Opinion
No. 568691
April 12, 2007
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO PRECLUDE AND FOR A "PORTER" HEARING
BACKGROUND
This matter came to the Court originally by writ, summons and complaint dated February 23, 2004, in which the plaintiffs, on behalf of two decedents, claim their deaths were caused by the defendants' negligence with respect to a fire at a rental property occupied by them.
After various interlocutory pleadings and filings, the defendants filed an Amended Disclosure of Experts, dated October 3, 2006, in which Vincent P. Calenda, was disclosed as an expert witness. The subject matter of his proposed testimony was stated as follows:
Mr. Calenda is expected to testify as to the development of the fire at 120 Blinman Street, New London, CT on March 1, 2002; the role and efficacy of smoke detectors in providing an early warning of the presence of a fire; the known and documented actions of the occupants of the apartment; and that the presence of operational smoke detectors in the apartment under the facts known played no role in the resulting deaths of the two decedents.
Thereafter, on March 12, 2007, the plaintiffs filed a motion entitled: "Motion in Limine To Preclude and for a `Porter' Hearing." In the motion the plaintiffs move to preclude the testimony of Vincent P. Calenda (the witness). In the motion the plaintiffs raise two separate claims. First, that the witness is not qualified to testify as an expert. Second, that since the witness' opinion is not based on any scientific methodology it would be precluded by a "Porter" analysis.
Later, on April 4, 2007, the defendants filed an objection to the motion in the nature of a brief. In their brief the defendants set forth their argument (with citations) as to why the witness is in fact qualified and why a "Porter Hearing" is not required.
A hearing was held on the plaintiffs' motion in this court on April 5, 2007, where all parties were represented by counsel, evidence was presented and arguments were offered. After the hearing the defendants filed a Supplemental Memorandum on April 9, 2007.
THE LAW "Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility." E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2nd 549 (Tex. 1995).Section 7-2 of the Connecticut Code of Evidence deals generally with the testimony by experts. It says "[A] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue."
Also under Connecticut's rules of evidence, a witness is only permitted to express an opinion if they "have any particular knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience an aid to the court or the jury in determining the questioned issue." Puro v. Henry, 188 Conn. 301, 309 (1982).
With regard to scientific evidence, the case of State v. Porter, 241 Conn. 57 (1997) adopted standard set forth in the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), in lieu of that used earlier from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
In some limited situations or circumstances, scientific evidence does not require a Porter analysis. This was recently addressed in the case of Prentice v. Dalco Electric, Inc., 280 Conn. 336 (2006), where the court said:
The plaintiff argues that pursuant to our holdings in State v. Reid, 254 Conn. 549, 546-49, 757 A.2d 482 (2000), and State v. Hasan, 205 Conn. 485, 490-91, 534 A.2d 877 (1987), a validity assessment by the trial court was not required in this case because not all testimony grounded in scientific principles requires a Porter hearing . . .
In Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 170-71 n. 22, we noted a line of cases dealing with scientific evidence that falls within the narrow category of exceptional situations wherein `although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, [the evidence is] not scientific for the purposes of our admissibility standard for scientific evidence, either before or after Porter.' (Internal quotation marks omitted.) In particular, we referenced State v. Reid, supra, 254 Conn. 547-49, in which we concluded that the testimony of a criminologist regarding visible characteristics of, and similarities between, strands of hair was not scientific evidence for Porter purposes, and State v. Hasan, supra, 205 Conn. 490, in which we held that a podiatrist's testimony as to the likelihood that a certain pair of sneakers would fit on the defendant's feet was not scientific evidence . . .
This narrow and distant line of cases `indicates that evidence, neither scientifically obscure nor instilled with an aura of mystic infallibility . . . which merely places a jury . . . in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge . . . is not the type of scientific evidence within the contemplation of Porter . . .' (Citations omitted; internal quotations marks omitted.) Maher v. Quest Diagnostics, Inc., supra, 269 Conn. 170 n. 22. In particular, we noted that ` Hasan and Reid stand for the proposition of evidence, even evidence with its roots in scientific principles, which is within the comprehension of the average juror and which allows the jury to make its own conclusions based on its independent powers of observation and physical comparison, and without heavy reliance upon the testimony of an expert witness, need not be considered scientific in nature for the purposes of evidentiary admissibility.' (Internal quotation marks omitted.) Id., 170-71 n. 22. In short, in Hasan and Reid the expert witness taught the jury how to look at physical evidence and then left the jury to look at that evidence and reach its own conclusions . . .
"Any exemption for scientific evidence that depends upon existing techniques must presuppose an ability on the part of the proponent of the evidence to `provide a sufficient articulation of the methodology underlying the scientific evidence.' Maher v. Quest Diagnostics, Inc . ." Prentice v. Dalco Electric, Inc., 280 Conn. 336 (2006).
"In order to render an expert opinion, the witness must be qualified to do so and there must be a factual basis for the opinion." State v. Asherman, ". . . The essential facts on which an expert opinion is based are an important consideration in determining the admissibility of his opinion. See Berndston v. Annino, 177 Conn. 41, 46, 411 A.2d 36 (1979); Sears v. Curtis, 147 Conn. 311, 314-15, 160 A.2d 742 (1960). "Where the factual basis of an opinion is challenged the question before the court is whether the uncertainties in the essential facts on which the opinion is predicated are such as to make an opinion based on them without substantial value." State v. Asherman, supra, 716-17. That question is one of fact for the trial court. Liskiewicz v. leBlanc, 5 Conn.App. 136, 141, 497 A.2d 86 (1985)."
"Furthermore, in order to be admissible, the proffered expert's knowledge must be directly applicable to the matter specifically in issue. State v. Biller, supra; Going v. Pagani, supra; Siladi v. McNamara, 164 Conn. 510, 513-14, 325 A.2d 277 (1973)." State v. Douglas, 203 Conn. 4445 (1987).
FACTS
From the evidence presented and the stipulations of counsel at the hearing the following facts are found.
At the hearing the witness was called to testify. His Curriculum Vitae was introduced as an exhibit. He is a college graduate, a professor in a fire science program at a community college and a fire investigator since at least 1988. He has been employed as a fire fighter, a lieutenant and a captain at a Rhode Island fire department since 1975. He has been "certified" by two different associations as a fire investigator. He has received special training in relation to fire safety matters over many years in numerous courses and seminars including specifically courses in fire investigations. He has been a speaker or participant in numerous fire safety programs. He holds many fire investigation and protection association memberships. He has been recognized as an "expert" and permitted to testify in several courts. Many of the matters he has been involved with over the years have involved various aspects of smoke detectors, including cases where fatalities occurred notwithstanding the presence of operational smoke detectors. He has been involved in about 2,500 fire investigations over his years of experience. He is familiar with the various codes relating to the installation of fire alarm systems and the National Fire Protection Handbook relating to the same. His opinions in this case take into consideration the material learned by reading the depositions and reports of others particularly about the activities of the residents of the dwelling after learning of the existence of the fire. He is expected to testify at trial, among other things, that the absence of smoke detectors (if indeed there were none) played no role in the deaths of the plaintiff's decedents.
He will base that, not upon any scientific or technical theory but on his assumption from the depositions and reports made available to him that the adult in the dwelling engaged in various activities after learning of the fire.
CONCLUSION
Applying the law set out above to the facts found, the court finds that the witness is qualified in the area of fire safety, including the use of smoke detectors and the other aspects of his proposed opinions as disclosed above. His testimony will assist the trier of fact in understanding the evidence. With regard to the plaintiff's second claim the court finds that this situation falls into that narrow line of cases where expert opinion evidence is not required to be subjected to a Porter analysis. The witness' opinions are based on his experience and training and his reading of the depositions and reports relating to the fire at the plaintiffs' dwelling. He does not base his opinion on any new scientific or technical theory. Even the plaintiffs in their motion make clear they do not claim any scientific methodology is involved in the witness's proposed testimony. To use the terminology of Justice Borden in Prentice v. Dalco Electric, Inc., 280 Conn. 336, 353 (2006): ". . . even evidence with its roots in scientific principles, which is within the comprehension of the average juror and which allows the jury to make its own conclusions based on its independent powers of observation and physical comparison, and without heavy reliance upon the testimony of an expert witness, need not be considered scientific in nature for the purpose of evidentiary admissibility . . ." Here, the witness taking note of the rescue of some of the occupants of the dwelling and the activity of the decedent grandmother after being aware of the fire, is dealing with factors which will fall into that category. Accordingly the court finds that the witness' disclosed opinions do not require a Porter analysis.
The motion in limine to preclude the testimony of the defendant's expert, Vincent P. Calenda, is denied.