Crockford v. Spencer et al

Filing 63

ORDER denying 35 Motion to Preclude; denying 37 Motion for Summary Judgment. See attached ruling. Signed by Judge Holly B. Fitzsimmons on 2/3/2012. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KATHLEEN CROCKFORD
v.
LAWRENCE M. SPENCER, METALS
USA PLATES AND SHAPES
NORTHEAST, L.P., METALS USA
PLATES AND SHAPES SOUTHWEST,
L.P., METALS USA, INC., AND
METALS USA HOLDINGS CORP.

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CIV. NO. 3:10CV813(HBF)

RULING ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
[DOC. #37] AND MOTION TO PRECLUDE EXPERT GARY CRAKES [DOC. #35]
This case arises out of a collision that occurred at the
intersection of Routes 1 and 1A in Stonington, CT. Defendant
Lawrence Spencer, driving a fully-loaded flatbed truck, rearended plaintiff, who was stopped on Route 1 and waiting to take a
left hand turn onto Route 1A. Pending is defendants’ partial
motion for summary judgment [doc. #37], seeking summary judgment
on counts two, three and eight of plaintiff’s May 5, 2010
complaint [doc. #1]. Count two against Lawrence Spencer alleges
recklessness, count three against Spencer alleges statutory
recklessness and count 8 against Metals USA Plates and Shapes,
Northeast, L.P. alleges negligent entrustment. [doc. #1-1].
Plaintiff has stipulated to the dismissal of count eight of the
complaint. [doc. #50]. Therefore, the Court need only address
defendants’ motion with regard to counts two and three. Also
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pending is defendants’ motion to preclude plaintiff’s expert Gary
Crakes [doc. #35].

For the reasons that follow, the motion for

partial summary judgment [doc. #37] is DENIED and the motion to
preclude plaintiff’s expert Gary Crakes [doc. #35] is DENIED.
I. FACTS
Based on the pleadings, the parties' Local Rule 56(a)
Statements, and the exhibits provided, the Court finds the
following facts, which, for purposes of this motion, are
construed in the light most favorable to plaintiff.
On May 29, 2008, plaintiff the Reverend Kathleen Crockford,
was driving her car, a VW Beetle convertible, heading west on
Stonington Road, also known as Route 1 in Stonington. As
plaintiff approached Route 1A, which forked to the left, she
brought her car to a stop behind a van, driven by Lisa Stoner.
Both plaintiff and Stoner intended to make left hand turns onto
Route 1A once the oncoming traffic subsided. Defendant Spencer, a
commercial truck driver for approximately 24 years, was operating
a flatbed tractor-trailer on Route 1 in the same direction as
Stoner and plaintiff. Spencer also intended to make a left hand
turn onto Route 1A . Upon approaching Route 1A, Spencer saw
Stoner and plaintiff’s car stopped on Route 1 waiting to turn
left. Spencer failed to stop the truck in time and rear-ended the
back of plaintiff’s car. Plaintiff was rendered unconscious and
airlifted by Life Star Helicopter to Hartford Hospital. This

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litigation ensued.
II. SUMMARY JUDGMENT [DOC. #37]
A. Legal Standard
At the summary judgment stage, the moving party bears the
burden of demonstrating that no genuine issue exists as to any
material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25
(1986), and the court must resolve all ambiguities and draw all
inferences in favor of the non-movant. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Holcomb v. Iona College,
521 F.3d 130, 137 (2d Cir. 2008). If the moving party carries its
burden, the party opposing summary judgment “may not rely merely
on allegations or denials.” Fed. R. Civ. P. 56(e)(2). Rather, the
opposing party must “set out specific facts showing a genuine
issue for trial.” Id. In short, the nonmovant “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 249-50 (citations
omitted).

A party may not create a genuine issue of material

fact simply by presenting contradictory or unsupported
statements. See SEC v. Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978). Nor may he rest on “allegations or denials”
contained in his pleadings. Goenaga v. March of Dimes Birth
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Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
B. Discussion
Plaintiff alleges that she was injured as a result of
defendant’s negligence and/or recklessness. Defendant counters
that as a matter of law he is entitled to summary judgment on the
recklessness counts because there is no evidence to support the
cause of action.
Recklessness “is more than negligence, more than gross
negligence.” Dubay v. Irish, 207 Conn. 518, 532 (1988) (internal
quotations omitted). The Connecticut Supreme Court has defined
recklessness as follows:
Recklessness is a state of consciousness with reference to
the consequences of one's acts.... It is more than
negligence, more than gross negligence.... The state of mind
amounting to recklessness may be inferred from conduct. But,
in order to infer it, there must be something more than a
failure to exercise a reasonable degree of watchfulness to
avoid danger to others or to take reasonable precautions to
avoid injury to them.... Wanton misconduct is reckless
misconduct.... It is such conduct as indicates a reckless
disregard of the just rights or safety of others or of the
consequences of the action....
Craig v. Driscoll, 262 Conn. 312, 342,(2003) (internal quotations
omitted). “[R]eckless conduct tends to take on the aspect of
highly unreasonable conduct, involving an extreme departure from
ordinary care, in a situation where a high degree of danger is
apparent.... [S]uch aggravated negligence must be more than any
mere mistake resulting from inexperience, excitement, or

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confusion, and more than mere thoughtlessness or inadvertence, or
simply inattention.” Id. Statutory recklessness, pursuant to
C.G.S. § 14-295 requires the same level of culpability as common
law recklessness. See Bishop v. Kelly, 206 Conn. 608, 614 (1988).
In the instant case, relevant and material facts are
disputed, such as whether the brakes malfunctioned, whether the
maxi-brakes were applied, whether the jake brake should have been
engaged, whether the defendant could have avoided or mitigated
the collision be veering off to the right. And plaintiff in
opposing the summary judgment has come forth with evidence
establishing these ambiguities.1 Construing the facts in the
light most favorable to the plaintiff, as is common with an
allegation of recklessness, there remain genuine issues of
material fact as to whether defendant’s conduct exhibited a
reckless disregard of the just rights or safety of others or of
the consequences of his action. See Doe v Talabi,2009 WL 2784854,
Docket No. CV 07-5009974-S, (Conn. Super. Ct. Aug. 7, 2009)
(recklessness usually presents questions of fact unsuitable for
summary judgment unless no reasonable mind can differ as to the
conclusion). As such, partial summary judgment on counts 2 and 3

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In arriving at this conclusion, the Court did not rely on
the testimony of Lew Grill, plaintiff’s trucking expert. Instead,
the Court relied on the police accident reconstruction report,
Spencer’s deposition, and voluntary statemens made by an eye
witness, attesting that the tractor-trailer did not slow down
prior to the accident.
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is DENIED.
III. MOTION TO PRECLUDE EXPERT [DOC. #35]
Plaintiff has disclosed Dr. Gary Crakes as an expert on the
topic of plaintiff’s economic loss following the accident. Dr.
Crakes calculated the plaintiff’s lifetime unimpaired earning
capacity from January 1, 2009 to the age of 65 and also from
January 1, 2009 to the age of 70. Defendants move to preclude
Gary Crakes.
A witness with “scientific, technical, or other specialized
knowledge” may be qualified to testify based on such expertise.
Fed.R.Evid. 702. A district court is assigned a “gatekeeping”
role in determining whether expert testimony is permitted under
the federal rules. See United States v. Farhane, 634 F.3d 127,
158 (2d Cir. 2011). The court must ensure “‘that an expert's
testimony both rests on a reliable foundation and is relevant to
the task at hand.’” United States v. Williams, 506 F.3d 151, 160
(2d Cir.2007) (quoting Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 597 (1993)). When assessing reliability, Rule 702
provides a number of nonexclusive factors to consider, including:
“(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed.R.Evid. 702; see
Williams, 508 F.3d at 160 (“[T]hese criteria are not
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exhaustive.”).
Defendants argue that Dr. Crake’s testimony does not meet
the admissibility criteria set forth in Federal Rule of Evidence
702 and under Daubert, 509 U.S. 579 (1993). Defendants argue that
Dr. Crake’s opinion is unreliable because, (1) it fails to deduct
social security disability income and short and long term
disability income which plaintiff received and continues to
receive, and, (2) it fails to provide support for his assumptions
regarding plaintiff’s work-life, earnings base and loss of
household services.
At the outset, the Court notes that defendants take no issue
with the expert’s qualifications and the Court agrees that Dr.
Crakes is qualified to render an opinion in this case.
As to defendants’ first argument, the Court disagrees that Dr.
Crakes’ failure to deduct social security income and disability
income from his calculations renders the opinion unreliable.
First, plaintiff enlisted Dr. Crakes to provide an analysis of
her lost earning capacity, which is precisely what Dr. Crakes’
report measures. The opinion calculates what plaintiff has been
and will be precluded from earning as a result of the accident.
Whether there are any potential offsets that could affect the
amount of damages awarded if plaintiff were to prevail at trial
is separate and apart from the issue of plaintiff’s lost earning
capacity. Second, pursuant to Conn. Gen. Stat. § 52-225a, any

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reductions for collateral source payments would be made at the
end of trial by the judge if plaintiff were to prevail at trial.
Third, social security income is not a collateral source,
according to the Connecticut Supreme Court’s interpretation of
Conn. Gen. Stat. § 52-225a in Schroeder v. Triangulum Associates,
259 Conn. 325 (2002), and therefore would not be deducted.
As to defendants’ second argument, while the court “must
focus on the principles and methodology employed by the expert”,
the expert does not have to “back his or her opinion with
[evidence] that unequivocally support[s] his or her conclusions.”
Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 266 (2d
Cir. 2002). Further, an expert may be qualified based solely “on
his experience,” and “such an expert must show how his or her
experience ... led to his conclusion or provided a basis for his
opinion.” SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props., LLC,
467 F.3d 107, 132 (2d Cir. 2006) (internal quotation marks
omitted).
To arrive at his income loss calculation, Dr. Crakes made
certain assumptions which defendants argue are unfounded. These
assumptions are: (1) that plaintiff had mean annual earnings of
$92,150 for 2006 and 2007; (2) that the plaintiff’s work life
would have extended to the age of 65 or 70; and, (3) that
plaintiff suffered a 50 percent reduction in her ability to
perform household services. With regard to the estimated mean

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annual earnings, Dr. Crakes arrived at this number by relying on
the plaintiff’s tax returns, which included W-2 earnings, as well
as earnings from self-employment. In making the assumptions about
plaintiff’s work life and reduction in household services, Dr.
Crakes relied on the expert report of Albert Sabella, a
vocational expert who, among other things, noted that Ms.
Crockford reported limitations in her ability to perform
household chores such as paying bills on time, food preparation,
laundry, and grocery shopping and that Ms. Crockford’s work as a
minister is a lifestyle as well as a vocation which can extend
well beyond the age of 65. [doc. #44-1, at 8]. The bases for Dr.
Crakes’ assumptions are well supported and any disagreement by
the defendants as to Dr. Crakes’ assumptions, calculations or
conclusions is fodder for cross-examination.
IV. CONCLUSION
For the foregoing reasons, defendants’ motion for partial
summary judgment [doc. #37] is DENIED and defendants’ motion to
preclude the expert Dr. Crakes [doc. #35] is DENIED.
a recommended ruling.

This is not

The parties consented to proceed before a

United States Magistrate Judge [doc. #59] on December 20, 2011
with appeal to the Court of Appeals.
SO ORDERED at Bridgeport this 3RD

day of February 2012.

/s/
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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