By Mike A. D’Amico
The appellate case law in Connecticut is thin with regard to a Daubert/Porter analysis or hearing concerning expert medical testimony in a medical malpractice case. Accordingly, the applicability of the Porter analysis and the necessity of a pre-trial hearing in a medical malpractice case can be gleaned only from the appellate courts’ few decisions involving this issue.
Initially it is helpful to understand the background behind a Daubert/Porter analysis. Why was the Frye test abandoned? The Connecticut Supreme Court in Porter at p74-75stated:
Having concluded that Connecticut judges should exercise a gatekeeper function with regard to scientific evidence, we now briefly explain our conclusion that the Frye “general acceptance” standard is not adequate for this role. We note that even before the decision in Daubert, the Frye rule was widely criticized. “[S]cholars have criticized the Frye approach for being unduly conservative and for abandoning the fundamental evidentiary [principle] of . . . probity.” “Developments in the Law – Confronting the New Challenges of Scientific Evidence” (“Developments in the Law”), 108 Harv. L. Rev. 1481, 1486 (1995). These critics observe that scientific pioneers and dissenters are occasionally right. “`When photography was first introduced, it was seriously questioned whether pictures thus created could properly be introduced into evidence, but this method of proof, as well as by means of x-rays and the microscope, is now admitted without question.’ [People v. Jennings, 252 Ill. 534, 548, 96 N.E. 1077 (1911)]. As with most scientific phenomena, the passage of time can serve . . . to demonstrate the reliability and acceptance of a once speculative and unproved premise.” State v. Bullard, 312 N.C. 129, 146, 322 S.E.2d 370 (1984). Excluding scientific views simply because they are not “generally accepted,” without any further consideration of their validity, thus contravenes “the liberal nature . . . of modern evidentiary law.” R. Friedman, supra, 34 Jurimetrics J. 133-34.
We are persuaded by these criticisms of the Frye test. We conclude that an admissibility test for scientific evidence premised solely on its “general acceptance” is conceptually flawed and therefore must be rejected.
Thus the reasoning behind abandoning Frye is that it was viewed as too restrictive a test for admissibility. Porter recognized that some scientific evidence should be admitted even if not generally accepted within the relevant scientific community.
But what is scientific evidence? The Supreme Court in Porter at p 78-79 stated:
The term “scientific evidence” covers a large variety of subjects. The Federal Judicial Center, for example, included in its Reference Manual on Scientific Evidence essays on the broad topics of epidemiology, toxicology, survey research, DNA evidence, multiple regression, and estimation of economic losses in damages awards. See Reference Manual on Scientific Evidence, J. Moore, Federal Practice (1995). In addition to those subjects, courts have also treated as scientific evidence testimony on subjects ranging from the causation of a plaintiff’s cataracts; O’Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994); to an analysis of bloodstain patterns at a crime scene; State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995); to, of course, polygraph evidence; State v. Beard, 194 W. Va. 740, 461 S.E.2d 486 (1995); and beyond.?’
Well since the scope of what is scientific evidence may be broad then how do you apply a Daubert/Porter analysis to various scientific evidence? The Porter Court stated at p81-83:
We begin by noting the distinction under the Daubert approach between the methodologies underlying an expert’s scientific testimony and the expert opinion itself. As the court in Daubert noted, the focus of a validity assessment “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 595. So long as the methodology underlying a scientific opinion has the requisite validity, the testimony derived from that methodology meets the Daubert threshold for admissibility, even if the judge
disagrees with the ultimate opinion arising from that methodology, and even if there are other methodologies that might lead to contrary conclusions. Thus, a judge should admit scientific testimony when “there are good grounds for [the] expert’s conclusion, even if the judge thinks that there are better grounds for some alternative conclusion. . . .” In re Paoli R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994).
For example,[fn27] in Cella v. United States, 998 F.2d 418, 420 (7th Cir. 1993), the plaintiff claimed that his polymyositis – an inflammation of the muscles involving both the upper and lower extremities – was caused by certain events of physical and emotional trauma he suffered while working aboard a Navy vessel. The plaintiff presented the testimony of a single physician supporting his theory of liability, while the defendant presented several witnesses who testified that the cause of polymyositis is, in fact, unknown, and thus could not be attributed to the aforementioned traumas with any degree of certainty. Id., 421-22. After the court, in a bench trial, found in favor of the plaintiff, the defendant appealed, claiming, in part, that the testimony of the plaintiff’s physician should not even have been admitted “in light of the testimony of the defendant’s medical experts and the abundance of medical literature stating that the etiology of polymyositis is unknown.” Id., 423.
After a thorough review of the bases upon which the plaintiff’s physician had based his opinion, the court upheld the admission of his testimony. “Although [the plaintiff’s physician’s] conclusion differs from those of the defendant’s medical experts, he has utilized an accepted methodology in reaching his conclusion – namely, analysis of medical literature and case study comparison with the individual characteristics of the patient’s case to determine etiology.” Id., 426. Thus, although there was little support in the literature for the physician’s specific conclusion regarding the cause of the plaintiff’s injury, the court found that he had employed a proper and thorough diagnostic methodology. Accordingly, it was not error to admit the physician’s testimony, because “`[a]s long as the expert’s methodology is well founded, the nature of the expert’s conclusion is generally irrelevant, even if it is controversial or unique.”[fn28] Id. Once the methodology underlying an expert conclusion has been sufficiently established, the mere fact that controversy, or even substantial controversy, surrounds that conclusion goes only to the weight, and not to the admissibility, of such testimony.”
So how do you analyze a methodology across a range of scientific evidence? The Court in Porter at p84-87 stated:
‘We now set forth some of the factors that various courts have considered in conducting a methodological analysis. We emphasize, however, that these factors are not exclusive. Some will not be relevant in particular cases; and some cases will call for considerations not discussed herein. “The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.” E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 593; In re Paoli R. Yard PCB Litigation, supra, 35 F.3d 742. Indeed, as discussed previously; see generally part I B 3 of this opinion; a mechanical list of mandatory factors would frustrate the entire concept underlying the Daubert approach.
Even under Daubert, courts should continue to consider whether a scientific principle has gained “general acceptance” in making admissibility determinations. Although “general acceptance” is no longer an absolute prerequisite to the admission of scientific evidence, it should, in fact, be an important factor in a trial judge’s assessment. Indeed, “[w]e suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue.” Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994). Thus, “[a]lthough Frye may no longer be the standard for admissibility, general acceptance remains a part of the analysis, and in many cases its presence may alone be sufficient to admit the evidence.” (Emphasis in original.) “Standards and Procedures for Determining the Admissibility of Expert Evidence After Daubert,” 157 F.R.D. 571, 574 (1995). That is, if a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.[fn30] If a principle has not gained general acceptance, however, we emphasize that “a proponent of [the] scientific opinion . . . may [still] demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance.” Commonwealth v. Lanigan, supra, 26; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 588-89.
Several other factors may properly play a role in a court’s assessment of the validity of a scientific methodology. The remaining factors listed in Daubert – whether that methodology has been tested and subjected to peer review, and the known or potential rate of error – are of course important. See Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 592-94. Moreover, the prestige and background of the expert witness supporting the evidence can play a role in determining whether a novel technique employed by that individual is likely to have any scientific merit. State v. Goode, supra, 341 N.C. 527-28; State v. Brown, 297 Or. 404, 417, 687 P.2d 751 (1984); M. Gottesman, “Admissibility of Expert Testimony After Daubert: The `Prestige’ Factor,” 43 Emory L.J. 867, 878 (1994). The extent to which the scientific technique in question relies on subjective interpretations and judgments by the testifying expert, rather than on objectively verifiable criteria, can also be a factor. State v. Brown, supra, 417; E.I. du Pont de Nemours & Co. v. Robinson, supra, 923 S.W.2d 557; “Developments in the Law,” supra, 108 Harv. L. Rev. 1498. In the same vein, courts have looked at whether a testifying expert can present and explain the data and methodology underlying his or her scientific testimony in such a manner that the fact finder can reasonably and realistically draw its own conclusions therefrom. State v. Goode, supra, 527-28; “Developments in the Law,” supra, 1502; see also State v. Hasan, supra, 205 Conn. 491. Several courts have also considered whether the scientific technique underlying the proffered expert testimony was developed and implemented solely to develop evidence for in-court use, or whether the technique has been developed or used for extrajudicial purposes. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (applying Supreme Court Daubert opinion on remand of case); State v. Goode, supra, 527-28; State v. Brown, supra, 417; E.I. du Pont de Nemours & Co. v. Robinson, supra, 557.
We appreciate that many of these factors lack precision, but this indefiniteness is unavoidable. The actual operation of each factor, as is the determination of which factors should be considered at all, depends greatly on the specific context of each case in which each particular Daubert analysis is conducted. So long as trial judges remain focused on the underlying purpose behind the Daubert analysis – to establish whether a scientific methodology has sufficient validity to be helpful to the fact finder – we are confident that the previously mentioned uncertainties are not so overwhelming as to render Daubert functionally inoperative. Cf. R. Friedman, supra, 34 Jurimetrics J. 141 (ambiguities in Daubert factors “will probably be genuinely troublesome only if, contrary to the [Supreme] Court’s stated intention, lower courts treat the criteria as checklist items, each of which must be satisfied for a proposition to be deemed scientific, rather than merely as factors to be weighed, along with others, into an overall balance”).”
So when is a scientific methodology sufficiently valid to render the opinion admissible? The Porter Court at p87-90 stated:
‘We now turn to the threshold burden that a proponent of scientific testimony bears to establish that the testimony is admissible. “Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility.” E.I. du Pont de Nemours & Co. v. Robinson, supra, 923 S.W.2d 557.
In addressing the showing that a proponent of scientific evidence must make, we are largely guided by the fundamental tenets of the law of evidence regarding admissibility. “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. McClendon, 199 Conn. 5, 8, 505 A.2d 685 (1986). “Evidence is not rendered inadmissible because it is not conclusive. All that is required is that evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Emphasis in original.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) 8.1.1, p. 226. Moreover, even evidence “susceptible to different interpretations” is admissible; State v. Gray, 221 Conn. 713, 725, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); “`[s]o long as the evidence may reasonably be construed in such a manner that it would be relevant. . . .'” Id.
These concepts are as applicable to scientific testimony as to other types of evidence. Thus, questions about the methodological validity of proffered scientific testimony will generally go to the weight of such evidence, not to its admissibility. Courts should exclude scientific evidence, however, when such concerns render the technique, and the resulting evidence, incapable of assisting the fact finder in a sufficiently meaningful way.[fn31] Moreover, in light of the traditional policy regarding the admission of relevant evidence, “[a] judge frequently should find an expert’s methodology helpful [and thus admissible] even when the judge thinks that the expert’s technique has flaws sufficient to render the [expert’s] conclusions inaccurate. He or she will often still believe that hearing the expert’s testimony and assessing its flaws was an important part of assessing what conclusion was correct and may certainly still believe that a jury attempting to reach an accurate result should consider the evidence.” In re Paoli R. Yard PCB Litigation, supra, 35 F.3d 744-45.
A trial judge should therefore deem scientific evidence inadmissible only when the methodology underlying such evidence is sufficiently invalid to render the evidence incapable of helping the fact finder determine a fact in dispute. We adopt the Daubert approach, however, specifically because we conclude that a sufficient showing of validity is necessary for scientific evidence to be helpful. See part I B 1 of this opinion. The interplay between these principles – a general policy in favor of admission of helpful evidence, and a specific policy of requiring a showing of a certain level of validity before scientific testimony can properly be presented to a fact finder – cannot be resolved by an absolute statement or rule. instead, a case-by-case analysis will be necessary.”
It is important to keep in mind that Frye and Porter dealt with the admissibility of polygraph evidence. The defendant in each case wanted to have the jury hear expert testimony that each had taken a lie detector test and passed. In each the Court found the science behind lie detection to lack a sufficient scientific basis and excluded the expert testimony. In Daubert the claim was that the prenatal ingestion of a prescription drug caused serious birth defects. The trial court excluded the plaintiff’s expert testimony on the basis that the relationship between the drug and birth defects was not generally accepted in the scientific community and the United States Supreme Court reversed, rejecting the Frye standard in favor of a more flexible approach under the Federal Rules of Evidence. I see these cases as the ‘parents of the gatekeeper baby” and suggest that a Daubert/Porter hearing should be granted sparingly by the trial court in those cases where the methodology behind scientific evidence can truly be the subject of reasonable debate; and that proposed testimony should be disallowed only when the methodology is so flawed and invalid as to render it completely useless to the jury in its fact finding role.
With this background in mind, I suggest that in the majority of medical malpractice cases a Daubert/Porter hearing is unnecessary and should not be allowed.As the Connecticut Supreme Court said in Hayes,infra: “..these are generally accepted principles of cardiology, which are supported by numerous studies. This is not the type of ‘junk science’ that Porter is intended to guard against. Nor are these principles ‘obscure scientific theories … that had the potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.’ (Citation omitted; internal quotation marks omitted.) Rather, these are well established principles of the scientific community to which Porter simply does not apply.”
Now let’s look at how the Appellate Courts in Connecticut have applied Porter since its birth in 1997.
In Hayes v. Decker, 263 Conn. 677, 822 A.2d 228 (2003), the Supreme Court held that the trial court had improperly excluded expert opinion that the physician’s discontinuation of a particular blood-pressure medication increased the severity of the patient’s subsequent heart attack. The court in Hayes held that the trial judge’s assessment of the credibility of an expert witness regarding scientific evidence is not relevant; what is relevant is whether the underlying methodology is scientifically valid:
The trial court’s ruling on the admissibility of Friedlander’s testimony was explicitly based on application of the Porter standard to his conclusion. The trial court stated that the testimony was inadmissible because ‘apparently there is no evidence, no study that says that withdrawal of Procardia will increase the intensity of the heart attack.’ See footnote 1 of this opinion. As we noted in Porter, however, ‘the focus of a validity assessment must be solely on principles and methodology, not on the conclusions that they generate.’ (Emphasis added; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. at 81, 698 A.2d 739. The Porter analysis is meant to determine whether the methodologies or premises underlying an expert witness’ conclusions are valid, not to assess the credibility of the expert’s ultimate conclusion. An expert witness is permitted to give opinion testimony provided that the ‘witness [has been] qualified as an expert … if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.’ Conn. Code Evid. 7-2.
263 Conn. at 685, 822 A.2d at 234.
Similarly, the court held that if the expert’s methodology is scientifically valid, then it is not for the trial court to determine if there are grounds for a different conclusion:
Moreover, we note that the trial court’s second ground for excluding the expert’s testimony was also a misapplication of the law as set forth in Porter. The trial court stated that it found ?more reliable [the evidence] that the speed of supplying treatment decreases the damage or the intensity of the heart attack, so that no matter what the problem that caused it, if treatment were supplied fairly immediately, damage would be decreased….’ In Porter, we stated that testimony derived from a scientifically valid methodology is admissible ?even if the judge thinks that there are better grounds for some alternative conclusion ….’ (Emphasis added; internal quotation marks omitted.) State v. Porter, supra, 241 Conn. at 81-82, 698 A.2d 739. Although there may have been better grounds to conclude that the speed of treatment decreases the severity of a heart attack, that determination is irrelevant. Under Porter, a trial court does not have the discretion to exclude expert testimony because it believes there are better grounds for an alternative conclusion. Accordingly, we conclude that the Appellate Court correctly concluded that the trial court misapplied the law as set forth in Porter and that Friedlander’s conclusion should have been considered under the standards for the admissibility of expert testimony.
263 Conn. at 686, 822 A.2d 234-35.
The Supreme Court quoted the Appellate Court’s opinion in stating that ‘well-established” medical principles did not give rise to a Porter analysis:
The Appellate Court concluded, on the basis of Friedlander’s testimony, that these are generally accepted principles of cardiology, which are supported by numerous studies. This is not the type of ?junk science? that Porter is intended to guard against. Nor are these principles ‘obscure scientific theories … that had the potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.” (Citation omitted; internal quotation marks omitted.) Rather, these are well established principles of the scientific community to which Porter simply does not apply.
263 Conn. at 689, 822 A.2d at 236.
In Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 847 A.2d 978 (2004), the court outlined the threshold admissibility analysis elucidated in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997). The court in Maher,in a medical malpractice case involving a missed diagnosis of cervical cancer, reversed a jury award to the plaintiff, holding that an expert gynecologic oncologist’s testimony on doubling time period for the plaintiff’s cervical cancer was the type of scientific evidence that required an individualized Porter inquiry as to its underlying scientific validity. The court in Maher initially explained the parameters of this Porter inquiry:
Beyond these general requirements regarding the admissibility of expert testimony, there is a further hurdle to the admissibility of expert testimony when that testimony is based on scientific evidence. In those situations, the scientific evidence that forms the basis for the expert’s opinion must undergo a validity assessment to ensure reliability. In Porter, this court followed the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence. Following State v. Porter, supra, at 81-84, 698 A.2d 739, scientific evidence, and expert testimony based thereon, usually is to be evaluated under a threshold admissibility standard assessing the reliability of the methodology underlying the evidence and whether the evidence at issue ‘is, in fact, derived from and based upon that methodology;’ id., at 83, 698 A.2d 739; which has been referred to as the ‘fit’ requirement.
269 Conn. at 168, 847 A.2d at 987.
The court in Maher also described the situation where a Porter inquiry is not necessary because the scientific evidence at issue is well-established:
The mere fact that ‘scientific evidence’ is sought to be admitted into evidence, however, does not require necessarily that a Porter inquiry be conducted as to the threshold admissibility of the evidence. As we have recognized, some scientific principles have become so well established that a threshold admissibility analysis is not necessary for admission of evidence thereunder. Evidence derived from such principles would clearly withstand such an analysis, and thus may be admitted simply on a showing of relevance. Thus, we exclude from the Porter standard the very few scientific principles that are so firmly established as to have attained the status of scientific law and properly are subject to judicial notice.
269 Conn. at 169, 847 A.2d at 988.
Finally, the Maher court reviewed the scientific background of counting the doubling time of cervical cancer in accordance with the Porter factors and decided that the science was not so well-established that only its relevance was in question, and the court reversed the jury verdict and remanded for a new trial:
Additionally, we recognized in Porter that, ‘[t]he actual operation of each [Porter] factor, as is the determination of which factors should be considered at all, depends greatly on the specific context of each case in which each particular [threshold admissibility] analysis is conducted.’ State v. Porter, supra, 241 Conn. at 86-87, 698 A.2d 739. There is, however, a critical postulate that underlies the Porter factors and indeed underlies the entire Porter analysis: in order for the trial court, in the performance of its role as the gatekeeper for scientific evidence, properly to assess the threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific evidence. Without such an articulation, the trial court is entirely ill-equipped to determine if the scientific evidence is reliable upon consideration of the various Porter factors. Furthermore, without a clear understanding as to the methodology and its workings, the trial court also cannot properly undertake its analysis under the ‘fit’ requirement of Porter, ensuring that the proffered scientific evidence, in fact, is based upon the reliable methodology articulated.
In this matter, the record reveals an inadequate articulation as to the methodology that formed the basis for Swan’s testimony as to doubling time. In essence, Swan’s testimony was based on at least three principles, namely, that: (1) cervical cancer grows in an exponential, structured and calculable fashion; (2) the doubling time of a particular cancer in a particular organ is a fungible statistic in that the same doubling time may be applied in evaluating the growth rate of a cancer located in another organ; and (3) the appropriate doubling time for an aggressive cervical cancer like the plaintiff’s, based upon statistics derived from breast cancer studies, is thirty or sixty days. Beyond a vague statement that the relevant ‘literature’ supported these propositions, no evidence was produced as to the reliability of these propositions or, indeed, to confirm that these propositions have any support in the scientific community whatsoever.
269 Conn. at 180-81, 847 A.2d at 994-95.
In a medical malpractice action against a plastic surgeon in Kairon v. Burnham, 120 Conn.App. 291, 991 A.2d 675 (2010), the trial court held a pre-trial Porter hearing and then granted surgeon’s motion in limine to preclude the plaintiff’s expert medical testimony. The plaintiff appealed after a grant of summary judgment to the surgeon and contended, in part, that the trial court had erred in finding that her treating physician’s opinion on causation did not meet the standards set in Porter. The court of appeals upheld the trial court’s order, stating that the plaintiff’s expert did not make a sufficient showing of scientific reliability:
Viewing the record as a whole, we are not persuaded that the court abused its discretion in finding that Benavides had no reasonable scientific basis for opining that the defendant negligently had performed facial surgery on the plaintiff. The fact that Benavides was the plaintiff’s treating physician gave him expertise to describe the plaintiff’s state of health, but it did not relieve him of the burden of articulating a persuasive theory scientifically linking her medical problems to professional malpractice on the part of the defendant. Our Supreme Court, in State v. Porter, supra, 241 Conn. at 84, 698 A.2d 739, stated that ‘[t]he factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case.’
120 Conn.App. at 297, 991 A.2d at 680 (emphasis added).
In the Superior Court case of Markland v. Abrams, No. CV020391472S, 2006 WL 760178 (Conn. Super. Ct., Fairfield, March 10, 2006), the plaintiff alleged that the defendant doctor failed to detect and prevent a pulmonary embolism and deep vein thrombosis after surgery. The plaintiff’s expert testified at a Porter hearing that the plaintiff’s symptoms indicated a PE or DVT, but the defendant moved to exclude the testimony because there was insufficient evidence regarding the doctor’s methodology. The trial court summarized the principles from Porter, Hayes, and Maher, and held that the doctor’s testimony was admissible and, in doing so, provided a summary of the basis for the admissibility of scientific evidence in that medical malpractice case:
With these foregoing Porter principles in mind, the court has reviewed the testimony of Dr. Godar at the ‘Porter‘ hearing conducted on March 9, 2000, and finds that  there is a general acceptance of Dr. Godar’s theories and principles in the scientific community as it relates to the field of pulmonary medicine[,] The methodology is sufficiently reliable as it relates to pulmonary medicine in general and has not been tailored for this specific litigation[,] [and]  The theories advanced by Dr. Godar are not being used in a novel way just for this case, but rather, can be applied generally.
2006 WL 760178 at *7.
2.Burden of Proof in Daubert/Porter Hearings in Medical Malpractice Cases
The Connecticut Supreme Court in Porter stated at p87:
‘We now turn to the threshold burden that a proponent of scientific testimony bears to establish that the testimony is admissible. “Once the party opposing the evidence objects, the proponent bears the burden of demonstrating its admissibility.” E.I. du Pont de Nemours & Co. v. Robinson, supra, 923 S.W.2d 557.”
In a footnote in Maher, the Supreme Court stated that, with regard to the Porter analysis of expert testimony, the proponent of the testimony bears the burden of proof:
On appeal, the defendants claim that the trial court may have misapplied the burden of proof regarding the admissibility of Swan’s testimony. On two occasions during the Porter hearing, the trial court made a statement in which the court appeared to have placed a burden on the defendants, the opponent of the evidence, to demonstrate the unreliability of Swan’s testimony, instead of placing the burden on the plaintiff, the proponent of the evidence, to demonstrate its reliability and, therefore, its admissibility. Specifically, the trial court, during the Porter hearing, posited: ?Well, where in the transcript [of Swan’s testimony] would I see some evidence, some testimony, that [doubling time] is not customarily relied upon [by experts in the field when forming opinions]” Thereafter, in concluding that Swan’s testimony was admissible, the court indicated that it ‘finds that it has not been demonstrated that the methodology underlying [the] evidence is sufficiently invalid to render the evidence incapable of assisting the trier of fact to determine the issues in dispute.’ Notwithstanding these isolated statements that appear to advance an incorrect proposition of law, our review of the entire record of the Porter hearing persuades us that the trial court properly placed the burden of demonstrating admissibility upon the plaintiff.
269 Conn. at 167, 847 A.2d at 986, n.18.
The case law in Connecticut, therefore, places the burden of proof in a Porter hearing on the proponent of the testimony to demonstrate its scientific reliability.What is absent from the Connecticut cases is any discussion of the proponent making a prima facie case or any burden shifting to the opponent.
Under Daubert in the federal cases, the courts hold that ‘the proponent of expert testimony has the burden of demonstrating by a preponderance of the evidence that the testimony is competent, relevant, and reliable.” See, e.g., Perkins v. Origin Medsystems, Inc., 299 F.Supp.2d 45, 52 (D. Conn. 2004). No burden-shifting scheme is evidenced in that case law, either.
3. Motions in Limine With Regard to Daubert/Porter
A Motion in Limine appears to be the means by which a party may seek to either exclude scientific evidence or to have the court require a Porter hearing as to the admissibility of another party’s scientific evidence.Generally speaking, such a motion is a way to force the court to perform its function as ‘gatekeeper” regarding the admissibility of scientific evidence.
For example, in Prentice v. Dalco Electric Inc., 280 Conn. 336, 907 A.2d 1204 (2006), the plaintiff was a sign company employee who sued a customer for personal injuries incurred when he fell from an extension ladder on the customer’s premises. The customer’s employee had set up a ladder next to the plaintiff, and the customer’s ladder fell sideways and knocked the plaintiff off of his ladder.
The plaintiff offered the testimony of an expert who was of the opinion that the wind was insufficient on the day of the accident to topple the ladder, and the ladder fell sideways because it was either set up improperly or was defective. The defendant filed a Motion in Limine to exclude the expert’s testimony and/or to require a Porter pre-trial inquiry as to its admissibility because it was unreliable scientific evidence. The trial court denied the motion on the grounds that the evidence was not ‘scientific evidence?? and there was other nonscientific evidence corroborating the expert’s testimony.
The Supreme Court held that the trial court should have held a Porter hearing. The court stated that the presence of corroborating evidence did not make the expert’s testimony ‘unscientific’ evidence:
[T]he fact that there was other evidence in the record concerning the wind, namely, the subjective impressions of laypersons, a meteorologist’s description of the prevailing winds on the day of the accident, and the warning that the ladder should not be used in high winds, does not render Strauss’ opinion unscientific per se. In short, otherwise scientific evidence does not become unscientific simply because the opposing party has had an opportunity for cross-examination, or because there is unscientific evidence that tends to corroborate the expert’s testimony. Indeed, all scientific evidence is subject to cross-examination and likely will find some corroboration from other evidence in the record. This fact, however, does not obviate the need for the trial court separately to determine whether Strauss’ testimony required a validity assessment under Porter.
280 Conn. at 347, 907 A.2d at 1211-12.
The court noted that ‘evidence, even evidence with its roots in scientific principles, which is within the comprehension of the average juror and which allows the jury to make its own conclusions based on its independent powers of observation and physical comparison, and without heavy reliance upon the testimony of an expert witness, need not be considered scientific in nature for the purposes of evidentiary admissibility. In short, the expert witness taught the jury how to look at physical evidence and then left the jury to look at that evidence and reach its own conclusions.” 280 Conn. at 354, 907 A.2d at 1215 (citations and quotation marks omitted).
However, the court held that the expert’s testimony required a Porter hearing because there had to be a showing that the expert used a valid methodology and that he had actually used that methodology in making his conclusions:
The problem with the jury’s dependence on Strauss’ testimony is that his opinion, by his own admission, was based only on his experience, and was formed without the benefit of an established scientific methodology. Strauss’ opinion nevertheless was introduced at trial under the seal of science because it came from an individual qualified as an expert in the fields of mechanical and forensic engineering. The implication of a scientific foundation for his opinion was especially misleading because, although Strauss testified that as a forensic engineer he had previous experience in assessing whether wind would overturn an object on the earth’s surface and had examined ‘at least a couple of dozen of ladders or more over the years’ in connection with accidents, he also acknowledged that he did not have experience in determining what force a wind must exert on a ladder to cause it to fall over, and that none of his previous ladder cases dealt with a fact pattern similar to this case. Strauss’ experience, therefore, was hardly extensive with respect to the specific question on which he was asked to opine.
Furthermore, the trial court highlighted the perceived expert nature of Strauss’ testimony by excluding the lay opinion of an eyewitness to the incident who testified that he believed that a gust of wind had caused the second ladder to fall and to collide with the plaintiff. In sum, if Strauss’ expertise as a scientist made his opinion admissible, as compared to the opinion of a layperson who witnessed the accident but had no scientific training, then it was incumbent on the trial court to conduct a Porter hearing to determine whether Strauss had used his expertise to develop his opinion. In the absence of such a validity assessment by the trial court in its role as gatekeeper, the jury in this case was confronted with a scientific conclusion, from an individual qualified as a scientific expert and presumably rooted in scientific principles, when in fact the opinion had no basis in science and was derived from the expert’s limited experience with the particular factual situation at issue. The trial court’s failure to characterize Strauss’ testimony as scientific evidence and to carry out its role as a gatekeeper by conducting a Porter hearing, constituted an abuse of its discretion.
280 Conn. at 355-56, 907 A.2d at 1216-17.
A copy of the Porter decision is attached. This decision provides a good discussion of the Frye and Daubert analysis and their evolution.
There are cases nationally where the court has held that the Daubert analysis does not apply to expert medical testimony in a medical malpractice case and that there is no need for a Daubert analysis. See, e.g., Harris v. Belue, 974 S.W.2d 386 (Tex. Ct. App. 1998); cf. Roberti v. Andy’s Termite & Pest Control, Inc., 6 Cal.Rptr.3d 827 (Ct. App. 2003) (Daubert hearing not required for expert medical testimony in toxic tort case); see generally Alice B. Lustre, Post’ Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R.5th 453 (2001 & Supp. 2010).
This is not the rule in Connecticut currently. The Connecticut Supreme Court in Maher, infra, applied Porter to uphold a trial judge’s exclusion of expert testimony which extrapolated doubling times for breast cancer to doubling times for cervical cancer .
This is in accord with the position the courts in New York have taken with regard to the applicability of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and the necessity of a Frye hearing in medical malpractice cases. See, e.g., Ellis v. Eng, 895 N.Y.S.2d 462 (N.Y. App. Div. 2010) (where the challenge is to the reliability of the medical expert’s conclusions, not whether the expert’s methodologies or deductions are based upon principles that are sufficiently established to have gained general acceptance as reliable, there is no basis for a Frye hearing); Lipschitz v. Stein, 884 N.Y.S.2d 442, 445 (N.Y. App. Div. 2009) (Frye is not concerned with the reliability of a certain expert’s conclusions, but instead with whether the expert’s deductions are based on principles that are sufficiently established to have gained general acceptance as reliable, so the defendant’s factual disagreement with plaintiff’s causation theory did not require a Frye hearing).
The court in Maher stated in a footnote:
‘As noted, one of the plaintiff’s claims on appeal is that a Porter analysis of Swan’s testimony was unnecessary because that evidence was not based on novel or innovative scientific methodology and, therefore, was admissible on a demonstration of relevance. Although we have used, on occasion, loose language that could be read as supporting that claim; see, e.g., Hayes v. Decker, supra, 263 Conn. at 683-84, 822 A.2d 228; we take this opportunity to clarify that Porter is not so circumscribed and that the standard articulated in Porter applies generally to scientific evidence, unless that scientific evidence is so well established that a threshold admissibility analysis is rendered unnecessary.”
269 Conn. at 168, 847 A.2d at 987, n.19 (emphasis added).
See also Poulin v. Yasner, 64 Conn.App. 730(2001), allowing Internist to testify that continued use of alcohol caused pancreatitis.
This is an exception to the general rule that the party who files a motion in limine to exclude evidence has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Menna v. Jaiman, 80 Conn. App. 131, 138, 832 A.2d 1219, 1225 (2003). A Motion in Limine appears to be the correct procedural vehicle to raise a Porter challenge. Prentice v. Dalco Electric Inc., 280 Conn. 336, 907 A.2d 1204 (2006)
Practice Book 42-15 allows a party at trial to make ‘a motion in limine . . . regarding the admission or exclusion of anticipated evidence. Such motion shall be in writing and shall
describe the anticipated evidence and the prejudice which may result therefrom. The judicial
authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding. See generally Carlson v. Waterbury Hospital, 280 Conn. 125, 140, 905 A.2d 654, 663 (2006).
The motion in limine has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. Carlson, 280 Conn. at 140, 905 A.2d at 663. A party, through a motion in limine, may implore the court to decide a question of law, as well as some preliminary questions of fact. Ambrogio v. Beaver Road Associates, 267 Conn. 148, 160, 836 A.2d 1183, 1189-1190, cert. denied, 266 Conn. 925, 835 A.2d 471 (2003).
A motion in limine is a proper vehicle to contest the admissibility of the testimony of a plaintiff’s expert witnesses. Alexandru v. Dowd, 79 Conn. App. 434, 443, 830 A.2d 352 358 (2003). The party who files the motion in limine to exclude evidence has the burden of demonstrating that the evidence is inadmissible on any relevant ground. Menna v. Jaiman, 80 Conn. App. 131, 138, 832 A.2d 1219, 1225 (2003). A party may also make a motion in limine to exclude evidence based on another party’s violation of a discovery order and bears the burden of showing that the discovery violation prejudiced the movant. Id.
Motions in limine educate the moving party before trial regarding how the court will rule on the motion. Rulings on a motion in limine are interlocutory and can be modified at any time. Therefore, an adverse pretrial ruling will allow the movant an opportunity to persuade the court to change its ruling prior to the time the evidence becomes an issue in the case. Additionally, the filing of a motion in limine (even where eventually denied) allows the movant an opportunity to learn how the opposition intends to use the evidence. See David N. Finley and Thomas P. Bogess, 17 Connecticut Practice: Connecticut Motions in Limine 1:1 (2009).