EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.

Docket NºNo. 08-374.
Citation2010 VT 1, 993 A.2d 367
Case DateJanuary 15, 2010
CourtUnited States State Supreme Court of Vermont

993 A.2d 367
2010 VT 1

ESTATE OF Albert GEORGE
v.
VERMONT LEAGUE OF CITIES AND TOWNS.

No. 08-374.

Supreme Court of Vermont.

January 15, 2010.


993 A.2d 368

COPYRIGHT MATERIAL OMITTED

993 A.2d 369

Joseph C. Galanes of Biggam, Fox & Skinner, Montpelier, for Plaintiff-Appellant.

John T. Leddy and Kevin J. Coyle of McNeil, Leddy & Sheahan, P.C., Burlington, for Defendant-Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

¶ 1. SKOGLUND, J.

Claimant appeals from the superior court's order granting summary judgment to insurer in this workers' compensation case.1 He argues that the court: (1) exceeded its jurisdiction under 21 V.S.A. § 671 by granting summary judgment to insurer; and (2) abused its discretion by excluding the expert testimony that he offered. We affirm the trial court's decision.

¶ 2. The trial court found the following facts to be undisputed. Claimant worked for the City of Burlington Fire Department for thirty-six years, first as a firefighter and later as assistant chief. It is not clear if claimant was actively fighting fires throughout his career or if, at some point, he engaged in a combination of administrative work and active duty.

¶ 3. In 2003, claimant died of non-Hodgkin's lymphoma (NHL). His estate brought a workers' compensation action, alleging that his work as a firefighter caused him to develop NHL. The Vermont Department of Labor denied his claim. The Commissioner ruled that although claimant proved that there was an "association" between NHL and firefighting, he failed to establish a "causal connection" between the general activity of firefighting and NHL. The Commissioner found no evidence as to the number of fires that claimant fought, the level of his participation in those fires, or the number of such fires that were industrial or commercial in nature, where known carcinogens might have been present. There was similarly no evidence as to the frequency of exposure or types of exposures that claimant may have had. Without this information, the Commissioner found that NHL was possibly, but not probably, related

993 A.2d 370
to his employment. The Commissioner thus concluded that claimant failed to meet his burden of proof and she denied the claim

¶ 4. Claimant appealed this decision to the superior court, and the Commissioner certified the following question for determination: was claimant's NHL causally related to his work as a firefighter? In August 2007, insurer moved for summary judgment on this question. It asserted that the opinions of claimant's experts should be excluded under Vermont Rule of Evidence 702 as both irrelevant and scientifically unreliable, and that without any admissible evidence of causation, claimant was not entitled to workers' compensation benefits.

¶ 5. Claimant responded by moving to strike the motion for summary judgment. He argued that the standard for the admissibility of expert testimony under Rule 702, delineated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and adopted by this Court in State v. Brooks, 162 Vt. 26, 643 A.2d 226 (1993), did not apply to workers' compensation claims being tried in superior court. He maintained that the trial court was instead bound by the approach taken by the Commissioner, and therefore it was obligated to evaluate the admissibility of the expert testimony using a "plausibility" standard rather than the test set forth in Daubert.2 Claimant also argued that insurer had waived its right to challenge the admissibility of the evidence by failing to raise this argument before the Commissioner. Finally, claimant asserted that the court lacked jurisdiction to grant a motion for summary judgment.

¶ 6. The trial court denied claimant's motion to strike in a written order. It explained that the rules of evidence applied "to all actions and proceedings in the courts of this state," V.R.E. 1101(a), and that it had no discretion to create a new standard for the admission of expert testimony in workers' compensation cases. It noted, moreover, that there was nothing in the workers' compensation statutes that would alter the application of the rules of evidence in such cases. As to claimant's remaining arguments, the court indicated that its review of the Commissioner's decision was de novo, and thus, insurer's failure to raise the Daubert issue below was irrelevant. The court did not directly address the jurisdictional argument.

¶ 7. The court allowed claimant additional time to respond to the merits of the summary judgment motion, and following a hearing, it granted summary judgment to insurer. As discussed in additional detail below, the court found that the expert testimony proffered by claimant did not meet the requirements of Rule 702, and that it was therefore inadmissible. This appeal followed.

¶ 8. We begin with claimant's procedural arguments. Claimant asserts that insurer could not challenge the admissibility of his expert evidence in the trial court proceedings because (1) it failed to raise this argument before the Commissioner; (2) collateral estoppel precluded the relitigation of this issue; and (3) there was no certified question concerning the admissibility of this evidence. Claimant reiterates his position that the trial court should not have applied the rules of evidence, but rather, that it was obligated to apply the same standard as that employed by the Commissioner. Finally, claimant maintains

993 A.2d 371
that the trial court lacked jurisdiction to grant insurer's motion for summary judgment because its jurisdiction is limited to answering questions of fact or mixed questions of fact and law

¶ 9. Claimant appears to misunderstand the nature of the review conducted by the trial court. The court's review of the Commissioner's decision "involves a retrial de novo." Farris v. Bryant Grinder Corp./Wausau Ins. Co., 2005 VT 5, ¶ 10, 177 Vt. 456, 869 A.2d 131 (quotation omitted). That means, as the trial court found, that insurer is not limited to the arguments raised below, and preservation—or lack thereof—is not at issue.3 The doctrine of collateral estoppel is similarly not relevant here because there has not yet been a final judgment on the merits. Cf. Sheehan v. Dep't of Employment & Training, 169 Vt. 304, 308, 733 A.2d 88, 91 (1999) (doctrine of collateral estoppel "bars the subsequent relitigation of an issue which was actually litigated and decided in a prior case between the parties resulting in a final judgment on the merits, where that issue was necessary to the resolution of the action" (quotation omitted)).

¶ 10. It is true, as claimant asserts, that the trial court's jurisdiction in workers' compensation proceedings is limited to a review of questions of fact or questions of fact and law certified to it by the commissioner. 21 V.S.A. § 671; Roethke v. Jake's Original Bar & Grill, 172 Vt. 555, 556, 772 A.2d 492, 493 (2001) (mem.). The question certified in this case was one of fact—did claimant's employment cause his NHL? In the proceedings before the trial court, claimant bore the burden of producing sufficient evidence to support his claim that this question should be answered in the affirmative, and that he was therefore entitled to workers' compensation benefits. See, e.g., Goodwin v. Fairbanks Morse & Co., 123 Vt. 161, 166, 184 A.2d 220, 223 (1962) ("The burden is on the claimant to establish the facts essential to the right asserted.").

¶ 11. In evaluating this case, the trial court was obligated to apply the rules of evidence and to determine if the expert testimony proffered by claimant was relevant and admissible. See V.R.E. 1101(a) (rules of evidence apply "to all actions and proceedings in the courts of this state"); V.R.E. 104(a) (preliminary questions concerning admissibility of evidence shall be determined by trial court); V.R.E. 402 (evidence that is not relevant is not admissible); 985 Assocs., Ltd. v. Daewoo Elecs. Am., Inc., 2008 VT 14, ¶ 6, 183 Vt. 208, 945 A.2d 381 (trial judges must "act as gatekeepers who screen expert testimony ensuring that it is reliable and helpful to the issue at hand before the jury hears it" (quotation omitted)); cf. 21 V.S.A. § 602 (all processes and procedures under provisions of Title 21, chapter 9, shall be as summary and simple as reasonable may be); id. § 604 (Commissioner of Labor not bound by common law or statutory rules of evidence or by technical or formal rules of procedure except as provided in Title 21, chapter 9, and he or she may conduct hearing or trial in such manner as to ascertain substantial rights of parties). The trial court was similarly obligated to apply the rules of civil procedure, including Vermont Rule of Civil Procedure 56. See V.R.C.P. 1 (rules of civil procedure govern procedure in trial courts in all suits of a

993 A.2d 372
civil nature, including appeals to the trial court from any department of the state or any political subdivision thereof). Contrary to claimant's assertion, the court did not need certified questions from the Commissioner to enable it to apply the rules of evidence and civil procedure

¶ 12. We reject claimant's suggestion that these rules are somehow inapplicable in workers' compensation cases heard by the superior court. Claimant cites Crosby v. City of Burlington, 176 Vt. 239, 249-50, 844 A.2d 722, 729-30 (2003), as support for his assertion that the Commissioner's interpretation of Vermont workers' compensation law is controlling absent compelling indication of error. We are not addressing the Commissioner's interpretation of workers' compensation law here, however; we are considering the applicability of the rules of evidence and civil procedure to proceedings conducted in a trial court. The Commissioner has no expertise in such matters, and no deference to the Commissioner's approach is required. Cf. In re Cent. Vt. Pub. Serv. Corp., 172 Vt. 14, 19-20, 769 A.2d 668, 673 (2001) (affording no...

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18 practice notes
  • In re Lathrop Ltd. P'ship I, Nos. 13–444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...before Scott, our prior decisions were entirely consistent with its holding. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 71, 187 Vt. 229, 993 A.2d 367 (applying Vermont Rule of Evidence 401 in Daubert context); State v. Brochu, 2008 VT 21, ¶ 49, 183 Vt. 269, 949 A......
  • In re Lathrop Ltd., No. 2013-444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...before Scott, our prior decisions were entirely consistent with its holding. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 71, 187 Vt. 229, 993 A.2d 367 (applying Vermont Rule of Evidence 401 in Daubert context); State v. Brochu, 2008 VT 21, ¶ 49, 183 Vt. 269, 949 A......
  • Stocker v. State, 2020-081
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 3, 2021
    ...of the weight of the evidence- matters squarely within the province of the jury. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 56, 187 Vt. 229, 993 A.2d 367 (Reiber, C.J., dissenting) ("[E]valuating an expert's credibility and the weight of the evidence is the ......
  • Capitol Plaza Act 250, 59-5-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 18, 2020
    ...Applicants raised the jurisdictional challenge in their statement of questions. Estate of George v. Vermont League of Cities & Towns, 2010 VT 1, ¶ 9, 187 Vt. 229 371 (2010). In a de novo proceeding, this Court does not consider decisions issued below, and reviews the application "a......
  • Request a trial to view additional results
18 cases
  • In re Lathrop Ltd. P'ship I, Nos. 13–444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...before Scott, our prior decisions were entirely consistent with its holding. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 71, 187 Vt. 229, 993 A.2d 367 (applying Vermont Rule of Evidence 401 in Daubert context); State v. Brochu, 2008 VT 21, ¶ 49, 183 Vt. 269, 949 A......
  • In re Lathrop Ltd., No. 2013-444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...before Scott, our prior decisions were entirely consistent with its holding. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 71, 187 Vt. 229, 993 A.2d 367 (applying Vermont Rule of Evidence 401 in Daubert context); State v. Brochu, 2008 VT 21, ¶ 49, 183 Vt. 269, 949 A......
  • Stocker v. State, 2020-081
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 3, 2021
    ...of the weight of the evidence- matters squarely within the province of the jury. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 56, 187 Vt. 229, 993 A.2d 367 (Reiber, C.J., dissenting) ("[E]valuating an expert's credibility and the weight of the evidence is the ......
  • Capitol Plaza Act 250, 59-5-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 18, 2020
    ...Applicants raised the jurisdictional challenge in their statement of questions. Estate of George v. Vermont League of Cities & Towns, 2010 VT 1, ¶ 9, 187 Vt. 229 371 (2010). In a de novo proceeding, this Court does not consider decisions issued below, and reviews the application "a......
  • Request a trial to view additional results

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