STEFAN R. UNDERHILL, District Judge.
In July 2007, Cara Munn contracted tick-borne encephalitis ("TBE") while on a trip to China sponsored by her boarding school, The Hotchkiss School ("Hotchkiss"). TBE attacks the central nervous system, causing swelling in the brain and spinal cord. In severe cases, the inflammation results in permanent brain damage. Munn suffered that fate: She has lost the ability to speak; she has little control over her facial muscles, so that she always appears to be smiling and often drools uncontrollably; and she has cognitive deficits that slow her ability to think through complex problems.
Munn and her parents, Orson and Christine Munn (collectively "the Munns"), filed this lawsuit alleging that Hotchkiss's negligent planning of the trip and careless supervision during the trip caused Cara to fall ill. On March 27, 2013, after seven days of evidence including testimony from the Munns, school personnel, and almost a dozen experts, the jury found Hotchkiss solely liable for Munn's injuries. It awarded the Munns $10.25 million in past
Hotchkiss now challenges that verdict and award, moving for judgment as a matter of law under Rule 50(b) (doc. 206), or, in the alternative, for a new trial under Rule 59 of the Federal Rules of Civil Procedure (doc. 207). The school asserts five claims in support of its motions: (1) Munn's infection was unforeseeable; (2) Munn failed to prove that she was infected with TBE in a specific location; (3) the court mismanaged expert testimony; (4) Mr. and Mrs. Munns' negligence contributed to Munn's injury; and (5) a $41.75 million verdict is excessive. Hotchkiss additionally moves to alter judgment (doc. 209). For the reasons set forth, the combined motions are denied, and the motion to alter judgment is denied as moot in light of the parties' joint stipulation regarding collateral source reduction (doc. 251).
Munn entered Hotchkiss as a fourteen-year-old freshman in the fall of 2006. Trial Tr. 988:12. During the winter of her first year, Munn learned of Hotchkiss's international programs, and, after discussion with her mother, she signed-up for Hotchkiss's summer school in Tianjin, China. Trial Tr. 912:9-18. The China program immersed students in Chinese language and culture; for one month, participants attended intensive language classes at a high school during the week and visited cultural landmarks on the weekends. Pls.' Trial Ex. 11.
During the spring semester, Jean Yu, the director of Hotchkiss's Chinese Language and Culture Program and the trip leader, and David Thompson, the director of Hotchkiss's International Programs, provided students and parents with information about the trip. In early March 2007, Yu sent an email with two attachments: a packet that outlined the trip's activities and a set of legal forms that asked participants and parents to waive legal claims against the school. Def.'s Trial Exs. 507, 616. The packet mentioned that the students would visit "Mount Pan"
In April 2007, Yu followed up with another email with medical advice for trip participants. Pls.' Trial Ex. 2. It included a link to a U.S. Centers for Disease Control and Prevention ("CDC") webpage and instructed parents that the Hotchkiss infirmary could "serve as a travel clinic." Id. But the advice was inaccurate; the web address linked to a webpage on Central America, not China, and the school infirmary was only available to administer vaccines prescribed by an outside doctor and could not give students independent advice on medical risks abroad. Trial Tr. 79:4-19, 209:14-16, 220:4-7. According to Thompson, the school expected students to know about the school clinic's limitations and to "go to a travel medicine specialist or a travel clinic at home ... when the students would have two, two and-a-half weeks [of spring break]." Trial Tr. 237:1-9.
Yu also sent recipients a complete itinerary, a packing list, and a handbook on international travel. Pls.' Trial Ex. 2. The
Thus, as Munn headed to China, neither she nor her parents had notice that she would visit a non-urban, forested area that might contain ticks or other insects carrying disease. Nor had Munn or her parents received any warnings about how to prevent insect-borne disease during the trip. The first few weeks of Munn's trip proceeded without incident: she attended classes, visited sites, and made new friends. Yu testified that the students were all healthy during that time and that she only heard complaints about bug bites once, when the children visited Nanking University at dusk. Trial Tr. 569:11-570:8.
On June 23, 2007, the students left for a weekend excursion about sixty miles from Tianjin's city center. The students visited the Great Wall in the early morning, and they arrived at Mount Panshan in the late morning or very early afternoon. Trial Tr. 594:11-22. According to video and pictures admitted at trial, Mount Panshan is a forested peak that sits next to several other smaller foothills. Pls.' Trial Exs. 20, 405; Def.'s Trial Ex. 614. It is surrounded by what Americans might call an exurban landscape — a traditionally rural community with growing housing density created by commuters to the cities. Trial Tr. 512:12-18, 551:14-17.
No one had warned students that they should dress for a serious hike — all walked up the mountain in shorts and t-shirts or tank tops, and some even wore sandals instead of sneakers. Def.'s Trial Ex. 614. No one warned students to apply bug spray before they trekked up the mountain. Indeed, Yu left her bug spray on the bus. Trial Tr. 540:15-24. At the beginning of the hike, a guide led students up a paved pathway to a set of temples at the top of the mountain. Trial Tr. 592:6-10. At the top of the mountain the group splitup: Teachers, chaperones, and the majority of students rode a cable car down the mountain. Trial Tr. 519:1-522:25, 538:1-540:25. Munn and two or three other students, however, asked to walk down the mountain by themselves. Id. Yu pointed them towards the path and said she would wait for them at the bottom. Id.
According to Munn's uncontroverted testimony, the students decided to leave the paved path and venture down Mount Panshan on narrow dirt trails that connected other temples on the mountain. Trial Tr. 526:1-533:25, 1007:22-1008:15. Munn recounted that the hikers quickly became lost and ended up walking among trees and through brush before eventually finding the path and reconnecting with the others. Trial Tr. 1029:7-25. The students then visited another forested area of Mount Panshan, one reached by a dirt path. Pls.' Trial Ex. 20; Trial Tr. 1029:1-1030:25.
After the trip to Mount Panshan, Munn recalled having many insect bites and a welt on her arm. Trial Tr. 1008:14-22, 1034:17-1035:13. Other than itchy discomfort, though, she felt fine. Trial Tr. 1034:17-1035:7, 1036:8-10. Ten days later she awoke with flu-like symptoms — a headache, a fever, and wooziness. Pls.'
From that point, Munn's condition deteriorated rapidly. Pls.' Trial Ex. 36-2, 36-3. The local hospital transferred her to a Beijing hospital, and her parents arrived from the United States. Trial Tr. 694:1-11, 915:19-916:16; Pls.' Trial Ex. 36-2, at 29; Pls.' Trial Ex. 36-3, at 4-5, 7. They found her severely ill. Trial Tr. 915:22-916:14; Pls.' Trial Ex. 36-3, at 23. She was partially paralyzed. Pls.' Trial Ex. 36-3, at 23, 25; Trial Tr. 694:5-6; 918:10-919:2. She could not speak. Pls.' Trial Ex. 36-3, at 23, 25; Trial Tr. 694:15-20. She dipped into a semi-comatose state. Pls.' Trial Ex. 36-3, at 25; Trial Tr. 918:15-25. Once it became clear that Munn's condition would not improve quickly, her father arranged for her to be airlifted to New York, where she was admitted to New York Presbyterian Hospital. Trial Tr. 919:3-8, 990:22-991:15; Pls.' Trial Ex. 36-5, at 1.
After a week at New York Presbyterian and a month at a rehabilitation center, Munn's condition stabilized and improved, but she was left permanently disabled. She never regained the ability to speak. Trial Tr. 800:7-11. Indeed, her vocal cords are so taut that she can at best make soft, single-syllable sounds, and like a "child who's developing language," she often cannot be understood by strangers. Trial Tr. 783:3-25, 794:11-796:4. Her hands have limited dexterity, particularly in her fingers, which are too stiff to bend easily, inhibiting the fine motor skills that facilitate tasks like typing. Trial Tr. 860:1-20, 928:17-929:13, 1013:3-10, 1071:20-1073:4, 1078:23-1079:4. She has limited control over her facial muscles, so that she drools, has difficulty eating and swallowing, and exhibits socially inappropriate expressions. Trial Tr. 792:3-794:10, 929:16-930:1, 991:18-993:10, 1010:3-14, 1012:11-1013:1.
Munn's brain function is also compromised. She suffers from diminished executive function, which, according to the neuropsychologist who testified on her behalf, makes constructing multi-step solutions to everyday problems difficult. Trial Tr. 848:22-850:7, 852:14-853:24, 854:13-855:22, 861:3-862:24, 877:12-879:7. For this reason, Munn's scores on problem-solving tests have plummeted. Thus, although her verbal comprehension (vocabulary) scores remain in the ninety-sixth percentile — comparable to her pre-injury scores — her reading comprehension and math scores have fallen precipitously; she now scores in the third percentile for reading comprehension, Trial Tr. 863:17-864:25, 869:15-19, and in the first percentile for math. Trial Tr. 869:19-22. Her scores on perceptional reasoning are almost as low, in the twelfth percentile. Trial Tr. 865:1-866:12. In other words, Munn is a "very intelligent person" but has great difficulty "using that intelligence, accessing it, planning [with] it." Trial Tr. 868:10-869:2.
That said, Munn is in other ways normal. She still experiences the world much the same way as a person without a brain injury might — she understands what happens around her, she reads, she writes, she feels, she has opinions, and she dreams about her future. Indeed, with help, she finished high school and enrolled at Trinity University in Hartford, Connecticut. Trial Tr. 924:14-17; 981:7-982:20.
On June 11, 2009, Orson and Christine Munn filed this lawsuit as next friend to their daughter, Cara, alleging that Hotchkiss's negligence in the execution of its 2007 China Summer Program caused Munn's injuries while Munn was a student in Hotchkiss's care. Specifically, the
In addition to denying the allegations of negligence, Hotchkiss asserted several affirmative defenses, including that the Munns' claims were barred by the doctrine of assumption of risk when the Munns signed the school's pre-trip "Agreement, Waiver, and Release of Liability"; Munn's injuries were the result of force majeure or caused by third parties; Munn's injuries were caused by her parents' contributory negligence; and finally, that with the exception of injuries caused solely by Hotchkiss's negligence or willful misconduct, the Munns' claims were barred by a signed release and waiver. Answer 3-4 (doc. 82).
After four years of discovery, two settlement conferences, a dispositive motion hearing and numerous pre-trial motions, the parties undertook a ten-day jury trial in which nine fact witnesses and ten expert witnesses testified. After the Munns rested their case, Hotchkiss moved for a directed verdict (judgment as a matter of law) pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, arguing that Munn contributed to her own injuries and that the risk of contracting insect-borne diseases while in Tianjin Province
At the culmination of the trial, the jury found that the Munns met their evidentiary burden in showing (1) Hotchkiss was negligent in failing to warn Munn of the risk of insect-borne illnesses; (2) Hotchkiss was negligent in failing to ensure Munn used protective measures to prevent insect-borne infection; (3) Munn was infected by an insect-borne disease while visiting Mount Panshan; (4) one or more of Hotchkiss's negligent acts or omissions was the cause in fact of Munn's injuries; and (5) Hotchkiss's negligent acts or omissions were a substantial factor that, acting
Hotchkiss then filed its renewed motion for judgment as a matter of law pursuant to Rule 50(b) (doc. 206), and in the alternative, for a new trial and to alter judgment pursuant to Rule 59 (docs. 207, 210). I heard argument on all three post-trial motions on July 11, 2013 (doc. 248).
Rule 50(b) of the Federal Rules of Civil Procedure allows for the entry of judgment as a matter of law if a jury returns a verdict for which there is no legally sufficient evidentiary basis. See Fed.R.Civ.P. 50. The standard under Rule 50 is the same as that for summary judgment: A court may not grant a Rule 50 motion unless "the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (citation and internal quotation marks omitted). Thus, in deciding such a motion, "the court must give deference to all credibility determinations and reasonable inferences of the jury ... and it may not itself weigh the credibility of the witnesses or consider the weight of the evidence." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (citations omitted). In short, the court cannot "substitute its judgment for that of the jury." LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995) (citations omitted). Rather, judgment as a matter of law may only be granted if:
Galdieri-Ambrosini, 136 F.3d at 289 (quoting Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir.1994)) (internal quotation marks omitted); see also Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir.1997).
In contrast, the decision whether to grant a new trial following a jury trial under Rule 59 is "`committed to the sound discretion of the trial judge.'" Stoma v. Miller Marine Servs., Inc., 271 F.Supp.2d 429, 431 (E.D.N.Y.2003) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992)). A new trial "`should be granted when, in the opinion of the district court, the jury reached a seriously erroneous result or ... the verdict is a miscarriage of justice.'" DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992)). "A new trial may be granted, therefore, when the jury's verdict is against the weight of the evidence." Id.
Hotchkiss advances several related arguments in each motion. In its Rule 50(b) motion, Hotchkiss argues (1) the Munns did not present sufficient evidence that Cara Munn's injury was foreseeable, see infra section III.A.2.a; (2) public policy bars liability in this case, see infra section III.A.5; and (3) the Munns did not present
In this section, I address each of Hotchkiss's arguments: (1) the scope of Connecticut law governing duty and foreseeability in an action for common law negligence, including the challenge to the jury's factual determinations and the jury instructions concerning foreseeability; (2) Hotchkiss's assertion that the Munns failed to demonstrate that Munn was infected during the trip to Mount Panshan, effectively an argument against cause in fact; (3) arguments regarding the Munns' alleged contributory negligence; (4) the assertion that public policy requires vacating the jury's verdict; (5) challenges to the court's decision to include certain experts and exclude others; (6) the contention that the jury's award for non-economic damages is excessive as a matter of law; and (7) the request to alter judgment in light of the parties' joint stipulation regarding collateral source reduction.
In order to make a prima facie case of negligence under Connecticut law, a plaintiff must show that a duty existed, that the breach of that duty caused the plaintiffs injuries, and that the plaintiff experienced actual harm or injury. Considine v. City of Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006) (citations and quotation marks omitted). Within the element of causation, the individual or entity owing a duty to another is only liable for failing to prevent foreseeable harms that are the cause in fact of the plaintiffs injuries. LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002) (foreseeability); Gomes v. Com. Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462 (2001) (foreseeability); Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999) (discussing the interplay of cause in fact and proximate cause); Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980) (cause in fact).
In its post-trial motions, Hotchkiss conflates the concepts of the existence and scope of one's duty with the separate element of proximate causation. Hotchkiss does not challenge the jury's determination that Munn was harmed, but it contests that its alleged negligence was the proximate cause or cause in fact of Munn's injuries. Finally, Hotchkiss argues that even if the jury's determinations regarding scope of duty, foreseeability, and causation are reasonable as a matter of law, it should be relieved from negligence liability for public policy reasons. In this subsection, I evaluate those elements and their designations as either questions of law or questions of fact, as well as Hotchkiss's public policy defense.
The Connecticut Supreme Court explains that in a claim of general negligence, "it is necessary to determine the existence of a duty, and then, if one is found ... to evaluate the scope of that duty." Maffucci v. Royal Park Ltd. P'ship,
As a matter of law, Hotchkiss undoubtedly owed Munn, a minor child in its care, a duty to protect her from known threats to her health and safety during the 2007 China summer program trip. Every public school shares this common-sense duty to protect the health and safety of students in its care, Connecticut General Statutes § 10-220, but this duty may be heightened for boarding schools, institutions that accept responsibility for students' well being. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-55, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); cf. Loomis Inst. v. Town of Windsor, 234 Conn. 169, 172, 661 A.2d 1001 (1995) (reasoning that on-campus "faculty members, unlike off campus faculty members, act in loco parentis to boarding students and must be available on a twenty-four hour basis to take care of any problems that may occur at the school."); accord Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958) (holding that teachers "stand in loco parentis toward a pupil" in matters of discipline and security). Further, a boarding school may create a legal duty by its representations to students and their parents/guardians, particularly in the provision of health services. Bhagwant v. Kent School Corp., 453 F.Supp.2d 444 (D.Conn. 2006); see also Trial Tr. 125:6-128:5 (detailing Hotchkiss's pervasive supervision and control of its students). Regardless of the supervisory relationship between school and student, at a minimum Hotchkiss has a legal duty "to use care ... [in] circumstances under which a reasonable person [in the defendant's position], knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Ryan Transp., Inc. v. M & G Assocs., 266 Conn. 520, 525-26, 832 A.2d 1180 (2003); Gomes, 258 Conn. at 615, 783 A.2d 462; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).
Hotchkiss admits that it owes students in its travel-abroad programs a general duty of care to advise them of the foreseeable risks of, and strategies for preventing contraction of, insect-borne diseases. At trial, Head of School Malcolm McKenzie testified that the school has "an unquestionable duty to protect the kids from dangerous conditions and injuries" wherever it can. Trial Tr. 118:22-119:1. McKenzie further testified that the school warns students of the risk of malaria in tropical regions, including in its materials to students regarding the China trip and in certain other cases, and it requires students to take steps to prevent infection. Trial Tr. 113:24-114:13, 123:18-124:2, 124:13-125:5. Thompson also affirmed that the school had a duty to determine if there were disease risks on the trip and specifically to protect Munn against insect-borne
Further, Hotchkiss embraces its duty of care at its own campus in Lakeville, Connecticut. The school provides comprehensive information on the risks of insect-borne diseases on its campus, and it requires that students take precautions against insect-borne diseases, even when those diseases may impose moderate to serious harms, as opposed to the serious and severe harms caused by TBE.
Hotchkiss's arguments regarding want of a legal duty are more properly understood as a challenge to the jury's factual determination that Hotchkiss had a duty of care to participants in its 2007 summer China program to warn the Munns of the potential risks of insect-borne diseases and advise Munn of precautions against contracting an insect-borne disease. Connecticut state courts have consistently held that determining the scope of one's duty, also known as the standard of care, is fundamentally a question of fact. Considine, 279 Conn. at 859, 905 A.2d 70; Maffucci, 243 Conn. at 566, 707 A.2d 15; accord LePage, 262 Conn. at 123, 809 A.2d 505; Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975) ("negligence ... requires the trier of fact to determine whether the standard of care was met in a specific situation").
This case required, and employed evidence from, numerous experts who attempted to establish the parameters of what a reasonable school in Hotchkiss's position "knew or should have known" regarding the standard of care. As discussed in depth infra section III.B (Expert Witnesses), a district judge plays a gatekeeper role in its admission or exclusion of expert testimony, but once admitted, any other questions regarding an expert's opinion, testimony or qualifications go to the weight and credibility of that expert — questions reserved for the jury. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts." Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 1 (1991)); cf. W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 423, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (noting that it is improper to give all expert opinions equal weight because this eliminates the function of the jury in evaluating conflicting testimony); see also Davis v. Margolis, 215 Conn. 408,
A court may only vacate the jury's determination regarding the standard of care if the defendant's "conduct clearly has or has not conformed to what the community requires" such that no reasonable trier of fact could reach a contrary conclusion, Considine, 279 Conn. at 859, 905 A.2d 70, or "if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for another party." Santopietro v. City of New Haven, 239 Conn. 207, 225-26, 682 A.2d 106 (1996). As discussed in depth infra in section III. A.2 (Foreseeability), this is not a case in which either provision for vacating a jury's verdict is appropriate. Hotchkiss cannot demonstrate that its behavior "clearly conformed" to community standards, nor is it appropriate for the court to substitute its judgment for the jury's factual determinations. Galdieri-Ambrosini, 136 F.3d at 289; LeBlanc-Sternberg, 67 F.3d at 429. This case involved difficult issues of fact that required a jury to weigh the evidence, evaluate the credibility of witnesses and determine the community's standards regarding the scope of Hotchkiss's duty to Munn (i.e., the standard of care). After taking on the difficult task of assessing duty and liability, the jury returned a verdict unfavorable to Hotchkiss. Hotchkiss has not provided an adequate or reasonable rationale for vacating the verdict in this case.
Hotchkiss next argues that it could not have breached its standard of care because Munn's infection was unforeseeable. This argument is also unavailing.
Connecticut law limits the bounds of tort liability by restricting liability to those harms that are foreseeable. LePage, 262 Conn. at 124, 809 A.2d 505 (citing Gomes, 258 Conn. at 615, 783 A.2d 462). Foreseeability does not turn on the narrow question whether the plaintiffs specific harm was foreseeable to the defendant; it asks "would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate the harm of the general nature of that suffered was likely to result?" Id. (emphasis added); Conn. Sav. Bank v. First Nat'l Bank & Trust Co., 138 Conn. 298, 303-04, 84 A.2d 267 (1951) (citing Orlo v. Conn. Co., 128 Conn. 231, 237, 21 A.2d 402 (1941)). As discussed supra in section III. A.1 (Duty), although the existence of a duty is usually a question of law, the narrow question of foreseeability often turns on the facts of a particular case. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d 753 (1995) (when evidence supports finding that injury was within foreseeable scope of duty, issue involved question of fact for the jury, not question of law); Frankovitch v. Burton, 185 Conn. 14, 21, 440 A.2d 254 (1981) ("[w]hether the defendant should have anticipated danger ... present[s] a question of fact."); Gutierrez v. Thorne, 13 Conn.App. 493, 501, 537 A.2d 527 (1988) ("if there is room for a reasonable disagreement [regarding foreseeability of an injury], the question is one to be determined by the trier as a matter of fact." (internal citations omitted)); Vendrella v. Astriab Family Ltd. P'ship, 311 Conn. 301, 329, 87 A.3d 546
In this case, the jury determined that Hotchkiss knew or should have known that Munn could contract an insect-borne disease in China, specifically, on Mount Panshan. It was a pivotal finding. According to the jury, as the students gathered in the parking lot at the base of Mount Panshan, Hotchkiss faculty knew, or should have known, that the students were about to enter an area populated by insects carrying diseases. Jury Verdict Form 1.
Thus, for Hotchkiss to prevail on this issue, it must overcome the jury's determination in one of two ways. First, it can unsettle the jury's factual determinations, either by showing that the jury misjudged the sufficiency of the evidence of foreseeability or by demonstrating that the jury was misled by the court's description of the law governing foreseeability. Second, Hotchkiss can argue that despite the foreseeability of the risk, it had no legal duty to protect students from known diseases when traveling abroad.
Foreseeability encourages those owing a duty to others to take precautions to minimize identifiable risks while limiting tort liability from risks that are so "novel or extraordinary" that they could not be anticipated. Schiavone v. Falango, 149 Conn. 293, 298, 179 A.2d 622 (1962); Palsgraf v. Long Isl. R.R. Co., 248 N.Y. 339, 345-47, 162 N.E. 99 (1928); see also Prosser & Keeton, On Torts § 31 ("The idea of risk ... necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow."). The test of foreseeability is not limited to whether a specific harm could have resulted from the defendant's conduct; instead, it determines whether the injury suffered
Hotchkiss asks this court to depart from longstanding Connecticut law by imposing a higher burden of proof on the plaintiffs. Hotchkiss argues that the Munns must prove that the precise injury Munn actually sustained, TBE, was specifically foreseeable, not that the general category of harm to which she was exposed — insect-borne disease — was foreseeable and thus fell within the scope of Hotchkiss's duty to students on its China trip. This argument is an unprecedented departure from case law, and as such, it is unavailing.
Munn's health was compromised the moment an insect, in a zone known to be a risk area for insect-borne diseases, latched onto her arm and infected her. That insect happened to be a tick, and it happened to carry TBE. But Munn likely would have suffered severe harm if she contracted a different insect-borne disease; for example, if a mosquito injected her with the malaria virus, or a flea transmitted the bubonic plague. To hold otherwise conflates two distinct concepts: "harm" as a trigger for legal liability, and "harm" as a measure of damages.
A person commits a tort when he imprudently fails to foresee and take precautions against a risk that he should have recognized, and another person suffers an injury as the result of that failure. LePage, 262 Conn. at 124, 809 A.2d 505 ("the factfinder must consider whether the defendant knew, or should have known, the situation at hand would `obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken.'") (citing Bonczkiewicz v. Merberg Wrecking Corp., 148 Conn. 573, 579, 172 A.2d 917 (1961)). That injury is the "harm" or risk that the defendant should have foreseen, and, in this case, it occurred the moment a tick bit into Munn's skin and transmitted a disease that compromised her health. That injury had extreme consequences, so that the total "harm" for which the Munns sought compensation is substantial. But the preventable legal injury at issue was Munn's infection by an insect, not her specific illness.
Jaworski v. Kiernan illustrates how the Connecticut Supreme Court has distinguished between foreseeability of a category or class of injuries from foreseeability of specific injuries. In Jaworski, the Court held that players can and should
Id. at 408, 696 A.2d 332. Like the hard-tackling soccer player in Jaworski, the jury here determined that Hotchkiss could have foreseen that its conduct might cause injury, even if it could not have anticipated the severity of the harm.
Hotchkiss rejects this interpretation of Connecticut law. It attempts to create a narrower rule by referencing a Connecticut Supreme Court decision, Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), in which the Court held that defendants could not have anticipated the tertiary effects of their conduct. In Lodge, a group of injured firefighters sued alarm companies that transmitted false alerts. As the firefighters raced to a location where they were not needed, the brakes on their fire engine failed, and the vehicle careened into a tree. Id. at 567, 717 A.2d 215. After a jury returned a verdict in favor of the accident victims, the Connecticut Supreme Court vacated the award because the alarm companies could not have foreseen that the vehicle would have faulty brakes, even if the companies had carelessly transmitted a signal that put the firefighters on a path that ended in a crash. Id. at 574, 717 A.2d 215. The Court described its holding as based on the scope of the injury, writing that "[w]e agree with the defendants that the analysis of foreseeability logically cannot be extended so far that the term `general harm' incorporates any accident involving a fire engine responding to a false alarm."
The holding in Lodge, however, is fundamentally concerned with cause in fact, not the scope of duty. Id. (a court should examine duty in the context of causation when "the duty is asserted against one who is not the direct cause of the harm"). In Lodge, the alarm company's behavior could not be traced back to the fire engine's brake failure; the alarm company had not serviced or replaced the brakes, nor could it have known that the brakes were kept in poor repair. Id. at 577-78,
No third party's negligence distances Hotchkiss from Munn's infection. The Munns' claim was directly related to Hotchkiss's conduct and the impact of that conduct on Munn's exposure to a foreseeable risk. Munn argued that the school should have warned her of, and advised and ensured she took protective measures against, the risk of insect-borne disease. Because the school ignored the threat of insect-borne diseases, Munn walked down Mount Panshan without any protection against insects carrying diseases, including ticks carrying TBE.
In contrast, the Lodge plaintiffs' argument required several logical leaps to connect their injuries to the alarm companies' negligence: the companies had a duty to send accurate information, but they could not have anticipated that their false signal would reach a fire station serviced by a fire engine with poorly-maintained brakes that prevented a driver from stopping the vehicle before it skidded toward a tree. Id. at 577-78, 717 A.2d 215 (noting that the poor maintenance of the vehicle was beyond the control of the alarm company). The Lodge plaintiffs could not argue that they would have avoided an accident had the defendants sent only accurate alarm reports.
Conversely, in this case the jury found that Munn demonstrated that, but for Hotchkiss's negligence, she would have applied bug spray that would properly repel insects, and as a result, prevent her from contracting insect-borne diseases like TBE. At trial, Hotchkiss advanced arguments and offered evidence to muddy the alleged causal connection between its conduct and Munn's injuries by alleging that Munn was comparatively negligent and offering expert testimony that Munn may have contracted a different form of encephalitis in a different location.
Once the scope of Hotchkiss's duty was defined — as an obligation to protect students from insects carrying disease — the jury was provided with ample evidence that the school ignored a predictable risk within the scope of its duty to Munn. First, the CDC warned travelers about many insect-borne diseases in China. Pls.' Trial
With this foundation laid, the Munns presented evidence that Mount Panshan fell within the category of geographies described in the CDC's warnings — a forested region in northeastern China. Photographs and video depicted a mountain covered with dense patches of trees and
Even if the jury had found the CDC evidence inconclusive, expert opinion also supported a finding of foreseeability. Both travel medicine experts testified that the school had reason to know and be wary of insect-borne diseases in the region. Dr. Stuart Rose, the Munns' expert, testified that, according to travel medicine reports routinely consulted by doctors and commercial trip planners in 2007, rural China was an endemic region for TBE, Japanese encephalitis, and Lyme disease. Trial Tr. 650:21-651:7, 655:19-656:4.
Freedman's testimony also supported a finding of foreseeability regarding insect-borne diseases. Freedman testified that he had "a very strong opinion" that the school had done nothing wrong, that if "Cara would have presented to [his] travel medicine clinic ... she would have gotten exactly the same advice as she did receive." Trial Tr. 1231:8-11. During direct and cross-examination, however, he also admitted facts that permitted an inference in favor of the Munns: Freedman admitted that Lyme disease and Japanese encephalitis could be found in Tianjin. Trial Tr. 1243:25-1245:5, 1254:20-1255:19. He further conceded that TBE was present in Tianjin. Trial Tr. 1222:24-1223:6 ("There were clearly, there are clearly — there are clearly cases in the local population during that time.... It's not a nationally tracked disease in China."). He then admitted that the school was on notice of that risk; after the Munns' counsel pressed him on whether the school should have heeded the CDC's warning, Freedman grudgingly responded that "all I can say is that [TBE] is
Munns' counsel put forth evidence that illuminated what the school would have found had it looked into the CDC's warning about the risk of TBE — the same advisory relied upon by Rose, which warned travelers about TBE in rural China and which was published by a widely-used commercial service. Trial Tr. 1250:1-12, 1253:13-22. Freedman could not undermine the advisory's accuracy; he sat on the commercial service's editorial board and approved all content for its website. Trial Tr. 1248:12-22. The Munns also submitted a British health advisory that counseled that TBE occurred "in forested regions of China and Japan." Def.'s Trial Ex. 604, at 1.
Faced with the task of overcoming this substantial evidence, Hotchkiss launches one final attack on the sufficiency of the Munns' case: Before Munn contracted TBE in summer 2007, the CDC had no record of an American traveler contracting the illness while visiting China. As it did at summary judgment and trial, Hotchkiss points to the unprecedented nature of Munn's illness as evidence that the illness was unforeseeable as a matter of law. If no one like Munn had contracted the illness before, the logic goes, how could the school anticipate that it would happen to her? According to Hotchkiss, then, Munn's illness was a "freak accident," not a foreseeable harm that the school had a duty to guard against. Trial Tr. 146:7-9.
The rarity or commonness of TBE only goes to the weight of factual evidence, not its legal sufficiency. As noted, the general category of harm at issue related to insect-borne diseases, within which certain diseases were more or less common. The jury found that Hotchkiss failed to meet its standard of care for this category of harm, and as a result, Munn contracted a rare but severe, insect-borne disease. This determination is fundamentally a factual inquiry.
Prior incidents are only one way of proving that a defendant should have anticipated harm. In Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 80 (2d Cir.1997), the Second Circuit reversed a district court's grant of a motion for judgment as a matter of law. The district court had ruled that the plaintiff could not establish foreseeability if there was no evidence that a previous passenger had suffered a similar injury. The Second Circuit disagreed. Writing for the majority, Judge Guido Calabresi explained that "such evidence — though relevant — was not necessary to a showing of negligence in a particular case.... If there is sufficient other evidence of negligence, no evidence of prior accidents is required." Id. (internal citations omitted); accord Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-64 (2d Cir.1983) (reasoning that "unusual or infrequent hazards undoubtedly can in some circumstances pose a meaningful possibility of injury"). Indeed, the relative rarity or commonness of a potential injury or harm is central to the calculus of negligence when setting a standard of reasonable care. In re N.Y.C., 522 F.3d 279, 284 (2d Cir.2008) ("[W]e are mindful of the formula first stated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947): whether the burden of adequate precautions (B) is less than the gravity of the injury (L) discounted by the probability that the injury will occur (P), i.e., whether B<PL.") (Hand Rule).
At trial, Hotchkiss made persuasive arguments for why it could not have predicted the high price of a tick bite. Another jury might have hewed to Dr. Freedman's opinion or interpreted the
As discussed infra in section III.B, it is reasonable for the jury to have weighed this contradictory evidence and found Munn's theory and evidence more compelling than the school's alternative theories. The defendant has not provided a basis upon which to question the jury's considered judgment.
Hotchkiss next argues that the court improperly instructed the jury on how to assess foreseeability. After I instructed the jury that a defendant can only be held liable for a known risk, I gave the jury some additional guidance to help them understand how to apply the legal concept of foreseeability. I noted that the jury should make an objective assessment whether a "reasonable" school would have anticipated harm. I explained that this was not a numbers game, because foreseeability was "not a question of strict probability." Jury Instructions 11. The Connecticut Supreme Court's case law guided this instruction. In Jarmie v. Troncale, 306 Conn. 578, 590, 50 A.3d 802 (2012), the Connecticut Supreme Court held:
(internal citations and quotations omitted) (emphasis added). I further clarified that foreseeability depends in part on the salience of a risk; the instruction stated, "if the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone." Jury Instructions 11.
Hotchkiss does not contest any of these black-letter law instructions. It only attacks the sentence that followed: "As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution." According to the school, the court committed a conceptual error, arguing that the sentence conflated the scope of a duty (i.e., how much a defendant must do to prevent harm) with whether a duty arises (i.e., whether a defendant could predict harm). Jury Instructions 12.
This argument fails for two reasons. First, the instruction is an accurate statement of the law governing foreseeability. In re N.Y.C., 522 F.3d at 284; Jarmie, 306 Conn. at 590, 50 A.3d 802. A layperson might assume that foreseeability is equivalent to likelihood — that it depends on how frequently people confront a specific risk. But as the unchallenged portion of the instruction notes, people can anticipate harms even if those bad outcomes do not occur very often. Indeed, in a functioning tort system, reasonable people will take precautions against risks that rarely occur when those risks may result in great harm. Foreseeability, then, depends not only on probability, but also on other factors, such as the salience of a particular outcome. Serious consequences come to mind more readily than relatively minor consequences. That is all the challenged sentence captures — the common-sense notion
Courts have embraced Prosser and Keeton's straightforward proposition. As the Munns note, the Connecticut Supreme Court has used the language at issue to explain that "the likelihood of harm must be considered in conjunction with the gravity of harm." LePage, 262 Conn. at 131 n. 16, 809 A.2d 505 (relying on Prosser & Keeton) (emphasis in the original). The Second Circuit has noted that the gravity of a harm affects whether someone might reasonably anticipate an "unusual or infrequent hazard." Pratt & Whitney Aircraft, 715 F.2d at 63-64 (quoting Prosser & Keeton). The U.S. Court of Appeals for the Third Circuit and the California Supreme Court have also relied upon this commonsense rule. Surace v. Caterpillar, Inc., 111 F.3d 1039, 1045 (3d Cir. 1997); John B. v. Super. Ct., 38 Cal.4th 1177, 1195, 45 Cal.Rptr.3d 316, 137 P.3d 153 (2006).
Hotchkiss appeared to incorporate the principle that salience affects risk perception in its preparation for the trip; it anticipated and warned students of other serious but remote risks in advance of the China trip. In its pre-trip departure manual, the school cautioned students about grave and unlikely medical risks, issuing two such warnings. "If you require surgery overseas and need a blood transfusion, remember that not all countries require the same standards for screening HIV-antibodies in donated blood," Hotchkiss instructed. Pls.' Trial Ex. 1, at 10. It counseled students to consult with the Red Cross regarding safe sources for blood. Id. It further warned that students should be careful if they "chose to be sexually active overseas." Id. Foreign condoms, the school noted, "may not be manufactured and/or stored properly so as to provide maximum protection against sexually transmitted diseases" and advised students to "bring their own supply of condoms." Id.
Was there a precedent for a student sustaining an injury requiring surgery and contracting HIV from a tainted blood supply at an urban Chinese hospital? Probably not. Was it likely that a high school summer program participant might accidently contract a sexually-transmitted disease because the student used a faulty condom bought locally? The likelihood of such an event is slim. Despite the low probability of such harms occurring, Hotchkiss still anticipated those risks, and it warned students about them. It did so because the possible consequences of those unlikely risks were serious. In both situations, a student could contract serious diseases like HIV, a chronic, life-threatening condition that is controlled only by expensive drugs and constant medical supervision (although, especially with treatment, HIV/AIDS rarely leads to disabilities as severe as Munn's injuries). With those grave consequences in mind, the school rightly acted to protect its students.
Second, even if the black-letter rule quoted in the jury instruction did not relate to foreseeability, read in the context of the surrounding text, it did not mislead the jury about how to define the scope of a duty. Jury instructions must be read as a whole and should be considered in light of the entire charge. E.g., Hudson v. N.Y.C., 271 F.3d 62, 68 (2d Cir.2001). Hotchkiss does not argue that the challenged sentence misstates a legal principle; by its own admission, the sentence describes an aspect of legal duty. Hotchkiss makes a
Even assuming that Hotchkiss is correct about how to properly frame the challenged sentence, the instruction could not have misled the jury enough to prejudice the school's case. The instruction on foreseeability began with a clear directive: "A defendant is not negligent unless he knew or reasonably should have known of a risk." Jury Instructions 11. It then repeated this boundary on liability: "the school can only be held responsible for failing to protect Cara against a risk that a reasonable school should have foreseen." Id. Thus, even if the contested sentence described the bounds of a duty (which it does not), it neither misstated the legal bounds of duty nor displaced an accurate statement of the foreseeability requirement because the jury was repeatedly instructed that Hotchkiss could not be held liable for an unpredictable harm. The jury was told that Hotchkiss was not responsible for harm that it could not foresee, and the jury found that the school could have predicted that there was a risk of students on the trip contracting insect-borne diseases.
Hotchkiss next argues that the plaintiffs failed to prove that Munn contracted TBE on Mount Panshan. Munn testified that she received numerous bug bites while on Mount Panshan and that she had a bite on her left arm that turned red and started to itch. Trial Tr. 1008:19-22. Munn developed the symptoms of encephalitis about ten days after the trip to Mount Panshan, which defense expert Freedman testified fell within the normal seven- to fourteen-day incubation period for TBE. Trial Tr. 1259:19-23 (Q: "[W]hen someone contracts a tick-borne encephalitis, it is more likely than not that they were bitten by the tick seven to 14 days before the symptoms show up? A: Yes, that is correct.").
Ticks usually live in wooded or grassy areas, Def.'s Trial Ex. 591, at 8, and Mount Panshan was the only place that Munn reported hiking through woods and tall grass. Trial Tr. 1008:23-1009:1. Yu testified that students had only complained about bugs at one other time — an evening at Nankai University when mosquitoes bit several people. Trial Tr. 569:11-570:8, 601:3-10. After reviewing the trip itinerary, deposition transcripts that contained similar testimony, and medical information about TBE, the Munns' expert, Rose, testified that in his medical opinion, Munn contracted the disease on Mount Panshan. Trial Tr. 698:6-699:5. According to Hotchkiss, all this evidence is insufficient, and Munn must come forth with a piece of evidence that proves conclusively that she contracted TBE on Mount Panshan.
That argument is almost certainly waived. A party may only assert a renewed claim for judgment as a matter of law under Rule 50(b) if it previously raised that specific issue during trial in a Rule 50(a) motion. Lore v. City of Syracuse, 670 F.3d 127, 152-53 (2d Cir.2012) ("A Rule 50(a) motion requesting judgment as a matter of law on one ground but omitting another is insufficient to preserve a JMOL argument based on the latter."); see also Rand-Whitney Containerboard Ltd. P'ship v. Town of Montville, 289 F.Supp.2d 62, 67 (D.Conn.2003) (requiring
Although Hotchkiss introduced an alternative theory during its case-in-chief — that Munn had contracted Powassan virus in New York, not TBE in China — it did not argue lack of evidence in its Rule 50(a) motion. Compare Trial Tr. 1200:17-1201:17 with Mot. Hr'g Tr. 3:2-4:5, 5:2-6:9, 7:5-8:22 (July 11, 2013). During its original Rule 50(a) motion, defense counsel raised two grounds for judgment as a matter of law. Hotchkiss argued that (1) Munn had not proven that "she would have done anything differently" if the school had warned her of the risk of contracting an insect-borne disease, Trial Tr. 1201:2-5; and (2) the Munns had not proven that the school could have foreseen Munn's injury. Trial Tr. 1201:6-17. Hotchkiss never mentioned Mount Panshan, causation, Munn's infection by a tick, or any alternative theory of the source of Munn's disease in its motion.
At the close of the Munns' affirmative case, their counsel believed that he had proven that Munn would have taken basic precautions against insect-borne diseases had she received sufficient warnings, she had been infected with TBE on Mount Panshan, and she had not contracted TBE, or a similar virus, prior to the China trip.
Even if Hotchkiss had preserved its argument that Munn did not contract TBE on Mount Panshan, the record in this case militates against that suggestion. Connecticut requires plaintiffs to demonstrate that two elements exist in order to meet the standard for legal causation: cause in fact and proximate cause. To test for cause in fact, the jury is asked if the injury would have occurred but for the defendant's conduct. Paige, 250 Conn. at 25, 734 A.2d 85. The test for proximate cause is "whether the defendant's conduct is a substantial factor in bringing about the plaintiffs injuries." Id. (citing Nelson v. Steffens, 170 Conn. 356, 363, 365 A.2d 1174 (1976)). Further, the plaintiff bears the burden of proving "an unbroken sequence of events that tied his injuries to the defendant's conduct." Boehm v. Kish, 201 Conn. 385, 392, 517 A.2d 624 (1986); see also Prosser & Keeton, On Torts § 41.
The Munns introduced a powerful circumstantial case sufficient to allow a reasonable jury to find in their favor. Both parties' expert witnesses testified that subtracting TBE's incubation period from the date of the onset of Munn's symptoms places her infection date near the day she visited the mountain. Trial Tr. 698:6-699:5, 1259:19-23. Munn testified that had Hotchkiss warned her of the risks of insect-borne diseases, she would have taken precautions to prevent infection. Trial Tr. 1009:2-1010:2, 1010:15-1011:3. Both sides presented evidence that Hotchkiss's conduct was a substantial factor in bringing about Munn's injuries. Mount Panshan's topography is consistent with ticks' natural habitat. Def.'s Trial Ex. 591, at 8. During Munn's hike, she received several bug bites, including one that looked different than a typical mosquito bite. Trial Tr. 1008:19-22, 1036:4-10. Neither Munn nor Yu remembered any other time that students or chaperones complained of insect bites, except for one night at an urban university when trip participants encountered mosquitoes at dusk. Trial Tr. 569:11-570:8, 601:3-10, 1008:23-1009:1. There was no evidence that an intervening event broke the chain of causation between the time Munn hiked Mount Panshan and when she became symptomatic, and Hotchkiss did not introduce evidence of an intervening event or potential alternative source of Munn's infection. It is true that Munn never testified she found a tick on her person on the day of her hike, carefully picked it off, and had it tested for TBE. Trial Tr. 1036:15-18, 1037:2-4. But the Munns are not required to produce evidence beyond a reasonable doubt that Munn contracted TBE on Mount Panshan; to meet their burden of proof by a preponderance of the evidence they may build their case on a set of reasonable inferences based on the evidence.
Hotchkiss argues that the Connecticut Supreme Court's precedent requires that Munn proffer direct evidence that she contracted TBE on Mount Panshan. Mot. Hr'g Tr. 4:1-5 (July 11, 2013). Hotchkiss relies on Paige v. St. Andrew's Roman Catholic Church, 250 Conn. 14, 734 A.2d 85 (1999), to support its position. In Paige, the Court reversed a jury award because the plaintiff could not prove that the defendant or its employees were the direct cause of the accident that injured him. Id. at 34, 734 A.2d 85. A contractor suffered gruesome burns when someone turned on a boiler that he was repairing, after he had been notified that all boilers had been turned off. Id at 21, 734 A.2d 85. The plaintiff, however, could never identify the person who flipped the switch, and the Court held that the jury could not assume that one of defendant's employees made the mistake when other people were also in the building. Id. at 34, 734 A.2d 85. The plaintiffs inability to demonstrate that the defendant or its employees flipped the switch, combined with the presence of third parties who might have done so, weighed against a finding of cause in fact or proximate cause.
The Court reached that conclusion not because plaintiff relied on circumstantial evidence but because the jury returned two contradictory findings, that "the defendant was negligent in failing to supervise its employees, servants and agents, and in failing to instruct them to refrain from activating the boiler," and that "the defendant was not negligent in failing to control access to these controls, or in failing to ensure that boiler number one's burner remained inoperable while the plaintiff was cleaning the boiler." Id. at 28, 734 A.2d 85 (emphasis in original). Because these two findings were in tension — the defendant was negligent in its supervision, instruction, and training, but the plaintiff could not show that one of the defendant's agents or employees turned on the boiler, the Court concluded that the jury had never clearly found that one of defendant's agents or employees ignited the boiler. Id. at 34, 734 A.2d 85. Without this link, the plaintiff could not show that "but for" the defendant's conduct, he would not have been injured, and as a result, he could not show that the defendant's actions were a substantial factor in bringing about his injuries.
In contrast to Paige, the jury here returned an unambiguous verdict. It found that Hotchkiss was negligent in its pre-trip planning and in its supervision of students during the trip. It also found that one or both of those negligent acts directly caused Munn's injury. Jury Verdict 1. Hotchkiss could not show that a third party was potentially responsible for Munn's injuries, nor could it show that Munn would have been infected even if Hotchkiss had advised her and provided appropriate insect repellent. Though the Munns cannot produce the tick that bit Cara Munn, they have put forth an unbroken string of facts that connect Munn's illness to a bug bite she received on Mount Panshan. The jury was reasonable in finding that is what happened.
Hotchkiss argues that it should have been allowed to offer evidence of Mr. and Mrs. Munns' contributory negligence
Hotchkiss waived its assumption of risk theory during the course of litigation: it did not raise this defense in its pretrial motions or at trial, it did not provide evidence in support of its affirmative defense, and it did not raise the issue in its Rule 50(a) motion. Pretrial Conf. Tr. 20:25-22:15 (arguing parental permission to participate in the trip was a negligent act that waived Munn's negligence claim against Hotchkiss); Trial Tr. 946:21-24, 958:23-959:6 (same). It is well-established that the party asserting an affirmative defense bears the burden of establishing that affirmative defense and its applicability by a preponderance of the evidence. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 439-40, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (state law controls the burden of proof required to adequately raise affirmative defenses in diversity cases) (citing Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943)); Juchniewicz, 281 Conn. at 39, 914 A.2d 511 (party asserting affirmative defense of comparative negligence bears burden of proof for that defense pursuant to Conn. Gen.Stat. § 52-114); Kakluskas v. Somers Motor Lines, Inc., 134 Conn. 35, 41, 54 A.2d 592 (1947) (citing Freedman v. Hurwitz, 116 Conn. 283, 289, 164 A. 647 (1933)) ("assumption of risk is an affirmative defense and the burden of proof [is] upon the defendant to prove it"); 1 E. Stephenson, Connecticut Civil Procedure § 83(e) (3d ed.1997).
Even if Hotchkiss had attempted to introduce evidence of assumption of risk,
Hotchkiss's attempt to analogize parental permission for participation in sports to a parental assumption of risk for a school's negligent conduct before and during a school-organized and school-supervised trip is inapposite. Moreover, this analogy ignores the stark asymmetry of information regarding the trip's details between the school, its students, and parents of Hotchkiss students. Hotchkiss knew the trip details, including specifics about where trip participants would visit, but it revealed only a handful of those details to its students and their parents. It is this partial revelation of trip information that forms the basis for the school's negligence liability. See Reardon v. Windswept Farm, LLC, 280 Conn. 153, 161-62, 905 A.2d 1156 (2006) (public policy bars releasing a defendant, with greater information concerning potential risks/damages, from liability for the defendant's own negligence); Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 331, 885 A.2d 734 (2005) (waiver invalidated where plaintiff "lacked the knowledge, experience and authority to discern whether ... defendants' [facilities and equipment] maintained in reasonably safe condition."). Even if Hotchkiss had revealed all that it knew to parents, however, under Connecticut law, parents cannot waive the risks of participation in school activities on behalf of their minor children when a child's injury is the result of the defendant's negligence, or when the injury exceeds ten thousand dollars. Hyson v. White Water Mtn. Resorts of Conn., Inc., 265 Conn. 636, 643, 829 A.2d 827 (2003) (parents cannot waive liability caused by defendant's own negligence); Hanks, 276 Conn. at 322, 885 A.2d 734 (same); Lewis v. Habitat for Humanity, 53 Conn.L.Rptr. 512, 2012 WL 386391 (Conn.Super.2012); Fedor v. Mauwehu Council, Boy Scouts of Amer., Inc., 21 Conn.Sup. 38, 40-41, 143 A.2d 466 (1958) (same on public policy grounds); Conn. Gen.Stat. § 45a-631(b) (parents cannot waive liability for child when child's injury exceeds ten thousand dollars); Conn. Gen. Stat. § 52-572h(c) (abolishing doctrine of assumption of risk).
Hotchkiss next argues that its warnings were complete and that by providing information regarding the trip to Mr. and Mrs. Munn, the school discharged its duty of care. Although Hotchkiss frames this as an issue of "contributory negligence," its argument turns on whether its own conduct was negligent.
Hotchkiss abandoned its theory of parental contributory negligence at trial and failed to preserve this argument in its original Rule 50(a) motion. Trial Tr.
Compare Trial Tr. 959:13-960:4 with Def.'s Answer 4 (doc. 82) ("Plaintiffs' injuries were caused by their own contributory negligence, in that they failed to properly pack and prepare Cara Munn for her trip to China...."). Defense counsel never suggested that she needed to question the parents about their knowledge of the China trip because Mr. and Mrs. Munn had negligently supervised Munn's preparation for it. Defense counsel claimed that the purpose of her line of questioning was to show that the school discharged its duty and adequately warned Munn by submitting identical travel materials to Munn and her parents. Trial Tr. 944:2-948:6, 950:6-956:25, 957:21-25. This line of defense was not based on a theory of parental negligence, but rather, a theory of the school's absence of liability.
I allowed the school to make that argument. The jury instructions stated that "Hotchkiss may argue that it discharged its duty to Cara in part by informing her parents about the trip; that is a factual issue for you to decide." Jury Instructions 11. I admitted any exhibits that contained information the parents received about the trip. Pls.' Trial Exs. 2, 10; Def.'s Trial Exs. 503, 504, 506, 507. I only excluded a narrow swath of the evidence: I did not allow the school to ask Mr. and Mrs. Munn how they reacted to the school's warnings because those inquiries would be more prejudicial than probative and would abrogate Connecticut's doctrine of parental immunity.
As Hotchkiss admitted, Mr. and Mrs. Munn received the same information as their daughter, either because they were copied on emails to students about the trip or because Munn was asked to give her parents copies of packets and forms. Trial Tr. 944:10-15. To prove its case, Hotchkiss did not need to question Mr. and Mrs. Munn about any additional information they uncovered with respect to the trip or about their impressions of the school's packets. If Hotchkiss gave parents sufficient warnings about the risks of the trip, then it arguably discharged its duty regardless whether Mr. and Mrs. Munn took the warnings to heart or ignored them entirely.
Hotchkiss next argues that (1) Mr. and Mrs. Munn negligently supervised their daughter's packing and preparation for the trip, thus triggering the release of liability clause in Hotchkiss's "Agreement, Waiver, and Release from Liability" ("Release"), and (2) their decision to allow their minor daughter to travel to China with the school and under the school's supervision constituted an act of negligence that should either be imputed to Munn as comparative negligence or should break the chain of proximate causation. Neither argument is persuasive, and both arguments are barred by Connecticut law.
Connecticut's doctrine of parental immunity bars an unemancipated minor from suing her parent for injuries inflicted during the child's minority and caused by that parent. Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998); Squeglia v. Squeglia, 234 Conn. 259, 269-70, 661 A.2d 1007 (1995); Dubay v. Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988); Dzenutis v. Dzenutis, 200 Conn. 290, 293, 512 A.2d 130 (1986); Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929). The doctrine is not limited to negligence liability and extends to all torts in which a minor child suffers personal injuries. Mesite, 109 Conn. at 84, 145 A. 753. It also bars defendants from impleading parents as third-party defendants, attempting to apportion negligence liability, and advancing claims or counterclaims regarding parents' alleged comparative negligence. Crotta v. Home Depot, Inc., 249 Conn. 634, 644-45, 732 A.2d 767 (1999).
In Crotta, the defendant sought to join the minor plaintiffs father as a third-party
Hotchkiss asserts that in signing its Release, Mr. and Mrs. Munn assumed the risk of travel to China on Munn's behalf and waived liability for Munn's injuries. Def.'s Mem. in Supp. of Combined Mots. 47-48; Pretrial Conf. Tr. 18:1-23; Trial Tr. 16:18-20:24; Pls.' Mot. in Limine, Ex. C (doc. 143). Although the language of the "Release of Claims" section is broad, it contains a significant exception: the agreement waived the school's liability "except to the extent that the liability, damage, injury, loss, accident, or illness is caused by the sole negligence or willful misconduct of the School, its officers, trustees, faculty, employees, agents, or representatives." Pls.' Mot. in Limine, Ex. C, at 3. Hotchkiss argues that it should have been able to introduce evidence of the Munns' alleged negligent supervision of Munn's preparation for her trip to prove that the school was not solely negligent.
Hotchkiss asserts that it should have been allowed to introduce evidence of how Mr. and Mrs. Munn's "actions or inactions... constituted the negligence responsible for [Munn's] injuries." Def.'s Mem. in Supp. of Combined Mots. 58. In the same breath, the school claims this is not an argument of comparative negligence, but rather, an argument that as third parties the Munns were negligent in allowing their daughter to travel to China through a school-organized and school-supervised summer educational program. Id.
A characterization of Mr. and Mrs. Munns' actions as "independently negligent" is not substantiated by the record.
Like its "unpasteurized milk" theory, Hotchkiss's parental negligence theory was purely speculative. The school offered no evidence, beyond a request to cross-examine Mr. and Mrs. Munn regarding their own actions with respect to the trip, to substantiate its theory. Perhaps most importantly, although Hotchkiss never pleaded that Munn's negligence contributed to her injuries in its Answer, the school was allowed to introduce evidence of Munn's comparative negligence and to question Munn about her own actions in preparation for and during the China trip.
It defies logic for Connecticut's parental immunity doctrine to bar claims between parties regarding tort liability but allow a party to assert parental negligence for the purposes of triggering a waiver provision to release tort liability. See Littlejohn, 42 Conn. L. Rptr. at 811-12 ("the special defense contends that the defendant is not liable, as a matter of law, because the parent's negligent supervision of her child in this case erects a legal shield ... the court finds the very reasoning upon which the parental immunity doctrine is founded militates against permitting the notion of parental negligence to be used as an independent special defense."). Connecticut courts have been loathe to diminish or bar a child's recovery for injuries caused by a
Hotchkiss argues that it seeks to transfer or apportion blame to the Munns for their daughter's injury under a theory of parental negligence in order to lessen its own negligence liability. Crotta contemplated such arguments for apportionment and barred attempts to recover from, or to consider in the determination of negligence liability, the allegedly negligent conduct of parties against whom there could be no tort liability. Crotta, 249 Conn. at 639, 644, 732 A.2d 767; see also Conn. Gen.Stat. § 52-572h(c). This bar additionally provides that parents cannot recover for injuries to their minor child caused by another's negligence; only the child can recover for her harm. Crotta, 249 Conn. at 640, 644-45, 732 A.2d 767. As noted above, parental conduct cannot be used to bar the negligence claim of a minor child, and thus Mr. and Mrs. Munns' alleged negligence is irrelevant to a determination of the Release's scope.
Hotchkiss's policy argument that the school should not pay for a parent's negligence misunderstands the posture of this case and is unavailing. Mr. and Mrs. Munn do not seek to recover damages independent of Munn's recovery. They originally appeared as "next friend" to their minor daughter, and when their daughter reached her majority, their claims remained as dependent claims seeking the economic damages incurred between the time Munn was injured and the filing of her lawsuit. Hotchkiss argues that it should at least have been able to submit the waiver to the jury, along with evidence of Mr. and Mrs. Munn's alleged negligence, so the jury could determine whether its release clause was applicable in this case.
As discussed in my Ruling on the Munns' motion in limine (doc. 177), introducing the waiver was likely to confuse the jury and would have proved more prejudicial than probative, particularly in light of Connecticut's policy disfavoring the enforcement of liability waivers that release a defendant from liability for its own negligence. Hanks, 276 Conn. at 321, 885 A.2d 734 ("law does not favor contract provisions which relieve a person for his own negligence ... antipathy to releasing [a] defendant from its own negligence has deep roots in Connecticut jurisprudence.") (internal citations omitted); Hyson, 265 Conn. at 643, 829 A.2d 827 (same); Griffin v. Nationwide Moving & Storage Co., Inc., 187 Conn. 405, 413, 446 A.2d 799 (1982)
Because the school had no viable claim of parental comparative negligence and waived any comparative negligence claims against Munn and her parents, it suffered no prejudice by my exclusion of its waiver of liability.
Even if Hotchkiss's characterization of its parental negligence theory were accurate, it would not fall within any recognized exception to the parental immunity doctrine. The Connecticut courts have
Crotta did not reach the question that Hotchkiss claims was raised in this case: whether a defendant may ask for a jury interrogatory about parents' comparative negligence even if the parents cannot be held liable for their conduct and any parental negligence cannot be attributed to their child. Given the Connecticut Supreme Court's firm policy statement, it is difficult to imagine that a Connecticut state court would allow such a question to go to the jury. Rumm, 51 Conn. L. Rptr. at 611-12 (under Crotta, parents' negligence cannot be imputed to minor child); Littlejohn, 42 Conn. L. Rptr. at 811 (doctrine of parental immunity bars all persons from bringing negligence claims against the parent); Fuentes, 36 Conn. L. Rptr. at 777 (if parents are immune from liability, they cannot be made apportionment defendants); Kuzoian, 2001 WL 134621, at *3-4 (parental immunity precludes defense that parent assumed risk on behalf of minor child and additionally bars imputing parental negligence to minor child). I conclude Hotchkiss had no right to such an interrogatory.
If Hotchkiss indeed sought to argue that a parent's decision to allow her minor child to participate in a school-organized, school-sponsored, and school-supervised trip is itself an act of negligence, then that argument is ludicrous. Def.'s Mem. in Supp. of Combined Mots. 61 ("Consequently the jury was unable to consider whether the cause of the plaintiffs injury was the decision her parents made to let her travel to China."). Further, its suggestion that, as a matter of law, a school is released from liability every time a parent consents to her minor child participating in a school trip contravenes Connecticut law, public policy, and logic.
Hotchkiss next argues that, even if it had a duty to warn Munn of the risks of insect-borne diseases and advise her of precautions against contracting those illnesses, public policy should limit its liability. Under Connecticut law, even if a defendant could have foreseen a risk, the law excuses it from liability when "on
As a preliminary matter, Hotchkiss has likely waived this argument — it did not raise this issue in its Rule 50(a) motion at trial, thus waiving the argument upon renewal. Compare Trial Tr. 1200:17-1201:17 with Def.'s Mem. in Supp. of Combined Mots. 13-16; Mot. Hr'g Tr. 31:4-6 (July 11, 2013); see also infra section III.B (citing the Second Circuit's standards regarding the level of specificity required in Rule 50(a) motions to preserve those issues upon a Rule 50(b) renewed motion).
To assess the reach of public policy, a court must consider "the particular consequences to the particular plaintiff in the case." Id. (emphasis added). In other words, a public policy analysis is a case-specific standard. Although public policy arguments are not resolved by juries, they require that the court understand what happened to a plaintiff, a question only answered after a judge has heard evidence detailing the circumstances that resulted in an injury. See Lodge, 246 Conn. at 578, 717 A.2d 215 (resolving public policy question after trial); Jaworski, 241 Conn. at 408, 696 A.2d 332 (same). To address public policy for the first time at this stage in the litigation deprives the Munns of the opportunity to rebut Hotchkiss's version of events. How, for example, could the Munns have known that they needed to offer evidence of "the normal expectations of the participants in the activity under review"? Even if Hotchkiss had adequately preserved its argument, however, it should not be excused from liability on the basis of public policy.
Hotchkiss has recast its arguments regarding foreseeability as an issue of public policy. The two concepts are distinct and should be evaluated separately. Jaworski, 241 Conn. at 405, 696 A.2d 332 ("The final step ... is to make a determination of `the fundamental policy of the law'") (citing Prosser & Keeton, On Torts § 43). Connecticut law requires courts to determine the existence of a duty by first evaluating whether a plaintiff's injury resulted from foreseeable risks. Monk, 273 Conn. at 114, 869 A.2d 179. If the court finds a foreseeable risk existed such that it fell within the scope of a defendant's duty to exercise reasonable care, then the court proceeds to a public policy analysis. See, e.g., Jaworski, 241 Conn. at 404, 412, 696 A.2d 332 (holding first that injuries sustained during contact sports were foreseeable, then deciding that public policy insulated the defendant from liability for those injuries); RK Constructors, 231 Conn. at 387, 650 A.2d 153 (holding first that tortfeasor could have foreseen that victim's employer's insurance premiums might increase, and then deciding that public policy precluded liability for those increases). There is no public policy exemption protecting defendants from liability for unforeseeable risks because there is no duty to protect against unforeseeable risks in the first place. The public policy backstop protects defendants from liability
This distinction is clear in the handful of cases in which the Connecticut Supreme Court has invoked a public policy exemption to negligence liability. In Jaworski, the Court vacated a jury award for a soccer player's injury because contact sports are inherently dangerous. 241 Conn. at 412, 696 A.2d 332. The Court reasoned, "when competitive sports are played, we expect that a participant's main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically. We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries will result." Id. at 408, 696 A.2d 332. According to the Jaworski Court, negligence liability could not extend to youth who injured another youth during a game although injuries were a foreseeable outcome of healthy competition on the soccer field. Id. at 408-09, 696 A.2d 332 (the Court noted that it had preserved liability for intentional torts on the field when conduct was "deliberate, willful, or reckless," but that negligence liability would be inappropriate in this specific context). Similarly, in Lodge, the Court held that an alarm company could not pay the price for a city's negligent maintenance of its own fire trucks. 246 Conn. at 576-77, 717 A.2d 215 (although framed as a public policy rationale, it is important to note that the Court determined there was no proximate or factual causation in the case, and consequently, it declined to attach negligence liability). In RK Constructors, the Court did not allow an employer to sue over an increase in its insurance premiums following a negligent subcontractor's injury to the plaintiffs employee because the relationship between the plaintiffs harm (increased insurance premiums) and the defendant's conduct was too attenuated. 231 Conn. at 387-88, 650 A.2d 153. Although the Court cast its decision as based on public policy, its decisions in Lodge and RK Constructors are more properly understood as decisions regarding issues of attenuation and causation, not traditional public policy analyses.
In all three cases, the Connecticut Supreme Court used public policy to correct for situations where there may have been foreseeability, but where other elements of negligence were deficient or where a related tort principle disfavored liability — in Jaworski, a victim's participation in an activity requiring exposure to certain knowable risks; in Lodge, the conduct of a third party and an intervening cause; and in RK Constructors, the limit on benefits to third parties suffering indirect harm from a tortfeasor's conduct. Hotchkiss has not identified a similar principle, nor has it properly evaluated the four factors determinative of the public policy exception to liability.
The issue here, then, is not whether Munn's injury was "unprecedented," as Hotchkiss argues, but instead whether Connecticut public policy disfavors imposing liability on schools that fail to warn students about, and protect students from, a foreseeable risk of insect-borne disease. Applying the four factors dictated by the Connecticut Supreme Court, there is no reason to believe that Connecticut would make such a choice.
First, the average participant in a boarding school's study-abroad program expects that the school will warn and protect her against known and knowable threats to her health and safety. Hotchkiss
Second, though Connecticut public policy encourages international studies generally, Hotchkiss has not identified a single statute, regulation, court decision, or government program that prioritizes a student's exposure to new lands and experiences over her health and safety. Although the injury in this case occurred on foreign soil, the case is not about the benefits of foreign travel; it is about how much a boarding school, in conducting a school-sponsored trip and program, has to do to protect students from foreseeable medical risks. Here, the jury found that Hotchkiss knew or should have known of a category of diseases that could harm a student while on the school's China trip. The underlying public policy question is whether private boarding schools should be excused from a duty to warn and protect students from foreseeable insect-borne diseases when those schools expose students to unfamiliar environments.
Unlike soccer, where the risk of injury is inherent to playing the game, the risk of contracting an insect-borne disease is not inherent to foreign travel. Many students study abroad and, with proper advice and protection, are able to minimize the risk of contracting insect-borne diseases. Further, Hotchkiss cannot argue that insect-borne diseases are so inherent to travel to China that the school cannot take reasonable precautions to prevent injury from those diseases.
Third, there is no reason to believe that holding the school liable in this case will increase litigation any more than doing so in any other case where a child's health is
Last, it is not clear that any jurisdiction has decided a similar question. Hotchkiss cites a New York case in which the trial court held that there was no duty to protect a child during a field trip because the school could not have foreseen the injury he sustained. David v. N.Y.C., 40 A.D.3d 572, 835 N.Y.S.2d 377, 379 (N.Y.Sup.Ct. 2007). Once again, that case involved an issue that is different from the question presented here — whether a school should be released from its duty to protect a student from a foreseeable risk. Hotchkiss also cites an Illinois decision in which the Court of Appeals declined to hold a school responsible for the risk that a twelve-year-old boy would be assaulted by an unaffiliated group of students during a field trip. Mancha v. Field Museum of Nat. Hist., 5 Ill.App.3d 699, 283 N.E.2d 899 (1972). But Mancha is also inapposite because it turned on third-party liability. In sum, Hotchkiss has not and likely cannot point to a jurisdiction that insulates schools from liability for exposing their students to foreseeable and harmful diseases during a school-organized and school-supervised activity.
At closing argument, Hotchkiss presented a parade of horribles, warning that if Hotchkiss were required to pay for Munn's injuries in this case, schools across the country would shut down all extracurricular activities. Otherwise, "before the boy's [sic] soccer team gets off the bus, the coach would have to make sure they have insect repellent, insect[-]protective clothing in case the ball goes off the field, and they have to go into the woods to get it," and "[b]efore the eighth graders leave Grand Central Station in New York ... the chaperones would have to ensure bug protection in case [students] ran up against a bush in Central Park." Trial Tr. 1513:8-16.
The jury rejected that argument. I do, too, because compared to contracting a serious insect-borne disease, the burden upon schools appears minimal: schools would simply remind students to use bug spray and would bring bug spray on trips, the way school staff remind student athletes to put in their mouth guards before they take the football field or advise them to apply sunblock before walking outside on a sunny day.
Hotchkiss contends that I improperly admitted expert testimony from two of the Munns' witnesses and improperly excluded evidence from a defense witness. Decisions to admit and exclude expert testimony fall within this court's discretion. Under Federal Rule of Evidence 702, a district judge may admit expert testimony from anyone "who is qualified as an expert by knowledge, skill, experience, training, or education." Because expert testimony comes with a powerful imprimatur, district judges have a "gatekeeping responsibility" to ensure that "any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. 2786. District judges remain largely in control of testing an expert's mettle; as the Supreme Court has instructed, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
After a colloquy establishing his qualifications, I accepted Tarlow as an expert in the tourism risk management industry and in the existing policies of government agencies and educational institutions regarding protection against insect-borne disease. Tarlow has worked in the area of tourism, risk management, and security for over twenty years. Trial Tr. 428:7-8. He has written books and scholarly articles about how to assess risks posed on trips abroad and how to mitigate those risks. Trial Tr. 428:22-429:4. He will soon be the head of study-abroad programs for the Texas A & M University system. Trial Tr. 429:12-18. Although he did not have any prior experience in China, he did not testify about the risks of travel in China — he assumed that the risk of insect-borne disease was foreseeable and then opined about the proper precautions schools should take to protect students.
Tarlow did not have any prior knowledge of a standard of care for secondary schools providing study-abroad programs, but as Hotchkiss admitted, it would have been hard for him to have known of one — in 2007, there was no published standard of care for such trips. Trial Tr. 210:25-211:2. Tarlow did what any expert would: he developed a hypothesis, researched the question and arrived at a sensible conclusion. Tarlow hypothesized that schools had a duty to warn students of insect-borne disease, advise them of precautions and mandate that students take those precautions. He tested this idea by looking at mandated safety standards for adults and assumed those standards would set the minimum level of precaution necessary to protect a minor. He found government documents and manuals from educational institutions, all published before the Hotchkiss trip, that outlined insect precautions for adults and assumed that those recommendations would be mandated for students.
Even if Tarlow lacked the expertise or used unsound methods to arrive at an opinion, any error was harmless. Hotchkiss's witnesses admitted that in other contexts they warn students of the risk of insect-borne disease, advise students about how to minimize those risks and at times insist that students take precautions in areas where the school knows of a risk. See, e.g., Trial Tr. 313:14-18 (Thompson acknowledging mandated precautions to prevent Lyme disease on campus), 327:8-18 (Thompson admitting that, where risk is known, school warns students about insect-borne disease and ensures students take precautions), 124:1-125:25 (McKenzie admitting that where school knows of insect-borne disease, it gives warnings about precautions and compels students to take precautions in a "very different way" than it did in Tianjin). Thus, even if I had excluded Tarlow's testimony, the jury would have heard defense witnesses announce the same standard of care that Tarlow articulated — that schools must warn students of foreseeable disease risks, inform students of appropriate precautions and require that students adopt those precautions in environments where they will encounter disease risks.
I qualified Stuart Rose as an expert in travel medicine, including in the standards that apply to preparing for foreign travel and precautions taken during foreign travel. Hotchkiss does not dispute Rose's qualifications as a travel medicine expert, perhaps because it would be difficult to impugn his decades of experience. Rather, the school argues that Rose has too little experience with secondary schools to opine about the relevant standard of care for educators advising adolescents on travel risks.
Much like its argument on foreseeability, Hotchkiss hopes to prevail by narrowing the scope of evidence to an absurd degree. Rose did not have to be an experienced scholar of study-abroad programs with a sub-specialty in infectious diseases to render an expert opinion on what most reasonable trip planners would have done to protect minors from a medical risk while traveling abroad. He only had to have relevant knowledge, skill, training, experience or education to shed light on a question unfamiliar to the jury; in this case, what reasonable professionals should do to apprise themselves of medical risks, and, once aware of those risks, what they should do to minimize those risks. This inquiry requires some specialized knowledge — for example, in how to measure disease prevalence and severity, or how to choose among prophylaxes — but it did not demand that the expert possess a hyper-specific skill set that allowed him to resolve a technical problem. See Daubert, 509 U.S. at 589-90, 113 S.Ct. 2786 (outlining factors for qualifying expert testimony).
Given the limited complexity of the questions presented to Rose, he was more than qualified to opine about whether
The concerns Hotchkiss has raised go to the weight, not admissibility, of Rose's testimony. As Daubert explains, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
Hotchkiss proffered William Fluharty as an expert in school study- and travel-abroad programs and offered his testimony about the standard of care followed by similarly-situated schools, including practices related to the prevention of insect-borne diseases. Trial Tr. 1277:8-13. According to his testimony, Fluharty had worked as the head of global studies at a boarding school in Virginia since 2001, and he had gained his expertise regarding international travel programs at private schools and their practices through his work with the organization that administered those surveys, the Global Education Benchmark Group ("GEBG"). Trial Tr. 1283:12-1285:18. The first survey was distributed to approximately forty schools in 2008, and the second to approximately eighty schools in 2012.
In order to achieve its central objective, Rule 702 requires district judges to serve as "gatekeepers" and admit only expert testimony that "rests on a reliable foundation and is relevant to the task is hand." Daubert, 509 U.S. at 594-95, 597, 113 S.Ct. 2786; Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002); Fed.R.Evid. 702, 703. Expert
District judges are afforded flexibility to ensure expert testimony is both relevant and reliable. Kumho Tire Co., 526 U.S. at 152, 119 S.Ct. 1167 ("the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable."); Amorgianos, 303 F.3d at 265 (same). Further, the Second Circuit has noted that district judges "should undertake a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand" when determining whether to admit expert testimony. Id. at 267.
Expert testimony must also conform to other evidentiary rules; for example, expert opinions based on otherwise inadmissible hearsay may only be admitted if the facts or data are "`of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (citing Rule 703); see also Fed.R.Evid. 703 advisory committee's note (2000). In determining whether underlying facts or data are reliable, a district court's inquiry must focus on an expert's principles and methodology without regard to the conclusions the expert has reached or the "correctness" of the conclusions. Daubert, 509 U.S. at 595, 113 S.Ct. 2786; Amorgianos, 303 F.3d at 265. But the Supreme Court has noted that "conclusions and methodology are not entirely distinct from one another" and "nothing in Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Joiner, 522 U.S. at 146, 118 S.Ct. 512. Accordingly, "when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Amorgianos, 303 F.3d at 265, 267 (internal citation omitted). Thus, district judges must determine that proffered expert testimony is well-reasoned, not speculative, and properly grounded in an accepted body of learning or experience in the expert's field before admitting such testimony, and they must exclude testimony that uses the scrim of expertise to obscure a lay impression about a case. Kumho Tire Co., 526 U.S. at 152, 154-55, 119 S.Ct. 1167; Joiner, 522 U.S. at 144-45, 118 S.Ct. 512; Daubert,
Hotchkiss misconstrues the central reasons I struck Fluharty's testimony. It makes two arguments regarding the admissibility of Fluharty's testimony. First, Hotchkiss argues Fluharty is an expert in the field and was well-qualified to testify. Second, the school argues that I invaded the province of the jury in finding that Fluharty lacked a sufficient factual basis for his opinion testimony. Those arguments are simply misplaced.
As noted at trial, I struck Fluharty because he lacked a sufficient basis in facts or data for his proffered expert testimony and, lacking such a basis, he fabricated the supposed support for his opinion testimony and misrepresented his personal, lay opinions as reliable expert opinions. See Trial Tr. 1357:13-1361:13. Those defects rendered Fluharty's testimony inadmissible under Rule 702's requirements that specialized knowledge be based on sufficient data and that such opinions reliably derive from sound principles and methods. Determining the factual basis for an expert's opinion and the soundness of an expert's methodology falls within the "gatekeeping" function of district judges and is required to ensure the reliability and relevance of expert testimony. Amorgianos, 303 F.3d at 267. Any other characterization of my decision to strike Fluharty's testimony serves only to distract from the actual trial record.
Hotchkiss argued that, in addition to his individual experience, Fluharty's testimony was based upon and derived from data gathered from GEBG's 2008 survey of international programs. Trial Tr. 1285:9-18, 1323:20-1324:4. After I qualified him as an expert, however, Fluharty revealed that the basis for his knowledge was not, and could not, be substantively linked to the results of the 2008 GEBG survey. As detailed in this subsection, Fluharty drew on isolated conversations with one to four other schools, represented his individual practice as an industry-wide standard without validation or evidence to substantiate his representations, gave ipse dixit testimony regarding matters for which he had no information or basis in fact, and frequently misled the jury by applying 2012 "standards" to 2007 conduct.
When Fluharty began to testify, he spoke at length on what he believed were the standard practices of independent schools offering travel-abroad programs in 2007. Trial Tr. 1290:2-1298:11. The Munns' counsel objected to Fluharty's qualification as an expert, but I overruled that objection. Trial Tr. 1286:20-1287:12. Fluharty continued to testify, indicating that he had spoken to numerous schools when establishing, and later conducting, the 2008 GEBG survey. Trial Tr. 1288:12-1289:15. The Munns' counsel again objected, challenging the basis for Fluharty's opinion; again, I overruled the objection. Trial Tr. 1289:16-18. Fluharty testified expansively, indicating that his opinion was based on the 2008 GEBG survey or on conversations with numerous other schools. Trial Tr. 1290:1-1298:11. As his testimony unfolded, however, it became clear that the basis for Fluharty's testimony was not a survey of school practices, but rather anecdotal conversations with only a handful of schools.
As direct examination proceeded, Fluharty's testimony deteriorated rapidly. It became clear that when he lacked adequate or comparable data on specific issues, he routinely substituted his personal opinion (ipse dixit) or his individual practice for proper expert opinion about industry standards. When asked if a common practice existed regarding protection against insect-borne diseases on trips to temperate areas of China, Fluharty testified at length on "the standard" for those programs.
When it became clear to me that Fluharty was simply making up his testimony as needed and testifying about later-developed
In an attempt to salvage Fluharty's testimony, Hotchkiss's counsel then asked detailed questions about the content of the GEBG survey. During this colloquy, Fluharty testified, among other things, that the 2008 survey contained specific questions about how schools assessed medical risks, including the prevention of insect-borne diseases and whether they consulted with travel medicine experts. Trial Tr. 1335:4-1337:23 (sources of information on medical risk, with no questions asked about insect-borne diseases), 1345:11-22 (consultations with travel experts). Fluharty later revealed that his answers reflected data gathered in the 2012 survey, not the 2008 survey. Trial Tr. 1344:10-1345:2, 1346:4-22. He could not identify if the 2008 survey asked for that data. Id.
Again worried that Fluharty was offering misleading testimony, I spoke with counsel. At that point, I was tempted to strike Fluharty's testimony based solely on his confused answers. It was clear to me that despite his qualifications, Fluharty's testimony in this case was not grounded in sufficient facts or data. See Trial Tr. 1357:12-1358:3, 1358:21-1359:13. I gave Hotchkiss's counsel a final opportunity, however, to cure defects in Fluharty's testimony by showing that he had accurately described the survey. Hotchkiss's counsel did not have a copy of the survey, but Fluharty offered to download a copy from his personal files.
Once I reviewed the 2012 survey, I had no choice but to strike his testimony. The survey results directly contradicted Fluharty's sworn statements about the basis for his testimony. Compare Ct. Exs. 1 & 2 with Trial Tr. 1299:1-4, 1333:6-23, 1335:4-11, 1339:3-23, 1342:19-1343:8, 1343:15-1344:25, 1345:5-1346:22, 1347:12-1348:13. Fluharty had testified extensively on the role of CDC advisories in risk assessment and cited the 2008 GEBG survey as his source, but the survey did not ask whether schools consulted the CDC's website or utilized that information when evaluating health risks. Trial Tr. 1359:1-6. He also testified at length on how schools mitigated the risk of students contracting diseases abroad, including whether those schools required pre-trip travel medicine consultations, but the survey contained
Rule 702 empowers me to admit expert testimony only so long as it is reliable. I can think of no stronger basis for excluding testimony than proof that the testimony lacks any basis in fact. When the complete hollowness of Fluharty's testimony became apparent, we were too far along to parse the accurate from the inaccurate and misleading and to strike only portions of Fluharty's testimony. See Trial Tr. 1359:19-1361:13. I chose the most reasonable solution that I could and struck the entirety of Fluharty's testimony, without chastising him or defense counsel in front of the jury. Trial Tr. 1359:19-1362:11. Hotchkiss focuses its objections on Fluharty's qualifications, and I do not dispute that he has extensive experience in his field. I struck Fluharty not because of a lack of qualifications but because his testimony in this case was not based on sufficient facts or data, as required by Rule 702, and because, when Fluharty was asked to limit his testimony to reliable bases, he did not testify truthfully. I struck Fluharty's testimony for those reasons, consistent with my obligation to ensure the fundamental reliability of expert testimony. Even in hindsight, I see no error in that decision.
Hotchkiss next argues that a portion of expert Lawrence Forman's testimony was inadmissible. The school claims that Forman, a lifecare planner, relied on inadmissible hearsay because he credited another expert, physiatrist Dr. Andrew Yuan, when testifying that Munn would require a life coach throughout her life. Under Rule 703, an expert may rely on inadmissible information if "experts in the particular field [of the witness] would reasonably rely on those kinds of facts or data in forming an opinion on the subject." Hotchkiss admitted at trial that a treating physician's opinion would fall within that exception, Trial Tr. 902:15-21, but argued that an expert physician's opinion is qualitatively different because that expert's opinion is inherently biased. Trial Tr. 905:22-906:6. According to Hotchkiss, Forman amplified Yuan's bias because Yuan never testified at trial, so the school never had an opportunity to expose any flaws in Yuan's analysis. If the school is correct about Forman's opinion, then the damage award must be reduced by about $5.9 million.
Forman's opinion, however, was sound and properly admitted. If there was bias here, it was not Forman's. Forman opined about the appropriate care necessary to support Munn over her lifetime. He did not testify about the extent of Munn's physical disability. Forman certainly assumed that Yuan was correct
But even if Forman impermissibly relied on hearsay, such reliance did not prejudice Hotchkiss's case. Forman did not rely on Yuan's opinion to determine that Munn needed a life coach; Forman came to that conclusion after his conversations with a different expert, Dr. Robert Tepley, a neuropsychologist who did testify at trial. Forman believed that Munn "lacked judgment," an opinion he derived from "the parents, and ... the neuropsychological reports." Trial Tr. 1149:22, 1151:24-25. Hotchkiss later inquired why Munn's lack of judgment was so profound as to require a life coach, asking "[a]nd what is it that that community living coach would do for [Munn]?" Trial Tr. 1156:8-9. Forman responded by referring to problems identified by Tepley, explaining that a life coach would "help her with organization, follow-through, problems as they arise, planning, implementing, managing, communicating, and doing other things that arise as her life evolves," and repeating that "her parents have indicated, the neuropsychologist [h]as indicated [she requires this help]." Trial Tr. 1156:10-13, 23-25.
Yuan agreed that Munn could use an aid to help with daily activities, though his agreement only ratified Tepley's opinion. As Forman admitted, both Tepley and Yuan indicated that Munn would need help for three to five hours a day, five days a week. Trial Tr. 1157:4; Pls.' Trial Ex. 32, at 10. Yuan's opinion was never the sole basis, or even the principal basis, of Forman's opinion that Munn required a life coach. In his original report, Forman opined that Munn needed a physical assistant, someone "who does things for you." Trial Tr. 1157:11-17. In his amended report, however, he took out the cost of a physical assistant because "Dr. Yuan didn't think it was needed." Trial Tr. 1157:18-21, 1158:7-14. In contrast, Forman prescribed a life coach after he realized that Munn's difficulties were "mainly with cognitive issues." Trial Tr. 1158:12. Thus, if Yuan affected Forman's opinion at all, it was mostly by informing Forman that Munn was more physically able than Forman initially believed.
Given that Forman's opinion complied with Rule 703, and that even if it did not Hotchkiss suffered no prejudice, I see no error in my admission of Forman's testimony.
Finally, Hotchkiss requests a substantial remittitur of the jury's non-economic damages award and a collateral source reduction. The size of an award for damages is "a matter peculiarly within the province of the trier of fact, in this case, the jury." Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661, 935 A.2d 1004 (2007). This is particularly true for non-pecuniary awards, where compensation depends upon valuations of imprecise damage
A trial court may only reduce an award if it perceives an "extraordinary departure from reasonableness" in the jury's calculations. Saleh v. Ribeiro Trucking, 303 Conn. 276, 283, 32 A.3d 318 (2011).
Id. at 281, 32 A.3d 318 (alteration in original, internal citations and quotation marks omitted). A court must give "definite and satisfactory reasons for ... ordering [remittitur]. Merely stating that an award shocks the conscience or the sense of justice of the court or that the award does not fall within the necessarily uncertain limits of fair and reasonable compensation will not be sufficient." Id. at 283-84, 32 A.3d 318. In determining whether to order remittitur, "the trial court is required to review the evidence in the light most favorable to sustaining the verdict." Id. at 280, 32 A.3d 318.
At trial, the plaintiffs argued that Munn suffers from a perfect storm of symptoms that, taken together, magnify individual deficits into a debilitating and humiliating disability. Munn cannot talk. Trial Tr. 800:10-11. She cannot communicate through sign, Trial Tr. 929:5-15, nor can she type quickly enough to allow a computer to generate audible words at a natural speed — it takes her a long time to produce a short phrase. Trial Tr. 894:16-24. Munn is not only mute; she cannot have a sustained or rewarding social exchange with another person. Munn cannot loosen her facial muscles enough to register her emotions accurately. Trial Tr. 1010:3-14. She cannot tighten her muscles when they slacken, which means she often drools so profusely that strangers stare at her in public places. Trial Tr. 793:8-794:10. Munn always looks like she is flashing a wide-eyed smile, and she sometimes wears wrist bands to mop her saliva. Her facial expressions alternately alienate or disgust the people she attempts to befriend. Munn lacks cognitive skills; in particular, she has limited executive function. Trial Tr. 848:22-850:7. But she also has retained much of her raw, pre-injury intelligence. Trial Tr. 868:10-869:2. Munn's cognitive injuries are greater than simply being unable to work through complex problems — she perceives the right solution but cannot implement it. As the Munns' counsel described, Munn "is like a world-class sprinter forced to live in a box for the next 66 years." Pls.' Mem. in Opp'n to Def.'s Mots. for JMOL, New Trial, and to Alter Judgment 74 (doc. 218).
The Munns' evidence supported the theory that Munn's injuries are uniquely cruel. As Christine Munn recounted, Munn has no social life because
Trial Tr. 931:3-10. Her only social contact occurs online. See Trial Tr. 933:2-934:5, 936:16-19, 940:20-23 (Christine Munn lamenting that Munn never attends college parties, dances or other social events). Every witness who knew or met Munn commented on her monkish existence. See Trial Tr. 879:8-25 (Tepley describing "the social side of things [as] a challenge"), 993:16-25 (Orson Munn noting that Munn has no friends), 1077:13-1078:7 (Dr. Jeff Blank recounting that over the course of four appointments with Munn in which they walked around her college campus, she never interacted with anyone else), 1113:1-4 (Forman explaining that "her social life is pretty nonexistent, except with her family"), 1123:8-21 (Forman noting "she really has no socialization" and that Munn's isolation is like living "in a cocoon"). No one expects this isolation to abate. Munn believes that she will never date, let alone have a family; in her words she imagines she will remain "an old spinster" and wonders how she would be able to teach her children, if she were able to have any, to speak. Trial Tr. 1014:20-1015:19. Indeed, experts testified that it would be difficult for Munn to perform the basic tasks necessary to manage her own life, let alone ensure the growth, health and safety of a child. Trial Tr. 876:12-879:7.
Munn's solitude stings her acutely. She has contemplated suicide, and experts expect that she will again crash into a deep depression once she leaves the relatively structured setting of a school environment. Trial Tr. 938:14-18 (suicidal ideation), 1124:21-22 (same), 880:11-881:10 (risk of depression), 1123:17-21 (Munn at risk for significant depression post-college). She feels shamed when people gawk at her in restaurants as she struggles to eat; as her father testified, Munn cannot control her mouth enough to chew food or swallow drinks in a normal manner, so that at twenty-one her eating looks childlike. Trial Tr. 992:2-23; see also Trial Tr. 846:19-24 (Tepley describing Munn's eating as not "a smooth process" because "the food doesn't quite stay and, you know, she has to kind of use her hand to try to make sure that it does"). Her heart broke when a boy that she dated prior to her trip to China dumped her and posted cutting remarks about her on Facebook. Trial Tr. 1123:9-12. She rages when people assume that she suffers from severe mental retardation, and she cannot correct that impression. Trial Tr. 798:5-12, 935:24-936:19. Perversely, Munn is arguably in a more emotionally-compromised position than some people with more profound cognitive impairments because they may have the odd blessing of not understanding the depth of others' rejection of them. Thus, according to witnesses, Munn lives in a peculiar hell: she knows what she has lost, cannot find cathartic expression for that loss and is treated as if she has lost far more. Because she has a normal life expectancy, she may suffer alone in this state for the next sixty-plus years.
The emphasis on Munn's emotional distress should not distract from the evidence of her past physical pain and her future physical limitations. Munn endured a grueling illness and recovery. At her lowest point, she was paralyzed and semi-comatose. Trial Tr. 912:1-919:25. Because she could not swallow on her own, she had to
Witnesses' accounts and my own courtroom observations of Munn's emotional and physical suffering depict a miserable life. Such a dire description may overstate her despair, and it might underestimate her ability to cope with her disabilities over time. We have thankfully left the age of sanatoriums behind, and many disabled people lead rich lives and make meaningful contributions to society. Moreover, Munn has the good fortune of retaining certain abilities: She has written for a blog about fashion. Trial Tr. 982:21-983:7. With assistance, she has even traveled abroad again. Trial Tr. 893:7-16. But the issue here is not whether Munn might cobble together fulfilling moments during her life, it is whether the jury reasonably could have found that she rarely will be able to do so, and, thus, fairly awarded Munn a large amount of money to compensate her for that loss. As detailed above, the Munns provided the jury with more than enough evidence to reach that pessimistic conclusion.
Other courts faced with this question have taken a common-law approach and have compared an award to verdicts in similar cases. See Pouliot v. Paul Arpin Van Lines, Inc., 235 F.R.D. 537, 550-51 (D.Conn.2006). The logic underlying this approach assumes that if another group of citizens priced a victim's suffering comparably, then a jury likely used an objectively reasonable method to arrive at its verdict. It is difficult to find a case exactly like Munn's, in which a young person has a normal life expectancy,
Taken together, those cases present a similar constellation of injuries as Munn's. Her verdict falls in the middle of the range of awards in comparable cases. In those cases, victims received between fifteen and fifty million dollars for post-injury life expectancies of between thirty-five and forty-three years. If Munn's award were converted into an annual rate — an admittedly difficult task given variable rates of interest over time — she would receive roughly $477,272 per year.
Make no mistake — Munn was awarded a significant amount of money that will ensure that she will want for nothing material. Had the decision been mine, I likely would have awarded somewhat less. But "[t]he fact that the jury returns a verdict in excess of what the trial judge would have awarded does not alone establish that the verdict was excessive." Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). Further, given the subjective nature of a non-economic damages inquiry, we should expect disparities between what a judge and what a jury might award. What is the price of relying on your parents to find you a prom date? Trial Tr. 934:19-22. How much money replaces the loss of the joy you felt when playing the piano? Trial Tr. 927:2. Can you calculate the cost of missing your teenage years, of never maturing socially and emotionally beyond the age of fifteen? Trial Tr. 993:19-25. When evaluating the totality of the harms that Munn suffers, I cannot say that the jury's award falls outside the range of reasonable verdicts in this case.
Connecticut allows the court to reduce a plaintiffs past economic damages award in personal injury cases "by an amount equal to the total of amounts" paid by collateral
In response to Hotchkiss's motion to alter judgment (doc. 209), the parties filed a joint stipulation noting that the Munns' past economic damages should be offset by the amount covered by collateral sources (health insurance) less the Munns' insurance premiums, a total offset amount of $284,094.61 (doc. 251). The jury awarded the Munns $450,000 in past economic damages. After accounting for collateral sources, the amount awarded for past economic damages becomes $165,905.39, and Munn's overall damages (economic and non-economic) become $41,465,905.39.
I approve the parties' collateral source stipulation and accordingly deny as moot Hotchkiss's motion to alter judgment with respect to this issue.
For the reasons set forth, Hotchkiss's motion for judgment as a matter of law (doc. 206), motion for new trial (doc. 207), and motion to alter judgment (doc. 209) are denied. The parties' stipulation on collateral source reduction (doc. 251) is adopted, and an amended judgment will enter in favor of plaintiffs in the total amount of $41,465,905.39.
It is so ordered.
Here, Hotchkiss has cast foreseeability principally as a question of duty, a mixed question of law and fact, rather than as proximate cause, a question of fact. B & D Assocs., Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002). This is an understandable tack for a party facing the difficult burden of overcoming a jury verdict. But a change in terminology does not change the character of the question posed to the court: what a reasonable person would have anticipated if placed in the defendant's situation. That determination turns on facts — what information was available to the defendant, where the defendant planned to take the plaintiff, what medical professionals would have advised the defendant, etc. — and factual disputes must be resolved by a jury. See Miranti v. Brookside, 159 Conn. 24, 29, 266 A.2d 370 (1969) (reversing grant of summary judgment because contested issues of fact existed with respect to whether accumulation of debris created foreseeable risk of accident); Frankovitch, 185 Conn. at 15-16, 440 A.2d 254 ("[i]f, on the evidence, the jury could reasonably have decided as they did, we will not find error in the trial court's acceptance of the verdict.").
The jury could easily and reasonably have inferred that the August 2007 webpage contained the same basic information as the late spring 2007 page. The CDC had a China page at the time Thompson and Yu planned the trip — indeed, Thompson testified that Yu had mistakenly included a link to the CDC's Central America page in her April email and had meant to link to the China page. Trial Tr. 241:4-20, 255:2-10. Thompson also testified that he recalled the warning about TBE appearing on that webpage, though he equivocated over whether advice on TBE was applicable to the geographic locations of the Hotchkiss trip. Trial Tr. 249:9-20, 253:12-19. There was no evidence of a spike in TBE infections in northeastern China between the late spring and summer of 2007. Munn was only diagnosed with TBE months after her return from China. Def.'s Trial Ex. 569. Thus, contrary to Hotchkiss's argument, any reference to TBE in the 2007 advisory could not have been new nor could it refer to Munn's case. The jury could reasonably infer that the earlier page would have contained similar advice to what it saw in the August 2007 version.
The distinction between parties in the context of Connecticut's liberal peremptory challenge regime does not change the dependence or independence of a parent's claim. Kalams v. Giacchetto, 268 Conn. 244, 261, 842 A.2d 1100 (2004); Marshall v. Hartford Hosp., 65 Conn.App. 738, 750-51, 783 A.2d 1085 (2001), cert. denied, 258 Conn. 938, 786 A.2d 425 (2001). The Connecticut Supreme Court has held that regardless of how a trial court determines the proper allocation of peremptory challenges across parties to a lawsuit, a parent's claim to recover the cost of her child's treatment for injuries sustained by a defendant's negligence depends on the success of the child's negligence claim and cannot be brought independently. Ooms v. Ooms, 164 Conn. 48, 52, 316 A.2d 783 (1972); Krause, 147 Conn. at 335, 160 A.2d 753; Tulin v. Tulin, 124 Conn. 518, 522, 200 A. 819 (1938); Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). It has further held that recovery of the parent's costs of treating their child's injuries are more appropriately understood as recovery on behalf of the child, not the parent. Crotta, 249 Conn. at 644, 732 A.2d 767 ("It is artificial to separate the parent and the child as economic entities.... The reality of the family is that ... it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery."); Carney v. Federal Express Corp., No. CV020467894, 2003 WL 1995621, at *5 (Conn.Super.2003); Hart v. Torello, No. CV 990421294S, 25 Conn. L. Rptr. 506, 508, 1999 WL 793944 (Conn.Super. Sept. 24, 1999).
See Trial Tr. 1288:1-5.
Trial Tr. 1304:10-14.
Trial. Tr. 1305:1-18.
Trial Tr. 1326:11-1327:1.
Trial Tr. 1298:19-1299:4.
Trial Tr. 1330:24-1331:21.
The Court: Was this prior to 2007?
Trial Tr. 1299:8-20.
Trial Tr. 1340:5-1342:22. Upon further questioning, Fluharty admitted that the conversations he referenced regarding "the standards" took place in 2010 and did not refer to pre-2008 practices, as he had indicated in his earlier testimony. Trial Tr. 1299:17-20.
Further, when asked to describe the survey questions related to risk assessment and health information, Fluharty answered questions authoritatively, suggesting that his answers were based on survey data, before conceding that the survey had never asked questions related to the subject of his testimony:
Trial Tr. 1339:3-23.
