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JANET MCCALL FLEMING, ADMINISTRATRIX

(ESTATE OF THOMAS C. FLEMING), ET AL.

v. GREGORY DIONISIO ET AL.

(SC 19440)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, and Espinosa, Js.*

Argued April 28—officially released July 14, 2015

Joseph M. Busher, Jr., for the appellant (named

defendant).

Jeffrey M. Cooper, for the appellees (plaintiffs).
Opinion

ROGERS, C. J. The primary issue in this appeal

requires us to resolve whether expert testimony proffered at trial regarding the ‘‘crash phase’’ of withdrawal

from stimulant drug use was supported by sufficient

scientific methodology to satisfy the standard set forth

in State v. Porter, 241 Conn. 57, 80–90, 698 A.2d 739

(1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140

L. Ed. 2d 645 (1998). The plaintiff, Janet McCall Fleming,

brought this action as the administratrix of the estate

of Thomas C. Fleming (decedent) and in her individual

capacity,1seeking to recover damages under six allegations, three on behalf of the decedent and three relating

to the plaintiff’s own loss of consortium, for injuries

resulting in the decedent’s death in violation of General

Statutes § 52-555.2 The plaintiff also sought punitive

damages under common-law recklessness and under

General Statutes § 14-2953

for the deliberate and reckless operation of a motor vehicle by the named defendant, Gregory Dionisio,4

in violation of General Statutes

§§ 14-218a, 14-222, 14-227a, 14-230 and 14-237. The

defendant admitted liability under the plaintiff’s negligence claim asserted on behalf of the decedent but

contested his liability under the five remaining claims.

At the conclusion of the trial, the jury returned a verdict

for the plaintiff. The trial court accepted the jury’s verdict, denied the defendant’s motions to set aside the

verdict and for judgment notwithstanding the verdict,

and rendered judgment in accordance with the verdict,

including an award of compensatory and punitive damages to the decedent’s estate and loss of consortium

and punitive damages to the plaintiff in her individual

capacity. On appeal,5

the defendant claims that the trial

court improperly: (1) admitted expert testimony pertaining to his drug use;(2) precluded the defendantfrom

offering evidence as to the full extent of his criminal

punishment related to the accident; (3) admitted evidence of his postaccident conduct, including testimony

that he drank his own urine; and (4) failed to strike

the plaintiff’s testimony that she intended to fund a

charitable scholarship and help her daughter. We disagree with each of the claims and, accordingly, affirm

the judgment of the trial court.

We begin with a brief overview of the facts, which the

jury reasonably could have found, and the procedural

history of this case. On the evening of July 3 and into the

early morning of July 4, 2009, the defendant consumed

approximately six to eight beers, as well as shots of

hard alcohol, at his home in Wilton. Three hours after

the defendant stopped drinking, at approximately 9 a.m.

on Saturday, July 4, he drove approximately twenty

minutes to a restaurant in Stamford where he was

employed, then worked until approximately midnight

on the morning of July 5. Thereafter, between midnight

and 3 a.m., the defendant returned home and drank six
to eight more beers. The defendant could not recall his

actions between 3 a.m. and 7:30 a.m. on July 5 and his

first memory after 3 a.m. was awakening in the driver’s

seat of his father’s vehicle at approximately 7:30 a.m.

Just prior to awakening, the defendant was operating

his father’s motor vehicle on a roadway approximately

two miles from his home, traveling toward the restaurant where he worked. The decedent was operating

his motorcycle on the same roadway, traveling in the

opposite direction toward the defendant. The defendant’s vehicle crossed the center line of the roadway

and collided with the decedent’s motorcycle, and the

decedent died as a result of this collision.

Shortly after the collision, Eva Zimnoch, a police

officer for the Wilton Police Department, was called

to the scene and spoke to the defendant, whom she

observed to have an odor of alcohol and whose pupils

she noticed ‘‘were very restricted.’’ After Zimnoch

spoke with the defendant, he was transported to Norwalk Hospital (hospital). Blood test results indicated

that, approximately two hours after the collision, the

defendant had a blood alcohol level of 0.09, which is

above the legal limit.

While at the hospital, the defendant, upon learning

that the decedent had died as a result of the collision,

began an internal deliberation of whether he should

drink his own urine, which he had excreted into a bedpan and which was designated to be used for a toxicology screening. Around the same time, a nurse entered

the defendant’s hospital room, observed the defendant

begin to drink from the bedpan, and removed the bedpan from the defendant’s control. Shortly thereafter,

the defendant was to be discharged from the hospital,

but he was found to be ‘‘difficult to arouse’’ for discharge instructions. Additional facts and procedural

history will be set forth as necessary.

I

The defendant’s first claim on appeal is that the trial

court should have precluded the plaintiff’s expert testimony because it was comprised of scientific evidence

that fell short of the requisite Porter standards. We

disagree.

The following additional procedural history and facts

are relevant to this claim. At trial, the jury was made

aware that the defendant had submitted to a urine

screen following the collision, which indicated a presence of illicit stimulant drugs and metabolites for stimulant drugs. The jury also learned that the defendant had

ingested stimulant drugs in the early morning hours of

July 4, 2009. During the trial, the court held a Portertype hearing, at the defendant’s request, to determine

the admissibility of the plaintiff’s expert testimony concerning how the defendant’s consumption of an

unknown quantity of illicit drugs could have affected
his state of mind at the time of the collision. Specifically,

the plaintiff’s expert, Michael J. McCabe, Jr., a board

certified toxicologist; see footnote 10 of this opinion;

proposed to testify that the defendant was in a ‘‘crash

phase’’ of withdrawal from ecstasy and cocaine at the

time of the collision and that the crash phase was a

contributing factor in causing the collision. The defendant challenged the scientific methodology offered in

support of McCabe’s conclusions.

At the conclusion of the Porter hearing, the trial court

concluded that McCabe’s testimony specifically referring to the defendant’s cocaine and ecstasy use two

days prior to the collision was prejudicial. The court,

however, allowed testimony explaining how consumption of illicit stimulant drugs could ultimately result in

a crash phase as being relevant to the issue of whether

the defendant had acted recklessly. The court explained

that ‘‘[t]he stimulant issue is directly related to the

crash. To the extent that the defendant brought [this]

upon himself . . . according to the expert and

according to the plaintiff, this diminished state of

awareness and attentiveness and proneness to fatigue

and falling asleep and the like . . . is relevant to how

and why the accident occurred for purposes of common-law recklessness.’’

On appeal, the defendant asserts that no reliable

methodology supported McCabe’s opinion that ingestion of unknown quantities of stimulant drugs two days

prior to a collision could result in a crash phase that

was a contributing factorto the collision. The defendant

claims that the scholarly articles that McCabe relied on

were incomplete, irrelevant, and inapposite. The defendant further claims that McCabe’s methodology was

not generally accepted in the relevant scientific community. In addition, the defendant argues that the underlying methodology of McCabe’s testimony did not ‘‘fit’’

the present case because McCabe could not say what

quantity of drugs the defendant had consumed, whether

the defendant’s consumption had any direct impact on

the collision, the quantity of drugs required to be found

in urine for a positive urine test result, at what point

the defendant reached a peak high or when he entered

a crash phase, or how long the defendant would remain

in a crash phase. The plaintiff responds that McCabe’s

testimony did not trigger a Porter analysis because it did

not involve innovative scientific techniques and instead

satisfied the traditional test for admissibility applied to

all expert testimony. In the alternative, the plaintiff

argues that even if McCabe’s testimony involved scientific evidence that fell within the parameters of Porter,

the trial court properly admitted McCabe’s testimony

because it met the relevant Porter factors for scientific

reliability and was relevant to the plaintiff’s claims that

the defendant acted recklessly. We agree with the plaintiff that McCabe’s testimony satisfied the relevant Porter factors.
We begin with our standard of review. We review a

trial court’s decision to admit expert testimony for an

abuse of discretion. Weaver v. McKnight, 313 Conn.

393, 405, 97 A.3d 920 (2014). ‘‘We afford our trial courts

wide discretion in determining whether to admit expert

testimony and, unless the trial court’s decision is unreasonable, made on untenable grounds . . . or involves a

clear misconception of the law, we will not disturb its

decision. . . . Although we afford trial courts significant

discretion, [w]here it clearly appears that an expert

witness is qualified to give an opinion, the exclusion

of his testimony may be found to be [an abuse of discretion]. . . . To the extent the trial court makes factual

findings to support its decision, we will accept those

findings unless they are clearly improper. . . . If we

determine that a court acted improperly with respect

to the admissibility of expert testimony, we will reverse

the trial court’s judgment and grant a new trial only if

the impropriety was harmful to the appealing party.’’

(Citations omitted; internal quotation marks omitted.)

Id.; see also Conn. Code Evid. § 7-2.

We next set forth the Porter factors that lie at the

heart of the defendant’s claim.6

‘‘In Porter, we followed

the United States Supreme Court’s decision in Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113

S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that

testimony based on scientific evidence should be subjected to a flexible test to determine the reliability of

methods used to reach a particular conclusion. State

v. Porter, supra, 241 Conn. 61–66. A Porter analysis

involves a two part inquiry that assesses the reliability

and relevance of the witness’ methods. Id., 63–64. First,

the party offering the expert testimony must show that

the expert’s methods for reaching his conclusion are

reliable. A nonexhaustive list of factors for the court

to consider include: general acceptance in the relevant

scientific community; whether the methodology underlying the scientific evidence has been tested and subjected to peer review; the known or potential rate of

error; the prestige and background of the expert witness

supporting the evidence; the extent to which the technique at issue relies [on] subjective judgments made by

the expert rather than on objectively verifiable criteria;

whether the expert can present and explain the data

and methodology underlying the testimony in a manner

that assists the jury in drawing conclusions therefrom;

and whether the technique or methodology was developed solely for purposes of litigation. . . . State v.

Guilbert, 306 Conn. 218, 231–32, 49 A.3d 705 (2012).

Second, the proposed scientific testimony must be

demonstrably relevant to the facts of the particular case

in which it is offered, and not simply be valid in the

abstract. . . . Put another way, the proponent of scientific evidence must establish that the specific scientific

testimony at issue is, in fact, derived from and based

[on] . . . [scientifically reliable] methodology. . . .
Id., 232.’’ (Internal quotation marks omitted.) Weaver

v. McKnight, supra, 313 Conn. 413–14.

‘‘Additionally, we recognized in Porter that, [t]he

actual operation of each [Porter] factor, as is the determination of which factors should be considered at all,

depends greatly on the specific context of each case

in which each particular[threshold admissibility] analysis is conducted. . . . There is, however, a critical postulate that underlies the Porter factors and indeed

underlies the entire Porter analysis: in order for the

trial court, in the performance of its role as the gatekeeper for scientific evidence, properly to assess the

threshold admissibility of scientific evidence, the proponent of the evidence must provide a sufficient articulation of the methodology underlying the scientific

evidence. Without such an articulation, the trial court

is entirely ill-equipped to determine if the scientific

evidence is reliable upon consideration of the various

Porter factors. Furthermore, without a clear understanding as to the methodology and its workings, the

trial court also cannot properly undertake its analysis

under the fit requirement of Porter, ensuring that the

proffered scientific evidence, in fact, is based upon the

reliable methodology articulated.’’ (Citation omitted;

internal quotation marks omitted.) Maher v. Quest

Diagnostics, Inc., 269 Conn. 154, 180–81, 847 A.2d

978 (2004).

Returning to the present case, we conclude that the

trial court properly performed its gatekeeping function

and that the decision to allow limited expert testimony

regarding the crash phase that follows illicit stimulant

drug use was not an abuse of discretion. In reaching this

conclusion, we are guided by the noncomprehensive list

of factors for reliability and ‘‘fit’’ set forth in State v.

Porter, supra, 241 Conn. 80–90. While these factors are

not a checklist that the trial court is required to check

off by calculated sequence; see id., 75–76; we are nonetheless persuaded that the evidence analyzed under

these factors is adequate to support the trial court’s

decision. First, with regard to a general acceptance of

the methodology, the trial court reasonably could have

found that the theory of a crash phase following the

consumption of alcohol or use of illicit stimulant drugs,

as evidenced by a positive drug test taken after a motor

vehicle accident, is generally accepted in the toxicology

community.7 Second, with regard to whether the methodology underlying the scientific evidence has been

tested and subjected to peer review, the scholarly articles that McCabe presented described actual peer

reviewed tests comparing recreational and chronic

stimulant drug users with nonusers.8 Third, with regard

to the known or potentialrate of error, McCabe testified

that, consistent with the scholarly articles articulating

the methodology for assessing the crash phase, predicting driving impairment on the basis of metabolites

in a urine screen is very difficult. The articles, however,
described methods to minimize these errors,9 which

McCabe employed in his assessment of this case. Again,

we note that the trial court had wide discretion to weigh

this factor next to others and we find no abuse of

that discretion.

McCabe’s testimony also comports with additional

reliability factors of Porter.

10 As to the extent to which

McCabe’s technique relied on subjective judgments that

he himself made rather than objectively verifiable criteria, McCabe relied on objectively verifiable materials

to formulate his conclusion, including police reports

and photographs, the deposition of the defendant, the

defendant’s statement to Geico Insurance, copies of the

autopsy report of the decedent, and toxicology reports,

which included alcohol and drug results from blood

and urine tests of the defendant.

With regard to whether McCabe could assist the jury

by presenting and explaining the data and methodology

underlying his testimony, McCabe testified extensively

at trial regarding toxicological studies of the effects

of alcohol and stimulant drugs on human behavior as

applied to operating a motor vehicle.11 We therefore

conclude that McCabe’s testimony satisfied this Porter factor.

Finally, with regard to whether the methodology was

developed solely for purposes of litigation, studies

addressing the effects of stimulant drug use and alcohol

consumption on driving clearly are relevant to societal

mores and public policy considerations generally. There

is no indication that the research cited by McCabe was

conducted for the purpose of litigation rather than for

the general advancement of knowledge in this area.

We next consider the second step of Porter. With

regard to whether the scientific evidence ‘‘fit’’ the present case, we conclude that the methodology that

McCabe introduced here fit his conclusion that the

defendant was experiencing a crash phase at the time

of the collision. The defendant contends that the methodology could not fit the particularities of this case

because McCabe based his opinion on an unquantifiable

dose of drugs taken at an unspecified time, whereas

the reports that McCabe cited all relied upon specific

dosage and time markers. We disagree. McCabe

explained that he minimized the risk of error by

employing recommendations from the articles on which

he relied. Specifically, McCabe testified that he based

his opinion of the defendant’s crash phase in part on

the defendant’s urine and blood screen results, which

showed that the defendant’s blood alcohol level was

above the legal limit two hours after the collision and

that his urine tested positive for illicit stimulant drugs

and metabolites. McCabe further relied on the defendant’s deposition in which he described his drug and

alcohol consumption, work hours, and lack of sleep.

McCabe also had notice that the defendant’s motor
vehicle crossed the double yellow line into the lane of

oncoming traffic, and testified that numerous toxicology studies have concluded that the ‘‘behavioral skill

of being alert and attentive [and able] . . . to maintain

a vehicle in a proper lane is impaired at levels of alcohol

intoxication such as those found in [the defendant].’’

We reiterate that the purpose of the Porter hearing is

to ascertain the validity, not the weight, of the methodology underlying the proffered scientific evidence. State

v. Porter, supra, 241 Conn. 81–83. We conclude that the

trial court did not abuse its discretion in finding that the

scientific methodology underlying McCabe’s testimony

was valid and that a jury should be allowed to consider

that testimony and decide what weight to give it. See id.

II

We further conclude that the defendant’s remaining

claims were properly decided by the trial court and are

without merit. The trial court’s decision to admit or

preclude evidence, and its determination as to whether

evidence is relevant and probative, are subject to review

for an abuse of discretion. See Reville v. Reville, 312

Conn. 428, 461, 93 A.3d 1076 (2014); State v. Saucier,

283 Conn. 207, 218–19, 926 A.2d 633 (2007); Conn. Code

Evid. § 4-1.

The defendant claims that the trial court improperly

refused to admit into evidence the particularities of the

defendant’s criminal probation arising from the collision,12 which he argues are relevant to mitigate against

an award of § 14-295 and common-law punitive damages. We disagree. The trial court correctly concluded

that, while evidence of criminal penalties could be

admissible, admitting such evidence was within the

court’s discretion. The court reasoned that the plaintiff

sought a civil penalty that provided a remedy to private

litigants. We cannot say that the trial court abused its

discretion by limiting the defendant from cross-examining the plaintiff on the specific conditions of the defendant’s probation, particularly since that was not a

subject about which the plaintiff had personal knowledge. See State v. Saucier, supra, 283 Conn. 218–19.

We further find no abuse of discretion in the court’s

decision to preclude the defendantfrom testifying about

the specific terms of his probation when his prison

sentence, probation, and apology were already before

the jury, and the court reasonably was reluctant to

further delay trial proceedings by allowing him to return

to the stand to address a peripheral matter.

The defendant next claims that the trial court improperly admitted evidence of his conduct and his condition

in the hospital following the accident.13 The defendant

argues that this evidence was unduly prejudicial to him,

and that its probative value was outweighed by this

prejudice. The plaintiff responds that this evidence

clearly was relevant to the defendant’s consciousness

of liability and is permissible under our case law. She
further contends that the defendant was allowed ample

opportunity to mitigate the impact of the evidence by

providing reasonable explanations for his conduct. We

agree with the plaintiff.

With regard to the defendant’s attempt to drink his

own urine, ‘‘[s]ubsequent conduct may, in many cases,

be given in evidence to affect or to show the character

of prior acts or intentions. . . . Conduct of a litigant

which is plainly reprehensible, such as the intimidation

of a witness or flight from the scene of an accident,

has commonly been admitted to show consciousness of

a doubtful cause.’’ (Citation omitted; internal quotation

marks omitted.) Batick v. Seymour, 186 Conn. 632, 636,

443 A.2d 471 (1982). In addition, the defendant’s inappropriate speech and difficulty in being roused were

relevant to whether he was still intoxicated or fatigued.

See Reville v. Reville, supra, 312Conn. 461. We conclude

that the evidence was clearly relevant and that its probative value was not outweighed by its prejudicial impact,

especially where the defendant was given an opportunity to explain his actions.

The defendant’s final claim is that the trial court

improperly refused to strike the plaintiff’s testimony

regarding her future plans following the decedent’s

death because it was irrelevant and prejudicial and

described the plaintiff’s intentions for damages she

expected to receive from this case.14 We disagree. The

plaintiff’s response did not specifically reference any

potential award she might receive from the resolution

of this case, and her answers were generically appropriate. In any event, the trial court, ‘‘in an excess of

caution,’’ gave a curative instruction to the jury to disregard the plaintiff’s future plans when they considered

whether to award her damages.

The judgment is affirmed.

In this opinion the other justices concurred.

* This case was originally scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald and Espinosa. Although Chief Justice Rogers was not present when the case was argued before the court, she read the briefs and

appendices and listened to a recording of the oral argument prior to participating in this decision.

1 References to the plaintiff herein are to her in both capacities.

2 General Statutes § 52-555 (a) provides in relevant part: ‘‘In any action

surviving to or brought by an executor or administrator for injuries resulting

in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages

together with the cost of reasonably necessary medical, hospital and nursing

services, and including funeral expenses . . . .’’

3 General Statutes § 14-295 provides in relevant part: ‘‘In any civil action

to recover damages resulting from personal injury, wrongful death or damage

to property, the trier of fact may award double or treble damages if the

injured party has specifically pleaded that another party has deliberately or

with reckless disregard operated a motor vehicle in violation of section 14-

218a . . . 14-222, 14-227a, 14-230 . . . [or] 14-237 . . . and that such violation was a substantial factor in causing such injury, [or] death . . . .’’

4

John A. Dionisio, who owned the vehicle Gregory Dionisio was operating

at the time of the accident, also was named as a defendant. The action was

subsequently withdrawn as against him. References herein to the defendant

are to Gregory Dionisio only.
5 The defendant appealed to the Appellate Court, and we transferred the

appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-1.

6 We note that‘‘a Porter analysis is separate from ourtest used to determine

whether a witness is qualified to give expert testimony. . . . [A]ll expert

witnesses must be qualified to present expert testimony on a particular

subject. To establish qualifications, the party presenting an expert witness

must show that the witness has special knowledge or skills, not common

to the average person, that would be helpful to the fact finder in resolving

an issue in the case. See, e.g., State v. Kemp, 199 Conn. 473, 476, 507 A.2d

1387 (1986), overruled in part on other grounds by State v. Guilbert, [306

Conn. 218, 226, 49 A.3d 705 (2012)]. A Porter analysis, however, is a ‘further

hurdle,’ beyond the general qualification requirements, for admitting expert

testimony based on ‘scientific’ evidence and methods. See State v. Guilbert,

supra, 230–31. Rather than assessing a witness’ qualifications (i.e., his

knowledge and experience), a Porter analysis assesses the witness’ methods

(i.e., his reasoning and procedures) used to reach his conclusions. An expert

might be qualified to discuss a particular topic, but nevertheless have his

opinion excluded because the methods he used to reach that opinion were

unreliable.’’ (Emphasis in original.) Weaver v. McKnight, supra, 313 Conn.

414–15. In this case the defendant does not challenge the expert’s qualifications but does challenge his methodology.

7 McCabe offered four articles and a presentation published in nationwide

and international scientific journals. One article noted that ‘‘[a] crash phase

after heavy, chronic cocaine use has certainly been well documented.’’ D.

Isenschmid, ‘‘Cocaine—Effects on Human Performance and Behavior,’’ 14

Forensic Sci. Rev. 61, 91 (January 2002).

8 McCabe testified that the crash phase following the use of stimulant

drugs has been studied in the field of toxicology and that these studies

have been subjected to peer review. For example, McCabe explained the

methodology of one study that involved four groups of individuals: one

group was the control in which the individuals were neither sleep deprived

nor had they ingested any stimulant drugs; the second group was only sleep

deprived; the third group had only ingested a stimulant drug; and the fourth

group had ingested a stimulant drug and was sleep deprived. Their driving

was studied and driving performance was measured with a lane drift rubric.

McCabe offered another example, which was a peer reviewed article from

the Journal of Forensic Science Review. See B. Logan, ‘‘Methamphetamine

Effect on Human Performance and Behavior,’’ 14 Forensic Sci. Rev. 133

(January 2002). Logan’s article was based on a study of binge methamphetamine users. McCabe testified that the study revealed that, after a stimulant

wears off, depending on the duration of the binge, the user experiences a

‘‘crash characterized by lengthy nonrestful sleep, which may last a day or

more. . . . [E]ventually the user becomes so tired and fatigued . . . that

they may nod off to sleep, and . . . then start [to experience] dysphoria,

fatigue, inertia and [an]hedonia, meaning a lack of ability to experience

pleasure, and exhaustion.’’ See B. Logan, supra, 142. McCabe also testified

that methamphetamine is a drug related to ecstasy.

9 See D. Isenschmid, ‘‘Cocaine—Effects on Human Performance and

Behavior,’’ 14 Forensic Sci. Rev. 61, 92 (January 2002) (‘‘In all, the current

data suggests that it is very difficult to predict driving impairment on the

basis of the presence of cocaine and/or metabolites in biological specimens.

Eyewitnessed driving behavior, coupled with laboratory studies and examination by a drug recognition examiner, is the triad that, currently, appears

to best determine driving impairment.’’).

10 With regard to the prestige and background of the expert witness supporting the evidence, McCabe’s background demonstrated an undisputedly

comprehensive training and practice in toxicology. McCabe, who holds a

Ph.D in immunology from Albany Medical College, is board certified as a

toxicologist as a diplomat of the American Board of Toxicology and by the

Academy of Toxicological Sciences, and is an adjunct associate professor

of toxicology at the University of Rochester Medical Center. At the time of

the trial, McCabe was a toxicologist at an expert witness and consulting

firm. As a toxicologist, McCabe studied the effects of fatigue and alcohol

and stimulant drug use on a driver’s ability to operate a vehicle. McCabe

also conducted research in toxicology in Sweden as a postdoctoral fellow

at the Karolinska Institute of Environmental Medicine. McCabe testified at

trial that he was taking two to three continuing education courses every

year, and during the years immediately preceding his testimony, McCabe

took courses that specifically addressed the effects of alcohol or drugs on
human performance.

11 For example, McCabe testified that ‘‘[my opinion is that empirical studies

are applicable to the task of driving, and my opinion is] supported by the

scientific literature . . . in that driving is a divided attention task. . . . We

all [drive] every day. But it’s a skill that requires various behaviors: our

ability to remain attentive, to be alert, to have appropriate reaction time,

to have appropriate what we call executive function, meaning we plan out

the route that we’re going to take. We do it before we leave the house. We

do it while we’re [e]n route.’’

McCabe further testified that ‘‘[n]umerous toxicology studies have shown

that under this behavioral skill of being alert and attentive that vigilance

and ability to maintain a vehicle in a proper lane is impaired at levels of

alcohol intoxication such as those found in [the defendant]. [There are]

numerous studies that have shown this. I . . . spoke earlier about a study

from a . . . Netherlands group that had established standard testing protocols for . . . measuring how much vehicles deviate. . . . [T]hese are in

. . . intoxicated driver’s studies. How much a . . . driver deviates as a

function of her blood-alcohol concentration . . . has been well documented, well studied in the scientific toxicology literature and ascribed to

levels of impairment [or] intoxication.’’

12 Specifically, the defendant asserts in his brief that the trial court improperly disallowed evidence that: he was not permitted to drive during his

probationary period unless the probation department,ratherthan the Department of Motor Vehicles, determined that he was ready to drive; he had to

complete 100 hours of community service during each year of his probation;

there would be an ignition interlock device installed in his motor vehicle

in the event that he was permitted to drive; and any motor vehicle violation

would constitute a violation of probation triggering his return to prison.

13 At trial, Laurie Nolan-Kelley, a nurse in the emergency department at

the hospital who treated the defendant following the collision, testified that

she found the defendant drinking from the urinal that she had placed in his

hospital room. Nolan-Kelley testified that the defendant thereafter resisted

giving her the urinal, but that she was able to retrieve it and withdraw

samples for drug screens therefrom. The defendant testified to explain his

conduct: ‘‘I was informed . . . that the motorcyclist, who I later found out

to be [the decedent], was dead. And I was afraid, I knew I had been drinking

earlier in the evening and I was in the process of making the rash decision

to drink my urine when the nurse walked in and grabbed the bedpan from

me.’’ In addition, both Nolan-Kelley and Philip Sundberg, an emergency

room physician who treated the defendant following the collision, testified

that the defendant was difficult to arouse at the time he was to be given

discharge instructions and that his speech was inappropriate.

14 When the plaintiff took the witness stand, her counsel asked her,

‘‘[w]here do you see now, in terms of where your life is going now that [the

decedent is] not in it anymore?’’ The plaintiff replied that she planned to

continue working at the preschool at which she was currently employed,

to help her daughter and to continue the scholarship fund established in

the decedent’s name.