Weaver v. McKnight ( 2014 )

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DOROTHY WEAVER, COADMINISTRATOR (ESTATE
OF DEMARIUS DOUGLAS WEAVER), ET AL.
v. CRAIG MCKNIGHT ET AL.
(SC 18974)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued January 16—officially released September 2, 2014
D. Lincoln Woodard, for the appellants (plaintiffs).
Laura Pascale Zaino, with whom, on the brief, was
Thomas W. Boyce, Jr., for the appellees (defendant
Henry Amdur et al.).
Opinion
ROGERS, C. J. This appeal arises from the stillbirth
of Demarius Douglas Weaver (decedent). The plaintiffs,
Dorothy Weaver and Fred Weaver, as coadministrators
of the estate of the decedent, and Dorothy Weaver
(Weaver), individually, brought an action against the
defendants Henry Amdur and Thames Gynecological
Group, P.C.,1 claiming, among other things, that Amd-
ur’s negligent failure to diagnose and treat Weaver’s
gestational diabetes caused the decedent’s stillbirth, a
claim the defendants dispute.
The dispositive issue in this appeal is whether the trial
court properly precluded two of the plaintiffs’ expert
witnesses, physicians board certified in obstetrics and
gynecology, from testifying to their opinion that Weav-
er’s untreated gestational diabetes caused the dece-
dent’s stillbirth. The trial court precluded the experts’
respective opinions on the grounds that neither witness
had any training or experience in determining cause of
death and were not board certified in pathology. The
preclusion of these causation opinions led to a directed
verdict and judgment in favor of the defendants. The
plaintiffs appealed from the trial court’s judgment to
the Appellate Court, which affirmed the judgment.
Weaver v. McKnight, 134 Conn. App. 652, 658, 40 A.3d
786 (2012). We granted the plaintiffs’ petition for certifi-
cation, limited to the following question: ‘‘Did the Appel-
late Court properly conclude that the trial court did
not abuse its discretion in precluding testimony by the
plaintiffs’ two experts, both of whom are board certified
in obstetrics and gynecology?’’ Weaver v. McKnight,
305 Conn. 907, 44 A.3d 183 (2012).
We conclude that the trial court’s decision to preclude
the expert testimony contradicted the facts in the
record and applicable law, thus amounting to an abuse
of discretion. Accordingly, we reverse the Appellate
Court’s judgment with direction to reverse the trial
court’s judgment and to remand the case for a new trial.
Furthermore, we also review certain evidentiary rul-
ings of the trial court that are likely to arise again on
remand; see Practice Book § 84-11; namely, whether
the trial court properly: (1) precluded a treating physi-
cian from testifying about his opinion that Weaver had
developed gestational diabetes in the later stages of her
pregnancy; (2) precluded a treating nurse from testi-
fying to her suspicion that Weaver had gestational dia-
betes and her concerns about the treatment given by
Amdur; and (3) permitted the defendants to cross-exam-
ine one of the plaintiffs’ expert witnesses about a cen-
sure issued to him by a voluntary membership
professional organization. We conclude that the trial
court abused its discretion in precluding the opinion
from the treating physician and in allowing the cross-
examination about the censure, but we sustain the trial
court’s ruling precluding certain testimony of the treat-
ing nurse.
I
We begin with the relevant facts in the record.
Weaver, the decedent’s mother, received prenatal treat-
ment from the defendants at Lawrence and Memorial
Hospital (hospital). Five days before the stillbirth of
the decedent, Weaver went in for a weekly visit and was
seen by Nancy Hess, an advanced practice registered
nurse. Hess detected a fetal heart rate and fetal move-
ment. Weaver also underwent an ultrasound examina-
tion to take measurements of the fetus’ size and weight.
The next day, four days before the stillbirth, Hess
reviewed the ultrasound results. The ultrasound
showed a large fetus weighing more than eleven
pounds. Because of the size of the fetus, and Hess’
knowledge of test results showing that Weaver had
elevated blood sugar levels, Hess was concerned that
Weaver might have uncontrolled high blood sugar levels
as a result of gestational diabetes. Hess contacted the
treating physician, Amdur, that same day and told him
of the fetus’ weight, which was larger than expected for
his gestational age of approximately thirty-eight weeks.
Hess also told Amdur certain facts about Weaver,
namely that she was thirty-five years old, she previously
had given birth to another child weighing about nine
pounds, and she had tested positive for the presence
of sugar in her urine during the last three checkups.
Amdur determined that the fetus was ‘‘macrosomic,’’ a
medical term for a large baby; see Stedman’s Medical
Dictionary (28th Ed. 2006) p. 1142 (defining ‘‘mac-
rosomia’’ as ‘‘[a]bnormally large size of the body’’); and
told Hess that Weaver should be offered a scheduled
cesarean section to deliver the fetus the following week.
Amdur did not order any further tests.
Weaver went in for a scheduled cesarean section four
days later, on Tuesday, May 16, 2006. The admitting
nurse and an attending physician, Craig McKnight, how-
ever, were unable to detect a fetal heart rate during a
preoperative ultrasound. McKnight confirmed the result
with a radiologist and then informed Weaver of the loss
of the baby. McKnight also ordered several tests to help
determine the cause of the stillbirth, including tests to
analyze Weaver’s blood sugar levels. McKnight deliv-
ered the decedent by cesarean section. Within one day
after the delivery, and after reviewing test results,
McKnight formed an opinion that Weaver had gesta-
tional diabetes and told Weaver that it appeared that
she had developed poor blood sugar control in the later
stages of her pregnancy.
A pathologist later performed an autopsy of the dece-
dent and the placenta. The pathologist ruled out several
possible causes of the stillbirth, including birth defects
and infection, but was unable to determine an anatomic
cause of death based on her pathological examination.
The pathologist later testified during a deposition that
she had no opinion about whether gestational diabetes
played a role in the stillbirth. She also testified, how-
ever, that she would not have been able to see evidence
of poor blood sugar control in an autopsy, and she did
not know the mother’s or the decedent’s blood sugar
levels. According to the pathologist, determining
whether a mother suffered from poor sugar control is
more of ‘‘a clinical assessment rather than a pathologi-
cal assessment.’’
The plaintiffs later filed this action against the defen-
dants for the loss of the decedent and harm to Weaver.
According to the plaintiffs, Amdur should have known
from Weaver’s test results and the abnormally large size
of the fetus that Weaver suffered from uncontrolled
gestational diabetes, which created an increased risk
of stillbirth. The plaintiffs principally claimed in their
amended complaint that Amdur’s failure to diagnose
and treat Weaver’s gestational diabetes caused the dece-
dent’s stillbirth. The defendants disputed the plaintiffs’
claims that Weaver had gestational diabetes or that
Amdur’s actions contributed to the stillbirth.
At trial, the plaintiffs offered the testimony of Russell
Jelsema, a physician and board certified obstetrician
and gynecologist, to establish the cause of the stillbirth.
Jelsema testified that he specializes in maternal-fetal
medicine, which focuses on the care of the mother and
fetus in the womb, and has been a practicing physician
since 1990. He completed a four year residency in
obstetrics and gynecology and a two year fellowship
specializing in the treatment of women with compli-
cated pregnancies. According to his curriculum vitae,
Jelsema has authored more than two dozen publica-
tions, including peer reviewed articles, abstracts, and
book chapters, principally related to obstetrics and
gynecology. He currently maintains his own practice
with several hospitals, sees patients on consultation
from other physicians, and also teaches medical stu-
dents and residents. Jelsema testified that approxi-
mately 25 percent of his patients have pregnancies
complicated by diabetes. Jelsema further testified that
he has been involved with the delivery of hundreds of
stillborn infants. As part of his practice, he routinely
reviews information, including autopsy, laboratory, and
clinical reports, to try to determine the cause of the
stillbirths and then explains his opinion about the cause
to the parents of the stillborn infant.
At trial, the plaintiffs offered Jelsema to opine that
Weaver had untreated gestational diabetes and that
Amdur’s failure to diagnose and treat this condition
caused the decedent’s stillbirth. Jelsema testified that,
in his opinion, Weaver had uncontrolled gestational dia-
betes, a condition that created an increased risk of a
stillbirth. According to Jelsema, when a mother has
untreated diabetes, the mother’s insufficient insulin lev-
els prevent her body from transferring blood sugar to
her cells, leaving an abnormally high level of sugar
remaining in the mother’s blood. This excess sugar is
then transferred to the fetus’ blood through the pla-
centa. The fetus, which has normal insulin function,
then absorbs an abnormally high amount of blood sugar,
causing the fetus to grow unusually large. According
to Jelsema, the current understanding in the medical
field is that the increased level of blood sugar causes
acid to build up in the fetus’ veins, which can eventually
lead to its death. Jelsema testified that, even in the
absence of a pathologist’s determination of an anatomi-
cal cause of death, he can determine cause of death
from gestational diabetes by reviewing the autopsy
reports along with information not reviewed by the
pathologist, including the mother’s clinical and blood
sugar reports, and by excluding other possible causes
of death. The plaintiffs asked Jelsema at trial whether,
based on his review of the evidence, he had an opinion
about whether Weaver’s untreated gestational diabetes
caused or substantially contributed to the decedent’s
stillbirth.
The defendants, who previously had filed a motion
in limine to preclude this causation testimony, objected
to the plaintiffs’ offer for two reasons. First, the defen-
dants argued that Jelsema lacked the requisite training
and experience to testify about cause of death. The
defendants observed that Jelsema was not a pathologist
and that the pathologist that examined the decedent
could not determine an anatomical cause of death. The
defendants further noted that during his deposition,
Jelsema was unable to testify knowledgeably about cer-
tain fetal conditions that the defendants contended may
have caused the decedent’s stillbirth. Second, the defen-
dants asserted that the plaintiffs did not offer enough
evidence to provide a factual foundation for Jelsema’s
opinion that the gestational diabetes actually caused
the decedent’s stillbirth in this case.
After hearing argument by counsel, the trial court
precluded Jelsema’s causation opinion testimony. The
record reveals two grounds for the trial court’s decision.
First, the trial court determined that Jelsema lacked
experience in determining cause of death: ‘‘Here the
matter specifically in issue for this question is the cause
of death. And the witness has testified that he’s written
a lot about diabetes. He’s studied a lot about diabetes.
He teaches about different things, but he’s never—he
hasn’t testified that he has any experience at all in
determining the cause of death.’’ Second, the trial
court—relying on our decision in Sullivan v. Metro-
North Commuter Railroad Co., 292 Conn. 150, 159, 971
A.2d 676 (2009), in which we noted that an ‘‘ ‘expert’s
knowledge or experience must be directly applicable
to the matter specifically in issue’ ’’—apparently deter-
mined that only a pathologist could testify about cause
of death. During argument on the defendants’ objection,
the trial court, citing Sullivan, asked the plaintiffs’
counsel if he could cite to ‘‘any cases suggesting that
a [physician] other than a pathologist can render an
opinion on the cause of death’’ and gave counsel the
lunch recess to find such a case. After the recess, the
plaintiffs’ counsel cited Marshall v. Hartford Hospital,
65 Conn. App. 738, 758, 783 A.2d 1085 (2001), in which
the Appellate Court concluded that a medical prac-
titioner’s relevant experience and training, not the ‘‘arti-
ficial classification’’ of the witness’ medical specialty,
should govern the qualification inquiry. Nevertheless,
the trial court precluded Jelsema’s opinion testimony.
The plaintiffs then offered the testimony of another
proposed expert witness, Frank Bottiglieri, also a physi-
cian board certified in the practice of obstetrics and
gynecology, on the issue of causation. Bottiglieri has
practiced medicine for more than twenty years, and his
practice includes treatment of patients with high risk
pregnancies, including those impacted by gestational
diabetes. Bottiglieri testified that part of his practice
includes managing patients who have stillbirths, includ-
ing those involving gestational diabetes, and that, in the
course of this practice, he reviews autopsy reports and
other clinical information to determine the cause of
the stillbirth. Bottiglieri also explained that untreated
gestational diabetes can cause a stillbirth. The plaintiffs
offered Bottiglieri’s opinion that Weaver’s untreated
gestational diabetes was a substantial factor in the dece-
dent’s stillbirth.
The defendants objected to the offer of Bottiglieri’s
opinions for the same reasons supporting their objec-
tion to the offer of Jelsema’s opinion.
The trial court precluded Bottiglieri’s testimony, cit-
ing again to the requirement that an ‘‘ ‘expert’s knowl-
edge or experience must be directly applicable to the
matter specifically in issue’ ’’ set forth in Sullivan v.
Metro-North Commuter Railroad Co., supra, 292 Conn.
159. The trial court explained: ‘‘I’m going to grant the
motion to preclude based on my determination that,
while the witness is very qualified to offer evidence
with regard to the standard of care, the qualifications
indicated by the examination do not rise to the level of
meeting the hurdle as placed by the directly applicable
language [in Sullivan] as it relates to time and cause
of death.’’
Because the trial court precluded the plaintiffs’
experts from testifying about causation, and the plain-
tiffs had no other causation evidence sufficient to estab-
lish their claims, the trial court granted a motion by
the defendants for a directed verdict at the close of
the plaintiffs’ evidence. The trial court then rendered
judgment for the defendants.
The plaintiffs’ appealed from that judgment to the
Appellate Court, which affirmed the trial court’s judg-
ment. The Appellate Court upheld the trial court’s deci-
sion to preclude the plaintiffs’ causation experts for
two reasons. Weaver v. McKnight, supra, 134 Conn.
App. 665–68. First, the Appellate Court agreed that there
was no evidence that Jelsema and Bottiglieri were quali-
fied based on their training or experience to render an
opinion on cause of death. Id. Second, the Appellate
Court analyzed the ‘‘scientific validity’’ of their respec-
tive opinions, relying on a case employing the analysis
set forth in State v. Porter, 241 Conn. 57, 698 A.2d 739(1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384,
140 L. Ed. 2d 645 (1998), for assessing the validity of
scientific methods used to support an expert’s opinion.
Weaver v. McKnight, supra, 665–68. The Appellate
Court determined that ‘‘[a]lthough [Jelsema and Bottig-
lieri each] indicated that [they] could determine cause
of death even though a pathologist could not, the plain-
tiffs failed to produce any evidence indicating the valid-
ity of that medical opinion.’’ Id., 668. This certified
appeal followed.
II
The plaintiffs principally claim on appeal that the trial
court improperly precluded Jelsema’s and Bottiglieri’s
causation testimony. The plaintiffs assert that the
record shows that each of the witnesses has substantial
experience with the topic at issue, the cause of stillbirth,
and had ample factual support for their opinions that
Weaver’s gestational diabetes caused the decedent’s
stillbirth. The plaintiffs further argue that the trial
court’s decision to preclude the challenged testimony
rested on an untenable reading of the record that
ignored the witnesses’ testimony about their relevant
experience and, furthermore, that the trial court incor-
rectly determined that the witnesses could not testify
about the cause of stillbirth because they were not
pathologists. The defendants respond by conceding that
whether the witnesses were pathologists is not disposi-
tive of the qualification inquiry. Rather, the defendants
argue that the trial court properly precluded the wit-
nesses’ causation opinions because the witnesses were
not sufficiently familiar with certain concepts relating
to stillbirth and pathology. The defendants also contend
that the plaintiffs did not provide any independent facts
to support the witnesses’ opinions, and, therefore, their
opinions did not amount to anything more than specula-
tion or conjecture. We agree with the plaintiffs.
We begin with our standard of review. We review a
trial court’s decision to preclude expert testimony for
an abuse of discretion. See, e.g., Sullivan v. Metro-North
Commuter Railroad Co., supra, 292 Conn. 157–58. We
afford our trial courts wide discretion in determining
whether to admit expert testimony and, unless the trial
court’s decision is unreasonable, made on ‘‘untenable
grounds’’; Hammond v. Bridgeport, 139 Conn. App. 687,
701, 58 A.3d 259 (2012); or involves ‘‘a clear misconcep-
tion of the law,’’ we will not disturb its decision. (Inter-
nal quotation marks omitted.) Sullivan v. Metro-North
Commuter Railroad Co., supra, 157. Although we afford
trial courts significant discretion, ‘‘[w]here it clearly
appears that an expert witness is qualified to give an
opinion, the exclusion of his testimony may be found to
be [an abuse of discretion].’’ See, e.g., Wray v. Fairfield
Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940);
see also Sullivan v. Metro-North Commuter Railroad
Co., supra, 157–58. To the extent the trial court makes
factual findings to support its decision, we will accept
those findings unless they are clearly improper. Fisher
v. Big Y Foods, Inc., 298 Conn. 414, 423, 3 A.3d 919(2010). If we determine that a court acted improperly
with respect to the admissibility of expert testimony,
we will reverse the trial court’s judgment and grant a
new trial only if the impropriety was harmful to the
appealing party. Sullivan v. Metro-North Commuter
Railroad Co., supra, 158.
We also note our standards for admitting expert testi-
mony. ‘‘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 knowl-
edge is not common to the average person, and (3)
the testimony would be helpful to the court or jury in
considering the issues. . . . [T]o render an expert opin-
ion the witness must be qualified to do so and there must
be a factual basis for the opinion.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.) Id.
The Appellate Court affirmed the trial court’s preclu-
sion of Jelsema’s and Bottiglieri’s causation testimony
on two separate grounds: (1) the witnesses lacked spe-
cialized knowledge or experience on the issue of cause
of death that would be helpful to a fact finder; and (2)
the plaintiffs did not present any evidence to support
the scientific validity of the witnesses’ methods for
determining cause of death when a pathologist was
unable to determine a cause. Weaver v. McKnight,
supra, 134 Conn. App. 665–68. We disagree with both
conclusions.
A
The Appellate Court concluded that the trial court
properly found that neither Jelsema nor Bottiglieri had
any relevant experience in determining the cause of
the stillbirth and therefore were not qualified to testify
about that topic. Id. The evidence in the record, how-
ever, refutes this conclusion and, instead, shows that
the plaintiffs established each of the requirements nec-
essary for admitting their experts’ respective opinions
on the cause of the stillbirth in this case. We address
each requirement in turn.
1
As for the first requirement, the trial court’s finding
that Jelsema and Bottiglieri lacked any experience in
determining the cause of the stillbirth was clearly
improper. Both experts, through their experience as
obstetricians and gynecologists, had substantial knowl-
edge and experience directly relevant to determining
the cause of stillbirth. Jelsema testified that he was a
board certified obstetrician and gynecologist, with a
specialty in maternal-fetal medicine, and had experi-
ence in treating pregnancies complicated by diabetes.
He further testified that, as part of his practice, he had
been involved in ‘‘hundreds’’ of deliveries of stillborn
infants. When treating a patient who gives birth to a
deceased infant, part of his routine care includes
determining the cause of the stillbirth. According to
Jelsema’s testimony, in such instances, he regularly
reviews autopsy reports, laboratory results, and clinical
information to identify a cause. Bottiglieri testified to
having similar experience in his practice. Bottliglieri
also delivers stillborn infants and routinely reviews
autopsy reports and other clinical and laboratory
reports to determine the cause. These stillbirths have
included infants stillborn to diabetic mothers. The wit-
nesses’ respective experiences in determining the cause
of a stillbirth are ‘‘ ‘directly applicable’ ’’; Sullivan v.
Metro-North Commuter Railroad Co., supra, 292 Conn.
159; to a matter at issue in the case, namely, whether
the defendants’ failure to diagnose and treat Weaver’s
gestational diabetes caused the decedent’s stillbirth.
The trial court’s finding to the contrary, that neither
Jelsema nor Bottiglieri had any experience determining
the cause of stillbirth, flatly contradicts the record and,
thus, is clearly incorrect. The Appellate Court therefore
improperly relied on this finding to reach its decision.2
The defendant argues, however, that ‘‘critical limita-
tions’’ in Jelsema’s and Bottiglieri’s level of expertise
rendered them unqualified to testify. The defendants
assert that Jelsema and Bottiglieri cannot testify about
the cause of stillbirth because they both deferred to
pathologists on certain questions posed to them during
their depositions. For instance, the defendants claim
that Jelsema admitted during his deposition that
‘‘pathologists are ‘more expert’ when it comes to infor-
mation related to the cause of fetal death’’ and that
both Jelsema and Bottiglieri were unable to fully testify
to the defendants’ satisfaction about the nature of a
rare fetal disorder called Beckwith-Wiedeman Syn-
drome. Even if we were to assume that these criticisms
are true, we disagree that they render the testimony
inadmissible.
The defendants’ criticisms go to the weight of the
witnesses’ testimony, not to its admissibility. ‘‘[I]f any
reasonable qualifications can be established, the objec-
tion goes to the weight rather than to the admissibility
of the evidence.’’ (Internal quotation marks omitted.)
State v. Palmer, 196 Conn. 157, 167, 491 A.2d 1075(1985); Campbell v. Pommier, 5 Conn. App. 29, 37–38,
496 A.2d 975 (1985). An expert need not know every-
thing about a topic to be an expert in that field. See,
e.g., Mannino v. International Mfg. Co., 650 F.2d 846,
850 (6th Cir. 1981) (‘‘[T]he expert need not have com-
plete knowledge about the field in question, and need
not be certain. He need only be able to aid the jury in
resolving a relevant issue.’’); State v. Davis, 116 Ohio
St. 3d 404, 426, 880 N.E.2d 31 (2008) (same); Novitski
v. Rusak, 941 A.2d 43, 49 (Pa. Super. 2008) (same); see
also Campbell v. Pommier, supra, 37–38 (trial court
improperly precluded expert with sufficient but
‘‘skimpy’’ credentials because witness’ depth of knowl-
edge goes to weight of testimony). In addition, an expert
need not be the best or most qualified witness for his
testimony to be admissible. See, e.g., Davis v. Margolis,
215 Conn. 408, 413–17, 576 A.2d 489 (1990) (whether
another expert is more qualified does not affect admissi-
bility inquiry); see also Pineda v. Ford Motor Co., 520
F.3d 237, 244 (3d Cir. 2008) (‘‘[i]t is an abuse of discre-
tion to exclude testimony simply because the trial court
does not deem the proposed expert to be the best quali-
fied or because the proposed expert does not have the
specialization that the court considers most appro-
priate’’ [internal quotation marks omitted]). Here, the
plaintiffs established Jelsema’s and Bottiglieri’s ‘‘ ‘rea-
sonable qualifications’ ’’ based on their practical experi-
ence. See State v. Palmer, supra, 167. In light of the
witnesses’ qualifications, the defendants’ concerns are a
proper subject for cross-examination, but do not render
their testimony inadmissible. Milliun v. New Milford
Hospital, 310 Conn. 711, 733, 80 A.3d 887 (2013)
(‘‘[a]lthough there may be other possible causes that
the physicians did not consider, such matters go to
weight, not admissibility’’ of their opinions).
2
Turning to the second requirement for admitting
expert testimony, Jelsema’s and Bottiglieri’s respective
knowledge and experience about the causes of stillbirth
are not common to a layperson. The parties do not
dispute that the cause of stillbirth is not a matter of
common knowledge or experience, and thus requires
expert testimony. See Collette v. Collette, 177 Conn. 465,
471, 418 A.2d 891 (1979) (expert testimony required to
establish cause of miscarriage); see also Aspiazu v.
Orgera, 205 Conn. 623, 631, 535 A.2d 338 (1987) (‘‘[t]he
medical effect upon the human system of the infliction
of injuries, is generally not within the sphere of the
common knowledge of a lay witness’’ [internal quota-
tion marks omitted]).
3
As for the third requirement, Jelsema’s and Bottig-
lieri’s causation opinion testimony would help the jury
in resolving the causation issues in the case. To be
helpful, an expert’s opinion testimony must aid the fact
finder in resolving an issue in the case and have some
basis in fact. See Sullivan v. Metro-North Commuter
Railroad Co., supra, 292 Conn. 158. An expert’s opinion
may not be based on surmise or conjecture. State v.
Nunes, 260 Conn. 649, 672–74, 800 A.2d 1160 (2002);
see also Gordon v. Glass, 66 Conn. App. 852, 856, 785
A.2d 1220 (2001) (‘‘[t]he expert opinion cannot rest on
surmise or conjecture because the trier of fact must
determine probable cause, not possible cause’’ [internal
quotation marks omitted]), cert. denied, 252 Conn. 909,
789 A.2d 994 (2002). Although ‘‘[s]ome facts must be
shown as the foundation for an expert’s opinion . . .
there is no rule of law declaring the precise facts which
must be proved before such an opinion may be received
in evidence. . . . Where the factual basis of an expert
opinion is challenged, therefore, the question before
the court is whether the uncertainties in the essential
facts on which the opinion is predicated are such as to
make an opinion based on them without substantial
value.’’ (Citation omitted; internal quotation marks
omitted.) State v. John, 210 Conn. 652, 677, 557 A.2d
93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed.
2d 50 (1989).
In this case, the parties do not dispute that Jelsema’s
and Bottiglieri’s opinion testimony related directly to
causation, that is, whether Weaver’s gestational diabe-
tes, and Amdur’s failure to diagnose and treat this condi-
tion, caused the decedent’s stillbirth, a necessary part of
the plaintiffs’ medical malpractice claim. See Aspiazu
v. Orgera, supra, 205 Conn. 630 (plaintiff in medical
malpractice case must prove that defendant’s negli-
gence caused plaintiff’s harm).
The defendants claim, however, that the plaintiffs
failed to provide a factual basis for the witnesses’ causa-
tion opinions, rendering them nothing more than sur-
mise or conjecture. We disagree. The plaintiffs’
evidence presented at trial, if credited by a fact finder,
established the following: Weaver’s blood sugar levels
and the size of the decedent at the time of delivery
demonstrate that she suffered from undiagnosed late
term gestational diabetes that was poorly controlled;
mothers with gestational diabetes are at greater risk
for stillbirth; the risk of stillbirth increases when the
mother’s gestational diabetes is undetected or poorly
controlled; the decedent’s uncommonly large size at the
time of birth—more than eleven pounds—indicated that
the decedent was exposed to high levels of blood sugar;
and the current medical understanding is that high
blood sugar results in increased acid levels in the fetus’
bloodstream, which can become progressive and cause
death. The plaintiffs’ evidence, if credited, also sup-
ported the elimination of other possible causes of the
stillbirth besides gestational diabetes, including genetic
defects, physical abnormalities, and infection.
Taken together, these facts provided an ample factual
basis for the witnesses’ respective causation opinions.
See George v. Ericson, 250 Conn. 312, 321–24, 736 A.2d
889 (1999) (nontreating physician may base opinion on
medical records, test results, laboratory reports, and
party’s statements); Aspiazu v. Orgera, supra, 205
Conn. 631 (causal relation between injury and its later
physical effects may be established ‘‘by the direct opin-
ion of a physician, by his deduction by the process of
eliminating causes other than the traumatic agency’’
[internal quotation marks omitted]). The defendants
contest the validity of these facts and the witnesses’
conclusions drawn from them, but those concerns are
properly tested on cross-examination and through the
defendants’ presentation of evidence. They do not ren-
der the challenged testimony inadmissible. See State v.
John, supra, 210 Conn. 677 (conflicting evidence goes
to weight of opinion).
On the basis of these factors, Jelsema and Bottiglieri
were clearly qualified to render an opinion on the cause
of the decedent’s stillbirth. Although we give our trial
courts wide discretion in ruling on the admissibility of
expert testimony, we will reverse a trial court’s decision
when it is based on untenable grounds or when the
expert’s qualifications are clear. See, e.g., Sullivan v.
Metro-North Commuter Railroad Co., supra, 292 Conn.
157–58, 160–61. Here, the trial court’s decision rested on
a clearly incorrect reading of the record, which amply
established the witnesses’ qualifications. Consequently,
we conclude that the Appellate Court’s decision to
affirm the trial court’s exercise of its discretion in deny-
ing the testimony of Jelsema and Bottiglieri was
improper.
B
We next turn to the Appellate Court’s decision to
uphold the trial court’s ruling on the alternative basis
that the plaintiffs did not establish the scientific validity
of the methods used by the witnesses to reach their
opinions. In reaching its decision on this basis, the
Appellate Court conflated the test to determine whether
a witness is qualified to give an opinion; see part II A
of this opinion; with a Porter analysis, which assesses
the validity of the methods that an expert used to reach
his conclusions. Weaver v. McKnight, supra, 134 Conn.
App. 665–68. Although the defendants challenged the
witnesses’ training and experience on the topic of the
cause of stillbirth, the defendants did not challenge the
validity of the scientific method that the witnesses used
to reach their causation opinions. Accordingly, we con-
clude that the Appellate Court’s decision based on a
Porter claim, which was not raised in the trial court,
was improper.
The Appellate Court relied on our decision in Klein
v. Norwalk Hospital, 299 Conn. 241, 9 A.3d 364 (2010),
a case applying a Porter analysis. The Appellate Court
was concerned with the scientific validity of Jelsema’s
and Bottiglieri’s testimony that they could determine
that gestational diabetes was a substantial factor in
causing the decedent’s stillbirth even when a patholo-
gist could not. According to the Appellate Court, ‘‘with
respect to the . . . cases where Jelsema indicated that
he had determined the cause of death when a patholo-
gist could not, there was no evidence regarding the
scientific validity of that opinion.’’ Weaver v. McKnight,
supra, 134 Conn. App. 666. The Appellate Court reached
the same conclusion for Bottiglieri’s testimony,
explaining that ‘‘[a]lthough [Bottiglieri] indicated that
he could determine a cause of death even though a
pathologist could not, the plaintiffs failed to produce
any evidence indicating the validity of that medical opin-
ion.’’ Id., 668. According to the Appellate Court, nothing
supported these opinions except the unsupported asser-
tions of the witnesses, which the court found insuffi-
cient to establish the validity of their claims that they
could determine cause of death despite an inconclusive
determination by a pathologist. Id., citing Klein v. Nor-
walk Hospital, supra, 263.
In Porter, we followed the United States Supreme
Court’s decision in Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d
469 (1993), and held that testimony based on scientific
evidence should be subjected to a flexible test to deter-
mine the reliability of methods used to reach a particu-
lar conclusion. State v. Porter, supra, 241 Conn. 61–66.
A Porter analysis involves a two part inquiry that
assesses the reliability and relevance of the witness’
methods. Id., 63–64. 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 evi-
dence 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 evi-
dence; 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 methodol-
ogy 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.’’ (Internal quotation marks
omitted.) State v. Guilbert, 306 Conn. 218, 231–32, 49
A.3d 705 (2012). Second, ‘‘the proposed scientific testi-
mony 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 pro-
ponent of scientific evidence must establish that the
specific scientific testimony at issue is, in fact, derived
from and based [on] . . . [scientifically reliable] meth-
odology.’’ (Internal quotation marks omitted.) Id., 232.
We take this opportunity to stress that a Porter analy-
sis is separate from our test used to determine whether
a witness is qualified to give expert testimony. As dis-
cussed in part II A of this opinion, all expert witnesses
must be qualified to present expert testimony on a par-
ticular subject. To establish qualifications, the party
presenting an expert witness must show that the wit-
ness has special knowledge or skills, not common to
the average person, that would be helpful to the fact
finder in resolving an issue in the case. See, e.g., State
v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986),
overruled in part on other grounds by State v. Guilbert,
supra, 306 Conn. 226. A Porter analysis, however, is a
‘‘further hurdle,’’ beyond the general qualification
requirements, for admitting expert testimony based on
‘‘scientific’’ evidence and methods. See State v. Guil-
bert, supra, 230–31. Rather than assessing a witness’
qualifications (i.e., his knowledge and experience), a
Porter analysis assesses the witness’ methods (i.e., his
reasoning and procedures) used to reach his conclu-
sions. An expert might be qualified to discuss a particu-
lar topic, but nevertheless have his opinion excluded
because the methods he used to reach that opinion were
unreliable. For example, in Klein v. Norwalk Hospital,
supra, 299 Conn. 262–63, we concluded that the trial
court improperly admitted certain scientific evidence
because it did not meet the requirements of Porter. In
Klein, the defendant offered the opinion of an expert
witness that the plaintiff’s decedent suffered from Par-
sonage Turner Syndrome, a rare condition. Id., 260. The
witness, who had treated patients with the syndrome,
diagnosed the decedent solely based on a review of the
decedent’s medical records. Id. Although the witness
clearly was qualified to testify about the nature of Par-
sonage Turner Syndrome based on his experience, the
defendant did not present any evidence to support the
reliability of the witness’ method for diagnosing the
condition. Id., 262–64. With no evidence to show that
this rare condition could be reliably diagnosed simply
through a review of medical records, we concluded that
the witness’ own experience with treating it was not
enough to prove the validity of his method for diagno-
sis. Id.
The Appellate Court’s reliance on a Porter analysis in
the present case was, however, not appropriate because
the defendants did not raise a Porter claim in the trial
court. To raise a Porter claim, the party opposing the
admission of the scientific evidence must first object
to the validity of the expert’s methods. State v. Porter,
supra, 241 Conn. 87. Once the opponent objects, the
proponent of the scientific evidence must demonstrate
that the methods underlying the evidence are reliable
and, therefore, valid. Id., 84–87. The failure to raise a
Porter claim in the trial court results in waiver of that
claim and it will not be considered for the first time on
appeal. United Technologies Corp. v. East Windsor, 262
Conn. 11, 30, 807 A.2d 955 (2002). The defendants in
this case did not raise a Porter claim in the trial court
because the defendants objected to the admission of
the witnesses’ causation opinions only on the ground
that the witnesses were not qualified by their knowledge
or experience to render an opinion on the topic of the
cause of stillbirth. The trial court therefore did not hold
a hearing, receive testimony, or render a decision on
the validity of the witnesses’ methods for determining
the cause of stillbirth. By assessing the witnesses’ meth-
ods for the first time on appeal, the Appellate Court
essentially deprived the plaintiffs of the opportunity to
present evidence supporting their methods for
determining the cause of stillbirth and improperly held
this lack of evidence against the plaintiffs.3
C
In light of our conclusions in parts II A and B of this
opinion, we consider whether the trial court’s improper
exclusion of the plaintiffs’ expert testimony requires
reversal of the judgment and a remand for a new trial.
When a court commits an evidentiary impropriety, we
will reverse the trial court’s judgment only if we con-
clude that the trial court’s improper ruling harmed the
plaintiffs. Sullivan v. Metro-North Commuter Railroad
Co., supra, 292 Conn. 158. In a civil case, a party proves
harm by showing that the improper evidentiary ruling
likely affected the outcome of the proceeding. Poulos
v. Pfizer, Inc., 244 Conn. 598, 614, 711 A.2d 688 (1998).
We conclude that the trial court’s decision harmed the
plaintiffs in this case. The preclusion of the plaintiffs’
causation evidence formed the basis for the trial court’s
decision to grant the defendants’ motion for a directed
verdict and to render judgment in the defendants’ favor.
With that causation evidence, the plaintiffs likely would
have sustained their burden of proof, resulting in the
denial of the defendants’ motion for a directed verdict
and allowing them to submit their case to the jury. The
plaintiffs are therefore entitled to a new trial.
III
In addition to their dispositive claim on appeal, the
plaintiffs also have raised three additional evidentiary
claims on issues previously addressed by the trial court
and that are likely to arise again on remand. Specifically,
the plaintiffs claim that the trial court improperly: (1)
precluded a treating physician from testifying about his
opinion that Weaver developed gestational diabetes in
the later stages of her pregnancy; (2) precluded a treat-
ing nurse from testifying about her ‘‘suspicion’’ that
Weaver had gestational diabetes and her concerns
about the treatment given by Amdur; and (3) allowed
the defendants to question Jelsema about a censure he
received from the American College of Obstetricians
and Gynecologists (College), a voluntary membership
professional organization. The Appellate Court did not
address these issues because it affirmed the trial court’s
judgment rendered in favor of the defendants. In light
of our decision to remand the case for a new trial, and
because these issues are likely to arise again on remand,
we address them here, in turn.
A
In addition to expert testimony from Jelsema and
Bottiglieri, the plaintiffs offered McKnight, the physi-
cian who delivered the decedent, to testify that Weaver
suffered from late term gestational diabetes, an opinion
McKnight expressed to Weaver while she was still in
the hospital after her cesarean section. After dis-
covering that the decedent had died in utero, McKnight
ordered certain tests to look for a cause. Results from
these tests showed that Weaver had elevated blood
sugar levels when she came in for delivery, suggesting
poor blood sugar control. Within one day of the delivery,
while Weaver was still in the hospital, McKnight spoke
with Weaver and told her that ‘‘it looks like she had
developed poor [blood] sugar control at the end of her
pregnancy . . . .’’ McKnight testified at his deposition
that, at the time he spoke with Weaver, he had formed
the opinion that she had developed gestational diabetes
in the later stages of her pregnancy.
The defendants moved to preclude the plaintiffs from
offering McKnight’s opinions into evidence. The defen-
dants argued that McKnight’s opinion that Weaver had
gestational diabetes related to the standard of care and
could not be admitted because: (1) the plaintiffs did
not disclose McKnight as a standard of care expert; and
(2) his opinions were based on information not available
to Amdur. The defendants feared that the plaintiffs
would use McKnight’s opinion about Weaver’s condi-
tion as improper standard of care evidence by pre-
senting ‘‘McKnight as a treating physician who reached
a conclusion that the [plaintiffs claim Amdur] negli-
gently failed to reach.’’ The plaintiffs responded that
McKnight’s opinion about Weaver’s condition was not
a standard of care opinion. The plaintiffs offered it
instead to resolve a key factual dispute in the case,
namely, whether Weaver in fact had gestational diabe-
tes, a fact the defendants contested, which related to
the issue of causation.4
The trial court granted the defendants’ motion, appar-
ently concluding that McKnight’s opinion related to the
standard of care issue and was impermissible. The trial
court explained its decision as follows: ‘‘I’m going to
grant the motion in limine to preclude the [plaintiffs]
from asking [McKnight] questions as to the standard of
care or that relate to the standard of care in this case.
That includes opinions which he may have arrived at.
It does not preclude, however, [McKnight] from being
a witness in this case as to the facts that he was aware
of or his conduct or tests that he may or may not have
ordered but he may not be asked his opinion as to
those facts as it relates to whether or not [Weaver] had
gestational diabetes.’’ The trial court also precluded the
plaintiffs from asking McKnight why he ordered any
tests, including those to determine Weaver’s blood
sugar levels, or whether the test results were elevated
or significant to him.
We agree with the plaintiffs that the precluded opin-
ion testimony was not a standard of care opinion and
that the trial court abused its discretion in concluding
otherwise. Standard of care opinions establish two criti-
cal elements of a medical malpractice claim: (1) what
the standard of care required the defendant to do in
the particular circumstances of the case; and (2)
whether the defendant deviated from that standard. See
Dimmock v. Lawrence & Memorial Hospital, Inc., 286
Conn. 789, 813, 945 A.2d 955 (2008) (to succeed in
malpractice claim, plaintiff must prove: ‘‘[1] the requi-
site standard of care for treatment, [2] a deviation from
that standard of care, and [3] a causal connection
between the deviation and the claimed injury’’ [internal
quotation marks omitted]). The plaintiffs did not offer
any opinion from McKnight on any of those issues.
Indeed, the plaintiffs expressly represented that they
would not offer any opinion from McKnight on any of
the elements of a malpractice action, namely: (1) what
the standard of care required of Amdur in the circum-
stances; (2) whether Amdur’s conduct deviated from
that standard; and (3) whether that deviation caused
the decedent’s stillbirth. The plaintiffs, instead, offered
McKnight’s opinion, formed at the time he treated
Weaver, that she had gestational diabetes. Our courts
previously have allowed treating physicians to testify
to opinions formed during treatment when those opin-
ions do not constitute standard of care opinions. See,
e.g., Wyszomierski v. Siracusa, 290 Conn. 225, 233–36,
963 A.2d 943 (2009) (upholding trial court’s decision to
allow treating physician to testify about opinions
formed during treatment, but not about standard of
care); cf. Milliun v. New Milford Hospital, supra, 310
Conn. 741 and n.20 (noting, without reviewing, Appel-
late Court’s conclusion that treating physicians can tes-
tify to opinions formed during treatment); see also Lane
v. Stewart, 46 Conn. App. 172, 176, 698 A.2d 929 (1997)
(‘‘[t]here is no justification for a rule that would wholly
exempt experts from placing before a tribunal factual
knowledge relating to the case in hand [or] opinions
already formulated’’ [internal quotation marks omit-
ted]), cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).
To be sure, McKnight’s opinion would have helped
establish that gestational diabetes caused the dece-
dent’s stillbirth, a fact relevant to the plaintiffs’ causa-
tion theory. Nevertheless, its relevance to the plaintiffs’
causation theory does not turn McKnight’s opinion into
one on the standard of care. To the extent that there
was any danger that the jury might misuse McKnight’s
opinion on Weaver’s condition to determine how Amdur
should have acted in this case, that danger could have
been addressed with a limiting instruction rather than
precluding the testimony altogether. Accordingly, we
conclude that the trial court abused its discretion by
precluding it on the basis that McKnight’s opinion was
an improper standard of care opinion.
The defendants alternatively claim that we should
uphold the trial court’s decision to preclude McKnight’s
opinion about Weaver’s condition because it was not a
proper expert opinion, stated to a degree of probability.5
The defendants, citing to portions of McKnight’s deposi-
tion transcript, posit that McKnight opined only that
test results were ‘‘simply ‘suggestive’ ’’ of gestational
diabetes, but did not state an opinion, based on a reason-
able degree of medical probability, that Weaver, in fact,
had gestational diabetes. We disagree.
McKnight clearly expressed an opinion during his
deposition that Weaver developed gestational diabetes
in the late stages of her pregnancy. ‘‘Expert opinions
must be based upon reasonable probabilities rather
than mere speculation or conjecture if they are to be
admissible in establishing causation. . . . To be rea-
sonably probable, a conclusion must be more likely
than not. . . . Whether an expert’s testimony is
expressed in terms of a reasonable probability . . .
does not depend upon the semantics of the expert or
his use of any particular term or phrase, but rather, is
determined by looking at the entire substance of the
expert’s testimony.’’ (Emphasis omitted; footnote omit-
ted; internal quotation marks omitted.) Milliun v. New
Milford Hospital, supra, 310 Conn. 730. At his deposi-
tion, McKnight testified that he told Weaver while she
was in the hospital that ‘‘it looks like she had developed
poor [blood] sugar control at the end of her pregnancy
. . . .’’ The plaintiffs’ counsel then asked McKnight: ‘‘So
as of that point in time [when] you had the conversation
with [Weaver], was it your opinion that she did develop
gestational diabetes in the later stages of her preg-
nancy?’’ McKnight answered: ‘‘Yes.’’ McKnight further
testified that he based his opinion on the test results
showing that Weaver had above normal blood sugar
levels and the unusually large size of the decedent when
delivered. Notably, McKnight was confident enough in
his opinion that he relayed it to Weaver and told her
that ‘‘if she were to have another pregnancy we would
want to watch [her blood sugar control].’’ This testi-
mony, taken together, sufficiently establishes that
McKnight held his opinion to a reasonable degree of
probability. See Milliun v. New Milford Hospital, supra,
729–33 (medical reports stating physician’s ‘‘opinion’’
about patient’s condition and basis for that opinion
sufficient to satisfy probability requirement). We there-
fore disagree that the trial court could have precluded
the opinion on this basis.
B
In addition to McKnight, the plaintiffs also offered the
testimony of Hess, the nurse who attended to Weaver on
her regular prenatal visit the week before her cesarean
section. Around the time of that visit, Hess noticed that
Weaver had tested positive for high levels of sugar in
her urine and that an ultrasound showed that the fetus
was unusually large for its gestational age. During her
deposition, Hess testified that, after reviewing the test
results, she had a ‘‘suspicion that [Weaver] could poten-
tially’’ have uncontrolled gestational diabetes and called
Amdur to notify him of the results. Hess further testified
that she was surprised when Amdur did not order any
further tests to assess the fetus’ health, but, instead,
instructed Hess to schedule Weaver for a cesarean sec-
tion the following week.
The defendants moved to preclude Hess’ opinions
about her ‘‘suspicion’’ and ‘‘surprise’’ on the same
grounds that they moved to exclude McKnight’s opinion
testimony. The trial court granted the motion,
explaining that Hess could testify about ‘‘whatever acts
she did or didn’t do in connection with her interaction
with [Amdur]’’ but could not testify to her ‘‘expecta-
tions, impressions, concerns, [or] suspicions’’ because
they related to standard of care and could not properly
be offered on that basis.
The trial court properly exercised its discretion in
precluding these opinions. Unlike McKnight’s opinion,
the plaintiffs offered Hess’ testimony about her suspi-
cion and her surprise to criticize Amdur’s actions under
the circumstances. Specifically, unlike the plaintiffs’
offer of McKnight’s testimony to resolve the factual
issue of whether Weaver actually had gestational diabe-
tes, the plaintiffs told the trial court that they were
offering Hess’ ‘‘suspicion’’ that Weaver had gestational
diabetes to prove that Amdur also should have sus-
pected this condition at the time he told Hess to sched-
ule a cesarean section for the following week.6 In
addition, Hess’ ‘‘surprise’’ that Amdur did not order
further testing at that time to assess the fetus’ health
states Hess’ opinion about what Amdur should have
done under the circumstances. This testimony bears on
the level of care that Hess believed Amdur should have
exercised (i.e., whether Amdur should also have sus-
pected that Weaver had gestational diabetes) and
whether he deviated from that standard by failing to
detect Weaver’s condition and by not taking further
steps to assess the fetus’ health. The plaintiffs did not,
however, disclose or qualify Hess as a standard of care
expert, rendering this testimony inadmissible. See, e.g.,
Friedman v. Meriden Orthopaedic Group, P.C., 272
Conn. 57, 69, 861 A.2d 500 (2004); Wright v. Hutt, 50
Conn. App. 439, 450–51, 718 A.2d 969, cert. denied, 247
939, 723 A.2d 320 (1998). The trial court thus acted
within its discretion by precluding this testimony
from Hess.
C
The plaintiffs also claim that the trial court improp-
erly allowed the defendants to question Jelsema about a
censure he received from the College. Jelsema testified
that he is affiliated with several professional organiza-
tions, including the College, which is a private organiza-
tion whose members are obstetricians and
gynecologists. It is not a professional licensing board,
and membership in the College is entirely voluntary.
Jelsema has been a member of the College for more
than twenty years. Currently, he serves as an editor
for one of the organization’s publications. The College
censured him in 2009 for violating a section of its Code
of Professional Ethics that prohibited any member who
serves as an expert witness from testifying falsely and
about matters outside the member’s area of expertise.
During questioning at trial, outside the presence of the
jury, Jelsema testified that he had been censured, but
he denied that he had ever testified falsely or about
matters beyond his area of expertise. He also testified
that, notwithstanding the censure, no court had ever
cited him for perjury and, in the case at issue in the
censure, the court admitted Jelsema’s opinions into evi-
dence. There is no evidence in the record that the cen-
sure has affected Jelsema’s membership status in the
College. His membership was not suspended or termi-
nated, and he remains a full member. The trial court,
over the plaintiffs’ objection, nevertheless allowed the
defendants to question Jelsema about the censure after
concluding that ‘‘it’s clearly relevant to the veracity of
the witness . . . .’’7
The plaintiffs argue that the admission of this testi-
mony was improper because the censure is improper
extrinsic evidence of alleged prior misconduct. The
plaintiffs acknowledge that under our rules of evidence,
a party may ask a witness about prior misconduct if
that misconduct bears on the witness’ credibility. The
plaintiffs assert, however, that a party may not use
extrinsic evidence to prove the misconduct and that
allowing the defendants to question Jelsema about the
censure is tantamount to admitting extrinsic evidence
to prove he testified falsely and beyond his expertise
in the prior case. We agree with the plaintiffs.
We first set forth our standard of review. ‘‘To the
extent [that] a trial court’s admission of evidence is
based on an interpretation of [our law of evidence], our
standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.
. . . The trial court has wide discretion to determine
the relevancy of evidence and the scope of cross-exami-
nation. . . . Thus, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing[s] [on these bases] . . . . In determining whether
there has been an abuse of discretion, the ultimate
issue is whether the court . . . reasonably [could have]
conclude[d] as it did.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Davis, 298 Conn. 1, 10–
11, 1 A.3d 76 (2010).
Our evidentiary rules generally prohibit the use of
character evidence to prove that a person has acted
in conformity with a character trait on a particular
occasion, subject to limited exceptions. See Conn. Code
Evid. § 4-4 (a). One exception allows the admission of
evidence of a witness’ character for ‘‘truthfulness or
untruthfulness to impeach or support the credibility of
the witness.’’ Conn. Code Evid. § 4-4 (a) (3). One method
for impeaching a witness’ credibility allows a party to
cross-examine a witness about the witness’ prior mis-
conduct (other than a felony conviction, which is gov-
erned by other rules), subject to certain limitations:
‘‘First, cross-examination may only extend to specific
acts of misconduct other than a felony conviction if
those acts bear a special significance upon the issue
of veracity . . . . Second, [w]hether to permit cross-
examination as to particular acts of misconduct . . .
lies largely within the discretion of the trial court. . . .
Third, extrinsic evidence of such acts is inadmissible.’’
(Internal quotation marks omitted.) State v. Chance,
236 Conn. 31, 60, 671 A.2d 323 (1996); see also Conn.
Code Evid. § 6-6 (b) (2). Under these limitations, the
only way to prove misconduct of a witness for impeach-
ment purposes is through examination of the witness.
See, e.g., Martyn v. Donlin, 151 Conn. 402, 408, 198
A.2d 700 (1964). The party examining the witness must
accept the witness’ answers about a particular act of
misconduct and may not use extrinsic evidence to con-
tradict the witness’ answers. State v. Chance, supra, 60.
Turning to the present case, the first two require-
ments for prior misconduct impeachment were met.
First, the censure from the College is relevant to
Jelsema’s credibility. A panel of the College’s members
concluded that Jelsema violated the organization’s rules
of conduct by, among other things, testifying falsely as
an expert witness in a previous case. A claim that the
witness gave false testimony in a prior case is directly
relevant to a witness’ credibility. See, e.g., State v. Bova,
240 Conn. 210, 223, 690 A.2d 1370 (1997). Second, the
trial court exercised its discretion to allow the defen-
dants to cross-examine Jelsema about his allegedly false
testimony in the prior case.
The third requirement presents a more difficult ques-
tion because it is not clear under our law whether
allowing the defendants to question Jelsema about his
censure is equivalent to admitting extrinsic evidence
of the prior misconduct. Our case law clearly allows a
party to ask a witness whether the witness previously
engaged in the alleged bad act. State v. Chance, supra,
236 Conn. 60–61. It also clearly prohibits a party from
introducing exhibits or calling another witness to prove
that the witness committed the prior bad act. Id. The
issue in the present case, however, lies somewhere
between these two extremes: whether the prohibition
on extrinsic evidence precludes cross-examination of
the witness about another’s determination that the wit-
ness acted untruthfully. We have not been pointed to,
and are not aware of, any cases from this state directly
addressing this question. Several of our trial courts,
with the exception of the trial court in this case, have,
however, refused to allow a party to cross-examine a
witness about a censure issued to the witness by a
voluntary membership organization, finding any testi-
mony about the censure to be irrelevant and based on
unduly prejudicial hearsay. See, e.g., D’Attilo v. Viscar-
ello, Superior Court, judicial district of Waterbury,
Docket No. UWY-CV-05-4010135S (April 8, 2009); Sher-
wood v. Ogiela, Superior Court, judicial district of
Waterbury, Docket No. X02-CV98-0163648S (March 9,
2007); Hall v. Mansfield OB/GYN Associates, P.C.,
Superior Court, judicial district of Tolland, Docket No.
X07-CV02-78138 (May 2, 2005).
Commentators and courts in other jurisdictions have
addressed this question and generally have concluded
that ‘‘counsel should not be permitted to circumvent
the no-extrinsic-evidence provision by tucking a third
person’s opinion about prior acts into a question asked
of the witness who has denied the act.’’ S. Saltzburg,
‘‘Trial Tactics: Impeaching the Witness: Prior ‘Bad Acts’
and Extrinsic Evidence,’’ 7 Crim. Just. 28, 31 (Winter
1993). The commentary to the federal Rules of Evi-
dence, citing the Saltzburg article, expressly prohibits
a party from questioning a witness about any conse-
quences arising from the alleged misconduct. Fed. R.
Evid. 608, commentary to 2003 amendment (‘‘[T]he
extrinsic evidence prohibition of [r]ule 608 [b] bars any
reference to the consequences that a witness might
have suffered as a result of an alleged bad act. For
example, [r]ule 608 [b] prohibits counsel from men-
tioning that a witness was suspended or disciplined for
the conduct that is the subject of the impeachment,
when that conduct is offered only to prove the character
of the witness.’’). According to Professor Charles T.
McCormick, ‘‘[i]t is improper to inquire whether the
witness was ‘fired,’ ‘disciplined,’ or ‘demoted’ for the
alleged act—those terms smuggle into the record
implied hearsay statements by third parties who may
lack personal knowledge.’’ 1 C. McCormick, Evidence
(6th Ed. 2006) § 41, p. 183. The Third Circuit Court of
Appeals squarely addressed this issue in United States
v. Davis, 183 F.3d 231, 257 n.12 (as amended by slip
opinion, 197 F.3d 662, 663 n.1) (3d Cir. 1999), and con-
cluded that, during cross-examination of a police offi-
cer, ‘‘the government cannot make reference to [the
witness’] forty-four day suspension or that Internal
Affairs found that he lied about the [prior] incident.
The government needs to limit its cross examination
to the facts underlying those events. . . . If he denies
that such events took place, however, the government
cannot put before the jury evidence that he was sus-
pended or deemed a liar by Internal Affairs.’’ (Emphasis
in original.) See also United States v. Holt, 486 F.3d
997, 1001–1002 (7th Cir. 2007) (trial court properly pre-
cluded party from examining witness about suspension
for prior misconduct).8
Professor Colin C. Tait and Judge Eliot D. Prescott,
in their treatise about Connecticut evidence law, also
agree that a witness cannot be asked about the opinions
of others regarding the alleged misconduct. C. Tait &
E. Prescott, Connecticut Evidence (4th Ed. 2008)
§ 6.32.5, p. 362. They refer to this court’s decision in
State v. Bova, supra, 240 Conn. 210, as an example. In
Bova, the court upheld a trial court’s decision to pre-
clude a party from asking a police officer about another
case in which a judge commented that another witness
was more credible than the police officer. Id., 222–24.
This court concluded that the judge’s comment in the
other case did not meet the first requirement for admit-
ting misconduct testimony because the judge made no
express finding that the officer lied, and therefore the
comment did not sufficiently relate to the officer’s credi-
bility. Id. Professor Tait and Judge Prescott go further
in their treatise, explaining that counsel could not have
asked the officer about the judge’s comment ‘‘[e]ven if
the judge had found that the officer lied as a witness
[because] that finding is not a conviction of perjury.
Such conduct, not being a conviction, can be proved
only by questions addressed to the witness, i.e., ‘Did you
lie in case X?’ If the witness denies such misconduct, the
questioner must ‘take’ the witness’s answer and cannot
introduce extrinsic evidence.’’ C. Tait & E. Prescott,
supra, p. 362; but see footnote 7 of this opinion.
The reasons for prohibiting such questions are the
same reasons for precluding extrinsic evidence in the
first place. Prohibiting a party from introducing extrin-
sic evidence of misconduct, either through the witness,
exhibits, or other witnesses, prevents a trial within a
trial on the collateral question of whether the witness
did, in fact, commit the alleged misconduct. See, e.g.,
1 C. McCormick, supra, pp. 182–84; 81 Am. Jur. 2d
767, Witnesses § 867 (2004). Such a minitrial about a
collateral issue distracts from the main issues at trial,
wastes the court’s and the jury’s time, and is frequently
based on hearsay evidence of questionable value. 1 C.
McCormick, supra, p. 183 (allowing parties to cross-
examine witness about extrinsic proof of misconduct
will ‘‘smuggle into the record implied hearsay state-
ments by third parties who may lack personal knowl-
edge’’); 81 Am. Jur. 2d, supra, § 867, p. 767 (‘‘[s]uch
evidence is rejected because of the confusion of issues
and the waste of time that would be involved’’). The
Third Circuit described the risk as follows: ‘‘Allowing
such a line of questioning not only puts hearsay state-
ments before the jury, it injects the views of a third
person into the case to contradict the witness. This
injection of extrinsic evidence not only runs afoul of
[r]ule 608 (b), but also sets the stage for a mini-trial
regarding a tangential issue of dubious probative value
that is laden with potential undue prejudice.’’ United
States v. Davis, supra, 183 F.3d 257 n.12, as amended
by 197 F.3d 663 n.1; see also United States v. Holt, supra,486 F.3d 1001–1002 (‘‘asking [the witness] whether the
police department had punished him would introduce
the opinion of members of the police department’’ and
‘‘interject hearsay into the proceedings’’).
The facts of the present case provide a fitting exam-
ple. Allowing the defendants to go beyond asking
Jelsema whether he lied in the underlying case by asking
him also about the College censure will turn his testi-
mony into a minitrial on the significance and reliability
of the censure. Furthermore, the minitrial would consist
almost entirely of Jelsema’s testimony about the hear-
say opinions of certain members of the College who
lacked personal knowledge about Jelsema’s underlying
conduct in the prior case. The plaintiffs contend that
the censure is unreliable because it is the product of
a biased organization and a proceeding that provided
Jelsema with no meaningful due process. According to
the plaintiffs, the College spends significant resources
lobbying for tougher medical malpractice liability caps
to protect obstetricians and gynecologists from liability.
The plaintiffs also argue that the College’s censure pro-
ceedings are intended to deter its members from testi-
fying on behalf of plaintiffs in malpractice cases, citing
evidence that the organization has censured only mem-
bers that testified for plaintiffs. Furthermore, Jelsema
testified that he was not provided a meaningful opportu-
nity to defend himself: he could not speak for more
than thirty minutes before the disciplinary panel, could
not call expert witnesses in his favor, and could not
cross-examine witnesses against him. Jelsema also
denies that he testified falsely in the prior case. The
defendants disputed these claims and cross-examined
Jelsema, using the College’s procedures and publica-
tions, to challenge his characterization of the censure
proceedings. This is exactly the type of time wasting
dispute over a collateral issue that the bar on extrinsic
evidence is intended to prevent.
On the basis of these considerations, we conclude
that the prohibition on introducing extrinsic evidence
to contradict a witness who has denied the alleged prior
misconduct extends to cross-examining that witness
about the opinions of third parties regarding that mis-
conduct and whether the witness suffered any conse-
quences as a result.9 We previously have held that a
party can ask questions of a witness about the underly-
ing misconduct, but may not introduce evidence to con-
tradict the witness’ answers. State v. Chance, supra,
236 Conn. 60; Demers v. State, 209 Conn. 143, 157,
547 A.2d 28 (1988) (‘‘if on cross-examination a witness
denies having engaged in . . . prior acts of miscon-
duct, the examiner must accept the answer and is pro-
hibited from offering extrinsic evidence to prove such
acts’’). Our conclusion is consistent with that principle.
Turning back to the present case, we conclude that
the testimony concerning the censure by the College
is extrinsic evidence of an alleged prior misconduct
and, thus, inadmissible. The alleged misconduct at issue
here was Jelsema’s testimony in the prior case, not the
censure itself. When asked at trial, Jelsema denied that
he testified falsely or beyond his expertise in the prior
trial. Nevertheless, the trial court allowed the defen-
dants to question Jelsema about the censure, using the
fact of the censure to contradict Jelsema’s denial and
prove that he had testified falsely and beyond his exper-
tise in a prior case. Jelsema’s censure is extrinsic evi-
dence of the alleged bad act because it reflects the
opinion of certain of the College’s members that
Jelsema did, in fact, commit the alleged bad acts. The
defendants could not have called the members of the
College grievance committee to testify about the cen-
sure, nor could they have introduced documents
reflecting the censure into evidence. State v. Chance,
supra, 236 Conn. 60–61. We see no principled reason
for allowing the defendants to circumvent these prohibi-
tions by presenting that same evidence through
Jelsema. The collateral nature of the censure, and the
risk that its admission will lead to a minitrial about its
reliability are the same regardless of how the censure
is admitted into evidence. Accordingly, we conclude
that the trial court improperly permitted the defendants
to question Jelsema about the censure.
The defendants argue, in the alternative, that the cen-
sure was also relevant to Jelsema’s qualifications. We
disagree. The censure did not affect Jelsema’s right to
practice medicine because the College is not a profes-
sional licensing organization; membership is strictly
voluntary. Nor has the censure affected Jelsema’s mem-
bership in that organization. He remains a member and
serves as an editorial consultant for one of its publica-
tions. The plaintiffs represented to the trial court that
they would not use Jelsema’s membership in the College
to help establish his qualifications as an expert in the
field of obstetrics and gynecology if such testimony
would ‘‘[open] the door’’ to allowing testimony about
the censure. Most importantly, the censure itself does
not bear on the scope of Jelsema’s knowledge or experi-
ence with the issues in this case. To be sure, part of
the basis for the censure was a finding by the College
that Jelsema testified beyond his expertise in a different
case. But we have no evidence in the record to deter-
mine whether the issues in that other case are at all
similar or related to those in the present case. Notably,
the court in the prior case admitted Jelsema’s expert
testimony, contradicting the finding underlying the cen-
sure. The censure itself therefore does not inform us
about whether Jelsema is qualified on the subjects at
issue in this case. We thus disagree that the censure
was admissible on this alternative basis.
The judgment of the Appellate Court is reversed and
the case is remanded to that that court with direction
to reverse the trial court’s judgment and to remand the
case to that court for a new trial.
In this opinion the other justices concurred.
1
The plaintiffs also filed their action against the named defendant, Craig
McKnight, and Lawrence and Memorial Hospital but later withdrew all claims
against those parties. They are no longer defendants in this action and are
not parties to this appeal.
2
The trial court also implicitly concluded that Jelsema and Bottiglieri
were not qualified to testify about the cause of stillbirth because neither of
them is a board certified pathologist. The Appellate Court properly rejected
this argument. See Weaver v. McKnight, supra, 134 Conn. App. 665. Special-
ized certifications or degrees are not prerequisites to qualification for medi-
cal causation opinions. Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d
887 (1975) (‘‘[i]t is the scope of the [witness’] knowledge and not the artificial
classification by title that should govern the threshhold question of admissi-
bility’’); but see General Statutes § 52-184c (specializations relevant to admis-
sion of standard of care opinion).
3
The Appellate Court likely turned to a Porter analysis because the defen-
dants challenged the factual basis for the witnesses’ opinions. But rather
than reviewing whether the experts’ opinions had a basis in relevant facts,
the Appellate Court analyzed the validity of the witnesses’ methods used to
reach their opinions based on those facts. The ‘‘factual basis’’ inquiry is,
however, not a ‘‘backdoor’’ for introducing a Porter claim into the case
when that issue has not previously been raised. As described in part II A 3
of this opinion, the factual basis inquiry is part of determining an expert’s
qualification to render an opinion. One of the requirements for qualifying
an expert is that his expertise and opinions must be helpful to the fact
finder. To be helpful, an expert opinion must have some basis in relevant
facts—whether those facts are in the record or presented through a hypothet-
ical question—to ensure that the opinion is not entirely speculative or irrele-
vant to the issues in the case. See, e.g., State v. Asherman, 193 Conn. 695,
716–17, 478 A.2d 227 (1984); see also Milliun v. New Milford Hospital,
supra, 310 Conn. 730 n.13 (expert opinion must be based on relevant facts
supported by evidence). For example, in Glaser v. Pullman & Comley, LLC,
88 Conn. App. 615, 629, 871 A.2d 392 (2005), a legal malpractice case, the
Appellate Court upheld a trial court’s preclusion of an expert opinion about
Connecticut law when the witness testified that he did not base his opinion
on Connecticut law, but instead used ‘‘national standards.’’ (Internal quota-
tion marks omitted.) Because the issue in the malpractice case involved
Connecticut law, the expert’s opinion lacked a valid basis in relevant facts
and therefore would have been unhelpful to the jury. Id.4
The defendants contend that the plaintiffs did not argue in the trial court
that McKnight’s opinion related to causation and, therefore, are precluded
from making this argument on appeal. We disagree. The plaintiffs repeatedly
made this assertion before the trial court during the argument on the defen-
dants’ objection to the admission of McKnight’s opinion testimony.
5
The trial court did not base its decision on this argument and the defen-
dants did not raise it as an alternative ground for affirming the trial court’s
decision. Nevertheless, because the parties have briefed this alternative
ground and the plaintiffs have not objected to our review of it, we address
it here. See, e.g., Milliun v. New Milford Hospital, 129 Conn. App. 81, 99
n.13, 20 A.3d 36 (2011).
6
The trial court also could have properly precluded this testimony because
Hess’ suspicion did rise to the level of an opinion held to a reasonable
degree of medical probability. Hess repeatedly testified during her deposition
that she had a ‘‘suspicion’’ about the ‘‘possibility’’ that Weaver developed
gestational diabetes, but did not testify that she came to the conclusion that
Weaver actually had that condition. The plaintiffs’ counsel acknowledged
this during argument on the defendants’ objection to the admission of her
testimony, telling the trial court that, ‘‘we are not saying [Hess] developed
the opinion within a reasonable degree of medical probability that [Weaver]
had late onset gestational diabetes, [Hess] did not get involved in subsequent
care, she didn’t reach that point.’’
7
The defendants claim that the record is inadequate for review on this
issue because the trial court did not articulate its basis for allowing the
censure into evidence. We disagree. The trial court expressly stated that it
admitted the censure because it was relevant to the credibility of the witness,
which directly implicates our rules of impeachment for credibility using
prior acts of misconduct. See Conn. Code Evid. §§ 4-4 and 6-6. We therefore
conclude that the record sufficiently reveals the basis for the trial court’s
decision and is adequate for our review.
8
Some courts, however, have held that a party may cross-examine a
witness about consequences of misconduct when the witness has been
found to have testified falsely by a court or a state administrative agency,
but was not convicted of perjury. See, e.g., United States v. Cedeno, 644
F.3d 79, 82–83 (2d Cir. 2011); United States v. Dawson, 434 F.3d 956, 958–59
(7th Cir. 2006); United States v. Whitehead, 618 F.2d 523, 529–30 (4th Cir.
1980). Because there is no such finding in this case, we do not address
these exceptions.
9
We do not decide whether a witness may be asked about a determination
by a judicial, state administrative agency, or licensing board, not resulting
in a perjury conviction, that the witness testified untruthfully in a prior
proceeding. See footnote 7 of this opinion.