Hosein v. Edman

 NERISSA HOSEIN v. SCOT EDMAN ET AL.
(AC 38472)
Sheldon, Keller and Prescott, Js.
Syllabus
The plaintiff sought to recover damages for personal injuries she sustained
when her motor vehicle collided with a motor vehicle owned by the
defendant Department of Transportation and operated by the defendant
E, an employee of the department, in the course of his employment. In
an amended complaint, the plaintiff alleged a claim against the depart-
ment for vicarious liability, claiming that she was traveling southbound
on a roadway in Meriden when the vehicle operated by E moved from
a stopped position on the shoulder into the travel lane and suddenly,
without warning, struck the plaintiff’s vehicle from the right side. Despite
the allegations in the amended complaint, the plaintiff testified at trial
that she never observed the department’s vehicle move, while E testified
that his vehicle was parked when it was struck from behind by the
plaintiff’s vehicle. Following a trial to the court, the trial court rendered
judgment in favor of the department, and the plaintiff appealed to this
court. She claimed that the trial court improperly discredited the testi-
mony of her expert witness, C, an accident reconstructionist, and effec-
tively precluded C’s testimony without affording her an evidentiary
hearing. Held that the plaintiff’s claim that the trial court effectively
precluded C’s testimony was unavailing; although that court initially
sustained several of the department’s objections to C’s testimony, it
ultimately admitted his testimony in full and repeatedly stated to the
parties that it was admitting all of C’s testimony into evidence so that
it could later decide what weight, if any, to afford C’s testimony in
deciding the issues before it, which was within the court’s province to
do as the trier of fact, and even though the trial court ultimately deter-
mined that C’s testimony was based on conjecture and speculation and
did not rely on it in deciding the issues presented, that statement was
indicative of the court’s weighing, considering, and ultimately rejecting
the substance of C’s testimony, not its preclusion of the testimony as
evidence at trial.
Argued April 12—officially released July 25, 2017
Procedural History
Action to recover damages for the named defendant’s
alleged negligence, and for other relief, brought to the
Superior Court in the judicial district of New Haven
and tried to the court, Hon. Howard F. Zoarski, judge
trial referee; judgment for the defendant Department
of Transportation; thereafter, the court, Hon. Howard
F. Zoarski, judge trial referee, denied the plaintiff’s
motion for a new trial, motion to reargue, motion for
articulation, and motion to set aside the verdict, and
the plaintiff appealed to this court; subsequently, the
court, Hon. Howard F. Zoarski, judge trial referee,
issued a corrected memorandum of decision. Affirmed.
Daniel P. Scholfield, with whom, on the brief, was
Brendan J. Keefe, for the appellant (plaintiff).
James E. Coyne, with whom, on the brief, were Col-
leen D. Fries and Joseph M. Walsh, for the appellee
(defendant Department of Transportation).
Opinion
SHELDON, J. The plaintiff, Nerissa Hosein, com-
menced this action against the defendant Department
of Transportation (department) to recover damages for
injuries she allegedly suffered due to the department’s
vicarious negligence on December 14, 2011, in a motor
vehicle collision between her personal automobile and
a department owned vehicle. The plaintiff claimed that
the collision and her resulting injuries were caused by
the negligence of a department employee, Scot Edman,
who was then operating the department’s vehicle in the
course of his employment duties.1 After a bench trial,
the court rendered judgment in favor of the department
on the grounds that the plaintiff had failed to prove her
claim of negligence by a preponderance of the evidence
and, in fact, that the plaintiff’s own negligence was the
proximate cause of the collision and injuries, in that
she had failed to keep a proper lookout and failed to
keep her vehicle under proper control at or about the
time of the collision.
The plaintiff’s sole claim on appeal is that the trial
court erred in completely discrediting the testimony of
her expert witness, an accident reconstructionist, and
thereby ‘‘effectively precluding’’ that witness’ testi-
mony, without affording her an evidentiary hearing pur-
suant to 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). We conclude that the trial court
did not preclude the testimony of the plaintiff’s expert,
but, rather, admitted that testimony in its entirety,
before ultimately deciding not to afford it any weight.
Accordingly, we affirm the judgment of the trial court.
On December 14, 2011, at approximately 9:00 a.m., the
plaintiff was traveling southbound on Frontage Road in
Meriden, approaching the point where it turns into an
on-ramp to Route 15, when she observed the depart-
ment’s vehicle, which was then being operated by
Edman, parked on the grass on the right side of the
roadway. As she was passing by the department’s vehi-
cle, she heard a loud noise, after which her vehicle
flipped over onto its roof, and then began to slide for-
ward and across the road. Although the plaintiff testi-
fied that her attention, as she was passing the
department’s vehicle, was focused forward instead of
to her right, and thus she never saw the department’s
vehicle move, she alleged in her complaint that Edman
‘‘moved [the department’s vehicle] from a stopped posi-
tion on the shoulder [of the roadway and] into the
[travel] lane, suddenly and without warning, and struck
the [plaintiff’s] motor vehicle . . . from the front right
side . . . .’’
The department denied the plaintiff’s allegation that
Edman had caused the collision between her vehicle
and his department owned vehicle by suddenly moving
into the travel lane of the roadway. Edman testified
that, on the morning of the accident, he had been setting
up construction signs along the roadway in preparation
for landscaping work that was scheduled for that day.
Edman testified that his vehicle was parked ‘‘two thirds
in the grass’’ on the side of the road, that its flashing
lights were activated, and that its wheels were ‘‘cocked’’
to the left pursuant to the department’s policy, in order
to prevent harm to workers who might be working on
the side of the road, in the event that the vehicle was
struck from behind. He placed a white sign along the
side of the road that warned of construction ahead,
then returned to his vehicle and fastened his seat belt.
He recalled that he was just about to put his vehicle
into drive when it was struck from behind. He had not
yet looked in his rearview mirror, so he did not see the
plaintiff’s vehicle approach or strike his vehicle. He
testified that his vehicle was pushed twenty to thirty
feet as a result of the impact from the collision. The
right front of the plaintiff’s vehicle impacted the left
rear bumper of the department’s vehicle.2
By way of special defense, the department alleged
that the plaintiff’s own negligence had proximately
caused the collision between her vehicle and the depart-
ment’s vehicle. The department alleged, inter alia, that
the plaintiff had been negligent in failing to keep a
proper lookout, failing to keep her vehicle under reason-
able and proper control and operating her vehicle at a
rate of speed greater than what was reasonable in light
of the width, traffic and use of the roadway. The plaintiff
denied all of the allegations in the department’s spe-
cial defense.
On August 20, 2014, the plaintiff filed a disclosure of
expert witness, pursuant to Practice Book § 13-4, in
which she disclosed her intention to present at trial the
testimony of Alfred Cipriani, an accident reconstruc-
tionist, who would opine that ‘‘the collision was caused
by . . . Edman moving the [department’s vehicle] from
the shoulder of the road into the southbound travel
lane and into the path of [the plaintiff’s vehicle].’’ The
department moved to preclude the testimony of Cipriani
on the sole ground that the plaintiff’s disclosure of
him was untimely, and thus that it would not have an
adequate opportunity to depose him before trial or to
make a later determination as to whether to retain a
defense expert. When, however, the trial was resched-
uled for a later date, the parties were afforded adequate
time to complete discovery and depose Cipriani. There-
fore, the department did not pursue its motion to pre-
clude or seek to preclude Cipriani’s testimony on any
other basis prior to trial.
The case was tried to the court on June 18 and 19,
2015. At trial, the plaintiff called, inter alios, Cipriani
to testify on her behalf. During the direct examination
of Cipriani, the department repeatedly objected to his
testimony on the ground that it was speculative. Ini-
tially, the court sustained many of those objections.
Later, however, upon reminding the parties of its ulti-
mate role in the case as the fact finder, it advised the
parties that it was going to permit Cipriani to testify
fully as to his expert opinions, despite the department’s
objections, so it could hear everything the witness had
to say before deciding what weight, if any, his testimony
truly deserved. On that subject, the court explained its
approach as follows: ‘‘[T]his is a court trial, and I think
there are a lot of objections that have been made back
and forth. And I think, ultimately, the issue regarding
the weight to be given to any conclusion or opinions
through this expert witness would be part of the deci-
sion the court has to make. So . . . at this time, I’m
aware of the [department’s] position about objecting
to all of the testimony. But I’m going to permit it all to
come in, and let me hear what it is, and that will be an
ultimate decision for me to make in this matter.’’
When the plaintiff continued with her direct examina-
tion of Cipriani, the department again objected to the
admission of his testimony on the ground that it was
speculative. In response to that objection, the court
reiterated: ‘‘As I indicated, I’m going to overrule the
objection at this point, based on the statement I made
at the beginning of this proceeding . . . . [Y]ou’ll have
the right to cross-examine the witness, and then ulti-
mately it’ll be the court’s decision regarding the weight
to be given to the total testimony.’’ The plaintiff then
resumed her direct examination of Cipriani.
Despite the court’s clear rulings rejecting the depart-
ment’s objections, the department again objected to
Cipriani’s testimony on the ground that it was ‘‘clearly
speculative.’’ In response, the court once again reiter-
ated: ‘‘Well, again, for the reasons I’ve stated earlier,
I’m going to overrule your [objection]. And, at this point,
I’m going to continue to hear this witness’ testimony.’’
The court further stated: ‘‘I’m going to permit cross-
examination by defense counsel at the appropriate time.
But I want to hear your evidence on direct.’’
After Cipriani stated certain of his opinions, the
department moved, repeatedly, that those opinions be
stricken from the record on the ground that they were
speculative. Each time, the court denied the depart-
ment’s motion, stating that it would hear all the chal-
lenged testimony, then determine, as the ultimate fact
finder, what weight to give to that testimony. The court
told the department, ‘‘I fully want to hear what it is
[Cipriani] has to say and what his opinion is. . . . [I]t’s
for the court to determine the weight to be given to
the opinion.’’ The court thus admitted Cipriani’s direct
examination testimony in its entirety, after which the
department was permitted to cross-examine him.
On July 9, 2015, after both parties filed posttrial briefs,
the court filed a memorandum of decision rendering
judgment in favor of the department. The court therein
found, inter alia, that Cipriani’s opinion ‘‘was based
upon speculation and conjecture [and] was not neces-
sary to assist [it] in deciding the issues.’’ The court
concluded its analysis of liability as follows: ‘‘This court
finds that, based on the evidence, the plaintiff failed to
prove her claims of [the department’s] negligence by a
fair preponderance of the evidence. The court also finds
the plaintiff’s negligence was the proximate cause of
this collision. The plaintiff failed to keep a proper look-
out and failed to keep her vehicle under proper
control.’’
The plaintiff thereafter filed motions for a new trial,
to reargue and to set aside the verdict. The plaintiff
also filed a motion for articulation and rectification.
Each of those motions, to which the department
objected, challenged the court’s finding that Cipriani’s
opinion was based upon speculation and conjecture.
The court held a hearing on September 21, 2015, during
which it explained, inter alia: ‘‘I didn’t feel I need[ed]
that expert opinion’s assistance to help me decide the
merits or the—what decision should be made in this
case. It was based upon the evidence that was presented
[at] trial. And [I], then, drew reasonable legal conclu-
sions, which is my job to do. So, the mere fact that I
did not give any weight to the expert[’s] [testimony] is
not a basis for me to set aside this verdict.’’ The court
indicated that it ‘‘took all of the evidence [into consider-
ation in order] to come to [its] findings of fact and
[its] ultimate conclusion . . . .’’ The court denied the
plaintiff’s motions3 and this appeal followed.
The plaintiff claims that the court erred by not relying
at all upon Cipriani’s testimony, by which, she claims,
it effectively precluded such testimony without holding
a Porter hearing. We disagree.
‘‘It is well settled that [t]he trial court has wide discre-
tion 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.’’ (Internal quota-
tion marks omitted.) Hicks v. State, 287 Conn. 421, 444,
948 A.2d 982 (2008). Similarly, ‘‘we give great deference
to the findings of the trial court because of its function
to weigh and interpret the evidence before it and to
pass upon the credibility of witnesses . . . .’’ (Internal
quotation marks omitted.) Wyszomierski v. Siracusa,
290 Conn. 225, 237–38, 963 A.2d 943 (2009).
Here, the plaintiff’s claim that the court precluded
Cipriani’s testimony is belied by the record. Although
the court initially sustained several of the department’s
oral objections to Cipriani’s testimony on the ground
that it was speculative, it ultimately admitted his testi-
mony in full. Thereafter, Cipriani testified extensively,
over repeated defense objections. In overruling those
objections, the court repeatedly stated that it was admit-
ting all of Cipriani’s testimony into evidence so that it
could later decide what weight, if any, to give that
testimony in deciding the issues before it. Having done
so, the court was free to evaluate Cipriani’s opinion
testimony, and reject it in whole or in part, because
‘‘[t]he acceptance or rejection of the opinions of expert
witnesses is a matter peculiarly within the province of
the trier of fact and its determinations will be accorded
great deference by this court. . . . In its consideration
of the testimony of an expert witness, the [finder of
fact] might weigh, as it sees fit, the expert’s expertise,
his opportunity to observe the defendant and to form
an opinion, and his thoroughness. It might consider
also the reasonableness of his judgments about the
underlying facts and of the conclusions which he drew
from them. . . . It is well settled that the trier of fact
can disbelieve any or all of the evidence proffered
. . . .’’ (Internal quotation marks omitted.) State v.
Washington, 155 Conn. App. 582, 593–94, 110 A.3d 493
(2015). Although the court ultimately determined that
Cipriani’s testimony was based on conjecture and spec-
ulation, and that it was not necessary for the court to
rely on it in deciding the issues presented, that state-
ment is indicative of the court’s weighing, consider-
ation, and ultimate rejection, of the substance of
Cipriani’s testimony, not its preclusion as evidence at
trial.
Because the record does not support the plaintiff’s
contention that the court precluded her expert’s testi-
mony, but, rather, reveals that it admitted that testi-
mony and then properly acted within its role as the
finder of fact in weighing and rejecting that testimony,
her claim on appeal must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff’s initial complaint contained two counts, one against Edman
directly for his negligence and another against the department claiming
vicarious liability for Edman’s negligence. Edman moved to strike the claim
against him pursuant to General Statutes § 4-165. The plaintiff thereafter
amended her complaint, deleting the count against Edman.
2
The court also noted: ‘‘The defense also presented an independent third-
party witness, Kevin Gause, who had just passed the signs and . . . the
[department’s] vehicle was stopped and the sign was there in the placed
position prior to the collision.’’
3
The trial court denied the plaintiff’s motion for articulation, from which
the plaintiff sought review from this court. This court dismissed the plaintiff’s
motion for review, but sua sponte, ordered the trial court to rectify its July
9, 2015 memorandum of decision to indicate that the ‘‘plaintiff presented a
purported accident reconstructionist . . . .’’