Scott Clemons, Administrator v. Carl M. Miele

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Superior Court of Connecticut.

Scott Clemons, Administrator v. Carl M. Miele

UWYCV116010477

Decided: July 02, 2013

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, # 140

I

ISSUE

Whether the court should grant the defendant summary judgment on the ground that the undisputed material facts demonstrate that the decedent's death was not proximately caused by the defendant's conduct?

II

FACTS

This case arises from the death of Jessica Clemons on February 9, 2010.   The plaintiff, Scott Clemons, brings this action as the administrator of the decedent's estate.   Based on the record, the following facts are undisputed.

On December 15, 2009, the decedent was driving on Route 8 in Waterbury, Connecticut.   At the same time, a vehicle driven by the defendant, Carl Miele, collided with the decedent's vehicle.   As a result of the collision, the decedent was admitted to St. Mary's Hospital in Waterbury and was released the same day.   The decedent was diagnosed with an abdominal wall contusion for which she was prescribed Lortab and Relafen.

On February 9, 2010, the decedent was found pale and unresponsive on her bed in the bedroom of her home.   Emergency personnel arrived on the scene and determined that the decedent had died.   On February 10, 2010, the office of the chief medical examiner conducted an autopsy on the decedent and determined her cause of death to be “oxycodone toxicity.” 1  Both parties agree that the decedent's death resulted from the ingestion of prescription medication approximately two months after her motor vehicle accident with the defendant.

The two-count complaint was filed on June 22, 2011.   The plaintiff alleges that the December 15, 2009 motor vehicle accident and the decedent's resultant injuries, including her death on February 9, 2010, were the direct and proximate result of the negligence and recklessness of the defendant.   The first count is brought under General Statutes § 52–555,2 Connecticut's wrongful death statute, and alleges that the defendant's negligence caused the decedent to suffer multiple blunt force traumatic injuries, emotional distress, death, severe ante-mortem pain and suffering, medical and funeral expenses, destruction of earning capacity and destruction of her ability to carry on and enjoy life's activities.   The second count is brought under both General Statutes §§ 52–555 and 14–295.3  In count two, the plaintiff pleads that the defendant's reckless operation of a motor vehicle violated § 14–295 and caused the same injuries outlined in the first count.

The defendant filed a motion for summary judgment (# 140) on January 28, 2013.   The defendant urges the court to grant summary judgment because the decedent's death was not proximately caused by the defendant's conduct two months prior.   The defendant argues that the decedent's ingestion of prescription medication and cocaine destroyed a causal connection between her death and the defendant's conduct.   In support of the motion, the defendant has attached medical records, police and coroner's reports and interrogatory responses.

The plaintiff filed a memorandum in opposition to summary judgment on April 23, 2013 (# 142).   The plaintiff contends that there remain genuine issues of material fact and that court may not grant summary judgment by parsing damage claims within individual counts.   The plaintiff attached an expert witness disclosure for Michael Blue and an affidavit by Blue as exhibits.   The defendant submitted a reply on May 3, 2013 (# 143).   The matter was heard at short calendar on May 6, 2013.   Additional relevant facts are provided where necessary.

III

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Stewart v. Watertown, 303 Conn. 699, 709–10, 38 A.3d 72 (2012).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

A

Whether Blue's Affidavit may be Considered by the Court

The court must first address whether it may consider Blue's affidavit for the purposes of deciding whether to grant summary judgment.   The defendant argues that the court may not consider Blue's affidavit because it is insufficient, inadmissible, not based on personal knowledge and does not provide an appropriate foundation for the opinions contained therein.   The court disagrees with the defendant.

“[Practice Book § 17–46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding.   The material must:  (1) be based on ‘personal knowledge’;  (2) constitute facts that would be admissible at trial;  and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit.”  Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995).

In Barrett v. Danbury Hospital, supra, 232 Conn. 242, our Supreme Court addressed whether a trial court may consider a medical expert's affidavit when rendering a decision on a motion for summary judgment.  “The requirements that the affidavit be based on ‘personal knowledge’ and contain ‘facts' admissible at trial do not mean ․ that expert opinions in the form of affidavits may not be considered in a summary judgment proceeding.   For the purposes of an expert's opinion, the expert's ‘personal knowledge’ of ‘facts' is comprised of those materials on the basis of which he properly may render his opinion ․ These materials include those on the basis of which the expert forms an opinion, and include such hearsay as medical records ․ Furthermore, an expert's opinion is, for purposes of § [17–46], a ‘fact’ that would be admissible at trial, assuming that the expert is qualified to render such an opinion.”  (Citations omitted.)  Id., 251–52.

The court finds that Blue's affidavit fulfills the first two requirements of § 17–46:  the assertions in the affidavit are based on Blue's personal knowledge and constitute facts that would be admissible at trial.   Blue avers that his opinion is based upon medical records pertaining to the decedent's December 15, 2009 motor vehicle collision, the autopsy report and speaking with the decedent's father.   The Appellate Court has specifically provided that an expert may properly form the basis of his opinion on medical records.   See id., 252.   Therefore, for the purposes of § 17–46, Blue's assertions are based upon his personal knowledge and constitute facts that would be admissible at trial.

The court additionally finds that, through the affidavit and the accompanying expert disclosure, the plaintiff has affirmatively shown that Blue is competent to testify to the matters stated in the affidavit, fulfilling the third requirement of § 17–46.  “The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions ․ Expert testimony should be admitted when:  (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues ․ It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter;  but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue ․ Implicit in this standard is the requirement ․ that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.”  (Internal quotation marks omitted.)  Baranowski v. Safeco Ins. Co. of America, 119 Conn.App. 85, 94–95, 986 A.2d 334 (2010);  see also see Conn.Code Evid. § 7–2.4

In the present case, Blue's affidavit and the expert witness disclosure demonstrate that Blue is a medical doctor who serves in teaching and supervisory positions in forensic and clinical psychiatry at Tulane University School of Medicine.   In the affidavit, Blue opines that there is a link between the decedent's ingestion of pain-mitigating and anti-anxiety medication and the decedent's motor vehicle accident.   The court finds that the plaintiff has demonstrated that Blue has knowledge directly applicable to matters specifically in issue.   The motor vehicle accident's effect on the decedent's psychiatric and physical condition may be critical in determining liability.   Blue has medical knowledge that will assist the court in determining what substantial factors caused the decedent's death.   The court finds that Blue is qualified as an expert witness.   Therefore, the court will consider Blue's affidavit when deciding this motion for summary judgment.

B

Whether Material Fact Exists as to Defendant's Conduct Proximately Causing Decedent's Death

The defendant urges the court to grant summary judgment on the ground that the defendant's involvement in the December 15, 2009 motor vehicle accident was not the proximate cause of the decedent's death on February 9, 2010.   The plaintiff contends that Blue's affidavit creates a genuine issue of material fact that precludes the court from granting summary judgment.

In support of his motion, the defendant presented medical records, interrogatory responses as well as police and coroner's reports that indicate that the defendant died of “oxycodone toxicity” as the result of ingesting prescription medication.5  In response, the plaintiff presented Blue's affidavit.

Blue avers that he reviewed the decedent's medical records pertaining to the December 15, 2009 motor vehicle accident and the autopsy report and gathered additional facts from the decedent's father.   The affidavit provides:  “Based on my education, training and professional experience it is my opinion that, to a reasonable degree of medical probability, Jessica Clemons' death resulted from her ingestion of pain-mitigating and anti-anxiety medications which she consumed to address ongoing symptoms of pain and depression resulting from her December 15, 2009 motor vehicle collision.”   Blue additionally avers:  “It is my opinion that, to a reasonable degree of medical probability, Jessica Clemons' December 15, 2009 motor vehicle collision and her resulting injuries and symptoms led to, and were a substantial factor in bringing about her death on February 9, 2010.”

“The elements of a cause of action ․ for a wrongful death are clear from the explicit language of the statute [§ 52–555], which as a statute in derogation of the common law is limited to matters clearly within its scope ․ The plaintiff must prove not only a violation of a standard of care as a wrongful act, but also a causal relationship between the injury and the resulting death.   A causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case.”  (Internal quotation marks omitted.)  Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).

“Causation is an element of a cause of action in negligence”;  Mulcahy v. Hartell, 140 Conn.App. 444, 451, 59 A.3d 313 (2013);  as well as recklessness.  Alexander v. Vernon, 101 Conn.App. 477, 483, 923 A.2d 748 (2007).  “[A] plaintiff must establish that the defendant's conduct legally caused the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury.”  (Internal quotation marks omitted.)   Mulcahy v. Hartell, supra, 451–52.  “Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions.”  (Internal quotation marks omitted.)  Sapko v. State, 305 Conn. 360, 372–73, 44 A.3d 827 (2012).  “The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise.”  (Internal quotation marks omitted.)  Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407 (2007).  “The test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury.   The substantial factor test asks ․ whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.”   (Internal quotation marks omitted.)  Mulcahy v. Hartell, supra, 452.

“[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”  Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013).  “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Alexander v. Vernon, supra, 101 Conn.App. 485.

There is no Connecticut authority addressing the proximate relationship between an initial injury and a later medication overdose in the context of a motion for summary judgment.   Many federal and state courts have denied defendants' motions for summary judgment where issues remain unresolved regarding the causal relationship between an initial injury and a later overdose.6  See, e.g., Leja v. Schmidt Mfg., Inc., United States District Court, Docket No. 01CV5042 (DRD) (D.N.J. July 1, 2010) (genuine issue of material fact existed as to whether worker's death from fatal alcohol overdose was proximately caused by an industrial accident with the manufacturer's bulk sandblasting unit);  Wetstein v. West Terrace Construction Co., United States District Court, Docket No. 95CV5476 (CSH) (S.D.N.Y. July 16, 1999) (sufficient evidence to preclude summary judgment where plaintiff's medical expert opined “the chronic and intractable pain [from work accident] that [decedent] was experiencing ․ led him to inject himself with a pain killer, morphine, which resulted in his death”);  Bak v. Burlington Northern, Inc., 93 Ill.App.3d 269, 417 N.E.2d 148 (1981) (reversing grant of summary judgment to defendant as to wrongful death claim where decedent overdosed on painkillers nine months after she was injured in fall).

In the present case, issues regarding proximate cause remain unresolved.   There is no dispute that the decedent's death resulted from her ingestion of medication approximately two months after a motor vehicle collision between the decedent and the defendant.   Nevertheless, Blue's affidavit suffices to create a genuine issue of material fact about whether the decedent's injuries resulting from her motor vehicle collision with the defendant were a substantial factor in bringing about her death.7  “[A]n expert's opinion is, for the purposes of [Practice Book § 17–46] a ‘fact’ that would be admissible at trial ․” Barrett v. Danbury Hospital, supra, 232 Conn. 251–52.   Additionally, the defendant has not met his burden of demonstrating the absence of a proximate relationship between the decedent's injuries from the motor vehicle accident and the ingestion of medication that caused her death.   The defendant suggests that oxycodone, the drug to which the coroner's report attributes the decedent's death, is unrelated to Lortab and Relafen, which the medical records suggest she was prescribed after the collision.   There is no evidence on the record regarding the characteristics of prescription medication that would lead the court to that conclusion, however.8

The defendant provided several decisions that purport to demonstrate there is no proximate cause between an initial injury and the subsequent ingestion of medication.   Among those decisions are Sapko v. State, supra, 305 Conn. 360.   In Sapko, our Supreme Court held that evidence supported the workers' compensation commissioners' finding that an employee's ingestion of excessive quantities of prescribed medications, for reasons that bore no relationship to his employment-related injury, constituted an intervening event that broke the chain of causation.9  Id., 388.   The workers' compensation commissioner in Sapko acted as a finder of fact 10 and, after a hearing, found the employer's expert “to be to be credible and persuasive”;  id., 367;  and “did not find [the employee's expert] to be credible.”  Id. Likewise, almost all of the decisions provided by the defendant from other jurisdictions did not address motions for summary judgment, rather those decisions were reviews of state workers' compensation commissions' findings after considering evidence.11  See, e.g., Williams v. White Castle Systems, Inc., 173 S.W.3d 231 (Ky.1995) (reviewing decision of state workers' compensation commission);  Carr v. Unit No 8169/Midwestern Distribution, 237 Kan. 660, 703 P.2d 751 (1985) (same);  In re Death of Sade, 649 P.2d 538 (Okla.1982) (same).

In the present case, a motion for summary judgment is before the court.   While the workers' compensation commissioner in Sapko considered the credibility of expert testimony and weighed the facts before the tribunal, that is not the role of this court at this procedural juncture.  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 233.

Viewing the evidence in a light most favorable to the plaintiff, the court cannot say there is no room for a reasonable disagreement that the defendant's conduct was a substantial factor in bringing about the decedent's death.   The affidavit of the plaintiff's expert creates a genuine issue of material fact.   The defendant has failed to meet his burden in demonstrating that there is no genuine issue of material fact as to whether the decedent's ingestion of medication was related to the motor vehicle collision and the injuries that resulted.12  The defendant's motion for summary judgment is hereby denied.

IV

CONCLUSION

The defendant's motion for summary judgment is hereby denied.

Zemetis, J.

FOOTNOTES

FN1. The medical examiner's toxicity report indicated that, in addition to oxycodone, the decedent had cocaine and alprazolam (generic form of Xanax) in her system at the time of her death..  FN1. The medical examiner's toxicity report indicated that, in addition to oxycodone, the decedent had cocaine and alprazolam (generic form of Xanax) in her system at the time of her death.

FN2. General Statutes § 52–555 provides in relevant part:  “(a) 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, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of ․”.  FN2. General Statutes § 52–555 provides in relevant part:  “(a) 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, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of ․”

FN3. General Statutes § 14–295 provides:  “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, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”.  FN3. General Statutes § 14–295 provides:  “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, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”

FN4. Section 7–2 of the Connecticut Code of Evidence provides:  “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”.  FN4. Section 7–2 of the Connecticut Code of Evidence provides:  “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

FN5. The defendant asserts that the medication that caused the decedent's death was stolen.   The court finds that the defendant's allegations regarding the origin of the prescription medication are based on hearsay witness statements contained within the police report, which the court may not consider in resolving a motion for summary judgment.   Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007).   Although police reports are normally admissible under the business records exception to the hearsay rule as set forth in General Statutes § 52–180;  see Paquette v. Hadley, 45 Conn.App. 577, 581, 697 A.2d 691 (1997);  witness statements contained within the reports do not fall within this exception.  Id..  FN5. The defendant asserts that the medication that caused the decedent's death was stolen.   The court finds that the defendant's allegations regarding the origin of the prescription medication are based on hearsay witness statements contained within the police report, which the court may not consider in resolving a motion for summary judgment.   Hearsay evidence is inadmissible for the purpose of supporting or defeating a motion for summary judgment.  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 534, 923 A.2d 638 (2007).   Although police reports are normally admissible under the business records exception to the hearsay rule as set forth in General Statutes § 52–180;  see Paquette v. Hadley, 45 Conn.App. 577, 581, 697 A.2d 691 (1997);  witness statements contained within the reports do not fall within this exception.  Id.

FN6. In contrast to the defendant's contentions, these decisions have not always required that the substances that caused the overdose be prescribed as a result of the previous injury for genuine issues of material fact to remain unresolved..  FN6. In contrast to the defendant's contentions, these decisions have not always required that the substances that caused the overdose be prescribed as a result of the previous injury for genuine issues of material fact to remain unresolved.

FN7. The defendant is correct that a party's conclusory statements “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   In the present case, however, Blue's affidavit properly relies upon the decedent's medical records and coroner's report and, therefore, provides more than mere conclusory statements..  FN7. The defendant is correct that a party's conclusory statements “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   In the present case, however, Blue's affidavit properly relies upon the decedent's medical records and coroner's report and, therefore, provides more than mere conclusory statements.

FN8. The court does not decide here whether the defendant presents a correct interpretation of whether an initial injury was the proximate cause of a medication overdose, which he suggests requires the medication be prescribed as a result of the initial injury.   Nevertheless, the plaintiff's failure to meet the burden for even his own suggested proximate cause standard indicates that genuine issues of material fact remain..  FN8. The court does not decide here whether the defendant presents a correct interpretation of whether an initial injury was the proximate cause of a medication overdose, which he suggests requires the medication be prescribed as a result of the initial injury.   Nevertheless, the plaintiff's failure to meet the burden for even his own suggested proximate cause standard indicates that genuine issues of material fact remain.

FN9. Without deciding whether such analysis would alter the result in the present case, it is noteworthy that, in negligence cases such as the present case, the superseding cause doctrine has been “largely abandoned ․ in favor of comparative and contributory negligence.”   Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 45, 946 A.2d 839 (2008).   The Supreme Court in Sapko nevertheless held that the commissioner properly applied the superseding cause doctrine because “[w]orkers' compensation cases ․ are not decided by juries but, rather, by trial commissioners.   In such cases, there is not the same concern that the trier of fact will be confused by the concept of a superseding cause in deciding the element of causation.”  Sapko v. State, supra, 305 Conn. 378..  FN9. Without deciding whether such analysis would alter the result in the present case, it is noteworthy that, in negligence cases such as the present case, the superseding cause doctrine has been “largely abandoned ․ in favor of comparative and contributory negligence.”   Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 45, 946 A.2d 839 (2008).   The Supreme Court in Sapko nevertheless held that the commissioner properly applied the superseding cause doctrine because “[w]orkers' compensation cases ․ are not decided by juries but, rather, by trial commissioners.   In such cases, there is not the same concern that the trier of fact will be confused by the concept of a superseding cause in deciding the element of causation.”  Sapko v. State, supra, 305 Conn. 378.

FN10. “[T]he power and duty to determine the facts rests on the commissioner, who is the trier of fact ․ This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.”  (Internal quotation marks omitted.)  Cervero v. Mory's Ass'n, Inc., 122 Conn.App. 82, 93, 996 A.2d 1247, cert. denied, 298 Conn. 908, 3 A.3d 68 (2010)..  FN10. “[T]he power and duty to determine the facts rests on the commissioner, who is the trier of fact ․ This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.”  (Internal quotation marks omitted.)  Cervero v. Mory's Ass'n, Inc., 122 Conn.App. 82, 93, 996 A.2d 1247, cert. denied, 298 Conn. 908, 3 A.3d 68 (2010).

FN11. Vance v. Trimble, 116 Ohio App.3d 549, 688 N.E.2d 1049 (1996), appeal dismissed, 30 Ohio St.3d 1208, 685 N.E.2d 539 (1997), did uphold a trial court's granting of summary judgment to the Ohio Administrator of Workers' Compensation after an employee was denied recovery for treatment of a drug overdose.   Similar to the other decisions cited by the defendant, however, the Vance court ultimately reviewed a decision initially made by a workers' compensation administrative body.   Additionally, the decision in Vance was based on Ohio's specific workers' compensation act, which bars benefits for purposely self-inflicted injuries.   Ohio's workers' compensation scheme has no bearing on this action..  FN11. Vance v. Trimble, 116 Ohio App.3d 549, 688 N.E.2d 1049 (1996), appeal dismissed, 30 Ohio St.3d 1208, 685 N.E.2d 539 (1997), did uphold a trial court's granting of summary judgment to the Ohio Administrator of Workers' Compensation after an employee was denied recovery for treatment of a drug overdose.   Similar to the other decisions cited by the defendant, however, the Vance court ultimately reviewed a decision initially made by a workers' compensation administrative body.   Additionally, the decision in Vance was based on Ohio's specific workers' compensation act, which bars benefits for purposely self-inflicted injuries.   Ohio's workers' compensation scheme has no bearing on this action.

FN12. The defendant has not met his burden of showing that there is no genuine issue as to any material fact.   Therefore, the court need not address the plaintiff's alternate argument that the court may not grant summary judgment by parsing damage claims within individual counts..  FN12. The defendant has not met his burden of showing that there is no genuine issue as to any material fact.   Therefore, the court need not address the plaintiff's alternate argument that the court may not grant summary judgment by parsing damage claims within individual counts.

Zemetis, Terence A., J.

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