Preview
DOCKET NO. FBT-CV14-6043491-S : SUPERIOR COURT
DAVID CONFEITEIRO : J.D. OF FAIRFIELD
V : AT BRIDGEPORT
TATIANA MEZARINA-ROJAS ET AL : OCTOBER 12, 2016
MOTION IN LIMINE TO PRECLUDE
PLAINTIFF’S EXPERT GARY CRAKES, PHD
Pursuant to Practice Book Section 15-3, the Defendants herein, TATIANA MEZARINA-
ROJAS and THE NIELSEN COMPANY, hereby move in limine for a ruling from this Honorable
Court precluding the expert opinions to be offered by the Plaintiff’s disclosed expert, Gary Crakes,
PhD, based on the principles and doctrines set forth by the United States Supreme Court in
Daubert v. Merrell Down Pharm., Inc., 509 U.S. 579 (1993), and as adopted by the Connecticut
Supreme Court in State v. Porter, 241 Conn. 57 (1997).
I. BACKGROUND
This case arises from a motor vehicle accident that occurred on June 4, 2012, in which it is
alleged that the Defendant rear-ended the Plaintiff along Interstate 95 in Bridgeport, Connecticut.
The Plaintiff claims various physical injuries but also alleges that he sustained significant lost wages
and/or impairment of earning capacity.
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
On September 8, 2016, the Plaintiffs disclosed, as an expert witness, Gary Crakes, PhD,
providing the following statements regarding his anticipated testimony:
Dr. Crakes is expected to testify regarding the lost earning capacity of the plaintiff in
terms of net discounted economic losses resulting from the subject accident and his
related physical injuries and impairments in accordance with his 9/17 /16 report and
attachments, which have been provided to opposing counsel, and in accordance with
any opinion disclosed in deposition. Dr. Crakes is expected to testify based on his
review and analysis of the plaintiffs earnings records, relevant portions of the Union
handbook and summary plan description, the plaintiffs tax returns, and the 8/29/16
report of Mr. Sabella.
Dr. Crakes is expected to testify based on his education, training, and professional
experience, all within the bounds of reasonable economic probability. Dr. Crakes is
expected to testify that the plaintiffs net reduction in earning capacity resulting from
the subject accident and the associated injuries and impairments ranges from
$2,671,000 to $2,753,000 (stated in terms of present value).
This motion in limine followed.
II. ARGUMENT
The Plaintiff’s disclosed expert Gary Crakes, PhD, has been disclosed as intending to offer
an opinion regarding the alleged lost earning capacity of the Plaintiff. This opinion, however, is
not based on reliable evidence, nor is it based on a methodology accepted in the general scientific
community. Given these substantial defects in reliability, the Defendant requests this Honorable
Court preclude any such opinions by the Plaintiff’s expert regard the physical or economic impact
of the Plaintiff’s alleged injuries on her business.
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
“The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial
evidence from trial . . . A trial court should exclude evidence if it would create undue prejudice and
threaten an injustice if admitted.” (Citation omitted; internal quotation marks omitted.) State v. Lo-
Sacco, 26 Conn. App. 439, 444 (1992). Further, Connecticut Practice Book § 15-3 provides: “The
judicial authority to whom a matter has been referred for trial may in its discretion entertain a
motion in limine made by either party 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 there from. 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.” Carlson v. Waterbury Hosp.,
280 Conn. 125, 140-41 (2006).
It is a well-established rule in Connecticut that expert testimony is required when the
question involved goes beyond the ordinary knowledge and experience of the trier and can be
answered only on the basis of the special knowledge of expert testimony. Jaffe v. State Dep’t of
Health, 135 Conn. 339 (1949); Sickmund v. Connecticut Co., 122 Conn. 375 (1937). The purpose of
the disclosure requirements is “to make the trial less a game of blind man’s bluff and more a fair
contest with the facts and issues disclosed to the fullest practicable extent.” Wexler v. DeMaio, 280
Conn. 168, 186 (2006). The decision to preclude a party from introducing expert testimony rests
within the sound discretion of the Court. Mulrooney v. Wambolt, 215 Conn. 211, 221 (1990).
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
Experts have been held to be competent to testify as such within their area of expertise. See
Connecticut General Statues §52-149a; see also Connecticut General Statutes §52-174(c); Struckman
v. Burns, 205 Conn. 542, 553-55 (1987); Miller v. Drouin, 183 Conn. 189, 193 n.3 (1981); Eisenbach
v. Downey, 45 Conn. App. 165, 177 (1997).
In State v. Porter, the Connecticut Supreme Court directed trial judges to “…serve a
gatekeeper function in determining whether [admitting scientific] evidence will assist the trier of
fact.” State v. Porter, 241 Conn. 57, 73 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140
L.Ed.2d 645 (1998). The Court opted for an approach similar to that taken by the United States
Supreme Court in construing the relevant federal rule of evidence in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). Porter, supra, at 61,
68. In accordance with Porter, the trial judge first must determine that the proffered scientific
evidence is reliable. Id. at 64. Scientific evidence is reliable if the reasoning or methodology
underlying the evidence is scientifically valid. Id. In addition to reliability, the trial judge also must
determine that the proffered scientific evidence is relevant, meaning that the reasoning or
methodology underlying the scientific theory or technique in question properly can be applied to the
facts in issue. Id. The court in Porter also listed several factors, which are not exclusive, a trial judge
should consider in deciding whether scientific evidence is reliable. Id. at 84-6. The operation of
each factor varies depending on the specific context in each case. Id. at 86-7. Connecticut Code of
Evidence § 7-2.
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
A Porter analysis involves a two part inquiry that assesses the reliability and relevance
of the witness' methods. … First, the party offering the expert testimony must show
that the expert's methods for reaching his conclusion are reliable. A nonexhaustive
list of factors for the court to consider include: general acceptance in the relevant
scientific community; whether the methodology underlying the scientific evidence
has been tested and subjected to peer review; the known or potential rate of error;
the prestige and background of the expert witness supporting the evidence; the
extent to which the technique at issue relies [on] subjective judgments made by the
expert rather than on objectively verifiable criteria; whether the expert can present
and explain the data and methodology underlying the testimony in a manner that
assists the jury in drawing conclusions therefrom; and whether the technique or
methodology was developed solely for purposes of litigation.... Second, the
proposed scientific testimony must be demonstrably relevant to the facts of the
particular case in which it is offered, and not simply be valid in the abstract.... Put
another way, the proponent of scientific evidence must establish that the specific
scientific testimony at issue is, in fact, derived from and based [on] ... [scientifically
reliable] methodology.....” (Internal quotation marks omitted.)
Fleming v. Dionisio, 317 Conn. 498, 506-07 (2015).
In the present matter, Dr. Crakes has indicated that he intends to opine as to the lost earning
capacity of the Plaintiff based on averages of the Plaintiff’s prior earnings, as opposed to actual
earning. The use of average earnings as the basis for his calculations, as opposed to actual earnings,
does not provide the factfinder with reliable evidence upon which to determine this damages issue.
The use of average earnings is too speculative a basis to provide the accuracy and reliability
necessary for Dr. Crakes’ opinions to pass muster under State v. Porter.
Further, the calculations and opinions of Dr. Crakes are not verifiable as the Defendants
have not been provided with full wage or tax documentation as is required to be produced per
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
standard Practice Book form discovery. The Defendant only was provided full tax returns as of
10/7/2016 and has yet to receive employment records despite longstanding requests and a Motion
to Compel. The failure to provide such timely documentation is the subject of its own Motion in
Limine. Given the Plaintiff’s late disclosure of tax records, failure to produce employment
records, the Defendant has no basis upon which to fairly refute or acknowledge the accuracy of
Dr. Crakes’ opinions and calculations. By withholding such records, the Plaintiff is effectively
conducting a trial by ambush, and should be scrutinized for such efforts. Additionally, based on
that level of disclosure, Dr. Crakes’ opinions fail the Porter test as they are not verifiable, and his
methodology becomes essentially unknown as there is no disclosed objective basis for the
numbers utilized in his calculations.
Given the lack of reliability and verifiability, the Defendant seeks Dr. Crakes’ opinions be
precluded from trial so as not to improperly influence the jury. These opinions are simply not
sufficiently based on verifiable information or actual earnings which could provide assistance to
the factfinder with any particular determination in this matter for which expert testimony is
needed.
WHEREFORE, the Defendant respectfully requests this Honorable Court preclude the
proffered opinions.
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
THE DEFENDANTS,
TATIANA MEZARINA-ROJAS and
THE NIELSEN COMPANY
By_408236________
Alan S. Tobin, Esq.
Law Offices of Meehan, Roberts, Turret &
Rosenbaum
108 Leigus Road, 1st Floor
Wallingford, CT 06492
Tel. # 203-294-7800
Juris # 408308
CERTIFICATION
This will certify the foregoing was mailed via U.S. Mail, postage pre-paid or electronically
delivered pursuant to Practice Book Section 10-14 on this 12th day of October, 2016.
Attorney for Plaintiff
Joseph S. Dobrowolski, Esq.
51 Elm Street
New Haven, CT 06510
Law Offices of Paul Farren Jr.
129 Whitney Avenue
New Haven, CT 06510
408236
Alan S. Tobin
Commissioner of the Superior Court
LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM
108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308
Preview
DOCKET NO. FBT-CV14-6043491-S : SUPERIOR COURT DAVID CONFEITEIRO : J.D. OF FAIRFIELD V : AT BRIDGEPORT TATIANA MEZARINA-ROJAS ET AL : OCTOBER 12, 2016 MOTION IN LIMINE TO PRECLUDE PLAINTIFF’S EXPERT GARY CRAKES, PHD Pursuant to Practice Book Section 15-3, the Defendants herein, TATIANA MEZARINA- ROJAS and THE NIELSEN COMPANY, hereby move in limine for a ruling from this Honorable Court precluding the expert opinions to be offered by the Plaintiff’s disclosed expert, Gary Crakes, PhD, based on the principles and doctrines set forth by the United States Supreme Court in Daubert v. Merrell Down Pharm., Inc., 509 U.S. 579 (1993), and as adopted by the Connecticut Supreme Court in State v. Porter, 241 Conn. 57 (1997). I. BACKGROUND This case arises from a motor vehicle accident that occurred on June 4, 2012, in which it is alleged that the Defendant rear-ended the Plaintiff along Interstate 95 in Bridgeport, Connecticut. The Plaintiff claims various physical injuries but also alleges that he sustained significant lost wages and/or impairment of earning capacity. LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 On September 8, 2016, the Plaintiffs disclosed, as an expert witness, Gary Crakes, PhD, providing the following statements regarding his anticipated testimony: Dr. Crakes is expected to testify regarding the lost earning capacity of the plaintiff in terms of net discounted economic losses resulting from the subject accident and his related physical injuries and impairments in accordance with his 9/17 /16 report and attachments, which have been provided to opposing counsel, and in accordance with any opinion disclosed in deposition. Dr. Crakes is expected to testify based on his review and analysis of the plaintiffs earnings records, relevant portions of the Union handbook and summary plan description, the plaintiffs tax returns, and the 8/29/16 report of Mr. Sabella. Dr. Crakes is expected to testify based on his education, training, and professional experience, all within the bounds of reasonable economic probability. Dr. Crakes is expected to testify that the plaintiffs net reduction in earning capacity resulting from the subject accident and the associated injuries and impairments ranges from $2,671,000 to $2,753,000 (stated in terms of present value). This motion in limine followed. II. ARGUMENT The Plaintiff’s disclosed expert Gary Crakes, PhD, has been disclosed as intending to offer an opinion regarding the alleged lost earning capacity of the Plaintiff. This opinion, however, is not based on reliable evidence, nor is it based on a methodology accepted in the general scientific community. Given these substantial defects in reliability, the Defendant requests this Honorable Court preclude any such opinions by the Plaintiff’s expert regard the physical or economic impact of the Plaintiff’s alleged injuries on her business. LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 “The purpose of a motion in limine is to exclude irrelevant, inadmissible and prejudicial evidence from trial . . . A trial court should exclude evidence if it would create undue prejudice and threaten an injustice if admitted.” (Citation omitted; internal quotation marks omitted.) State v. Lo- Sacco, 26 Conn. App. 439, 444 (1992). Further, Connecticut Practice Book § 15-3 provides: “The judicial authority to whom a matter has been referred for trial may in its discretion entertain a motion in limine made by either party 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 there from. 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.” Carlson v. Waterbury Hosp., 280 Conn. 125, 140-41 (2006). It is a well-established rule in Connecticut that expert testimony is required when the question involved goes beyond the ordinary knowledge and experience of the trier and can be answered only on the basis of the special knowledge of expert testimony. Jaffe v. State Dep’t of Health, 135 Conn. 339 (1949); Sickmund v. Connecticut Co., 122 Conn. 375 (1937). The purpose of the disclosure requirements is “to make the trial less a game of blind man’s bluff and more a fair contest with the facts and issues disclosed to the fullest practicable extent.” Wexler v. DeMaio, 280 Conn. 168, 186 (2006). The decision to preclude a party from introducing expert testimony rests within the sound discretion of the Court. Mulrooney v. Wambolt, 215 Conn. 211, 221 (1990). LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 Experts have been held to be competent to testify as such within their area of expertise. See Connecticut General Statues §52-149a; see also Connecticut General Statutes §52-174(c); Struckman v. Burns, 205 Conn. 542, 553-55 (1987); Miller v. Drouin, 183 Conn. 189, 193 n.3 (1981); Eisenbach v. Downey, 45 Conn. App. 165, 177 (1997). In State v. Porter, the Connecticut Supreme Court directed trial judges to “…serve a gatekeeper function in determining whether [admitting scientific] evidence will assist the trier of fact.” State v. Porter, 241 Conn. 57, 73 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). The Court opted for an approach similar to that taken by the United States Supreme Court in construing the relevant federal rule of evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). Porter, supra, at 61, 68. In accordance with Porter, the trial judge first must determine that the proffered scientific evidence is reliable. Id. at 64. Scientific evidence is reliable if the reasoning or methodology underlying the evidence is scientifically valid. Id. In addition to reliability, the trial judge also must determine that the proffered scientific evidence is relevant, meaning that the reasoning or methodology underlying the scientific theory or technique in question properly can be applied to the facts in issue. Id. The court in Porter also listed several factors, which are not exclusive, a trial judge should consider in deciding whether scientific evidence is reliable. Id. at 84-6. The operation of each factor varies depending on the specific context in each case. Id. at 86-7. Connecticut Code of Evidence § 7-2. LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 A Porter analysis involves a two part inquiry that assesses the reliability and relevance of the witness' methods. … First, the party offering the expert testimony must show that the expert's methods for reaching his conclusion are reliable. A nonexhaustive list of factors for the court to consider include: general acceptance in the relevant scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of error; the prestige and background of the expert witness supporting the evidence; the extent to which the technique at issue relies [on] subjective judgments made by the expert rather than on objectively verifiable criteria; whether the expert can present and explain the data and methodology underlying the testimony in a manner that assists the jury in drawing conclusions therefrom; and whether the technique or methodology was developed solely for purposes of litigation.... Second, the proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.... Put another way, the proponent of scientific evidence must establish that the specific scientific testimony at issue is, in fact, derived from and based [on] ... [scientifically reliable] methodology.....” (Internal quotation marks omitted.) Fleming v. Dionisio, 317 Conn. 498, 506-07 (2015). In the present matter, Dr. Crakes has indicated that he intends to opine as to the lost earning capacity of the Plaintiff based on averages of the Plaintiff’s prior earnings, as opposed to actual earning. The use of average earnings as the basis for his calculations, as opposed to actual earnings, does not provide the factfinder with reliable evidence upon which to determine this damages issue. The use of average earnings is too speculative a basis to provide the accuracy and reliability necessary for Dr. Crakes’ opinions to pass muster under State v. Porter. Further, the calculations and opinions of Dr. Crakes are not verifiable as the Defendants have not been provided with full wage or tax documentation as is required to be produced per LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 standard Practice Book form discovery. The Defendant only was provided full tax returns as of 10/7/2016 and has yet to receive employment records despite longstanding requests and a Motion to Compel. The failure to provide such timely documentation is the subject of its own Motion in Limine. Given the Plaintiff’s late disclosure of tax records, failure to produce employment records, the Defendant has no basis upon which to fairly refute or acknowledge the accuracy of Dr. Crakes’ opinions and calculations. By withholding such records, the Plaintiff is effectively conducting a trial by ambush, and should be scrutinized for such efforts. Additionally, based on that level of disclosure, Dr. Crakes’ opinions fail the Porter test as they are not verifiable, and his methodology becomes essentially unknown as there is no disclosed objective basis for the numbers utilized in his calculations. Given the lack of reliability and verifiability, the Defendant seeks Dr. Crakes’ opinions be precluded from trial so as not to improperly influence the jury. These opinions are simply not sufficiently based on verifiable information or actual earnings which could provide assistance to the factfinder with any particular determination in this matter for which expert testimony is needed. WHEREFORE, the Defendant respectfully requests this Honorable Court preclude the proffered opinions. LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308 THE DEFENDANTS, TATIANA MEZARINA-ROJAS and THE NIELSEN COMPANY By_408236________ Alan S. Tobin, Esq. Law Offices of Meehan, Roberts, Turret & Rosenbaum 108 Leigus Road, 1st Floor Wallingford, CT 06492 Tel. # 203-294-7800 Juris # 408308 CERTIFICATION This will certify the foregoing was mailed via U.S. Mail, postage pre-paid or electronically delivered pursuant to Practice Book Section 10-14 on this 12th day of October, 2016. Attorney for Plaintiff Joseph S. Dobrowolski, Esq. 51 Elm Street New Haven, CT 06510 Law Offices of Paul Farren Jr. 129 Whitney Avenue New Haven, CT 06510 408236 Alan S. Tobin Commissioner of the Superior Court LAW OFFICES OF MEEHAN, ROBERTS, TURRET & ROSENBAUM 108 LEIGUS ROAD, 1ST FLOOR, WALLINGFORD, CT 06492 (203) 294-7800 JURIS NO. 408308