Gostyla v. Chambers , 176 Conn. App. 506 ( 2017 )

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JEFFREY F. GOSTYLA v. BRYAN CHAMBERS
(AC 38943)
Alvord, Keller and Lavery, Js.
Syllabus
The plaintiff sought to recover damages from the defendant for negligence
in connection with personal injuries he had sustained in a motor vehicle
collision, in which his vehicle was struck by a vehicle driven by the
defendant. In his answer, the defendant admitted that he acted negli-
gently, but left the plaintiff to his proof with regard to the issue of
causation. Prior to trial, the defendant disclosed a biomechanical engi-
neer, M, as an expert witness. The parties conducted a videotaped
deposition of M, and M testified, inter alia, that the motor vehicle acci-
dent was not, to a reasonable degree of scientific and biomechanical
certainty, the cause of the plaintiff’s injuries. Thereafter, the trial court
denied the plaintiff’s motion in limine to exclude the portion of M’s
testimony in which M opined that the collision did not cause the plain-
tiff’s injuries, and the videotaped deposition of M, including M’s testi-
mony regarding causation, was played for the jury at trial. Following
the trial, the jury returned a verdict for the defendant. Subsequently,
the court denied the plaintiff’s motion to set aside the verdict and
rendered judgment for the defendant in accordance with the jury’s ver-
dict, from which the plaintiff appealed to this court. Held:
1. The trial court abused its discretion in admitting M’s testimony concerning
causation, as M’s testimony that this specific plaintiff’s injuries were
not caused by the collision exceeded his expertise in biomechanics and
should have been excluded: although M, as a biomechanical engineer,
was qualified to provide his opinion as to the amount of force generated
by the collision and the types of injuries likely to result from exposure
to that amount of force, M was not a medical doctor, and he did not
possess the reasonable qualifications required to offer a medical opinion
regarding the cause of specific injuries to a particular plaintiff, which
would have required the expertise and specialized training of a medical
doctor; furthermore, the fact that M formulated his opinion in part
through reviewing a subset of the plaintiff’s medical records and other
documents related to the accident did not alter the analysis because the
record did not reflect that M possessed the medical training necessary to
identify the plaintiff’s individual tolerance level and preexisting medical
conditions, both of which could have had an effect on what injuries
resulted from the accident.
2. Although the trial court improperly admitted M’s causation testimony,
the plaintiff failed to provide this court with an adequate record to
determine whether the admission of M’s testimony was harmful; the
plaintiff provided this court with only minimal excerpts from the trial
proceedings, none of which contained the testimony of any witness
other than M, the parties’ summations, or the trial court’s instructions
to the jury, which precluded this court from evaluating the effect of the
evidentiary impropriety in the context of the totality of the evidence
adduced at trial.
Argued April 26—officially released September 19, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained by the plaintiff as a result of the defendant’s
alleged negligence, and for other relief, brought to the
Superior Court in the judicial district of Hartford, where
the court, Elgo, J., denied the plaintiff’s motion to pre-
clude certain evidence; thereafter, the matter was tried
to a jury; verdict for the defendant; subsequently, the
court denied the plaintiff’s motion to set aside the ver-
dict and rendered judgment in accordance with the
verdict, from which the plaintiff appealed to this
court. Affirmed.
Martin McQuillan, for the appellant (plaintiff).
John W. Mills, for the appellee (defendant).
Opinion
LAVERY, J. In this negligence action stemming from a
motor vehicle collision, the plaintiff, Jeffrey F. Gostyla,
appeals from the judgment of the trial court, rendered
after a jury trial, in favor of the defendant, Bryan Cham-
bers. The plaintiff claims that he is entitled to a new
trial because the court improperly allowed one of the
defendant’s expert witnesses, a biomechanical engi-
neer, to provide opinion testimony on a matter that went
beyond the purview of his expertise in biomechanics,
namely, whether the plaintiff’s personal injuries were
caused by the collision. Although we agree that the
challenged testimony was improper, the plaintiff has
not provided us with an adequate record to determine
whether the error was harmful. Accordingly, we affirm
the judgment of the trial court.
The following facts and procedural history are perti-
nent to this appeal. In 2013, the plaintiff commenced
this negligence action seeking compensatory damages
for personal injuries he sustained as a result of a motor
vehicle collision that occurred on May 19, 2011. In his
amended complaint, the plaintiff alleged that he was
operating his vehicle behind the defendant’s dump truck
when the defendant suddenly stopped and began driv-
ing his truck in reverse, colliding with the plaintiff’s
vehicle and pushing it several feet. The plaintiff further
alleged that, as a result of the defendant’s negligence,
he sustained, inter alia, knee and hip injuries and a core
muscle injury in his abdomen that required surgery.1
In his answer, the defendant admitted that he acted
negligently, but left the plaintiff to his proof with regard
to the issue of causation.
Prior to trial, the defendant disclosed Calum McRae, a
biomechanical engineer, as an expert witness. Because
McRae would be unavailable to testify at trial, the par-
ties conducted a videotaped deposition of him on July
24, 2015. The plaintiff did not object to McRae being
considered an expert in the field of biomechanics. Dur-
ing his direct examination, McRae explained that bio-
mechanical engineers use fundamental principles of
physics and engineering to determine the amount of
force necessary to cause certain kinds of injuries and
whether a particular situation generated that level of
force. McRae testified that, after reviewing a multitude
of documents relevant to the plaintiff’s injuries and the
collision,2 he was able to determine that the collision
caused the plaintiff to experience, at the very most, a
g-force of 2.3, slightly less than the force a person would
experience from ‘‘sitting down quickly’’ in a chair.
McRae admitted, however, that he was not qualified to
contest the accuracy of the diagnoses of the plaintiff’s
injuries. The defendant’s counsel then asked: ‘‘[B]ased
upon a reasonable degree of scientific and biomechani-
cal certainty, was the motor vehicle accident in question
here today the cause of the [p]laintiff’s injuries?’’ Over
the plaintiff’s objection, McRae answered: ‘‘No, sir, it
was not.’’ During cross-examination, McRae admitted
that he was not a medical doctor and did not have
experience treating patients for injuries. When asked
whether biomechanical engineers are not qualified to
render medical opinions regarding the precise cause of
a specific injury to a specific individual, McRae replied:
‘‘Well, sir, biomechanical engineers provide biomechan-
ical opinions, not medical opinions, sir. And in that
respect, they opine specifically on individuals.’’
Thereafter, the plaintiff filed a motion in limine seek-
ing to exclude, inter alia, the portion of McRae’s testi-
mony in which he opined that the collision did not
cause the plaintiff’s injuries. The plaintiff asserted that
McRae was not qualified to render such an opinion
because he was not a medical doctor and did not have
experience diagnosing or treating injuries. The court
heard argument on the plaintiff’s motion at a pretrial
hearing on September 1, 2015. After ordering a brief
recess to review, inter alia, the transcript of McRae’s
video deposition, the court ruled that McRae’s causa-
tion testimony was admissible because it was ‘‘relevant
for the purpose [for which] it [was] being offered,’’ and
was ‘‘not a medical opinion regarding causation, but
one based on biomechanical engineering.’’ The court
also noted that the plaintiff’s counsel had an opportu-
nity to highlight McRae’s purported lack of qualifica-
tions to opine on the issue of causation during cross-
examination.
At trial, the defendant played McRae’s video deposi-
tion for the jury, including the portion in which McRae
opined that the plaintiff’s injuries were not caused by
the collision. Following the trial, the jury returned a
verdict for the defendant. The court denied the plain-
tiff’s motion to set aside the verdict and rendered a
judgment for the defendant. This appeal followed.
The plaintiff claims that the court improperly admit-
ted McRae’s opinion testimony on the issue of causation
because McRae, as a biomechanical engineer, was not
qualified to render such an opinion. Although we con-
clude that the court abused its discretion in admitting
McRae’s causation testimony, the plaintiff is not entitled
to a new trial because he has failed to provide us with
an adequate record to determine whether the error had
any effect on the outcome of the trial.
I
We begin by determining whether McRae’s opinion
testimony that the plaintiff’s injuries were not caused
by the collision was improperly admitted. ‘‘[T]he trial
court has wide discretion in ruling on the admissibility
of expert testimony and, unless that discretion has been
abused or the ruling involves a clear misconception of
the law, the trial court’s decision will not be disturbed.
. . . In determining whether there has been an abuse
of discretion, the ultimate issue is whether the court
could reasonably conclude as it did.’’3 (Internal quota-
tion marks omitted.) Vitali v. Southern New England
Ear, Nose, Throat & Facial Plastic Surgery Group,
LLP, 153 Conn. App. 753, 756–57, 107 A.3d 422 (2014).
‘‘Expert testimony should be admitted when: (1) the
witness has a special skill or knowledge directly appli-
cable to a matter in issue, (2) that skill or knowledge
is not common to the average person, and (3) the testi-
mony would be helpful to the court or jury in consider-
ing the issues. . . . [T]o render an expert opinion the
witness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Internal quotation marks
omitted.) Weaver v. McKnight, 313 Conn. 393, 405–406,
97 A.3d 920 (2014). ‘‘[I]f any reasonable qualifications
can be established, the objection goes to the weight
rather than to the admissibility of the evidence.’’ (Inter-
nal quotation marks omitted.) Id., 408.
The plaintiff argues that, despite McRae’s admitted
qualifications to testify as an expert in biomechanical
engineering, his opinion testimony about whether the
collision caused the plaintiff’s injuries was improper
because it went beyond his expertise in biomechanics.
It is well settled that trial courts have discretion to
permit expert witnesses to render opinions as to certain
matters but not others. See, e.g., Sherman v. Bristol
Hospital, Inc., 79 Conn. App. 78, 86, 828 A.2d 1260(2003) (trial court did not abuse its discretion by con-
cluding that expert was qualified to testify as to stan-
dard of care but not as to issue of causation). ‘‘[B]ecause
a witness qualifies as an expert with respect to certain
matters or areas of knowledge, it by no means follows
that he or she is qualified to express expert opinions
as to other fields.’’ Nimely v. New York, 414 F.3d 381,
399 n.13 (2d Cir. 2005). Therefore, ‘‘[t]he issue with
regard to expert testimony is not the qualifications of a
witness in the abstract, but whether those qualifications
provide a foundation for a witness to answer a specific
question.’’ (Internal quotation marks omitted.) Smelser
v. Norfolk Southern Railway Co., 105 F.3d 299, 305 (6th
Cir. 1997).
Our research discloses no Connecticut authority
addressing the qualifications of biomechanical engi-
neers to render opinions on the issue of causation.
Decisions from other courts, however, consistently
have recognized that, although biomechanical engi-
neers are qualified to testify about the amount of force
generated by a collision and the likely effects of that
force on the human body, they are not qualified to
render opinions about whether a collision caused or
contributed to a particular individual’s specific injuries
because they are not medical doctors. For instance, in
Smelser, the Sixth Circuit Court of Appeals held that the
trial court had improperly admitted opinion testimony
from a biomechanical engineer regarding the causes of
the plaintiff’s injuries, which purportedly stemmed from
a motor vehicle accident, because such testimony went
‘‘beyond [his] expertise in biomechanics.’’ Id., 305. The
court concluded that the engineer was qualified to
‘‘[describe] the forces generated in the . . . collision,
and [to testify] in general about the types of injuries
those forces would generate.’’ Id. As to specific causa-
tion, however, the court held that the engineer ‘‘is not
a medical doctor who had reviewed [the plaintiff’s]
complete medical history, and his expertise in biomech-
anics did not qualify him to testify about the cause of
[the plaintiff’s] specific injuries.’’ Id.; see also Rodriguez
v. Athenium House Corp., Docket No. 11 Civ. 5534
(LTS), 2013 WL 796321, *4 (S.D.N.Y. March 5, 2013)
(‘‘this district has held that biomechanical engineers
are not qualified to testify as to whether [an] accident
caused or contributed to any of [the] plaintiff’s injuries,
as this would amount to a medical opinion’’ [internal
quotation marks omitted]); Bowers v. Norfolk Southern
Corp., 537 F. Supp. 2d 1343, 1377 (M.D. Ga. 2007) (‘‘As
a biomechanical engineer, he is qualified to render an
opinion in this case as to general causation, but not as
to specific causation. That is, [he] may testify as to the
effect of locomotive vibration on the human body and
the types of injuries that may result from exposure to
various levels of vibration. However, he may not offer an
opinion as to whether the vibration in [the] [p]laintiff’s
locomotive caused [the] [p]laintiff’s injuries.’’), aff’d,
300 Fed. Appx. 700 (11th Cir. 2008); Yarchak v. Trek
Bicycle Corp., 208 F. Supp. 2d 470, 501 and n.14 (D.N.J.
2002) (admitting testimony from consultant on bio-
mechanics in part because he ‘‘does not purport to offer
testimony regarding the specific medical causation of
the [p]laintiff’s impotence,’’ and agreeing that consul-
tant would be unqualified to provide such testimony);
Combs v. Norfolk & Western Railway Co., 256 Va. 490,
496–97, 507 S.E.2d 355 (1998) (biomechanical engineer
was ‘‘competent to render an opinion on the compres-
sion forces placed on [the plaintiff’s] spine at the time
of the incident,’’ but not to state an opinion regarding
‘‘what factors cause a human disc to rupture and
whether [the plaintiff’s] twisting movement to catch the
toilet could have ruptured his disc’’).
Under the circumstances of the present case and in
light of the foregoing authorities, we conclude that the
trial court abused its discretion in admitting McRae’s
causation testimony. As a biomechanical engineer,
McRae was qualified to provide his opinion as to the
amount of force generated by the May 19, 2011 collision
and the types of injuries likely to result from exposure
to that amount of force. His testimony that this specific
plaintiff’s injuries were not caused by the collision,
however, exceeded his expertise in biomechanics and
should have been excluded. Opinion testimony regard-
ing the cause of specific injuries ‘‘requires the identifica-
tion and diagnosis of a medical condition, which
demands the expertise and specialized training of a
medical doctor.’’ Bowers v. Norfolk Southern Corp.,
supra, 537 F. Supp. 2d 1377. McRae’s causation testi-
mony was, therefore, a medical opinion, not a biome-
chanical one. Because, as he readily admitted, he was
not a medical doctor and did not have experience diag-
nosing or treating injuries, he did not possess the ‘‘rea-
sonable qualifications’’ required to offer such an
opinion. See Weaver v. McKnight, supra, 313 Conn. 408.
That McRae formulated his opinion in part through
reviewing a subset of the plaintiff’s medical records and
other documents related to the accident; see footnote
2 of this opinion; does not alter our analysis. Regardless
of his access to these materials, the record does not
reflect that he possessed the medical training necessary
to identify the plaintiff’s ‘‘individual . . . tolerance
level and [preexisting] medical conditions,’’ both of
which ‘‘could have [had] an effect on what injuries
result[ed] from [the] accident . . . .’’ Smelser v. Nor-
folk Southern Railway Co., supra, 105 F.3d 305; see
also Day v. RM Trucking, Inc., Docket No. 3:11CV400-
J-25 (HLA), 2012 WL 12906568, *1 (M.D. Fla. August
31, 2012) (‘‘biomechanical engineers ordinarily are not
permitted to give opinions about the precise cause of
a specific injury’’ because they are not trained to ‘‘iden-
tify the different tolerance levels and preexisting medi-
cal conditions of individuals’’ [internal quotation marks
omitted]). Accordingly, the trial court could not reason-
ably have concluded that McRae was qualified to testify
about the cause of the plaintiff’s injuries. The court
abused its discretion in failing to exclude the testimony.
II
Despite our conclusion that McRae’s causation testi-
mony was improperly admitted, the plaintiff is not enti-
tled to a new trial because he has not provided us with
an adequate record to evaluate whether the error was
harmful. ‘‘[B]efore a party is entitled to a new trial
because of an erroneous evidentiary ruling, he or she
has the burden of demonstrating that the error was
harmful. . . . The harmless error standard in a civil
case is whether the improper ruling would likely affect
the result. . . . When judging the likely effect of such
a trial court ruling, the reviewing court is constrained
to make its determination on the basis of the printed
record before it. . . . In the absence of a showing that
the [improper ruling] would have affected the final
result, its exclusion is harmless.’’ (Internal quotation
marks omitted.) Desrosiers v. Henne, 283 Conn. 361,
366, 926 A.2d 1024 (2007).
As the appellant in the present case, the plaintiff bore
the burden of providing this court with an adequate
record for review. See Practice Book § 61-10 (a). ‘‘[I]t
is incumbent upon the appellant to take the necessary
steps to sustain [her] burden of providing an adequate
record for appellate review. . . . [A]n appellate tribu-
nal cannot render a decision without first fully under-
standing the disposition being appealed. . . . Our role
is not to guess at possibilities, but to review claims
based on a complete factual record developed by a trial
court.’’ (Internal quotation marks omitted.) Chester v.
Manis, 150 Conn. App. 57, 61, 89 A.3d 1034 (2014).
The plaintiff has failed to meet this burden. He has
provided this court with only three excerpts from the
trial transcript: (1) the parties’ arguments and the trial
court’s ruling on, inter alia, the plaintiff’s motion in
limine to exclude McRae’s causation testimony; (2) the
trial testimony from September 4, 2015, at which
McRae’s videotaped deposition was played for the jury;
and (3) the parties’ arguments on the plaintiff’s motion
to set aside the verdict. The plaintiff has failed to pro-
vide this court with the transcripts of any other witness’
oral testimony and, other than the parties’ arguments
in their briefs, there is no indication which witnesses
testified at trial. In support of their arguments on the
issue of harmful error, the parties rely on, inter alia,
the testimony from the following additional witnesses
who evidently testified at trial: (1) the plaintiff; (2) Wil-
liam Meyers, the plaintiff’s treating physician, who sup-
posedly testified that the plaintiff’s core muscle injury
was caused by the accident; (3) Christopher Lena, the
plaintiff’s other treating physician, who the plaintiff
claims testified that his knee and hip injuries were
caused by the accident; and (4) Alan Daniels, the
defendant’s medical expert, who purportedly testified
that the plaintiff’s core muscle injury was not caused
by the accident.4 The plaintiff has not provided us with
transcripts of the oral testimony provided by any of
these witnesses.5 Nor have we been provided with tran-
scripts of the parties’ summations or the trial court’s
instructions to the jury.
Without these materials, it is impossible for us to
‘‘evaluate the effect of the evidentiary impropriety in
the context of the totality of the evidence adduced at
trial.’’6 (Internal quotation marks omitted.) Hayes v.
Camel, 283 Conn. 475, 489, 927 A.2d 880 (2007); see
Desrosiers v. Henne, supra, 283 Conn. 367–68; Ryan
Transportation, Inc. v. M & G Associates, 266 Conn.
520, 531, 832 A.2d 1180 (2003); Chester v. Manis, supra,
150 Conn. App. 62–63. Accordingly, the plaintiff has
failed to provide us with an adequate record to deter-
mine whether the admission of McRae’s causation testi-
mony was harmful, and we decline to order a new trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
More particularly, the plaintiff’s injuries included (1) a freeing of the
anterior superior acetabular labrum and incomplete attachment of the liga-
mentum teres in his left hip, (2) a meniscal tear in his left knee, and (3)
tears of the rectus abdominis and abductor longus in his left groin area.
2
Specifically, McRae testified that he reviewed the plaintiff’s medical
records, the police and accident reports showing minimal damage to the
plaintiff’s vehicle, the characteristics of the plaintiff and the vehicles involved
in the collision, the position of the plaintiff’s body within his vehicle at the
time of the collision, and other relevant facts revealed by the plaintiff’s
deposition testimony and responses to discovery requests.
3
The plaintiff incorrectly asserts that a plenary standard of review applies
to his claim. ‘‘To the extent a trial court’s admission of evidence is based
on an interpretation of the Code of Evidence, [the] standard of [appellate]
review is plenary. . . . [On the other hand, an appellate court] review[s]
the trial court’s decision to admit evidence, if premised on a correct view
of the law . . . for an abuse of discretion.’’ (Internal quotation marks omit-
ted.) State v. Wright, 107 Conn. App. 85, 88–89, 943 A.2d 1159, cert. denied,
287 Conn. 914, 950 A.2d 1291 (2008). The court’s ruling that McRae’s causa-
tion testimony was admissible turned on whether McRae was qualified to
provide that testimony, rather than on an interpretation of the Code of
Evidence. Accordingly, the abuse of discretion standard applies.
4
The appendix filed in support of the defendant’s brief includes the tran-
script of Daniels’ videotaped deposition, but not the excerpt of the trial
transcript in which the deposition was played for the jury. In any event,
even if we were to assume that the deposition transcript accurately reflects
the testimony played for the jury, the record would still be inadequate to
evaluate whether the evidentiary error was harmful.
5
The fact that these expert medical witnesses completed reports that
were admitted into evidence as exhibits does not cure this problem. We
have no way of knowing the extent to which their reports were consistent
with their testimony at trial. Moreover, the findings recorded in the reports do
not reflect what was elicited from those witnesses during cross-examination.
6
Ordinarily, an analysis of the likely impact of an evidentiary impropriety
on the outcome of a trial ‘‘includes a review of: (1) the relationship of the
improper evidence to the central issues in the case, particularly as high-
lighted by the parties’ summations; (2) whether the trial court took any
measures, such as corrective instructions, that might mitigate the effect
of the evidentiary impropriety; and (3) whether the improperly admitted
evidence is merely cumulative of other validly admitted testimony. . . .
The overriding question is whether the trial court’s improper ruling affected
the jury’s perception of the remaining evidence.’’ (Citations omitted; internal
quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 489–90, 927 A.2d
880 (2007).