch judicial rule making, as opposedto common-law adjudication. In myview, for the reasons that follow, theanswer to this question is clear andstraightforward and we should not sug-gest otherwise to the trial judges whoare charged with the daily applicationof the Code. The Code governs whereit speaks, and the courts’ common-lawrule-making authority governs eitherwhere the Code does not speak orwhere the Code requires interpretation.See Conn. Code Evid. § 1-2.

“The majority’s questioning of thisjudicial rule-making authority appearsto be predicated on a distinction in evi-dentiary rules between those that aresubstantive in effect and those that are,I assume, merely procedural in effect. Idisagree with the majority’s founda-tional premise. This court has statedunequivocally that ’[t]the rules of evi-dence are procedural.’”

279 Conn. at 363-64 (footnotes omitted).

Justice Katz went on to opine that theCode of Evidence should be treated as “anextension of the Practice Book . . .” 279Conn. at 366.Justice Borden, who was chair of the

committee that drafted the C.C.E., wrote aconcurring and dissenting opinion agree-ing with Justice Katz. His opinion con-tains a comprehensive discussion of thehistory of the C.C.E. Justice Borden wrotethat, in his view, changes in the existingevidentiary law can be accomplished onlyby amendments to the C.C.E. voted on bythe judges of the Superior Court, while thepower to interpret the C.C.E. remains withthe judges in their common-law authority.

Appellate Review of Code Decisions

STANDARD OF APPEL-LATE REVIEW FOR CODEOF EVIDENCE DECISIONS— STATE V. SAUCIER, 283Conn. 207 (2007); Katz, J.;Trial Judge — D’Addabbo, J.

RULE: A trial court’s decision based onan interpretation of the C.C.E. is subjectto plenary review. The trial court’s decisionabout whether particular evidence fitswithin a given rule is reviewed under anabuse of discretion standard.

FACTS: Sexual assault prosecution inwhich, after the victim reported the assaultto the police, she told an acquaintance, “Igot Richie, I got him good.”The defendant offered this statement

under the state of mind exception to thehearsay rule, § 8-3(4). The trial court didnot admit the statement, ruling that thestatement did not fit the exception becauseit was a statement about a past act not a“then existing mental or emotional condi-tion. . . .” The Supreme Court affirmed.The decision clarifies the standard of

appellate review for cases involving theC.C.E. The court adopted a rule underwhich the standard of review dependsupon the nature of the ruling in the con-text of the issues of the case:

“To the extent a trial court’s admissionof evidence is based on an interpreta-tion of the Code of Evidence, ourstandard of review is plenary. For exam-ple, whether a challenged statementproperly may be classified as hearsayand whether a hearsay exception prop-erly is identified are legal questionsdemanding plenary review. They requiredeterminations about which reasonableminds may not differ; there is no ’judg-ment call’ by the trial court, and thetrial court has no discretion to admithearsay in the absence of a provisionproviding for its admissibility . . .

“We review the trial court’s decision to



admit evidence, if premised on a cor-rect view of the law, however, for anabuse of discretion . . . In other words,only after a trial court has made thelegal determination that a particularstatement is or is not hearsay, or is sub-ject to a hearsay exception, is it vestedwith the discretion to admit or to barthe evidence based upon relevancy,prejudice, or other legally appropriategrounds related to the rule of evidenceunder which admission is being sought.For example, whether a statement istruly spontaneous as to fall within thespontaneous utterance exception willbe reviewed with the utmost deferenceto the trial court’s determination.Similarly, appellate courts will defer tothe trial court’s determinations onissues dictated by the exercise ofdiscretion, fact finding, or credibilityassessments.”

283 Conn. at 218-19.

Amendments to the Code of EvidenceFollowing years of careful scholarship

and meetings, the Evidence Code OversightCommittee recommended to the RulesCommittee on the Superior Court sevenchanges to the C.C.E.The Rules Committee voted to submit

five of the proposed changes to publichearing, and to table the two proposalswhich implicated the authority of thejudges of the Superior Court to adopt theRules of Evidence that are not in accor-

dance with common law or statute. (Seediscussion of State v. Sawyer, above.)

The five proposed changes were adoptedby the judges at their Annual Meeting, andwill take effect on January 1, 2008.

The Adopted Changes:§ 2-1. Judicial Notice of Adjudicative

Facts

The provision in § 2-1 regarding thecourt’s instruction to the jury on the effectof judicial notice was deleted, in recogni-tion of the fact that the C.C.E. “is not theappropriate repository for jury instruc-tions.”

§ 7-2. Testimony by Experts

A typo was corrected in the commen-tary that the Rule is 7-2 not 702.

§ 8-3. Hearsay Exceptions:Availability of DeclarantImmaterial

Subsection 5 of § 8-3, dealing withstatements for purposes of obtainingmedical treatment, was amended to givesubstantive effect to all statements made tomedical professionals. The change isdescribed in the new commentary:

“Early common law distinguishedbetween statements made to physiciansconsulted for the purpose of treatmentand statements made to physicians con-sulted solely for the purpose of qualify-ing as an expert witness to testify attrial. Statements made to these so-

called ’nontreating’ physicians were notaccorded substantive effect. See, e.g.Zawisza v. Quality Name Plate, Inc.,149 Conn. 115, 119, 176 A.2 578(1961); Rowland v. Phila., Wilm. &Baltimore R. Co., 63 Conn. 415, 418-19, 28 A. 102 (1893). This distinctionwas virtually eliminated by the Courtin George v. Erickson, 250 Conn.312, 73 A.2d 889 (1999), which heldthat nontreating physicians couldrely on such statements. The distinc-tion between admission only asfoundation for the expert’s opinion andadmission for all purposes was consid-ered too inconsequential to maintain.Accordingly, the word ’diagnosis’ wasadded to, and the phrase ’advice per-taining thereto’ was deleted from, thephrase ’medical treatment or advicepertaining thereto’, in Section 8-3 (5).”

§ 8-5. Hearsay Exceptions: DeclarantMust be Available

Subsection 1 (prior inconsistent state-ment) was amended to reflect the fact thatstatements covered by this section do nothave to be in writing. They can be onaudiotape, videotape, or some other equal-ly reliable medium.

§ 8-6. Hearsay Exceptions: DeclarantMust Be Unavailable

A new subsection 8 was added allowingthe introduction into evidence of a state-ment against a party who caused theunavailability of a witness. This is aimed ata case in which the defendant murders thewitness.

The Tabled Changes:As noted above, the Rules Committee

did not forward two of the Evidence CodeOversight Committee’s recommendationsto the judges.The first involved an amendment to §

4-4(a)(1) regarding character evidence incriminal cases.The second involved an amendment to

§ 8-3(1) that would have allowed into evi-dence “a statement by the party’s agent orservant concerning a matter within thescope of the agency or employment,made during the existence of the relation-ship.” The change would have abolishedConnecticut’s archaic rule that a statementof an agent is not admissible against theprincipal without proof that the agent wasauthorized to speak on behalf of theprincipal.


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By Kathleen L. Nastri, Associate Editor

CTLA

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mPlease submit your Verdicts & Settlementsreports online at www.cttriallawyers.org/forumor via email to [email protected] include the date on which the case wasresolved and the insurance carrier, if any.

SETTLEMENT60-Year-Old Physician

Product LiabilityMediated Settlement of $202,500In the case of Jeffrey R. Breiter, M.D. v.

ARC International North America, Inc., etal. Docket No. HHD-CV-05-4014804-S,filed in the Superior Court for the JudicialDistrict of Hartford at Hartford, the par-ties settled for $202,500 after mediation.The plaintiff, Dr. Breiter, was a gastroen-terologist with privileges at ManchesterMemorial Hospital (“Hospital”). TheHospital purchased pedestal glass coffeemugs with the Hospital logo stenciled onthem for use by physicians and staffmembers.On May 30, 2003, just before per-

forming procedures at the Hospital, theplaintiff attempted to use one of the mugsto get coffee. The mug was upside downand the plaintiff grabbed the base of themug to turn it over. The stem fracturedand the broken mug fell onto the plain-tiff ’s wrist, causing the laceration of ten-dons and nerves and a resulting 16% per-manent impairment of his master hand.The mug was manufactured by ARC

International. Cooper & Clement sten-ciled the logo onto the mug. A. Goldstein& Co., Inc. was the distributor who soldthe mug to the Hospital.The plaintiff had the mug examined

by David A. Moore, P.E., Vice Presidentof Packer Engineering, Inc., located inIllinois. Mr. Moore examined the mugand determined that it was defective inthat it had an internal crack caused bythermal stress, which weakened the mugto such an extent that the pedestal sepa-rated in the plaintiff ’s hand when theminimal force was applied to turn themug over. Mr. Moore was able to statethat there was no exterior damage to themug resulting from use and/or abuse.

Dr. Breiter required hand surgery, whichwas performed by Dr. Andrew Caputo. Dr.Breiter required six weeks to recover fromthe surgery, which resulted in substantialeconomic losses while he was unable toperform colonoscopies and other proce-dures on his patients.Approximately one week before trial,

the parties submitted this matter to privatemediation. The plaintiff initially demand-ed $300,000 and the defendants offered,in the aggregate, approximately $100,000.The case was settled for $202,500.

Submitted by Kerry M. Wisser, Esq. ofWeinstein & Wisser, P.C., West Hartford.

SETTLEMENT17-year-old studentWrongful death

Settlement of $18.3 millionIn the case of Pamela Orefice,

Administratrix of the Estate of TimothyOrefice v. Jason Secondino, et al., DocketNo.: UWY-CV-04-4012057S (WaterburyComplex Litigation), before Judge DennisJ. Eveleigh, the parties settled just beforeclosing arguments on the damages phaseof a bifurcated trial. Timothy Orefice, asenior at Daniel Hand High School inMadison, was killed at about 6:30 p.m. onJanuary 25, 2002, by a tow truck driven bythe defendant Jason Secondino. Tim wasdriving across Route 1 in Guilford fromthe driveway of Guilford Saab, where hehad an after-school job, to GuilfordSporting Goods, to pick up his ice skates.The defendant was driving on Route 1 andstruck Tim’s car broadside on the passen-ger side.Suit was filed against the driver, his

employer Guilford Texaco, Inc., andGELCO, the owner and lessor of the towtruck. (The crash occurred before lessorliability was eliminated by statute.)Plaintiff claimed that the defendant driverwas speeding and inattentive and that hewas under the influence of the methadonehe took as part of a drug rehabilitationprogram. Plaintiff further claimed that thedefendant employer was negligent andreckless in its hiring, training and supervi-sion practices.

Proving liability was difficult becausethe defendant had the right of way; theGuilford Police Department, the onlyinvestigators on-scene, concluded that thetow truck was driving under the 45 mphspeed limit; and there were no survivingeyewitnesses to the crash other than thedefendant driver. Additionally, an eyewit-ness who had seen the truck momentsbefore the crash testified that the truck didnot appear to be speeding; and the trialcourt precluded, on Daubert/Porter grounds,the plaintiff ’s evidence concerning thedefendant’s methadone use.Plaintiff was nevertheless able to prove

liability. Initially, each side produced anaccident reconstructionist, and they agreedthat the defendant was probably travelingslightly over the 45 mph limit: the defenseexpert said the likely speed was 1-9 milesover the speed limit; the plaintiff ’s expertsaid 7-10 miles over the limit. However,more significant evidence came from fourother sources:First, plaintiff introduced evidence

from an expert in truck safety, Mr. DaveDorrity, of Greenville, South Carolina.Mr. Dorrity testified that the standard ofcare for the operator of a commercialmotor vehicle required the operator todrive substantially below the posted speedlimit at the accident location, because itwas immediately beyond an exit rampfrom I-95. As a basis for his testimony,Mr. Dorrity drove at the crash location ina replica vehicle that was the same year,make and model as the defendant’s vehi-cle. The credibility of his testimony wasenhanced by the fact that he drove theroute at the same time of the day andweek, and on virtually the same date inJanuary, as when the crash occurred.Second, plaintiff introduced a series of

photographs: one that the police hadtaken of the interior of the truck immedi-ately after the crash; and five others takenof the replica vehicle from the same angleas the police photo, showing the shift leverof the truck in each of the five forwardspeed positions. Comparison of the pho-tos showed that the defendants’ truck wasin fifth gear at the time the police photowas taken, and Mr. Dorrity testified that


VERDICT AND SETTLEMENT REPORT

this corresponded to excessive speed (over50 m.p.h.) and represented a consciouschoice by the driver to operate at a highrate of speed.Third, plaintiff introduced evidence,

again through Mr. Dorrity, that there arestandards of care that govern the hiring,training and supervision of commercialmotor vehicle operators, based bothon industry standards and standardssuch as the Federal Motor Carrier SafetyAdministration. The evidence showed thatthe defendant employer had not compliedwith any of these standards, and in partic-ular had not checked the driver’s back-ground. Defendants challenged the causalconnection between hiring practices andthe crash, particularly since the driver didnot have any prior motor vehicle historyat the time he was hired and during hisemployment had allegedly performedwell, with only one minor incident, a dentin a parking lot. Plaintiff was able to showthe connection by introducing evidenceof the defendant driver’s criminal and psy-chiatric history, which the Court admitted(in part) to show the defendant employer’snegligence and recklessness under suchcases as Shore v. Stonington, 87 Conn. 147(1982).Finally, plaintiff returned to the police

photograph of the interior of the defen-dants’ truck and enlarged the area show-ing the light button. Plaintiff then showedthree photographs of the button in thereplica truck: one all the way in (off ); thenext part way out (parking lights); and thethird all the way out (headlights).Comparison of the photos showed that inthe police photo the light button was notall the way out. Plaintiff used this evi-dence to argue that the truck’s lights wereoff, explaining why Tim would pull out infront of it.Trial was bifurcated at the plaintiff ’s

request, and the jury returned a plaintiff ’sverdict finding the defendant driver liableunder Section 14-295 for double dam-ages; finding the employer liable in negli-gence and recklessness and liable for puni-tive damages; and finding the employer70% negligent, the driver 20% negligent,and Tim 10% negligent.The trial then proceeded to damages

evidence, and plaintiff introduced evi-dence of Tim’s wonderful character andhis plans to be an airline pilot, like hisfather. The damages presentation benefit-ted from presentation of a series of stillphotos and home video taken throughout

Tim’s life, as well as material such as hiscollege application essay. Plaintiff alsointroduced lost earning capacity evidencefrom Professor Arthur Wright, who testi-fied to a lost earning capacity of $2.9 mil-lion; and from Kit Darby, an expert on theearning capacity of commercial airlinepilots.Primary and excess insurance coverage

totaling $2 million was provided byHarleysville Insurance. GELCO as a divi-sion of GE had essentially unlimited cov-erage for any additional exposure it hadbased on its vicarious liability for thedefendant driver. (By statute it had no lia-bility for the employer.)Before trial, the plaintiff had filed an

offer of judgment for $1 million, and thedefendants had offered $100,000.The parties settled on the Sunday after-

noon preceding Monday’s scheduled chargeand argument on damages. On behalf ofall defendants Harleysville paid $6 mil-lion, and on behalf of GELCO, ElectricInsurance paid an additional $12.3 mil-lion. GELCO has announced its intentionto pursue Harleysville for claims arising outof Harleysville’s refusal to settle in responseto plaintiff ’s offer of judgment or to makemore substantial offers than it did.

Submitted by David N. Rosen andBarbara Goren of David Rosen & Associates,New Haven.

SETTLEMENTAnesthesiology and Hospital

Medical MalpracticeFailure to Monitor Oxygen LevelDuring Routine Cesarean Section;

Failure to Properly Credential Monitoror Remove Physician From Staff;

Devastating Anoxic Brain Damage;Mother Remains in Coma;

Total Settlement of $16,725,000In the case of Jane Doe v. Anesthesiologist

(“Dr. A.”) Anesthesiology Group, P.C. (“Dr.B”) and Hospital (“C”), filed in the JudicialDistrict of Stamford, a total settlement of$16,725,000 was reached prior to juryselection.In July of 2003, Jane Doe was a healthy

34-year-old woman, who underwent acesarean section delivery of her first childat Hospital C. During the procedure, Dr.A silenced the audible alarms on the anes-thesia monitoring equipment, failed toassess the level of her spinal anesthesia andmonitor her critically low oxygen level. Asa result of Dr. A’s failure to recognize Jane

Doe’s life threatening blood oxygen leveland initiate prompt resuscitative measures,she sustained a devastating brain injuryresulting in a permanent vegetative stateand requiring total care for the rest of herlife. At the termination of the procedure,Dr. A did not properly account forcontrolled narcotics used during theprocedure. The State of ConnecticutDepartment of Public Health institutedan investigation into the Jane Doe caseand Dr. A surrendered his license to prac-tice medicine shortly thereafter.The plaintiff also made a direct claim

against Hospital C for its reckless conductin its failure to properly credential, moni-tor or remove Dr. A from its staff based onprofessional incompetence in a prior simi-lar case, aberrant behavior, failure to attendpatients, and violations of Hospital con-trolled drug policies. The plaintiff adducedevidence of Dr. A’s medical incompetenceoccurring five years before Jane Doe’soperation when Dr. A caused a 36-year-old mother of three (“Susan Roe”) under-going a simple tubal ligation procedure tosuffer irreparable brain damage resultingin a vegetative state. The negligence wassimilar: Silencing the audible monitoringalarms; failing to recognize the patient wasunconscious and in grave danger; remov-ing all monitoring devices while unre-sponsive and unconscious in critical con-dition; delaying nine minutes beforebeginning CPR; and failing to properlyaccount for narcotics used in the surgery.That patient filed suit. During the discov-ery process, the plaintiff learned that Dr. Aviolated Hospital controlled drug proto-cols, failed to attend patients and demon-strated emotional instability, and that hehad concealed that he had previously beenon probation in a sister state. Hospital C’sexpert in the Roe case admitted that Dr. Awas negligent and did not support theHospital’s proximate cause defense. Evenafter the Hospital obtained this damagingevidence against Dr. A, it consciously dis-regarded it and took no action against Dr.A. Plaintiff counsel in Jane Doe’s case tookthe position that Hospital C acted reck-lessly in choosing to defend the lawsuit inthe Roe case and maintaining Dr. A onstaff without monitoring or supervision,thus jeopardizing the safety of its patients.Plaintiff ’s expert economist estimated

a lost earning capacity in excess of$1,000,000. Special damages and medicalexpenses relating to plaintiff ’s future med-ical and nursing care and ancillary expens-es were estimated to be in excess of


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$270,000 per year.The total amount of the settlement

was $16,725,000, of which the Hospitalpaid $12,275,000 and the anesthesiolo-gist ad his professional corporation paid$4,000,000.

Submitted by Richard A. Silver, Esq.,Ernest F. Teitell, Esq., Peter M. Dreyer, Esq.,and Joanne Sheehan, Esq. of Silver Golub &Teitell, Stamford.

SETTLEMENTMedical Malpractice

In the case of the Estate of John Doe v.Hospital (the settlement contains confi-dentiality provisions), the parties settledthe claim for $850,000 before suit.In summary, John Doe sought medical

attention at the emergency department ofthe Hospital at 5:07 p.m. on March 9,2006. He reported several days of weak-ness, difficulty eating and sleeping, feel-ings of agitation and burning in his chest.Evaluation at the emergency departmentrevealed elevated blood pressure (initially235/118), elevated blood alcohol at 0.103and an abnormal serum sodium level of120. Despite his complaint of “burning inhis chest” recorded by the triage nurse, noEKG was obtained, no cardiac monitor-ing was performed and no cardiac labora-tory studies were obtained. Mr. Doe wasdischarged from the emergency depart-ment at 10:45 p.m., with a written diag-nosis of “Hyponatremia, Depression,Alcoholism, Hypertension.”Mr. Doe had been treated with a single

administration of 500 ml of intravenousfluid (for his low sodium level) and 1 mgof oral Ativan (for his depression/anxiety)and he was instructed to follow-up withhis regular physician within 2-3 days.Later that night at 1:30 a.m., Mr. Doebecame unresponsive and despite imme-diate CPR by family members, and afterprolonged efforts of resuscitation by para-medics, he had no response. CPR was dis-continued in the field and Mr. Doe waspronounced dead on arrival back at theHospital. Plaintiff alleged that the E.D.medical staff of the Hospital did not meetthe standard of care in their evaluationand treatment of Mr. Doe on March 9,2006, by failing to evaluate his complaintof chest pain and treat him appropriately.The plaintiff claimed that a complaint ofchest pain reported by a 53-year old malewith a known history of hypertensionmust be investigated. Such an investiga-

tion would typically include additionalhistory taking, the performance of anEKG and ordinarily the obtaining of achest x-ray and cardiac lab tests. Theplaintiff contended that this departurefrom the standard of care directly con-tributed to Mr. Doe’s death due to cardiaccauses within hours of his discharge fromthe Hospital. The plaintiff argued that ifthe medical staff had performed basicmedical tests on Mr. Doe, as a routineevaluation of his report of chest pain, Mr.Doe’s acute cardiac condition would havebeen identified and he would havereceived appropriate treatment, most like-ly resulting in his survival.Upon presentation of a report from an

expert certified by the American Board ofEmergency Medicine, who had served asfull-time faculty in the teaching of bothclinical and academic emergency medicineat the Johns Hopkins School of Medicineand at Harvard Medical School, theHospital quickly negotiated a settlementof the case for $850,000. Although theplaintiff was still a young man, he had lit-tle in terms of economic losses, because hiswork history and income was limited.

Submitted by Kerry M. Wisser ofWeinstein & Wisser, P.C., West Hartford,CT.

SETTLEMENTInjury to Football Player at Camp

Settlement of $125,000The case of Dolan v. Randy Edsall

Football Camp, Docket No. CV-03-0823198, filed in the Superior Court forthe Judicial District of Hartford, settledduring trial before Judge Tanzer.On June 29, 2001, the plaintiff, age 15,

was attending the defendant’s footballcamp in Storrs. Camp was “non-contact”but every player was required to bring orrent a helmet. Edsall required players towear helmets for “individual skills instruc-tion,” where contact between players washighly unlikely. The players also partici-pated in daily “7 on 7” competitive pass-ing tournament on a 40 yard field. The “7on 7” games were two-hand touch and,unlike the individual skills instruction,helmets were not allowed. The plaintiffwas playing defensive back and wasinjured when he collided with anotherdefensive back. The plaintiff suffered abroken nose, with prolonged bleeding,which required hospitalization, nose pack-ing and eventually embolization of an

artery to stop the bleeding.The plaintiffs’ experts were Richard

Borkowski, athletic administrator andfootball coach, who stated that it made nosense to require helmets for the individualskills drills, but not to require helmets forthe “7 on 7” drill; and Dr. Stephan Ohki,interventional radiologist from HartfordHospital. One of defendant’s liabilityexperts, Richard Cavanaugh, head foot-ball coach at Southern Connecticut StateUniversity, admitted that as a high schooland college coach, he required his playersto wear their helmets at all times duringpractice. Randy Edsall, who attendedtrial, claimed that he did not allow theplayers to wear helmets for safety reasons.The offer just before trial was $20,000.

The parties settled after four days of evi-dence for $125,000. The carrier wasFireman’s Fund.

Submitted by John J. Pavano, Esq. ofFaulkner & Boyce, New London.

JURY VERDICTMotor Vehicle/Bicyclist Accident;

51-Year-Old Male;Orthopedic and Neurological Injuries

Verdict of $221,146.71In the case of Alex Hanna v. Kirk J.

Hosfelt, et al., Docket No. CV-01-0386886-S, filed in the Superior Courtfor the Judicial District of Fairfield atBridgeport, a jury returned a verdict infavor of the plaintiff in the total amountof $221,146.71, on March 31, 2005.On September 5, 2002, the plaintiff

was riding his ten-speed bicycle south-bound on Black Rock Turnpike inFairfield. The defendant turned left intohis path and crashed into the bicycle. Theimpact caused Mr. Hanna to be thrownfrom the bicycle. He struck his head onthe windshield of the car and landed facedown on the roadway. He lost conscious-ness, the duration of which was disputed.The plaintiff suffered a comminuted

fracture of the left non-master wrist, afracture of the right wrist, multiple frac-tures of the metatarsal bones of the rightfoot, a strain of the lumbosacral spine, alarge laceration and permanent scarring ofthe right arm, post-traumatic headaches,and a traumatic brain injury, manifestedby difficulty with memory, concentrationand functioning.Dr. James Fitzgibbons of Bridgeport

treated the plaintiff ’s orthopedic injuries,most of which healed. The lone exception



was his left wrist injury, which resulted ina 5% permanent partial impairment. Thedefendants did not contest this rating.They did, however, vigorously challengethe plaintiff ’s neurological injuries, whichwere evaluated several years after theaccident by Dr. K. N. Sena of Stratford,who found them to be causally relatedto the crash and permanent in nature.The defense expert was Dr. James O.Donaldson, who opined that thoseinjuries were a result of pre-existingdepression and, in any event, were notpermanent.The plaintiff ’s medical expenses were

$8,141.71 and all were outstanding. Theplaintiff claimed that as a result of hisinjuries, he was unable to work forapproximately 18 weeks. The medicalrecords, however, showed that he returnedto work within eight weeks. The plaintiffalso contended that his earning capacityas a hairdresser in Westport was impairedas he was much slower and less skillfuland, therefore, could not see as many cus-tomers. The jury awarded $115,000 indamages for lost wages and loss of earningcapacity.Before the accident, Mr. Hanna led an

active, energetic lifestyle. He was an avidbicyclist and also enjoyed running, hik-ing, working out at the gym, and socializ-ing with friends. After the crash, hestopped doing most of these activities.Testimony from family members andfriends revealed that his personality alsochanged and he became much morewithdrawn. The jury awarded $98,000 innon-economic damages.The defendants were insured with

Progressive Northern Insurance Company.Before trial, the defendants offered to set-tle the case for $55,000. This offer wasincreased to $75,000 during trial.

Submitted by Robert R. Sheldon, Esq. ofTremont & Sheldon, Bridgeport.

ALASKA AIRLINES CRASHDEATH CASES

Confidential 7-Figure SettlementThe case of William Margiotta, et al. v.

The Boeing Company, et al., Docket No.C-00-2115-SI-ARB, filed in the UnitedStates District Court for the NorthernDistrict of California, settled for a confi-dential sum well into seven figures.On January 31, 2000, Dr. David

Clemetson and his family, including his

wife Carolyn and 7-year-old son, Miles,were killed in the crash of Alaska AirlinesFlight 261, off the coast of SouthernCalifornia. At the time, the flight wasenroute from Puerto Vallarta, Mexico toSeattle.Before the crash into the ocean, there

were two separate losses of control of theaircraft during which the plane dove near-ly 20,000 feet. The post-accident NTSBinvestigation disclosed that the jackscrewcomponent of the 40 foot long stabilizerof the tail assembly which enables the pilotto control the aircraft was stripped of histhreads. The conclusion of the NTSB wasthat the stabilizer had failed in-flightcausing the crash. Post-accident investiga-tion also disclosed that Alaska Airlines hadthe most reported jackscrew problemsof domestic carriers. Also, before theaccident, a computer program hadalerted Alaska Airlines of potential wearproblems with the jackscrew on certainof its aircraft.The lawsuit against Alaska Airlines and

the manufacturers of the component partsin question was filed in May, 2000. Thecase was consolidated with 102 otherwrongful death cases filed in the NorthernDistrict of California from the crash.During the litigation, a claim was assertedby Miles Clemetson’s natural father forloss of consortium even though he hadpreviously given his son up for adoptiononce Miles’ mother, decedent CarolynClemetson, had remarried. That claim wasdismissed by the court on the basis thatthe natural father had divested himself ofstanding in the adoption. A claim was alsomade by a Florida attorney on behalf of aGuatemalan girl, who alleged she wasfathered out of wedlock by Dr. Clemetson.Investigation, including DNA testing,established that the child’s claim was false.The defendants, faced with the possi-

bility of paying punitive damages, settledthe case for a confidential sum well intoseven figures.

Submitted by Stephen Jacques, Esq. ofMoore, O’Brien, Jacques & Yelenak, Cheshire.

JURY VERDICTMotor Vehicle Accident;

64-Year-Old Male;Non-Surgical Bilateral Carpal Tunnel

With No Impairment RatingIn the case of Zbigniew Rozbicki v.

Richard E. Carter, Docket Number CV-

01-0084372, filed in the Superior Courtfor the Judicial District of Litchfield, thejury returned a verdict in the amount of$129,800. After prejudgment interest inthe amount of $47,052.11, the total judg-ment was $176,852.11. The medical billstotalled $3,591.25. There was no wageclaim, but there was evidence regardingfuture surgery. The final offer was $20,000and the final demand was $45,000.The plaintiff, who is an attorney in

Torrington, was traveling on Route 4 inHarwinton in January of 1999, when thedefendant’s vehicle crossed over andstruck the plaintiff ’s pick-up truck. Theproperty damage to the pick-up truck wasapproximately $10,000.The primary issue in the case was

whether the injuries were caused by thisaccident or two other auto accidents inwhich the plaintiff had been involvedwithin a five year period.The case was tried to a verdict before

the Honorable Elizabeth Bozzuto onJanuary 5, 2006.

Submitted by Everett H. Madin, Esq. ofRisCassi and Davis, P.C., Hartford.

SETTLEMENTAccident on Golf Course

14% Permanent Impairment ofFunction of the Brain

Settlement of $1.17 Million

The case of Crystal Rugar, et al v.Daniel Wiknik, Docket No. CV-02-0125669-S, filed in the Superior Courtfor the Judicial District of New London atNorwich, settled for the sum of $1.17million, guaranteed over the course of theplaintiff ’s lifetime.Crystal Rugar, age 16, was riding on a

golf cart operated by Daniel Wiknik atthe Sunrise Resort, where both Crystaland Daniel worked. Wiknik drove thecart backwards down a path and turnedthe cart sharply at the bottom of the path,which caused Crystal Rugar to be thrownout of the cart and onto the pavement.She struck her head on the pavement andwas brought to the emergency room,where she was diagnosed with a traumaticbrain injury. Crystal Rugar was a sopho-more in high school at the time of theincident, July 23, 2000. Crystal requiredspecial accommodations to be made forher in her senior year in order to graduateand as a result of her traumatic braininjury. She has undergone counseling,


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regular visits with a neurologist, and neu-ropsychological testing in treatment of hertraumatic brain injury. She was left with a14% permanent impairment of functionof the brain. Crystal hoped to go to col-lege before her accident, but feels she willbe unable to succeed at college as a resultof her traumatic brain injury. She is cur-rently employed as a veterinarian assistantat an animal hospital.This case was scheduled to go to trial

in the Complex Litigation Docket inMiddletown in July 2005. Defense coun-sel requested mediation of the case. Thecase was mediated before the HonorableF. Owen Eagan in late May 2005. Thecase was settled on a structured basis. Thelump sum cash and guaranteed paymentstotal $1.17 million.The plaintiff ’s expert witnesses were:

Kenneth Gilstein, Ph.D. — treating neu-ropsychologist; Richard Schuster, Ph.D.— vocational rehabilitation expert;Edward Tucker, M.D. — treating neurol-ogist; Robert Novelly, Ph.D. — consult-ing neuropsychologist; Kenneth Selig,M.D. — consulting psychiatrist; andGary Crakes, Ph.D. — economist.

Submitted by Dennis A. Ferdon, Esq. ofAnderson & Ferdon, Norwich.

SETTLEMENTAutomobile Accident

Neville Warburton v. Samantha Preston,et al., Docket No. CV-05-4002813-S,filed in the Superior Court for the JudicialDistrict of Fairfield at Stamford, was atypical soft-tissue injury automobile acci-dent case.The plaintiff, age 35 at the time of the

accident, reported no injuries to policeofficer at the scene, but took himself laterthat day to the emergency room withcomplaints of left shoulder and left footinjuries. There was no history of anyorthopedic injuries. The plaintiff was invery good shape and worked part-time asa personal trainer in area sports clubs.The diagnosis was a sprain to the leftshoulder and a soft tissue injury to the leftfoot. The next day, Mr. Warburton tookhimself back to the emergency room withneck and back complaints. The diagnosiswas sprains to the cervical and lumbarspines.The case was referred to trial counsel

several weeks before trial. By that time,Mr. Warburton had already testified atdeposition that his prior lawyer had sent

him to the 1867 Medical Center inStamford (internist on site as medicaldirector — oversees chiropractic, physicaltherapy and massage therapy modalities).Mr. Warburton was treated from Februaryto July, 2003, approximately two to threetimes a week, and incurred charges total-ing $5,201. The total bills, including twoER visits, totalled $6,625.90 (total specialsin case).The internist rated the plaintiff with

6% permanent partial disability to hislumbar spine based upon musculoliga-mentous sprain. The plaintiff testified thathis neck and left foot injuries resolvedmonths after the accident, but that the leftshoulder and lower back injuries neverdid. Although there were no “lost wages” ina classical sense, the plaintiff ’s short-termearnings were impaired as personal trainer.The defendants contested liability

claiming unavoidable accident due to a“phantom” car and icy road conditions.They also argued that the prior attorneyand doctor were in cahoots, and that theplaintiff could not have been injured asevidenced by the lack of treatment fromJune 2003 to November 2006.The jury deliberated for approximately

two hours and awarded $40,000 in eco-nomic damages and $25,000 in non-economic damages. Although the plaintiffdid not do an excellent job testifying, hedid not try to overreach or over-exaggeratehis injuries. He was in excellent physicalshape and did not try to hide from it.

Submitted by Jeffrey M. Cooper, Esq. ofZeldes, Needle & Cooper, P.C., Bridgeport.

SETTLEMENT AT MEDIATIONOF A MARITIME CASE INVOLV-ING A JET SKI AND A TOWING

OPERATIONPlaintiffs filed this wrongful death

action (Frederick R. Wood, et al. v. TowboatU.S. Inc., et al., Docket No. KNL-CV-04-4000281-S, Superior Court for theJudicial District of New London) in 2004(the Federal Maritime three year Statute ofLimitations applied for inland navigablewaters). Defendants Seaforth improperlyremoved the case to Federal Court, whichremanded it back to Superior Court underthe Saving to Suitors clause of the firstJudiciary Act of 1789 (now 28 U.S.C.§1333). Defendants Seaforth then filed aPetition for Exoneration or Limitation ofLiability based on 46 U.S.C. §181 et seq.in Federal Court. Under this statute (an

anachronism from an 1851 statutedesigned to further American maritimecommerce for the young nation, but nowapplied to recreational boats), if the vesselowner or operator can prove lack of “priv-ity” (knowledge of any negligent acts orcondition causing the incident), he canlimit his liability to the value of the vessel— in this case, $65,000. The burden ofproof is on the vessel owner to show lackof privity. The filing of the Petition causesan automatic stay of the State Courtaction.On August 2, 2001, defendant, Frank

Seaforth, Jr., age 54, took his father’s boat,the SEAFORTH, for a pleasure cruise onthe Connecticut River with ten passen-gers, who brought beer and soda. He leftfrom the Ragged Rock Marina inSaybrook at around 6 p.m., going northon the Connecticut River. He was captainof the 35-foot Cruiser with twin 340 hp.Mercury engines. The sun was bright andlow on the horizon. He was planing, thatis, going so fast he was riding on top ofthe water. The glaring sun caused him tomiss the red buoy channel marker, go outof the channel and run aground on asandbar at Nott Island. He had over 30years of experience and many trips on thisportion of the Connecticut River. Therewas no proof that the defendant wasdrinking.Defendant, Paul Ucello, was the oper-

ator of a professional towboat calledTOWBOAT U.S., acting under the cor-porate entity of Saybrook Marine Towingand Salvage, LLC and under a nationallicense agreement with the defendant,BOAT U.S. He tried to pull the Seaforthpleasure boat off the sandbar two or threetimes with a 3/4-inch towline extended75-110 feet. He was unable to do so. Heand Seaforth decided to wait for high tidewhich was three hours away, with the tow-line attached. Ucello testified that thetowline was slack, but several witnessestestified the rope was taut, 3-4 feet abovethe water, and in place for 20 minutes to1 hour.Eric Wood was 23 years old. He had

less than three weeks of experience on thewater with a jet ski for which he had atemporary license from the State. OnAugust 2, 2001, he had been skiing withhis friend in Long Island Sound. He wasreturning to where he had launched thejet ski near the Goodspeed Opera House,north of Nott Island. As Eric rode northon the Connecticut River at 7:30 p.m.,



the sun was low on the horizon and theglare was strong.As Eric Wood approached the Seaforth

vessel, some of the passengers began towave at him, including one passenger whoextended his thumb as if to hitchhike.Eric Wood steered his jet ski 35-40 feetleft of the Seaforth vessel and was lookingat the Seaforth passengers, when theextended towline “clotheslined” him at hisneck. The impact was 49 feet from thetowboat. A doctor in a boat north of thescene went to Eric’s rescue, administeredCPR but was unsuccessful and Eric Wooddied of a broken neck and fractured skull.He left a daughter, then two years old.Plaintiffs argued that half of the tow-

line was tied to the Seaforth vessel and theother half was tied to TOWBOAT U.S.;therefore, the two defendants togetherobstructed up to 110 feet of navigablewaters for up to one hour. Frank Seaforth,Jr. was seated at his controls and had beenconversing off and on with the defendant,Paul Ucello, by VHF radio. The controlsat his fingertips included an air horn anda VHF radio by which he talked directlyto Ucello in the towboat.Seaforth turned from his captain’s

chair to see the jet ski 200 yards awayspeeding up river. He saw his passengerswaving at Eric. He then chose to leave hiscontrols, including his air horn and aban-don his VHF direct communication toPaul Ucello, to join the other passengerswaving at the jet ski.Plaintiffs claimed liability on the part

of Seaforth because:1. Seaforth held one-half of the towline 3-4 feet above the navigable watersstretched out 75 to 110 feet, therebyobstructing a navigable waterway forup to one hour in violation of C.G.S15-133(b);

2. He left his VHF communication andthereby failed to warn the towboat ofthe approaching jet ski and to slack offor release the towline;

3. He failed to direct his passengers on thebow near the cleat, near his end of thetowline to release the line; and

4. He failed to sound his air horn whichwas at his fingertips (five blasts equalsdanger)(Rule 34(d) of the FederalInland Waterway Rules).The claims against Paul Ucello and

Towboat U.S. were:1. He obstructed 75 to 110 feet of a navi-gable waterway for up to one hour inviolation of C.G.S. 15-131(7);

2. He failed in his positive duty to keep alookout for other vessels in violation ofInland Rule 5 and C.G.S. 15-131(7);and

3. Ucello admitted that he was aware thatjet skis frequented this part of the riverat this time of day; therefore,(a) He should have untied or releasedthe towline until high tide;(b) He should have looked for smallvessels heading into the setting sunrather than a couple observing the tow-boat away from the sun; and(c) He should have sounded his airhorn, which was less than five feet fromwhere he was supposedly standingwatch (Inland Rule 34(d)).Plaintiffs claimed the Boat Owners

Association of the United States, (BOATU.S.), was liable because of its principal-agency relation with Paul Ucello andSaybrook Marine Towing and Salvage.Callers for assistance dial a 1-800 numberfor BOAT U.S. which dispatches tow-boats, like AAA does for road calls.The defendants claimed thatWood was

exclusively responsible for his own deathbecause he was speeding, not keeping alookout and not reducing his speed in thesetting sun. There was evidence he wastraveling a minimum of 26 mph, the plan-ing speed for this jet ski. The jet ski wascapable of going up to 60 mph. The gen-eral speed limit on this part of the riverwas 45 mph, but 5 mph near anchoredboats or shorelines. Eric had less thanthree weeks of experience; therefore, heshould have traveled much slower. He wastraveling into a setting sun with blindingglare.Expert Captain Mitchell Stoller wrote

an extensive report and testified that thedefendant Ucello/TOWBOAT U.S. andSEAFORTH were negligent:

“Every vessel shall at all times maintaina proper look-out by sight and hearing. . . so as to make a full appraisal of thesituation and the risk of collision.”

Evidence of statutory violations leadsto a change in the burden of proof in mar-itime cases; the vessel owners and opera-

tors must then prove that their conductdid not and could not have caused theaccident. The Pennsylvania, 86 U.S. (19Wall) 22 L. Ed. 148 (1874); AmericanDredging Co. v. Lambert, 81 F.3d 127,1996 AMC 2929 (11th Cir. 1996). Allparties claimed the benefit of ThePennsylvania Rule. Also, The OregonRule holds that vessels that strike a fixedobject are presumed to be liable unless thefixed object is invisible (like a towrope).Hendrik van Hemmen was an expert

on behalf of the Seaforth defendants. Heplaced the sole cause of the accident onthe “lack of caution” by the decedent. Heclaimed the decedent was “not lookingwhere he was going” and claimed that hisspeed was excessive because he shouldhave anticipated a possible obstruction inthe water.The national defendant, BOAT U.S.

(and presumably the defendants, PaulUcello and Saybrook Marine), retainedCaptain Larry Strouse as an expert. Hisopinion was basically the same as theSeaforth expert.An autopsy was performed on the

decedent by the State Medical Examiner.The examination found no evidence ofany alcohol or drugs. Ucello, on the otherhand, was required by Coast Guard rulesto test for drugs and alcohol, but did notdo so for four days. Seaforth, who hadcases of beer on board, was not tested bythe D.E.P.Eric Wood lived with the mother of his

two-year-old daughter. He worked part-time while going to a community collegeto study computers. He was devoted to hisfamily, especially his two-year-old daugh-ter, Amanda.The pleasure boat had $300,000 cover-

age with Travelers/St. Paul and the tow-boat had $500,000 with The Hartford,with BOAT U.S. as an additional namedinsured. The case was mediated by JudgeFrederick Friedman in Norwalk, CT andsettled for $200,000, of which $50,000was paid by the pleasure boat (Travelers/St. Paul) and $150,000 by the tow boat(The Hartford).

Submitted by Matthew Shafner, Esq. ofO’Brien, Shafner, Stuart, Kelly & Morris,P.C., Groton.


Workers’ Compensation ReviewJune 1, 2007, through October 4, 2007Robert F. Carter

LEGISLATIVEAdditional penalties against employers

for undue delay and failure to carry work-ers’ compensation insurance; period tocontest Form 36 now 15 days.The legislature enacted at the end of

the session additional penalties againstnon-compliant or fraudulent employers.Under Sec. 31-288, failure to carry work-ers’ compensation insurance is now aClass D felony, as are misrepresentation ofemployees as independent contractors andmisrepresentation of the number ofemployees to the insurer. These transgres-sions also subject the employer to stopwork orders, which may be issued by theLabor Commissioner. P.A. 07-89, effec-tive Oct. 1, 2007.In addition, the legislature in a sepa-

rate act also amended Sec. 31-288 to pro-vide for a civil penalty of up to $1,000.00,to be paid to the claimant, where theemployer or insurer has unduly delayedpayment or adjustment of “compensationdue under this chapter.” P.A. 07-80, effec-tive Oct. 1, 2007, which also extended tofifteen days the time within which a Form36 notice of intention to discontinue ben-efits may be contested by a claimant.

SUPREME COURT

Wage loss benefits for prior injuries notbarred by later injuries or Hatt

Correcting another overreaching deci-sion by the CRB aimed simply at elimi-nating benefits, the Court held that“when a prior disability is a substantialcause of the loss of earning capacity that aclaimant suffers after a second disability,the commissioner may consider both dis-ability awards in determining entitlementto and duration of a Sec. 31-308a award.”What does that mean? The claimant wasinjured in 1989 and was paid 104 weeksof permanent partial disability benefitsbased on 20% impairment of her back.She continued working at her regular jobwithout wage loss until a subsequent backinjury in 2000, which made her backworse, increasing her impairment by 5%,for which she was paid an additional 18.7weeks of permanency; the subsequentinjury, however, significantly reduced herearning capacity. The 1989 injury was asignificant factor in the claimant’s inabili-ty to continue her regular employment.The Court held that the claimant wasentitled to Sec. 31-308a benefits for the

effects of the 1989 injury as well as of the2000 injury. The CRB, bizarrely relyingon Hatt v. Burlington Coat Factory, 283Conn. 279 (2003), interpreting appor-tionment among carriers under Sec. 299b,had held that the claimant was entitledonly to 18.7 weeks of 308a benefits,apparently on a theory that, since theemployer on the later accidental injurycouldn’t apportion liability for conse-quences of the injury, the claimantshould be deprived of benefits for thecombined consequences of both injuries.Fortunately, the Court corrected the CRBholding. Pizzuto v. Commissioner of MentalRetardation, State of Connecticut, 283Conn. 257 (July 24, 2007). So apparentlya claim under such circumstances may bemade for at least [104 + 18.7 =] 122.7weeks of 308a benefits.In this case there was only one employ-

er: the State of Connecticut. Unless I ammisreading the opinion, the Court seemspretty clearly to suggest that, where thereare two different employers or carriers, theemployer or carrier at the time of the sec-ond injury would be liable for all wage lossbenefits, at least where the second injuryreally is the straw that broke the camel’sback. Presumably this result follows fromSec. 31-349(a). See Fimiani v. Star GalloDistributors, Inc., 248 Conn. 635 (1999).This result may indeed be unfair to thelater carrier. Certainly the availability ofthe Second Injury Fund and the acknowl-edgment of physical defect made thesystem fairer to both employers andemployees, and encouraged the employ-ment of workers with disabilities, unlikethe feeble Americans with Disabilities Act.The Court, however, did not reach the

issue of whether the number of weeks of308a benefits available was to be deter-mined under the law in effect in 1989(unlimited duration) or in 2000 (durationof permanent partial disability, here 122.7weeks), since the claimant had not, at thetime of the formal hearing, sought anaward in excess of 104 weeks. Unless vio-lence is again done to the constitutionalauthority of the date-of-injury rule, thelaw applicable in 1989 should continue togovern the claimant’s rights with respect tobenefits available for the effects of the1989 injury; but because of political ratherthan legal considerations, I would not beton that outcome.What has not been addressed, either

here or in post-Hatt thinking generally, isthat where the second injury has no per-manent effect, or where the permanenteffect is insubstantial, then, as a matter ofmedical fact, liability for additional med-ical treatment and indemnity benefitsshould revert to the carrier for the firstinjury. Since Hatt, the knee-jerk responseof the carrier for the prior injury has beento assert that all prior carriers are alwaysoff the hook, which, as a matter of med-ical fact, just shouldn’t be true.Finally, the broader question is

whether a second, non-work-relatedinjury precludes the claimant from seek-ing additional workers’ compensationbenefits after the second injury. Theclaimant should remain eligible for work-ers’ compensation benefits for the effectsof the first injury even after a second non-work-related injury to the same body part,depending on the medical effects of thesecond injury. But save that for anotherlitigation.

Statute of non-claim in deathcases clarified

The Supreme Court got it right in amajor decision in an asbestosis death case,clarifying appropriately the murky, ram-shackle language of Sec. 31-294c concern-ing death cases. Where a man died fromasbestosis less than three years after thedate of first manifestation without filing aclaim, but where his widow filed a claimprior to the running of the three yearsafter the first manifestation, her claim wastimely. The Court held that as long assome claim, either by the claimant, hisestate or a dependent, is filed within thethree-year period in occupational diseasecases, the claim is timely. Fredette v.Connecticut Air National Guard, 283Conn. 813 (Sept. 18, 2007). The Courtrejected an argument that the widow’sclaim was barred because the claimantdidn’t die within two years of the date offirst manifestation, an argument based onthe language of the statute that “provided,if death has resulted within two yearsfrom the date of the accident or first man-ifestation,” then the dependent can filewithin the two year period or within oneyear from the death, whichever is later.This two-year language now makes nosense for occupational disease cases, sincethe statute was amended in 1980 to allow



Workers’ Compensation Review(Continued from page 157)

three years from first manifestation, sothat the statute of limitations is alwaysthree years in occupational disease cases.The Court accordingly held that the“within two years” was meant to expandthe statute, not to provide a restrictionafter the 1980 amendment; and proved itin a scholarly opinion.What was left explicitly dangling by

the Court was what is the period (assum-ing there is such a period) during which adependent must file a claim, where theclaimant has filed a claim or otherwise sat-isfied the statute of non-claim? The Courtstated that this was a question for anotherday. Which brings us back to the screwed-up law concerning notices of claim forwidows. Prior to the imposition of aCRB-made rule requiring a separatenotice of claim within a year of death forsurviving spouses in Sellew v. NortheastUtilities, 12 Conn. Workers’ Comp. Rev.Op. 135, 138, 1422 CRB-8-92-5 (Apr. 7,1994), no separate notices for dependentsin death cases were ever required wherethe underlying claim had been acceptedor a timely notice filed. This doctrine,though not based on the statute, haswormed its way into the law. In Kuehl v.Z-Loda Systems Engineering, Inc., 265Conn. 525 (2003), the Court dismissed awidow’s claim for failure to file a timelyseparate notice of claim, even though atimely claim had been filed for the injuredspouse prior to his death. The Court inKuehl, however, did not consider the actu-al law with respect to the CRB-imposedrequirement of a separate dependent’sclaim; the Court noted explicitly that theclaimant did not contest the interpreta-tion of the law requiring a separatewidow’s claim to be filed within a year ofthe death of the claimant. The Court inKuehl also noted that the doctrine hadbeen recognized by the Appellate Court(in dicta) in Tardy v. Abington Constructors,Inc., 71 Conn. App. 140, 144, 801 A.2d804 (2002); but again it was without realexamination of the law or questioning ofthe CRB rule. Most importantly, untilthis new decision of the Court in Fredette,the Court for decades never really lookedat its 1924 holding in Tolli v. ConnecticutQuarries Co., 101 Conn. 109 (1924),which has been totally ignored by theCRB (and was ignored in both Kuehl andTardy.) In Tolli, after an instantaneousdeath, the widow’s claim was timely andaccepted based on a hearing within weeksof the death. Years later dependent parents

of a decedent requested benefits, after thewidow had remarried. The Court in Tolliheld that no separate dependents’ claimwas required, so long as some claim hadbeen made originally within the applicabletime period. The Court in Fredette thank-fully has finally recognized the reasonedprecedent of Tolli, which governed work-ers’ compensation practice until the gratu-itous and baseless holding in Sellew.Perhaps seeing that the separate-notice-for-dependents rule, applied but unques-tioned in Kuehl, is flatly contradicted byTolli, the Court in Fredette actually made astrong plea for the legislature to straightenout the statute.

Longshore claim does not save untimelywidow’s claim

In a death case argued and decidedwith Fredette, the Court held that the fil-ing of a Longshore and Harbor Workersclaim within the time period for filingunder the Connecticut Act did not pro-vide notice of the claim for benefits underthe Connecticut Act. Where, after thedeath of the injured employee, who hadreceived benefits for many years under theLongshore act, the widow filed a claim forsurviving spouse benefits, her claim wastherefore held untimely, since no timelyclaim under the Connecticut statute hadbeen filed during the limitations periodrunning from the first manifestationof symptoms of the claimant’s asbestosdisease. Chambers v. Electric Boat Corp.,283 Conn. 840 (Sept. 18, 2007). TheCourt rejected the claimant’s argument,that all the elements of notice under theConnecticut Act were provided by theLongshore notice, stating that there wasno indication at the time of the originalclaim that benefits were being soughtunder the Connecticut Act.

New Jersey law applies to New Jerseyemployee’s death

An employee who lived and worked inNew Jersey as a mechanic for a lumbercompany with facilities in New Jersey andConnecticut was killed at the New Jerseylocation by the alleged negligence of a fel-low employee from Connecticut, a truckdriver who ran over the mechanic while hewas under the truck. The employee widowwas paid death benefits under the NewJersey workers’ compensation law. Theemployee’s estate sued the Connecticutdriver in Connecticut. The action wasbarred by New Jersey law, which has nomotor vehicle exception to the bar againstactions against fellow employees. NewJersey law applied under the test ofCleveland v. U.S. Printing Ink, Inc., 218

Conn. 181 (1991), on the ground thatConnecticut had too insignificant a rela-tionship to the employment relationshipor the employment contract to provide abasis for applying Connecticut law.Johnson v. Atkinson, 283 Conn. 243 (July24, 2007).

Fall in hold of ship compensable underConnecticut Act

The injuries sustained by a dock work-er in a fall in the hold of a floating shipwhich he was unloading may be compen-sated under the Connecticut Act, at leastwhere the employee’s employment rela-tion is local. Federal jurisdiction underthe Longshore and Harbor Workers’Act, normally concurrent with the statesystem in Connecticut, is not renderedexclusive by the fact that the injuries tookplace on navigable water. Coppola v.Logistec Connecticut, Inc., 283 Conn. 1(July 3, 2007). Semble, Gerte v. LogistecConnecticut, Inc., 283 Conn. 60 (July 3,2007), remanded for lack of a final judg-ment. The enormous, learned opinion inCoppola turns on the byzantine ambigui-ties of federal maritime law. Kudos to any-one who reads it, much less understandsit. Sometimes judges more than deservetheir pensions.

APPELLATE COURT

Scienter rule slightly relaxed forSec. 7-433c hypertension SOL

The trial commissioner had applied theCRB-made rule, that scienter triggers therunning of a one-year statute of non-claimin Sec. 7-433c hypertension claims, to dis-miss as untimely a claim where the com-missioner found that the claimant wasaware that he had elevated blood pressure“and that he had a potential hypertensionproblem that may require medication”more than a year prior to the notice ofclaim. The dismissal, affirmed by theCRB, was reversed by the Appellate Courton the basis that awareness of “potentialhypertension” is not enough to trigger therunning of the statute. This holding indi-cates that the rule, for now, may revert towhat it previously was for a while: thatdiagnosis of hypertension at least, if nottreatment, is required to trigger the run-ning of the limitations period. Arborio v.Windham Police Dept., 103 Conn. App.172 (Aug. 14, 2007). The Court duckedwhat seems to me the real issue, which hadbeen raised and briefed: that the scienterrule has no basis in the statute. The CRBhas for years progressively increased theseverity of its interpretation of the law, inorder to bar more of these disfavored


claims. However, scienter under Sec. 294cis relevant only to occupational diseaseclaims (which the CRB originally heldhypertension claims to be, and which ishow hypertension probably should betreated) and to claims for conditionscaused by repetitive trauma which moreclosely resemble occupational diseasesthan accidental injuries. The CRB and thecourts have consistently rejected charac-terizing these hypertension claims asoccupational disease claims, despite thelegislative history. In Discuillo v. Stone andWebster, 242 Conn. 570 (1997) andMalchik v. Division of Criminal Justice,266 Conn. 728 (2003), the Court sug-gested the proper approach, short ofapplying the occupational disease statuteof non-claim to hypertension cases underSec. 7-433c. Hypertension is not an acci-dental injury, but rather the result ofincremental insult over many years; that isthe legislative basis of Sec. 7-433c. As acondition produced by repetitive trauma,hypertension, which is certainly a disease,much more closely resembles an occupa-tional disease than an accidental injury.Even if the courts insist on calling thecondition an “accidental injury” producedby the repetitive stress, under Discuillo thelimitations period is clearly a year fromthe date of the last repetitive exposure.But the Appellate Court here showed thatit will have to be the Supreme Courtwhich rationalizes the law.

Principal employer finding affirmedIn Samaoya v. Gallagher, 102 Conn.

App. 670 (July 24, 2007), the Court, inaffirming on the basis of the facts a find-ing of liability of a principal employer,reminds us that there may be, and fre-quently are, more than one principalemployer, all of whom may be liable forcompensation. This legal issue may arisemore frequently these days, where illegalimmigrants commonly work for unin-sured construction labor contractors.Recall, however, that principal employerswho do not pay compensation benefitsmay be liable civilly to the injured worker,if one can prove a case.

Suarez dismissal draws dissentOn egregious alleged facts of bad safe-

ty practices and an amputated arm, a dis-missal of an intentional injury actionagainst the employer drew a dissent fromformer Justice McDonald. Martinez v.Southington Metal Fabricating Co., 101Conn. App. 796 (June 19, 2007). Thesedays it’s hard to imagine facts whichwould survive summary judgment on a

claim of intentional injury based onSuarez v. Dickmont Plastics Corp., 242Conn. 255 (1997)

COMPENSATION REVIEW BOARD

Practice tip: have the doctor take theclaimant out of work

The claimant found that his injuredshoulder hurt too much on his light dutyjob operating a drill press; but he declinedto try other light duty work and was laidoff. The denial of 308a benefits wasupheld based on the finding that lightduty work within the claimant’s restric-tions was available but declined. Morales v.Marlin Firearms, 5123 CRB-3-06-8 (Aug.10, 2007). Much better to advise theclient, where possible, that if he feels hecan’t do the light duty job, he shouldexplain the situation to his doctor andhave the doctor note that the particularlight duty job is medically inappropriate,if that’s the case, and restrict the claimantfrom doing the job.

Injuries en route to therapycompensable

The claimant’s injuries in a motor vehi-cle collision en route to his authorizedphysical therapy were held compensable.The CRB approved the trial commission-er’s analysis that the trip was mutuallybeneficial to the employer and theemployee, since it was in the employer’sinterest for the employee to get well. TheCRB, however, emphasized that the find-ing of mutual benefit in this situation wasa question of fact. Does that mean thatsometimes having the guy go to author-ized physical therapy might not be in theinterest of the employer? Apparently moststates where the issue has arisen have heldsuch injuries compensable. Houlihan v.City of Waterbury Police Dep’t, 5141 CRB-5-06-10 (Sept. 26, 2007).

After parking in designated lot,claimant’s fall on sidewalk on the way

to work is compensableThe company provided a parking lot

for employees. The claimant parked andwas walking on the sidewalk down thestreet towards her place of employmentwhen she fell. She always came to work anhour early and met co-workers in the cafe-teria. Held compensable. The only twiston the established law is the coming towork early, which the CRB held simplydidn’t matter: there was mutual benefit inthe walk to work. Meeker v. Knights ofColumbus, 5115 CRB-3-06-7 (July 3,2007).

Surgery interrupts permanency pay-ments, temporary partial is payable

until maximum medical improvementThe claimant was receiving permanent

partial disability benefits for his back con-dition but had to go in for another sur-gery. After the period of temporary totaldisability, the commissioner appropriatelyordered temporary partial disability bene-fits paid until the claimant reached maxi-mum medical improvement. Esposito v.New Haven, 5096 CRB-3-06-5 (June 19,2007). Sensible decision, good affirmanceby the CRB.

CRB decides coverage disputeThe CRB decided that, for purposes of

ordering benefits, the trial commissionercould decide that the workers’ compensa-tion policy had been cancelled and wasnot in effect, so that the Second InjuryFund was ordered to pay the benefits.Velez v. LSP Enterprises, Inc., 5105 CRB-1-06-6 (Sept. 26, 2007). When the trialcommissioner may decide coverage dis-putes is vague; some cases have suggestedthat all coverage disputes must be decidedin Superior Court. The basic legal approachhere by the CRB is practical: the commis-sioner has jurisdiction to decide whateverit takes to get the claimant paid the bene-fits due. It’s not at all clear, however, thatin many cases deciding the coverage dis-pute is necessary prior to ordering bene-fits. The problem is that, in this case as inmany others, the claimant suffered for along time in need of surgery while therespondents wrangled about coverage. Itwould sometimes be better to award thebenefits against the employer as soon aspossible and then, when unpaid for what-ever reason, order payment by the Fundunder Sec. 31-355, even though, becauseof the quibbles of the Fund, getting a pay-ment order in no-insurance cases can itselfbe stupidly time-consuming. After a Sec.31-355 order, the respondents can thenbattle out the coverage issue, after theclaimant’s benefits are paid, at leisure.Whether that battle is in the commissionor in the court at that point doesn’t mat-ter so much.

SUPERIOR COURT

Employee may intervene in third partysuit after limitations period

Like an employer, an employee mayintervene in a third-party action by anemployer after the statute of limitationshas run, as long as the motion to inter-vene is filed within thirty days of the



notice of the pendency of the third-partyaction. Town of West Hartford v. Rizikow,Dkt. CV07-5009216S (Hartford, June13, 2007), 43 Conn. L. Rptr. No. 16, 574(Aug. 13, 2007).

CIGA liable for loss of consortium butnot wrongful death damages in third-party case for work-related deathsIn an interesting Guaranty Fund case,

the Fund was on the risk for the defen-dant in a civil action by the estates of twoworkers killed in a construction accident,where the workers’ compensation lienexceed $400,000.00 in each case. TheFund was held not to be liable for thewrongful death claims, which were not“covered claims” because the payment ofthe Fund per-claim limit of $300,000.00in each case would have gone to reim-burse the workers’ compensation carrier;in addition, the Fund’s liability limitwould have been in any case reduced tozero by the payments by the other insurer.However the Fund voluntarily paid$300,000.00 each on the loss of consor-tium claims, on the theory that these werenot covered by workers’ compensationand therefore were, in these circum-stances, covered claims under Sec. 38a-838(6). Stearns & Wheler, LLC v. Conn.Ins. Guaranty Ass’n, Dkt. X03 CV 054022256S (Hartford, July 13, 2007), 43Conn. L. Rptr. No. 21, 772 (Sept. 17,2007).

Inadvertently putting car into drive isnot operation of motor vehicleA garage mechanic was inspecting the

interior of a car after positioning it in thegarage. Twisting around, he knocked thetransmission lever from neutral into drive,which caused the car to lurch forward intothe plaintiff, a fellow employee. Themechanic had allegedly not set the emer-gency brake. His causing the car to moveforward by putting it in gear, however,was held not to constitute the operationof a motor vehicle for purposes of themotor vehicle exception to actions againstfellow employees. Colangelo v. Heckelman,CV01-0168331S (Waterbury, June 26,2007), 43 Conn. L. Rptr. No. 20, 719(Sept. 10, 2007). The squashed plaintiffprobably felt that the car was operatingpretty vigorously.

The Attack on Trial Lawyersand Civil JusticeRobert S. Peck and John Vail

Robert S. Peck and John Vail are Presidentand Vice President, respectively, of the Centerfor Constitutional Litigation, P.C., aWashington, D.C. law firm. One or theother has served as counsel in many of thecases discussed in this article.

This article was originally published as“Blame it on the Bee Gees: The Attack onTrial Lawyers and Civil Justice” in the NewYork Law School Law Review.

I. IntroductionIn the 60s Dr. King told America,

“[T]he arc of the moral universe is long,but it bends toward justice.”1 Certainly,legal history is characterized by a broaden-ing of access to justice, as well as a recog-nition that a person’s right to a dayin court is virtually an Americanbirthright.2 In the 70s, some straight-thinking Americans decided they couldnot tolerate that arc. “[L]iability insurers,product manufacturers, and other repeat-play tort defendants began a concertedeffort to enact laws that would limit tortliability that they contended had runamok.”3 Their work continues, funded atrates that would make a defense contractorblush.4The Supreme Court, which itself had

been bending toward justice, also showedsigns of becoming an arch-enemy. For twohundred years the American legal systemhad been governed by the venerable com-mon-law principle, where there is a wrong,there is a remedy.5 In 1979 the Courtdecided that the well-honored principle isnot so venerable after all.6 It was enoughto make a lover of the common law cry.As Sonny and Cher would say, “the

beat goes on.”7 The assault on the remedialimperative of the common law contin-ues8, masked as an assault on trial lawyers.Why attack the remedial imperative?Corporations — artificial persons — wantan ever bigger piece of the pie that feedsreal persons. They promote the idea thatthe civil justice system is simply a tool toserve the economy, and that trial lawyersare harbingers of economic ruin. The roleof the civil justice system as glue that holdsthe polity together is denigrated or forgot-ten, and trial lawyers are portrayed as ene-mies of the good— sometimes, literally, asterrorists.9Those who campaign for tort reform

and against trial lawyers see courts as one-way streets, available for their efforts to

hold others accountable10 but never tohold themselves accountable.11 Theirrhetoric refers to meritorious lawsuits —those where liability was successfullyestablished — as “frivolous,” and blameswealth-redistributing juries and complicitjudges for falling under the sway of heart-string-pulling trial lawyers.12From the earliest stages of the “tort

wars,” a half-century ago, the insuranceindustry set its sights on trial lawyers.13Trial lawyers’ success in increasing payoutson automobile claims had captured theirire.14 The damage to insurers’ economicbottom lines inspired a creative campaignto use all available media — the press,movies, and even television sitcoms — toreinforce the public’s unsavory image oftrial lawyers.15The campaign refocused the industry’s

dissatisfaction with a civil justice systemthat had opened its doors more widely, aswell as with the increasing professionalismand heightened capabilities of the trialbar.16 In doing so, the campaign attempt-ed to tap into preexisting antipathy towardlawyers and courts to further a private,corporate-driven economic agenda thatincreasingly became a political agenda.This preexisting suspicion of the legal pro-fession is so deeply rooted that even colo-nial America referred to members of theprofession as “bloodsuckers,” “pick-pock-ets,” “windbags” and “smooth-tonguedrogues.”17 This antipathy existed, and stillexists, despite the centrality of legal argu-ments and lawyers in making thecase for self-determination, individualrights, and American independence fromMother England,18 and it exists, despiteAmericans’ willingness to resort to thecourts to settle our most vexing issuesThus, as Professor Charles Silver hasobserved, “[a]ntipathy for lawyers did notdevelop overnight. It has existed for cen-turies, and it has been carefully and exten-sively nurtured in recent decades.”19The tactic is extensively used by tort

reformers and their political supporters.One rhetorician at the tort-reform-sup-porting Manhattan Institute tapped intothat reservoir of lawyer hostility by estab-lishing a website, www.overlawyered.com,that seeks to feed the negative predisposi-tion with tales of unscrupulous lawyersand frivolous lawsuits.20 Another pundit,Republican pollster and television com-mentator Frank Lunz, has advised candi-

Workers’ Compensation Review(Continued from page 159)


dates to attack trial lawyers as good poli-tics, adding that it is “almost impossible togo too far in demonizing lawyers.”21At the same time, attacks on judges

and courts as “activist” and controlled bythe trial bar have increased, and have beenbootstrapped to controversial decisions onwedge issues outside the realm of torts.The United States Chamber of Commercehas entered the judicial election fray,sponsoring hard-hitting television adver-tisements aimed at judges who ruleagainst business interests, and even utiliz-ing non-business issues to make politicalhay.22Yet, for all its sound and fury about

trial lawyers, the campaign is really oneagainst the nature of our civil justice sys-tem, where corporate bosses must standon an equal footing with the “unwashedmasses” and suffer the ignominy thatcomes from being held accountable bythose who lack their education, wealth,political clout, or status in the communi-ty.23 The attack on trial lawyers, at bot-tom, is merely a surrogate for the realobject of their disaffection: the civil jus-tice system and its accommodation ofpeoples’ claims.The sections that follow detail some of

those areas of attack. Part II addressesassaults on the contingency fee system,where lawyers incur costs but do notrecoup those expenses, or get paid, unlessfavorable results are obtained. Part III dis-cusses mandatory arbitration, which bydefinition is entered into without any realconsent, and has become a ubiquitousdevice for liability limitation. Part IVaddresses the current expert witness envi-ronment where physicians courageousenough to break the code of silence andtestify that colleagues have wronglyharmed patients are being forced to spendhuge sums to defend themselves before“peer review” tribunals that send a clearmessage: don’t testify. Part V discusseslegislatures, perhaps caught in bird-flufrenzy, who seem to have decided allimmunity is good, even when it fails toserve the public interest. Finally, Part VIdiscusses the efforts of artificial persons tomanipulate and alter rules of evidence andprocedure. The deterrent effect of tortlaw24 and the imperative it creates forsafer products25 is given no stature.Instead, missing no opportunity to curtailliability, the artificial persons of the worldwant rules of evidence and procedure totreat their electronic memories morefavorably than we treat the real memoriesof real persons: where a real person has tosay what they know, an artificial person

would be required merely to say what isconvenient.

II. Attacks on Contingency FeesIf representing the rank-and-file were

not potentially profitable, there would beno need to seek various types of tortreform to render it unprofitable. For thatreason, the contingency fee, the key to thecourthouse for those who cannot afford topay for legal representation upfront, isunder constant attack — with the attackfocused on the capacity of the fees to gen-erate trial lawyer “wealth.”26It is no coincidence that the contin-

gency fee aligns counsel’s interests withthat of the client. As eloquently stated byJudge Frank Easterbrook:

[t]he contingent fee uses private incen-tives rather than careful monitoring toalign the interests of lawyer and client.The lawyer gains only to the extent hisclient gains. This interest alignmentdevise is not perfect. . . But [an] imper-fect alignment of interests is better thana conflict of interests, which hourly feesmay create.27

Pennsylvania Justice Michael A.Musmanno agreed and famously declared:

If it were not for contingent fees, indi-gent victims of tortious accidentswould be subject to the unbridled, self-willed partisanship of their tortfeasors.The person who has, without fault onthis part, been injured and who,because of his injury, is unable to work,and has a large family to support, andhas no money to engage a lawyer,would be at the mercy of the personwho disabled him because, being in asuperior economic position, the injur-ing person could force on his victim,desperately in need of money to keepthe candle of life burning in himselfand his dependent ones, a whollyunconscionable meager sum in settle-ment or even refuse to pay him any-thing at all. Any society, and especiallya democratic one, worthy of respect inthe spectrum of civilization, shouldnever tolerate such a victimization ofthe weak by the mighty.28

In the view of those who attack the sys-tem, this alignment of interests is precise-ly the problem — it enables lawsuits thatotherwise never would be filed. In fact,attacks on the contingency fee systemstretch back before the tort reform era andrecur to this day. It is not those who can-not otherwise afford a lawyer who protestthe contingency fee system. Rather, theseattacks are mounted by frequent defen-

dants and insurers.29 That, in itself, istelling.One of the most prominent recent

attacks was mounted by the tort-reformgroup, Common Good, which petitionedthe supreme courts of a dozen states tochange the rules governing contingencyfees by limiting them in cases wheredefendants made an early settlementoffer.30 The petitions uniformly wereunsuccessful.31 Common Good hardlyhides its objectives; it states that a majorelement of its mission is convincing“judges and legislatures to create clearstandards on who can sue for what.”32 Inan absurdly skewed and decidedly defen-dant-oriented view of the civil justice sys-tem, Common Good labels “[o]ur systemof justice. . . a tool for extortion.”33A similar tack was adopted by the

Florida Medical Association (“FMA”).The FMA successfully proposed a stateconstitutional amendment intended tocap contingency fees in medical malprac-tice cases at thirty percent of the first$250,000 awarded, and ten percent of anyamounts above $250,000.34 After votersapproved the FMA initiative, which wasframed as “The Claimant’s Right to FairCompetition,”35 the doctors stealthilyproposed a new ethical rule that wasaimed at preventing clients from waivingtheir right to restrict their attorney’s fee.36The gambit proved unsuccessful.

Recognizing that the amendment createda personal constitutional right in the med-ical malpractice claimant, plaintiffs’ coun-sel began to seek client waivers to assurethat such cases would not be rendereduneconomic to pursue. They were able toseek these waivers because, under Floridaprecedent,37 state courts have recognizedthat various personal constitutional rights,including the right to trial by jury, theright to access to the courts, and the rightto due process of law, are all subject towaiver.38 A Florida intermediate appellatecourt has recognized:Although the constitution and the

statute do not expressly recognize a per-son’s right to waive their [homestead] pro-tection, it has long been recognized thatan individual is free to knowingly andintelligently forego a right which isintended to protect only the propertyrights of the individual who chooses tomake the waiver.39The proposed ethical rule prohibiting

waiver attempted to make a personal con-stitutional right inalienable was withoutwarrant in the constitutional text. TheFlorida Supreme Court saw the issue in



The Attack on Trial Lawyersand Civil Justice(Continued from page 161)

precisely that light. Finding the right to bepersonal, and thus subject to waiver, itordered the Florida Bar to propose a rulethat would permit, rather than prohibit,waiver.40While these two modern attempts at

limiting contingency fees in order to dis-courage litigation have failed, moreattempts unquestionably will be made inthe future. Although aimed at the pocket-books of trial lawyers, the attempts tolimit contingency fees ultimately result inincreased difficulty for potential plaintiffsto find representation for their complexcases, and therefore they, not trial lawyers,have become the object of these attacks.

III. The Expansion of MandatoryArbitrationMandatory arbitration — the require-

ment in adhesion contracts that disputesmust be resolved in private by privatedecisionmakers — is the beast that mighteat the civil justice system. Beloved bycredit card issuers, sub-prime lenders,non-union employers, and any industrythat wants to avoid class-action liability, itis ubiquitous in modern American life.In purchasing a personal computer, forexample, a little slip of paper at the bot-tom of the shipping box may establishthat you indicate your agreement to arbi-trate any dispute by turning on the com-puter.41Born of a Supreme Court decision that

a sitting majority of the Court hasacknowledged was wrongly decided, itwill live until Congress kills it.42 TheCourt has made clear that it is not aboutto destroy the Frankenstein’s monster itcreated. Given the political clout of thelimited liability investment interests thatsupport it, the beast is apt to have a longlife.The story has been told elsewhere in

greater depth,43 but the Cliff Notes ver-sion goes like this: In the early part of the20th century, state courts often wereunwilling to specifically enforce arbitra-tion agreements.44 Prodded by large com-mercial entities that wanted agreementsbetween each other to be enforceable,Congress passed the Federal ArbitrationAct (“FAA”).45 The language and historyof the act indicate that it was writtenas a set of procedural rules for federalcourts.46Long after the Depression and the

Civil Rights era established that theCommerce Power is broad, the Courtdecided that Section 2 of the FAA, whichmandates enforcement of certain arbitra-tion clauses, is a substantive rule of con-tract law applicable in state courts.47 As amatter of statutory construction, the deci-sion clearly is wrong,48 and a majority ofthe members of the Rehnquist courtagreed.49 But the Court in general doesnot reverse itself on longstanding statuto-ry interpretations and it clearly has indi-cated that it does not intend to do sohere.50 Even so, it has long been assumedthat state courts could determine whetheran arbitration clause exists depending onwhether the underlying contract was validunder state law.51 However, the Court’smost recent decision in this area reversedthe Florida Supreme Court, which hadrefused to enforce an arbitration clause ina contract it had found to be criminal as amatter of Florida law.52 The SupremeCourt said that, in the first instance, anarbitrator, not a court, must decidewhether the contract containing the arbi-tration clause is void.The practical effect of all this is strik-

ing. It is difficult to ascertain just howubiquitous mandatory arbitration clausesare in American life, in part because theiruse is expanding so rapidly, and in partbecause the promoters of arbitration arethe proprietors of the collected results.53One cleverly conceived experiment creat-ed an imaginary character, Joe, and lookedat how dispute resolution in his life hadbeen privatized through the use of adhe-sion contracts.54 Thirty-five percent ofthe contracts he encountered in everydaylife had mandatory arbitration clauses, asdid nearly seventy percent of the contractsin the financial services industry (creditcards, banking, etc.).55 Think about howmany purchases are made by credit card,and think about how few disputes aboutthem can be litigated.The results of all this are troubling.

The costs of arbitration can inhibit plain-tiffs from bringing claims.56 Industries usearbitration clauses to protect themselvesfrom class actions,57 with great success.58An arbitration clause effectively can insu-late from liability any industry that causesharms individually small but collectivelylarge, robbing the law of its power to dis-gorge ill-gotten gain. Industries use arbitra-tion clauses to insulate themselves frompublic scrutiny. Claims of discrimination,59retaliation,60 and professional negligence61can be hidden from public view; if BigTobacco had put arbitration clauses ontocigarette packs, they might never had to

admit that they knew that smoking caus-es lung cancer.Industries use arbitration clauses to

limit the amounts they have to pay whenthey are found responsible for misdeeds.62Victims are robbed of redress, and, asimportantly, the public is deprived of theopportunity to judge the reprehensibilityof misconduct: a jury of one’s peers is nota feature of arbitration.The consequences for the body politic

are potentially enormous.63 Some rules oflaw are simply placeholders, designed toextrapolate terms in agreements and toallow commerce to continue. For exam-ple, if a contract doesn’t specify thenumber of widgets, we will extrapolate areasonable amount and enforce the other-wise sound agreement. We care littlewhether disputes involving these rules areprivately resolved. But many other lawsapplicable to private disputes embodypolicy judgments about how we wantpeople to behave. We care whether anemployment contract specifies a wagebelow a mandated minimum or specifiesdifferent wages for persons of differentraces. Placing the resolution of such dis-putes into the hands of persons who arenot accountable to the public, operatingin a system that is not transparent andthat yields no precedent, deprives thepublic of assurance that its rules of behav-ior are followed. Adherence to the rule oflaw requires faith in the rule of law.Mandatory arbitration erodes that faith.

IV. The Harassment and Intimidationof Expert WitnessesIn the early 1980s, the American

Association of Neurological Surgeons(“AANS”) — a group for which one courthas characterized a quarter of a milliondollars a year as merely “moonlightingincome”64 — decided that persons whoappear as expert witnesses in cases involv-ing AANS members should have their tes-timony subjected to extrajudicial peerreview. Traditionally, peer review hadtaken place only when medical care result-ed in an adverse event. Such review initial-ly was designed to identify medical errorsand establish procedures aimed at avoid-ing them in the future. It also was capableof identifying physicians who should notbe practicing medicine. The results ofpeer review proceedings are not public,and are immunized from liability.65When the AANS decided to “peer

review” testimony, it never said that itsintent was to give pause to plaintiffs’expert witnesses. Still, in the twenty yearsbetween the initiation of the AANS pro-


gram and the 2001 Austin v. AANS deci-sion, which involved a challenge to theauthority of the AANS to conduct suchreviews, 24 of the 27 cases the AANSreviewed had been brought by physicianswho had been defendants in malpracticecases.66In the late 1990s, the American

Medical Association (“AMA”) decidedthat peer review of expert testimonywould be a good function for medicalassociations in general.67 At the timewhen the AMA adopted a resolution tothat effect, its membership was in steepdecline.68 It also was fighting a politicalwar against full recovery for victims ofmedical malpractice. A way to reign indoctors who crossed the thin blue line totestify about malpractice might haveseemed an attractive way to rally thetroops.Expert witness peer review has taken

many forms. One model is the AANSmodel, which is limited to review by acadre of members of the group. Thatmodel has been adopted by numerousother specialty societies.69The Florida Medical Association

(“FMA”), a private organization, alsoadopted a peer review program thatextends to any physician who testifies inFlorida, regardless of whether she islicensed in Florida or is a member of theFMA. The Florida Court of Appealsrecently ruled, in Fullerton v. FMA, thatthe immunities available for peer reviewin the Health Care Quality ImprovementAct70 and a similar Florida law71 do notapply to peer review of testimony.72 Thosestatutes were designed to deal with ren-dering care to patients, not renderingwords in court.State medical licensure boards also

have asserted authority over expert wit-ness testimony.73 The Mississippi licen-sure board has recently adopted a rulepurporting to prescribe rules of conductfor any physician who testifies in anymedical malpractice case involving aMississippi defendant, regardless ofwhether the case is pending in state orfederal court, and regardless of whetherthe case is even pending in Mississippi.74An assertion of authority over expert wit-nesses by the Texas Medical Board hasbeen challenged in Doe v. Texas MedicalBoard.75 The North Carolina Court ofAppeals recently exonerated a neurosur-geon, Dr. Gary Lustgarten, who had beencondemned by the licensure board,76 butnot before the innocent doctor spent sixfigures on defense costs.77What is wrong with these programs?

Whether by purpose or only in effect,they stem the free flow of testimony tocourts, and they impinge protected freespeech.78Their purpose — promulgated by

politically and economically powerfulgroups to advance economic self-interest— should be suspect. Their effect is clear,at least anecdotally. Plaintiffs’ medicalmalpractice attorneys report that securingmedical expert testimony is continuallymore difficult. Physicians under contractto testify have, under peer pressure,sought release from their obligations, evenon the eve of trial. Physicians who havepreviously testified relate that they arebecoming more reluctant to testify in thefuture, given experiences such as Dr.Lustgarten’s in North Carolina.79The danger we all face from such pro-

grams is recognized by the common lawtestimonial privilege. We are so concernedthat testimony be unfettered that we donot allow remedies even against witnesseswho have perjured themselves:

“[T]he dictates of public policy. . .require[] that the paths which lead tothe ascertainment of truth should beleft as free and unobstructed as possi-ble.” A witness’s apprehension of sub-sequent damages liability might inducetwo forms of self-censorship. First, wit-nesses might be reluctant to come for-ward to testify. And once a witness ison the stand, his testimony might bedistorted by the fear of subsequent lia-bility. Even within the constraints ofthe witness’s oath there may be variousways to give an account or to state anopinion. These alternatives may bemore or less detailed and may differ inemphasis and certainty. A witness whoknows that he might be forced todefend a subsequent lawsuit, and per-haps to pay damages, might beinclined to shade his testimony infavor of the potential plaintiff, to mag-nify uncertainties, and thus to deprivethe finder of fact of candid, objective,and undistorted evidence. But thetruth- finding process is better served ifthe witness’s testimony is submitted to“the crucible of the judicial process sothat the factfinder may consider it,after cross-examination, together withthe other evidence in the case to deter-mine where the truth lies.”80

V. The Creation of New ImmunitiesOther immunities have been handed

out to favored classes. These immunitiesafforded to special interests with enor-mous political clout, are utterly inconsis-

tent with the arc of justice.81 In recenttimes, hospital emergency rooms havebenefited from constitutionally problem-atic immunity provisions enacted inNevada82 and Georgia.83 Yet even morequestionable is the immunity Congressgranted gun manufacturers and dealers in2005, which prevents third-party liabilityfrom attaching to their marketing andsales practices, as charged in a series ofpublic nuisance lawsuits brought bymunicipalities.84 The enacted law demon-strates how far into the exercise of judicialauthority a legislature may be willing tointrude in order to support the litigationposture of a political patron industry.While advancing a pretextual claim

about burdens on interstate commerce,Congress more accurately identified itsreal purpose in enacting the gun immuni-ty law when it characterized the litigationit disfavors as the “use [of ] the judicialbranch to circumvent the Legislativebranch.”85 The odd idea that a personadversely affected under existing legalprinciples must be a supplicant to the leg-islature, even when it is under the sway ofan opponent, rather than a petitioner in aneutral court, indicates that Congress haslittle idea what separation of powers isreally about. That enmity directed at judi-cial declarations of the law of the state alsounmasks the judicial nature of Congress’sundertaking: it is an attempt to take onthe role of “super-judiciary” and overruleany “maverick” judge who would enter-tain this type of action by declaringCongress’s own understanding of thecommon law extant in every state.86 Incontrast, while Congress opined that suchlawsuits are without “foundation in hun-dreds of years of the common law andjurisprudence of the United States,87theAmerican Law Institute has reached pre-cisely the opposite conclusion,88 as havecourts of last resort in the states.89 TheConstitution, however, grants Congressonly legislative powers — and enumerat-ed ones at that. Its authority under a sys-tem of separated powers does not extendto determinations of the merits of a legalargument, an individual case, or a class ofcases.90The disingenuously named gun law,

the Protection of Lawful Commerce inArms Act (“PLCAA”), prohibits “quali-fied civil liability actions” against gunmanufacturers or sellers unless, inter alia,the defendant “knowingly violated a Stateor Federal statute applicable to the sale ormarketing of the product, and the viola-tion was a proximate cause of the harm




for which relief is sought. . . ”91 Hence,the act prohibits actions based upon judi-cial construction of a state’s law, includingits common law, but permits the identicalactions when based on a legislative act.Congress, however, holds no authority

to select among branches of state govern-ment that branch which can declare feder-ally cognizable law. It is axiomatic that“the decisions of state courts are definitivepronouncements of the will of the Statesas sovereigns.”92 It is equally true that“rules of decision established by judicialdecisions of state courts are ’laws’ as wellas those prescribed by statute.”93 As such,a congressional enactment, like thePLCAA, that denies state courts theauthority to declare the law and requiresexclusive reliance on state legislatures forthe definitive pronouncement of thatstate’s law invades state sovereignty, andmust be regarded as unconstitutional.After all, it is “[t]hrough the structure ofits government, and the character of thosewho exercise government authority, aState defines itself as a sovereign.”94By recognizing state legislative author-

ity to authorize such lawsuits while deny-ing state judicial authority to construeexisting law to permit the very same law-suits, the PLCAA plainly violates the prin-ciple that “states are free to allocate thelawmaking function to whatever branchof state government they may choose.”95On this point, the U.S. Supreme Courthas been emphatic: “While Congress hassubstantial powers to govern the Nationdirectly, including in areas of intimateconcern to the States, the Constitutionhas never been understood to confer uponCongress the ability to require the Statesto govern according to Congress’ instruc-tions.”96The federal government can neither

dictate the form of government a stateadopts, nor require that a state respectfederal separation of powers principleswithin its government.97 It then followsthat Congress may not require that thelaws of a state be a product of legislativeaction, rather than authoritative construc-tion by its courts. The U.S. SupremeCourt has recognized only one justifica-tion for overriding a state’s sovereignpower to order its own affairs: when textof the federal Constitution explicitly pro-vides for a different arrangement.98Because Congress may not choose

which branch declares the law of the state,Congress may not, consistent with consti-tutional requirements, require a state toexercise its authority to make law throughthe legislature rather than through thecourts and may not constrict state judicialpower to declare “what the law is.”99 Normay Congress override the constructionthat courts give to state law.100 Yet that isprecisely what Congress attempted in thegun law. Congress made plain its concernthat third-party liability would be imposedon gun manufacturers and dealers by a“maverick judicial officer or petit jury” ina manner that was not supported by“hundreds of years of the common lawand jurisprudence of the United States[or] a bona fide expansion of the commonlaw.”101 This statutory expression of con-gressional preference for legislative deter-minations over judicial ones is not alegitimate exercise of federal power and anovert expression of hostility to judges.The Constitution also does not invest

Congress with any judicial powers, yet,through the gun act, Congress plainlyarrogated to itself the authority to construethe meaning and applicability of existingstate law and then rule legislatively basedon that interpretation. Fundamental sepa-ration of powers doctrine, though, holdsthat Congress may not adjudicate a casein order to reach a result contrary to whatcourts have already held.102In United States v. Klein, the Supreme

Court held that Congress cannot directthe outcome of a pending case withoutchanging the underlying substantive lawgoverning the lawsuit.103 Directing theoutcome, it held, constituted an unconsti-tutional exercise of judicial power by thelegislative branch.104 Although Congressmay “enact[] new standards” and leave “tothe courts the judicial functions of apply-ing those standards,”105 it may not other-wise “adjudicat[e][] particular caseslegislatively.”106 The gun law similarlyviolates this separation of powers principleby ordering courts to dismiss pendingcases because Congress, attempting toconstrue the common law of every state,believes that there is no legitimate basisfor such a lawsuit. Congress establishedno contrary law; merely a directive thatcourts “immediately dismiss[]” suchcases.107In Klein, the Court concluded that the

disputed law could not be regarded as aproper exercise of congressional authorityover jurisdiction because it took the formof a congressional command to the courtsto reach a particular outcome in a definedset of cases — an attempt, in the Court’s

words, to “prescribe rules of decision tothe Judicial Department of the govern-ment in cases pending for it[.]”108 TheCourt particularly criticized the lawbecause Congress deemed a judicial deter-mination it did not like as untenable.109It concluded that Congress could not thus“prescribe a rule for the decision of a causein a particular way”110 without “pass[ing]the limit which separates the legislativefrom the judicial power.”111 The Courtcontrasted a case where Congress permis-sibly changed the underlying law, “[n]oarbitrary rule of decision was prescribed,”and “the court was left to apply its ordi-nary rules to the new circumstances creat-ed by the act.”112 Klein stands for “theprinciple that Congress cannot direct theoutcome of a pending case withoutchanging the law applicable to thatcase.”113 The PLCAA’s immediate dis-missal requirement plainly violates thisrule. It leaves courts “no adjudicatoryfunction to perform”114 and directs the“ultimate decision” in pending cases.115On October 23, 2006, an Indiana trialcourt invalidated the Act on separation ofpowers grounds.116

VI. Bending the Rules to AdvantageOne SideProponents of the interests of artificial

persons have also been seeking to bendthe rules of procedure and evidencetoward the interests of their clients, andhave done this through active lobbying ofboth federal and state rulemakers.Take federal rules first. New rules relat-

ing to electronic discovery were recentlypromulgated.117 In commentary reactingto these rules, the plaintiffs’ bar took theposition that, in general, there was littlethat needed to be addressed by rule andthat most problems being encountered bythe courts were being dealt with expedi-tiously under existing rules.118 The arti-ficial persons’ defense bar took the posi-tion, in general, that hellfire and damna-tion were imminent if changes to the ruleswere not made.119 The federal rulemak-ing committee found it prudent to avoidhellfire and damnation.Controversially, the amendments cre-

ate a “safe harbor” that protects a partyfrom sanctions for failing to provide elec-tronically stored information lost becauseof the routine operation of the party’scomputer system (Rule 37).120 Theamendment to Rule 37 has the potentialto sanction the destruction of informationcritical to demonstrating that bad actshappened.121 The amendment on privi-lege was only a partial victory for the busi-


ness community, which wanted a rule thatallowed it to assert or breach privilege atwill.122Not satisfied with partial victory, the

defense bar carried its fight to Congress,which in turn asked the evidence commit-tee to consider rules on privilege.123Federal rules on privilege raise dainty con-stitutional issues, especially in diversitycases governed by state substantive law,and the Rules Enabling Act reserves toCongress the power to enact them.124Generally the Advisory Committee onCivil Rules does not consider rules relatedto privilege at all.125 But having beenasked by the chair of the House JudiciaryCommittee to develop new rules on privi-lege, the Committee will do so, through itsnormal processes, and, assuming SupremeCourt approval, will then send the propos-al to Congress for enactment.126The committee has before it one issue

that has become one of corporateAmerica’s favorite whines: whether theattorney-client privilege can be selectivelywaived.127 Guidelines governing certaincorporate prosecutions and certainadministrative agency enforcement actionssuggest lower penalties when the targetof the action cooperates with theenforcer.128 One measure of cooperationcan be whether the target waives the attor-ney-client privilege. Eager to placate theirwatchdogs but unwilling to forfeit anyfuture claim to privilege, corporationshave suggested a doctrine of selectivewaiver: the privilege could be waived forpurposes of the enforcement action, butthe privilege would be available for anyother purpose.129Selective waiver addresses the wrong

problem. If the waiver guidelines areencouraging prosecutorial overreaching,the solution is not to vitiate one of thecore protections the law affords topersons — the right to confer confiden-tially with their lawyer — but to controlthe overreaching. We will see what theCommittee does.Like measles, the desire to make rules

is contagious. It has infected the states. Inthe wake of federal rule changes, theNational Commission on Uniform StateLaws has proposed a “Uniform Discoveryof Electronic Records Act.”130 Statejudges discussing the federal rules haveseen no need for similar changes at theirlevel.131

VII. ConclusionWhen powerful forces in American life

began to be held accountable for not pay-ing minimum wage, for profiting mightily

from renting substandard housing, orfrom charging predatory rates for loans,they didn’t attack the popular laws thatcreated the causes of action under whichthey were held liable. Instead, theyattacked the politically vulnerable LegalAid lawyers who prosecuted thoseclaims.132With trial lawyers, it’s the sameplaybook. The public doesn’t want unsafecars or flammable pajamas or toxic drink-ing water. So the purveyors of thosethings do not attack the popular laws;they attack the lawyers who pursue theseclaims.Artificial persons might not have emo-

tions. But they have agendas. They alsohave tenacity, and they have resources.They have long sought to bend the bodypolitic in their direction, and in moderntimes they are trying hard to bend thecivil justice system their way, too.But the arc of the moral universe is still

long, and there are still real people, triallawyers among them, who work hard tokeep it bending toward justice.____1 Martin Luther King, Jr., Annual Report at the11th Convention of the Southern ChristianLeadership Conference: Where Do We Go FromHere? (Aug. 16, 1967) (alteration in original),www.stanford.edu/group/King/publications.2 See, e.g., Queen City Coach Co. v. Burrell, 85S.E.2d 688, 692 (N.C. 1955).3 John Fabian Witt, The Long History of StateConstitutions and American Tort Law, 36 RUT-GERS L.J. 1159, 1164 (2005) (alteration in orig-inal).4 See DAVID CALLAHAN, NATIONALCOMMITTEE FOR RESPONSIVE PHILAN-THROPY, $1 BILLION FOR IDEAS: CON-SERVATIVE THINK TANKS IN THE 1990S(1999), excerpt available athttp://www.commonwealinstitute.org/ncrp.callahan.1.htm); David Callahan, $1 Billion forConservative Ideas,THE NATION, Apr. 1999, at21, available athttp://www.thenation.com/doc/19990426callahan; Dan Zegart, The Right Wing’s Drive for’Tort Reform,’ THE NATION, Oct. 2004, at13, available at http://www.thenation.com/doc/20041025/zegart; Don Hazen, The Right WingExpress, ALTERNET, Feb. 7, 2005,http://www.alternet.org/mediaculture/21192/;Eric Alterman, Think Again: How We Got Here(Apr. 8, 2005), http://www.americanprogress.org/issues/2005/04/b617015.html.5 See Marbury v. Madison, 5 U.S. (1 Cranch)137, 163 (1803) (“The very essence of civil liber-ty certainly consists in the right of every individ-ual to claim the protection of the laws, wheneverhe receives an injury. One of the first duties ofgovernment is to afford that protection.” ).6 In Cannon v. U. of Chicago, the court held,“[T]he fact that a federal statute has been violat-ed and some person harmed does not automati-cally give rise to a private cause of action in favorof that person.” 441 U.S. 677, 688 (1979) (alter-ation in original).7 SONNY & CHER, The Beat Goes On, on IN

CASE YOU’RE IN LOVE (Atco Records 1967).8 See generally Jay M. Feinman, UN-MAKINGLAW: THE CONSERVAIVE CAMPAIGN TOROLL BACK THE COMMON LAW (BeaconPress 2004).9 During a speech to Boston College’s ChiefExecutives’ Club on Feb. 24, 2004, Maurice“Hank” Greenberg, then-chairman of the world’slargest insurer by market value, AmericanInternational Group, plainly stated: “I call theplaintiff ’s bar terrorists.” Boston College, CarrollSchool of Management Executive Events Page,http://www.bc.edu/schools/csom/cga/executives/events/greenberg/ (last visited July 27, 2006).10 See, e.g., ERIK MOLLER, NICHOLAS M.PACE & STEPHEN J. CARROLL, PUNITIVEDAMAGES IN FINANCIAL INJURY JURYVERDICTS (1997).11 Of all the proposals that play the tort-reformtune, none tries to contain business-to-businesslitigation, which appears to be increasing at agreater rate than tort cases. Feinman, supra note9, at 67. If one paid attention merely to the tort-restrictionist lyrics, one would never know thatthe so-called litigation explosion never occurred;see, e.g., Thomas A. Eaton et al., Another Brick inthe Wall: An Empirical Look at Georgia TortLitigation in the 1990s, 34 GA. L. REV. 1049(2000); Marc Galanter, Real World Torts: AnAntidote to Anecdote, 55 MD. L. REV. 1093(1996); Deborah Jones Merritt & Kathryn AnnBarry, Is the Tort System in Crisis? New EmpiricalEvidence, 60 OHIO ST. L.J. 315 (1999).12 See generally Stephen Daniels, The Question ofJury Competence and the Politics of Civil JusticeReform: Symbols, Rhetoric and Agenda-Building,52 LAW & CONTEMP. PROBS. 269 (1989)(describing the tort reform campaign).13 The New York State Trial Lawyers Associationhas documented such attacks as far back as 1958.NEW YORK STATE TRIAL LAWYERS ASSO-CIATION, NYSTLA: THE FIRST 50 YEARS,9-12 (2003), available at http://www.nystla.org/nicecontent/documents/history-FINAL.pdf[hereinafter NYSTLA].14 See INSURANCE RESEARCH COUNCIL,INJURIES IN AUTO ACCIDENTS: ANANALYSIS OF INSURANCE CLAIMS 78(1999). The report found that in 1997, bodilyinjury claimants represented by counsel recoveredan average of $11,640, compared to $3,190 forthose who did not retain an attorney.15 NYSTLA, supra note 14, at 9-11.16 In the post-World War II era, courts “loweredbarriers to litigation-dismantling immunities,widening standing, and eliminating the require-ment of privity in products liability cases-andenlarged remedies.” Marc Galanter, The TurnAgainst Law: The Recoil Against Accountability, 81TEXAS L. REV. 285, 287 (2002).17 Marc Galanter, The Faces of Mistrust: TheImage of Lawyers in Public Opinion, Jokes, andPolitical Discourse, 66 U. CIN. L. REV. 805, 810-11 (1998) (internal quotations omitted) (cita-tions omitted).18 See HENRY STEELE COMMAGER, THEEMPIRE OF REASON (1977); GORDONWOOD, THE CREATION OF THE AMERI-CAN REPUBLIC 1776-1787 (1969). Americanshave long looked to the judicial branch to resolveknotty disputes. See 1 ALEXIS DE TOC-




QUEVILLE, DEMOCRACY IN AMERICA280 (Phillips Bradley & Francis Bowen eds.,Henry Reeve trans., Alfred A. Knopf 1945)(1835) (“Scarcely any political question arises inthe United States that is not resolved, sooner orlater, into a judicial question.”).19 Charles Silver, A Rejoinder to Lester Brickman:On the Theory Class’s Theories of AsbestosLitigation, 32 PEPP. L. REV. 765, 780 (2005).20 Overlawyered.com,http://www.overlawyered.com (last visited Oct.12, 2006). Although the editor ofOverlawyered.com, Walter Olson, acknowledgeshis own affiliation with the Manhattan Institute,he explicitly disclaims Institute affiliation withthe website. About Overlawyered.com,http://www.overlawyered.com/pages/aboutus.html (last visited Oct. 12, 2006).21 Joan Claybrook, 21 Corporate Accountability:The Power of Citizen Access to the Courts, PUB.CITIZEN 20-21 (2001), available at http://www.citizen.org/documents/pcnews30ann.pdf.22 See MANHATTAN INSTITUTE, JUDICIALELECTIONS: PAST, PRESENT, FUTURE 26-29(2001), available at http://www.manhattan-insti-tute.org/pdf/mics6.pdf (describing the use of so-called issue ads to evade restrictions on corporatecampaign spending and contribution disclosurelaws, as well as utilizing, in one instance, a soft-on-crime approach to unseating an Indianaappellate judge who drew their ire).23 Generally, the term “unwashed masses” is usedto describe those who are less than equal to amore elite class of citizens who both bathe moreregularly and feast on more intellectual or conse-quential fare. See Allan Ides, The Jurisprudence ofWringing Hands: A Response to Professor Soifer, 48WASHINGTON AND LEE L. REV. 419, 419(1991).24 WILLIAM M. LANDES & RICHARD A.POSNER, THE ECONOMIC STRUCTUREOF TORT LAW 10 (1987) (“[A]lthough therehas been little systematic study of the deterrenteffect of tort law, what empirical evidence there isindicates that tort law likewise deters . . . ”) (alter-ation in original).25 See Gary T. Schwartz, Reality in the EconomicAnalysis of Tort Law: Does Tort Law Really Deter?,42 UCLA L. REV. 377, 384-85 (1994).26 The attackers do not seem concerned abouttrial lawyers receiving no fee, or expending greatamounts in expert and other costs, as well asopportunity costs, when the case fails.27 Kirchoff v. Flynn, 786 F.2d 320, 325 (7th Cir.1986).28 Richette v. Solomon, 187 A.2d 910, 919 (Pa.1963).29 See Marc Galanter, Anyone Can Fall Down aManhole: The Contingency Fee and Its Discontents,47 DEPAUL L. REV. 457, 467 (1998); PeterKarsten, Enabling the Poor to Have Their Day inCourt: The Sanctioning of Contingency FeeContracts, A History to 1940, 47 DEPAUL L.REV. 231, 254 (1998).30 Adam Liptak, In 13 States, A United Push toLimit Fees of Lawyers,NYTIMES, May 26, 2003,at A10.

31 Most courts rejected the petitions out of hand.Only the Utah Supreme Court took the petitionseriously enough to assign consideration of thepetition to a bar committee. That committeereceived briefing and oral argument, only tounanimously reject the petition, a recommenda-tion that the Utah Supreme Court accepted.Letter from Robert A. Burton, Chair, UtahSupreme Court Advisory Comm. on the Rules ofProf ’l Conduct, to Steven T. Densley, Attorney,Strong & Hanni, and Nancy Udell, Gen.Counsel, Common Good (Jan. 28, 2004) (on filewith authors).32 Common Good Frequently Asked Questions,What Are You Proposing?,http://cgood.org/learn-faq.html (last visited Oct.20, 2006).33 http://cgood.org/assets/attachments/108.pdf(last visited Nov. 3, 2006).34 FLA. CONST. art. I, § 26.35 Id.36 Petition, In re Amendment to the RulesRegulating the Fla. Bar, 2006 WL 2771252 (Fla.2006) (No. SC05-1150). The FMA hired a for-mer Florida Supreme Court chief justice toadvance the petition. He gathered signaturesfrom members of his law firm and from FMA orallied lobbyists who were lawyers. GaryBlankenship, Board Asks Court Not to AdoptPetition to Limit Contingency Fees in Med MalActions, THE FLA. BAR NEWS, Jul. 1, 2005, at14, available at http://www.floridabar.org (clickpublications, then Fla. Bar News, then archives).Under the rules of The Florida Bar, one way toadvance such a proposal is through a petitionfiled by fifty bar members in good standing.FLA. BAR. REG. R. 1-12.1(f ). At oral argumentabout the proposal, hard questions were posed tothe FMA lawyer about his failure to disclose thatalthough he had advanced the petition as a mem-ber of the Bar, he was operating on behalf of apaying client; the court questioned the proprietyof using the petition procedures to advance theinterests of a client. Transcript and Video of OralArgument, In re Amendment, 2006 WL 2771252(No. SC05-1150), available at http://www.wfsu.org/gavel2gavel/archives/05-11.html#NOV1.Subsequently, the court ordered The FloridaBar to develop and submit a proposed amend-ment to the rule, which would create a properprocedure for client waivers. Order, In reAmendment, No. SC05-1150 (Dec. 14, 2005),available at http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2005+p_casenumber=1150+pscourt=FSC+psSearchType=. In 2006, theCourt approved a waiver procedure. In reAmendment, __ So.2d __, 2006 WL 2771252.37 In re Shambow’s Estate v. Shambow, 15 So.2d837, 837 (Fla. 1943) (“It is fundamental thatconstitutional rights which are personal may bewaived.”). See also City of Treasure Island v.Strong, 215 So.2d 473, 479 (Fla. 1968) (“[I]t isfirmly established that such constitutional rightsdesigned solely for the protection of the individ-ual concerned may be lost through waiver . . . .”)(alteration in original); Bellaire Sec. Corp. v.Brown, 168 So. 625, 639 (Fla. 1936) (“A partymay waive any right to which he is legally enti-tled, whether secured by contract, conferred bystatute, or guaranteed by the Constitution.”); S.J.Bus. Enter., Inc. v. Colorall Tech., Inc., 755 So.2d769, 771 (Fla. Dist. Ct. App. 2000) (“The lawhas long recognized an individual’s right to waive

statutory protections as well as constitutional orcontractual rights.”).38 See Seifert v. U.S. Home Corp., 750 So.2d633, 642 (Fla. 1999) (recognizing that an agree-ment to arbitrate waives constitutional rights totrial by jury, due process, and access to thecourts).39 Hartwell v. Blasingame, 564 So.2d 543, 545(Fla. Dist. Ct. App. 1990) (citation omitted).40 In re Amendment, 2006 WL 2771252 (orderto submit amendment proposal). See discussion,supra note 37.41 Caroline Mayer, Fine Print Erases Consumers’Right to Sue, SEATTLE TIMES, May 24, 1999,at A1.42 Southland Corp. v. Keating, 465 U.S. 1(1984). Cf. n. 50, infra.43 See, e.g., David S. Schwartz, The FederalArbitration Act and The Power of Congress OverState Courts, 83 OR. L. REV. 541 (2004).44 See Julius Henry Cohen and Kenneth Dayton,The New Federal Arbitration Law, 12 VA. L. REV.265, 281 (1926) (in which the drafters of theFederal Arbitration Act explain its background)45 9 U.S.C. §§ 1-16 (2000).46 See, e.g., 9 U.S.C. § 4 (setting rules for enforc-ing arbitration agreements in federal courts). TheFAA does not provide an independent basis offederal jurisdiction. By its terms, § 4 applies onlyto cases over which a federal court has an inde-pendent basis of jurisdiction, excluding many ofthe cases to which § 2 has been in held to apply.47 Southland Corp. v. Keating, 465 U.S. 1(1984).48 See Schwartz, supra note 44.49 Justice O’Connor, joined by Chief JusticeRehnquist, in Southland, argued in dissent that“Congress intended to require federal, not state,courts to respect arbitration agreements.” 465U.S. at 23 (O’Connor, J., dissenting). JusticeStevens noted that Justice O’Connor was correctin her analysis of Congressional intent. Id. at 17(Stevens, J., concurring in part and dissenting inpart). In Allied-Bruce Terminix Co. v. Dobson, adissenting Justice Scalia said that “[a]dherence toSouthland entails a permanent, unauthorizedeviction of state-court power to adjudicate apotentially large class of disputes,” and noted thatwhile he would no longer dissent from cases cit-ing it as precedent, he would vote to overrule it.513 U.S. 265, 284-85 (1995) (Scalia J., dissent-ing) (alteration in original). Justice Thomas alsodissented in Allied-Bruce, and opined there that“the Federal Arbitration Act (FAA) does notapply in state courts.” Id. at 285 (Thomas, J.,dissenting).50 See Opinions of Justices Stevens, Scalia, supranote 50; IBP, Inc. v. Alvarez, _U.S. _, 126 S.Ct.514 (2005) (stare decisis is particularly powerful-ly applied when dealing with longstanding con-struction of a statute).51 9 U.S.C. § 2.52 Buckeye Check Cashing, Inc. v. Cardegna,126 S. Ct. 1204 (2006).53 Linda J. Demaine & Deborah Hensler,“Volunteering” to Arbitrate Through PredisputeArbitration Clauses: The Average Consumer’sExperience, 67 LAW& CONTEMP. PROBS. 55,60-62 (2004). The authors relate a hilariousexchange, familiar to anyone who has encoun-tered the nameless, faceless electronic responses


that pass as customer service in modern businessplans, in which the company first responded to aconsumer request for information about arbitra-tion by noting that it did not engage in arbitrarydisputes, and subsequently asked that the authorsdistinguish between “an arbitrary dispute and anarbitration clause so we can better answer yourquestion.” Id. at 61.54 Id. at 58.55 Id. at 62.56 See Matthew T. Ballenger, The Price of Justice:The Role of Cost Allocation in the EmploymentArbitration Fairness Analysis, 18 LAB. LAW 485(2003) (discussing prohibitive costs in the laborlaw context).57 See Michael R. Pennington, Every HealthInsurer’s Litigation Nightmare, THE BRIEF,Summer 1999, at 47, 52.58 See Jean R. Sternlight, As Mandatory BindingArbitration Meets the Class Action, Will the ClassAction Survive?, 42 WM. & MARY L. REV. 1(2000); Caroline E. Mayer, Hidden in Fine Print:’You Can’t Sue Us’: Arbitration Clauses BlockConsumers from Taking Companies to Court,WASH. POST, May 22, 1999, at A1.59 See Sex Bias Suit Ordered Settled, WASH.POST, Aug. 25, 1999, at A7.60 See Melena v. Anheuser-Busch, Inc., 847N.E.2d 99 (Ill. 2006).61 See Milon v. Duke Univ., 559 S.E.2d 789(N.C. 2002).62 See U.S. GEN. ACCOUNTING OFFICE,EMPLOYMENT DISCRIMINATION: HOWREGISTERED REPRESENTATIVES FARE INDISCRIMINATION DISPUTES 25 (1994)(expressing concern about bias among arbitra-tors).63 See Richard C. Reuben, Democracy andDispute Resolution: The Problem of Arbitration, 67LAW & CONTEMP. PROBS. 279 (2004).64 Austin v. Am. Ass’n of Neurological Surgeons,253 F.3d 967, 971 (7th Cir. 2001).65 See The Health Care Quality Immunity Act,42 U.S.C. § 11101 et seq. at 11101.66 Plaintiff ’s Brief in Opposition to Defendant’sMotion for Summary Judgment in Austin v.AANS, No. 98 C 7685, USDC, ND Ill., at 4(reprinted in Donald C. Austin, Trials andTribulations, (1994), at 551, 554. Judge Posner,in his opinion in the Circuit Court, found thatthis was no evidence of bias. No considerationwas made in the opinion with regard to the effectof the existence of the program, even absent ashowing of bad motive. Although often cited insupport of these programs, the Austin case mere-ly affirms a holding that the complaining physi-cian failed to state a cliam under Illinois law.Austin, 253 F. 3d at 971.67 In 1997 the AMA House of Delegates adopt-ed Resolution 221.The resolution led to adoption of a policy thatdeemed physician expert testimony to be thepractice of medicine subject to peer review, andcalled for study of mechanisms by which suchpeer review could be implemented. AmericanMedical Association, H-265.993 Peer Review ofMedical Expert Witness Testimony,http://www.ama-assn.org (search for H-265.993and follow second link) (last visited Sept. 21,2006).68 In 1962, the AMA represented nearly 70% ofAmerican physicians. Yuji Noto, American

Medical Association (AMA) and Its MembershipStrategy and Possible Applications for the JapanMedical Association (JMA) 14 fig.13 (June 1999)(unpublished Takemi Fellow research project,Harvard School of Public Health), available ath t t p : / / w w w . h s p h . h a r v a r d .edu/takemi/rp157.pdf. This percentage hasdeclined continuously since the 1960s, droppingto only 28% today This percentage has declinedcontinuously since the 1960s, dropping to only28% today. Stokely Baksh, AMA Gets Facelift toAttract New Members, UNITED PRESS INT’L,June 22, 2005, available at http://www.upi.com/archive/view.php?archive=1&StoryID=20050616-033709-7222r.69 Since 1997, the following organizations haveadopted or amended rules dealing with expertwitness testimony:

• American Academy of Allergy, Asthma &Immunology (AAAAI) 06/2006.

• American Academy of Dermatology (AAD)2003.

• American Academy of Family Physicians(AAFP).

• American Academy of Neurology (AAN)2004.

• American Academy of Ophthalmology (AAO)2003.

• American Academy of Orthopaedic Surgeons(AAOS) 2004.

• American Academy of Otolaryngology-Headand Neck Surgery (AAOHNS) 2004.

• American College of Emergency Physicians(ACEP) 1998.

• American College of Medical Genetics(ACMG) 2000.

• American College of Obstetricians &Gynecologists (ACOG) 2003.

• American College of Occupational andEnvironmental Medicine (ACOEM) 2002.

• American College of Physicians (ACP) 2005.

• American College of Surgeons (ACS) 2004.

• American Society for Clinical Pathology(ASCP) 2003.

• American Urological Association (AUA) 2006.

• Society of Thoracic Surgeons (STS) 2005.70 42 U.S.C. §§ 11101-52 (2000).71 FLA. STAT. ANN. § 766.101 (West, Westlawthrough 2006 Second Regular Sess.).72 Fullerton v. Fla. Med. Ass’n, Nos. 1D05-0185, 1D05-3632, 2006 WL 1888545, (Fla.Dist. Ct. App. July 11, 2006), OpinionWithdrawn and Superseded on Denial ofRehearing by Fullerton v. Florida Medical Ass’n,Inc., 2006 WL 2738878, 31 Fla. L. WeeklyD2431 (Fla.App. 1 Dist. Sep 27, 2006) (NO.1D05-0185, 1D05-3632).73 See, e.g., Doe v. Tex. Med. Bd., No. 13-06-00325-CV (Tex. App. appeal filed May 19,2006), http://www.13thcoa.courts.state.tx.us/opinions/case.asp?FilingID=16094.74 MISS. STATE BD. OF MED. LICENSUREREG. XXXII (2006), available athttp://www.msbml.state.ms.us/regulations/2007%20expert%20witness%20complete%20reg.pdf.75 Doe, No. 13-06-00325-CV, http://www.13thcoa.courts.state.tx.us/opinions/

case.asp?FilingID=16094.76 In re Lustgarten, 629 S.E.2d 886, 892 (N.C.Ct. App. 2006).77 Telephone Interview with Dr. Gary Lustgarten(July 2006).78 Giving testimony as a witness in judicial pro-ceedings is protected by the First Amendment.Claiborne County Board of Education, 828 F.2d1096, 1100 (5th Cir. 1987). Free speech protec-tion extends to expert witnesses. Kinney v.Weaver,301 F.3d 253, 282, n. 24 (5th Cir. 2002)(factthat parties “testified as expert witnesses does notdiminish the First Amendment interest in ensur-ing that the speech is uninhibited.”), affirmed inrelevant part, Kinney v. Weaver, 367 F.3d 337 (5thCir. 2004)(en banc), cert. den, 543 U.S. 872(2004)79 See generally Steve Ellman, Code of Silence, TheMiami Daily Business Review, June 25, 2003,h t t p : / /www.d a i l y bu s i n e s s r e v i ew. c om/AwardStories/CodeOfSilence.html.80 Briscoe v. LaHue, 460 U.S. 325, 333-34(1983) (finding absolute immunity for policeofficers who allegedly gave perjured testimony)(alteration in original) (citations omitted).81 See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419,479 (1793) (a judicial system, when it does itsjob, “leaves not even the most obscure and friend-less citizen without means of obtaining justice.”).82 NEV. REV. STAT. § 41.503 (2005). Thestatute creates a cap of $50,000 on civil liabilitydamages for hospitals, trauma centers, and thephysicians who render care in such facilities fortreatment of immediate traumatic injury.83 GA. CODE ANN. § 51-1-29.5(a) & (d).The statute, as a practical matter, entirely immu-nizes emergency room staff and entire hospitalswhen the patient is admitted to the hospitalthrough the emergency room.-84 Protection of Lawful Commerce in Arms Act(“PLCAA”), Pub. L. No. 109-92, 119 Stat. 2095(2005) (to be codified at 15 U.S.C. §§ 7901-03).The theory of these lawsuits is explained in BrianJ. Siebel, City Lawsuits Against the Gun Industry:A Roadmap for Reforming Gun IndustryMisconduct, 18 st. louis u. pub. l. rev. 247 (199985 PLCAA § 2(a)(8), 119 Stat. at 2096 (alter-ation in original).86 PLCAA § 2(a)(7), 119 Stat. at 2096. Liabilityactions against gun manufacturers and dealers“are based on theories without foundation inhundreds of years of the common law andjurisprudence of the United States, . . do not rep-resent a bona fide expansion of the common law,. . . [and could only be imposed] by a maverickjudicial officer or petit jury.” Id. (alteration inoriginal).87 PLCAA, 15 U.S.C. §7903 (2)(a)(7).88 The American Law Institute found that liabil-ity for criminal acts foreseeably caused by one’sown negligence has been an integral part of thetraditional notions of third-party liability. See,e.g., RESTATEMENT (SECOND) OF TORTS§ 449 (1965) (“If the likelihood that a third per-son may act in a particular manner is the hazardor one of the hazards which makes the actor neg-ligent, such an act whether innocent, negligent,intentionally tortious, or criminal does not pre-vent the actor from being liable for harm caused



thereby.”).89 See, e.g., City of Gary v. Smith & WessonCorp., 801 N.E.2d 1222 (Ind. 2003).90 See generally Plant v. Spendthrift Farm, Inc.,514 U.S. 211 (1995).91 PLCAA § 4(5)(A)(iii), 119 Stat. at 2097.92 Bush v. Gore, 531 U.S. 98, 112 (2000)(Rehnquist, C.J., concurring) (citing Erie R.R. v.Tompkins, 304 U.S. 64 (1938)).93 West v. Am. Tel. & Tel., 311 U.S. 223, 236(citing Erie, 304 U.S. at 64).94 Gregory v. Ashcroft, 501 U.S. 452, 460(1991); see also Highland Farms Dairy, Inc. v.Agnew, 300 U.S. 608, 612 (1937) (“How powershall be distributed by a state among its govern-mental organs is commonly, if not always a ques-tion for the state itself.”).95 Minnesota v. Clover Leaf Creamery Co., 449U.S. 456, 463 (1981) (citations omitted).96 New York v. United States, 505 U.S. 144, 162(1992) (citing Coyle v. Smith, 221 U.S. 559, 565(1911)); see also Sweezy v. New Hampshire, 354U.S. 234, 256 (1957) (Frankfurter, J., concur-ring) (“It would make the deepest inroads uponour federal system for this Court now to holdthat it can determine the appropriate distributionof powers and their delegation within the forty-eight States.”).97 Dreyer v. State of Illinois, 187 U.S. 71, 84(1902).98 See Bush v. Palm Beach County CanvassingBd., 531 U.S. 70, 76-77 (2000) (relying uponU.S. CONST. art. II, § 1, cl. 2, which gives a spe-cial role to state legislatures in administering fed-eral elections to deny any role to a state supremecourt).99 See Marbury, 5 U.S. (1 Cranch) at 177 (“It isemphatically the province and duty of the judicialdepartment to say what the law is.”).100 See Erie, 304 U.S. at 78 (“Congress has nopower to declare the substantive rules of commonlaw applicable in a state whether they be local intheir nature or ’general,’ be they commercial lawor a part of the law of torts.” (citing Baltimore &Ohio R.R. v. Baugh, 149 U.S. 368, 401(1893)).).101 PLCAA § 2(a)(7), 119 Stat. at 2096.102 See Plaut v. Spendthrift Farm, Inc., 514 U.S.211, 219-25 (1995) (discussing the colonial prac-tice of legislative review of judicial decisions andthe Constitution’s Framers rejection of thatpractice).103 80 U.S. (13 Wall.) 128 (1871).104 Id. at 145-47.105 Nichols v. Hopper, 173 F.3d 820, 823 (11thCir. 1999) (alteration in original).106 Ruiz v. United States, 243 F. 3d 941, 948(5th Cir. 2001) (alteration in original); see alsoHadix v. Johnson, 144 F.3d 925, 939-40 (6th Cir.1998); Mount Graham Coal. v. Thomas, 89 F.3d

554, 557-58 (9th Cir. 1996).107 PLCAA § 3(b), 199 Stat. at 2097 (alterationin original).108 Klein, 80 U.S. (13 Wall.) at 146 (alterationin original).109 Id. at 147.

110 Id. at 146.111 Id. at 147 (alteration in original).112 Id at 146 (alteration in original).113 Paramount Health Sys., Inc. v. Wright, 138F.3d 706, 710 (7th Cir. 1998) (citing Klein 80U.S. (13 Wall.) at 146-47).114 United States v. Sioux Nation, 448 U.S. 371,372 (1980) (citing Cherokee Nation v. UnitedStates, 270 U.S. 476 (1926)).115 Id. at 370-71; cf. FED. R. CIV. P. 41(b)(stating that a dismissal generally “operates as anadjudication on the merits”).116 City of Gary v. Smith & Wesson Corp.,Cause No. 45D05-0005-CT-00243 (order onFile with authors).117 The Supreme Court approved the rules onApril 12th, 2006 and the rules are effective Dec.1, 2006. U.S. Courts Federal Rulemaking ,Supreme Court Action, http://www.uscourts.gov/rules/index.html#supreme0406 (last visited Oct.20, 2006). The amendments are available at U.S.Courts Federal Rulemaking, Pending RulesAmendments, http://www.uscourts.gov/rules/newrules6.html#cv0804 (last visited Oct. 20,2006).118 See Kenneth J. Withers, Electronically StoredInformation: The December 2006 Amendments tothe Federal Rules of Civil Procedure, 4 Nw. J. Tech& Intellectual Prop., 171, 192 (2006) (citing F.Paul Bland, Jr., Arthur H. Bryant, and Vicki Ni,Comment of the Trial Lawyers for Public Justice andthe TLPJ Foundation (Feb. 14, 2005), available athttp://www.uscourts.gov/rules/e-discovery/04-CV-239.pdf (last visited Mar. 29, 2006), andstating that links to all 253 writtencomments submitted during the officialpublic comment period are available ath t t p : / / w w w . u s c o u r t s . g o v /rules/e-discovery.html).119 See generally testimony of corporate represen-tatives during Public Hearing on ProposedAmendments ot the Federal Rules of CivilProcedure, January 12, 2005, San Francisco,http://www.uscourts .gov/rules/e-discov-ery/0112frcp.pdf#page=3.120 Proposed Fed. R. Civ. P. 37(f ), available athttp://www.uscourts.gov/rules/Reports/ST09-2005.pdf#page=171 (last visited Oct. 26, 2006).121 See Kenneth J. Withers, Electronically StoredInformation: The December 2006 Amendments tothe Federal Rules of Civil Procedure, 4 Nw. J. Tech& Intellectual Prop., 171, 200 (2006).122 Supra n. 118. Background on the discussionis noted in Minutes of Civil Rules AdvisoryCommittee, May 22-23, 2006, at 4,http://www.uscourts.gov/rules/Minutes/CV05-2006-min.pdf.123 Metropolitan Corporate Counsel, TheEditor interviews J. Walter Sinclair , President,Lawyers for Civil Justice (LCJ) and Partner, StoelRives LLP, available at

http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=December&artYear=2005&EntryNo=3946 (last visited Oct. 26, 2006).Compare proposed Section 4, Securities FraudDeterrence & Investor Restitution Act of 2003,H.R. 2179 (proposing amending the Securities &Exchange Act of 1934 to allow persons to pro-duce information to the SEC without waivingprivilege as to thirdparties).124 See U.S.C. § 2074.125 See U.S.C. § 2074(b) (“Any such rule creat-ing, abolishing, or modifying an evidentiary priv-ilege shall have no force or effect unless approvedby Act of Congress.”).126 Hon. Jerry E. Smith, Chair AdvisoryCommittee on Evidence Rules, Report of theAdvisory Committee on Evidence Rules at 2, avail-able at http://www.uscourts.gov/rules/Reports/EV05-2006.pdf (last visited Oct. 25, 2006) (stat-ing that the “Chairman of the House Committeeon the Judiciary, by letter dated January 23,2006, requested the Judicial Conference to initi-ate the rulemaking process to address the litiga-tion costs and burdens created by the current lawon waiver of attorney-client privilege and workproduct protection.”).127 See id.128 See id. at 7; see also Thompson Memorandum,available at http://www.usdoj.gov/dag/cftf/business_organizations.pdf; Unites States v. Stein, 435 F.Supp. 2d 330, 336-7 (S.D.N.Y. 2006) (discussingThompson Memorandum and its predecessordocument the Holder Memorandum).129 See Notes on Meeting of DiscoverySubcommittee, Washington, D.C. (Sept. 2003).130 Current (November, 2006 meeting) draftavailable at http://www.law.upenn.edu/bll/ulc/udoera/2006novembermeeting_draft.htm.131 THE RULE(S) OF LAW: ELECTRONICDISCOVERY AND THE CHALLENGE OFRULEMAKING IN THE STATE COURTS:REPORT OFTHE 2005 FORUM FOR STATEAPPELLATE COURT JUDGES (Richard H.Marshall ed., forthcoming 2006). The Conferenceof Chief Justices has promulgated flexible guide-lines that state court judges can use. WORKINGGROUP ON ELECTRONIC DISCOVERY,CONFERENCE OF CHIEF JUSTICES,GUIDELINES FOR STATE TRIAL COURTSREGARDINGDISCOVERY OF ELECTRON-ICALLY-STORED INFORMATION (2005),available at http://www.ncsconline.org/What’sNew/E-Discovery%20Gui+delines. pdf.132 See Legal Services Corp. v. Velazquez 531U.S. 533, *544, 121 S.Ct. 1043, **1050(U.S.,2001)(finding a restriction on LegalServices lawyers unconstitutional, and noting,“Restricting LSC attorneys in advising theirclients and in presenting arguments and analysesto the courts distorts the legal system by alteringthe traditional role of the attorneys...”)



Understanding the New Physician’s Opinion Requirementfor Medical Malpractice ActionsBy Richard A. Silver and Amanda R. Whitman

This is an expanded version of an articleby the same authors printed in the October2007 Medical Malpractice issue of TheConnecticut Law Tribune.In 2005, the Connecticut Legislature

significantly amended the requirementsfor bringing a medical malpractice action.See Public Act No. 05-275, § 2. Now, inorder to bring a medical malpracticeaction, a plaintiff must first obtain a writ-ten opinion from a health care provider ofthe same specialty as the defendant, whichstates “that there appears to be evidence ofmedical negligence and includes a detailedbasis for the formation of such opinion.”See General Statutes § 52-190a. In addi-tion, the plaintiff must attach a copy ofthe opinion, with the name of the healthcare provider redacted, to the complaint.Finally, the statute provides that “[t]hefailure to obtain and file the written opin-ion . . . shall be grounds for the dismissalof the action.” § 52-190a (c).Since its enactment, there has been

voluminous motion practice over themeaning of this new physician’s opinionrequirement. This article briefly addressesthree of the most important controversies:(1) does the failure to file a physician’sopinion deprive the court of subject mat-ter jurisdiction?; (2) what is the remedy ifa physician’s opinion is not sufficientlydetailed?; and (3) is a physician’s opinionrequired to address causation?

Does the Failure to File a Physician’sOpinion Deprive the Court of SubjectMatter Jurisdiction?While no appellate court decision has

yet addressed the issue, those SuperiorCourts which have examined the issue indetail, analyzing the statutory language indepth, have held that the failure to file awritten opinion does not deprive thecourt of subject matter jurisdiction, anddismissal is discretionary, rather thanmandatory. See, e.g., Donovan v. Sowell,41 Conn. L. Rptr. 609 (June 21, 2006)(Matasavage, J.); Greer v. Norbert, 42Conn. L. Rptr. 806 (Feb. 7, 2007)(Rittenband, J.T.R.); Guido v. Hughes,No. (X10) UWY-CV-06-5004889-S,2007 WL 3173696 (Oct. 17, 2007)(Scholl, J.).There are cases to the contrary. See,

e.g., Fyffe-Redman v. Rossi, 41 Conn. L.Rptr. 504 (June 7, 2006) (Miller, J.);Kudera v. Ridgefield Physical Therapy,(Sept. 18, 2006) (Shaban, J.). However,

these cases do not discuss their rationale,nor do they give an in-depth analysis.Rather, they appear to assume that the fail-ure to file a written opinion deprives thecourt of subject matter jurisdiction.In our view, failure to file a written

opinion does not deprive the court ofjurisdiction. First and foremost, the termsof the statute do not deal with the failureto file an opinion alone; rather, the expressterms of the statute state: “The failure toobtain and file the written opinion . . .shall be grounds for dismissal.” Thus, dis-missal is not warranted under the terms ofthe statute where a plaintiff obtains a writ-ten opinion but fails to file the opinion.See Greer v. Norbert, 42 Conn. L. Rptr.806. In Greer, the plaintiff ’s counsel hadobtained the opinion but had inadvertentlyfailed to file it. Applying the terms of thestatute, the court held that dismissal wasnot warranted.Moreover, even where the plaintiff

failed to obtain and file a written opinion,the statutory language does not expresslystate either that this failure deprives thecourt of subject matter jurisdiction or thatdismissal is required. As the court in Greerexplained, “the statute does not say ’theaction shall be dismissed,’ which couldmake it mandatory,” rather it uses the lan-guage: “shall be grounds for dismissal.”2007 WL 611265, *3. The court consid-ered various definitions of “ground” andconcluded they all supported the conclu-sion that dismissal under § 52-190a (c) isdiscretionary. Id.The court in Donovan v. Sowell also

pointed out the statutory language “doesnot state. . . that a plaintiff ’s failure tocomply with [§ 52-190a] deprives thecourt of subject matter jurisdiction, or . . .that dismissal is mandatory.” 2006 WL1828579, *3. The court considered thestatutory language in light of the relatedprinciples for determining whether astatutory time limitation implicates sub-ject matter jurisdiction, noting that “ourSupreme Court has stated . . . ‘there is apresumption in favor of subject matterjurisdiction, and we require a strong show-ing of legislative intent that [a statutory]time limit is jurisdictional.’” Id., quotingWilliams v. Commissioner on Human Rights& Opportunities, 257 Conn. 258, 266(2001). The court in Donovan explainedthat “the language the legislature used insubsection (c) is not the type of mandato-

ry language that can only be read as impli-cating the court’s subject matter jurisdic-tion.” Id. Thus, the court held that thefailure to file a written opinion is a curabledeficiency and dismissal under § 52-190a(c) is discretionary.Because the statutory language does

not address subject matter jurisdictionand does not use mandatory language, thebetter interpretation of § 52-190a (c) isthat failure to obtain and file a writtenopinion does not deprive the court of sub-ject matter jurisdiction. Instead, thedefect is curable, and the court has thediscretion to decide whether or not it isappropriate to dismiss the case.

What is the Remedy if the Physician’sOpinion is Not Sufficiently Detailed?The Superior Courts are virtually

unanimous that challenges to the suffi-ciency of a physician’s opinion are notgrounds for dismissal under the statute,and should only be made by a motion tostrike. See, e.g., Andrikis v. PhoenixInternal Medicine, Inc., 41 Conn. L. Rptr.222 (April 19, 2006) (Matasavage, J.);Hernandez v. Moss, 2007 WL 1748121(May 31, 2007) (Gallagher, J.); Jervis v.Stekler, 42 Conn. L. Rptr. 163 (Oct. 19,2006) (Pickard, J.). This distinction is sig-nificant because unlike a motion to dis-miss, if a motion to strike is granted, theplaintiff has an opportunity to amend thecomplaint to cure the defect underPractice Book § 10-44.In Andrikis, a case that is frequently

cited on this issue, the court concluded,after extensive discussion and analysis ofthe statutory language and legislative his-tory, that dismissal of a case due to aninadequacy in the contents of the physi-cian’s opinion would be unfair and incon-sistent with §52-190a. Specifically, thecourt found “[n]othing in the plain lan-guage of the statute or its legislative histo-ry indicate. . . that an insufficient opinionis grounds for dismissal of an action.”2006 WL 1230085, *5. Since then, theoverwhelming majority of SuperiorCourts have adopted the Andrikis court’sreasoning.However, one court has taken an inter-

esting alternative approach. In Doe v.Priority Care, Inc., 2007 WL 1532859(May 9, 2007) (Corradino, J.), the court



agreed that neither the failure to file anopinion, nor the failure to file a sufficientlydetailed opinion implicates the court’ssubject matter jurisdiction. Instead, theCourt interpreted § 52-190a (c) to allowfor discretionary dismissal both for thefailure to file an opinion, and for the fail-ure to file an adequate opinion. The courtsuggested that such discretionary dis-missal should be handled similarly to adismissal under Practice Book § 13-14(dealing with sanctions). Id. at *3. Thecourt found that the opinion filed withthe apportionment complaint was inade-quate, and ordered the apportionmentplaintiff to file a proper opinion withintwelve days or the apportionment com-plaint would be dismissed. Id. at *7.Practically, the solution adopted by the

court in Doe v. Priority Care achieved aresult similar to the majority approach,because the party was still offered anopportunity to correct the deficiencies inits physician’s opinion. However, relyingon the express language of the statute,which only allows for dismissal for the“failure to obtain and file” a written opin-ion, the better interpretation is that chal-lenges to the sufficiency of a physician’sopinion must be made by a motion tostrike.

Is a Physician’s Opinion Required toAddress Causation?While there appear to be no written

opinions on this issue, the language of thestatute clearly does not require an opinionon causation.§ 52-190a (a) provides:

the claimant or the claimant’s attorney. . . shall obtain a written and signed

opinion of a similar health careprovider, as defined in section 52-184c,. . . that there appears to be evidence ofmedical negligence and includes adetailed basis for the formation of suchopinion.

By its express terms, the statute requiresan opinion only as to “medical negli-gence.” The statute contains no referenceto, nor any requirement for, a physician’sopinion regarding causation. Indeed, theword “causation” appears nowhere in thestatute.Under Connecticut law, medical negli-

gence (whether the defendant violated theapplicable standard of care) and causation(whether the defendant’s negligencecaused the plaintiff ’s injuries) are distinctconcepts. See Dilieto v. County Obstetricsand Gynecology Group, 265 Conn. 79, 109(2003) (finding trial court’s error inexcluding expert testimony on causationwas harmless “[b]ecause the jury foundthat [the defendant] was not negligent, thejury never reached the issue of causationwith regard to [his] alleged negligence”);see also Am. Jur. Negligence §420 (“negli-gence and proximate cause are not coex-tensive terms, and they are not the sameconceptually . . . They are separate anddistinct factors in assigning tort liability”).The legislative history further indicates

that an opinion on causation is notrequired; rather, only an opinion that thedefendant violated the standard of carewas contemplated, as evidence by theremarks of Senator McDonald:

In Section 2 of the bill, Mr. President,we have modified the good faith certifi-cate issue. This is an issue that requiresa plaintiff ’s attorney to, under currentlaw, to obtain a report from a qualifiedmedical expert in a similar practicearea, and to certify that, based uponthat inquiry, the attorney believes thatthere is a good faith basis to believethat the standard of care has been

breached in a particular case.

Remarks of Sen. McDonald, ConnecticutGeneral Assembly, Senate, June 6, 2005(emphasis added). The legislative historymakes no mention of an opinion as tocausation.Moreover, logically, the statute could

not possibly require an opinion on causa-tion. The statute clearly provides that theopinion must be from a “similar health-care provider,” defined by GeneralStatutes § 52-184c, as “one who: (1) istrained and experienced in the same spe-cialty; and (2) is certified by the appropri-ate American board in the same specialty.”However, in most medical malpracticeactions, a similar health care provider tothe defendant would not be qualified toopine on causation. For example, consid-er an action against a radiologist for negli-gent interpretation of radiological filmsresulting in a delay in diagnosis of cancer.Because the defendant is a radiologist,under the terms of § 52-190a, the physi-cian’s opinion must be by a radiologist.But a radiologist is not the proper personto give an opinion that the delay in diag-nosis, and consequently the delay in treat-ment, caused the plaintiff injury. Theproper expert to opine on causation inthat instance would be a medical oncolo-gist. It would be illogical to read thestatute to require the physician’s opinionto address causation, when a similarhealth care provider is often not qualifiedto opine as to causation.In conclusion, each of these controver-

sies can be resolved by applying JusticeFelix Frankfurter’s famous three rules ofstatutory interpretation: “read the statute;read the statute; read the statute.” A care-ful reading of the statute demonstratesthat express language of the statute itselfprovides the answer to each of thesecontroversies.

Understanding the NewPhysician’s OpinionRequirement for MedicalMalpractice Actions(Continued from page 169)


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William M. BlossGeorge W. Boath, Jr.Fanol BojkaMichael J. CacaceMichael W. CahillLewis H. ChimesEdmund Q. CollierJohn A. Collins, IIILori M. ComfortiSusan A. ConnorsSteven H. CousinsCynthia CrockettEdward F. Czepiga, IIAnthony E. DeCrostaEva M. DeFrancoSteven J. DeFrankMark DellaValleD. Randall DiBellaKathleen EldergillVincent R. FalconeStanley FalkensteinJoan I. FarcusPaul E. Farren, Jr.Victor M. FerranteMichael P. Foley, Jr.Joseph P. FriedlerPaul J. GarlascoEdward M. GillisDennis W. GilloolyCharles C. GoetschMark L. GoodmanRobert J. Gorman, Jr.Paul M. GuernseyDavid H. HerrmannMatthew S. HirschAdele R. JacobsStephen D. JacobsAaron JainchillKenneth B. KatzThomas J. KeramidasDean B. KilbourneRobert A. LacobelleJohn L. LaudatiFrank A. LeoneScott F. LewisChristopher M. LicariJohn R. LoganLindalea P. LudwickDuane Lueders


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ACADEMIC EXPERIENCE YALE UNIVERSITY SCHOOL OF MANAGEMENT, 2005-6; Adjunct Professor PRINCETON UNIVERSITY BENDHEIM CENTER FOR FINANCE, 2001-2005; Lecturer CARNEGIE MELLON UNIVERSITY, (1998-90) Graduate School of Ind. Adm. Associate Professor FORDHAM AND COLUMBIA UNIVERSITIES - Adjunct Instructor, 1975 - 1978

Ezra Zask, President of EZALLC, has been active in the investment and securities arena for over two decades. He has founded a successful hedge fund and managed various investment portfolios; taught finance, securities and investments courses at several universities; advised hedge funds, fund of funds, banks and brokerage firms; traded various exchange and over the counter instruments and derivatives and managed large scale trading operations and strategic positions for money center banks. He has also worked as an expert witness and litigation support expert in a number of cases for the Commodities Futures Trading Commission (CFTC), the Government of Canada, the NASD and major law firms.

EZRA ZASK ADVISORS, LLC (EZALLC) HAS PROVIDED FINANCIAL AND INVESTMENT ADVISORY SERVICES FOR 25 YEARS.

Our areas of expertise include:Securities & Investments; hedge funds; foreign exchange, fixed income, commodities and equities; derivatives, futures and options; Banks & Brokers; Investment Suitability; Asset & Portfolio Management; Financial & Economic Analysis; Trading & Risk Management; Mergers & Acquisitions.

Brian T. MahonRichard C. MahoneyThomas M. McNamaraWilliam J. Melley, IIIJohn N. MontalbanoNeil F. Murphy, Jr.Mark NeistatCesar A. NobleCharles K. NorrisCharles E. Oman, IIIPatricia A. O’NeilPeter J. OttomanoThomas P. ParrinoJohn Jay PavanoAlan Scott PickelBernard PolinerEric A. PolinskyBrian W. Prucker

Michael J. QuinnRandolph E.Richardson, II

John D. RitsonWilfred J. Rodie, Jr.Vincent F. SabatiniDavid SauerHoward B. SchillerRobert L. SchwabPaul A. SlagerEric P. SmithGary J. StricklandJeremy G. VishnoAlan WeinJohn R. WilliamsWilliam P. YelenakPeter J. Zagorsky

Members of the1200 ClubJonathan M. AbelsJohn F. X. AndroskiJon A. AugustJon D. BermanJames P. BerrymanRichard A. BershteinJon D. BillerMelvin L. BloomenthalMorris R. BoreaEdward C. Burt, Jr.Carl E. CellaScott S. CentrellaFrancis P. CiprianoTracy M. CollinsBruce J. Corrigan, Jr.Michael R. Corsello

Dennis A. FerdonRobert M. FitzgeraldJohn P. FracassiniGeorge W. Ganim, Jr.James J. GiuliettiMark A. HealeyJohn R. HydeRichard L. JacobsDouglas P. KarpMichael R. KaufmanDavid E. KoskoffDavid R. KritzmanJerome J. LarracuenteDaniel A. LyonsDouglas K. ManionI. David MarderJames M. MarinelliRichard T. Meehan, Jr.

Robert C. MesseyDavid P. MesterJames A. Mulhall, Jr.Vincent L. Noce, Jr.Joseph A. O’BrienF. Jerome O’MalleyJohn D. PalermoJacques J. ParenteauRobert J. ReeveMartin M. RutchikPeter W. ShafranJohn P. SponheimerRobert D. TobinPatrick TomasiewiczGriffith H. TrowDavid A. Zipfel


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There is no substitute for experience. CTLA has a long history of sharing expertise within the CTLA community – it’s one of the greatest benefits of your membership.

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MENTOR PROGRAM CTLA's most accomplished attorneys share their invaluable knowledge and experience with attorneys practicing 7 years or less, helping to assure excellence in Connecticut’s trial bar and enhancing the professional development of newer lawyers.

NETWORKING The Workers’ Compensation Section, New Lawyers Group, Women’s Caucus, Membership Dinners with fascinating speakers, Golf Tournament, and CTLA’s Annual Meeting offer great opportunities for members and families to get together!

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CTLA Forum Spring 2006 · 6/1/2007 · Winter2008 • Vol25/No.3 • CTLA Forum 137 ForCT uLAm...

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Transcript of CTLA Forum Spring 2006 · 6/1/2007 · Winter2008 • Vol25/No.3 • CTLA Forum 137 ForCT uLAm...