SCOVT affirms judgment as a matter of law for defendant driver in negligence case where there was no specific expert or other evidence of a causal link between driver’s alleged negligence and plaintiff jogger’s injury.

 Driscoll v. Wright Cut and Clean LLC, 2024 VT 24 [August 2, 2024]

 EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and Wright Cut and Clean, LLC. Based on the evidence plaintiff presented at trial, defendants moved for judgment as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The court granted defendants’ motion. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter of law. Because we determine plaintiff failed to produce sufficient evidence of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.

On July 18, 2019, plaintiff was running in a southerly direction on the left side of the road, facing into the flow of traffic. At the same time, defendant Benjamin Wright (driver), an employee of defendant Wright Cut and Clean, was driving a company truck also in a southerly but on the right side of the road. The truck was pulling a trailer.  As the truck approached plaintiff from behind, plaintiff looked behind him, and then moved about five feet to his left, toward the left edge of the road. As the truck passed plaintiff, driver looked in his side review mirror and saw plaintiff move get struck by the trailer. Plaintiff was unconscious when police arrived, and he has no memory of the accident.

The causation element of negligence requires sufficient evidence for a reasonable jury to conclude that, but for some negligent action by the defendant, the plaintiff would not have been harmed. Collins v.Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of injury alone is generally insufficient to show causation. Instead, the plaintiff must “rely on expert testimony” to demonstrate causation unless the circumstances are plain enough that “only common knowledge and experience are needed to comprehend it.” Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 20, 206 Vt. 157, 179 A.3d 182 The absence of expert testimony or other viable evidence showing a causal link with the injury precludes a finding that the plaintiff sufficiently established that element. Bernasconi v. City of Barre, 2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d 720; Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.

Plaintiff put on expert testimony at trial from a forensic engineer who opined that, at impact, “there wasn’t a four[-] foot safety gap or more between [plaintiff] and the trailer.”  The expert admitted, however, that there was “no physical evidence to establish where [plaintiff] was located” at any time before impact, and he was unable to provide conclusions on any causative factor leading up to the incident. The expert did not “know anything before [impact].” As such, he was unable to say whether there was in fact a “four[-]foot safety gap” between plaintiff and the trailer during the time leading up to impact or if the lack of such a gap, if any, was a causative factor in the collision. And he did not identify how, if at all, the truck’s speed or position or the driver’s alleged failure to better warn plaintiff provided any causal link between driver’s alleged negligence and plaintiff’s injury.

No other witness ever indicated what specific aspect of driver’s allegedly negligent actions caused plaintiff’s resulting harm. Because of plaintiff’s admitted inability to recall the incident, he could give no testimony on the subject. Absent specific evidence of causation, a jury would have to rely on mere speculation to determine what, if anything, was the causal link between driver’s actions prior to impact and plaintiff’s resulting injury. Absent the necessary evidence of causation, judgment as a matter of law must be affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177 Vt. 575, 861 A.2d 1135 (mem.) (recognizing that failure to prove any one element of negligence claim warrants judgment as matter of law).

Affirmed.

How Cited

SCOVT note: Where a loss of memory rendering the survivor of an accident incapable of testifying as to the accident is shown to be attributable to the  accident, it is generally presumed, in the absence of evidence to the contrary, that he exercised due care. Annot., Amnesiac as Entitled to Presumption of Due Care, 88 A.L.R.3d 622 § 3[a] (1978). Further, some jurisdictions reduce the burden of proof on the plaintiff when as a result of the incident the plaintiff has amnesia. In New York the theory is called the "Noseworthy" doctrine, after the case in which it was originally applied. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948) See 8A Carmody-Wait 2d § 57:25 (Jury instructions addressing burden and degree of proof where action involves amnesia or death of victim).

Accident reconstruction. Findings that reject both sides’ experts. Court can take judicial notice of Pythagorean Theorem, but findings based on the theorem are clearly erroneous where underlying diagram was not to scale and there was no evidence of a right angle.

  State v. Wisowaty, 2015 VT 97 [filed 7/24/2015]

SKOGLUND, J. Defendant appeals the decision denying his motions for judgment of acquittal and new trial and the judgment finding him guilty of excessive speed and negligent operation of a vehicle. Both the State and defendant presented their own accident reconstructionist, each of whom used different formulas and inputs for determining defendant’s maximum speed. The judge found defendant guilty but did not rely entirely on either of the experts’ formulas or their inputs. After the judge explained his methodologies from the bench, defendant filed motions for judgment of acquittal and, alternatively, a new trial. The court denied both motions, and this appeal followed.

Defendant argues that the judge relied upon evidence not introduced at trial and that the evidence presented was insufficient to sustain a conviction. We agree that the evidence was insufficient and therefore reverse the trial court’s denial of defendant’s motion for acquittal.

The unusual record before us lays out three distinct configurations of the evidence: that of the prosecution, that of defendant, and that of the trial judge. The judge took pieces of each expert’s data and formulas, and supplemented them with his own estimates and calculations based on the Pythagorean Theorem, ultimately determining that defendant’s top speed was between seventy-five and eighty-four miles per hour.

We first agree with the judge that both experts failed in their proffered attempts at calculating defendant’s speed; thus, defendant’s convictions could not be supported by substantial evidence on the basis of either of those theories.

Findings by a judge-as-factfinder on issues other than the ultimate question of guilt are subject to the “clearly erroneous” standard of review. The trial judge’s calculation of defendant’s speed is a factual conclusion. A factfinder “may draw rational inferences to determine whether disputed ultimate facts occurred,” but those inferences “must add up to more than mere suspicion,” and “the [factfinder] cannot bridge evidentiary gaps with speculation.”

Other courts have condoned a factfinder’s use of the Pythagorean Theorem, but only where there existed reliable evidence of a right angle and the measurements of the two shorter sides of the triangle were sufficiently reliable and precise, based on admitted evidence. We conclude that the judge impermissibly “bridge[d] evidentiary gaps with speculation,” rendering his calculation of defendant’s speed unsound.  

PROOF:

 
The judge attempted to determine the time defendant took to travel 316. 8 feet by first calculating the distance Mr. Yee traveled at 12 miles per hour during that same time.  The judge calculated this distance by applying the Pythagorean Theorem to nearby points labeled on the State’s diagram of the intersection.  But the diagram was not to scale. There was no evidence of a right angle.  The judge’s measurement of at least one of the shorter sides of the triangle was thus conjecture.

Even though he used an accepted mathematical formula, the judge relied upon unfounded assumptions about the lengths and orientations of the two shorter sides of his purported right triangle, and therefore arrived at a clearly erroneous conclusion as to the length of the third side, the judge’s conclusions as to speed were therefore clearly erroneous.

Reversed and remanded for entry of a judgment of acquittal on the charges of excessive speed and negligent operation.

SCOVT affirms ruling that finds unpersuasive State’s blood alcohol relation-back testimony.

State v. Nugent, 2014 VT 4 (10-Jan-2014)

REIBER, C.J. The State of Vermont appeals from the trial court’s grant of defendant’s motion for judgment as a matter of law on his civil driver’s license suspension. The trial court held that the State did not prove by a preponderance of the evidence that defendant’s blood alcohol concentration (BAC) was 0.08 or above at the time he operated a motor vehicle. The court found the State expert’s relation-back calculation to be unreliable because her assumed alcohol elimination rate of 0.015 percent per hour was speculative. We affirm the trial court’s decision.

Because the police tested defendant’s BAC more than two hours after the time of operation, the State was required to prove through relation-back evidence that defendant’s BAC was over the legal limit while he was driving. On cross-examination, defendant questioned the State expert’s assumption that the alcohol elimination rate was 0.015 percent per hour, on the grounds that elimination rates vary between individuals and the expert could only speculate as to defendant’s elimination rate. The expert conceded that the elimination rate varies by individual and that she had no scientifically principled way of distinguishing between her assumed elimination rate and different elimination rates offered by other experts in the field.

The trial court ruled the opinion was admissible but was of insufficient weight for the court to establish BAC at time of operation. This finding is reviewed for clear error, as the trier-of-fact is in the best position to determine the weight and sufficiency of the evidence presented. The trial court’s conclusion was supported by the expert’s testimony, in which she offered no credible reason why her assumed elimination rate was reliable as applied to defendant, nor did she testify as to the likelihood that defendant’s BAC was below 0.08 while driving. The trial court’s reliability finding was not error, much less clear error.

Discovery. Experts. SCOVT holds general expert disclosure insufficient to reveal “substance” of opinion, by not answering detailed time, place and manner follow-up questions.

Stella v. Spaulding, 2013 VT 8 (Skoglund, J.)  (Robinson, J., joined by Dooley J., dissenting.)

In this medical malpractice action, plaintiff appeals the court’s entry of judgment in defendants’ favor following the court’s discovery sanction, which precluded plaintiff from offering expert testimony or evidence regarding defendants’ negligence as was requested in Interrogatories 64 and 71. Because of the sanction plaintiff could not oppose summary judgment, which the court granted in defendants’ favor. On appeal, plaintiff claims its disclosure was adequate and that no further information was required under the applicable rule. We affirm.

Interrogatory 64 requested the “identity of experts to be employed at trial of this matter, the subject of their testimony, their opinions and the substance of the facts, which are grounds therefore.” Plaintiff responded by identifying a traeting physiciaon who would testify the defendant new or should have known that the patient had developed an infection at the site of her surgical incision but failed to aggressively treat the infection with antibiotics in breach of the standard of care

Interrogatory 71 asked plaintiff to state the alleged negligent acts or omissions committed by Dr. Spaulding specified by date and time, how the act impacted patient, and what the proper course of care should have been. Plaintiff failed to answer this question with more than general allegations, making no delineation as to what acts or omissions committed by defendants at particular times were negligent or how those acts led to the patient’s death, other than the treating physician’s medical record.

The critical and limited issue here is whether interrogatory 71 sought to obtain more than what was required by Rule 26(b)(4). Did the court abuse its discretion in concluding that plaintiff had failed to provide “the substance of the facts and opinions as to which the expert is expected to testify.” V.R.C.P. 26(b)(4)(A)(i). Interrogatory 71 asked about plaintiff’s specific theory of the case. We hold the court did not abuse its discretion; the incidents of negligence committed, the dates of those acts and how those acts deviated from the standard of care lies within the bounds of what the rule requires to be disclosed.

We reject the dissent’s assertion that the court’s chosen sanction was beyond its discretion because the sanction essentially amounted to dismissal. When a trial court imposes the ultimate sanction of dismissal, we require findings of fact to show bad faith or deliberate and willful disregard of the court’s orders, as well as prejudice to the opposing party. But in this instance no no dismissal was imposed. Because the sanction in this case precluded plaintiff from offering certain evidence, but was not a dismissal, no special findings were required.


ROBINSON, J., (joined by Dooley J., dissenting.) The issue in this case is whether defendants were entitled to get the reqauest infomraiotin by the particular tool of expert interrogatories pursuant to Vermont Rule of Civil Procedure 26(b)(4)(A)(i). In affirming the trial court, the majority applies a far more exacting standard than the Rule supports. Moreover, the trial court’s sanction for the purported discovery violation, which was tantamount to dismissal of plaintiff’s case on the merits, exceeded the trial court’s broad discretion.

Dr. Stickney was a treating physiciian and is an “event witness.” To the extent that the facts he knows and opinions he holds were not acquired or developed in anticipation of litigation, but, rather, arise from his own participation in the case, plaintiff was not obligated to make expert disclosures for Dr. Stickney pursuant to Rule In fact, in the context of a medical malpractice case, this Court has held that the defendant hospital did not run afoul of Rule 26(b)(4) when it introduced opinion testimony from treating physicians without having disclosed them as expert witnesses. Hutchins v. Fletcher Allen Health Care, Inc., 172 Vt. 580, 582, 776 A.2d 376, 379 (2001) 26(b)(4). However plaintiff waived this point.

The question presented by this case is whether plaintiff’s expert disclosures were sufficient to give defendant “notice of the basic arguments” plaintiff intended to pursue at trial. This is the disclosure:

"The refusal of [defendants] to treat [decedent’s infection] caused her to develop sepsis which led to her death. Specifically, [defendants] knew or should have known that [decedent] had developed a[n] . . . infection at the site of her surgical incision and that she should have been treated with antibiotics. This failure to aggressively treat [decedent’s infection] with antibiotics was a breach of the standard of care. In addition, [defendants], when contacted by Dr. Stickney, refused to allow Dr. Stickney to prescribe [decedent] antibiotics for her [infection] claiming that she was their patient and her post surgicaltreatment was their responsibility. The refusal of [defendants] to allow Dr. Stickney to treat [decedent] with antibiotics was a breach of the standard of care."

What more need plaintiff say to put defendants on notice of its theory of malpractice? Plaintiff in this case was not required to answer by interrogatory the litany of detailed follow-up questions posed by defendant. Plaintiff was not required to facilitate an expert-deposition-by-interrogatory. The fact that some questions posed by defendant remain unanswered, or unanswered to defendant’s satisfaction, does not mean that plaintiff has failed to comply with its obligations pursuant to Rule 26(b)(4)(A)(i). Plaintiff’s disclosure as to the substance of Dr. Stickney’s opinions was more than sufficiently detailed to put defendant on notice of the arguments plaintiff intended to press at trial.

Nursing negligence. Summary judgment for defense where plaintiff had no expert.

Taylor v. Fletcher Allen Health Care,  2012 VT 86 (Skoglund, J.) (Dooley, J., joined by Robinson, J., concurring and dissenting.)

Plaintiff Sally J. Taylor sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following a surgery. A nurse was assisting plaintiff in moving to the bathroom when plaintiff alleges that the nurse "withdrew support and assistance . . . unexpectedly and without warning and caused [p]laintiff to fall violently on to the toilet." After plaintiff failed to disclose any expert witness in response to discovery requests, FAHC moved for summary judgment, arguing that plaintiff’s claims failed as a matter of law without an expert witness.  The trial court granted FAHC’s motion.  We agree with the trial court that this case is sufficiently complex that plaintiff cannot prove her claims without expert testimony.  Accordingly, we affirm.

Whether a gait belt should have been used in this case or whether the use of a gait belt could have prevented her drop onto the toilet is beyond the ken of a layperson. There are countless variables that could explain the lack of a gait belt, and only testimony from an expert familiar with general nursing practices and the details of plaintiff's medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case. ...Our holding here is limited to the unique facts of this case given the specificity of plaintiff's argument that the nurse failed to use a specific tool and technique and that the drop was the cause of the need for the second surgery. Those claims are outside of the experience of typical lay person's understanding.

Dooley, J., concurring and dissenting,  concurs in the dismissal of plaintiff's claims that FAHC was negligent in its failure to recognize and diagnose the problems with the hardware and in its treatment of the pain complaints as well as her claim for negligent infliction of emotional distress. I do not concur with the dismissal of the claim that FAHC was negligent when plaintiff fell while attended by a nurse. The majority unnecessarily transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence.