ct trial lawyers - in this issue: a publication of …...2007/01/01 · orange street, new haven,...

Winter 2007 • Vol 25/No. 1 • CTLA Forum 1

ForumCTLA

alling All Leaders

CTLA is looking for A FewGood Men and Women —

leaders in their communities — to helpus with a special project for which ourPublic Relations Task Force has takenthe lead.

Recently, you should have received thelatest edition of the CTLA Monitornewsletter. Attached was a short ques-tionnaire concerning your activitiesoutside of your daily practice. Yourcommunity involvement, coaching,mentoring, church leadership, a posi-tion within a state or local political orenvironmental organization — inwhich you may hold a committee orleadership position — anything whichdescribes your involvement in the com-munity in which you live or work.

Our purpose for this effort is to makeour small attempt at re-brandingthe Connecticut trial lawyer. The effortof taking the lawyer out of the court-room, off the television screen and outof the demonized public mindset andreminding the community that thisperson is an important and valuableasset to the community and to the livesof the people in it.

Will we have an immediate reversal ofthe public perception of trial lawyers?I doubt it. It has taken decades andbillions of dollars of targeted effort todemonize the persona of trial lawyers— the position in which we now findourselves. But I for one do not intendto sit idly by without making an effort— even this small effort — of regaining

A Publication ofThe Connecticut

Trial LawyersAssociation

C

(Continued on page 2)

Volume 25, Number 1 • Win te r 2007 • www.c t t r ia l lawyers .o rg • Pas t i s sues ava i lab le on LOIS

In this Issue:2006 Update on Evidence

Verdict and Settlement ReportWorker’s Compensation Review

Getting It Right — The CTLA ForumNotable Judicial Opinion

Digitally Processed Images in ConnecticutCourts After Swinton

FromThePresident’sNotebookBy Carl D. Anderson

Contents

2006 Update on Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3By Bob Adelman and Neil W. Sutton,Adelman Hirsch & Newman, BridgeportMessage from the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20By David Rosen, Editor

Verdict and Settlement Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21By Kathleen L. Nastri, Associate Editor

Workers’ Compensation ReviewMay 31, 2006, through October 10, 2006 . . . . . . . . . . . . . . . . . . . . .26By Robert F. Carter & Donna Civitello

Getting It Right — The CTLA Forum Notable Judicial Opinion . . . . . . . . .29

Digitally Processed Images in Connecticut Courts After Swinton . . . . . . . .32By Lisa Podolski & Neal Feigenson

Introducing new “staff ” person atConnecticut Trial Lawyers Association:

Adam NicholsonAdam joined the staff on January 1, 2007, as our new Grassroots &

Membership Coordinator. Adam comes to us from another Connecticutnon-profit, Love Makes a Family, where he managed their political and grass-roots operations. Before moving to Connecticut, Adam worked as campaignmanager and field director on several political campaigns all over the country— ranging from Oklahoma to New Hampshire.

As the Grassroots & Membership Coordinator, Adam will be working withthe membership of CTLA around our legislative and political agenda.You will be hearing a lot from Adam as he works to organize meetings withlegislators, letters to media outlets, and more broad-based advocacy actions.

We are very excited to have Adam on board at CTLA, and hope you willgreet him with the same enthusiasm that he brings to CTLA.

2 CTLA Forum • Winter 2007 • Vol25/No. 1

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

The CTLA Forum is published bi-monthly by the Connecticut Trial LawyersAssociation, 100 Wells St., Hartford,CT 06103-2920 (tel: 1-860-522-4345).Inquiries regarding advertising rates andspecifications should be made to the CTLAoffice. Articles and features should be sentto David N. Rosen, Editor, The CTLAForum, David Rosen & Associates, 400Orange Street, New Haven, CT 06511. Set-tlement/verdict reports should be sent toKathleen L. Nastri, Koskoff, Koskoff &Bieder PC, 350 Fairfield Ave., Bridgeport,CT 06604.

Statements and opinions in editorials orarticles reflect the views of the individualauthors and are not necessarily those ofCTLA. Publication of advertising does notimply endorsement. All advertising is sub-ject to approval of the Connecticut TrialLawyers Association.

©2007 The Connecticut Trial LawyersAssociation, Inc. Contents may not bereproduced without written permission.

ExecutiveDirectorNeil H. Ferstand

2006 - 2007Officers &Board ofGovernors

OfficersPresident

Carl D. AndersonPresident ElectJoseph R. MirrioneVice PresidentKathryn EmmettTreasurerHumbert J.Polito, Jr.SecretaryDavid W. CooneyParliamentarianJohn J. Kennedy, Jr.Immediate PastPresidentErnest F. Teitell

Board ofGovernorsMatthew E. AugerPeter J. Bartinik, Jr.Anthony S.Bonadies

Kathleen L. BrandtRoger B. Calistro Mary Ann ConnorsCarolyn W.CronkhiteMichael A.D’AmicoSteven D. EckerSteven J. ErranteJoel FaxonJeffrey A. FriedlerJoseph D. GarrisonShelley L. GravesJoram HirschDaniel J. HorganJohn J. Houlihan, Jr.Stephen JacquesMichael C. JainchillRichard J. KennyKenneth J. LaskaDouglas P.MahoneyJason L. McCoyMartin J.McQuillanRalph J. MonacoRon T. MurphyJohn F. NaizbyRichard L.Newman

Gregory E. O’BrienRosemarie PaineCharles B. Price, Jr.Cindy L. RobinsonChristian G.SarantopoulosAnastasios SavvaidesMatthew ShafnerBarry J. SinowayMichael A. StrattonVincent TrantoloJason E. TremontJoseph G. WalshMichael J. WalshNicholas E. WoclJames WuAngelo A. ZiotasPast PresidentsRobert B. AdelmanJames D. BartoliniRichard A. BiederChristopher D.BernardStewart M. CasperThomas A. CloutierWilliam R. Davis(Emeritus)William J.Sweeney, Jr.Andrew S. Groher

Ira B. Grudberg(Emeritus)R. Bartley HalloranGarrett M. MooreKathleen L. NastriAnthony A. PiazzaRobert I.Reardon, Jr.Robert R. SheldonRichard A. SilverEugene K. SwainWilliam J.Sweeney, Jr.

ATLA StateGovernorsStewart M. CasperRobert I.Reardon, Jr.

ATLA StateDelegatesJames D. Bartolini Kathleen L. Nastri

ATLAMinorityDelegateW. MartynPhilpot, Jr.

From The President’s Notebook (Continued from page 1)

some of the respect I know we all deserve.

All of us have active and private lives out-side of the law. Some of us have even cho-sen to use that private life in an effort togive something back to the community inwhich we live. It is that special dedicationand involvement which carries the mes-sage of who we are and what we do.

What are your values? What manner haveyou chosen to exercise those values out-side of your practice?

Already we’ve received completed surveys

from members who have begun telling usabout what they do for the communities orwhat they would like to do if given thechance. Now it is your turn.

Our Public Relations Task Force is begin-ning to grapple with the details of how bestto utilize these resources in their most effi-cient manner — but we — as CTLA mem-bers need to give them the tools that willhelp make their job a success.

If you have not received The Monitor orwish to receive a copy of the questionnairecontact the CTLA office at (860) 522-4345.

To quote David Ball, “You need to takecontrol of the way jurors [and the gen-eral public] think about you. Not aspart of a group, but you as an individ-ual attorney” and “You can not hidefrom the stereotype. Nor can you changeit. The only solution is to transcend it.”

This is the foundation on which thisproject is fundamentally based. It’s up toyou to help us meet this challenge.

May you all have a Happy and HealthyNew Year.


CTLA Update on Evidence

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TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . .3

Article I — General Provisions . . .3

Article IV — Relevancy . . . . . . . . . .3

Article VI — Witnesses . . . . . . . . . .6

Article VII — Opinions and Expert Testimony . . . . . . . . .8

Article VIII — Hearsay . . . . . . . . . .11

Article X — Contents of Writings,Recordings and Photographs . . . . . .16

Expert Disclosures . . . . . . . . . . . . . .17

Peremptory Challenges . . . . . . . . . . .18

Sufficiency of Evidence . . . . . . . . . . .19

Final Argument . . . . . . . . . . . . . . . . .19

INTRODUCTIONThe Update on Evidence covers civil

cases (insofar as the rules therein are usefulin civil cases) and criminal cases publishedfrom August 30, 2005 through August 22,2006.

The Table of Contents and sectionheadings follow the format of theConnecticut Code of Evidence (“C.C.E.”).Because the C.C.E. does not cover everyevidentiary issue (see, commentary toC.C.E. §1-2(b)), this Update includesadditional headings.

Article I. General Provisions

§ 1-5 (b) REMAINDER OF STATE-MENT: WHEN ANEXCERPT OF A VIDEO-TAPED STATEMENT ISUSED BY ONE SIDE, THE COURT MAY ADMIT THEENTIRE TAPE — STATE V.EFRAIN M., 95 Conn. App.590, cert. denied, 279 Conn.909 (2006); Pellegrino, J.;Trial Judge — Harper, J.

RULE: When one side plays a portionof a videotaped interview, the court hasdiscretion to admit the entire videotape.

FACTS: Defendant was accused of sex-ual assault and risk of injury to a minor.The victims were twin girls who were 9years old at the time. In July 2002, thegirls were separately interviewed by aschool psychologist and described the sex-ual assaults. The interviews, which lastedtogether approximately one hour, wererecorded on videotape.

The jury trial took place in 2004. Bothgirls testified. During cross-examination,defense counsel played three brief excerptsfrom the interviews to impeach the girls.On rebuttal, the State offered the entirevideotape of the interviews. The defendantobjected on the grounds that the videotape“amounted to a replay of their trial testi-mony and had the effect of emphasizingthat testimony over that of the other wit-nesses. He argue[d] that the videotapeincluded prejudicial and irrelevant materi-al that necessarily generated sympathy forthe victims. According to the defendant...the probative value of the videotape [wasoutweighed by]. . . the likely prejudicialimpact of its admission. . .” 95 Conn.App. at 596.

The trial court questioned counselabout the contents of the videotape butdid not preview it without the jury pres-ent. It then admitted the videotape in itsentirety. The Appellate Court affirmed.

REASONING:

“It is an elementary rule of evidencethat where part of a conversation hasbeen put in evidence by one party to alitigation or prosecution, the otherparty is entitled to have the whole con-versation, so far as relevant to the ques-tion, given in evidence, including theportion which is favorable to him.Section 1-5 (b) applies to statements,and its purpose is to ensure that state-ments placed in evidence are not takenout of contex. . . This purpose alsodemarcates the rule’s boundaries; aparty seeking to introduce selectedstatements under the rule must show

that those statements are, in fact, rele-vant to, and within the context of, anopponent’s offer and, therefore, are partof a single conversation. . . Althoughthe cases upon which subsection (b) isbased deal only with the admissibilityof oral conversations or statements, therule logically extends to written andrecorded statements.”

95 Conn. App. at 597-98 (internalcitations omitted).

QUAERE: If defendant had created atranscript of the interview and used it aswe do a deposition, would the court haveallowed the State to read the entiretranscript?

Article IV. Relevancy

§ 4-1 INFORMED CONSENT:WHAT MINOR PLAINTIFFWOULD HAVE DONE IFPROPERLY INFORMED ISSPECULATIVE; WHATPARENTS WOULD HAVEDONE IS NOT — MIDLERV. BENJAMIN, 95 Conn.App. 730 (2006); Peters, J.;Trial Judge — Doherty, J.

RULE: The testimony of the minorplaintiff that, if she had been informed ofthe risks of a procedure, she would nothave gone through with it was speculativeand therefore inadmissible. However, hermother’s testimony — that if properlyinformed, she would not have consentedon her daughter’s behalf — is not specula-tive and is admissible.

FACTS: The plaintiff, a 17-year-oldgirl, consulted the defendant plastic sur-geon to discuss having a nose job (rhino-plasty). Her mother accompanied her tothe consultation. The defendant advisedmother and daughter that, in addition tothe nose job, the girl should have a chinimplant (genioplasty). The defendant didnot advise them of the risk of permanentnerve damage from such an implant.

On the day of surgery, the mother

2006 Update on Evidence(and sundry cases of interest to the trial bar)

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

“Chicolini: Now I aska you one. What is it has a trunk, but no key, weighs 2,000 pounds and lives in the circus?

Prosecutor: That’s irrelevant.

Chicolini: Irr-elephant? Hey, that’s the answer! There’s a whole lotta irr-elephants in the circus.”

— Chico and Groucho Marx, Duck Soup (Universal Studios, 1933).

4 CTLA Forum • Winter 2007 • Vol 25/No. 1


signed an informed consent form as herdaughter’s guardian. The girl did not exe-cute an informed consent form. She suf-fered permanent nerve damage as a resultof the chin implant.

At trial, plaintiffs’ counsel asked thedaughter whether or not she would havegone through with the chin implant ifinformed of the risk of permanent nervedamage. The defendant objected on theground the testimony was speculative.The trial court sustained the objection.

Plaintiffs’ counsel asked the motherwhether or not she would have consentedto her daughter undergoing the chinimplant if she had been informed of therisk of permanent nerve damage. Againthe defendant objected, and again thecourt sustained the objection.

The jury returned a defendants’ ver-dict.

The Appellate Court agreed with thetrial court regarding the minor daughterand disagreed regarding the mother, butheld that the preclusion of the mother’stestimony was harmless.

REASONING:

“[T]he minor plaintiff[’s]... personalknowledge and life experience was toomeager to remove her proffered testi-mony from the realm of the specula-tive. The trial court made such a find-ing. It was not a clear abuse of thecourt’s discretion to so find.

“The trial court did not, however,make any finding with respect to thelife experiences of Ann Midler’sparents. For both of them, theirpersonal knowledge and life experienceshould have been accepted as a reason-able, non-speculative basis for makingan informed decision balancing thesurgical risks and benefits of an intrao-ral genioplasty for their daughter. Themother’s history of having had a genio-plasty further underscores the admissi-bility of the testimony that she wasprohibited from presenting to the jury.We conclude, therefore, that the courtabused its discretion in upholding thedefendant’s objections to this proposedtestimony.”

95 Conn. App. at 738-39.

The Appellate Court went on toexplain that the trial court’s error washarmless:

“[T]he plaintiffs’ expert witness [testi-fied] that permanent nerve damage

from a chin implant is extremely rareand that, in his experience, patientswho had been advised of this risk hadnever declined to undergo the proce-dure. Thus, regardless of whether thedefendant had a duty to disclose therisk of permanent nerve injury associ-ated with an intraoral genioplasty, itwould have been highly unlikely forthe jury to have found a causal connec-tion between this breach and the plain-tiffs’ consent to the performance ofthis surgery.”

Id. at 739-40.

COMMENT: The finding of harm-lessness misapprehends the nature of aninformed consent case. The seminalConnecticut informed consent case,Logan v. Greenwich Hospital, 191 Conn.282 (1983), concerned a physician’s obli-gation to explain to a patient an alterna-tive procedure the physician consideredriskier than the recommended procedure.

The Supreme Court in Logan ruledthat the physician had to inform thepatient of the more hazardous alternativebecause the patient had the right tochoose a more hazardous procedure. Therisks another patient may have been will-ing to take for a chin augmentation doesnot determine what Ann Midler and herparents would have chosen, especiallysince it was the doctor who first suggestedthe procedure.

Furthermore, as pointed out by theSupreme Court in Burns v. Hanson, 249Conn. 809 (1999), the excluded testimo-ny was the only direct evidence availablein the case. No one knows whether thejury would have credited that testimonyin view of the testimony of the plaintiffs’own expert, but the exclusion of the evi-dence made it impossible for the plaintiffsto prove causation.

§ 4-1 AMOUNT OF DAMAGETO DEFENDANT’S VEHI-CLE RELEVANT TO CAU-SATION OF INJURIES —SHEPHERD V. MITCHELL,96 Conn. App. 716, (2006);Flynn, C. J.; Trial Judge —Bellis, J.

RULE: Testimony of appraiser regard-ing heavy damage to defendant’s vehicle isrelevant to show that the impact was sub-stantial enough to have caused the plain-tiff ’s injuries.

FACTS: The defendant’s car struck the

rear of the plaintiff ’s pick-up truck. Thepick-up truck suffered very little damage.

In response to standard discoveryrequesting information regarding theappraisal and damage to defendant’s car,the defendant answered: “Not Applicable.”In addition, defendant claimed he had nophotographs of the damage. When plain-tiff ’s counsel subpoenaed any photo-graphs, repair bills, and estimates, defensecounsel moved to quash the subpoena andrepresented in her motion that “the defen-dant and his insurance company are notin possession of any factual documentsthat have not already been produced.”

At the end of voir dire, defense counseldisclosed that defendant’s insurer, TheInfinity Insurance Company, did have adamage estimate prepared by an adjuster.

The plaintiff called the adjuster, whono longer worked for Infinity, as a wit-ness. He indicated that he had done anestimate and had taken photographs ofthe defendant’s car. The photographs hadapparently been lost, but the adjusterdescribed the damage as “heavy front-enddamage. . . ” He testified that the hood ofthe Corolla had been folded “like anaccordion.”

Even though the defense argued thiswas a “low-impact’ case, and had intro-duced photos of the minimal damage toplaintiff ’s pick-up truck, the defenseargued that the appraiser’s testimonyregarding the substantial damage to thedefendant’s car was irrelevant. The trialcourt admitted the testimony, and theAppellate Court affirmed.

REASONING:

“Certainly, the condition of the defen-dant’s automobile, after rear-endingthe plaintiff ’s truck, was relevant toassessing the force of the impact andthe possible injuries suffered by theplaintiff as a result of this impact. * * *Although adverse to the defendant’sstated position that the impact wasminor, this testimony was relevant toshow that the impact of the rear-endcollision was substantial enough tohave caused the plaintiff seriousinjuries. The plaintiff offered [theadjuster’s] testimony to prove theplaintiff ’s position that the impact wassubstantial and not minor. We con-clude that this testimony properly wasadmitted and that the court did notabuse its discretion.”

96 Conn. App. at 722.



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COMMENT: This works both ways:the defendant can get in photos of vehi-cles showing little or no damage.

§ 4-1 MEDICAL DATA ONPATIENT’S ALCOHOLLEVEL INADMISSIBLEWITHOUT EXPERT TES-TIMONY — STATE V.HERNANDEZ, 91 Conn.App. 169, cert. denied, 276Conn. 912 (2005); Gruendel,J.; Trial Judge — Licari, J.

RULE: A notation in a hospital recordas to a patient’s alcohol level is inadmissi-ble absent sufficient foundation to con-nect it to the issues in the case.

FACTS: Defendant was accused ofmurdering his girlfriend. He was allegedto have stabbed her at approximately 5a.m. on the day in question. At approxi-mately 7:30 a.m. the police responded tothe victim’s apartment. They found thevictim dead and the defendant incoherentand semiconscious with a knife protrud-ing from his abdomen. The defendant wastaken to a hospital. At 8:46 a.m. a testwas done, which revealed his “alcohollevel was measured to be 260.”

Defendant sought to admit this recordto support his defense that, as a result ofhis intoxication, he lacked the specificintent to commit murder. He offered noexpert testimony to interpret the record.

The trial court excluded the evidenceas irrelevant, and the Appellate Courtaffirmed.

REASONING:

“Under all the circumstances, particu-larly the lack of an explanation of what‘260’ at approximately 8:46 a.m.meant, in terms of both the defen-dant’s state of being at 8:46 a.m. andhis state of being at the time of themurder, and the lack of any other evi-dence that the defendant drank priorto the time of the murder, we concludethat the court did not abuse its discre-tion in finding there to have been ‘nosufficient open and visible connectionto a claim of intoxication at the time of[the murder] to render [the proffered]evidence relevant.’

“Under the circumstances, the courtreasonably could have concluded thatthe foundation laid for admission ofthe proffered evidence was insufficientto support the inference suggested bythe defendant, which was that he wasintoxicated at the time of the murder

to such a degree that he lacked the req-uisite intent to commit murder.”

91 Conn. App. at 174-75.

PRACTICE NOTE: Hire a toxicolo-gist.

§ 4-1 “BLOOD SERUMALCOHOL LEVEL” INHOSPITAL RECORD ISINADMISSIBLE ABSENTCONVERSION TO“BLOOD ALCOHOLCONTENT” — SHEA V.DOHERTY, 91 Conn. App.367 (2005); Bishop, J.; TrialJudge — Dunnell, J.

RULE: A hospital record showingplaintiff ’s blood serum alcohol level isinadmissible without expert testimonyconverting it to “blood alcohol content.”

FACTS: Plaintiff on a motorcycle col-lided with an excavator. The hospitalrecord indicated that plaintiff had a bloodserum alcohol level of 185 milligrams perdeciliter.

Defendants disclosed no expert toexplain the relationship between “bloodserum alcohol level” and “blood alcoholcontent,” the measure used in C.G.S. §14-227a. The trial court precluded the evi-dence.

REASONING: The Appellate Courtrefused to review the defendants’ claimbecause of an inadequate record.

PRACTICE NOTE: Hire a toxicolo-gist!

§ 4-7 IN PREMISES CASE, SUB-SEQUENT REMEDIALMEASURE ADMISSIBLETO SHOW CONTROL —SMITH V. TOWN OFGREENWICH, 278 Conn.428 (2006); Sullivan, C., J.;Trial Judge — Lewis, WilliamB., J.

RULE: Although a subsequent reme-dial measure is not admissible to provenegligence, such evidence is admissible toprove control, where control is contested.

FACTS: On December 30, 2000 asnowstorm deposited 13 inches of snowin the Greenwich area. Between January 5and January 9, 2001, an additional one-half inch of snow fell.

On the morning of January 17, 2001,the plaintiff slipped and fell on a patchof ice on the sidewalk next to theproperty line between two pieces ofproperty, one owned by defendant

Greenwich Acquisition and the otherowned by defendant 19 West Elm Street.The Town of Greenwich owned the side-walk. The patch of ice had formed next toa pile of snow that laid on a planting bedlocated on Greenwich Acquisition’sproperty.

Plaintiff ’s theory was that duringwarmer temperatures after the snow-storm, the negligently-placed snow pilehad partially melted, run onto the side-walk and formed the ice patch there in theearly morning hours.

After the fall, the GreenwichAcquisition’s building manager calledRonald Passerelli to remove the snow pile.Greenwich Acquisition had previouslyhired Passerelli to take care of snowremoval on its property, and madePasserelli an apportionment defendant inthe lawsuit.

During trial, Greenwich Acquisitionobjected to evidence that, after the plain-tiff ’s fall, it had called Passerelli and askedhim to remove the snow pile. Theevidence included photos of Passerelliactually removing the snow. GreenwichAcquisition argued that the evidence wasinadmissible as a subsequent remedialmeasure.

C.C.E. § 4-7(a): “[E]vidence of meas-ures taken after an event, which if takenbefore the event would have made injuryor damage less likely to result, is inadmis-sible to prove negligence or culpable con-duct in connection with the event.Evidence of those measures is admissiblewhen offered to prove controverted issuessuch as ownership, control or feasibility ofprecautionary measures.”

The plaintiff argued that the evidencewas not being offered to show “negligenceor culpable conduct,” but to show controlof the snow pile. The trial court allowedthe evidence.

At trial plaintiff withdrew her claimagainst the Town of Greenwich. Passerelliwas granted summary judgment on thebasis that Greenwich Acquisition’s dutywas non-delegable. The case went to ver-dict only against Greenwich Acquisitionand 19 West Elm Street. The jury foundonly against Greenwich Acquisitionapportioning 70% of the blame toGreenwich Acquisition and 30% to theplaintiff.

REASONING:

“‘The central question is the plaintiff ’spurpose in introducing the evidence.The doctrine bars evidence of subse-



quent repairs when offered to provenegligence. It does not exclude suchevidence when offered to prove someother material issue.’ Rokus v.Bridgeport, supra, 191 Conn. [62,] 66[(1983)]. While repairs made after anaccident tend to prove that the partyconducting them retains control overthe area in question; Killian v. Logan,supra, 115 Conn. [437,] 439 [(1932)];if the defendant had admitted orallythat it controlled the premises onwhich the injury occurred, no refer-ence in testimony to subsequentrepairs should be made. Haffey v.Lemieux, 154 Conn. 185, 192-93, 224A.2d 551 (1966).

“In the present case, we conclude thatthe trial court did not abuse its discre-tion in admitting the photographicevidence as probative on the issue ofcontrol over the snow pile. AlthoughGreenwich Acquisition conceded attrial that the plaintiff fell on the side-walk abutting its land, it did not con-cede that it was the party responsible,if any party was responsible, for creat-ing the snow pile. Indeed, the trialcourt directed the jury to determinewhich of the defendants, GreenwichAcquisition or 19 West Elm Street, ifeither, was liable for creating the snowpile. Thus, the jury could have usedphotographs of Passerelli clearing thepile shortly after the accident as evi-dence that Greenwich Acquisitioncontrolled the pile and caused the dan-gerous conditions on the sidewalk.Accordingly, we conclude that the trialcourt did not abuse its discretion inadmitting the photographic evidence.”

278 Conn. at 448-49.

§ 4-10 LIABILITY INSURANCEINADMISSIBLE TOPROVE CONTROL OFDOG — AUSTER V.NORWALK UNITEDMETHODIST CHURCH,94 Conn. App. 617, cert.granted, 278 Conn. 915(2006); McLachlan, J.; TrialJudge — Reynolds, J.

RULE: Liability insurance is inadmis-sible to prove control of a dog.

FACTS: The defendant church em-ployed a caretaker named Pedro Salinas.Salinas was given living quarters in theparish house as part of his employment.Salinas owned a mixed breed pit bull dog.

Before the plaintiff was injured, the pitbull had attacked another person. Afterthe first attack, the church instructedSalinas that the pit bull had to be keptinside his living quarters during the dayand chained to a railing leash whenallowed outside between 7 p.m. and 6a.m.

On the day in question, the plaintiffarrived at the premises at 7:30 p.m. toattend a meeting in the parish house. Thefront door of the parish house was locked,so the plaintiff walked around to the sidedoor, which was the entrance to Salinas’living quarters. When the plaintiff got tothat door, the dog jumped through thebroken bottom panel of the door andattacked the plaintiff.

The plaintiff filed two counts, the firstunder C.G.S. §22-357 (which imposesstrict liability on a “keeper” of a dog); andthe second in common law negligence.

To show that the church exercised con-trol over the dog, plaintiff offered minutesof a meeting of the defendant’s trustees,held about a year after the attack. Theminutes contained statements regardingthe defendant’s insurance coverage, specif-ically, that “the lawsuit has been turnedover to the underwriter by the insurancecompany,” and that continuing to allowthe dog on the premises “could jeopardizeour [the defendant’s] insurance coverage.”The trustees then ordered Salinas toremove the dog from the church premises.

The trial court allowed the evidencefrom the trustees’ meeting minutes.

The Appellate Court reversed.REASONING: The court first found

that, as a matter of law, the church wasnot a “keeper” of the dog under thestatute, even though the church (1) haddetermined both where on the premisesthe dog was permitted and when it was tobe allowed outside, and (2) following thesecond attack, had Salinas remove the dogpermanently from its premises.

Additionally, since it was undisputedthat the church was the owner of thepremises, the court held that the fact thatit maintained liability insurance “[did]not tend to establish that the defendanthad control over the dog. . . ” 94 Conn.App. at 624.

COMMENT: The Supreme Courthas granted the petition for certification.

Article VI. Witnesses

§ 6-4 IMPEACHMENT OFOWN WITNESS NOTALLOWED IF PRIMARY

PURPOSE IS TO INTRO-DUCE OTHERWISEINADMISSIBLE EVI-DENCE — STATE V.WINOT, 95 Conn. App. 332,cert. granted on other issue,279 Conn. 905 (2006);Peters, J.; Trial Judge —Mullarkey, J.

RULE: A party may impeach his ownwitness with a prior inconsistent state-ment, but not if the primary purpose is toget the prior inconsistent statement infront of the jury for substantive purposes.

FACTS: Defendant was accused oftrying to kidnap a 12 year-old girl on twooccasions. On the first occasion, the vic-tim ran away before there was any physi-cal contact. On the second occasion fourdays later, the defendant grabbed her bythe arm but she was able to break free.

In the victim’s written statement, thetwo incidents were reversed, indicatingthat the defendant had grabbed her by thearm in the first incident. At trial, the vic-tim testified that the defendant grabbedher the second time. When impeachedwith her written statement, the victim tes-tified that dates in the written statementwere reversed.

The victim’s mother had also given awritten statement, relating that the victimsaid, immediately after the second inci-dent, that the defendant had grabbedher by the arm in the first incident.Defendant sought to call the mother tothe witness stand to impeach the victim,by establishing that she had told hermother that the grabbing incidentoccurred the first time.

The State informed the court that themother would contradict her sworn state-ment. The defendant wanted to call themother anyway and impeach the motherwith her prior written statement.

The trial court refused to allow thedefendant to call the mother to the stand,holding that the only purpose of callingthe mother was to get the mother’s writ-ten statement in front of a jury for sub-stantive purposes.

REASONING:

C.C.E. § 6-4 provides: “The credibilityof a witness may be impeached by anyparty, including the party calling the wit-ness, unless the court determines that aparty’s impeachment of its own witness isprimarily for the purpose of introducingotherwise inadmissible evidence.”



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“It is clear that the defendant’s primarypurpose in calling the mother totestify, after being informed that shewould recant, was to impeach her. Inimpeaching her, the defendant’s objec-tive was to get the statement before thejury with the intent that it be used sub-stantively to impeach the credibility ofvictim. We hold, therefore, that thestatement properly was excluded.”


§ 6-7 AUTHOR OF MEDICALREPORT MAY BEIMPEACHED WITHCRIMINAL CONVIC-TION — SABATASSO V.HOGAN, 91 Conn. App. 808,cert. denied, 276 Conn. 923(2005); Flynn, J.; Trial Judge— Flanagan, John C., J.

RULE: The author of a medical reportis treated as though he or she were a wit-ness who testified on the stand, and maybe impeached accordingly.

FACTS: In this rear-end collision case,the plaintiff, who claimed a bulging cervi-cal disc and connective tissue injuries,offered the medical report of Dr. ArthurSeigel. The defendant offered a certifiedcopy of Dr. Seigel’s criminal conviction.The trial court admitted the conviction.The jury awarded the plaintiff $25. TheAppellate Court affirmed.

REASONING:

Plaintiff argued that Dr. Seigel was a“declarant,” but not a witness, and that hetherefore could not be impeached “by anymeans.” There is no basis for this argu-ment.

§ 6-10 PROPER FOUNDATIONREQUIRED FORIMPEACHMENT WITHPRIOR INCONSISTENTSTATEMENT — STATE V.QUILES, 96 Conn. App.354, cert. denied, 280 Conn.910 (2006); Peters, J.; TrialJudge -Rodriguez, J.

RULE: To use an oral prior inconsis-tent statement for impeachment, onemust call as a witness the person whoheard the oral prior inconsistent state-ment and establish the inconsistentstatement.

FACTS: The defendant was accused ofbeating his elderly father. The fatherspoke only Spanish and testified at trialthrough an interpreter.

Defense counsel asked the fatherwhether, when he spoke to Rodriguez, aSpanish-speaking investigator, he had saidhe had no recollection of what happened;that spirits had told him what happened;and, that in fact he had slipped and fallenin the bathroom. The father vigorouslydenied making any of these statements toRodriguez.

The defendant then sought to callRodriguez as a witness to testify as to thefather’s statements. The State objected onthe grounds that Rodriguez’s testimonyregarding what the father said would behearsay. The trial court sustained theobjection. As a result, the defendantdecided not to call Rodriguez, and thusdid not make an offer of proof as to histestimony.

REASONING:

On appeal, the State abandoned itsargument that the proposed testimonywas hearsay. Instead, the State argued thatbecause the defendant never actuallyoffered the testimony of Rodriguez, therewas no showing that the father actuallymade a prior inconsistent statement. TheState argued that defense counsel’s repre-sentation that that was what the fathertold the investigator was not sufficient.

The Appellate Court agreed. “Weagree with the state that it was not enoughto elicit the father’s generic disagreementwith what he allegedly had told the inves-tigator.”


COMMENT: To preserve the issue onappeal, it would have been necessary forthe defendant to call Rodriguez and makean offer of proof detailing what the fatherhad said earlier.

§ 6-10 EXTRINSIC EVIDENCEOF A PRIOR INCONSIS-TENT STATEMENT ISINADMISSIBLE IF THEWITNESS ADMITS MAK-ING THE STATEMENT —STATE V. BERMUDEZ, 95Conn. App. 577 (2006);Schaller, J.; Trial Judge —O’Keefe, J.

RULE: The prior inconsistent state-ment of a witness is admissible only if heor she denies having made the statement.

FACTS: The defendant crashed atmore than 90 miles per hour into the backof a car stopped at a red light. The occu-pants were killed, as was the passenger in

the front seat of the defendant’s vehicle.The defendant claimed his deceased pas-senger was actually the driver.

One of the State’s witnesses wasThomas Meier of the Waterbury FireDepartment. After Meier testified for theState, an audio recording of Meier’s con-versations with a dispatcher when Meierfirst responded to the scene was discov-ered. Some of the statements made in therecording were inconsistent with histestimony.

The court allowed the defendant tocall Meier to the witness stand for furthercross-examination. At that point, Meiertestified he could not recall what he toldthe dispatcher over the radio. When askedif listening to the audio recording mightrefresh his recollection, he said it would.The jury was excused, and the recordingwas played for Meier.

After the jury returned, Meier admit-ted each of the inconsistencies betweenhis initial testimony and what was on theaudio recording. The defendant thenmoved to have the recording playedbefore the jury. The trial court did notallow it. The Appellate Court affirmed.

REASONING: C.C.E. §6-10(c) pro-vides that “if the witness admits to mak-ing the statement, extrinsic evidence ofthe statement is inadmissible, except inthe discretion of the court.”

“Additionally, the Appellate Courts inthis State have established that when awitness admits to making a prior inconsis-tent statement, additional evidence of theinconsistency is merely cumulative.”


COMMENT: If you want the jury tohear a recording, get the witness to denymaking the prior inconsistent statement:

Q: “Lieutenant, didn’t you tell the dis-patcher that the car was blue?”

A: “No, I did not tell the dispatcherthe car was blue.”

If you have him on tape telling the dis-patcher that the car is blue, you can nowplay the tape.

§ 6-10 IMPEACHMENT WITHPRIOR INCONSISTENTSTATEMENT, AND“OPENING THE DOOR”— STATE V. POWELL, 93Conn. App. 592, cert.denied, 277 Conn. 924(2006); Schaller, J.; TrialJudge — Nigro, J.



RULE: After a police officer in a crim-inal case was impeached with his deposi-tion testimony in a civil case stemmingfrom the same incident, the State was per-mitted to introduce evidence regardingthe nature of the civil proceeding.

FACTS: Defendant was charged withpossession of narcotics and assault on apolice officer. During the arrest, thedefendant suffered a broken tibia. Hefiled a civil suit against the police officersand the City of Stamford alleging unrea-sonable force. In that suit, the depositionsof the arresting officers were taken. Thecivil lawsuit was pending when the crimi-nal trial took place.

During the criminal trial, defensecounsel impeached one of the police offi-cers regarding exactly how the arrest tookplace using deposition testimony from thecivil case, carefully referring to the deposi-tion testimony as from “another proceed-ing,” without elaboration.

The prosecutor responded not by ask-ing the officer about the substance of theinconsistency but by asking him what theother proceeding was about. Defensecounsel’s objection to this question wasoverruled, on the ground that the use ofthe deposition had opened the door tothis inquiry. The police officer testified,“The defendant is suing myself as well asthe other officers in the City of Stamfordfor, I believe, $1,000,000 or in excess of$1,000,000.”

93 Conn. App. at 595-96.

The prosecutor went on to referrepeatedly to the defendant’s “million dol-lar lawsuit” while questioning witnesses.In closing argument he implored the juryto “say no more to his million dollar law-suit.”

93 Conn. App. at 607. The AppellateCourt found no error.

REASONING:

“Because the defendant successfullyimpeached Scanlon’s trial testimonywith his deposition testimony, thecourt reasonably determined that thequestion posed by the state was neces-sary to place the defendant’s referenceto a deposition from “another proceed-ing in this matter” in its proper context.Accordingly, because defense counselintroduced evidence concerning thedeposition, the court did not abuse itsdiscretion by permitting the state toquestion Scanlon regarding the context

of that deposition.”

93 Conn. App. at 600 (emphasis inoriginal).

The Appellate Court went on to findthat even if it was error to admit this lineof questioning, it was harmless error.

Justice Mihalakos dissented: “The doc-trine of opening the door cannot. . . besubverted into a rule for injection of prej-udice. . . ” 93 Conn. App. at 612.

“There is often a stigma attached tothose who bring lawsuits against theirlocal governments for millions of dol-lars; the connotation sometimes is thatsuch individuals are motivated solelyby money. That evidence unfairly tookthe jury’s attention away from the factsof the criminal case and emphasized acontroversial lawsuit that carried nega-tive connotations about the criminaldefendant. The degree of prejudicesuffered by the defendant was exacer-bated by the repeated reference by thestate throughout the remainder of thetrial to his ‘million dollar lawsuit.’

* * *

“The most damaging reference to thecivil action was made by the state dur-ing its rebuttal argument when theprosecutor urged the jury to ‘[s]ay nomore to his million dollar lawsuit. . .And the way you say no more to [thedefendant], based on all the evidencethat was elicited in this case, is to. . .find him guilty of those counts.’”

93 Conn. App. at 616-17.

Article VII. Opinions and Expert Testimony.

§ 7-1 LAY OPINION TESTIMO-NY AS TO REASONS FORDISCHARGE INADMISSI-BLE — JACOBS V. GENER-AL ELECTRIC COMPANY,275 Conn. 395 (2005);Vertefeuille, J.; Trial Judge —Aurigemma, J.

RULE: A lay witness may not offeropinion testimony as to an employer’smotivation for an employment decision.

FACTS: Plaintiff went to work for thedefendant in 1996, six months before his50th birthday, as Plant Manager ofFabrication and Sourcing. Although hedid not have an engineering degree, hereceived favorable performance evalua-tions through 2000.

In 2001, plaintiff was laid off as part ofa reduction in force. He was 54 years old.Four other salaried employees in similarpositions were not laid off. All four haddegrees in either mechanical or electricalengineering. Two were younger than theplaintiff, and one had less job seniority.

The defendant’s Manager of HumanResources and Manager of Manufacturingtestified that the decision to lay off theplaintiff was based on his lack of relevantexperience and skills comparable to theother four employees.

In addition, the defendant offered thelay testimony of employees Texiera andGondolfo, who were not involved in thelayoff decision, that the plaintiff would be“the right candidate” to be laid off for rea-sons other than his age. Over objection,the trial court allowed the testimony. TheSupreme Court reversed.

REASONING:

“In the present case, both Texiera andGondolfo testified to their personalopinions as to whether the plaintiffshould have been laid of, despite thefact that neither witness participated inthe layoff decision. Neither witnesshad firsthand knowledge of the basisfor the decision. Indeed, Texiera wasno longer an employee at the defen-dant’s facility at the time of the layoff.Although the defendant claims thatthe testimony of both witnesses washelpful to the jury, the potential help-fulness of the testimony cannot over-comes its inadmissibility under § 7-1of the Connecticut Code of Evidence.Accordingly, we conclude that the trialcourt abused its discretion in admit-ting the testimony of these twowitnesses, who had no personal knowl-edge of the layoff process or thedefendant’s motivation for its decisionto lay off the plaintiff.”

275 Conn. at 408.

§ 7-2 EXPERT TESTIMONYREQUIRED TO ESTAB-LISH NEGLIGENT CRE-DENTIALING — NEFF V.JOHNSON MEMORIALHOSPITAL, 93 Conn. App.534 (2006); Bishop, J.; TrialJudge — Sferrazza, J.

RULE: A claim that a hospital wasnegligent in granting privileges to aphysician must be supported by experttestimony.



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FACTS: On February 24, 2000 plain-tiff was admitted to the defendant hospi-tal by his physician, Thomas Hanny, toundergo a vascular bypass to treat a footinfection. Over the next two months,Hanny performed three amputations onthe plaintiff at the hospital.

Plaintiff claimed that the hospital wasnegligent in allowing Hanny to continueto treat patients at the hospital withoutadequately investigating three medicalmalpractice claims brought against himbetween 1995 and 1999 and whileHanny did not have medical malpracticeinsurance.

Plaintiff disclosed one expert witness, aphysician, who testified during depositionthat his only criticism of the hospital wasits representation on its website regardingDr. Hanny’s qualifications. It turned outthe website was not accessible to thepublic until 2001, after the allegedmalpractice.

Defendant moved for summary judg-ment on the basis that plaintiff needed anexpert witness to prove the defendant hos-pital was negligent. The trial court grant-ed the motion for summary judgment;the Appellate Court affirmed.

REASONING:

“In the present case, the plaintiff ’sclaim sounds in corporate negligence.‘Corporate negligence is the failure ofthe officers or directors who constitutethe governing board of a corporation,acting as a board, to maintain the stan-dard of conduct required of the partic-ular corporation, rather than the per-sonal negligence of the corporation’sordinary employees.’ Buckley v. Lovallo,2 Conn. App. 579, 582, 481 A.2d1286 (1984).

“Under Connecticut law, to sustain acorporate negligence claim against ahospital, a plaintiff is generally‘required to establish, through experttestimony, the standard of care towhich [the] defendant [is] to be heldand a violation of the standard.’ Id.584. Specifically, the plaintiff isrequired to ‘produce expert testimonyof the standard of care applicable tosimilar hospitals similarly located,and expert testimony that the hospi-tal’s conduct did not measure up tothat standard.’ Id., 582; Pisel v.Stamford Hospital, 180 Conn. 314,334-35, 430 A.2d (1980).”

93 Conn.App. at 542-43 (footnotesomitted). (Emphasis added.)

COMMENT: The locale rule was anancient rule which defined the standard ofcare of a physician as that degree of skillpossessed by other practitioners in thesame geographic area. Connecticut aban-doned the rule in 1983 in Logan v.Greenwich Hospital, 191 Conn. 282. Butthe Neff case quoted from Pisel v.Stamford Hospital, a 1980 case, so it maybe that the locale rule has been resuscitat-ed in the corporate negligence area.

§ 7-2 EXPERT TESTIMONYREQUIRED IN LEGALMALPRACTICE CASE —DIXON V. BROMSON ANDREINER, 95 Conn. App. 294(2006); Gruendel, J.; TrialJudge — Miller, J.

RULE: With rare exceptions, experttestimony is required to establish the stan-dard of care and causation in a legal mal-practice case.

FACTS: Plaintiff retained the defen-dant law firm to represent her in a lawsuitseeking the partition of real property inwhich she owned an interest. She sought apartition in kind because she and her chil-dren wanted to remain on part of theproperty.

The court ultimately ordered a parti-tion by sale, noting that in absence of asurvey it could not determine an appro-priate partition in kind. Plaintiff allegedin her legal malpractice action that the lawfirm’s failure to obtain and provide a sur-vey was negligent. She did not disclose anexpert witness. The defendant law firmfiled a motion for summary judgment,claiming that the plaintiff needed anexpert witness on the standard of care andto establish any damages. Trial courtgranted the motion for summary judg-ment. The Appellate Court affirmed.

REASONING: The plaintiff arguedthat the decision of the court in theunderlying case made it obvious that thelaw firm did not produce sufficient evi-dence to permit the type of partition shesought.

While acknowledging that there arelegal malpractice cases where the lawyer’snegligence is so obvious and gross that anexpert witness is not required, theAppellate Court held that this was notsuch a case. The failure to produceevidence in the underlying case was notnecessarily the result of professionalnegligence. Furthermore, to establish cau-sation, the plaintiff needed expert testi-mony that “the kind or kinds of evidence

in question actually existed but were notput into evidence by the defendant.”


§ 7-2 QUALIFICATIONS OFEXPERTS: RIDINGEXPERT HELD INSUFFI-CIENTLY QUALIFIED —KEENEY V. MYSTIC VAL-LEY HUNT CLUB, INC., 92Conn. App. 368 (2006);Flynn, J.; Trial Judge —Gordon, J.

RULE: Plaintiff ’s expert, who had nottrained young novice riders in more than20 years, was held insufficiently qualifiedto testify about the standard of care for ariding instructor teaching a young novicerider.

FACTS: The plaintiff was a youngnovice rider receiving horseback ridinglessons at a riding academy owned by thedefendant. During a lesson she wasallegedly told to remove her feet from thestirrups and to kick the horse. The horselunged. The plaintiff was thrown to theground and fractured her arm.

The plaintiff ’s expert had been a certi-fied riding instructor since 1973.However, she had not trained youngnovice riders in more than 20 years, hadtaken no refresher courses, had never pre-pared any instructional or training mate-rials for instructors, had never served on asafety committee and had never taughtriding instructors.

The trial court concluded that theexpert’s qualifications were insufficientand directed a verdict for the defendant.The Appellate Court affirmed.

REASONING: Trial court precludedthe testimony because the expert’s pri-mary job was training horses and dealingwith her stable. Only 10% of her time wasspent training riders and even that did notinvolve young novice riders, but experi-enced riders training for dressage compe-titions. The Appellate Court did not findthis to be an abuse of discretion.

COMMENT: Normally, the expert’squalifications go to the weight thejury puts on her testimony, not itsadmissibility.

§ 7-2 QUALIFICATIONS OFEXPERTS: INSUFFICIENTRAILROAD EXPERTISETO ESTABLISH “STAN-DARD OF CARE” INPREMISES CASE —SULLIVAN V. METRO-NORTH COMMUTER



RAILROAD COMPANY, 96Conn. App. 741, cert. grant-ed, 280 Conn. 919 (2006);Harper, J.; Trial Judge —Frankel, J.

RULE: In proving that Metro-NorthRailroad provided inadequate security atone of its stations, plaintiff is requiredto produce an expert with “railroadexpertise.”

FACTS: James Sullivan was bar-hop-ping in South Norwalk one night whenhe encountered Larone Hines and a groupof men outside a local nightclub. Theencounter became hostile, and the groupof men chased Sullivan up a stairway lead-ing to a Metro-North train station, whereHines shot and killed Sullivan.

Plaintiff, who claimed Sullivan’s deathwas a result of inadequate security at thestation, disclosed an expert witness onpremises security. The expert was a formerpolice officer who had a premises securitybackground but no specific experience,training or knowledge regarding railroadsecurity. The defendant filed a motion topreclude his testimony which was grantedby the trial court. The jury returned a ver-dict for the defendant. The AppellateCourt affirmed.

REASONING: The trial court pre-cluded the testimony for a wide range ofreasons, including the expert’s lack ofexperience with railroad security. TheAppellate Court applied a troublesomestandard to the admissibility of expert tes-timony in this premises liability case, stat-ing that the test “is whether the expertknows the applicable standard of care andcan evaluate the defendant’s conductgiven that standard. . . ”


The use of “standard of care” languageshifts the focus from the safety of thepremises to the conduct of the defendantrailroad. One is required to prove both ina premises liability case. The expert’s testi-mony on the safety of the premises wasclearly relevant, and the expert had suffi-cient qualifications in this area.

COMMENT/PRACTICE NOTE:Try to match your expert’s qualificationsas closely as possible to the characteristicsof the defendant. The trend toward using“standard of care” language outside themalpractice arena will make qualificationof experts more difficult.

The Supreme Court has granted thepetition for certification.

§ 7-2 REQUIREMENT FOREXPERT EVIDENCE ONCAUSATION IN MEDICALMALPRACTICE CASENOT FULFILLED BYENTRY IN HOSPITALRECORD — CAVALLAROV. HOSPITAL OF SAINTRAPHAEL, 92 Conn. App.59, cert. denied, 276 Conn.926 (2005); Schaller, J.; TrialJudge - Lager, J.

RULE: The requirement of expertmedical testimony to establish causationin a medical malpractice case cannot befulfilled by notations in a hospital record,absent evidence that the author of thenotations is properly qualified to give theopinion.

FACTS: Plaintiff was admitted to thedefendant hospital in May 1997 for bilat-eral knee replacements. Although theplaintiff had banked his own blood in casehe needed a transfusion, the hospital gavehim a unit of someone else’s blood. Theplaintiff claimed an adverse reactionwhich led to his death.

A notation in the hospital record whenhe was re-admitted two days before hisdeath included this notation: “Patient hashistory of immune-medicated pneumoni-tis secondary to transfusion reaction in1997. Status post bilateral knee operationwith implant in May 1997 which hospitalcourse was complicated by toxic reactionand went to pulmonary edema, recoveredgradually.”

92 Conn. App. at 73, n.12 (medicalabbreviations interpreted).

Plaintiff had no expert to testify oncausation.1 In opposition to defendant’smotion for summary judgment, the plain-tiff argued that these hospital recordnotations could be used instead of experttestimony to establish causation. The trialcourt ruled against the plaintiff on thisissue and entered summary judgment.The Appellate Court affirmed.

REASONING:

“Although the hospital records werebusiness records, neither the records,nor any other evidence, indicated thatthe persons who made the notationswere qualified to give expert testimonyregarding causation. Absent such evi-dence, any opinion regarding causa-tion that was contained in the nota-tions was not independently admissi-

ble. See River Dock & Pile Inc., v. O &G Industries, Inc., 219 Conn. 787, 799,595 A.2d 839 (1991) (opinion includ-ed within otherwise admissible busi-ness record admissible only if entrantwould be qualified to give that opinionin testimony).”


§ 7-2 PORTER/DAUBERTANALYSIS NOTREQUIRED FOR FIREMARSHALS’ TESTIMONY— Jordan v. Yankee GasServices Co., 2006 Conn.Super. LEXIS 150 (Conn.Super. Ct. 2006) (J.D.Waterbury, ComplexLitigation Docket No.XO1CV94018567S)(Sheedy, J.)

RULE: A Porter/Daubert hearing is notrequired for Fire Marshals’ testimonyregarding the cause of a fire, because theevidence is not the type of innovative sci-entific evidence with the potential to mis-lead jurors that Porter was intended toaddress.

FACTS: Jordan spilled a container ofmixed gas and oil onto his basement floor.While he was attempting to soak up theliquid with cloths, it spread under the gas-piloted hot water heater and ignited.Jordan’s wife and children were killed inthe fire. Plaintiff brought a product liabil-ity case against Yankee Gas, the seller ofthe gas hot water heater, claming it wasdefective because it was not elevated on an18” stand.

The fire was investigated by twoConnecticut State Fire Marshals.Defendant moved to preclude their testi-mony on several grounds, includingPorter/Daubert. The trial court declinedto subject the Fire Marshals’ testimony toa Porter/Daubert analysis or hold aPorter/Daubert hearing.

REASONING: The trial court reliedprimarily on Hayes v. Decker, 263 Conn.677 (2003). There was no showing thatthe Fire Marshals’ methodology was“innovative.” In addition, their proce-dures (interviewing witnesses, examiningthe fire scene, observing debris, noting thelocation of objects in the fire environ-ment, considering possible ignitionsources, studying burn patterns, etc.) pro-duced the type of the evidence a jury

_____1 See Expert Discolsures, infra.



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could competently evaluate “withoutabandoning common sense and sacrific-ing independent judgment to the experts’assertions based on his special skill orknowledge. . . ” 2006 Conn. Super.LEXIS 150, at *23 (citation omitted).

“Because the experts do not expect totestify concerning innovative scientifictechniques, their testimony is admissiblewithout undergoing a Porter analysis orbeing subjected to a Porter hearing.” Id. at*24.

“It is a jury question whether theirinvestigation was based on valid and reli-able methods of origin and cause fireinvestigation. All that counsel for YankeeGas was able to elicit as steps not thentaken and which the investigators wouldundertake today if conducting a similarinvestigation go to weight and not admis-sibility.” Id. at *25.

§ 7-3 ANSWER TO HYPO-THETICAL QUESTIONSHELD NOT TO BE ANOPINION ON ULTIMATEISSUE — STATE V. KEL-LEY, 95 Conn. App. 423,cert. denied, 279 Conn. 906(2006); Hennessey, J.; TrialJudge — Ginocchio, J.

RULE: Testimony by an expert on anultimate issue is generally prohibited.However, this prohibition can be circum-vented through the use of hypotheticalquestions.

FACTS: Defendant was stopped fordrunk driving. The officer administeredthe horizontal gaze nystagmus test, thewalk-and-turn test, and the one-leg standtest. According to the officer, the defen-dant failed all three tests.

At trial, the State called Jack Richman,an optometrist and certified field sobrietytest instructor, as an expert witness.

“In response to questioning from thestate, Richman testified in relevantpart as follows:

‘Q. Doctor, assume for this questionthat subject submits to the standardfield sobriety test. And the first test ishorizontal gaze nystagmus. It’s con-ducted by a trained person. That per-son detects six clues. Do you have anopinion whether or not that person isimpaired?

‘A. If there were six clues, my opinion,there are signs of impairment seenthrough the eye movement. I need to

find out what’s the cause of thatimpairment.

‘Q. I’m sorry, walk and turn, howmany clues total?

‘A. Walk and turn I believe I eight.You need to fail — four is a failure.

‘Q. One leg stand?

‘A. I think there are four. We need twoto fail.

‘Q. Now, again, using the same set ofcircumstances, that subject submits to,now this person submits to the walkand turn, four clues are detected; doyou have an opinion on whether or notit’s more probable or less probable thathe is impaired based on the two tests?

‘A. More probable.

‘Q. They submit to the walk-I’m sorry,one leg stand. They place their footdown three times; what is thatconsidered?

‘A. That’s a failure.

‘Q. All three tests added up after thethird test, more likely or less likely tobe impaired?

‘A. I believe in my mind, as a clinician,it’s clearly more likely there is. It’s likea headache, but now you’re nauseouswith the headache and you have dizzi-ness with the headache. So, you start tohave three things together that givesyou much more evidence that there’ssomething wrong and there’s impair-ment.

‘Q. Now, doctor, taking that sameexample and the subject was asked ifhe was ill, if he was injured, if he need-ed immediate medication? Was he onmedication? Was he diabetic? Does heneed medication at this time? Does hetake insulin? And he admits no to all ofthose. And the person administeringthe test detects an odor of alcohol onhim, slurred speech. . . again after hedenies all the medical issues, there’s anodor of alcohol, slurred speech andadmits to drinking alcohol. Whatwould your opinion be of this personat this point?

‘A. My opinion would be, one, thatthey’re impaired. Two, the most likelycause until I can get a further test,most likely cause would be the centralnervous system depressant of alcohol.

‘Q. Same set of circumstances. The

person [is] considered to fail all threetests, admits to no medical issues,admits to drinking, smells of alcohol;do you have an opinion within a rea-sonable degree of scientific certaintyon whether or not that person is oper-ating the motor vehicle under theinfluence?

‘A. In my opinion, he would be-thatindividual would be impaired andshould not be operating a motor vehi-cle, an airplane or boat.

‘Q. Likely cause based on?

‘A. Likely cause based on the questionsthat were answered as well as the signsof impairment, that would be mostly-likely would be due to alcohol.

‘Q. Thank you, doctor.’”

95 Conn. App. at 430-31, Note 10.

The trial court admitted this testimo-ny, and the Appellate Court affirmed.

REASONING:

“After reviewing the parties’ briefs, itappears that both parties are underthe assumption that Richman testi-fied as to the ultimate issue of im-pairment. Similarly, the state argued inits closing argument: ‘Richman statedthat with all the tests [the defendant]has taken and failed, all the clues, witheverything else ruled out, his profes-sional opinion is that [the defendant]was drunk. He was impaired.’ We dis-agree, however, that Richman testifiedas to the ultimate issue of the defen-dant’s impairment. . . ”

* * *

“Here Richman never opined that thedefendant was impaired. Instead, hemerely responded to hypotheticalquestions mirroring the facts at issue,which we already have held is permis-sible.”

95 Conn. App. at 429-31 (citationomitted). (Emphasis added.)

COMMENT: Talk about exaltingform over substance!

Article VIII. Hearsay

§ 8-3 (1) STATEMENT BY AGENTOF PARTY OPPONENTNOT ADMISSIBLEUNLESS AUTHORIZEDBY PRINCIPAL —BROWN. V. BRIGHTCLOUDS MINISTRIES,



INC., 94 Conn. App. 181,cert. denied, 278 Conn. 907(2006); West, J.; Trial Judge— Pittman, J.

RULE: “The mere existence of anemployment relationship without moredoes not render statements of an employ-ee admissible against an employer. . .Before evidence can be admitted to showwhat an agent said, it must be establishedthat the agent was authorized by the prin-cipal to make an admission.”


FACTS: Plaintiff, who was installingwiring around several large windows atthe top of the Bright Clouds Church,which was under construction, claimed hefell through an open window, slid downthe roof, and landed on a pickup truck.Defendants maintained that the plaintiffremoved the plywood covering the win-dow, stepped out onto the roof, slippedon ice and fell.

At trial, plaintiff offered a handwrittenstatement of Charles Galda, the church’s“clerk of the works” for the constructionproject, in which Galda did not mentionplywood in the window or anything aboutthe plaintiff removing it. The trial courtdid not allow the statement into evidence.The Appellate Court affirmed.

REASONING: Galda was not adefendant. The fact that he was the prin-cipal employee for the defendant on theproject was not enough to make his state-ment admissible under Connecticut’s“statement of party opponent” rule.

In Connecticut, the proponent of thestatement must establish the authority ofthe employee to speak on behalf of theemployer. That authority cannot be estab-lished through the employee. This is aminority position.

COMMENT/PRACTICE NOTE:The Connecticut Code of EvidenceOversight Committee has submitted aproposal to the Rules Committee of theSuperior Court to amend this rule toallow in “a statement by the party’s agentor servant regarding a matter within thescope of the agency or employment, madeduring the existence of the relationship.”

Until this amendment is adopted, con-sider naming the employee as a defendant.

§ 8-3 (2) SPONTANEOUS UTTER-ANCE — 15 HOURS ISTOO LONG — STATE V.GREGORY C., 94 Conn. App.

759 (2006); Gruendel, J.;Trial Judge — Rodriguez, J.

RULE: A statement made 15 hoursafter the event, and after the declarant hashad considerable time and opportunity toreflect on what occurred, is not admissibleas a spontaneous utterance.

FACTS: Defendant was accused ofsexual assault in a spousal relationship.The alleged assault took place at approxi-mately 11 o’clock at night.

The next day, after describing the inci-dent to a friend and going to the court-house for a restraining order, the victimwent to the police station to report theassault. An officer interviewed the victimat approximately 3:30 p.m.

At trial, the prosecutor asked the policeofficer to recount what the victim hadtold him. Defense counsel objected on theground of hearsay. The prosecutor offeredthe statement under the spontaneousutterance exception to the hearsay rule.The trial court allowed the police officerto recount the conversation. TheAppellate Court reversed.

REASONING: Although the amountof time between the startling event andthe statement is not necessarily determi-native, 15 hours is probably too much. Inaddition, the victim had already describedwhat happened to her friend and gone tothe courthouse to obtain a restrainingorder.

§ 8-3 (5) STATEMENT IN MEDICALRECORD RE: IDENTITYOF DRIVER NOT GER-MANE TO TREATMENTOR ADVICE — STATE V.SMITH, 97 Conn. App. 1(2006); McDonald, J.; TrialJudge — Foley, J.

RULE: Party statements in a hospitalrecord offered by that party are admissibleonly if they were “made for purposes ofobtaining medical treatment or advicepertaining thereto and describing medicalhistory, or past or present symptoms,pain, or sensations, or the inception orgeneral character of the cause or externalsource thereof, insofar as reasonably perti-nent to the medical treatment or advice.”C.C.E. § 8-3(5).

FACTS: One evening, the defendantand his girlfriend were drinking alcohol,first at their home and then at two bars.After they left the second bar on thedefendant’s motorcycle, they failed tonegotiate a curve, went off the road and

hit a guardrail. Defendant’s girlfriend waskilled. He claimed at trial that she wasdriving the motorcycle at the time of thecollision.

Defendant, also seriously injured,made statements at the hospital that hewas the passenger. He offered the hospitalrecord in evidence pursuant to the busi-ness record rule. The State requested thatdefendant’s statements, which constitutedanother level of hearsay, be redacted. Thedefendant pointed to C.C.E. § 8-3(5),quoted above. The trial court determinedthat the exception did not apply andredacted the record. The Appellate Courtaffirmed.

REASONING:

“We conclude that the court correctlydetermined that this exception cannotapply to the references to the defen-dant as the passenger because informa-tion regarding who was operating themotorcycle was not necessary to treat-ment. We have stated that ‘[b]ecausestatements concerning the cause ofinjury or the identity of the personresponsible are generally not germaneto treatment, they are not allowed intoevidence under the medical treatmentexception.’ State v. Dollinger, 20 Conn.App. 530, 534, 568 A.2d 1058, cert.denied, 215 Conn. 805, 574 A.2d 220(1990). We find persuasive the state’sarguments that whether the defendantwas the operator or the passenger didnot have any bearing on his medicaltreatment.

“We also find support in the record forthe court’s conclusion. Richard E.Whitehouse, an emergency medicaltechnician who provided medical careto the defendant, testified that ‘howthe accident occurred’ was ‘[not] ger-mane to his injuries’ and was notimportant for the purposes of treat-ment.

“Accordingly, we conclude that the ref-erences to the defendant as passengerwere not germane to his treatment.We therefore agree with the court’sdetermination that the redacted por-tions of the medical reports were notrelevant to treatment and, thus, werenot admissible under this exception.”

97 Conn. App. at 7-8

COMMENT: The court appears to bedrifting toward a different test for admis-sibility, requiring that the statement at



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issue be “necessary” or “important” tomedical treatment or advice.

§ 8-3 (5) NOTATIONS IN CHILD’SMEDICAL RECORDS RE:MOTHER’S BEHAVIORRELEVANT TO MEDICALTREATMENT — GIL V.GIL, 94 Conn. App. 306(2006); Dupont, J.; TrialJudge — Prestley, J.

RULE: Portions of a child’s medicalrecords documenting her mother’s behav-ior toward her were relevant because hermedical care included treatment for ananxiety disorder related to her parents’divorce.

FACTS: In this bitter divorce case, theparents had joint legal custody of theirchild, and the husband had visitation twodays a week. He filed a motion for con-tempt, claiming that he was being deniedvisitation. The wife claimed that visitationwas being denied because the husband’svisits were aggravating the child’s anxietydisorder.

The husband claimed the wife wasmanipulating the child’s anxiety disorderto deny him visitation. He offered in evi-dence the child’s medical records as busi-ness records. The wife sought to redactfrom the records all references to herbehavior on the basis that her behaviorwas not “pertinent” to the child’s treat-ment. The trial court admitted the entirerecord. The Appellate Court affirmed.

REASONING:

“[T]he portions of the records thatdocument the plaintiff ’s behavior wererelevant to the treatment of the childbecause they gave insight into thesource of the child’s anxiety regardingcontact with the defendant. Specifically,the question was whether the plaintiffhad manipulated the anxiety disorderin order to interrupt telephone contactand visitation between the child andthe defendant, or whether the plaintiffwas the original cause of the anxietydisorder. Therefore, the court did notabuse its discretion when it admittedthe child’s medical records withoutredaction.”

94 Conn. App. at 320-21.

§ 8-4 ALTERNATE FOUNDA-TION TO QUALIFYHOSPITAL RECORD AS ABUSINESS RECORD —STATE V. BERMUDEZ, 95Conn. App. 577 (2006);

Schaller, J.; Trial Judge —O’Keefe, J.

RULE: Hospital records subpoenaedto court pursuant to C.G.S. §4-104 withthe required accompanying affidavit areadmissible as business records without aqualifying witness. Alternatively, therecord can be admitted through a livewitness testifying as to the properfoundation.

FACTS: See §6-10, supra. Part of theState’s evidence that the defendant was thedriver of the car that rear-ended anothervehicle was expert testimony from theMedical Examiner that the defendant’sinjuries were consistent with those suf-fered by a driver of a vehicle that strucksomething head-on.

To lay the foundation for this testimo-ny, parts of the defendant’s hospitalrecords were admitted into evidencethrough Dr. Peter Jacoby, the head of thehospital’s emergency department.

The doctor laid the proper foundationfor the admission of the hospital record asa business record. The defendant objectedon the basis that the State had not com-plied with C.G.S. §4-104, which requiresa subpoena and affidavit. The trial courtadmitted the record. The Appellate Courtaffirmed.

REASONING:

“§4-104 is not the sole avenue bywhich medical records may be admit-ted into evidence. Medical records maybe admitted under the business recordexception. . . In the present case, thestate provided an in-court witness,Peter Jacoby, to testify and to qualifythe defendant’s medical record as abusiness record exception to the ruleagainst hearsay. It was therefore unnec-essary for the state to comply with thesubpoena requirements of § 4-104.”

95 Conn. App. at 587, n. 5.

§ 8-4 DOCUMENT GENERAT-ED DURING TRIALALLOWED IN AS BUSI-NESS RECORD — EMI-GRANT MORTGAGECOMPANY, INC. V.D’AGOSTINO, 94 Conn.App. 793, cert. denied, 278Conn. 919 (2006); Schaller,J.; Trial Judge — Lewis,William B., J.

RULE: Testimony that a documentwas created in the course of a bank’s busi-ness is sufficient to admit the document as

a business record, despite the fact that thedocument was generated specifically tocorroborate the witness’s testimony.

FACTS: In this foreclosure action,Patricia Gilligan, the plaintiff ’s AssistantVice-President and manager of the fore-closure department, testified regardinghow the reinstatement amount on theloan was calculated. She testified that sheused the bank’s computer system to gener-ate the calculations.

On cross-examination, she was unableto answer questions regarding the specificmanner in which the reinstatementamount was calculated. After she left thewitness stand, she contacted the bank’smortgage accounting department andasked it to produce a document settingforth the steps showing how the reinstate-ment amount was calculated. The docu-ment was generated by the mortgageaccounting department that night.

The next day, the bank recalledGilligan to the witness stand and offeredthis document in evidence. Gilligan testi-fied that it was in the course of the plain-tiff ’s business to create and to keep such adocument, that this particular documentwas created in the course of the plaintiff ’sbusiness with regard to the defendant’sloan and that the document was madecontemporaneously with her request forthe defendant’s records.

The defendant objected to the docu-ment on the basis that a proper founda-tion had not been laid. The court over-ruled the objection. The Appellate Courtaffirmed.

REASONING:

“In this case, Gilligan’s testimony satis-fied the elements of trustworthinessrequired by §52-180 as well as therequirements pertaining to computergenerated business records. Gilligantestified that it was in the regularcourse of the plaintiff ’s business to cre-ate such a document and that it wasgenerated in the regular course of theplaintiff ’s business. She also stated thatthe document was created contempo-raneously with her request for thedefendant’s records. Furthermore,Gilligan testified that the documentcontained an exact breakdown of howthe reinstatement sum was calculatedand thoroughly explained that calcula-tion. Moreover, like the sales managerin American Oil Co. [179 Conn. 349(1979)], Gilligan had personal knowl-edge of the facts and circumstances



surrounding the defendant’s mortgagethat was derived from her position as asupervisor of the bank’s foreclosuredepartment, and had personal experi-ence with the plaintiff ’s general recordkeeping procedures. We conclude thatthe court did not abuse its discretionand that Gilligan’s testimony sufficedto meet the plaintiff ’s burden to estab-lish a sufficient foundation.”

94 Conn. App. at 810-11.

COMMENT: A bad decision. Unlessone defines the “business” of the bank aslitigating foreclosure actions, this docu-ment was not generated in the regularcourse of the plaintiff ’s business, nor wasit generated “at the time of the act, trans-action, occurrence or event or within areasonable time thereafter.” C.C.E. §8-4(a).

Ironically, the Appellate Court citedthe following Supreme Court precedent:“This liberal application [of the businessrecord rule] is derived from the recogni-tion that the trustworthiness of such doc-uments comes from their being used forbusiness purposes and not for litigation.New England Savings Bank v. BedfordRealty Corp., 246 Conn. 594, 600(1998).” Emigrant Mortgage at 808.(Emphasis added.)

This principle is completely incompat-ible with allowing in a document “createdin response to the defendant’s. . . cross-examination of Gilligan.” Id. at 805, n.5.

§ 8-4 CHAIN OF CUSTODYTESTIMONY NOTREQUIRED WHENAUTHENTICATING ABUSINESS RECORD —FIRST UNION NATIONALBANK V. WOERMER, 92Conn. App. 696 (2005), cert.denied, 277 Conn. 914(2006); McLachlan, J.; TrialJudge — Gallagher, J.

RULE: Even though the witness layingthe foundation for a business record didnot create a document, provide it to coun-sel, or know whether it came from thebusiness’s files, the record is admissible.

FACTS: In this foreclosure action, theloan was originally made by Center Bank,which merged into First Union Bank ofConnecticut, which then merged intoFirst Union National Bank, which initial-ly brought the action. Thereafter, FirstUnion assigned the loan as part of a bulksale to EMC Mortgage Corporation,

which was substituted as plaintiff. The plaintiff offered in evidence a doc-

ument containing the defendant’s mort-gage history with Center Bank. The wit-ness was Carissa Fercodini, who hadworked first at Center Bank and then atFirst Union.

She laid the necessary foundationregarding the document. However, shehad not created the document and hadnot personally pulled the document fromthe files of Center Bank or First Union.(It appears she was supplied with the doc-ument by plaintiff ’s counsel.) She couldnot vouch for the origin of the document.Nonetheless, the trial court allowed thedocument in evidence. The AppellateCourt affirmed.

REASONING:

“The issue of proper authentication ofbusiness records was addressed in NewEngland Savings Bank v. Bedford RealtyCorp., 246 Conn. 594, 717 A.2d 713(1998), in which our Supreme Courtconcluded that a business record maybe admitted even though the qualify-ing witness lacks personal knowledgeof the origin of the document. Afterspecifically stating that it is not neces-sary to establish a chain of title toauthenticate a business record, thecourt indicated that a document maybe authenticated by direct testimony,circumstantial evidence or proof ofcustody.

* * *

“The court noted that establishing achain of custody should not be arequirement for authentication forpersuasive policy considerations. Id.,605. Present day foreclosure actionsoften involved failed banks and mort-gage loans that have been assigned sev-eral times. ‘To require testimonyregarding the chain of custody of suchdocuments, from the time of their cre-ation to their introduction at trial,would create a nearly insurmountablehurdle for successor creditors attempt-ing to collect loans originated by failedinstitutions.’”


QUAERE: Is this a special rule in fore-closure cases?

§ 8-5 (1) PERSONAL KNOWLEDGEREQUIREMENT OFWHELAN EXAMINED —IMPORTANCE OF COM-

MENTARY TO CODE OFEVIDENCE — STATE V.PIERRE, 277 Conn. 42(2006); Borden, J.; TrialJudge — Schimelman, J.

RULE: When a prior inconsistentstatement is admitted for substantive pur-poses pursuant to C.C.E. §8-5(1) and therule of State v. Whelan, one of the require-ments is that “the witness has personalknowledge of the contents of the state-ment.”

When the statement is offered solely toprove that the defendant made a state-ment, not for the truth of the underlyingfacts, the witness need not have personalknowledge of the underlying facts.

FACTS: Murder prosecution in whicha witness, Carr, gave a statement relatingthe defendant’s own description of themurder. Carr did not have personalknowledge of these facts.

At trial, Carr insisted that he had neverheard the defendant discuss the killing ofthe victim and that any assertion to thecontrary in his seven-page written state-ment was false. The trial court admittedthe written statement for substantive pur-poses pursuant to Whelan. The AppellateCourt affirmed.

REASONING: The Supreme Courtheld that:

“The defendant conceded at oral argu-ment before this court that Grant[State v. Grant, 221 Conn. 93 (1992)]and Woodson [State v. Woodson, 227Conn. 1 (1993)] reject Green’s require-ment [State v. Green, 16 Conn. App.390, cert. denied, 210 Conn. 802(1988)] that personal knowledge mustbe knowledge of the facts underlyingthe statement. Essentially, the defen-dant is asking to overrule our priorholdings in Grant and Woodson, and toretreat to the interpretation ofthe personal knowledge requirementespoused by the Appellate Court inGreen. We are not inclined to do so, par-ticularly in light of the fact that, asnoted previously, the Whelan rule[State v. Whelan, 200 Conn. 743, cert.denied, 479 U.S. 994 (1986)] and allof the developments and clarificationsof the rule that have occurred sinceWhelan was decided, have been codi-fied in §8-5 (1) of the ConnecticutCode of Evidence.

“The judges of the Superior Courtadopted the Connecticut Code ofEvidence (code) in June, 1999, with



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the intent of codifying Connecticutevidentiary case law. See D. Borden,‘The New Code of Evidence: A (Very)Brief Introduction and Overview,’ 73Conn. B.J. 210, 211-12 (1999).Significantly, ‘the [c]ode cannot beproperly understood without referenceto the accompanying [c]ommentary.The [c]ommentary provides the neces-sary context for the text of the [c]ode,and the text of the [c]ode expressesin general terms the rules of evidencethat the cases cited in the [c]ommen-tary have established.’ Id., 212.Additionally, ‘the [j]udges took anunusual step when they formallyadopted the [c]ode. Unlike other situ-ations, in which the [j]udges, whenvoting on rules, are guided by but donot formally adopt the commentarysubmitted by the [r]ules [c]ommitteethat normally accompanies proposedrule changes, in adopting the [c]odethe [j]udges formally adopted the[c]ommentary as well. This is the firsttime that the [j]udges have done so.Thus, the [c]ode must be read togeth-er with its [c]ommentary in order for itto be fully and properly understood.’Id., 213. Therefore, the personalknowledge prong of the Whelan rule,as codified by the requirements of §8-5 (1) (C) of the code, must be under-stood as also incorporating our hold-ings in Grant and Woodson.”

277 Conn. at p. 59-60 (footnote omit-ted).§ 8-7 HEARSAY WITHIN

HEARSAY — DEAD MAN’SSTATUTE — DINAN V.MARCHAND, 279 Conn.558 (2006); Katz, J.; TrialJudge —Wolven, J.

RULE: Virtually any statement madeby a decedent in a case by or against theestate is admissible pursuant to the DeadMan’s Statute, C.G.S. §52-172.

FACTS: The decedent, Garofalo, hadmade a will some time before his marriageto plaintiff Dinan. By operation of law, ifa testator does not specifically provideotherwise, his subsequent marriage auto-matically revokes his will.

Two days before the wedding, Garofaloexecuted a codicil to his will specificallyproviding that his will should continue infull force after the marriage. The willmade no provision for Dinan, and left hisestate to Garofalo’s daughter and grand-children.

Less than three years after the mar-riage, Garofalo died. Dinan challengedthe codicil, claiming Garofalo executed itwhile under his daughter’s influence,domination, and control.

The case was tried to a jury. Dinanoffered testimony of a conversation shehad with Garofalo on their honeymoon,in which he revealed that he had executedthe codicil and that he had done sobecause his daughter had told him that ifhe did not, she would not come to thewedding and he would never see her or hisgrandchildren again.

The defendant estate objected to thetestimony on the basis that it was doublehearsay. The trial court sustained theobjection. The Supreme Court founderror, but held it harmless.

REASONING: This is a doublehearsay problem. First, Dinan was seekingto elicit what the daughter told Garofalo.However, Dinan was not offering thestatement of the daughter for the truth ofits contents (that the daughter would boy-cott the wedding and not allow Garofaloto see her or the grandchildren). Rather,she offered it to show its effect onGarofalo in coercing him to execute thecodicil. Therefore, it was not hearsay.C.C.E. § 8-1(3).

The second link of the hearsay chainwas relating what Garofalo had said toDinan. This statement, the court held,was clearly admissible under the DeadMan’s Statute, C.G.S. § 52-172, whichprovides: “In actions by or against the rep-resentatives of deceased persons. . . theentries, memoranda and declarations ofthe deceased, relevant to the matter inissue, may be received as evidence. . . ”279 Conn. at 573.

§ 8-8 IMPEACHMENT OFHEARSAY DECLARANTFOR BIAS OR PREJUDICE— STATE V. CALABRESE,279 Conn. 393 (2006);Norcott, J.; Trial Judge —Rodriguez, J.

RULE: “When hearsay has beenadmitted in evidence, the credibility ofthe declarant may be impeached, and ifimpeached may be supported, by any evi-dence that would be admissible for thosepurposes if the declarant had testified as awitness.” C.C.E. § 8-8.

FACTS: The defendant, EdanCalabrese, was accused of assaulting his69-year old mother. The mother did nottestify at trial. Her description of what

happened was placed in evidence throughstatements she made to the police officersand in her medical records. Defendantsought to demonstrate to the jury hismother was biased and prejudiced againsthim by playing the following string ofmessages she had left on his answeringmachine:

“Edan.

“Please pickup Edan.

“Would you pick up please?

“Pick up will you? [PAUSE] Are youthere?

“Are you there? [PAUSE] Pick up.Pick up if you’re there. [PAUSE] I justwanted to say good luck and I loveyou.

“Are you there? Pick up. [PAUSE] Areyou there?

Pick up. [PAUSE] Pick up! [PAUSE]pick up! [PAUSE] You prick!

“You’d better come down here andpick up the pork and bring my gro-ceries down here before I call thepolice.

“Pick up. Won’t you pick up?

“I asked for a goddamn sandwich andI never got it and I had a call from thevictim’s advocate and you are in a hellof a lot of trouble if you don’t bring memy sandwich — cheeseburger! Youbetter bring it here and leave it right onthe doorstep you son of a bitch youbastard!

“Pick up. [PAUSE] Please pickup.

“Please pick up. [PAUSE] Please pickup.”

279 Conn. at 406, n.17.

C.C.E. § 6-5 provides: “The credibilityof a witness may be impeached by evi-dence showing bias for, prejudice against,or interest in any person or matter thatmight cause the witness to testify falsely.”

The trial court did not allow the defen-dant to play the recording. The SupremeCourt found error and reversed.

REASONING:

“We can think of no better evidence ofanimus that might show a motive formaking false allegations than thethreats of seeking the arrest of thedefendant if he did not comply withher wishes, and other invectives, con-tained in the messages that the trial



court improperly excluded from thejury’s consideration.”

279 Conn. at 410.

§ 8-9 RESIDUAL EXCEPTION— WHAT CONSTITUTES“DUE DILIGENCE” —FERRIS V. FAFORD, 93Conn. App. 679 (2006);Bishop, J.; Trial Judge —Foley, J.

RULE: The residual exception to thehearsay rule requires “a reasonable necessi-ty for the admission of this statement. . .”C.C.E. § 8-9. To demonstrate reasonablenecessity, the proponent must show “duediligence” in obtaining non-hearsay evi-dence, but “[d]ue diligence does notrequire omniscience. Due diligence meansdoing everything reasonable, not every-thing possible.”


FACTS: This case involved the in-heritance of a farm owned by MamieNahibowitz. Nahibowitz had no children.In 1973, she executed a will leaving herestate in quarter shares to a nephew, aniece, and the children of the nephew andniece. The farm was the principal asset ofthe estate.

In 1993, Nahibowitz executed a newwill restricting the development of thefarm and requiring that it remain a farm.The Commissioner of Agriculture wasinformed of this restriction.

Nahibowitz died in 1998. Her nephewsubmitted the 1973 will to probate. In2002, the Commissioner became aware ofthe probating of the 1973 will. TheCommissioner brought this action, alleg-ing that Nahibowitz’s nephew, who sub-mitted the 1973 will, was aware of the1993 will and fraudulently submitted the1973 will because the 1993 will woulddecrease the value of the property.

At the time of trial, the original of the1993 will could not be located. Anunsigned copy was produced byNahibowitz’s attorney. The Commissioneroffered an affidavit from Etta Klee,Nahibowitz’s closest friend, about the cir-cumstances of the execution of the 1993will and its whereabouts. Klee was 84years old and healthy at the time shesigned the affidavit. She later had a strokewhich rendered her unable to testify.

The affidavit stated that in March1993, the day that the will was executed,Klee took Nahibowitz to the bank to get asafe deposit box to store the 1993 will.

The affidavit also stated that in June1993 Nahibowitz had gone to her lawyer’soffice with her nephew to fix a typo in the1993 will. The will was later transferred toa safe deposit box owned by the nephew’smother, who died before Nahibowitz.

The nephew testified that when heemptied his mother’s safe deposit box hedid not find the 1993 will. He deniedever knowing that it existed.

Klee’s affidavit was offered pursuant tothe residual exception to the hearsay rule.The two requirements of the rule are that:“(1) there is a reasonable necessity for theadmission of the statement, and (2) thestatement is supported by equivalentguarantees of trustworthiness and reliabil-ity that are essential to other evidenceadmitted under traditional exceptions tothe hearsay rule.” C.C.E., § 8-9. The trialcourt admitted the affidavit. TheAppellate Court affirmed.

REASONING:

The defendant argued that, becauseKlee was healthy when she signed the affi-davit, the Commissioner should havetaken her deposition at that time. Thecourt held that the failure to take the dep-osition did not constitute “a lack of sub-stantial diligence or good faith.”


As to the second prong of the test, theAppellate Court stated: “We further con-clude that the document had an adequateindicia of reliability because there was noevidence of undue influence or coercion,no evidence of a motive to fabricate theaffidavit, and Etta Klee had sworn to itsaccuracy.”


§ 8-9 FATHER’S STATEMENTIMPLICATING SONADMITTED UNDERRESIDUAL EXCEPTION— STATE V. SKAKEL, 276Conn. 633, (January 24,2006); Palmer, J.; Trial Judge— Kavanewsky, J.

RULE: A statement by a father impli-cating his child in a murder has therequisite indicia of trustworthiness andreliability for admission under the residualexception to the hearsay rule.

FACTS: In this infamous murder trial,a friend and neighbor of the defendant’sfather testified before the grand jury thatthe father had told her that his son hadtold him that he had so much to drink

that night that he wondered if he couldhave murdered the victim.

At trial, the neighbor testified that shedid not remember the conversation. TheState offered the grand jury testimony.

There were three hearsay links in thechain:

(1) The grand jury testimony washearsay. State offered it pursuant to theWhelan rule, C.C.E., § 8-5(1);

(2) The statement of the father to theneighbor was hearsay. The State offeredthat link pursuant to the residual excep-tion to the hearsay rule.

(3) The statement of the son to thefather that he may have committed themurder was hearsay. The State offered thisas a statement of a party opponent.C.C.E., § 8-3(1). The trial court admittedthe grand jury testimony. The SupremeCourt affirmed.

REASONING: The only link in thechain contested on appeal was the use ofthe residual exception for the second link.The court found that the friendshipbetween the neighbor and the father, andthe fact that the father would probablynot falsely implicate his son, made the evi-dence reliable enough to be admitted.

Article X. Contents of Writings, Recordings and Photographs

§ 10-5 FOUNDATIONREQUIRED FOR ADMIS-SION OF SUMMARY —NATIONAL PUBLISHINGCO. V. HARTFORD FIREINSURANCE CO., 94 Conn.App. 234, cert. granted onother issue, 278 Conn. 903(2006); Flynn, J.; Trial Judge— Adams, J.

RULE: “[S]ummaries may be admit-ted provided that the documentson which they are based are available tothe court and opposing counsel.Unavailability of some supporting docu-ments, not due to the fault of the depon-ent, will not bar the admissibility of thesummary.”


FACTS: National Publishing Companypublished low-cost newspaper insertsusing a unique computer system contain-ing individualized instructions for print-ing different inserts for different clients.The instructions were transmitted via theinternet to 13,000 newspapers around theU.S.



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In 1994, several of National’s employ-ees left the company to form a competi-tor. According to National’s owner, theysabotaged National’s computer system onthe way out.

The owner reported the loss toNational’s insurer, The Hartford FireInsurance Company. National hired itsown adjuster to assist with presenting itsclaim to The Hartford, which rejected theclaim. National filed suit against TheHartford, claiming various expenses andbusiness income losses as a result of thesabotage.

National’s adjuster took the stand as anexpert witness and offered a summaryspreadsheet listing 285 operating expensesand 48 extra expenses. The spreadsheetwas presented to the jury during theadjuster’s testimony using an enlarge-ment. It was apparently treated by counseland the court as a demonstrative exhibitand used without objection. The summa-ry was marked as a full exhibit and sentinto the jury room, but the jury wasinstructed not to use the summary spread-sheet for substantive purposes.

The jury returned a verdict awardingdamages in the amount of $1,338,848.16.The defendant appealed. The AppellateCourt affirmed.

REASONING:

“We are frank to admit that we do notunderstand why the spreadsheet wasnot admitted for substantive purposeswhen § 10-5 of the Connecticut Codeof Evidence and a line of cases, ofwhich Brookfield v. Candlewood ShoresEstates, Inc., 201 Conn. 1, 513 A.2d1218 (1986), is a part, state that sum-maries may be admitted provided thatthe documents on which they arebased are available to the court andopposing counsel. Unavailability ofsome supporting documents, not dueto the fault of the proponent, will notbar the admissibility of the summary.”

94 Conn. App. at 264-65.

“When facts sought to be proved are ofso voluminous or complicated a char-acter that their introduction wouldoccupy much time, and might be diffi-cult to understand by themselves, andthese many facts are to be proved forthe purpose of drawing a conclusionfrom them, the court may permit awitness who is qualified upon the sub-ject of investigation, and has made theinvestigation, to express an opinion

without giving the details on whichthe opinion rests. The opinion of theexpert as to whether a building is fin-ished in a workmanlike manner, oraccording to certain plans and specifi-cation [for example], is admissible forthe same reason as is the opinion of theaccountant as to the result of his exam-ination of the books of account, or asto schedules taken from the books, ver-ified by him. . . or as summaries oraverages from voluminous or compli-cated records are admitted.”

94 Conn. App. at 266-67, quotingSchaefer, Jr., & Co. v. Ely, 84 Conn.501, 509 (1911). (Emphasis added).

COMMENT: This case is useful insupporting the admissibility of life careplans.

Expert Disclosures

FACT THAT OPPONENTHAS DISCLOSED EXPERTMAY NOT SUFFICE TOPERMIT USE OF EXPERTAT TRIAL — CAVALLAROV. HOSPITAL OF SAINTRAPHAEL, 92 Conn. App.59, cert. denied, 276 Conn.926 (2005); Schaller, J.; TrialJudge — Lager, J.

RULE: Normally, where one party hasdisclosed an expert witness who has beendeposed or whose report has been dis-closed, either party may call the expert attrial. However, it is within the court’s dis-cretion to preclude the expert, absentproper disclosure by the proponent.

FACTS: See § 7-2, supra. When plain-tiff returned to the hospital 11 monthsafter the allegedly negligent blood transfu-sion, he was admitted by a pulmonologist.He died two days later.

Apparently, the pulmonologist origi-nally told the decedent’s wife that hecould not answer the question of whetheror not the transfusion was a substantialfactor in causing her husband’s deteriora-tion and death. The plaintiff, therefore,did not disclose him as an expert.

The defendant, apparently believingthat the pulmonologist would not con-nect the death to the transfusion, dis-closed him as an expert, specifying that hewould testify on causation.

Thereafter, plaintiff ’s counsel spokewith the pulmonologist, who indicatedthat he had changed his opinion and nowbelieved that there was a causal linkbetween the improper transfusion and the

deterioration and death of the decedent.The plaintiff disclosed him as an experteight days after the case had been called infor jury selection. The defendant movedto preclude the pulmonologist from testi-fying.

The plaintiff claimed that, since thedefendant had already disclosed the pul-monologist, the plaintiff was not evenrequired to do so. Therefore, the defen-dant could not complain about late dis-closure. The trial court precluded the tes-timony. The Appellate Court affirmed.

REASONING:

“We disagree that those cases cited bythe plaintiff support her broad propo-sition that once ‘one party discloses anexpert, the opposing party is entitledto use that expert in its case-in-chief.’Instead, we conclude that the limitedholdings of those cases are inapplicableto the facts of the present case, and,therefore, do not excuse the plaintiff ’sfailure to comply with the require-ments of Practice Book §13-4 or allowthe plaintiff to escape the sanctionimposed by the court.”


COMMENT/PRACTICE NOTE: Tobe safe, disclose your opponent’s expert assoon as you know you intend to call himor her.

The earlier cases cited by the plaintiffdid in fact support her proposition thatshe was entitled to use the expert after hehad been disclosed by the defendant. Theopen question is whether Cavallaro is anaberration to be confined to its facts, orwhether, as the court implied, the earliercases will be confined to their facts.

AUTHOR OF MEDICALREPORT MUST BE DIS-CLOSED AS EXPERT —SABATASSO V. HOGAN,91 Conn. App. 808, cert.denied, 276 923 (2005);Flynn, J.; Trial Judge —Flanagan, John C., J.

RULE: The rules regarding expert dis-closure are not relaxed when a party offersevidence in the form of reports instead oftestimony.

FACTS: See §6-7, supra. Plaintiffoffered medical reports without havingdisclosed the expert authors of the reportspursuant to the Practice Book. The trialcourt excluded the reports. The AppellateCourt affirmed.



REASONING: The plaintiff main-tained that she was not required to dis-close these experts because their opinionswere in the form of reports rather thanlive testimony. The Appellate Courtemphatically rejected this argument:

“If we were to adopt the plaintiff ’sargument... that no disclosure is neces-sary, an offering party who had notproperly disclosed a medical expertthat he or she wanted to call to the wit-ness stand could circumvent the failureto disclose simply by submitting theexpert’s medical reports, which wouldnot be subject to cross-examination,deposition or rebuttal reports becausethe other party would not know aboutthe evidence until it was offered duringtrial. This just does not make sense,especially where our rules of practicerequire full disclosure.”


LATE DISCLOSURERESULTS IN PRECLU-SION — MCVERRY V.CHARASH, 96 Conn. App.589 (2006); Peters, J.; TrialJudge — Alvord, J.

RULE: Repeated failure to complywith expert disclosure deadlines mayresult in the preclusion of experts, eventhose disclosed 13 weeks before trial.

FACTS: After plaintiff missed fourdeadlines for disclosing his experts, thecourt entered a scheduling order requiringdisclosure by June 15, 2003 for a trial onSeptember 15, 2004. Plaintiff did notmeet the new deadline. Defendant movedfor a nonsuit. The court granted a furtherextension until July 31, 2003. Again, theexperts were not disclosed.

On May 24, 2004 the defendant fileda motion to preclude expert testimony.Plaintiff moved for an extension of timeand on June 18, 2004 disclosed fourexperts. The defendant’s motion to pre-clude was granted and summary judg-ment entered for the defendant. TheAppellate Court affirmed.

REASONING: The Appellate Courtfound that disclosure 13 weeks before trialin a medical malpractice case prejudicedthe defendant. Although a continuance ofthe trial date would have removed thisprejudice, the Appellate Court declined tosecond-guess the trial court’s decision notto grant a continuance. Finally, the inad-

vertent nature of the discovery orderviolations was found insufficient to makethe sanction disproportionate to theviolation.

Although some of the delay could beattributed to the fact that the lawyer whowas working on the case unexpectedly andsuddenly died, that did not explain all ofthe delay. “We agree with the trial court’sconclusion that, while unfortunate,Airone’s death, did not constitute goodcause for the delay.”


Peremptory Challenges

IMPROPERLY GRANTINGADDITIONAL CHAL-LENGES TO ONE SIDEHARMLESS ERROR —CARRANO V. YALE-NEWHAVEN HOSPITAL, 279Conn. 622 (2006);Vertefeuille, J.; Trial Judge —Mottolese, J.

RULE: An award of additionalperemptory challenges to one side is notpresumed harmful.

FACTS: Carrano was admitted toYale-New Haven Hospital on March 12,1992 for treatment of a necrotic fingerand for a colonoscopy to evaluate hisCrohn’s disease. He was discharged ninedays later, and died of pulmonary edemaearly the next morning.

Plaintiff sued five defendants. The trialcourt appears to have concluded that thefive did not have a unity of interest2, andawarded 20 challenges to the defense. Thetrial judge then decided, based on consid-erations of fairness, to increase the plain-tiff ’s peremptory challenges to the samenumber. The defendants did not requestadditional challenges, and at the end ofjury selection, still had peremptory chal-lenges left. The jury returned a verdict of$3.4 million.

The Appellate Court, whose decision3

was under review, had found this to beharmful error, and reversed, interpretingKalams v. Giacchetto, 268 Conn. 244(2004) as granting the trial court broaddiscretion to award additional challengesonly when both sides receive them. TheAppellate Court had found error based inpart on that fact that the trial court hadawarded additional challenges only to theplaintiff, and went on to find that theadditional challenges granted to the plain-

tiff fundamentally altered the composi-tion of the jury, and that the defendantswere harmed as a result, necessitating anew trial.

On certification, the Supreme Courtdeclined to address whether or not thetrial court had discretion to award theadditional challenges, concluding thateven if the award was improper, the errorwas harmless.

REASONING:

“We do not intend to imply. . . thatevery award of peremptory challengesnot required by law is harmless. If oneparty is permitted to exclude addition-al jurors, but another party who per-ceives a need to exclude additionaljurors is denied an equal opportunityto do so, harm may result. As a thresh-old to demonstrate such harm, howev-er, the complaining party must exhaustall of her own peremptory challengesand request additional challenges.”

279 Conn. at 639 (footnote omitted).

“The defendants in the present casedid not exhaust their peremptory chal-lenges, and did not request additionalchallenges. Moreover, the defendantsdo not claim that any individual jurorwho served on the jury was biasedagainst them, or that they were preju-diced by protracted jury selection pro-ceedings. The record therefore doesnot support the defendants’ claim thatthey suffered harm as a result of thetrial court’s award of additional chal-lenges, and, accordingly, even if wewere to assume arguendo that theaward was improper, a new trial is notrequired.”

279 Conn. at 641-42 (footnote omit-ted).

COMMENT: Justices Zarella andBorden dissented, stating that they“would subject a disproportionate awardof peremptory challenges to automaticreversal.”

279 Conn. at 667.

_____2 Jury selection took place before October 1,2001, when the amendment to the statutedefining unity of interest took effect.

3 See 84 Conn. App. 656 (2004).



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Sufficiency of Evidence

DOCUMENTARY EVI-DENCE NOT REQUIREDTO ESTABLISH ECO-NOMIC DAMAGES —EVIDENCE MUST BEPRESENTED ON PER-SONAL LIVING EXPENS-ES AND INCOME TAXES— CARRANO V. YALE-NEW HAVEN HOSPITAL,279 Conn. 622 (August 22,2006); Vertefeuille, J.; TrialJudge — Mottolese, J.

RULES: (1) Plaintiff is not required toproduce documentary (as opposed tooral) evidence to prove economic dam-ages.

(2) To prove a claim for loss of futureincome in a wrongful death case, theplaintiff must present evidence regardingthe decedent’s personal living expensesand income taxes.

FACTS: See Peremptory Challenges,supra. In this wrongful death medical mal-practice case, the decedent had worked forSikorsky Aircraft but had become totallydisabled before his death at the age of 37.His wife testified that at the time of hisdeath he was receiving a net amount ofbetween $140 and $146 per week in dis-ability payments.

The jury’s award included approxi-mately $738,000 in economic damages tothe estate — $50,000 in funeral costs, and$733,000 in lost future income.

The Appellate Court, whose reversalwas overturned by the Supreme Court,had held that the plaintiff ’s failure to pres-ent documentary — as opposed to testi-monial — evidence of economic damageswas insufficient as a matter of law.

The Supreme Court disagreed withthis conclusion but found the evidencepresented by the plaintiff insufficient tosupport the award for net lost futureincome because there was no evidenceregarding the decedent’s personal livingexpenses and income taxes.

REASONING: The Supreme Courtheld that documentary evidence was notrequired to establish the amount of lostdisability income. The court rejected thedefendant’s claim that since the plaintiffcould easily have presented documentaryproof in the form of a check stub, taxreturn, or statement of benefits, the wife’sunsubstantiated testimony was notenough.

The court pointed out that the absenceof corroborative evidence went to theweight of the evidence but did not makeit insufficient as a matter of law.“Ordinarily, in civil cases the testimony ofa single witness is sufficient to establishany fact, including the amount of dam-ages, unless more proof is required bystatute, even though the witness is a partyor interested in the action.”

279 Conn. at 646. However, the plaintiff was required to

prove net lost income. The failure of theplaintiff to present any evidence regardingthe decedent’s personal living expensesand income taxes on the lost earnings wasfatal to the lost future income claim:

“In the present case, the plaintiff failedto present any evidence, expert orotherwise, concerning the probableamount of the decedent’s income taxesand personal living expenses. The juryonly could speculate as to the amountof taxes the decedent would have paidon his gross earnings and the amountof money necessary to support thedecedent. Because the plaintiff ’s dam-ages are measured by the decedent’s netearnings, and because the evidence wasinsufficient to permit the jury to deter-mine the amount of the decedent’s netearnings, we conclude that the plaintiffpresented insufficient evidence of eco-nomic damages.”

279 Conn. at 651.

The Supreme Court therefore reducedthe award by the amount of damagesawarded for the lost income stream.

PRACTICE NOTE: Hire an econo-mist.

Final Argument

MULTIMEDIA PRESEN-TATION DURING FINALARGUMENT APPROVED— STATE V. SKAKEL, 276Conn. 633 (January 24,2006); Palmer, J.; Trial Judge— Kavanewsky, J.

RULE: A litigant may combine tape-recorded comments, photographs, andtranscript in an audio-visual display inclosing argument, as long as this is notdeceptive.

FACTS: See § 8-9, supra. During theState Attorney’s closing argument heplayed approximately two minutes of a

32-minute tape-recorded interview withthe defendant that had been played forthe jury in its entirety during the case. Asthe tape was played a transcript of theinterview appeared on a screen. When itconcluded, after a pause, the same textappears on the screen with one phrase inlarger font and in red letters.

During another segment where thedefendant talked about the victim, a pho-tograph of her smiling appeared in thelower right-hand corner of the screenbeneath the written text. Then a photo-graph of the victim’s body lying under apine tree, followed by another photographof the body closer up, showing her badlybeaten.

The trial court allowed the presenta-tion. The Supreme Court affirmed.

REASONING:

“As we previously have stated, ‘counselis entitled to considerable leeway indeciding how best to highlight or tounderscore the facts, and the reason-able inferences to be drawn therefrom,for which there is adequate support inthe record. We therefore never havecategorically barred counsel’s use ofsuch rhetorical devices, be they linguis-tic or in the form of visual aids, as longas there is no reasonable likelihoodthat the particular device employedwill confuse the jury or otherwise prej-udice the opposing party. Indeed, toour knowledge, no court has erected aper se bar to the use of visual aids bycounsel during closing arguments. Onthe contrary, the use of such aids is amatter entrusted to the sound discre-tion of the trial court.’ State v. Ancona,supra, 270 Conn. [568,] 598 [(2004)].

276 Conn. at 767.


about how the bestwitnesses can giveanswers to ques-tions — on bothdirect and cross-examination - thatare responsive butmake the pointsthey came to courtto make.

Rule 6: It’s like getting to CarnegieHall. Always do practice arguments. Themore you think you’d rather not becausethey make you nervous, or you’re too busy,or you don’t want to mess with your mojo,or you don’t need it — the more you needit. There’s nothing like practice. You willfeel more comfortable; you will knowwhich moves work and which don’t; youand your moot court judges will think ofissues and answers you never would havethought of otherwise; you will be moreprepared. Where to get judges? Ask yourpartners; ask your friends; call someone inCTLA; ask non-lawyers (because youneed to have an argument non-lawyerscan understand); ask your mother. Ifthere’s a budget, pay people to be judges;if there isn’t, you’ll owe them one, and itturns out you’ll learn a lot when it’s yourturn to be a practice judge.

Rule 7: Have a mantra. Conventionalwisdom says that you need to have ananswer for all of the court’s questions. Amantra is a single capsulization of yourargument that you can use as the answerto many questions, especially all thosehypotheticals you can’t possibly think ofin advance. It differs from a trial themebecause it states a legal test or standard. Ina recent appeal from a summary judgmentfor police officers in an excessive forcecase, we boiled forty pages of briefingdown to the mantra that police may notuse more force than is necessary to accom-plish their legitimate law enforcementpurpose. So when the court asked ques-tions like, what if the officers thought thesuspect was going to run away, or pull agun, we were able to crisply distinguishthose situations, and to reinforce ourargument, by repeating our mantra.

Rule 8: Use the record. It’s magic. Ifyou say to the court, “please look at thestatute/testimony/pleading/exhibit/docu-

Ten Unconventional Rulesfor Appeals

Most of the writing I’ve seen on appel-late advocacy doesn’t offer much beyondthe familiar bromides. On briefs: “writeclearly”; “the statement of facts is critical”;“just raise your best issues.” On oral argu-ment: “be candid”; “don’t read your argu-ment”; “answer the judges’ questions.”Etcetera. But there is a lot you can learnabout being an effective appellate advo-cate that goes beyond the conventionalwisdom. To get you started, here are myown Ten Rules of Appellate Advocacy.

Rule 1: Don’t stop thinking abouttomorrow. (It’ll soon be here.) Oftentrial lawyers try cases as if there were nosuch thing as an appeal. But law isn’t likesports, where it’s a mistake to look aheadto your next opponent. It’s more like amilitary campaign, where you don’t wantto win the battle but lose the war. Thevalue of a verdict — for either side —varies enormously with its vulnerabilityon appeal. In every trial, if you’re aggres-sive you will have at least one point youcan win with the trial judge that will enor-mously increase your vulnerability onappeal. You need to be able to recognize itand back off if it’s not critical for yourcase. And in every trial, if you’re alert youwill have at least one point you can losewith the trial judge that will give you agreat appellate issue; you need to be ableto recognize that too — or, even better, beable to create it. How? First, think aboutit; put it on your radar screen. Ask your-self, do I really need to win this point?What are the costs if I lose and the risksif I win? Second, talk during and beforethe trial to someone who actually likesappeals. There are such people, andthey (ok, we) all love to kibbitz. They’llbe happy to hear from you before the dieis cast.

Rule 2: Get over it, or, You’re not inOz anymore. The appeal is a new and dif-ferent case. Appeals are like The Wizard ofOz in reverse. You are moving from thecolorful world of the trial to a very differ-ent — but equally compelling —drama inblack and white. That’s why it can be adisadvantage to have tried the case. WhenI hear a lawyer at oral argument talk about

some really exciting part of the trial or,worse, tell the court, “you had to bethere,” my heart sinks. Yes, the facts arealways critical, but appeals have their ownlogic, and facts are important only as theydrive the kind of issue that concerns anappellate court, not what would movea jury.

Rule 3: Control the middle. Likemost people, courts don’t like to go out ona limb. Make sure you’re not the one put-ting them there. Here’s how: For manyissues, you can imagine four positions: callthem extreme on your side, modest onyour side, modest on the other side andextreme on the other side — or just A, B,C, D. For example, A) the court’s rulingwas per se reversible error; or B) the court’sruling was wrong or harmful because ofparticular facts in this case; or C) underthe circumstances of this case the court’sruling wasn’t so bad; or D) the court’s rul-ing was completely correct. If you can givethe court a plausible A, the court will bemore comfortable ruling in your favor byfinding only a relatively modest B. If youdon’t have both an A and a B, and thedefendant has a C and D, then the inter-mediate position becomes C — and if thecourt picks it, you lose.

Rule 4: You gotta believe. If you gointo an argument thinking there is a ques-tion that will blow you out of the water,you haven’t thought hard enough. It’s yourjob to put together an argument you findconvincing, and that means figuring outwhy you should win despite that problemyou are most afraid the court might raise.In fact, your job really begins when you’vethought of the best possible argument theother side can make — whether or notthey’ve thought of it themselves. Whenyou figure out why their best argument iswrong, you know you should win and oralargument is (almost) as simple as tellingthe court why.

Rule 5: It’s not a speech. Oral argu-ment isn’t like opening statement or sum-mation: it’s like cross-examination — andyou’re the witness. Judges don’t want tohear speeches; they are much more inter-ested in answers to their questions. Asevery trial lawyer knows, good witnessesfigure out how to answer questions andstill say what they want to say. Think

MESSAGE FROM THE EDITOR

By David Rosen


ment] on page 152 of our appendix”the judges will look there. For thatmoment at least, you will be in control.Give them time to find the reference; ifthey can’t find it, tell them, “that’s thethicker blue volume.” Then tell themwhy that document means that youwin. It is a golden opportunity to setthe agenda. It also works great onrebuttal: “Mr. X said ___. The actual___ is in the record. I’d like to call yourattention to page 152 of the appendix,”etc.

Rule 9: Keep your head up. Youare talking to judges who are interestedin your case. They want to hear aboutit — really they do. And they really dowant to be fair and to follow the law.And unlike a jury, they will tell youwhat concerns them, and you will havea chance to address their concerns.Even if they are beating you up, hangin there. Behave as if they will agreewith you when you explain; maybethey, or some of them will.

Rule 10: Rebut with bullets. Yourrebuttal begins with the words, “just 1(or 2, or 3, no more than 4!) points.”Then say the points, calling the court’sattention to the record reference or thecase that the appellee missed, or thatanswers Judge X’s question. No speech-es: the court is tired of speeches. As amatter of fact, they’re probably ready tobe done with the argument, but if theythink you have something specific totell them, and they know that’s allyou’re doing, they’ll pay attention.

Those are some of the rules I try tolive by. They really work; try themyourself. And here’s one more.

Bonus Rule: After the argument— before you have packed up yourbriefcase — go right over to youradversary and shake his or her hand— warmly. Offer your congratula-tions. Mean it. Why? Because you werein this together. Because a judge or lawclerk might be watching. Because youmay meet that lawyer again. Becauseit’s good karma.

By Kathleen L. Nastri, Associate EditorCTLA

Foru

m VERDICT ANDSETTLEMENTREPORT

If possible, please submit your verdictsand settlements on a 3.5” floppy disk in Word97 format, together with a hard copy.

Several readers have mentioned that theverdicts and settlements reported would bemore helpful if we included in our report thedate on which the case was resolved and theinsurance carrier, if any. Therefore, when yousend your reports in, please do your best toinclude this information.

JURY VERDICTAward of $38,000 ($3,000 EconomicDamages); Offer Before Trial — $0;

Plaintiff Found 25% Comparative FaultThe case of Dorris Powell v. Walmart,

filed in the Judicial District of NewLondon, involved a premises liabilityclaim against Walmart Corporation con-cerning falling merchandise from a negli-gently constructed display. The large,heavy and bulky boxes of the display werestacked by Walmart upon a higher shelfand none were placed below for the saferemoval by consumers. Plaintiff wanted topurchase one of these boxes and nonewere stocked on the lower shelves. Theplaintiff looked for a store employee tohelp her remove the merchandise. Noemployees were working in that depart-ment at the time of the incident. Whilethe plaintiff attempted to remove the boxfrom the higher shelf, another box fellfrom the same display and hit her in thehead, causing a concussion and soft tissueinjury to her neck. Walmart took a no-payposition throughout the trial.

One of the issues during the trial wasan allegedly forged witness statement ofan 11-year-old girl. Walmart claimed thestatement was taken as a usual part oftheir investigation policies. The little girltestified that the Walmart witness state-ment was not hers, she never gave a state-ment and she never used technical wordscontained in the statement like “hipshelf ” and “riser.” She further testifiedthat she did not sign the statement as wasshown on the paper. In fact, whoeveractually forged her signature even spelledher name wrong.

Also at issue during the trial was a storesurveillance tape that was disclosed on theeve of trial by Walmart only after theplaintiff filed a supplemental Motion toCompel. The tape was clearly edited, yetWalmart denied editing the tape in anymanner. The tape began with real timefootage, but then shifted to a slow-motion, frame by frame speed with manyhelpful frames missing. The result wassurveillance footage that showed a boxfalling (but not clear from where), a boxpossibly hitting the plaintiff, and then abox disappearing after it hit the plaintiff.All first aid administered to the plaintiffin the same aisle was not shown on thetape when it should have appeared on thetape. At trial, a Walmart Loss Preventionemployee repeatedly testified that hecopied this tape but did not edit it in anymanner. This denial caused one juror toaudibly gasp in despair. It was establishedthat Walmart records continual footagefrom approximately 125 cameras in theWaterford Walmart Superstore and thatthis employee was asked to “copy” selectedfootage from a master tape. After Walmartchose the footage it wanted, Walmartmanagement apparently took the mastertape. It is believed the tape was eitherdestroyed or sent to the Home Offices inArkansas. Even when served a subpoenaduces tecum for “all footage of the event,”the master tape was not produced.

Defendants challenged the significanceof plaintiff ’s injuries. Plaintiff claimed a5% permanent cervical impairment.Defendant themed the plaintiff ’s case a“pleasant fiction” in the opening state-ment. The plaintiff opened claiming thiswas a case of putting “profits over safety”.Walmart’s written protocol was presentedshowing they violated their own safe stack-ing procedure and the jury was asked to“tell Walmart what you think about theirbehavior”. The focus of the case was con-tinuously upon Walmart. The first witnessand last were Walmart employees. Thejury returned a verdict of $35,000 non-economic damages and just $3,000 eco-nomic damages.


VERDICT AND SETTLEMENT REPORT

Submitted by James Hall, IV ofTrebisacci, Hall & Associates, Pawcatuck.

JURY VERDICTMotor Vehicle Accident; 46-Year-Old

Female; 5% Impairment Lumbar Spine;Verdict of $100,335

In the case of VanKirk v. Tyliszczak, etal, filed in the Superior Court for theJudicial District of Fairfield at Bridgeport(Docket No. CV-04-0409328), the juryreturned a verdict on February 9, 2006 for$100,335, after a two day trial. The trialwas held before Edward Stodolink, JTR.

The case arose out of a rear-end colli-sion in Stratford on February 20, 2002.The plaintiff ’s vehicle was a total loss. Hertotal medical specials were $12,160.40, allof which had been paid by the defendants’carrier directly and through her own med-ical payments coverage. There were no lostwages and no claim of impaired earningcapacity. The plaintiff treated withOrthopaedic Specialty Group of Fairfieldand was diagnosed with a muscular liga-mentous sprain of the lumbar spine. Alldiagnostic tests were negative other than asoft tissue injury. She was assigned a 5%impairment by her treating physician andan IME confirmed a 3-5% impairment.

During the course of the trial, theplaintiff offered testimony via videotape ofone of her treating physicians, MichaelSaffir, M.D., who opined that the plaintiff ’slow back pain was likely to be permanentdespite ongoing treatment. Testimony fromthe independent medical examiner, JeroldPerlman, M.D., was also offered via video-tape. The focus of the defense was the softtissue nature of the injury and three sub-sequent motor vehicle accidents that theplaintiff had disclosed at her depositionabout fifteen months before the trial. Perthe plaintiff ’s testimony, none of the sub-sequent accidents resulted in any injuries,exacerbations, flare-ups or treatment.

The plaintiff had filed an Offer ofJudgment in the amount of $35,000 with-in eighteen months of the filing of thecomplaint. The last offer from the defen-dants’ carrier the day before the trial was$23,000. The jury deliberated for about90 minutes before returning a verdict forthe plaintiff for $14,160 in economic and$86,175 in non-economic damages for atotal of $100,335. The defendants areentitled to a collateral source set-off in theamount of $11,541.53, resulting in a netaward of $88,793.47, on top of which theplaintiff is entitled to 24 months of Offer

of Judgment interest, leaving a final totalof $110,103.90.

Encompass (Allstate) was the carrier forthe defendants.

Submitted by Andrew W. Skolnick, Esq.of Sinoway, McEnery & Messey, P.C., NorthHaven.

JURY VERDICTMotor Vehicle Accident;

42-Year-Old MaleVerdict of $505,521.70

On November 22, 2005, a juryreturned a verdict against the HartfordInsurance Company for $384,438.98.Including offer of judgment interest of$121,082.72, the total amount of the ver-dict was $505,521.70. Upon the court’sdenial of the defendants’ motion forremittitur, the case settled for a confiden-tial amount.

The case involved a 42-year-old manwho was rear ended in September of 2000.As a result of the collision, he was diag-nosed with a herniated disc in his lowerback and three disc herniations in hisneck.

On June 29, 2001, he was involved inanother motor vehicle collision, which wasthe subject of the lawsuit. There were noradiographic findings indicating a differ-ence in the plaintiff ’s condition betweenthe June 29, 2001 collision and theSeptember, 2000 collision. The plaintiff,however, testified that the pain in his neckworsened significantly, and the pain in hislower back (which resolved from theSeptember, 2000 collision) had returned.The plaintiff testified that as a result of theJune 29, 2001 collision, he was forced tochange the course of his employment froma limousine driver to a limousine dispatch-er, he could no longer run, and he experi-enced post-traumatic stress disorder.

The plaintiff filed an offer of judgmentfor $60,000. The defendants offered$20,000 to settle the case. On the eve oftrial, the defendants took their offer offthe table.

Submitted by Eric G. Blomberg, Esq. ofBerkowitz & Reinken, Stamford.

JURY VERDICTMotor Vehicle Accident;

31-Year-Old Woman;10% Impairment Lumbar Spine;

Pre-Existing Degenerative Disc Disease;29-Year-Old Man; 14% Impairment

Cervical Spine, 8% ImpairmentLumbar Spine

In the case of Alba Cartagena andRoberto Delgado v. Johanna Makles andRalph Desena, filed in the Superior Courtfor the Judicial District of New Britain atNew Britain (Docket Number CV05-4003186), the jury returned a verdict of$7,104.00 in economic damages and$75,000.00 in non-economic damages infavor of Ms. Cartagena and $6,444.00 ineconomic damages and $75,000.00 innon-economic damages in favor of Mr.Delgado. The jury assessed liability on thepart of the defendant, Makles, at 60% andas against the defendant, Desena, at 40%.

The defendant, Johanna Makles, wasinsured by The Hartford and the defen-dant, Ralph Desena, was insured byProgressive. During settlement negotia-tions the parties were $1,000.00 apart.The plaintiffs’ final demand was$36,000.00. The final offer of the insur-ance companies was $34,000.00. In aneffort to resolve the cases, the plaintiffssuggested a settlement in the amount of$35,000.00. Progressive offered an addi-tional $500.00, but the Hartford wouldnot do so.

Roberto Delgado was driving the car,with Alba Cartagena as his passenger. Hestopped at a red light. When his lightturned green and he proceeded, he had tostop suddenly for the defendant, Makles,who had run a red light on the intersect-ing street. When he did so, he was rear-ended by the defendant, Desena. Propertydamages was slightly in excess of$1,000.00.

The plaintiffs’ treatment was renderedfor the most part by Dr. George Costanzo,D.C. of Southington, CT. They were alsoseen by a neurologist and physiatrist at thedirection of Dr. Costanzo. Mr. Delgado wasdiagnosed with post-traumatic headachesdue to cervical strain and lumbar strain.Ms. Delgado was diagnosed with abulging disc superimposed on degenera-tive disc disease. Their treatment consistedmainly of chiropractic. Dr. Costanzo testi-fied at trial for the plaintiffs. The defen-dants did not offer an expert.

The plaintiffs were represented byAttorneys Paul M. Iannaccone and DavidW. Cooney of RisCassi & Davis, P.C. Thedefendant, Johanna Makles, was repre-sented by Tom Kyzivat of the Law Officesof David Mathis and the defendant, RalphDesena, was represented by John Hanks ofNoble, Young & O’Connor.

Submitted by David W. Cooney Jr., Esq.and Paul M. Iannaccone, Esq. of RisCassi &Davis, P.C., Hartford.


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SETTLEMENTMedical Malpractice:

Injury to Common Bile Duct;Settlement of $150,000

In the case of Cheryl Lisk v.Balasubramanium Dandapani, M.D., filedin the Superior Court for the JudicialDistrict of Tolland at Tolland (DocketNo. CV-01-0076239-S), the parties set-tled five months after the complaint wasfiled for $150,000.

On February 14, 2000, 53-year-oldCheryl Lisk underwent gallbladderremoval surgery at Rockville GeneralHospital by the defendant. During theprocedure, the defendant injured thepatient’s common bile duct. This firstbecame evident in the days following theplaintiff ’s discharge when she becamejaundiced. She returned to the hospitaland the defendant performed alaparoscopy, which failed to identify theinjury. The plaintiff was referred toHartford Hospital where surgery bothdiagnosed and repaired the common bileduct injury.

For approximately six months there-after, the plaintiff wore a bile bag and lost38 pounds. At the time the complaint wasfiled, the plaintiff had made a substantialrecovery and her damages were limited tothe post-repair surgery, scarring and inter-mittent numbness to a portion of herabdomen and difficulty sleeping. Therewas no wage loss and the plaintiff ’s med-ical bills were paid by her health insurer.

Following the exchange of writtendiscovery responses, including requests foradmissions in which the defendant admit-ted that he “injured” the plaintiff ’scommon bile duct, the parties settled for$150,000.

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

VERDICTMedical Malpractice;

27-Year-Old Single Female;Verdict of $308,834

In the case of Patricia Collins v. DanielScoppetta, M.D., filed in the SuperiorCourt for the Judicial District of Hartfordat Hartford (Docket No. CV-03-0822784-S), the jury returned a verdict of$350,000, less remittitur of economicdamages in the amount of $35,435 andcollateral source offset in the amount of$5,731 for a net verdict of $308,834. Thebreakdown was $50,000 for economic

damages and $300,000 for non-economicdamages.

The plaintiff, Patricia Collins, present-ed to defendant, Daniel Scoppetta, M.D.,a general surgeon, with an inguinal hernia.Defendant determined that the hernianeeded to be repaired surgically. OnSeptember 11, 2001, defendant performedsurgery on the plaintiff. Following the sur-gery, plaintiff was diagnosed with nerveentrapment of the lateral femoral cuta-neous nerve, resulting in continuing painand thigh numbness.

The plaintiff alleged that during theplacement of the mesh used in the repair,defendant placed tacks onto or into thelateral femoral cutaneous nerve, causingentrapment. As a result, plaintiff sustaineda permanent nerve injury with continuingpain and numbness in the thigh.

The defendant argued that his care ofplaintiff fell within all acceptable stan-dards and the injury was one of the risks ofthe surgery. Defendant also argued thatthe plaintiff ’s leg injury was caused byinsufflating the surgical site with CO2under pressure.

The last demand was $200,000; therewas no offer. The insurance carrier wasCMIC.

The plaintiff ’s experts were MitchellFrost, M.D., Rockville, MD (general sur-geon), Mark A. Reiner, M.D., New York(general surgeon), and Robert L. VanUitert, M.D., North Adams, MA(neurologist).

Submitted by Kevin C. Ferry, Esq.,Hartford.

VERDICTMedical Malpractice; Failure to Timely

Diagnose Colon CancerVerdict of $832,500.00

In the case of Theresa Lombardo v. JamesGuthrie, M.D., filed in the Superior Courtfor the Judicial District of Stamford atStamford (Docket No. CV-03-0201245-S(X05)), a jury returned a verdict in favorof the plaintiff in the amount of$1,110,000.00, which was reduced by25% comparative negligence for a net ver-dict of $832,500.00.

The plaintiff was 78 years old at thetime of the trial and treated with thedefendant James Guthrie, a colorectal sur-geon, for her colon and rectal needs from1978 until 2001. The defendant per-formed routine sigmoidoscopies on theplaintiff on each visit, but failed to orderor perform a colonoscopy and/or at mini-mum a barium enema to look at her entire

colon, despite the diagnosis of a smallbenign polyp found during a sigmoi-doscopy in 1985. In 2001, the plaintiffwas diagnosed with Stage III colon cancerresulting in multiple surgeries, recurrentadhesions and hernias. The plaintiffclaimed a decrease in her five-year disease-free survival as a result of the delay indiagnosis.

The defendant Guthrie claimed thatthe plaintiff was advised each visit from1985 to 2001 to have a colonoscopyand/or barium enema, but she refused.The defense produced records and testi-mony from the plaintiff ’s treating physi-cian that he recommended colonoscopyto the plaintiff six years before the ulti-mate diagnosis, but the plaintiff did notundergo the procedure. Three monthsprior to the commencement of trial, thedefendant produced “records” purportingto show that he did make recommenda-tions to the plaintiff regardingcolonoscopy/barium enema, but shedeclined. The validity and authenticity ofthese newly discovered “records” wereaggressively disputed at the time of trial.The defendant failed to produce any wit-ness to corroborate such recommenda-tions were made by the defendant ordeclined by the plaintiff.

The plaintiff called Dr. Maxwell Chait,a gastroenterologist, of Hartsdale, NewYork, who testified as to the standard ofcare with respect to colorectal screeningand surveillance post-discovery of the1985 polyp. Dr. James Vogel, medicaloncologist, of New York City, testifiedthat the majority of colorectal cancersarise from polyps, as well as to the dura-tion of the polyp to cancer sequence. Dr.Vogel testified that, at the time of thediagnosis, the plaintiff had Stage III can-cer and had a 60% five year disease-freesurvival rate. If the lesion had been dis-covered at earlier visits, it would havebeen an earlier stage cancer and/or a non-cancerous lesion with an 85% to 100%five year disease-free survival rate.

The defendant called Dr. Paul Shellito,a colorectal surgeon at MassachusettsGeneral in Boston, who testified that hedid not believe that the defendant violat-ed the standard of care and that it was notpossible with medical certainty to deter-mine one way or another the rate ofgrowth of the lesion and what would havebeen there if earlier tests were done.

Evidence took approximately threeweeks and the jury deliberated for four



days. The plaintiff ’s Offer of Judgmentwas filed at $450,000.00. The defendantmade no offer at the time of trial.

Submitted by Tremont & Sheldon,Bridgeport.

SETTLEMENT34-Year-Old Male;

Work-Related Injury;Mediated Settlement $1,000,000

In the case of Michael Morrissey v.Jesmac, Inc., et al, filed in the SuperiorCourt for the Judicial District of NewLondon at Norwich (Docket No. CV-0111896-S), the parties settled for$1,000,000. The plaintiff, MichaelMorrissey, worked for Sturdy Concrete ata construction site at the MashantucketPequot Reservation. The general contrac-tor was the defendant, C.R. Klewin, Inc.Another contractor was the defendant,Jesmac, Inc.

On December 8, 1994, during thecourse of his employment, Mr. Morrisseywas kneeling on the ground, picking upsome brackets from forms used to pourconcrete. He was kneeling next to one ofthe concrete columns which had beenpoured the previous day. He was struckon the head by a metal stud, which fellfrom an uncompleted wall on the secondlevel of the building, directly above him.The stud weighed approximately tenpounds. Fortunately, it struck MichaelMorrissey on the helmet he was wearing.The stud left a gouge in his helmet. Mr.Morrissey was not rendered unconsciousas a result of the blow, but was dazed. Hecould not remember being hit by the stud.He has no memory of the events immedi-ately before being hit by the stud to a timeshortly after the stud hit him, when hewas being helped up by a fellow workerfrom the ground.

The defendant, Jesmac, Inc., wasresponsible for erecting the studs, the typeof which struck the plaintiff in the head.None of its employees admitted to seeingthe stud fall. The plaintiff claimed thatthe stud was not properly screwed intoplace in its tracks, and was blown out ofthe wall by the wind.

The plaintiff ’s construction expert tes-tified that it was negligent to place thestud in its track and not screw it down.He also testified that the general contrac-tor, Klewin, was negligent for failing tomake sure that the stud was screwed intothe wall.

The plaintiff suffered an aggravation of

pre-existing degenerative disc disease atC5-6, a lumbar sprain and a traumaticbrain injury as a result of the blow to thehead. He underwent an anterior cervicaldiscectomy and fusion at C5-6 in January,1997. He was left with a 12% permanentimpairment of function of the cervicalspine as a result of his injuries. He has a5% permanent impairment of function ofthe low back as a result of his injuries.

The plaintiff did not complain of per-sonality change or cognitive difficulties forthree years after the accident. When thosecomplaints began to surface, Mr.Morrissey treated with a psychiatrist andunderwent neuropsychological testing.Dr. Robert Novelly, who performed theneuropsychological testing, testified thatMr. Morrissey has a traumatic braininjury, resulting in a 40% permanentimpairment of function of the whole per-son, as a direct result of the cognitive loss-es and personality/emotional symptoma-tology caused by the injuries of December8, 1994.

The workers’ compensation carrier,Aetna, had Mr. Morrissey examined byDr. Kenneth Selig, a forensic psychiatrist.Dr. Selig testified that Mr. Morrissey has atraumatic brain injury and severe depres-sion as a result of the injuries of December8, 1994.

Mr. Morrissey became extremelydepressed after he was diagnosed with atraumatic brain injury. He had multipleadmissions to local hospitals for treatmentof his depression.

Dr. Edward Fredericks, a neurologistwho examined Mr. Morrissey at therequest of Dr. Becker, stated that Mr.Morrissey did not have a brain injury andwas malingering.

The defense disclosed that it would callWalter A. Borden, M.D. as an expert inpsychiatry. Dr. Borden was expected totestify that Mr. Morrissey’s mental condi-tion is not the result of a traumatic braininjury, but rather involves complicatedpsychological problems that are unrelatedto the accident. Dr. Borden did not exam-ine Mr. Morrissey, because plaintiff ’scounsel objected to an examination by Dr.Borden. Dr. Borden’s testimony was goingto be based on his review of the medicalrecords.

The defense also disclosed that itwould call Marc J. Bayer, M.D. as anexpert toxicologist, who was expected totestify that the medications taken by the

plaintiff after December 8, 1994 inter-fered with his mental abilities and affecthis personality.

The defense also disclosed that itwould call Kimberlee J. Sass, PhD, a neu-ropsychologist to testify at trial. Dr. Sasswas supposed to testify that conditionsother than traumatic brain injury havecaused the plaintiff ’s persisting mental,emotional and behavioral signs and symp-toms. Those conditions include a pre-existing personality disorder, psycho-social stressors, and the effects of prescrip-tion medications and illicit drugs. Dr. Sasswas also expected to testify that the plain-tiff ’s treating psychologist and psychiatristdid not properly evaluate him. Dr. Sasswas also expected to testify that the neu-ropsychological test results are invalid.

The defense also disclosed thatThomas N. Byrne, M.D., a neurologist,would testify at trial. Dr. Byrne wasexpected to testify that the plaintiff didnot receive a traumatic brain injury as aresult of the accident.

None of the defense experts examinedthe plaintiff. Their testimony was going tobe based on their review of medicalrecords.

The plaintiff was convicted of posses-sion of heroin, with intent to sell in 1992.The felony conviction would have beenadmissible at trial.

The plaintiff admitted in depositiontestimony that he smoked pot on a regu-lar basis, both before and after the acci-dent.

The case was scheduled for trial com-mencing in July, 2002. The case wasmediated before retired Justice JohnSpeziale in June 2002. The case was set-tled at the mediation.

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

SETTLEMENTMotor Vehicle Accident;Settlement of $810,000

In the case of John Doe v. XYZ Rent-A-Car and B.A. Driver (the identities of theparties are confidential pursuant to a con-fidentiality agreement), filed in theSuperior Court for the Judicial District ofStamford/Norwalk at Stamford, the casesettled during trial for $810,000.

On or about April 28, 1994, atapproximately 3:43 p.m., the plaintiff wasdriving a tractor trailer in the right-handlane of East Putnam Avenue in Greenwich


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approaching the intersection of MeadAvenue. He was driving within the posted35 mph speed limit. The defendant driverwas driving a car owned by the defendantXYZ Rent-A-Car in the left-hand lane onEast Putnam Avenue. The defendant driv-er suddenly and without signaling movedfrom the left lane into the right lanedirectly in the path of the plaintiff ’s trac-tor trailer.

Defendant’s statement to his insurancecompany, given shortly after the crash,stated that when he changed lanes, he wasonly 30 to 40 feet in front of the truckand then the light at Mead Avenuechanged from green to yellow. Defendantsuddenly stopped his car rather thancontinue through the intersection.Defendant’s actions forced the plaintiff toswerve to the right, at which point theright front tire mounted the curb of theroad. The truck crashed into a utility polelocated on the corner of East Putnam andMead Avenues. As a result of the collision,the plaintiff was thrown about the interi-or of his vehicle and struck his head.

As a result of the collision, the plaintiffhurt his neck and back and sufferedheadaches. In addition, the plaintiff wastotally disabled from working. The SocialSecurity Administration determined thathe was totally disabled from the combinedeffect of a number of medical conditionswhich pre-existed the subject crash, but itwas the subject crash that pushed himover the edge. During the pendency ofthis action, the plaintiff ’s wife left himrelocating to Massachusetts and leavinghim to care for their children, 17-year-oldChristine Marie and 11-year-old AubreyJr., who at age 5 suffered a severe strokeleaving him both physically and mentallydisabled.

The plaintiff acknowledged that hesuffered from a number of medical condi-tions, some of which are related to theinjuries that he sustained in this incident.His unrelated medical conditions includ-ed hypertension, colitis, asthma, multiplehernia repair and bipolar disorder. He hadsuffered previous injury to both his neckand back in work- related incidents,which were accepted workers’ compensa-tion claims. The plaintiff was, however,able to return to work and function inmost activities of daily living before theApril 28, 1994 crash, which left the plain-tiff totally disabled and unemployable.

The plaintiff sustained new injuries in

the collision, including a proliferativemyofascial pain disorder. He also com-plained of pain down his right leg andmigraine headaches, which did notrespond to medication. Dr. Elisabeth Post,the plaintiff ’s neurosurgeon, testified thatMr. Davis’ neck, arm and back symptoms,which arose following the collision ofApril 28, 1994, were an aggravation of hispre-existing condition and prevented himfrom working as a truck driver. Althoughthe plaintiff had sustained previous work-related injuries and Dr. Post had offered togive him a period of time off from work,Mr. Davis insisted that he must continueto work in order to maintain the familyhealth insurance so that his disabled soncould receive needed physical therapy. Dr.Post’s office note from a visit on March 17,1994 quoted Mr. Davis: “As long as I canwalk, I have to work.” And he did contin-ue to work successfully up until the crashinvolving Mr. Reeser.

Since the crash of April 28, 1994, theplaintiff gained substantial weight reach-ing approximately 350 pounds, as com-pared to his previous weight of approxi-mately 250 pounds. He underwentbariatric surgery about one year prior tothe case being reached for trial, resultingin a 120 pound weight loss.

The plaintiff was evaluated by RichardSchuster, Ph.D. of New York City forvocational purposes. Dr. Schuster con-cluded that in the absence of the subjectinjury, the plaintiff would have continuedto work in truck driving or other fields.

Plaintiff ’s life expectancy was 36.1years. No disability ratings were requestedas the nature of the premorbid conditionmade comparing potential ratings of littleuse. Rather, the plaintiff prepared the caseas one involving functional disability andloss of earning capacity.

Lost earnings and earning capacitywere calculated by Gary Crakes, Ph.D.,based upon the premorbid work capacityestablished by Dr. Schuster. Dr. Crakesdetermined that the loss was $691,000 ifthe plaintiff was totally disabled and$497,000 if he retained some earningcapacity.

The plaintiff ’s medical expenses were$112,000, including the bariatric surgeryand complications. Without the bariatricsurgery, medical expenses were approxi-mately $38,000.

Submitted by Stewart Casper, Esq. ofCasper & de Toledo LLC, Stamford.

SETTLEMENT61-Year-Old Male

Delay in Diagnosis of Colon Cancer,Resulting in Metastatic

Adenocarcinoma of the Rectum WithLiver Metastasis

Settlement of $1,900,000.00In the case of John Doe v. Internist (“Dr.

I”), filed in the Superior Court for theDistrict of Stamford, Complex LitigationDocket at Stamford, the parties settled theclaim for the sum of $1,900,000.00.

In July of 1994, John Doe went for ayearly office visit with his internist, Dr. I,and was complaining of occasional loosestools. Dr. I performed a physical exami-nation, but did not perform a rectal exam-ination or check John Doe’s stool foroccult blood. John Doe continued to seeDr. I on a yearly basis over the next fouryears, and reported gastric pain and loosestool. At no time during these annualphysical exams did Dr. I perform a rectalexamination or check John Doe’s stool foroccult blood.

In March of 1998, when Dr. I retired,John Doe sought medical treatment withDr. S. Dr. S performed a physical exami-nation, including a rectal examinationand tested his stool for occult blood. Therectal examination revealed a large massand the stool for occult blood was positive.John Doe then underwent a colonoscopy,endoscopy and biopsy. Results showed a70 mm annular mass in the rectum 3 cmfrom the anal verge which appeared malig-nant. Pathological examination of the rec-tal biopsy was demonstrative of invasiveadenocarcinoma.

In April of 1998, John Doe was diag-nosed with metastatic adenocarcinoma ofthe rectum with liver metastasis, whichcaused his death in December of 1999.

Plaintiff claimed that Dr. I was negli-gent in his care of John Doe. In fact, JohnDoe’s tumor advanced from a polyp to alarge metastatic tumor in his rectum,resulting in metastatic rectal cancer.

Defendant claimed that Dr. I did nothave a duty to perform a complete physi-cal exam, including a lower gastrointesti-nal examination, because John Doe wasonly seeing him for upper gastrointestinalcomplaints.

Submitted by Ernest F. Teitell, Esq. ofSilver Golub & Teitell LLP, Stamford.

Workers’ Compensation Review May 31, 2006, through October 10, 2006Robert F. Carter and Donna Civitello

Commissioner Mlynarczyk AppointedWelcome to recently appointed

Commissioner Peter Mlynarczyk ofNew Britain, who replaces retiringCommissioner Ralph Marcarelli. A for-mer New Britain corporation counseland a hearing officer for the Departmentof Motor Vehicles, CommissionerMlynarczyk practiced law for ten yearswith Commissioner Howard Belkin inNew Britain. He also served as a policeofficer for the City of New Britain andcontinues to be a member of the PoliceOfficer Standards and Training Council.Commissioner Mlynarczyk worked forTravelers for ten years, during which hecompleted law school at Western NewEngland.

Support the Medicare Set-Aside BillPractitioners should urge their Con-

gressional Representatives and Senators tosupport H.R. 5309, which would fix theMedicare set-aside mess, which has madesettlements of workers’ compensationcases much more difficult in the last fewyears. The bill, which has bipartisan spon-sorship, has a real chance for passage inthe next Congress, if enough voices areraised to get the attention of leadership.Settlements of less than $250,000 orwhere no future medical expenses are like-ly would be exempt from set-asiderequirements. Any set-aside would bebinding upon Medicare if the amount is10% or more of the settlement.Submission of a proposed set-aside wouldbe explicitly optional [they are legallyoptional already, but carriers have beenspooked by Medicare set-aside (MSA)“vendors.”] Medicare would have to acton proposed set-asides within sixty days.If the claimant or carrier pays the MSAamount to CMS, CMS would be respon-sible for administering the MSA. Further,CMS would have to provide the amountsof claimed past “conditional” paymentswithin sixty days. So please call, write andemail your elected representatives, and dowhatever else you can to support the bill.The bill is the product of years of cooper-ative work by carriers, organized labor andworkers’ compensation claimants’ attor-neys, particularly the Workplace InjuryLaw & Advocacy Group, a nationalclaimants’ attorneys organization whichpractitioners should join and support(WILG.org).

SUPREME COURT

Motor vehicle exception restoredIn a sweeping decision, the Supreme

Court restored the motor vehicle excep-tion to exclusivity to its former scope: aclaimant may again sue civilly for damagesfrom injuries received in the negligentoperation of a motor vehicle, except forthose off-road vehicles named in thestatute, Sec. 31-293a. The Court simplyremoved from the books the “special haz-ard of the workplace” limitation whichlower courts had invented, and which hadessentially swallowed up the statute, so asto allow only suits by passengers in road-way accidents unrelated to the job. Foryears we have noted here the shrinkingscope of the motor vehicle exception; theCourt when it finally took a close look,did the right thing in the right way, andwiped out the doctrine-creep. Colangelo v.Heckelman, 279 Conn. 177 (July 18,2006). The Court, reversing a summaryjudgment based on the “special hazard”gimmick, remanded but did not deter-mine whether the defendant’s action here,stopping an automobile in a service baywith the engine running, with the trans-mission in neutral but without setting theemergency brake, could constitute negli-gent “operation” of a motor vehicle.Surely so.

Injuries from restraint duringseizure compensable

The claimant, flailing during a grandmal seizure, suffered shoulder dislocationsfrom being pinned down by co-employeesseeking to keep him from hurtinghimself. The injuries caused by therestraint were compensable, as arising outof employment.

Blakeslee v. Platt Bros. & Co., 279 Conn.239 (Aug. 1, 2006).

It is important that the Court flatlyrejected the respondent’s contention that,since the claimant’s seizure was not com-pensable, any subsequent injury related tothe seizure was also not compensable. If anemployee falls at work from a home-grown condition and hits his head on acement floor or falls into a machine, theinjuries are compensable. The actions offellow servants, the Court pointed out, arepart of the “conditions of employment” asmuch as machines, and are therefore a“risk of employment,” and their actions

during an emergency are within the scopeof their employment and for the benefitof the employer.

Home care not compensableunless ordered by physician for

medical reasonsThe brain-damaged claimant’s nephew-

conservator and his wife providedessential care to the claimant, who withoutassistance could not take his medicine,eat, change clothes, etc. After the claimant’sdeath, the plaintiff sought compensationfor the services rendered. The claim wasdenied, since the care was not ordered anddirected by a physician; the Court charac-terized the care, though necessary for life,as not constituting medical care. Tracy v.Scherwitzky Gutter Co., 279 Conn. 265(Aug. 1, 2006). The rule is from Galwayv. Doody Steel Erecting Co.,103 Conn. 431,435-36, 130 A. 705 (1925): whether “thecare provided to the injured worker” was(1) “under the direction of a treatingphysician,” and (2) “with the consent ofthe treating physician . . . ” As a practicalmatter, it is also important to seek author-ization by the commissioner promptlyand contemporaneously; faced with thelikelihood of having to pay for the institu-tionalization of a helpless claimant, thecarrier is usually amenable to reasonableaccommodation.

Besieged school superintendent diesfrom heart attack at contentious

meeting: compensableDuring a meeting with the board of

education, the Derby school superintend-ent, almost at the end of his employment,was given a lot of grief by board membersover his handling of a personnel issue.Upset, he had a heart attack and died.The heart attack was held compensable.Chesler v. Derby, 96 Conn. App. 207 (June27, 2006). Why not? This baseless appealwasted everyone’s time but the defenselawyers: physical injuries caused by emo-tional disturbance are clearly compensable(read the statute). Only mental-mentalclaims are excluded. The respondents alsoclaimed that the claimant’s claim wasbarred as a mental condition arising froma personnel action (sic); the Court polite-ly pointed out that the claim was for aheart attack and death.




APPELLATE COURT

Death during pre-employment physicalfitness test not compensable

The claimants’ decedent, seekingemployment as a corrections officer, diedof a heart attack after a run, during aphysical fitness test which was part of theapplication process. The death was notcompensable, for lack of an employmentrelationship. Bugryn v. State of Connecticut,97 Conn. App. 324 (Sept. 5, 2006). TheCourt distinguished two CRB cases inwhich injuries which occurred duringtraining or inoculation activities were heldcompensable after a job offer had beenextended.

Injury in fight not compensable whereclaimant was aggressor

Where the claimant aggressively con-fronted a coworker who had reported onthe claimant’s delinquency in his work,the elbow injury which occurred when theco-worker pushed him away was not com-pensable, as not arising out of the employ-ment. Ryker v. Bethany, 97 Conn. App.304 (Aug. 29,2006). Although this casewas a close one, since performance ofduties was an issue in the dispute, if theclaimant is the aggressor, the incidents areusually held not compensable. Smile,keep your voice low and let the other guytake the first swing, is my advice.

COMPENSATION REVIEW BOARD

Mental-physical heart failurecompensable; practice tip on

posthumous permanencyDespite vigorous if disingenuous

attempts by the State to have the CRBdisregard the law, the compensability ofcongestive heart failure caused by allega-tions of sexual misconduct was upheld bythe CRB. The CRB pointed out thatphysical injuries caused by work-relatedstress really are compensable, as in Chesler,supra. Estate of Michael Sullo v. State ofConnecticut, 4796 CRB 1-04-3 (Sept. 8,2006). More interestingly, however, theCRB held that a pre-death request by theclaimant for the payment of permanentpartial disability as an alternative to tem-porary total disability should be construedas a request for the payment of permanen-cy benefits at whatever date the claimantceased to be totally disabled, thereby“vesting” the permanency benefits forpayment to the estate. The law, accordingto the CRB, is that a deceased claimant’sdependents or estate may collect perma-nency if the claimant has requested per-manency benefits prior to his death and

has reached maximum medical improve-ment prior to his death. However, it is notclear whether the CRB now believes that arating of permanency must be made priorto death. The CRB did not mention Sec.31-308(d), which since 1993 has allowedthe commissioner to award Sec. 31-308benefits based on an award made posthu-mously. The statute would appear specifi-cally to allow fully posthumous medicalanalyses of percentages of disability andmaximum medical improvement. Untilthe law is fully rationalized, however, itseems reasonable to make a claim for per-manent partial disability benefits to bepaid at the termination of temporary totaldisability, or as an alternative to perma-nent partial disability benefits, shouldtotal disability not be found. It is alsoprobably still reasonable, for now, to ask adoctor to confirm, prior to death, thatmaximum medical improvement has beenreached (which is always the case if a per-son is dying of the work-related condi-tion), and to give an estimate of the degreeof permanency, although Sec. 31-308(d)probably doesn’t require this. It is better,however, not to demand an immediateswitch from temporary total to permanentpartial disability benefits, which is alwaysthe claimant’s prerogative; the dependentswould thereby be deprived of the value ofthe permanency benefits paid prior to theclaimant’s death.

Appellate procedural mysteriesThe CRB often kindly allows techni-

cally late appeals to be heard on the mer-its. But the law concerning a late notice ofappeal is not wholly clear. In Numan v.Warnaco, Inc., 5007 CRB-4-05-10 (Sept.22, 2006), where the respondents’ appealwas two days late, the CRB held that therespondents’ filing with the trial commis-sioner of a request for extension of time inorder to file a motion to correct and to filethe appeal petition constituted substantialcompliance with the appeal statute, Sec.31-301(a). The CRB confirmed that thetrial commissioner had no authority toextend the appeal period. The CRB noted,however, that prior decisions have allowedthe filing of a motion to correct or amotion for extension of time to save oth-erwise untimely appeals. It’s not clear thatone can rely on such leniency. I expect thata denial of a motion to correct should beappealable as of right, since Sec. 31-301(a)allows an appeal of a “decision on amotion.” But I would also expect that anappeal solely of a motion to correct wouldbe limited to consideration of the correct-ness of the decision on the motion to cor-

rect. The CRB has so held previously.Robare v. Robert Baker Companies, CaseNo. 4328 CRB-1-00-12 (Jan. 2, 2002);Buccieri v. Pacific Plumbing Supply Co.3286 CRB-7-96-3 (1997), aff ’d, 53Conn. App. 671 (1999). But if the moreexpansive rule applies, as here, where theCRB held that the filing of an extension oftime to file a motion to correct satisfiedSec. 31-301(a), the mere filing of themotion to correct, or motion for exten-sion, would guarantee a hearing on themerits of all the issues identified by theappellant.

Home office rules diminishedThe claimant had a home office which

she used on a daily basis to complete herwork, which was too much for her to fin-ish during the regular work day at heroffice at the employer’s facility. On the dayof the accident, she reviewed documentsat home for 45 minutes to prepare for ameeting at her regular workplace, thenhad a wreck on the way there. The CRBreversed the commissioner’s finding ofcompensability because it found that,despite the commissioner’s explicit factualfinding to the contrary, the claimant failedto show that special employment circum-stances existed that made it necessaryrather than personally convenient to workat home. The trial commissioner hadfound that working at home was necessarybecause overtime had been barred and theclaimant had too much work to completeduring her regular hours. The test ostensi-bly remains the same: a regular and sub-stantial quantity of work performed athome, continuing presence of work equip-ment at home, and special circumstanceswhich make it necessary rather than sim-ply convenient to work at home. But thereversal was essentially a policy decision tolimit this exception to the “going-and-coming” rule, by restricting (withoutdefining) the scope of a “necessity” towork at home. Matteau v. Mohegan SunCasino, 4998 CRB-2-05-9 (Aug. 31,2006). The CRB also held that theclaimant’s activity at home, review of doc-uments for the meeting, was merely“preparatory” and therefore not compen-sable under Sec. 31-275(1), but this partof the holding is clearly wrong: thatstatute only applies to injuries occurringin the claimant’s abode, not a highway;and the claimant’s document review herewas real work, not merely a “preparatory”act, like packing a bag or brushing one’steeth. The CRB reversal suggests that the


claimant must show affirmatively that heor she wouldn’t be allowed to get in to theregular workplace early and do the neces-sary extra work there. Such a requirementgoes a bit too far, though there will clear-ly be close cases in this developing area ofthe law.

Interlocutory appeals blastedCrummy interlocutory appeals were

blasted by the CRB where the respondentappealed an evidentiary ruling by thecommissioner in a formal hearing todetermine factual issues regarding wageloss benefits which had been remandedfor determination by the CRB previously.The CRB, disparaging the vile practice,pointed out that clearly the remand orderinvited additional evidence on theremanded issues concerning wage lossbenefits, and that the trial commissionerhas discretion as to how to proceed toresolve remanded issues. Richardson v. BicCorp., 4953 CRB-3-05-6 (Sept. 7, 2006).The CRB might consider amending theappeal regulation, Sec. 31-301-1, todefine appealable “motions” to includeonly dispositive motions, such as success-ful motions to preclude contest of com-pensability or dismiss for lack of jurisdic-tion, and to delay appeals of rulings onevidentiary motions or motions in limine,which are in fact objections or offers ofevidence, or on motions to recuse, to thetime of appeal of the decision on themerits.

Prior award for permanent partialdisability does not bar subsequent

claim for temporary totalA prior award of permanent partial dis-

ability benefits does not prevent aclaimant from proving and receiving totaldisability benefits at a later time.Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006). The claimant, afirefighter, had suffered significant lungdamage and was paid 33% respiratorypermanency in 1994. In 2005 he wasawarded total disability benefits. Therespondents argued that the claimant, byseeking and accepting 308(b) benefits,was legally barred from claiming that thelung condition totally disabled him.Flirting with a dangerous and spuriousargument by respondents, however, theCRB suggested that the claimant mightbe required to show a changed and deteri-orated physical condition in order to sup-

port the later claim for temporary totaldisability. This suggestion was merelydicta here, however, since the claimant’scondition had deteriorated. But the impli-cation is that the claimant, in order tohave received the permanent partial dis-ability award in 1994, must not have beentotally disabled in 1994 based on his lungcondition. This principle is quite wrongand without legal basis. That a claimantreceives permanent partial disability bene-fits never implies legally that he or she hada work capacity or was not totally disabledduring the time the permanency benefitswere paid. A claimant may demand pay-ment of 308(b) benefits at any time,despite being totally disabled, if he hasreached maximum medical improvement.McCurdy v. State, 227 Conn. 261 (1993).It may be wholly beneficial for a claimant,while receiving permanency benefits, toattempt to return to the work force beforefinally throwing in the towel and seekingtotal disability benefits. Very often severe-ly disabled people manage to work, andclaimants should be encouraged to makethe attempt. Thus no showing of a deteri-orated condition is legally required inorder for the claimant later to claim totaldisability after permanency has been paid,where the issue of temporary total disabil-ity was not previously litigated.

Fund reopens finding and awardseven years later

Although the reported facts are notelaborated, the CRB allowed the SecondInjury Fund in a no-insurance case toreopen and obtain a reversal of a 1997finding and award seven years later, after itlocated the putative employer, who thendenied the employment relationship. Theemployer had declined to appear at thefirst formal hearing; the finding and awardwas entered based on the claimant’s evi-dence. The CRB, however, broadly indi-cated that the finding and award could bereopened at any time on a claim of lack ofjurisdiction because of lack of an employ-ment relationship, citing only Sec. 31-315, which limits the power to reopen tothe scope of the power of the SuperiorCourt to reopen its judgments. Mankus v.Mankus, 4958 CRB-1-05-6 (Aug. 22,2006). The commissioner in the secondformal hearing found that the claimanthad somehow induced the putativeemployer not to attend the first formalhearing; but the CRB said that fact wasirrelevant, that even if the employer failedto show up for “neutral” reasons the casecould later be reopened. That dictumseems wrong to me, as between the

claimant and the defaulting putativeemployer. The Second Injury Fund couldrightfully claim that the issue of employ-ment relation was not litigated between itand the claimant; but if the Fund wasnoticed for the first formal and failed toappear, it would not be allowed to reliti-gate the employment relation, but wouldrather be estopped. It is important in Sec.31-355 no-insurance cases always tonotice the Fund from the very beginning.

Timely claim by injured worker prereq-uisite for claim by surviving spouseThe CRB held again that a surviving

spouse may not make a claim for deathbenefits where the injured or diseasedemployee allowed the statute of non-claimto elapse prior to his or her death. TheCRB also held that a timely Longshore &Harbor Workers’ claim made by theclaimant’s decedent for the claimant’s lungcondition did not save the widow’s claim.Chambers v. General Dynamics Corp., 4952CRB-8-05-6 (June 7, 2006). The onlysupport cited by the CRB for this doctrineis Biederzycki v. Farrel Foundry & MachineCo., 103 Conn. 701, 704-705 (1926), inwhich the Court stated that the widow’sclaim is “derivative” of the original claim.But in Biederzycki the Court merely heldthat the employer, after the commissionerhad found the claimant’s injury compen-sable during his lifetime, could not reliti-gate the compensability of the injury afterthe widow sought surviving spouse bene-fits; all she had to prove was that the com-pensable injury caused her husband’sdeath. I am hopeful that this CRB-madedoctrine will be reviewed by the SupremeCourt, which has taken the appeal in thiscase. After all, numerous reasons, such asdealing with imminent death or having agood disability policy, may give a dyingworker no reason at all to file a workers’compensation claim before he dies; butthe widow’s claim will still be of vital sig-nificance.

Hatt used to deprive claimant of 308(a)benefits from first injury

In Pizzuto v. State of Connecticut, 4959CRB-5-05-6 (June 23, 2006) the claimant,a state employee, had a compensable backinjury in 1989 followed by two surgeries.She was paid twenty percent specific, butkept working at her regular job and didnot claim Section 31-308a benefits at thattime. She injured her back again in 2000,and was paid an additional five percentpermanent partial disability, or 18.7weeks, and then 18.7 weeks of Section 31-308a benefits. She was unable to return to

Workers’ Compensation Review(Continued from page 27)


Getting It Right —The CTLA Forum Notable Judicial Opinion

We continue our series of noteworthy judicial opinions with a remarkable decision byJudge Jon Alander. In an exemplary display of judicial conscientiousness and integrity,Judge Alander candidly admits that he erred and reverses his own previous decision. Theopinion is also a noteworthy analysis of the interplay of code standards and negligencestandards, a recurrent and important issue. This case resulted in a large ($32.5 million)verdict for the plaintiffs and is on appeal to the Supreme Court. (Because the plaintiff suf-fered such catastrophic injuries, including paraplegia, the defendant does not claim onappeal that the verdict was excessive.)

Superior Court of Connecticut, Judicial District of Waterbury.

Norman Pelletier et al. v. Sordoni/Skanska Construction Companyet al. No. X06CV950155184S. 2004 WL 3128800 (Conn.Super.),38 Conn. L. Rptr. 404

_____1 This action is before this court on remandfrom the Connecticut Supreme Court. ***[after the Supreme Court] reversed the ***the trial court[‘s] ***summary judgment [for]Sordoni on the plaintiff ’s negligence claimbut affirmed summary judgment on theplaintiff ’s breach of contract claim.

her job, and sought additional 31-308abenefits, based upon the effects of the1989 injury, under the 1989 statute,which allows discretionary 308a benefits.The trial Commissioner awarded 104weeks of 308a benefits based on theeffects of the 1989 injury, but the CRBreversed, holding that Hatt v. BurlingtonCoat Factory, 263 Conn. 279 (2003) andHoughton v. Andover, 4949 CRB-2-05-6(May 18, 2006) barred an award for 308abenefits based on the first injury. A nastymisuse of Hatt, which merely defined theability of the last carrier to seek reim-bursement from a prior carrier under Sec.31-299b. Section 299b has nothing to dowith the rights of claimants; and in facthere there was only one respondent.Whether the claimant can obtain 308abenefits based on the first injury shouldbe a question of medical fact: do the con-sequences of the first back injury consti-tute a significant contributing factor tothe claimant’s current condition and herreduced earning capacity? If so, sheshould be able to seek 308a benefits basedon the law in effect at the time of her firstinjury. The proof may be difficult, but theclaim should not be barred as a matter oflaw: Sec. 299b does not extinguishclaimants’ rights. The CRB with crocodiletears referred to the humanitarian purposeof the Act to support its decision — inthis case, a humanitarian purpose to makea gift to insurers and employers with nolegal basis. The CRB decisions in bothHoughton and Pizzuto thankfully havebeen appealed.

Dec. 16, 2004.JON M. ALANDER, Judge.*1 This decision is the product of the

rare instance when a request for reargu-ment is granted. It further reflects the evenrarer occurrence when, after granting rear-gument, the court vacates a prior decision.Since it is better to be right than consis-tent, upon reargument, I hereby vacate myprior granting of the defendant’s motionfor summary judgment and now deny thatmotion.

On August 6, 2004, I granted themotion for summary judgment of thedefendant Sordoni/Skanska ConstructionCompany (Sordoni) and entered summa-ry judgment on the first and third countsof the plaintiffs’ third amended complaintwhich were the sole remaining counts ofthe plaintiffs’ complaint. In the firstcount, the plaintiff Norman Pelletierasserts a claim of negligence againstSordoni and, in the third count, his wife,Reine Pelletier alleges loss of consortium.On August 26, 2004, the plaintiff request-ed and I subsequently granted reargumentand reconsideration of the court’s entry ofsummary judgment. The defendant’smotion for summary judgment was rear-gued on November 1, 2004.

For purposes of deciding the motionfor reconsideration, a brief review of theundisputed facts of this case is appropri-ate. At the time of the incident giving riseto this action, Sordoni was the generalcontractor for the construction of a build-ing for Pitney Bowes, Inc. (Pitney Bowes).The plaintiff was an employee of BerlinSteel Construction Company (BerlinSteel), the structural steel fabrication anderection subcontractor for the project. OnJune 20, 1994, the plaintiff suffered seri-ous physical injuries in an accident at the

Pitney Bowes construction site when asteel cross beam fell and struck him. Thecross beam fell because it had only beentemporarily welded to its seat connectionby a tack weld, rather than permanentlywelded as required. The plaintiff receivedworkers’ compensation benefits fromBerlin Steel for his injuries. In the presentaction, the plaintiff claims that Sordoniwas negligent for failing to ensure that thesteel beam was permanently welded to itsseat connection.

In its motion to reargue, the plaintifffirst contends that this court erred in hold-ing that Sordoni did not owe the plaintiffa duty of care based on Sordoni’s contractwith Pitney Bowes. The plaintiff claimsthat Sordoni’s contract with Pitney Bowesimposed upon Sordoni safety and inspec-tion duties which extended to the protec-tion of the plaintiff. As I noted in my pre-vious decision, our Supreme Court specif-ically rejected the plaintiff ’s claim thatSordoni’s contract with Pitney Bowescreated a duty owed by Sordoni to theplaintiff.1 Pelletier v. Sordoni/SkanskaConstruction Co., 264 Conn. 509, 531-32(2003). The plaintiff argues that it is inap-propriate for this court to rely on theSupreme Court’s determination thatSordoni owed no duty to the plaintiff pur-suant to its contract with Pitney Bowesbecause the plaintiff is claiming here thatSordoni negligently breached its duty to



Getting It Right — The CTLA Forum Notable Judicial Opinion(Continued from page 29)

him while the Supreme Court decidedthat the plaintiff was not a third-partybeneficiary to the contract and could notmaintain a breach of contract claimagainst Sordoni. The plaintiff ’s point iswell-taken. The issue of whether thedefendant owes the plaintiff a duty of careunder negligence law arising from con-tractual obligations is a separate questionfrom whether the plaintiff is a third-partybeneficiary of that contract. See Gazo v.City of Stamford, 255 Conn. 255, 249-51(2001). Nonetheless, the defendant hereremains entitled to the entry of summaryjudgment on the issue of whether it negli-gently breached a duty it owed the plain-tiff under its contract with Pitney Bowes.

It is undisputed that Sordoni, as thegeneral contractor for the constructionproject, delegated its responsibility toensure the safety of the structural steel andto inspect the welds to Berlin Steel, itsindependent contractor. “Under its sub-contract with Sordoni, Berlin Steel hadthe responsibility to provide all of thestructural steel for the Pitney Bowes proj-ect, and to ensure its integrity***Furthermore, Berlin Steel had the duty toinspect . . . welds, ensuring their ability tobear weight***” Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509,512-13 (2003). It is also undisputed thatan employee of Berlin Steel failed toinspect, as he was required to do, the tem-porary tack weld which was the cause ofthe steel crossbeam falling on the plaintiff.Since Sordoni had delegated to BerlinSteel its duty under its contract withPitney Bowes to inspect the welds andensure the safety of the structural steel,the plaintiff is seeking to hold Sordonivicariously liable for the negligence ofBerlin Steel. This it cannot do. Pelletier v.Sordoni/Skanska Construction Co., supra,264 Conn. at 518 (“[A] general contrac-tor is not liable for the torts of its inde-pendent subcontractors”).

* * *The plaintiff further argues that this

court’s entry of summary judgment forSordoni was in error because I neglectedto consider Sordoni’s regulatory obliga-tions pursuant to the ConnecticutBasic Building Code, Regs., Conn. StateAgencies § 29-252-la, to inspect the weldson the steel fabricated by Berlin Steel. Iagree that in my prior decision *** I didnot address Sordoni’s obligations underthe Connecticut Basic Building Code. I

did not do so because the plaintiff failed toraise this precise issue in his opposition toSordoni’s motion for summary judgment.

Further explication of the ConnecticutBasic Building Code is necessary to fullyunderstand the plaintiff ’s claim. Section29-252-1a of the regulations ofConnecticut State Agencies adopted theBOCA National Codes of 1987 as modi-fied by the BOCA 1988 Supplement(BOCA National Codes).2 FN4 as theConnecticut Basic Building Code. Section1307.1 et seq. of the BOCA NationalCodes mandates “special inspections” ofthe work related to the construction of thebuilding and Section 1307.3.3.2 requiresthat weld inspections shall be in confor-mance with Section 6 of AWS D1.1(Structural Welding Code), which isissued by the American Welding Society,Inc., and establishes standards related towelding.

The plaintiff now asserts that therequirements of the BOCA NationalCodes and Section 6 of the StructuralWelding Code impose inspection dutiesupon Sordoni that it negligently failed tofulfill. *** The plaintiff did not arguebefore me that the Connecticut BasicBuilding Code imposed inspection dutieson Sordoni. That is the reason the issuewas not addressed by me in my decision ofAugust 6, 2004.

The failure of the plaintiff to previous-ly raise the issue of Sordoni’s obligationsunder the Connecticut Basic BuildingCode begs the question as to whether it isappropriate for the court to consider itnow. *** Every court however has theinherent authority, as long as it retainsjurisdiction, to reconsider a prior ruling.Steele v. Stonington, 225 Conn. 217, 219n. 4 (1993). “If a court is not convincedthat its initial ruling is correct, then in theinterests of justice it should reconsider theorder, provided it retains jurisdiction overthe subject matter and the parties.” Id. ***.

Although the plaintiff previously failedto raise the issue it now seeks to advance, Ifind it appropriate for this court to consid-er the issue at this time for the followingreasons. First, Sordoni did not object toreargument. . . on the grounds that theissue was not previously raised by theplaintiff. Rather, it objected. . . on thegrounds that the claim lacked merit.Second, this issue does not come as a sur-prise to the defendant. The third amendedcomplaint. . . specifically states in its first

count that Sordoni negligently breachedits duties under the BOCA NationalCodes and under Section 6 of the code ofthe American Welding Society to conductinspections of all steel welds. In addition,our Supreme Court noted in its decisionremanding the case to this court that theissue of Sordoni’s duties under the statebuilding code may be addressed, if neces-sary, by the trial court on remand. Pelletierv. Sordoni/Skanska Construction Co., supra,264 Conn. 517 n. 5. Finally, and mostimportantly, I find it appropriate toreconsider my previous ruling ***becauseI am convinced*** that my previous deci-sion, is incorrect. *** Accordingly, it is inthe interests of justice that I reconsiderthat decision. Cf. Statewide GrievanceCommittee v. Ankerman, 74 Conn.App.464, 470 (2003) (“A court, in the interestof justice, after the close of evidence, mayexercise its discretion to open the case forthe purpose of permitting the introduc-tion of additional evidence”) ***

Turning to the merits of the plaintiff ’sclaim *** that he has asserted a viable neg-ligence cause of action against Sordonibased on [Sordoni’s alleged] violat[ionsof ] its duties under the Connecticut BasicBuilding Code, Regs., Conn. StateAgencies § 29-252-la; specifically, its dutyas permit applicant to conduct an inspec-tion of all steel welds. Sordoni contendsthat the building code did not imposeupon it a duty to conduct either fabrica-tion or verification inspections. It arguesthat, pursuant to the building code,Berlin Steel possessed the duty to performfabrication inspections and the owner hadthe prerogative, but not the obligation, toconduct verification inspections. I agreewith the plaintiff that he has raised a dis-puted issue of material fact that precludesthe granting of summary judgment forthe defendant.

As noted previously, Section 29-252-laof the regulations of Connecticut StateAgencies adopted the BOCA NationalCodes as the Connecticut Basic BuildingCode. Section 1307.1 of the BOCANational Codes mandates that “the per-mit applicant” shall provide “specialinspections” of the work related to theconstruction of the building. The plaintiffhas submitted evidence in the form of adocument entitled “Statement of SpecialInspections” that Sordoni was the permitapplicant with respect to the PitneyBowes project. Pursuant to § 1307.3, thespecial inspections for steel elements ofbuildings and structures shall be asrequired by § 1307.3.1 through §


1307.3.3.3. Section 1307.3.3.2 providesthat “Weld inspections shall be in confor-mance with Section 6 of AWS D1.1.”Section 6 of AWS D1.1 makes a distinc-tion between fabrication/erection inspec-tions which shall be performed by thecontractor, in this case Berlin Steel, andverification inspections which are the“prerogatives” of the owner. Section 6.1 ofAWS D1.1. Section 6 further providesthat when the term inspector is used with-out further qualification, it applies equal-ly to inspection and verification inspec-tions. Section 6.1.2. The inspector shallascertain that all fabrication and erectionby welding is performed in accordancewith the requirements of the contractdocuments, Section 6.1.4, and make cer-tain that the size, length, and location ofall welds conform to the requirements ofthe structural welding code and to thedetail drawings, Section 6.5.1. Theinspector is further obligated to “examinethe work to make certain that it meets therequirements of Section. . . 8.15. . . asapplicable. Section 8.15 governs the qual-ity of welds in new buildings and providesthat “all welds shall be visually inspected.”

The plaintiff maintains that these pro-visions impose upon Sordoni as the per-mit applicant the duty to conduct specialinspections of all steel welds to ensuretheir compliance with code requirementsand detail drawings. Sordoni contendsthat the special inspection requirementsof the BOCA National Codes incorporatenot only the distinction between fabrica-tion inspections and verification inspec-tions of Section 6 of the StructuralWelding Code but its placement ofresponsibility for those inspections on thecontractor, i.e. Berlin Steel, and theowner, i.e. Pitney Bowes, respectively. Inother words, Sordoni claims that theBOCA National Codes incorporate fromSection 6 not only the nature and extentof the inspections to be done but who isto do them. I agree with the plaintiff thatthe BOCA National Codes impose a sep-arate and distinct obligation on the per-mit applicant to conduct special inspec-tions of all steel welds to confirm that theymeet contract and code specifications.

The express language of the BOCANational Codes states that “The permitapplicant shall provide special inspections. . .” Section 1307.1. It further providesthat the permit applicant shall submit astatement of special inspections as a con-dition for permit issuance. Section1307.1.1. The statement shall include acomplete list of materials and workrequiring special inspection, the inspec-

tions to be performed and a list of theindividuals, agencies and firms intendedto be retained for conducting such inspec-tions. Id. In fact, Sordoni as the permitapplicant submitted a statement of specialinspections in which it stated that shopand field review of welding would be con-ducted by Professional Service Industries,Inc. A final report is also required ofinspections documenting completion ofall required special inspections. Section1307.1.2. These obligations are consistentwith the imposition on the permit appli-cant of an independent duty to conductspecial inspections.

The BOCA National Codes furtherrequire the special inspection of fabricateditems where the fabrication of structuralload-bearing members and assemblies isbeing performed on the premises of a fab-ricator’s shop, Section 1307.2, and forsteel elements of buildings and structures,Section 1307.3. With respect to the spe-cial inspections for steel elements of build-ings and structures, Section 1307.3.3.2provides that “Weld inspections shall bein conformance with Section 6 of AWSD1.1.” These provisions impose upon thepermit applicant the duty to provide forspecial inspections of the welds for thesteel elements of the buildings and struc-tures.

Sordoni argues that since section 6.1 ofthe Structural Welding Code providesthat fabrication/erection inspection is theresponsibility of the contractor and verifi-cation inspection is the prerogative of theowner, it had no duty as the permit appli-cant to inspect the welds for the steel ele-ments of the Pitney Bowes building. Theproblem with Sordoni’s claim is that itsweeps away the obligation imposed onthe permit applicant by various sections ofthe BOCA National Codes to provide forspecial inspections. Sordoni can point tono language in the BOCA NationalCodes as support for its assertion thatincorporation of Section 6 of the structur-al welding code was intended to eliminatethe permit applicant’s duty generally toprovide special inspections pursuant toSection 1307.1, or to eliminate the permitapplicant’s specific duties to conduct spe-cial inspections of the fabrication of struc-tural load-bearing members pursuant toSection 1307.2 and the steel elements ofbuildings pursuant to Section 1307.3.3

A general contractor may be sued innegligence “if he is under a legal duty tosee that the work is properly performed”Pelletier v. Sordoni/Skanska ConstructionCo., supra, 264 Conn. at 518. Here, theplaintiff has submitted evidence that

Sordoni was the permit applicant for thePitney Bowes project and as such it hadthe duty pursuant to the ConnecticutBasic Building Code to provide specialinspections to confirm that all the weldsin the structural steel fabricated by BerlinSteel complied with code requirementsand contract documents. The plaintiff hasalso submitted evidence that Sordoni vio-lated that duty by failing to ensure that allwelds were inspected and that the plaintiffwas seriously injured as a result.Accordingly, Sordoni’s motion for sum-mary judgment was improvidently grant-ed by this court on August 6, 2004. Thatdecision is hereby vacated and the defen-dant’s motion for summary judgment isdenied.

_____2 The BOCA National Codes are nationalbuilding codes that are issued by the BuildingOfficials and Code AdministratorsInternational, Inc.3 The fact that Sordoni had the regulatoryduty to conduct special inspections does notmean that it lacked the authority to contractout the performance of its duty. It does meanthat it may not contract out its ultimate legalresponsibility. Cf. Gazo v. Stamford, 255Conn. 245, 255 (2001).


Digitally Processed Images in Connecticut Courts After SwintonLisa Podolski & Neal Feigenson

IntroductionModern courtrooms are being trans-

formed by a profusion of digital imagesand multimedia offered as evidence andduring arguments. From digital photosand videos to trial presentation softwaresuch as Sanction and Trial Director, fromPowerPoint to computer animations andsimulations to custom-designed multime-dia systems, lawyers now have at their dis-posal an array of new technologies thatpermit them to create and display tojudges and jurors highly probative andpersuasive images. The pace of technolog-ical change confronts judges with difficultquestions as they decide whether to admitparticular kinds of digital images. It simi-larly challenges lawyers to anticipate andunderstand the evidentiary issues thatnew digital imaging technologies raise, sothat the lawyers can prepare and presenttheir cases most effectively.

Photoshop was used to superimposeimages of the defendant’s teeth (dentalmolds and tracings of dentition) on thosephotographs of the bite mark. Together,these images provided compelling visualevidence to support expert testimony thatthe defendant’s dentition matched the bitemarks, and therefore, that the defendanthad committed the crime.

But were the digitally processed imagessufficiently reliable to be considered by thejury? The Swinton Court developed a newgeneral test for determining the admissi-bility of computer generated visual evi-dence, requiring adequate foundationaltestimony from a witness who is experi-enced with and knowledgeable about themethods used to create the evidence andwho can testify as well to the reliability ofthe technology, including its degree ofacceptance in the relevant forensic or sci-entific field. Swinton’s approach to digital-

Lucis and Photoshop and indicating someof their potential benefits and drawbacksas litigation tools. Next, we discussSwinton and the law that now governs theadmissibility of digitally processed imagesin Connecticut. We then analyze theimplications of the case for future proffersof digitally processed images and providea checklist of admissibility concerns. Weconclude with some general remarks,including larger ethical concerns prompt-ed by the increasing use of digital imagingtechnologies in court.2

Two digital image processing technolo-gies: Lucis and Adobe Photoshop

Lucis. Lucis software, made by ImageContent Technology, employs a patentedimage-processing algorithm, DifferentialHysteresis Processing (DHP), to extractand highlight variations in pixel intensi-ties within a digital image. This capability

In State of Connecticut v. Swinton,1 theConnecticut Supreme Court analyzed theadmissibility of exhibits created by meansof two digital imaging software programs,Lucis and Adobe Photoshop. Both pro-grams allow users to manipulate digitalimages in order to produce visuals that aremore informative of legally relevant facts,rather than more “realistic” in the sense offaithfully representing reality as perceivedby the naked eye. In Swinton, Lucis wasused to enhance photographs of a bitemark on a murder victim’s body, makingthe bite mark pattern clearer; Adobe

ly processed images is of course bindingauthority in Connecticut, and it mayprove to be influential outside the state aswell. In addition, the Court’s applicationof its test to the evidence at bar —upholding the trial court’s admission ofthe Lucis enhanced photographs butdeciding that the trial court erred inadmitting the Photoshop overlays —offers further guidance to lawyers seekingto admit (or to challenge) these and othertypes of digitally processed images in thefuture.

We begin this article by describing

can be used to enhance and reveal imagedetail that would otherwise be unde-tectable to the human eye. The program isextremely simple to use, involving theoperation of just two cursors or sliders.

Lucis enhances variations in imageintensity by mathematically processingthe image as a two-dimensional array ofnumeric data, selectively detecting andemphasizing certain aspects of the visualinformation, and converting the resultback into an image.3 Lucis processes colorimages by first “reading” each pixel in acolor image for its three values: hue, sat-

Original image of fingerprints Lucis-enhanced image of fingerprints


uration, and luminance.4 Lucis then per-forms DHP on the luminance informa-tion in the image, as luminance representsthe contrast information in the image.After DHP is done, Lucis recombines theoriginal hue and saturation informationfor each pixel with the new luminancevalue, and translates these values back intothe original image format. Since Lucisdoes not alter the hue and saturationinformation, the output from Lucis con-tains the same color information as theoriginal image. A change in color appears,however, because the intensity or bright-ness of the pixel has been shifted.5 Thischange in pixel intensity makes visibledetails that would otherwise be unde-tectable or unclear.

Lucis is a standard image processingprogram in forensic sciences utilizing pat-tern identification, including the identifi-cation of bite marks, fingerprints, footwear,and tire impressions.6 But the program ispotentially useful in any case in whichbringing out image detail is important.For instance, Lucis can make faint hand-writing or other inscriptions more legible,enhancing the usefulness of documentaryevidence.7 It can be used to bring outdetails in X-rays and CT scans, whichmay be probative in medical malpracticecases or to prove injuries in any sort ofcase. Lucis is helpful in stress analysis,which may be relevant in products liabili-ty, construction, and environmental liti-gation. And it can bring out differences inparticulate detail in the composition ofmaterials, which may be relevant in patentor other litigation.8

The main benefits of Lucis to forensicexperts and the clients for whom they tes-tify are that it makes visible and salientcase-critical features of photographs thatwould otherwise remain invisible ordoubtful, and that it does so without anyloss of data, so that it should be relativelyeasy to persuade judges and jurors that theenhanced image has not been manipulat-ed in any improper way. (Most image pro-cessing methods discard data so that view-ers can more clearly see the data thatremain; Lucis shifts the relative emphasisof variations in pixel intensity without dis-carding image information.) Furthermore,Lucis enhances images globally (the pro-gram affects the entire image rather thanpinpointing certain areas for enhance-ment), thereby adding to its reliability inproducing a trustworthy image. Ofcourse, while Lucis can enhance variationsin contrast in an image, if the variationsare not present in the original version,Lucis cannot do anything about it.9 One

drawback is that Lucis is prone to createone visual artifact: a shadowing or high-lighting at the edge of a sharp discontinu-ity which can obscure some of the infor-mation in a narrow band near the discon-tinuity. This artifact, however, is easy toidentify, and other imaging processingprograms are prone to multiple artifacts.10

Adobe Photoshop. Photoshop is used bymore professionals working with digitalimages than any other software program inthe world. Photoshop users can retouchphotos, reduce unwanted “red eye,” easilycorrect common lens distortions, sharpenblurred images, replace and match colors,and crop images to the desired size, amongmany other features. Changes can be madeglobally (i.e., to the entire image, such ascontrast, color saturation, and so on) or toselected areas.

Photoshop permits users to build afinal, composite image from many layers.(Some commands — e.g., cutting andpasting or copying of image data from onepart of an image to another or from a dif-ferent image — automatically generatelayers.) An image on any layer can be repo-sitioned and scaled or transformed in avariety of ways. And because any givenlayer above the background layer can bemade partially transparent, Photoshopallows images to be superimposed on eachother for purposes of making comparisons.

Ordinarily the layers are helpful to theuser as he or she creates and edits images,but do not affect the final output; indeed,users can either merge layers or flatten allof them into a single layer. And when aPhotoshop file is saved in the file formatsin which pictures are typically exchanged(e.g., .jpeg or .giff ), the layers are automat-ically flattened. This is important becausean unflattened Photoshop file (with thesuffix “.psd”) allows the user or anotherperson (including opposing counsel or thecourt) to “unpack” the file and reviewmost of the steps taken to produce theimage. Should an unflattened file not beavailable, however, other methods ofdetecting some manipulations of theimage are available. For instance, zoomingin to magnify views of pixels can revealinconsistencies in light, color, edges offorms, and so on that indicate local alter-ations; opening up particular functions(e.g., brightness/contrast) and previewingthe effects of changes can reveal certainglobal changes in those parameters.11

According to experts12 and forensictextbooks,13 Photoshop is a standard pro-gram used by forensic odontologists tocompare casts and overlays of a suspect’steeth to a bite mark. Photoshop has also

been used in fingerprint identification14

and handwriting examination.15 The pro-gram’s tremendous flexibility and range ofimage manipulation make it potentiallyuseful to litigators in many scientific andnon-scientific applications — indeed,whenever enhancing an image to increasethe signal-to-noise ratio is a valid andeffective courtroom strategy. (Photoshopmay also be used to create purely illustra-tive images for use in clarifying testimonyor enhancing argument rather than torepresent reality faithfully; Swinton doesnot address the uses of digitally processedimages as illustration or in argument, nordo we in this article.) That same flexibili-ty, however, can raise questions about thetrustworthiness of forensic imagesprocessed in Photoshop.16 Because thefinal output of the Photoshop processmay be the result of a complex sequenceof operations that need not be automati-cally logged and preserved,17 the propo-nent of visual evidence created or manip-ulated in Photoshop should be preparedto provide a record of all changes made tothe image. (We explain this in more detailbelow.18)

Swinton: The Court articulates andapplies a new test for authenticatingdigitally processed images

The case and the foundations offered forthe State’s digital images. The strangledbody of a 28-year old woman was foundin 1991 on an abandoned road inHartford, Connecticut. When the para-medics found the victim they tried torevive her, took her to a local hospital, andcleaned her body, which possiblydestroyed significant forensic evidence.There was no evidence connecting thesuspect, Alfred Swinton, to the bodyexcept for bite marks on the victim’sbreast.19 The State offered the testimonyof Dr. Constantine (Gus) Karazulas, a“highly qualified” forensic odontologist,to prove that the bite marks were made bySwinton.20 Karazulas illustrated his testi-mony with (among other things) twotypes of digital images: digitally enhancedphotographs of the bite mark on the vic-tim’s body, produced using Lucis, andoverlays of images of the defendant’s teethand dentition on the photos of the bitemark, created in Adobe Photoshop. Thedefendant challenged the admission ofboth sorts of images.21 The trial courtadmitted both.22 The defendant was con-victed of murder and sentenced to sixtyyears’ imprisonment.23

To introduce the Lucis enhancements,the State offered the testimony of Major



Timothy Palmbach, overseer of the divi-sion of scientific services in the state’sDepartment of Public Safety. Palmbachtestified that experts had used Lucis inforensic settings. In this case, Palmbachhad obtained the original photographsfrom Karazulas and, because his office didnot possess the hardware and softwarerequired to produce the enhanced images,Palmbach personally made them at Lucis’smanufacturer’s offices. Palmbach testifiedgenerally about how Lucis enables one toincrease or decrease the layers of contrastin a photographic image, and hence tobring out details that would otherwiseremain invisible to the naked eye whilereducing visual “noise” to an acceptablelevel. Then, using a laptop, Palmbachdemonstrated to the judge and jury exact-ly how the original bite mark photographhad been enhanced: first, the photographwas scanned without enhancement intothe computer24; next, a particular part ofthe image was selected for enhancement;and finally, “contrast ranges” were definedby manipulating a pair of cursors. Oncethe cursors were set to particular values,the computer performed an algorithmand produced an image in a “one-to-one”format (i.e., the same size as the unen-hanced photograph). Palmbach empha-sized that Lucis neither adds nor takesaway any data from the original image.25

Palmbach was not qualified, however, asan expert in computer programs, and thuscould not explain the Lucis algorithm orhow it worked to create the enhancedimages.26

To introduce the exhibits created withPhotoshop, the State offered the testimo-ny of Dr. Karazulas, the forensic odontol-ogist, describing the process by which theoverlays were created. First, Karazulasplaced the upper and lower molds previ-ously taken of the defendant’s teeth (byLester Luntz, another forensic odontolo-gist, about two months after the crime27)on a photocopier and printed out animage of the molds. He then placed apiece of paper over that image and manu-ally traced the biting edges of the teeth.The tracings were then photocopied ontoclear acetate, yielding a transparent over-lay depicting the edges of the defendant’sdentition. These tracings, together withboth enhanced and unenhanced bitemark photos, were then scanned into acomputer so that they could be used in

Photoshop.28

Karazulas then testified that he himselfdid not use Photoshop to create the over-lays in which images of the defendant’steeth or dentition were superimposed onthe enhanced and unenhanced bite markphotographs. Instead, he had a FairfieldUniversity chemistry professor who wasmore proficient in Photoshop operate theprogram to create the superimpositions.Karazulas testified that over the course oftwo days, he spent seven to eight hourswatching his colleague make the overlays,instructing him not to alter the originalimages. Karazulas could not testify as towhether proper procedures were followedin inputting the data into Photoshop,whether the person who operated theprogram was sufficiently qualified, orwhether that person operated the programcorrectly. He could not explain preciselyhow Photoshop allowed operators tomanipulate images or possibly alteredimages in some respects as a programdefault.29 Nor could Karazulas testify as towhether Photoshop was accepted as a stan-dard and competent imaging technologyin the field of odontology.30 Palmbach, onthe other hand, testified that he was “per-sonally aware of uses [of Photoshop] with-in the odontology field” and that he hadread “several papers” referring to the use ofPhotoshop in bite mark analysis.31 ButPalmbach also testified that Photoshop,unlike Lucis, “was capable of actually alter-ing photographs.”32

Swinton’s test for determining the admis-sibility of digital images. At the heart of anyinquiry into the admissibility of scientificor other expert evidence, including theforensic odontology testimony introducedin Swinton, is the requirement that theevidence be sufficiently relevant and reli-able for the jury and the court to consider.The law that governs this inquiry in feder-al courts and in the courts of many states,including Connecticut, was set out by theUnited States Supreme Court in Daubertv. Merrell Dow Pharmaceuticals.33 In a nut-shell, Daubert requires trial judges todetermine “whether the reasoning ormethodology underlying the [expert] testi-mony is scientifically valid and. . . whetherthat reasoning or methodology properlycan be applied to the facts in issue.”34 Inaddition, when images are offered asdemonstrative evidence to accompany theexpert testimony, those images themselves

must be properly authenticated so as toassure the court that they, too, are suffi-ciently reliable to be considered by thetrier of fact.35 In Swinton, theConnecticut Supreme Court’s main con-cern was the reliability and hence admissi-bility of the Lucis and Photoshop imagesrather than that of the science underlyingthe bite mark expert testimony itself.36

The Court recognized that traditionalapproaches to visual evidence would notresolve the question of whether these newforms of digital images should be admit-ted. The Court began by treating theLucis enhancements and the Photoshopoverlays as demonstrative evidence. Thischaracterization by itself did not muchadvance the analysis, however, becausedemonstrative evidence in general is treat-ed sometimes as merely illustrative evi-dence, admissible upon the minimalshowing that “it will assist the jury inunderstanding the expert’s testimony,”and sometimes as substantive evidence,subject at least to verification by a compe-tent witness that it is “a fair and accuraterepresentation of what it depicts,” andpossibly to much more.37 In this case theCourt rejected the State’s description ofthe digitally processed images as merelyillustrative of the expert witness’s testimo-ny, treating them instead as demonstrativeand therefore substantive.38 Relatedly, theCourt chose not to base its decision onthe often-made distinction between com-puter “animations” and “simulations,” theformer usually being considered merelyillustrative evidence and thus warrantingthe lowest threshold for admissibility.39

The Court avoided this distinction fortwo reasons: First, neither the Lucisenhancements nor the Photoshop overlaysclearly fell into the category of either ani-mations or simulations; and second, theoverlays, which the Court thought moreclosely resembled animations, had actual-ly been used as substantive evidence, andthus were particularly ill-suited for theminimal foundation ordinarily applied toillustrative evidence.40

Having classified the Lucis andPhotoshop images as substantive evi-dence, the Court then had to determinewhether to treat these “computerenhanced” items the same as it wouldenlargements or reproductions of photo-graphs — admissible if shown to be fairand accurate representations of what theydepict — or to subject them to a moredemanding standard.41 The Court recog-nized that the images digitally processedthrough either Lucis or Photoshop were

Digitally Processed Images in Connecticut Courts After Swinton(Continued from page 33)


more than mere photographic enlarge-ments, but what were they, exactly?42

Finding no clear guidance in the case law,the Court decided to treat both the Lucisphoto enhancements and the Photoshopoverlays as “computer generated evidence”and, “let[ting] caution guide our deci-sion,” sought to formulate a single, broad,“fairly stringent” standard applicable toboth and, indeed, to all computer generat-ed images.43

The Court then sought to articulatethe specific foundational requirements forthe authentication of computer generatedimages. In the absence of Connecticutauthority specifically on point, the Courtturned to cases from other jurisdictionsregarding the admissibility of enhance-ments of photos and videos, to FederalRule of Evidence 901(b)(9), which gov-erns the authentication of a process or sys-tem, and to secondary sources. Ultimatelythe Court decided on a six-factor test bor-rowed from a leading commentary onRule 901(b)(9), providing that authenti-cation of computer generated images “cangenerally be satisfied by evidence that

(1) the computer equipment is acceptedin the field as standard andcompetent and was in good workingsorder,

(2) qualified computer operators were employed,

(3) proper procedures were followed inconnection with the input andoutput of information,

(4) a reliable software program wasutilized,

(5) the equipment was programmedcorrectly, and

(6) the exhibit is properly identified asthe output in question.”44

In sum, “‘[r]eliability must be the watch-word in determining the admissibility ofcomputer generated evidence,”45 and thesesix factors allow courts to address all of theimportant concerns going to the reliabilityof such evidence: the witness’s familiaritywith the type of evidence and the methodused to create it, as well as the reliability ofthe underlying technology and the ade-quacy of the hardware and software usedto generate the evidence.46 The Courtacknowledged that at some point comput-er programs like Lucis and Photoshopmight be considered “inherent[ly]reliab[le]” and thus no longer subject tothese more stringent foundational require-ments,47 but that that day had not yetarrived. Hence, the Court’s next task wasto apply its general admissibility standardsto the proffers made in the case at bar.

The Court’s application of its new test tothe Lucis enhanced photos and the Photoshop

overlays. The Court ruled that the testimo-ny of the State’s forensic expert witness,Timothy Palmbach, laid an adequatefoundation for the admission of the Lucisphoto enhancements. First, Palmbach testi-fied that Lucis was used and relied uponin forensic pattern analysis, including theidentification of fingerprint patterns,bloodstain patterns, footwear and tireimpressions, and bite marks.48 Second, hetestified that not only was he himself awell trained and highly experienced foren-sic analyst, but also that he had knowl-edge and experience in using Lucis to cre-ate digitally enhanced images of foot-prints, tire prints, and, on two occasions,dental imprints on breasts.49 Third,Palmbach testified “accurately, clearly, andconsistently” regarding the input and out-put of data, including the initial digitiza-tion of the original autopsy photos andthe use of Lucis to select contrast points,array them into layers, and then diminishcertain layers to make the bite mark moresalient.50 Crucially, Palmbach used hislaptop during trial to demonstrate to thejury how Lucis is used, and compared theenhanced with the unenhanced photos infront of the jury.51 He was able to testifythat there was nothing in the enhancedimage that was not present in the originalphotograph.52 Fourth, Palmbach attestedto the accuracy and reliability of Lucis,pointing out that (i) Lucis (unlike

Original X-Ray image Lucis-enhanced X-Ray image



Photoshop, for instance) does not haveimage editing functions (other than glob-al contrast adjustment) and so cannot beused to manipulate images in any otherway; (ii) Lucis’s “marketing papers and anarticle that had been written concerningLucis” claimed that the program did notcreate artifacts,53 which if present mightincrease the program’s error rate54; and(iii) he had personally tested the program’saccuracy by enhancing an image of a bitemark which Karazulas had made on hisown arm.55 And while Palmbach, notbeing a computer programmer or com-puter expert, was unable to testify, pur-suant to the fifth factor of the Court’s test,that “the equipment was programmedcorrectly,” the Court appeared to findPalmbach’s testimony on the first four fac-tors sufficient to establish the reliability ofLucis and the visual evidence it was usedto generate.

In contrast, the State failed to offerfoundational testimony sufficient toauthenticate the Adobe Photoshop dentaloverlays (both those that used the tracingsof the defendant’s dentition and thosethat used scans of his dental molds). First,neither Palmbach nor forensic odontologyexpert Constantine Karazulas was able totestify that Photoshop was sufficientlyaccepted in the field to be considered“competent” or “standard practice.”56

Second, Karazulas could not testify that aqualified computer operator was employed;he could only testify that he had someoneelse operate the program because he didnot know enough to do it himself.57

Third, and for the same reason — he didnot operate the program himself —Karazulas could not testify whether prop-er procedures were followed in connectionwith the input and output of information.Fourth, the State did not persuade theCourt that Photoshop was sufficientlyreliable for purposes of forensic odontol-ogy; even though the defendant’s ownexpert testified that the American Boardof Forensic Odontology considersPhotoshop to be an “appropriate aid” inbite mark identification, the Court foundthat this alone “does not satisfy our multi-faceted standard.”58 And although theCourt did not specifically address theremaining factors in its test, it explainedat some length why Karazulas did notknow enough about how Photoshopworks to be subject to meaningful cross-examination as to how the overlays were

produced, including, most importantly,how the superimposition of the image ofthe defendant’s translucent teeth over thebite mark was produced and whether theexhibits had been altered or otherwiseimpermissibly manipulated in thePhotoshop process.59

To the casual reader it might at firstseem anomalous that the Court disallowedthe digital images created using Photoshop,a standard and widely available softwareprogram used by millions, while admittingthe images created using Lucis, a muchless familiar program. One might thinkthat Photoshop, due to its ubiquity, wouldbe closer to achieving the sort of “inherentreliability” that would obviate more oner-ous foundational requirements,60 much asunenhanced analog and digital photogra-phy have. The anomaly disappears, how-ever, when one considers the specificshortcomings in the foundational testimo-ny offered to authenticate the Photoshopoverlays in Swinton.61 Each of these maywell be addressed by advocates seeking touse Photoshop (or, by extension, otherdigital image processing technologies) infuture cases. In the next section of thisarticle, we offer a checklist to guide propo-nents (and opponents) of digital visualevidence.

Getting digital images admitted underSwinton: A checklist

What should proponents of Photoshopimages or any other digitally processedimages do to increase the likelihood thatthe images will be admitted into evidence?There is little by way of case law to guidepractitioners; for instance, there do notappear to be any reported opinions ordecisions on motions in limine regardingthe admissibility of Photoshop. As theSwinton Court itself noted, there havebeen few basic foundational challenges tocomputer generated photo enhancementsand to computer generated visual displaysmore generally.62 Perhaps lawyers have notyet made a habit of challenging the admis-sibility of digital images because, like thepublic at large, they have tended to deferto such images as sufficiently trustworthy,or perhaps they have felt that they lack thevisual intelligence and vocabulary to raiseappropriate challenges. Whatever the rea-son, now that Swinton has called theConnecticut bar’s attention to the issue ofthe reliability of digital visual evidence,

proponents of this evidence can expectmore challenges in the future.

With this in mind, we offer litigatorsthe following general checklist for pro-ducing digitally processed images usingprograms like Lucis or Photoshop andgetting those images admitted into evi-dence:

(1) Have the alterations made by aperson with sufficient experienceand skill in using the software.

(2) Have that person be available totestify sufficiently on direct, and becross-examined, regarding:

(a) His/her level of experiencemaking such alterations,

(b) The enhancement procedure ofthe alterations,

(c) The reliability of the computersoftware utilized for that purpose,and

(d) The accuracy of the resultingimage in depicting the originalthing or events recorded.

(3) Be sure that the computer softwareprogram is accepted in the field forwhich it is being used.

(4) Create and maintain a trail of allchanges made.

(5) Be able to offer the original(unaltered) version of the image forcomparison.

Further explanations of these itemsfollow:

(1) Have the alterations made by a personwith sufficient experience and skill in usingthe software. Only someone with experi-ence and skill in the use of the digitalimaging software will be able to testifysufficiently as to checklist items (2)(a) and(b). In addition, it will surely be more effi-cient for the proponent of the evidence tohave the same witness testify both as tothe processes used to generate the imagesin question and the reliability of the soft-ware more generally (item (2)(c)), so itmakes sense for the image processing to bedone by that same knowledgeable per-son.63

(2) Have that person be available to tes-tify sufficiently on direct, and be cross-exam-ined, regarding (a) his/her level of experiencemaking such alterations, (b) the enhance-ment procedure of the alterations, (c) the reli-ability of the computer software utilized forthat purpose, and (d) the accuracy of theresulting image in depicting the originalthing or events recorded. The proponent



must be prepared to offer a person who,based on personal knowledge, “can testifyaccurately as to the reliability of the evi-dence and the processes used to generateit.”64 The Court in Swinton explicitlynoted that the chemistry professor whoactually made the overlays might havebeen able to testify sufficiently about howPhotoshop works and the procedures usedto create the particular images in ques-tion.65 In particular, only the person whomade the displays would be likely to be ina position to testify as to whether theimages had been altered or improperlymanipulated during the process. Thisaddresses items (2)(a) and (b). Note thateven in the case of a more complex imageprocessing program like Photoshop, thewitness need not be a professional graph-ic artist (and thus an “expert” inPhotoshop); rather, any sufficiently expe-rienced and knowledgeable user of thesoftware ought to be able to testify ade-quately as to these matters.

How much computer expertise needthe witness have to be able to testify ade-quately as to item (2)(c), the reliability ofthe software? Swinton stated that the wit-ness must be someone with “‘some degreeof computer expertise, who has sufficientknowledge to be examined and cross-examined about the functioning of thecomputer,’” but need not be the program-mer of the software.66 Thus, a workingknowledge of the program is necessary,but the witness need not be able toexplain the algorithm or the complexcomputer code the program employs.67

Finally, item (2)(d) echoes the basic,simpler foundational requirement forphotographs and other non-computergenerated visual evidence, that it fairlyand accurately represent what it purportsto depict.68 This requirement is augment-ed but not obviated by the more stringenttest announced in Swinton. And it maywell be problematic with regard to animage processing system like Photoshop,which allows users to alter images in myr-iad ways that may be pleasing for aesthet-ic or other purposes but more question-able when used to depict legally relevantreality, whether associated with forensicexpert testimony or not. Thus it remainsimportant for a person with knowledge tobe able to satisfy the court that theprocessed image is accurate. Someoneother than the person who made the alter-ations to the original image could in the-ory testify as to the modified image’s accu-racy, as Karazulas did with regard to thevarious dental images of which the

Photoshop overlays were composed,69 butthe person who processed the image couldvery well provide more convincing testi-mony on this point.

(3) Be sure that the computer softwareprogram is accepted in the field for which it isbeing used. As discussed above, where digi-tally processed images are used in conjunc-tion with scientific or other expert testi-mony, a knowledgeable witness should beable to testify that the imaging program isconsidered “standard and competent” inthe relevant field.70 There does not appearto be any clear guide as to how accepted agiven program must be to meet this test;Swinton seemed to set a high bar, findinginsufficient even the defendant’s ownexpert’s concession that the AmericanBoard of Forensic Odontology consideredAdobe Photoshop to be “an appropriateaid” in bite mark identification,71

although this conclusion may have beentraceable to the Court’s generally negativeview of the State’s foundational testimonyregarding the Photoshop images. It is alsoseems that a program’s acceptance inforensic or non-forensic fields other thanthe particular one in which the expert inthe case at bar is testifying would not sat-isfy a court attempting to follow Swinton,even though a strong track record ofreliance and reliability in other forensicfields arguably ought to suffice. Referencesin widely recognized textbooks in the fieldto the program’s reliability, however,should help establish this part of the foun-dation.

Note finally that this requirementprobably should not apply at all where thedigitally processed image is not offered assubstantive evidence in conjunction withscientific or expert testimony. The require-ment derives from the first of Swinton’s sixfactors, that “the computer equipment[be] accepted in the field as standard andcompetent,” but if there is no “field” inwhich the witness claims expertise, the fac-tor would seem to be irrelevant.

(4) Create and maintain a trail of allchanges made. Whether or not the softwareprogram itself generates a log or history ofthe operations performed to create themodified image, it is important for theproponent of such evidence to establishsuch a record. There should be no betterway of convincing the court that theimage in question has not been improper-ly altered. Lucis, for instance, does notautomatically generate a record, but sincethe processing is typically very simple —one toggling operation using the two cur-sors or sliders — the operator can easily

record the settings manually.Photoshop, in contrast, permits users

to create and maintain a digital record ofall operations performed on the originalmaterial in the program. Simply offeringthe opponent (and the court) an unflat-tened .psd file so that the steps can bereviewed, however, is suboptimal because,for this method of disclosure to be effec-tive, the opponent (and the court) must(i) have a computer running the version ofPhotoshop in which the file was made tobe able to open the file; (ii) be able to runthe software; and (iii) know what to lookfor — any of which may be a dubiousassumption in any given case. Instead, itis recommended that for each change tothe image made during the use of the soft-ware, the operator (i) print out that ver-sion of the image, and (ii) save the digitalfile from which the version was printed.72

The proponent can then disclose to courtand adversary both the image and file foreach processing step, and can display eachof the steps in court so that the judge andjury can see for themselves that the imagewas not transformed in any impermissibleor inappropriate fashion. Indeed, courtsmay be well advised to permit the oppo-nents of Photoshop or other digitallyprocessed visual evidence to require thissort of documentation of the image cre-ation process, or to require it themselvessua sponte. This requirement would satisfythe third element of Swinton’s six-factortest (that proper procedures were followedin connection with the input and outputof information) and the demand for relia-bility in general.

(5) Be able to offer the original (unal-tered) version for comparison. A proponentwho can compare the original andenhanced or processed images in court canhelp persuade both judge and jury thatnothing of significance has been added toor taken away from the original image.The Swinton Court found it “important”that expert witness Palmbach comparedthe enhanced with the unenhanced pho-tographs in front of the jury.73 Courts inother jurisdictions, both before and afterSwinton, that have admitted enhancedversions of digital visual evidence havealso placed great emphasis on the propo-nent’s ability to compare the original andenhanced versions, thus persuading thosecourts that the enhanced images wereaccurate and trustworthy.74

In addition, although probably notstrictly required, a demonstration of thetechnology in court would enhance theimages’ prospects for admissibility. The



Swinton Court seems to have been partic-ularly impressed with expert witnessPalmbach’s in-court demonstration of theLucis enhancement process, culminatingwith a comparison of the unenhanced andenhanced images.75 A witness trained andexperienced in the use of Photoshopought to be able to perform a similardemonstration of how images can be dig-itally altered in that program, helping todemystify the process for judge andjurors. This would appear to pose few ifany of the problems that sometimes leadcourts to exclude demonstrations, such asunfairly appealing to jurors’ emotions orexaggerating one party’s version of eventscentral to the trial, or running a risk offabrication (especially if the output of thedemonstration is compared to the visualoffered as an exhibit).76 In any event,whether to allow a demonstration of thetechnology is within the broad discretionof the trial court.77

Conclusion The Connecticut Supreme Court’s

opinion in Swinton goes a considerableway toward clarifying the evidentiarytreatment of digitally processed images,an increasingly often used and veryimportant type of evidence. By subjectingthose images to fairly rigorous authentica-tion requirements, the Court sought toallay some of the most pressing concernsregarding the ease with which digitalimages can be altered and triers of factmisled. The Court has thus made it likelierthat trials in our digital age will beresolved on the basis of reliable visualevidence.

Important questions regarding theroutine use of digital images in courtremain unanswered. As noted earlier,Swinton did not address the use of digitalvisual and multimedia displays in openingstatements and closing arguments, asopposed to the evidentiary phase of pro-ceedings. These overtly argumentativeuses of digital technology, especiallyPowerPoint, are also becoming common,and their persuasive impact can be at leastas great as that of evidentiary exhibits.78

In State of Connecticut v. Skakel,79 theCourt recently upheld the State’s use of aninteractive multimedia program in closingargument, but it did so largely on thebasis of advocates’ general right to usevisual aids to assist their summations and

a broad conclusion that the State’s presen-tation was not confusing, prejudicial, ordeceptive. The Court did not attempt toanalyze the distinctive rhetorical effectsthat the digital multimedia program madepossible. In other words, the caution thatled the Court in Swinton to treat Lucis andAdobe Photoshop images as “computergenerated” and thus subject to a height-ened foundational threshold did not seemto play any role in its evaluation of thedecidedly more adventuresome technologydeployed in the summation in Skakel. Atsome point courts in Connecticut andelsewhere will have to engage the argu-mentative as well as the evidentiary uses ofdigitally processed images.

Larger ethical issues raised by the use ofdigital visual and multimedia technologyin court also need to be confronted.Perhaps the most commonly expressedconcern goes to inequality of resources: Isit fair if one side has access to the mostsophisticated image processing tools butthe other side does not? Certainly this is atroubling issue with regard to some kindsof digital imaging, but the concern may beoverstated with regard to programs such asLucis and Photoshop. First, these pro-grams are not very costly in the overallcontext of law practice, running to severalhundred dollars each 80 (although the costin terms of the time required for someoneinexperienced in image processing tobecome both experienced and skillful inthe use of Photoshop is not insignificant;alternatively, the out-of-pocket cost of hir-ing an experienced and skilled operator ineach case in which the software may beuseful is also not negligible). Second, noout-of-pocket expense is required tobecome sufficiently knowledgeable aboutthe range and possibilities of digital imag-ing to become an astute critic of one’sadversaries’ attempts to use those pro-grams, and thus to be able to raise moreconvincing challenges to proffers of thoseimages before and at trial. To this point (asSwinton noted81) lawyers have generallynot done a good enough job of articulatingobjections to the use of digital visual dis-plays in court. By learning how to do this,lawyers can not only serve their ownclients better but can also assist courts inrefining their understanding of the persua-sive effects of the new visual technologies.And in so doing, lawyers can help to reas-

sure both the profession and the publicthat legal judgments need not become lessaccurate and reliable simply because thelaw, like the culture at large, is going dig-ital.

NOTE: Lisa Podolski is a third-yearstudent and Neal Feigenson is Professor ofLaw at Quinnipiac University School ofLaw. The authors would like to thankAdam Freeman, Gregory Golden, BrianMatsumoto, and especially BarbaraWilliams for sharing their knowledgeabout Lucis, and Christina Spiesel foradvising us regarding Photoshop._____1 268 Conn. 781 (2004).2 We discuss only Lucis and Photoshop inthis article; it would take far too long toaddress all of the forms of digital visual andmultimedia displays being used in court.Much of what we have to say about the evi-dentiary treatment of these two digital imageprocessing technologies, however, is likely toapply more broadly. For discussions of othernew digital imaging technologies and theirevidentiary and rhetorical significance, see,e.g., Brian Carney & Neal Feigenson, “VisualPersuasion in the Skakel Trial: EnhancingAdvocacy through Interactive MultimediaPresentations,” 19(1) Crim. Justice 22-35(2004); Frederic I. Lederer, “The Road to theVirtual Courtroom? A Consideration ofToday’s — and Tomorrow’s — High-Technology Courtrooms,” 50 S. Car. L. Rev.799 (1999); Richard K. Sherwin, NealFeigenson, & Christina Spiesel, “Law in theDigital Age: How Visual CommunicationTechnologies are Transforming the Practice,Theory, and Teaching of Law” (B.U.J. Sci. &Tech. L., forthcoming 2006); see generally“Digital Evidence,” 19(1) Crim. Justice(2004) (symposium issue); “CourtroomTechnology,” 28(2) Law & Pol’y (2006)(symposium issue). 3 “Lucis DHP Algorithm TechnicalOverview” by Image Content TechnologyLLC; Copyright (c) 2003, pg. 4.4 “Hue” represents the specific color of thepixel, “saturation” indicates how strong thecolor is, and “luminance” indicates howbright the picture is. Id. at 11.5 Id.6 See infra (testimony of Palmbach in Swinton);see also http://www.imagecontent.com/lucis/applications/forensics/ for1.for1.html(visited 3/10/06).7 Dr. Gregory S. Golden, DDS, ChiefOdontologist, County of San Bernardino, CA(e-mail 3/10/06); interview with BrianMatsumoto, Associate Adjunct Professor,University of California at Santa Barbara,Department of Molecular, Cellular, andDevelopmental Biology, 3/10/06.8 Interview with Matsumoto, supra note 7.9 Arguably this is not a limitation of the pro-



gram at all, but rather a strength: It confirmsthat Lucis does not show viewers anythingthat was not in the original image.10 Interviews with Barbara Williams, CEO,Image Content Technology LLC (makers ofLucis), 1/17/06 and 2/27/06. 11 Nicholas Wade, “It May Look Authentic;Here’s How to Tell It Isn’t,” The New YorkTimes, p. F1 (January 24, 2006) (editors ofscientific journals use Photoshop and otherprograms to detect manipulations of imagesin submitted papers).12 Interview with Dr. Adam J. Freeman,DDS, Forensic Odontologist, 3/4/06.According to Freeman, Photoshop is generallymore widely used because of its affordabilityversus Lucis, which is a more expensive soft-ware option and relatively new (but cf. infranote 80). 13 Michael Bowers, Forensic Dental Evidence(2004); Raymond J. Johansen & MichaelBowers, Digital Analysis of Bite Mark EvidenceUsing Adobe Photoshop (2000).14 Kasey Wertheim, “Adobe Photoshop forDemonstrating Latent Print Uniqueness,” 53J. Forensic Identification 707 (2003). 15 Charles E. H. Berger et al., “ColorSeparation in Forensic Image Processing,” 51J. Forensic Sci. 100 (2006); Alan Chaikovskyet al., “Color Separation of Signature andStamp Inks to Facilitate HandwritingExamination,” 48 J. Forensic Sci. 1396(2003).16 See, e.g., Rebecca Parrott Waldren,“Expectations and Practical Results inFingerprinting Technology: Where Is theLine Drawn?,” 31 J. Legis. 397, 405-06(2005) (asserting that “many fingerprintexperts have become wary of using [AdobePhotoshop because t]hey realize that if such aprogram is employed, their findings couldeasily be attacked for possible manipulationbecause of [the program’s image manipula-tion] capabilities”). 17 At least the most recent versions ofPhotoshop include a “history bar” that showsall changes made to the image, but the histo-ry bar does not reopen with a flattenedimage, so someone bent on concealing his orher steps can avoid this method of detection. 18 See infra at 38.19 See Dr. Constantine (Gus) Karazulas, ChiefForensic Odontologist, Connecticut StatePolice Forensic Science Lab, New ForensicOdontology Tools (unpublished article datedMarch 28, 2001). The defendant also madeseveral incriminating statements which theState offered against him at trial. Swinton,268 Conn. at 788-94. 20 Swinton, 268 Conn. at 787, 828 (“highlyqualified”).21 Id. at 794-95.22 Id. at 794 (Lucis), 826 (Photoshop).23 Id. at 794.24 Most scanners automatically enhance theimage as it is scanned, which may make theimage more visually appealing but removes

data. The scanner used to create the images inSwinton was set to scan without enhancingthe image. (We thank Barbara Williams forthis observation.) 25 Id. at 799-800.26 Id. at 801.27 Id. at 786-87 & n. 4.28 Id. at 822-23. Although the opinion is notentirely clear about this, it appears thatKarazulas created some of the dentition trac-ings by placing the molds taken of the defen-dant’s teeth directly on a scanner, scanning theimage, and then creating the tracings as above(id. at 822 n. 36, 823 n. 39). 29 Id. at 828-29.30 Id. at 827-28.31 Id. at 827 n. 43. 32 Id. at 828 & n. 46.33 509 U.S. 579 (1993). Connecticut adoptedthe Daubert standard in State v. Porter, 241Conn. 57 (1997), cert. denied 523 U.S. 1058(1998).34 Daubert, 509 U.S. at 592-93, quoted inSwinton, 268 Conn. at 795.35 Swinton explains that evidence must be reli-able in order to satisfy confrontation clauserequirements. 268 Conn. at 796-77. 36 The Court rejected the defendant’s argu-ment on appeal that bite mark evidence ingeneral is unreliable, id. at 796-97 n. 14, andthere does not appear to have been any chal-lenge to Dr. Karazulas’s qualifications to testi-fy as an expert in this regard (cf. id. at 820-21(Karazulas’s qualifications)). Karazulas’s opin-ion that the defendant was the one who madethe bite marks on the victim’s body was basedon his examination of the molds made fromthe defendant’s teeth by Lester Luntz, anotherforensic odontologist (see id. at 786, 787 & n.4), the unenhanced bite mark photographs,and a comparison of the two (id. at 821-22),as well as his creation and examination of thePhotoshop overlays discussed in the text (id.at 822-25). 37 Id. at 802 & n. 20. The instability of thecategory of demonstrative evidence is wellknown; see, e.g., Thomas A. Mauet & WarrenD. Wolfson, Trial Evidence § 10.4, at 332-35(3d ed. 2005); Christopher Mueller & LairdKirkpatrick, Evidence § 9.4, at 1003 (3d ed.2003). Jennifer Mnookin, “The Image ofTruth: Photographic Evidence and the Powerof Analogy,” 10 Yale J. L. & Hum. 1 (1998),traces this instability to the origin of the cate-gory in the late 19th century as a response toa new form of visual evidence, photography,and an attempt to negotiate the tensionbetween photographs’ exceptional power, theirseeming ability to transcribe nature directly,and their status as human artifact, susceptibleof being manipulated to mislead viewers. 38 Id. at 802 n. 20, 827 & n. 41. The Court(id. at 802 n. 20) quoted Tait, ConnecticutEvidence (3d ed. 2001) for the propositionthat “demonstrative evidence is not merely‘illustrative’; it is just as much substantive evi-

dence of the facts it depicts or portrays as isreal or testimonial evidence.” This would sup-port categorizing all demonstrative evidenceas substantive, not necessarily just visual evi-dence offered and admitted as such (as wasthe case with the Lucis enhancements andPhotoshop overlays in Swinton). 39 Id. at 803, 817-18 & n. 30. The Court,however, explicitly reserved judgment on thevalidity of the animation/simulation distinc-tion (id. at 803 & n. 21).40 Id. at 803, 817-18 & nn. 30-31. 41 Id. at 802-05. 42 The State’s use of Lucis, for instance,seemed to blur the difference between merelypresenting (traditional photographic) evidenceand creating new visual evidence, underminingthe usefulness of that distinction in helpingthe Court select the appropriate rule (id. at804-05). 43 Id. at 804, 818. The Court seemed espe-cially concerned that “[d]igital images are eas-ier to manipulate than traditional photographsand digital manipulation is more difficult todetect” (id. at 805 n. 24, quoting JillWitkowski, “Can Juries Really Believe WhatThey See? New Foundational Requirementsfor the Authentication of Digital Images,” 10Wash. U. J. L. & Pol’y 267, 271 (2002)). Onthe detection of digital image manipulation,see Wade, supra note 11. Note that althoughsimple, unenhanced digital photographs (andvideos) are literally “computer generated evi-dence,” it would seem that the Court wouldnot subject them to the more demandingfoundational requirements of Swinton, butonly to the basic requirements applied to ana-log photographs. Such a conclusion might bejustified on the ground that for the digitalimage to be manipulated, it has to beprocessed through some other program(which itself will be subject to the more strin-gent requirements), and/or that digital pho-tography is already considered to haveachieved sufficient “inherent reliability” toobviate a more demanding foundation (seeSwinton, 268 Conn. at 831 n. 51). 44 Id. at 811-12 (quoting ChristopherMueller & Laird Kirkpatrick, Evidence (2d ed.1999)).45 Id. at 812 (quoting Nooner v. State, 322Ark. 104 (1995)).46 Id. at 813-14.47 Id. at 831 n. 51; see also 818.48 Id. at 814-15.49 Id. at 815.50 Id. at 815-16.51 Id. at 816.52 Id.53 In fact, as noted supra, Lucis is capable ofgenerating one artifact, a shadowing that canobscure some information in a narrow bandnear a sharp discontinuity, although none ofthe Lucis images in Swinton featured thisartifact.



54 Palmbach testified that he was not aware oferror rates regarding Lucis (Swinton, 268Conn. at 816), but the Court apparentlyinferred from what Palmbach did testify to(that Lucis’s marketing papers and “an article”claimed that the program was “artifact-free”(id.)) that the error rate was low enough. TheCourt’s somewhat flexible attitude towarderror rate might not be what one would haveexpected given Daubert’s emphasis on errorrate as one of the four factors to be consid-ered in its (non-exclusive) test of the reliabili-ty of scientific evidence, and it does not seementirely consistent with what some expertsbelieve to be an imminent reevaluation of tra-ditional forensic identification sciences due tonewly found (or newly reported) significanterror rates (see Michael J. Saks & Jonathan J.Koehler, “The Coming Paradigm Shift inForensic Identification Science,” 309 Science892 (August 5, 2005)) . 55 Id. at 816-17. 56 Id. at 827-28 & n. 43. 57 Id. at 828.58 Id. at 828 & n. 45. 59 Id. at 829-31. The State argued that theadmission of the Adobe Photoshop overlaysconstituted harmless error because the jurywas able to test the accuracy of what thecomputer had generated by taking the originalexhibits and manually laying one over theother to replicate the computer’s results. TheCourt held that only the admission of the fewexhibits composed of tracings of the defen-dant’s dentition superimposed over photo-graphs of the bite mark constituted harmlesserror, reasoning that it would be impossiblefor anyone to manually recreate those overlaysdepicting translucent images of the defendant’steeth superimposed over the bite mark. Id. at840. The Court further concluded that theexpert’s properly admitted testimony regardingexhibits other than those created using AdobePhotoshop went “a long way in renderingharmless the improperly admitted evidence.”Id. at 842.60 Id. at 831 n. 51.61 The outcome in Swinton is also not anom-alous in light of the fact that Photoshoppermits digital images to be altered in manyways that may be problematic in terms of theaccuracy and integrity needed for forensicuses. Because Karazulas did not offer testimonysufficient to describe how the particularPhotoshop overlays had been created, howev-er, the Court did not need to analyze indepth whether Photoshop, if competently andproperly operated, would have been a reliableenough program for this purpose. 62 Id. at 807-08 & n. 25. Anecdotally, Dr.Gregory Golden (supra note 7) reports thathe has introduced Lucis enhanced images in“at least two trials” without any challengefrom the opponents.

63 To ensure that the person engaged toprocess the images is sufficiently experiencedand skilled, the lawyer should first ask for andreview a portfolio of the person’s previouswork using that software program. The lawyershould also talk with the person to gaugewhether the person will be able to explainclearly on the witness stand everything thathe or she needs to explain about how the pro-gram works and how it was used to make theimages in question (see item (2) below).Finally, if the person operating the softwareprogram is not also the scientific or forensicexpert who will be testifying about the mat-ters illustrated by the images or lacks exten-sive experience in processing these particularkinds of images (e.g., dental overlays), thenthe person should process the images in con-sultation with the scientific or forensic expertso that the latter can offer supporting testi-mony as to the accuracy of the images (seeitem (2)(d) below). All of these steps will behelpful in reducing the chance that a designprofessional skilled in the use of Photoshopor other digital imaging software who may beunfamiliar with the constraints of producingaccurate images for courtroom use mayprocess the image in ways that strike him orher as effective but risk undermining theveracity, and hence admissibility, of the result-ing image. 64 Id. at 830.65 Id. at 831. The Court was careful to notethat the testimony of the person who createdthe overlays might or might not have beensufficient in itself to establish their reliability.Id. at 831 n. 50.66 Id. at 810, quoting American Oil Co. v.Valenti, 179 Conn. 359 (1979).67 Regarding the reliability of Photoshop,proponents should note that the software is astandard program which individual userscannot customize through (re)programming.Thus, the only issue in this regard is whetherthe operator used a computer with sufficientcomputing resources to run the particularversion of Photoshop properly. 68 Id. at 802. Of course, when a visual displayis offered not as a depiction of reality butsimply to illustrate and thus clarify testimony(e.g., a chart or diagram), then there is nosimilar need to authenticate the display as afair and accurate representation of what itpurports to depict, although the display maystill be excluded if it creates risks of unfairprejudice, confusion, or misleading the jurythat outweigh its probative value (here, tohelp the jury in understanding the testimonywhich the display accompanies (ConnecticutCode of Evidence 4-3 (2006)). 69 See supra.70 Swinton, 268 Conn. at 827 & n. 43.71 Id. at 828 n. 45. 72 The file can be saved as a standard .jpeg

file and printed or brought into PowerPoint forlater courtroom display (even in the latter case,a printed copy should be prepared for therecord).73 Id. at 816. With regard to the Photoshopoverlays, expert witness Karazulas testified thatthe manual and computer copies of the trac-ings of the defendant’s dentition and the scansof the defendant’s teeth molds that appeared inthe overlays were “fair and accurate portrayalsof their original corresponding evidence,” butthe Court opined that this “visual inspection ofthe separate pieces [of the overlays] . . . wasnot enough to ensure the reliability of thesuperimpositions,” because “odontologicalmatching depends on millimeters, [so that] amillimeter or two either way could make thedifference between a point of concordance anda point of discordance” (id. at 829 n. 47). It isunclear just what sort of further (necessarilyvisual) comparison would have satisfied theCourt on this point. Possibly, had the Stateoffered testimony that provided greater reassur-ance regarding the creation of the overlays inPhotoshop, the Court would not have beenquite as critical regarding the comparison testi-mony; perhaps also the Court was indicatinghere its concerns regarding the fairly compli-cated series of steps prior to the Photoshopprocess in which Karazulas started with themolds taken of the defendant’s teeth and endedwith a photocopy on acetate of manual trac-ings that was digitized (when scanned into thecomputer) and only then amenable to process-ing in Photoshop. 74 See United States v. Beeler, 62 F. Supp. 2d136 (D. Maine 1999) (digitally enhanced sur-veillance videotape); United States v. Siefert,351 F. Supp. 2d 926 (D. Minn. 2005) (same).Whether or not visual comparison of originaland enhanced images ought to provide suchreassurance (see note 73 supra), it seems thatthe few courts to deal with these questionshave generally considered them favorably. 75 Swinton, 268 Conn. at 816. 76 See Christopher Mueller & LairdKirkpatrick, Evidence § 9.34, at 1055 (3d ed.2003).77 Id.78 See Carney & Feigenson, supra note 2;Sherwin, Feigenson, & Spiesel, supra note 2.79 SC 16844 (January 24, 2006). 80 As of this writing, Adobe PhotoshopCS2 retails for about $550-$600(http://www.pricegrabber.com/p_Adobe_Photoshop_CS2,_8097441) (visited 3/13/06)and Lucis for about $500 (e-mail from BarbaraWilliams 3/9/06). 81 Supra at 62.



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