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FBT-CV-14-6043491
DAVID CONFEITEIRO : SUPERIOR COURT
VS. : JUDICIAL DISTRICT OF
: BRIDGEPORT, AT BRIDGEPORT
TATIANA MEZARINA-ROJAS, ET AL : OCTOBER 26, 2016
OBJECTION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE PLAINTIFF'S
EXPERT GARY CRAKES, PhD
The Plaintiff hereby objects to the Defendants’ Motion in Limine to Preclude
Expert Gary Crakes, PhD, as his expert opinions clearly are baséd on reliable evidence
and accepted methodology.
IL FACTS
The Plaintiff filed his Disclosure of Experts on September 8, 2016, listing, among
others, economics expert Gary Crakes, PhD. The Plaintiff's Disclosure of Experts
explains:
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
9/7/16 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 plaintiff's earnings
records, relevant portions of the Union handbook and
_ summary plan description, the plaintiff's 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. Crakesis expected to testify that the plaintiff's 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).
In advance of the filing of the disclosure, the Plaintiff provided the Defendants
with copies of the Plaintiff's tax returns for years 2009 to 2014, on May 20, 2015. On-
September 8, 2016, he also provided a copy of Dr. Crakes’s Appraisal of Economic
Loss Report, dated September 7, 2016.
On October 4, 2016, nearly one month after the disclosure was filed, the
Defendants asked for clarification of the basis of Dr. Crakes’s expert opinions, noting
their confusion over whether Dr. Crakes reviewed tax returns, W-2s, or other actual
" wage information. The undersigned immediately replied to the Defendants by email,
with the following explanation and clarification:
Please find attached Mr. Confeiteiro’s tax records (including
W-2s) from 2008-2013, as well as a form completed by his
employer in connection with his initial (2012) lost wages. |
will attach an authorization from Mr. Confeiteiro to a
subsequent email (no room for additional attachments on
this email), which will enable you to request any other
employment-related documents from Andy Lopes Building
Corp.
With regard to the economics report, our office provided Dr.
Crakes with the following items for his review. He reviewed
or relied upon these items (as well as others not provided by
us) to prepare his report:
° Mr. Sabella’s Vocational Evaluation and Employability
Assessment (previously provided to you)
. Collective Bargaining Agreements & Wages and
Benefits Summary Pages, 2011-2016 (attached)° Tax Returns and W-2s for years 2009-2015 (and W-2
for year 2008) (attached)
° SSD Reports (previously provided to you)
° Personal/family background information as contained
in his report
The income and employment figures that Dr. Crakes cites in
his report were obtained and/or calculated based, in part,
upon his review of the above items.
The undersigned also provided the Defendants with the Plaintiff's tax returns for
years 2014 and 2015 two days later.
At no time have the Defendants made any attempt to depose Dr. Crakes, though
they had more than a month and a half to do so between the date of disclosure and the
start of trial. Instead, they filed the subject Motion in Limine on October 12, 2016. Trial
is scheduled to commence on October 26, 2016.
I. ARGUMENT
~ By motion dated October 12, 2016, the Defendants moved to preclude Dr.
. Crakes’s expert testimony. In McDonald v. Doukas, Superior Court, Judicial District of
New Haven, Docket No. CV-08-1512-S (August 15, 2012), a case in which Dr. Crakes’s
expert opinion as an economics expert was admitted, the court described Dr. Crakes’s
background and qualifications at the time:
Dr. Crakes has been a professor in the Department of Economics and
Business at Southern Connecticut State University since 1989. He is
widely published in his field, and as this court's research revealed, has
testified in numerous cases on the issue of economic damages.
The Curriculum Vitae of Dr. Crakes, attached as Exhibit 1, further details his
extensive professional experience, reports, and publications. The Defendants allegethe Dr. Crakes’s analysis and appraisal of the Plaintiff's lost wages and loss of earning
capacity lack any reliable factual or scientific basis. It is clear, however, that Dr.
Crakes’s opinion is not based on “averages of the Plaintiff's prior earnings” or
“unknown” methodology, but on a sound application of actual wage and employment
information to established methods.
While the Defendants’ Motion relies heavily on a Porter analysis, Dr. Crakes’s
testimony is the not the type of “junk science” that State v. Porter, 21 Conn. 57 (1997)
was meant to exclude. Dr. Crakes and other economics experts are commonly
employed in trials involving personal injury claims. Dr. Crakes has testified in many
cases and trials as an economics expert, and the methods he uses are uniformly
accepted.’
“Expert testimony should be admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony would be helpful to the court or
jury in considering the issues." (Citations omitted; internal quotation marks omitted.)
State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999).
The Porter test for admissibility “does not apply to all expert testimony, but only
to that which involves ‘innovative scientific techniques . . . .” (Citation omitted)
(emphasis added) State v. Kirsch, 263 Conn. 390, 403-405 (2003). In fact, the court
has already determined that Dr. Crakes’s substantially similar testimony, as an
1 [tis significant to note that the Defendants have not disclosed their own economics expert in this case to
review or refute Dr. Crakes’s opinions or methodology.economics expert in a recent person injury case, was admissible without the need for a
Porter hearing. McDonald v. Doukas, supra. In McDonald, the court explained,
Dr. Crakes calculated the plaintiffs future loss of earnings by
comparing his expected future earning capacity had he never been
injured, with the plaintiff's expected lifetirne future capacity under
the work limitations brought about by his injuries. Dr. Crakes
calculated these figures using median incomes of persons of
various educational backgrounds as compiled by the U.S. Census
Bureau and Bureau of Labor Statistics, factoring in the plaintiff's
age, gender, expected work life, and life expectancy. Dr. Crakes
then adjusted these figures by the expected future taxes, fringe
benefits, interest and annual growth of earnings and the plaintiff's
continuing cost of care. Such calculations of future loss of earning
capacity, are clearly not based on any novel scientific methodology,
but on applicable economic principles within Dr. Crakes' expertise
. . Dr. Crakes' testimony concerns a method by which to
determine the plaintiff's future loss of earning capacity, the
understanding of which will be accessible to the jury and the value
of the expertise lay in its assistance to the jury in viewing and
evaluating this evidence on economic damages. Although Dr.
Crakes' skill and training is based on science, the subject which he
will: testify to, that is the amount of the plaintiffs future loss of
eaming capacity . ... is not based on any scientific test,
methodology or experiment. Furthermore, his testimony will assist
the jury in determining the amount of the plaintiff's economic
damages if liability is established. The award of damages is a
matter particularly within the province of the trier of facts.
Economic evidence and the testimony of economic experts are
appropriately weighed ‘by the jury. Thus, so long as Dr. Crakes'
opinion regarding the plaintiff's loss of future earnings .. . have a
sufficient factual basis, as set forth in section 7-4(b) of the Code of
Evidence, and is not based on speculation or conjecture, ,such
testimony is admissible without the need of a Porter hearing.
(Citations omitted: internal quotation marks omitted.) Id.
Dr. Crakes’s testimony in McDonald was based on most or all of the same
types of evidence and widely accepted methods that he employed in the present case.There, and here, he has not employed a scientific test at all, let alone any “innovative
scientific techniques” intended for evaluation under Porter. As in McDonald, it is not
appropriate, here, to apply Porter;? Dr. Crakes’s testimony is simply admissible to assist
the jury in determining the amount of the Plaintiffs damages.
Finally, the Defendants claim that Dr. Crakes's testimony is not verifiable
because full tax returns were not provided until 10/7/16 and full employment records
have not yet been obtained. While this issue is the subject of a separate Motion in
Limine by the Defendants, as well as a separate Objection by the Plaintiff, it is important
to note that the Plaintiff is hardly “conducting a trial by ambush”. The Defendants were
first provided copies of the Plaintiffs tax returns for years 2009 to 2014 on May 20,
2015, and the Plaintiff asserted his lost wages and loss of earning capacity claims even
earlier, in his response to the Defendants’ standard interrogatories on December 1,
2014. The Defendants have had ample time to review and verify the wage and
employment information contained in the Plaintiff's tax returns, which forms the basis of
Dr. Crakes’s testimony.
WHEREFORE, the Plaintiff respectfully requests that the Defendants’ Motion to
Preclude be denied.
2 Even if the court in State v. Porter contemplated this type of testimony, the Plaintiff can demonstrate at a
Porter hearing that the methodology underlying Dr. Crakes’s opinion meets the threshold for
admissibility.THE PLAINTIFF, DAVID CONFEITEIRO
By: Choke tbl
Chelsea E. Krombel
Law Offices of Paul E. Farren, Jr.; P.C.
129 Whitney Avenue
New Haven, CT 06510
Phone: (203) 784-0326
Fax: (203) 624-5321
Juris No. 421215ORDER
The foregoing objection, having been presented, it is hereby ORDERED:
SUSTAINED/OVERRULED.
BY THE COURTCERTIFIGATION
| certify that a copy of this document was or will immediately by mailed or
delivered electronically or non-electronically this date to all attorneys and self-
represented parties of record and to all parties who have not appeared in this matter
and that written consent for electronic delivery was received from all attorneys and self-
represented parties receiving electronic delivery.
Name and address of each party and attorney that copy was or will
immediately be mailed or delivered to: -
Alan S. Tobin, Esq.
Law Offices of Meehan, Roberts, Turret & Rosenbaum
108 Leigus Road, 1st Floor
Wallingford, CT 06492
Joseph S. Dobrowolski, Esq.
51 Elm St., 2nd Floor
New Haven, CT 06510
: ’ q
Dated: October 26, 2016 . C Anke b#
Chelsea E. Krombel“ Eynsr +
Curriculum Vitae
Gary M. Crakes
Birthdate: July 2, 1953
Home: 860 Ward Lane - Phone: (203) 272-1205
Cheshire, CT 06410 . Bax: (203) 250-8452
Education
Ph.D. (Economics) 1984, University of Connecticut
M.A. (Economics) 1976, University of Connecticut
B.A, (Economics) 1975, Central Connecticut State College
Fellowships and Honors
2016 Biographical listing, Who’s Who in America
2004 Honored, Trial Lawyers Care, Association of Yrial Lawyers of America,
for pro bono economic services, September 11 victim ‘Compensation Fund
1998 School of Business Outstanding Teacher Award
1987 University Teacher of the Year Award
1985 Member, State of Connecticut Senior Economist Examination Committee
1983 Richard D. Irwin Fellowship
1983 University of Connecticut Dissertation Fellowship
1975-1976 University of Connecticut Pre-doctoral Fellowship
Professional Organizations
American Economic Association
Eastern Economic Association
Omieron Delta Epsilon
National Association of Forensic Economists
American Academy of Economic and Financial Experts
American Association of University Professors
National Association of Business Economics
Professional Bxperience
1981 - Economic consultant, Maher, Crakes, and Associates
2011 - Professor Emeritus, Department of Economics and Finance, School of
Business, Southern Connecticut State University
1989 - 2011 Professor, Department of Economics and Finance, School of”
Business, Southern Connecticut State University
1991-1995 Chaizman, Department of Economics and Finance, School of Business,
Southern Connecticut State University .
January 1988-June 1988 Visiting Professor, Departwent of Behavioral Science
and Community Health, School of Dental Medicine, University of
» Connecticut Health Center
September 1985-August 1989 Associate Professor, School of Business, Southern
Connecticut State University (tenured, 1986)
August .1980 - August 1985 Assistant Professor, School of Business, Southern
_ Connecticut State University
January 1979-May 1980 Instructor, University of Connecticut (Hartford)
June 1976-December 1978 Research Assistant, University of Connecticut Health
Center. Research Assistant, School of Agriculture, University of ConnecticutPublications
Journals —~ : : .
CGrakes, G. and Cottrill, M. “The Connecticut State Income Tax:
Progressive, Regressive, and Proportional,” Journal of the American
Academy of Business, (September, 2007)
Cottrill, M. and Crakes, ‘g. “A Different Look at “Pay for Performance”:
Returns to Bench Strength in the NEL,” The Business Review, Cambridge,
(December, 2004). .
Beagoglou, !., Crakes, G., Doherty, N. and Heffley, D. “Determinants of
Dentists! Geographic Distribution,” Journal of Dental Education
(Novembex, 1992)
Doherty, N. and Crakes, G. “Estimating the Costs of Public Dental
Programs: Mobile Clinics,” Community Dental Health (Spring, 1987).
Crakes, G. “A Comparison of Foconomic Estimates of Loss with Jury Awards
and Pre-verdict Settlements,” Business Journal (Fall, 1985).
Doherty, N. and Crakes, C. “Economic Specification of Cost Estimates in
Dental Programs,” Jouxnal of Dental Research (June, 1985).
Doherty, N. and Crakes, G. “Adjusting Social Program Costs for Research
and Evaluation Activities,” Evaluation Review (August, 1980).
Doherty, N. and Crakes, G. “Commentary: Reply to Joan Quinn,” Inquiry
(Summer, 1980).
Dohexty, N., Hozowita, PB. and Crakes, G. “Real Costs of Dental Care in
Private and Public Practice,” Medical Care (January, 1980).
Doherty, N. and Cxakes, G. “the Impact of a Change in Regulation on
Costs in an Experimental Program," Inquiry (Summer, 1979).
Proceedings
Crakes, G. with Cottrill, M. “The Growth of Student Indebtedness and
' the Role of Higher Education as a U.S. Response to Globalization,”
Proceedings of the Global Conference on Business & Economics,
Association for Business & Economias Research, October, 2007
Crakes, 6. with Cottrill, M. “fhe Rising Relative Price of Higher
Education and the U.S. Response to Offshore Outsourcing,”
proceedings of the New England Business Administration Association,
May, 2007.
Crakes, G. with Cottrill, M. “More on “Pay for Performance” -The
Disruptive Effect of Star Power in the NFL,” Proceedings of the New
England Business Administration Association, May, 2005.
crakes, G. with Crakes, A. “Education, Earnings, and the NCAA Student
Athlete,” Proceedings of the New England Business Administration
Association, May, 2004,
|
:
i
:
'Crakes, G. with Cottrill, M. and Crakes, J. “Context for the Medical
Malpractice Insurance Debate,” Proceedings ‘of the Conference on
Emerging Issues in Business and Sechnology, October, 2003.
Crakes, G, with Thorson, J, and Cottrill, M. “The Impact of Law Firm
Concentration on Lawyers’ Salaries," Proceedings of the New England
Business Administration Association, April, 2000.
Crakes, G. with Thorson, J, and Cottrill, M. “Aré Baseball Players
Overpaid? An Analysis of Major League Baseball Salaries,” Proceedings
gf the Northeast Businéss & Economics Association, October, 1998.
Crakes, G. with Cottrill, M, “Whe Connecticut State Income Tax and the
Equal Sacrifice Rule,” Proceedings of the New England Business
Administration Association, November, 1997.
Crakes, G. with Cottrill, M. “Banking It Before the Bar: Legal
Compensation Trends in Major Markets,” Proceedings of the Northeast
Business & Eoonomics Association, September, 1997,
Crakes, G. with Cottrill, M. “Young and Old Scholars,” Proceedings. of
the Hastern Case Writers Association/Eastern Academy of Management,
May, 1994.
Abstracts .
Crakes, G. and Doherty, N. “Costs of Public Dental Clinics Under
Capacity Utilization,” Journal of Dental Research (January, 1979).
Technical Reports
Doherty, N., Horowitz, P. and Crakes, G, “Analysis of Economic Factors
Associated with Providing Incremental Dental Care to Children” for the
National Institute of Health, United States Public Health Service,
1o7e.
Other
Economic Consultant, 4° edition, 1995, Recovery for Wrongful Death and
injury: Economic Handbook, Stuart M. Speiser and John Maher, Clark,
Boardman, & Callaghan, New York, N.¥..
Economic Consultant (with J. Maher) 7 3 edition, 1988 Reoovery for
Wrongful Death and Injury: Economic Handbook, Stuart M. Speiser,
Bancroft, Whitney/Lawyers Cooperative Publishing, Rochester, N.Y..
Crakes, G.M. “CSUS Chief's Bonus Appalls," Hartford Courant,
December 20, 2009.
Cxakes, G.M. “Competition Causing Disagreement Over Deregulation,” New
Haven Register, August 6, 1981.Conferences
Papers Presented
Co-author of paper titled “Do Older Workers Respond to Incentives?
Evidence From the Senior PGA Tour” (with M. Cottrill and J. Thorson,
presenter) presented at the annual Connecticut. State University
Research Conference, October, 1999, Eastern Connecticut State
University.
Presented co-authored paper titled “The Intra and Inter-State
Distribution of Dentists” (with T. Beazoglou and D, Heffley) at the
annual meeting of the Eastern Economica Association, March 3, 1989 in
Baltimore, MD, .
Co-author of paper titled “Determinants of Dentists’ Geographic
Distribution” (with T. Beazoglou and D. Heffley, presenter) presented
at the meeting of the American Association of Dental Research, March
15, 1989 in San Francisco, CA.
Presented co-authored paper titled “Estimating Dental Practice
Production Functions with Alternative Output Measures” (with T.
Beazoglou) at the annual meeting of the Eastern Economic Association,
March 4-7, 1987 in Washington, D.C.
Presented paper titled “A Comparison of Raonomia Estimates of Loss with
dury Awards and Pre-verdict Settlements” at the meeting of the
Atlantic Economic Society, August 29 - September 1, 1985 in
Washington, D.C.
Presented co-authored paper titled, “A Re-examination of the Returns to
Scale of Dental Practices” (with T. Beazoglou) at the annual meeting
of the Eastern Economic Association, March 21-23, 1985 in Pittsburgh,
PAY .
Presented co-authored paper titled “Economic Specification of Costs of
Dental Programs” (with N. Doherty) at the annual meeting of the
Eastern Economic Association, March 21-23, 1985 in Pittsburgh, PA.
Other
Chairperson of session, “Economics” at the annual meeting of the New
England Business Administration Association, April, 1993 in New
Haven, CT.
Chairperson and organizer of session, “Health Economics” at the annual
meeting of the Eastern Economic Association, March 28, 1992 in New
York City, NY.
Discussant of paper titled, “Massachusetts Hospitals in the Highties:
Financial Analysis of Large Urban and Other Hospitals” at the annual
meeting of Northeast Business Eoonomics Association, November 7, 1991
in Stamford, CT.Discussant of paper titled, “Female Work Experience: Voluntary vs.
Involuntary Labor Force Activity” at the meeting of the National
Association of Forensic Economists, March 4, 1989 in Baltimoxe, MD
Discussant of paper titled “Diogenes’ Expenses: The Costs to the Court
of Seeking Truth in Medical Malpractice Cases” at the annual meeting
of the Hastern Economic Association, March 12, 1988 in Boston, MA.
Discussant of paper titled “Present Value and the Structure of Interest
Rates” at the meeting of the National Association of Forensic
Economists, March 11, 1988 in Boston, MA.
Chairperson of session, “Topics in Health Economics” at the annual
meeting of the Eastern Economic Association, March 11, 1983 in
Boston, MA,
Discussant of paper titled “The Nursing Shortage and Its Associated
Planning Problems” at the annual meeting of the New England Business
and Economics Association, November 5, 1982 in Springfield, MA.
Coordinator and moderator for “The Role of Preventative Care: Is Ita
Healthy Alternative?” sponsored by the Joint Council on Economic
Education, April 23, 1981, Southern Connecticut State College.
Preview
FBT-CV-14-6043491 DAVID CONFEITEIRO : SUPERIOR COURT VS. : JUDICIAL DISTRICT OF : BRIDGEPORT, AT BRIDGEPORT TATIANA MEZARINA-ROJAS, ET AL : OCTOBER 26, 2016 OBJECTION TO DEFENDANTS’ MOTION IN LIMINE TO PRECLUDE PLAINTIFF'S EXPERT GARY CRAKES, PhD The Plaintiff hereby objects to the Defendants’ Motion in Limine to Preclude Expert Gary Crakes, PhD, as his expert opinions clearly are baséd on reliable evidence and accepted methodology. IL FACTS The Plaintiff filed his Disclosure of Experts on September 8, 2016, listing, among others, economics expert Gary Crakes, PhD. The Plaintiff's Disclosure of Experts explains: 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 9/7/16 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 plaintiff's earnings records, relevant portions of the Union handbook and _ summary plan description, the plaintiff's 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. Crakesis expected to testify that the plaintiff's 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). In advance of the filing of the disclosure, the Plaintiff provided the Defendants with copies of the Plaintiff's tax returns for years 2009 to 2014, on May 20, 2015. On- September 8, 2016, he also provided a copy of Dr. Crakes’s Appraisal of Economic Loss Report, dated September 7, 2016. On October 4, 2016, nearly one month after the disclosure was filed, the Defendants asked for clarification of the basis of Dr. Crakes’s expert opinions, noting their confusion over whether Dr. Crakes reviewed tax returns, W-2s, or other actual " wage information. The undersigned immediately replied to the Defendants by email, with the following explanation and clarification: Please find attached Mr. Confeiteiro’s tax records (including W-2s) from 2008-2013, as well as a form completed by his employer in connection with his initial (2012) lost wages. | will attach an authorization from Mr. Confeiteiro to a subsequent email (no room for additional attachments on this email), which will enable you to request any other employment-related documents from Andy Lopes Building Corp. With regard to the economics report, our office provided Dr. Crakes with the following items for his review. He reviewed or relied upon these items (as well as others not provided by us) to prepare his report: ° Mr. Sabella’s Vocational Evaluation and Employability Assessment (previously provided to you) . Collective Bargaining Agreements & Wages and Benefits Summary Pages, 2011-2016 (attached)° Tax Returns and W-2s for years 2009-2015 (and W-2 for year 2008) (attached) ° SSD Reports (previously provided to you) ° Personal/family background information as contained in his report The income and employment figures that Dr. Crakes cites in his report were obtained and/or calculated based, in part, upon his review of the above items. The undersigned also provided the Defendants with the Plaintiff's tax returns for years 2014 and 2015 two days later. At no time have the Defendants made any attempt to depose Dr. Crakes, though they had more than a month and a half to do so between the date of disclosure and the start of trial. Instead, they filed the subject Motion in Limine on October 12, 2016. Trial is scheduled to commence on October 26, 2016. I. ARGUMENT ~ By motion dated October 12, 2016, the Defendants moved to preclude Dr. . Crakes’s expert testimony. In McDonald v. Doukas, Superior Court, Judicial District of New Haven, Docket No. CV-08-1512-S (August 15, 2012), a case in which Dr. Crakes’s expert opinion as an economics expert was admitted, the court described Dr. Crakes’s background and qualifications at the time: Dr. Crakes has been a professor in the Department of Economics and Business at Southern Connecticut State University since 1989. He is widely published in his field, and as this court's research revealed, has testified in numerous cases on the issue of economic damages. The Curriculum Vitae of Dr. Crakes, attached as Exhibit 1, further details his extensive professional experience, reports, and publications. The Defendants allegethe Dr. Crakes’s analysis and appraisal of the Plaintiff's lost wages and loss of earning capacity lack any reliable factual or scientific basis. It is clear, however, that Dr. Crakes’s opinion is not based on “averages of the Plaintiff's prior earnings” or “unknown” methodology, but on a sound application of actual wage and employment information to established methods. While the Defendants’ Motion relies heavily on a Porter analysis, Dr. Crakes’s testimony is the not the type of “junk science” that State v. Porter, 21 Conn. 57 (1997) was meant to exclude. Dr. Crakes and other economics experts are commonly employed in trials involving personal injury claims. Dr. Crakes has testified in many cases and trials as an economics expert, and the methods he uses are uniformly accepted.’ “Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues." (Citations omitted; internal quotation marks omitted.) State v. Billie, 250 Conn. 172, 180, 738 A.2d 586 (1999). The Porter test for admissibility “does not apply to all expert testimony, but only to that which involves ‘innovative scientific techniques . . . .” (Citation omitted) (emphasis added) State v. Kirsch, 263 Conn. 390, 403-405 (2003). In fact, the court has already determined that Dr. Crakes’s substantially similar testimony, as an 1 [tis significant to note that the Defendants have not disclosed their own economics expert in this case to review or refute Dr. Crakes’s opinions or methodology.economics expert in a recent person injury case, was admissible without the need for a Porter hearing. McDonald v. Doukas, supra. In McDonald, the court explained, Dr. Crakes calculated the plaintiffs future loss of earnings by comparing his expected future earning capacity had he never been injured, with the plaintiff's expected lifetirne future capacity under the work limitations brought about by his injuries. Dr. Crakes calculated these figures using median incomes of persons of various educational backgrounds as compiled by the U.S. Census Bureau and Bureau of Labor Statistics, factoring in the plaintiff's age, gender, expected work life, and life expectancy. Dr. Crakes then adjusted these figures by the expected future taxes, fringe benefits, interest and annual growth of earnings and the plaintiff's continuing cost of care. Such calculations of future loss of earning capacity, are clearly not based on any novel scientific methodology, but on applicable economic principles within Dr. Crakes' expertise . . Dr. Crakes' testimony concerns a method by which to determine the plaintiff's future loss of earning capacity, the understanding of which will be accessible to the jury and the value of the expertise lay in its assistance to the jury in viewing and evaluating this evidence on economic damages. Although Dr. Crakes' skill and training is based on science, the subject which he will: testify to, that is the amount of the plaintiffs future loss of eaming capacity . ... is not based on any scientific test, methodology or experiment. Furthermore, his testimony will assist the jury in determining the amount of the plaintiff's economic damages if liability is established. The award of damages is a matter particularly within the province of the trier of facts. Economic evidence and the testimony of economic experts are appropriately weighed ‘by the jury. Thus, so long as Dr. Crakes' opinion regarding the plaintiff's loss of future earnings .. . have a sufficient factual basis, as set forth in section 7-4(b) of the Code of Evidence, and is not based on speculation or conjecture, ,such testimony is admissible without the need of a Porter hearing. (Citations omitted: internal quotation marks omitted.) Id. Dr. Crakes’s testimony in McDonald was based on most or all of the same types of evidence and widely accepted methods that he employed in the present case.There, and here, he has not employed a scientific test at all, let alone any “innovative scientific techniques” intended for evaluation under Porter. As in McDonald, it is not appropriate, here, to apply Porter;? Dr. Crakes’s testimony is simply admissible to assist the jury in determining the amount of the Plaintiffs damages. Finally, the Defendants claim that Dr. Crakes's testimony is not verifiable because full tax returns were not provided until 10/7/16 and full employment records have not yet been obtained. While this issue is the subject of a separate Motion in Limine by the Defendants, as well as a separate Objection by the Plaintiff, it is important to note that the Plaintiff is hardly “conducting a trial by ambush”. The Defendants were first provided copies of the Plaintiffs tax returns for years 2009 to 2014 on May 20, 2015, and the Plaintiff asserted his lost wages and loss of earning capacity claims even earlier, in his response to the Defendants’ standard interrogatories on December 1, 2014. The Defendants have had ample time to review and verify the wage and employment information contained in the Plaintiff's tax returns, which forms the basis of Dr. Crakes’s testimony. WHEREFORE, the Plaintiff respectfully requests that the Defendants’ Motion to Preclude be denied. 2 Even if the court in State v. Porter contemplated this type of testimony, the Plaintiff can demonstrate at a Porter hearing that the methodology underlying Dr. Crakes’s opinion meets the threshold for admissibility.THE PLAINTIFF, DAVID CONFEITEIRO By: Choke tbl Chelsea E. Krombel Law Offices of Paul E. Farren, Jr.; P.C. 129 Whitney Avenue New Haven, CT 06510 Phone: (203) 784-0326 Fax: (203) 624-5321 Juris No. 421215ORDER The foregoing objection, having been presented, it is hereby ORDERED: SUSTAINED/OVERRULED. BY THE COURTCERTIFIGATION | certify that a copy of this document was or will immediately by mailed or delivered electronically or non-electronically this date to all attorneys and self- represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self- represented parties receiving electronic delivery. Name and address of each party and attorney that copy was or will immediately be mailed or delivered to: - Alan S. Tobin, Esq. Law Offices of Meehan, Roberts, Turret & Rosenbaum 108 Leigus Road, 1st Floor Wallingford, CT 06492 Joseph S. Dobrowolski, Esq. 51 Elm St., 2nd Floor New Haven, CT 06510 : ’ q Dated: October 26, 2016 . C Anke b# Chelsea E. Krombel“ Eynsr + Curriculum Vitae Gary M. Crakes Birthdate: July 2, 1953 Home: 860 Ward Lane - Phone: (203) 272-1205 Cheshire, CT 06410 . Bax: (203) 250-8452 Education Ph.D. (Economics) 1984, University of Connecticut M.A. (Economics) 1976, University of Connecticut B.A, (Economics) 1975, Central Connecticut State College Fellowships and Honors 2016 Biographical listing, Who’s Who in America 2004 Honored, Trial Lawyers Care, Association of Yrial Lawyers of America, for pro bono economic services, September 11 victim ‘Compensation Fund 1998 School of Business Outstanding Teacher Award 1987 University Teacher of the Year Award 1985 Member, State of Connecticut Senior Economist Examination Committee 1983 Richard D. Irwin Fellowship 1983 University of Connecticut Dissertation Fellowship 1975-1976 University of Connecticut Pre-doctoral Fellowship Professional Organizations American Economic Association Eastern Economic Association Omieron Delta Epsilon National Association of Forensic Economists American Academy of Economic and Financial Experts American Association of University Professors National Association of Business Economics Professional Bxperience 1981 - Economic consultant, Maher, Crakes, and Associates 2011 - Professor Emeritus, Department of Economics and Finance, School of Business, Southern Connecticut State University 1989 - 2011 Professor, Department of Economics and Finance, School of” Business, Southern Connecticut State University 1991-1995 Chaizman, Department of Economics and Finance, School of Business, Southern Connecticut State University . January 1988-June 1988 Visiting Professor, Departwent of Behavioral Science and Community Health, School of Dental Medicine, University of » Connecticut Health Center September 1985-August 1989 Associate Professor, School of Business, Southern Connecticut State University (tenured, 1986) August .1980 - August 1985 Assistant Professor, School of Business, Southern _ Connecticut State University January 1979-May 1980 Instructor, University of Connecticut (Hartford) June 1976-December 1978 Research Assistant, University of Connecticut Health Center. Research Assistant, School of Agriculture, University of ConnecticutPublications Journals —~ : : . CGrakes, G. and Cottrill, M. “The Connecticut State Income Tax: Progressive, Regressive, and Proportional,” Journal of the American Academy of Business, (September, 2007) Cottrill, M. and Crakes, ‘g. “A Different Look at “Pay for Performance”: Returns to Bench Strength in the NEL,” The Business Review, Cambridge, (December, 2004). . Beagoglou, !., Crakes, G., Doherty, N. and Heffley, D. “Determinants of Dentists! Geographic Distribution,” Journal of Dental Education (Novembex, 1992) Doherty, N. and Crakes, G. “Estimating the Costs of Public Dental Programs: Mobile Clinics,” Community Dental Health (Spring, 1987). Crakes, G. “A Comparison of Foconomic Estimates of Loss with Jury Awards and Pre-verdict Settlements,” Business Journal (Fall, 1985). Doherty, N. and Crakes, C. “Economic Specification of Cost Estimates in Dental Programs,” Jouxnal of Dental Research (June, 1985). Doherty, N. and Crakes, G. “Adjusting Social Program Costs for Research and Evaluation Activities,” Evaluation Review (August, 1980). Doherty, N. and Crakes, G. “Commentary: Reply to Joan Quinn,” Inquiry (Summer, 1980). Dohexty, N., Hozowita, PB. and Crakes, G. “Real Costs of Dental Care in Private and Public Practice,” Medical Care (January, 1980). Doherty, N. and Cxakes, G. “the Impact of a Change in Regulation on Costs in an Experimental Program," Inquiry (Summer, 1979). Proceedings Crakes, G. with Cottrill, M. “The Growth of Student Indebtedness and ' the Role of Higher Education as a U.S. Response to Globalization,” Proceedings of the Global Conference on Business & Economics, Association for Business & Economias Research, October, 2007 Crakes, 6. with Cottrill, M. “fhe Rising Relative Price of Higher Education and the U.S. Response to Offshore Outsourcing,” proceedings of the New England Business Administration Association, May, 2007. Crakes, G. with Cottrill, M. “More on “Pay for Performance” -The Disruptive Effect of Star Power in the NFL,” Proceedings of the New England Business Administration Association, May, 2005. crakes, G. with Crakes, A. “Education, Earnings, and the NCAA Student Athlete,” Proceedings of the New England Business Administration Association, May, 2004, | : i : 'Crakes, G. with Cottrill, M. and Crakes, J. “Context for the Medical Malpractice Insurance Debate,” Proceedings ‘of the Conference on Emerging Issues in Business and Sechnology, October, 2003. Crakes, G, with Thorson, J, and Cottrill, M. “The Impact of Law Firm Concentration on Lawyers’ Salaries," Proceedings of the New England Business Administration Association, April, 2000. Crakes, G. with Thorson, J, and Cottrill, M. “Aré Baseball Players Overpaid? An Analysis of Major League Baseball Salaries,” Proceedings gf the Northeast Businéss & Economics Association, October, 1998. Crakes, G. with Cottrill, M, “Whe Connecticut State Income Tax and the Equal Sacrifice Rule,” Proceedings of the New England Business Administration Association, November, 1997. Crakes, G. with Cottrill, M. “Banking It Before the Bar: Legal Compensation Trends in Major Markets,” Proceedings of the Northeast Business & Eoonomics Association, September, 1997, Crakes, G. with Cottrill, M. “Young and Old Scholars,” Proceedings. of the Hastern Case Writers Association/Eastern Academy of Management, May, 1994. Abstracts . Crakes, G. and Doherty, N. “Costs of Public Dental Clinics Under Capacity Utilization,” Journal of Dental Research (January, 1979). Technical Reports Doherty, N., Horowitz, P. and Crakes, G, “Analysis of Economic Factors Associated with Providing Incremental Dental Care to Children” for the National Institute of Health, United States Public Health Service, 1o7e. Other Economic Consultant, 4° edition, 1995, Recovery for Wrongful Death and injury: Economic Handbook, Stuart M. Speiser and John Maher, Clark, Boardman, & Callaghan, New York, N.¥.. Economic Consultant (with J. Maher) 7 3 edition, 1988 Reoovery for Wrongful Death and Injury: Economic Handbook, Stuart M. Speiser, Bancroft, Whitney/Lawyers Cooperative Publishing, Rochester, N.Y.. Crakes, G.M. “CSUS Chief's Bonus Appalls," Hartford Courant, December 20, 2009. Cxakes, G.M. “Competition Causing Disagreement Over Deregulation,” New Haven Register, August 6, 1981.Conferences Papers Presented Co-author of paper titled “Do Older Workers Respond to Incentives? Evidence From the Senior PGA Tour” (with M. Cottrill and J. Thorson, presenter) presented at the annual Connecticut. State University Research Conference, October, 1999, Eastern Connecticut State University. Presented co-authored paper titled “The Intra and Inter-State Distribution of Dentists” (with T. Beazoglou and D, Heffley) at the annual meeting of the Eastern Economica Association, March 3, 1989 in Baltimore, MD, . Co-author of paper titled “Determinants of Dentists’ Geographic Distribution” (with T. Beazoglou and D. Heffley, presenter) presented at the meeting of the American Association of Dental Research, March 15, 1989 in San Francisco, CA. Presented co-authored paper titled “Estimating Dental Practice Production Functions with Alternative Output Measures” (with T. Beazoglou) at the annual meeting of the Eastern Economic Association, March 4-7, 1987 in Washington, D.C. Presented paper titled “A Comparison of Raonomia Estimates of Loss with dury Awards and Pre-verdict Settlements” at the meeting of the Atlantic Economic Society, August 29 - September 1, 1985 in Washington, D.C. Presented co-authored paper titled, “A Re-examination of the Returns to Scale of Dental Practices” (with T. Beazoglou) at the annual meeting of the Eastern Economic Association, March 21-23, 1985 in Pittsburgh, PAY . Presented co-authored paper titled “Economic Specification of Costs of Dental Programs” (with N. Doherty) at the annual meeting of the Eastern Economic Association, March 21-23, 1985 in Pittsburgh, PA. Other Chairperson of session, “Economics” at the annual meeting of the New England Business Administration Association, April, 1993 in New Haven, CT. Chairperson and organizer of session, “Health Economics” at the annual meeting of the Eastern Economic Association, March 28, 1992 in New York City, NY. Discussant of paper titled, “Massachusetts Hospitals in the Highties: Financial Analysis of Large Urban and Other Hospitals” at the annual meeting of Northeast Business Eoonomics Association, November 7, 1991 in Stamford, CT.Discussant of paper titled, “Female Work Experience: Voluntary vs. Involuntary Labor Force Activity” at the meeting of the National Association of Forensic Economists, March 4, 1989 in Baltimoxe, MD Discussant of paper titled “Diogenes’ Expenses: The Costs to the Court of Seeking Truth in Medical Malpractice Cases” at the annual meeting of the Hastern Economic Association, March 12, 1988 in Boston, MA. Discussant of paper titled “Present Value and the Structure of Interest Rates” at the meeting of the National Association of Forensic Economists, March 11, 1988 in Boston, MA. Chairperson of session, “Topics in Health Economics” at the annual meeting of the Eastern Economic Association, March 11, 1983 in Boston, MA, Discussant of paper titled “The Nursing Shortage and Its Associated Planning Problems” at the annual meeting of the New England Business and Economics Association, November 5, 1982 in Springfield, MA. Coordinator and moderator for “The Role of Preventative Care: Is Ita Healthy Alternative?” sponsored by the Joint Council on Economic Education, April 23, 1981, Southern Connecticut State College.