SCOVT affirms conviction for DUI death resulting. No abuse of discretion under Rule 702 in allowing pharmacologist/toxicologist to testify that defendant’s intoxication was the cause of the accident

State v.  Sullivan, 2017 VT 24

EATON, J. Defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, in violation of 23 V.S.A. §§ 1201(a)(2) and 1210(f)(1), and leaving the scene of a fatal accident, in violation of 23 V.S.A. § 1128(a) and (c). On appeal, he challenges the trial court’s jury instructions, admission of expert testimony, and denial of his motion for access to necessary services as a needy person pursuant to 13 V.S.A. § 5231(a)(2). We affirm defendant’s convictions but remand the matter for resentencing based on our conclusion that the trial court abused its discretion by not continuing the sentencing hearing to allow defendant to present the testimony of his expert witness.

Although we agree with defendant that the “death resulting” element requires a finding that defendant’s intoxication was a but-for cause of the victim’s death, we do not agree with his argument that the trial court’s jury instruction failed to convey this causation requirement

The State offered expert testimony from a board-certified pharmacologist and toxicologist who focuses on drugs and medications. Defendant argues that the witness is not an expert in alcohol, and thus his testimony as to whether defendant was under the influence of alcohol at the time of the accident was outside the scope of his expertise. Defendant also argues that his opinion as to the cause of the accident was also outside the scope of his expertise. 

Trial courts have “broad discretion to determine, on a case-by-case basis, whether some or any of the [Daubert] factors are relevant to evaluating the reliability of expert evidence before the court.” We are not persuaded that the trial court abused its discretion in determining that the testimony was sufficiently reliable for the jury to consider it. The opinions proffered by the State’s expert do not represent the type of “junk science” Daubert intended to thwart; rather, the testimony was supported by the witness’s qualifications as an experienced clinical pharmacologist and toxicologist whose work focuses on the effects of drugs and medications, including the pharmacodynamics of alcohol. Further, the witness detailed how his understanding of the effects of alcohol led to his opinion that the most likely cause of an accident under the circumstances of this case was defendant’s driving while intoxicated. This testimony was within his area of expertise, and the trial court did not abuse its discretion in so concluding.

The convictions are affirmed. The sentence is vacated and the matter is remanded for resentencing to allow defendant sufficient opportunity to present expert mitigation testimony, either at his own expense or at state expense if he is found to qualify for necessary services upon any renewed application for such services pursuant to the guidelines set forth in Administrative Order 4, § 5.

Cause of fire not proved; fire investigator’s opinion excluded as unreliable.

Lasek v. Vermont Vapor, Inc., 2014 VT 33 (11-Apr-2014)


CRAWFORD, J. Plaintiff appeals the trial court's grant of judgment as a matter of law to defendants following a three-day jury trial in this negligence case. Plaintiff claims that the trial court erred in (1) excluding the testimony of plaintiff's expert witness on causation, (2) granting defendants' motion for judgment as a matter of law. We affirm.

The court excluded plaintiff's fire investigator's testimony pertaining to causation. The court explained that the fire investigator was not trained in chemistry, and did not know what chemicals were present, what their flammability or other characteristics were, or how they would interact with each other or flow through the air. The court noted that nicotine was present, but nicotine has a low flammability rating and is heavier than air. Even accepting that nicotine's properties could have been modified by a combination of other chemicals, there was no evidence of what the other chemicals were or how they would behave. The court concluded that the fire investigator could not offer his opinion regarding the cause of the fire because it did not meet the standards of Daubert and Rule 702.

"Proposed testimony must be supported by appropriate validation—i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590. The trial court properly excluded the fire investigator's testimony because it was based on speculation. There was no evidence that chemicals were present in the lab in a quantity sufficient to ignite a flame at a space heater above and outside of the room on the night of the fire. Furthermore, the fire investigator was unable to offer a reliable explanation of how any nicotine vapors that were present would be able to travel up to the space heater because, as he conceded, nicotine vapors are heavier than air and would therefore tend to sink rather than rise. He opined that the combination of various chemicals might cause the vapors to rise, but admitted that he did not have a chemical engineering background and could not explain what mixture of chemicals might cause that to happen or whether it was likely to have occurred in this case. We agree with the trial court that the fire investigator's opinion about causation was not "based on sufficient facts or data," and was therefore unreliable. V.R.E. 702.

The trial court properly granted judgment as a matter of law in favor of defendants on plaintiff's claims of negligence. Without expert testimony on the issue of causation, plaintiff was unable to prove the use of liquid nicotine caused the fire. Without establishing the use of nicotine caused the fire, plaintiff also could not prove that landlord was negligent in leasing the space or in maintaining the leased space.

It was appropriate for the court to decline to apply res ipsa loquitur in this case. The doctrine of res ipsa loquitur allows an inference of negligence in certain cases, not causation. Established causation is a prerequisite to the application of the doctrine. Furthermore, plaintiff failed to show that a fire in a commercial warehouse is the sort of accident that ordinarily does not occur without negligence. See Metro. Prop. & Cas. v. Harper, 7 P.3d 541, 551 (Or. Ct. App. 2000) ("[R]es ipsa loquitur is not commonly applied to fires, because the cause of a fire is generally unknown [and] fires commonly occur where due care has been exercised as well as where due care was wanting." (quotation omitted)).

Admission of crash reconstruction testimony affirmed, despite novelty of methods.

State v. Scott, 2013 VT 103 [Filed 18-Oct-2013]

SKOGLUND, J. Defendant appeals his jury conviction for negligent operation of a motor vehicle and the resulting sentence. He asserts that the trial court impermissibly allowed the State’s crash reconstruction expert to testify about defendant’s speed at the time of the collision because other experts in the field believe a drag sled should not be used on wet roads or grass. We affirm.

The accident reconstructionist pulled a drag sled over the road and grass surfaces where the vehicles had traveled. He used a mathematical formula to determine the “drag factor” generated by these surfaces. He incorporated the drag factors, estimated vehicle weights, post-crash travel distances, and braking estimates into other formulas to calculate the momentum required to move the vehicles from the point of impact over those surfaces to their final resting positions. Working backward from these calculations, and accounting for the energy absorbed by the crash, he concluded that defendant had been traveling 61 miles per hour when his truck struck the decedent’s car.

Reliable expert testimony is “sufficiently rooted in scientific knowledge,” that is, grounded in scientific methods and procedures rather than mere “subjective belief or unsupported speculation.” State v. Streich, 163 Vt. 331, 343, 658 A.2d 38, 47 (1995). In assessing whether an expert’s assertion is reliable, a court may be guided by the following factors: (1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; and (4) whether it has been generally accepted by the scientific community. Id. (citing Daubert, 509 U.S. at 593-97). These factors are not exhaustive, and a trial court has “broad discretion to determine, on a case-by-case basis, whether some or any of the factors are relevant in evaluating the reliability of expert evidence” before it. Daewoo, 2008 VT 14, ¶ 8; see also Daubert, 509 U.S. at 589 (rejecting the “general acceptance” test, once the “exclusive test for admitting expert scientific testimony,” as incompatible with the more liberal parameters of Rule 702).

This Court has emphasized in prior cases that “Daubert presents an admissibility standard only.” Id. ¶ 12 (quotation omitted). In fact, we adopted Daubert specifically to promote more liberal admission of expert evidence. Id. (citing State v. Tester, 2009 VT 3, ¶ 18, 185 Vt. 241, 968 A.2d 895); see also Daewoo, 2008 VT 14, ¶ 9 (noting this Court’s intent to “broaden[] the types of expert opinion evidence that could be considered by the jury at trial”). The central purpose of judicial gatekeeping under Rule 702 is to screen out potentially confusing or misleading “junk science” that was “propagated primarily for litigation.” Daewoo, 2008 VT 14, ¶ 8. As noted by the U.S. Supreme Court, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596. When faced with questionable scientific evidence, such as that which is “well-grounded but innovative,” id. at 593, a court should focus its Rule 702 inquiry “solely on principles and methodology” and rely on the party opponents to expose the weaknesses of expert conclusions. Id. at 595; see also Burgess, 2010 VT 64, ¶ 12.

The crash reconstruction expert offered a sufficiently reliable foundation for his testimony, and the trial court properly allowed the jury to hear it even though other experts in the field find the particular of methods used inaccurate. Novel use of methods is not misleading “junk science” to be categorically excluded under Rule 702. Instead, this use here qualifies as a well-reasoned but novel application of a traditionally accepted technique.

Workers Compensation; evidence. Superior court has jurisdiction of appeal of summary judgment ruling even though it involves a question of law. Majority holds epidemiological causation evidence inadmissible under Daubert.

Estate of George v. Vermont League of Cities and Towns (2008-374)(14-Jan-2010) 2010 VT 1 (Skoglund, J.) (Dooley, J., concurring.) (Reiber, C.J., joined by Johnson, J., dissenting)
Claimant appeals from the superior court’s order granting summary judgment to insurer in this workers’ compensation case. He argues that the court: (1) exceeded its jurisdiction under 21 V.S.A. § 671 by granting summary judgment to insurer; and (2) abused its discretion by excluding the expert testimony that he offered. We affirm the trial court’s decision.

Commissioner certified to the superior court the following question for determination: was claimant’s NHL causally related to his work as a firefighter? Insurer moved for summary judgment arguing that the opinions of claimant’s experts should be excluded under Vermont Rule of Evidence 702 as irrelevant and scientifically unreliable, and that without any admissible evidence of causation, claimant was not entitled to workers’ compensation benefits. Claimant responded that the standard for the admissibility of expert testimony under Rule 702, delineated in Daubert does did not apply to workers’ compensation claims in superior court; that insurer had waived its right to challenge the admissibility of the evidence by failing to raise this argument before the Commissioner; and that the court lacked jurisdiction to grant a motion for summary judgment.

The fact that insurer was granted judgment as a matter of law in this case does not transform the certified question into one of pure law that must be decided only by this Court. The rules of evidence and procedure are applicable in workers’ compensation cases heard by the superior court. The court’s review of the Commissioner’s decision “involves a retrial de novo.” That means that insurer is not limited to the arguments raised below, and preservation—or lack thereof—is not at issue. The trial court was obligated to apply the rules of evidence and to determine if the expert testimony proffered by claimant was relevant and admissible. The Commissioner has no expertise in such matters, and no deference to the Commissioner’s approach is required.

Without evidence of specific causation, summary judgment was properly granted to insurer. Our law requires claimant to show, not merely that firefighting increased the likelihood of injury, but that it more likely than not caused his disease.  Claimant failed to establish good grounds for such a conclusion here. Claimant relied on epidemiological studies, studies that focus on general causation rather than specific causation.

The court did not abuse its discretion in finding that Dr. Guidotti’s opinion was not based on sufficient facts or data, and that Dr. Guidotti had not applied scientific principles and methods reliably to the facts of this case. Dr. Guidotti opined that, “within reasonable medical certainty and given the weight of evidence,” claimant’s NHL “arose from his work as a firefighter and was caused by exposures in the course of his occupation as a firefighter.” Dr. Guidotti acknowledged that the demonstration of “more likely than not” in the epidemiological literature corresponded to a relative risk, or an odds ratio, of 2.0, although he argued that this standard should not be followed here. Where six of eight epidemiological studies did not show a statistically significant risk, it was reasonable for the trial court to conclude that Dr. Guidotti’s expert opinion that claimant’s NHL was more likely than not caused by firefighting lacked a solid and reliable foundation. The trial court did not abuse its discretion in considering a relative risk greater than 2.0 as a reasonable and helpful benchmark under the circumstances presented here.

Justice Dooley writes separately to criticize the Court’s “unworkable and inconsistent distinctions” made in an attempt to resolve appellate jurisdiction in workers’ compensation cases.  The Commissioner’s ruling was the functional equivalent of granting judgment as a matter of law to insurer, and, just like the decision of the superior court, is one of law, not fact. Under Stoll, 2009 VT 61, ¶¶ 7-8, this case was appealed to the wrong court, and the appeal should be dismissed. The majority’s rationale for distinguishing Stoll puts “more mud in muddy water”. Justice Dooley says we should allow all cases like this to go to the superior court and not require that they go exclusively to this Court. Stoll v. Burlington Elec. Dep’t, 2009 VT 61, ¶ 11, ___ Vt. ___, 977 A.2d 1282 (Dooley, J., dissenting).

Chief Justice Reiber, joined by Justice Johnson concludes it was abuse of discretion to “exclude expert testimony that met the standards articulated in Daubert and adopted by this Court.” Regardless of whether the conclusions of claimant’s experts are ultimately persuasive—an issue that is not before us today—“[t]he trial court should have allowed the adversarial process to draw out any deficiencies in the expert testimony, rather than usurping the jury’s function.” Id.