Opinion
No. CV-05-5000094
March 14, 2007
MEMORANDUM OF DECISION DEFENDANT BRINKER CONNECTICUT CORPORATION'S MOTION TO PRECLUDE THE TESTIMONY OF MICHAEL SHANOK
BACKGROUND
This is a premises liability and negligence action in which the plaintiff alleged sustaining injuries when she alleges she was hit in the head by a descending swing-up assistance bar (grab bar) in a handicapped ladies' room at the defendant's restaurant.
The defendant, Brinker Connecticut Corporation, (defendant) has moved to preclude the testimony of the plaintiff's proposed expert witness, Michael Shanok, on multiple grounds.
A Porter hearing was held by the court at which the parties were permitted to introduce evidence and advance their respective arguments. Prior to the hearing, extensive briefing had been accomplished.
In her amended complaint the plaintiff has two counts. In the first count, making a premises liability claim, she alleges the defendant's premises were defective in one or more of the following ways:
(1) The handicap bar had no safety or locking mechanism which would prevent it from suddenly crashing down, despite the fact that it was weighted and could suddenly crash down on patrons;
(2) The restroom stalls failed to supply any hook or appropriate area for patrons to place their personal belongings, such as purses and coats;
(3) There were no signs warning patrons of the dangers of said handicap bar, which could suddenly come crashing down due to its weight and/or lack of safety or locking mechanism.
In the second count, sounding in negligence, the plaintiff alleges the defendant was negligent in one or more of the following ways:
(1) They supplied a handicap bar which was dangerous and/or defective in one or more of the following ways:
(a) Failed to secure it with a safety or locking mechanism which would prevent it from suddenly crashing down;
(b) It was weighted, but had no mechanism to prevent it from suddenly crashing down.
(2) They failed to supply any hook or appropriate area for patrons to place their personal belongings, such as purses and coats, in the individual bathroom stalls, thus making it foreseeable that patrons would place their belongings on the handicap bar;
(3) They failed to warn patrons of the dangers of said handicap bar, which could suddenly come crashing down due to its weight and/or lack of safety or locking mechanism.
(4) They failed to maintain the handicap bar in a safe condition such that it would not pose a danger to or cause injury to patrons.
In the plaintiff's amended disclosure of expert witness, filed May 18, 2006, it is alleged that Mr. Shanok is expected to testify as to the following matters:
(1) The hinged wall-mounted safety rail had no locking mechanism to enable retention of it in the raised position and was in an unsafe, hazardous condition such that it caused the plaintiff's injuries when it inadvertently swung down causing plaintiff an impact injury;
(2) The hinged wall-mounted safety rail had a safety mechanism to enable retention of it in the raised position and to enable a slow descent but such mechanism was misadjusted and was in an unsafe, hazardous condition such that it caused the plaintiff's injuries when it inadvertently swung down causing plaintiff an impact injury;
(3) There were other feasible, economical and safe hinged wall-mounted safety rails available in the marketplace which would have prevented this accident from occurring;
(4) The bathroom stall where the plaintiff suffered traumatic injury due to the hinged wall-mounted safety rail had no visible signs warning of the hazard regarding the hinged wall-mounted safety rail;
(5) The bathroom stall where the plaintiff suffered traumatic injury due to the hinged wall-mounted safety rail had no wall hooks, door hooks or other mechanisms or furnishings where a patron such as a plaintiff could place her pocketbook or bag;
(6) Regular maintenance and/or reference to the product manual would have disclosed that this hinged wall-mounted safety rail had a safety mechanism to stop it from freely swinging down and striking a patron or that a locking mechanism could be installed to remove this unsafe condition;
(7) The ADAAG Manual recommends non-swinging safety rails and does not recommend "movable grab bars";
(8) The International Code Council American National Standards Institute, Inc. in its American National Standard for Accessible and Usable Buildings and Facilities mandates non-swinging safety rails and does not recommend movable safety rails;
(9) National manufacturers of hinged wall-mounted safety rails recognize the hazard of such rails without design features to prevent them from inadvertently falling down and causing impact injuries;
(10) The unsafe condition of the loose and free swinging hinged wall-mounted safety rail in the accident location in this case was readily apparent and the accident resulting from this rail inadvertently falling down causing an impact injury was foreseeable; and
(11) In the location of the accident in this case, the top of the toilet tank was not accessible due to a fixed grab bar attached to the wall above and adjacent to the tank top.
The defendant, in its Motion to Preclude, essentially has made three disparate claims with respect to Mr. Shanok's proposed testimony. (1) He lacks the necessary qualifications; (2) his testimony could not meet the Porter standards for scientific evidence; and (3) there is an insufficient factual basis for his opinions. The Motion asks the court to "preclude the plaintiff from offering the testimony of Mr. Shanok in this case."
The plaintiff, on the other hand, asserts that Mr. Shanok is qualified, that his testimony either meets the Porter requirements or, in the alternative, that test is not required in this situation, and that he has established a sufficient factual basis.
STANDARDS
"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."
In the case of State v. Porter, 241 Conn. 57 (1997), our Supreme Court adopted the standard set forth in the United States Supreme Court case of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in lieu of that utilized earlier from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The standard adopted there, relating to the acceptance of scientific expert testimony, was more recently succinctly set forth in State v. Kelly, 256 Conn. 23 (2001), as follows:
. . . Under Daubert, before proffered scientific evidence may be admitted, the trial court must determine whether the proffered evidence will "assist the trier of fact . . ." Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 509 U.S. 589. "This entails a two part inquiry: whether the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid and, . . . whether that reasoning or methodology properly can be applied to the facts in issue . . . In other words, before it may be admitted, the trial judge must find that the proffered scientific evidence is both reliable and relevant. More specifically, the first requirement for scientific evidence to be admissible . . . is that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods arid procedures of science . . . and is more than subjective belief or unsupported speculation." (Citations omitted; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. 63-64, citing Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 592-93.
The [ Daubert] court listed four nonexclusive factors for federal judges consider in determining whether a particular theory or technique is based on scientific knowledge: (1) whether it can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence or maintenance of standards controlling the technique's operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community. [ Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 509 U.S.] 593-94. State v. Porter, supra, 241 Conn. 64. The court in Daubert further articulated, however, that the inquiry "is . . . a flexible one." Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 594. To the extent that they focus on the reliability of evidence as ensured by the scientific validity of its underlying principles, [other factors] may well have merit . . . Id., 594-95 n. 12.
Under Daubert, scientific evidence must also fit the case in which it is presented. Id., 591. "In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract." State v. Porter, supra, 241 Conn. 65. Finally, the Daubert court emphasized that even if a scientific theory or technique would be admissible under the aforementioned criteria, it can still be excluded for failure to satisfy some other federal rule of evidence. Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 509 U.S. 595. Most important, proffered scientific testimony can still be excluded for failure to satisfy rule 403 of the Federal Rules of Evidence, which allows for the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ." (Citations omitted; internal quotation marks omitted.) Daubert v. Merrill Dow Pharmaceuticals, Inc., supra, 595.
In the Porter analysis the court is not concerned with the results of the witnesses' opinions, but in the methodology utilized. Also there must be a carefully reasoned decision in which the court makes a concerted effort to educate itself from the evidence about the proposed area of expertise. Also, under Connecticut's rules of evidence, a witness is only permitted to express an opinion if they "have any peculiar 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).
In some 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 a 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 distinct 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 quotation 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 that 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).
"The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983)." State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).
"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).
ANALYSIS/FACTUAL FINDINGS
The court will make its factual findings from the Porter hearing, including the testimony and exhibits, and taking into account the court's evaluation of the credibility of the witness, as the respective claims are discussed.
Before a review of the issues relating to the proposed expert testimony it would be of assistance to understand the underlying issues in the case. As indicated above, the plaintiff's amended complaint alleges that the plaintiff was a business invitee in the defendant's restaurant when she was hit in the head by a "grab bar" in a handicap stall in the ladies' bathroom. A grab bar is also variously referred to in the evidence as an ADA Toilet Grab Bar, a Universal Grab Bar, a Flip-Up Grab Bar and a Swing-Up Assistance Bar. The first count alleges that the defendant's premises was defective in several ways all relating to the rate of fall of the "grab bar" and the layout of the bathroom. In the second count the plaintiff alleges the defendant negligent in connection with the operation and maintenance of the "grab bar." This is not a products liability suit. The "grab bar" at issue in this case is designed in such a way that it is up vertically against the wall adjacent to a toilet until it may be needed by a disabled person who would move it down into a horizontal position thereby providing the support of a railing adjacent to the toilet. The "grab bar" swings or pivots on a hinge, containing an adjustable clamping mechanism, which permits the up and down motion of the bar. The primary "scientific" or "technical" evidence in the case relates to the amount of force needed to move the bar from its upright position to the horizontal position. This is because the plaintiff alleges she was hit when the bar fell from its upright position (after she hung her eight-pound purse on the top of it) and hit her on the head as she was bending down to assist her child to use the toilet.
The first claim of the defendant is that the prospective expert lacks the necessary qualifications. His Curriculum Vitae was introduced as Plaintiff's Exhibit 1. Mr. Shanok is a licensed professional engineer with considerable training and experience in mechanical engineering and safety matters. Mechanical engineers generally work in areas involving movable parts like hinges. He has been honored by the American Society of Safety Engineers where he holds professional safety status. Although he has no prior experience with the specific device involved in this case, i.e., a "grab bar" installed in a handicap bathroom to comply with the Americans With Disabilities Act (ADA), he has considerable experience with mechanical systems involving clamping mechanisms including designing such mechanisms. He has been involved in about 3,000 cases as an expert (Defendant's Exhibit 1) and has knowledge of the various codes and regulations dealing with construction and safety. The evidence of his activities subsequent to his engagement in this case, which will be reviewed hereafter, does suggest to the Court that Mr. Shanok has obtained information beyond the ken of the average juror with respect to the matters at issue here.
The Court finds that Mr. Shanok does possess the necessary qualifications to offer a reliable opinion on the subject of handicapped-accessible bathroom equipment and design as it relates to the rate of fall of the grab bar or the adjustment of its safety equipment or its maintenance.
Next the court will review the plaintiff's claim that a Porter analysis is not appropriate to this type of expert testimony. The plaintiff in her brief compares the facts in this case to the Reid and Hasan cases claiming that the witnesses' testimony will not require the jury to put aside their common sense and independent judgment and follow the expert's analysis. While the law does not provide a bright line to distinguish between those cases which do require a Porter analysis and those which do not, there are many examples in our recent cases from which we can gain insight. Justice Borden in the case of Prentice v. Dalco Electric, Inc., supra, at 352, outlined a measure to be used when applying the exception to the Porter requirement: ". . . 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 . . ."
The court here is persuaded by the plaintiff's argument that this case falls within that category. Essentially the "science" involved here relates to the amount of pressure applied to an adjustment screw or bolt which tightens a clamp around a hinge to effect its movement. The more the clamp is tightened the slower the grab bar descends. The plaintiff's expert claims the clamp was adjusted too loose so that the bar could "free fall" rather than fall slowly at a controlled pace. This does not involve the "aura of mystic infallibility" nor is it "scientifically obscure."
For this reason the court finds a Porter analysis inappropriate to the case.
The defendant's many claims concerning the adequacy of the witnesses' evaluation, the time spent in the ladies' room or the appropriateness of the comparison with other grab bars go to the weight to be accorded the testimony, not its admissibility.
Even if Mr. Shanok's proposed testimony is reviewed on the basis of the Porter analysis it would still withstand such scrutiny.
Looking at the requirements of that analysis, the first of the two-part test is whether the reasoning or methodology underlying the theory is scientifically valid. While the plaintiff at the hearing did not specifically advance a "theory" or any specific type of "science" involved in Mr. Shanok's investigation or analysis, it did appear to the court that his opinion was based primarily on his view that the rate of fall (described as a "free fall") of the bar after it had been moved slightly from its upright position was too fast. He opined that an adjustment to a screw that was provided would affect the hinge and slow the rate of descent of the bar. His testing of the grab bar in question involved moving the bar from its vertical position with his fingers to a point in its arc where it fell to the down or horizontal position. He acknowledged that he had no knowledge as to the specific amount of force required to move the grab bar in the ladies' room but his brief test suggested that it would "free fall" when moved slightly from the vertical position. No evidence of any testing of such equipment by others appeared appropriate. No peer reviewed publication of any "theory" relevant to his opinion was introduced. A publication was introduced from an instruction sheet which came from a manufacturer of a grab bar the expert said was the same as the one at issue. There was evidence that there was a code requirement about the amount of force needed or appropriate to move grab bars from their upright position into the horizontal position. The witness did not identify the particular code. The grab bar in question met the ADA code requirements. It also met the Connecticut Building Code requirements. The ICC, ANSI A1117.1 Code dealing with grab bars of the type used in the defendant's ladies room has no specifications as to the degree of freedom that the bar can swing down or the rate of fall. Since the witness observed the rate of fall, his evaluation is objective rather than subjective in nature. Another factor to be considered relates to the question of whether the information obtained was related to extrajudicial use or prepared for in court testimony. In this case, Mr. Shanok actually did whatever he did only in preparation for testimony at trial. The court must consider the witnesses' prestige and in this case Mr. Shanok's extensive experience, prior acceptance as an expert, receipt of awards from peers and his extensive education and training all suggest that he is entitled to favorable consideration in that regard. The defendant's ability to point to specific cases in which Mr. Shanok's testimony was not permitted does not detract from this finding.
The court finds that the basis of Mr. Shanok's testimony is scientifically valid or reliable.
Moreover, it is found that the proffered testimony would also meet the second test under Porter relating to its relevance to this particular case. This relates to the third claim of the defendant that there is not a sufficient factual basis for the witness' opinion.
The evidence was clear that the expert viewed the specific "grab bar" in the ladies' bathroom at the defendant's restaurant. During that time he took photographs (Def.'s Exhibit 6) of the equipment and used his fingers to cause the bar to move from its upright position to the horizontal position. He then moved to the men's room where he found a "grab bar" he found was similar, although shaped differently, and made drawings and took measurements of the men's room equipment. The grab bar in the men's room was shaped differently than the one in the ladies room, but was made of the same material, had the same adjustment screw for the clamp on the hinge and was of the same design. The manufacturer of the "grab bar" in the ladies' room or the men's room was not apparent from an examination, but a review of the internet suggested to him that a grab bar made by Tubular Specialties Manufacturer, (TSM) (which also had a tension screw adjustment) was in his opinion the same as the one at issue in this case. Mr. Shanok obtained such a bar and by conducting tests determined that by adjusting the screw on the clamp on the TSM manufactured grab bar, you would thereby alter the rate of fall of the bar to prevent a so-called free fall.
The demonstrations done in the courtroom with the TSM grab bar purchased by the witness and making use of the plaintiff's purse illustrated that an adjustment of the clamping screw affected the rate of fall of the grab bar. The TSM grab bar used in the testing by the witness was the same as that in the ladies' room of the defendant's restaurant in its design, type and size of material, and adjustment screw for the clamp. Its difference in the shape of the bar does not alter its ability to be of assistance to the jury.
It is found that the evidence being offered by the witness in these areas does in fact "fit" this case. That is it is relevant to what happened in the ladies' room at the defendant's restaurant when the plaintiff alleges she was hit on the head. The evidence offered in these areas, i.e., the opinion as to the grab bar's rate of fall or the adjustment of its safety mechanism or its maintenance will be able to assist the trier of fact in understanding the evidence or determining a fact in issue.
CONCLUSION
Based upon this analysis and for the several, distinct reasons stated above the defendant's motion to preclude the testimony of Mr. Shanok is denied.