Applebrook Country Dayschool, Inc. v. Thurman

Smith, Chief Judge,

concurring specially.

I concur with the result reached by the majority. I write separately to point out what I believe to be a distinction between expert testimony properly admitted to instruct a jury on controversial or emerging issues, in contrast to improperly admitted expert opinion testimony that invades the province of the jury.

Under the circumstances of this case, average jurors may not have had knowledge of the current theories concerning infant sleep positioning. The infant was put to sleep on his stomach, a practice that has been the subject of extensive expert debate in this country over the past decade. I am not convinced that such knowledge can be characterized as commonplace. Although Estate of LePage v. Horne, 262 Conn. 116 (809 A2d 505) (2002), is not binding and addresses a different cause of death, Sudden Infant Death Syndrome (SIDS), I find that case instructive on the issue of the necessity of expert testimony in certain situations. In discussing the dangers of allowing infants to sleep on their stomachs and the increased risk of SIDS associated with this position, the Connecticut Supreme Court stated that information concerning sleep positioning as it related to SIDS “only began to be disseminated to the public in 1994” and that “[i]ndeed, prior to 1992, parents in the United States predominantly placed infants to sleep in the prone position. It is likely that many jurors who did their childrearing prior to this time would not know of the risks associated with the prone sleep position.” (Citation omitted; emphasis supplied.) Id. at 130-131.

I recognize that the cause of death in this case was not SIDS. Given the ongoing controversy about infant sleep positioning, however, I agree in principle with LePage that attending to a sleeping infant is not necessarily “a commonplace activity” about which the average juror would have knowledge enabling him or her to determine whether a child care provider breached the standard of care. Given the varying recommendations of the medical and child care professions concerning infant sleep positioning, I believe that expert testimony is necessary to assist even the “average reasonable parent” in understanding the risks associated with the prone position.

The expert in this case properly testified as to a number of facts, including the state regulations concerning child care and the movement in this country to educate individuals and institutions concerning proper infant sleep positioning. In this case, in which the standard of care is the “average parent,” there is a difference, however, between expert testimony that provides a jury with information necessary to an informed verdict and the opinion of an expert that a defendant breached the standard of care. The former instructs the jury, while the latter is a matter for jury determination.

Although a portion of the expert’s testimony was permissible, its scope was overbroad. In addition to misstating the standard of care, she repeatedly testified that the defendant breached that improperly defined standard of care. A great likelihood exists that the jury was confused and based its verdict on the misinformation and improper opinion testimony provided by the expert. Although the result seems harsh, I am consequently constrained to agree that reversal is required in this troubling case.

Decided November 19, 2003 Reconsideration denied December 8, 2003 Downey & Cleveland, Joseph C. Parker, Hicks, Casey & Barber, William T. Casey, Jr., Christopher A. Townley, for appellant. Renzo S. Wiggins, for appellees.

I am authorized to state that Judge Miller joins in this special concurrence.