1 THERMOGRAPHY - HELPING THE PERSONAL INJURY PLAINTIFF SUBSTANTIATE PAINFUL SOFT TISSUE AND NERVE INJURIES I. INTRODUCTION Establishing believability in the plaintiff's pain is crucial for the attorney handling the personal injury plaintiff with chronic neck or back pain. 1 It is also difficult, since often there is no visible evidence that any injury has occurred. 2 Because pain cannot be directly observed or measured, its authenticity is usually questioned. 3 In cases involving soft tissue injuries, it is critical that the plaintiff's attorney fully convey to the jury the nature, extent, and severity of the plaintiff's injuries, given the lack of both objective and clinical evidence to substantiate the plaintiff's testimony of subjective complaints." The ability to establish that an injury has occurred and is associated with pain and suffering is essential in a personal injury case so that the victim 1. Spector, Pain and Suffering: Current Concepts, 34 MED. TRIAL TECH. Q. 202 (1987) (discusses the assessment of pain and suffering). 2. Corey, Chronic Pain Syndrome: Identification and Management, 9 ADVOC. Q. 223, 230 (1988) (explores the nature, development, prevention, and treatment of chronic pain syndrome). 3. Id. at 229. Corey notes that most pain sufferers are aware that their pain condition will be questioned and are extremely sensitive to suspicion as to the validity of their condition. Id. at Corey further notes that "[blelievability is particularly crucial in back and neck pain where there is no visible evidence that any injury at all has oc curred." Id. at 230. An attorney needs to be aware of these potential feelings of his client. A striking example of a pain patient's sensitivity to suspicion regarding the validity of his/her condition is revealed by what a pain patient once told Corey: "I wish I had broken my neck instead of having a whiplash because, at least then, people could see that it was real." Id. See Lees-Haley, Personal Injury Malingering, 28 FOR THE DEFENSE (Feb. 1986) for an interesting perspective on malingering and the personal injury plaintiff. Lees-Haley notes that "[m]alingering is a particularly difficult problem when the injured party complains of unobservable illnesses, for example chronic pain." Id. at 28. Lees- Haley goes on to say that "[diefense attorneys in recent years have continued to have to cope with the traditional types of less tangible (and more fakable) injuries, such as back strain and muscle weakness " Id. Lees-Haley states further that "[b]ack injuries are commonly exaggerated or are nonexistent." Id. at Archer & Zinn, Thermograms: Persuasive Tools in Soft Tissue Injury Cases, 19 TRIAL 68 (1983) (focuses on thermography and its value as a settlement tool, and its admissibility at trial).
2 BRIDGEPORT LAW REVIEW [Vol. 10:401 may secure adequate compensation.' Thermography, an emerging evidentiary courtroom tool, is a physiologic study for the diagnosis and documentation of painful disorders which involve soft tissue pathology, nerve and root involvements, and myofascial pain syndromes.' Thermography can be an important medico-legal tool. 7 This Note explores the pain and suffering component of the personal injury award. It urges the use of thermography in personal injury litigation as evidence of painful nerve and soft tissue damage. The standards for the admissibility of scientific evidence in Connecticut state and federal courts, along with the Second Circuit's approach to the admissibility of novel scientific evidence, are examined. These standards are then evaluated in terms of their potential application -to the admission of thermographic evidence. Additionally, this Note surveys cases from other jurisdictions and examines their potential value in helping the litigator demonstrate the acceptability of thermography in the courts. Finally, this Note posits that thermography has the potential not only to substantially alter, but to improve the manner in which soft tissue and nerve injury claims are adjudicated. 8 II. BACKGROUND A. Pain And Suffering In Personal Injury Litigation There is probably nothing that affects or places limitations on a person's life more than pain. 9 Since an individual's prior 5. Weinstein, Thermography: From the Clinic to the Courtroom, 34 MED. TRIAL TECH. Q., 343, (1988) (gives an overview of thermography, its reliability, and ac ceptance in the courts). 6. Rosenblum, Documentation of Thermographic Objectivity in Pain Syndromes, First Annual Clin. Proc. Academy of Neuro-Muscular Thermography, 1 POSTGRADUATE MEDICINE CUSTOM PUBLICATIONS 59 (1986) (discusses a study that refutes claims that patients with motives of secondary gain can bias thermographic results); See also Uric'hio, Jr., Electronic Thermography in Orthopaedic Practice: Its Use in Soft Tissue Injuries of the Neck and Back, in MEDICAL THERMOLOGY 62 (M. Abernathy and S. Uematsu eds. 1986) (discusses thermography and its correlation with myelograms). 7. Uricchio, supra note 6, at Weinstein, supra note 5, at Smith & Kaufman, Assessment of Chronic Pain, 23 TRIAL 48 (1987). Pain has been defined as "an unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage." Spector, supra note 1, at 203.
3 1990] THERMOGRAPHY learning and experience do not give him the ability to understand or mentally control chronic pain, 0 the individual finds himself in a state of psychological crisis. 1 When one is told that his pain cannot be cured, the individual is forced to face a life crippled by pain. 2 Chronic pain can cause diminished freedom of movement, decreased communication and interaction with others, change in body image, drug abuse, continuous fatigue, both physical and mental, increased reliance on others, mood swings and depression, and the loss of one's identity Is Since pain is so difficult to assess and understand, it is not unusual for complaints of pain to be met by disparaging remarks and skepticism. 4 In fact, there are physicians who believe that future or pending litigation frequently alters the plaintiff's symptoms of injury '5 It is difficult to substantiate chronic pain 10. Spector, supra note 1, at 217. Pain has been defined as chronic if it has persisted for six months or more from the date of onset. Corey, supra note 2, at 223. But see Spector, supra note 1, at 205: "By convention, chronic pain refers to that pain which has persisted beyond the time ordinarily required for normal healing to have occurred, i.e., for three months or longer." Id. 11. Spector, supra note 1, at Id. See also Corey, supra note 2, at 230. Corey states that "[c]hronic pain can be exceedingly destructive." Id. 13. Spector, supra note 1, at Cf. Corey, supra note 2, at 224. Corey explains that a variety of emotional, behavioral, cognitive and physical changes may develop in conjunction with a chronic pain state. Id. What has become known as chronic pain syndrome (CPS) is a more serious manifestation of such changes. Id. Emotional changes that develop with a pain state may include depression, anger, anxiety, irritability and the development of sleep disturbances. Id. Behavioral changes include the adoption of a sedentary life-style, withdrawal from social contacts, the avoidance of pain-producing activities, and the development of guarding and bracing pain behaviors. Id. Corey notes that physical changes include weakening and shortening of muscles, development of muscular tension, spasm and imbalances. Id. Cognitive changes include frequent ruminations on the pain problem and worries about the pain's believability. Id. Corey concludes that the existence of chronic pain syndrome denotes a serious vocational and psychosocial disability. Id. It is suspected that the physical changes that can produce tissue scarring and nerve sensitization at a soft tissue injury site may trigger signals that feed into the pain system, and may be a contributing factor to the development of chronic pain syndrome. Id. at For a comprehensive treatment of all clinically important areas related to chronic pain, see EVALUATION AND TREATMENT OF CHRONIC PAIN (G. Aronoff, M.D. ed. 1985). 14. Spector, supra note 1, at 221. See also Corey, supra note 2, at Annotation, Neck Injuries, 37 AM. JUR. PROOF OF FACTS 2d 223, 247 (1984) "Pending litigation and financial compensation are not universal predicators of malingering." Spector, supra note 1, at 217. See also Corey, supra note 2, at 230. Corey notes that "some individuals do consciously exaggerate or fake a pain condition." Id. Corey states further, however, that "[miost of these people are detected over the short-term " Id. Corey opines that "greater harm is done by routinely suspecting people with a
4 BRIDGEPORT LAW REVIEW [Vol. 10:401 complaints. 6 Cases that involve soft tissue injuries 7 provide a challenge for the plaintiff's attorney Is This challenge results from the lack of both objective and clinical evidence to substantiate the plaintiff's subjective complaints. 19 Injuries to the neck, for example, are extremely difficult to diagnose. A reason for this difficulty is the inability to determine both the nature and location of the injury 21 In most whiplash 22 injuries only soft tissues are involved, making x-rays nonchronic pain complaint of malingering when in fact over 90% of them need treatment, not suspicion." Id. 16. Pazer & Botwinick, Thermography: Proving Soft Tissue Injury, 17 TRIAL LAW. Q. 49 (1985) (discusses legal authority in favor of admitting thermographic evidence). For a discussion of injuries which often result in pain without objective findings, see Fischer & Kressel, The Role of Thermography in Medicolegal Documentation, 13 INCL (New York State Bar Association) 26, (June 1984). Fischer and Kressel note that pain without objective findings often includes injuries resulting from whiplash, low back sprains, neck sprains, and injuries where the damage is limited to soft tissue. Id. at The authors note further that often in such injuries there is no damage to the nerves or loss of muscle control. Id. at 28. X-rays are negative since the bones remain intact and CT Scans fail to document injured areas in the muscles and soft tissue. Id. The authors acknowledge that these "patients may find themselves in an unenviable situation." Id. Patients experiencing pain with no objective findings may not be believed to have pain and, as a consequence, they cannot obtain insurance compensation or treatment. Id. However, even if the patient is believed, their condition may be diagnosed incorrectly and treated incorrectly, even though their condition may be treatable and curable. Id. 17. Soft tissue injuries have been defined as injuries to the musculoskeletal elements of the body, i.e., muscles and ligaments. Hubbard, Thermography: A Medical Overview with Emphasis on Pain Evaluation, in THERMOGRAPHY AND PERSONAL INJURY LITIGATION 69, 83 (S. Hodge ed. 1987) (comprehensive overview of medical and legal aspects of thermography). Other definitions include muscles, ligaments, nerves, blood vessels, and cartilage as soft tissues. Annotation, supra note 15, at 230. For a discussion of the medical bases of soft tissue injuries, see Rein, THERMOGRAPHIC EVIDENCE OF SOFT TISSUE INJURIES (1987) (provides a definitive summary and description of the interaction between thermography, soft tissue injuries, and the law). 18. Archer & Zinn supra note 4, at Id. The following passage illustrates the challenge that a plaintiff's attorney faces in attempting to convey the injuries of the whiplash plaintiff: "Whiplash. The word conjures up the thought of a greedy accident victim claiming pain he doesn't have in order to collect from an insurance company. But the poor victim who actually was hurt has had no concrete way of showing a jury proof of soft tissue injury." Appleson, Thermograms Show Soft Tissue Injury, 67 A.B.A. J (1981). 20. Annotation, supra note 15, at Id. 22. For a generally accepted definition of wh;plash, see Hubbard, supra note 17, at 83. "Whiplash injury describes a soft tissue injury to the supporting tissues in the neck (muscles, tendons, ligaments) resulting from a violent impact to the body producing rapid hyperextension (head back) and hyperflexion (head forward) motions of the neck." Id.
5 1990] THERMOGRAPHY informative. 2 " Often a claimant suffers a soft tissue injury, but the defense doctor testifies, despite the complaints of pain, to an absence of objective findings. 24 This is often the case since x- rays and other commonly used objective testing procedures show no confirmation of soft tissue injuries. 25 Orthopedic specialists and others often use physical examinations to determine if there are any objective indicators for pain. 2 6 The absence of objective indicators, however, shows only that there is no identifiable organic damage. 27 Spine, neck and back injuries, especially if they involve the muscular or skeletal structure, present problems for the attorney trying to prove the injuries and their consequences. 28 Injuries to the spine, neck and back are likely to be recurrent and longlasting. 2 9 Not only must the injury and its present pain and suffering be proven, but the probable future effects of the injury must be projected. 3 0 The pain and suffering portion of a personal injury award is usually its greatest part. 3 ' Establishing its existence is essential to secure adequate compensation for the personal injury plaintiff Annotation, supra note 15, at 255. "Clinical experience suggests that anatomic studies may fail to demonstrate pathology associated with spinal injury. Thermography can provide useful diagnostic information, often consistent with subjective complaints, in the absence of frank structural abnormality." Shandell & Saboda, Thermography as Utilized n a Pain Treatment Center, in MEDICAL THERMOLOGY 181, 184 (M. Abernathy and S. Uematsu eds. 1986) (discusses a correlative study between thermography, CT scan and myelograms in an out-patient pain center). 24. Pazer & Botwinick, supra note 16, at Id. 26. Corey, supra note 2, at Id. For example, "increased muscle tension and neuromuscular hypertension of the paraspinal muscle groups do not necessarily correlate with decreased strength or decreased range of motion as measured by the clinical examination [a study of strength and movement] of the extremities." Adams & Lloyd, Empirical Evaluation of the Chronic Pain Diagnosis, First Annual Clin. Proc. Academy of Neuro-Muscular Thermography, 1 POSTGRADUATE MEDICINE, CUSTOM PUBLICATIONS 86, 88 (New York 1986). 28. Annotation, Damages For Injury to Back, Neck, or Spine, 15 A.L.R. 4TH 294, at 301 (1982). 29. Id. 30. Id. 31. Weinstein, supra note 5, at 344. Weinstein notes that a telling demonstration of the significance of the pain and suffering component in personal injury awards is the fact that many proposals for medical malpractice reform would limit the high jury verdicts by placing a cap on the amount a jury may award for pain and suffering. Id. 32. Spector, supra note 1, at 202.
6 BRIDGEPORT LAW REVIEW [Vol. 10:401 B. Thermography Thermography has been used in the personal injury field to evaluate the pain-producing conditions associated with whiplash injuries, nerve injuries, tissue damage, sprains, and lumbar disk abnormalities." Most importantly for the personal injury plaintiff, a growing number of physicians have used thermography to corroborate the subjective pain complaints of patients where there is no other objective evidence Goodman & Zak, The Heat is On: Thermograms as Evidence Under the Frye Standard, 8 W NEw ENG. L. REV. 13, 15 (1986) (explores thermography as scientific and demonstrative evidence in personal injury cases and special challenges to its admissibility). Thermography measures the skin temperature of the body in order to diagnose injury. Rein, Thermography: Medical and Legal Implications - Objectwe Proof of Injury and Disability, 20 TRIAL 46, 47 (1984) (discusses medical aspects of thermography and the proper foundation for introducing it to the court). The most common use of thermography in pain evaluation is the detection of peripheral nerve injuries, nerve root injuries and soft tissue injuries, that is, neuro-muscular injuries that result from trauma. Hubbard, supra note 17, at 78. A thermogram can address whether there is physiologic nerve fiber involvement, whether or not there is substantial soft tissue injury, and whether or not there is a basis for the pain being experienced by an individual. Annotation, Foundation for Admission of Thermogram, 46 AM. JUR. PROOF OF FACTS 2d 275, 288 (1986). Thermography provides a graphic representation of skin temperature in the form of a photograph, called a thermogram. Note: Thermography: Objective Evidence of Nerve and Soft-Tissue Injury, 21 IDAHo L. REV. 117, 118 (1985) (explores medical aspects of thermography and its role in the legal process) [hereinafter Note, Objective Evidence]. The presence of a soft tissue injury or a nerve disorder results in an asymmetrical thermogram. Id. There are two kinds of thermography: liquid crystal and electronic. Annotation, supra at 288. For a thorough discussion of the technical aspects of the two types of thermography, see Hubbard, supra note 17, at 85-92; and Rein, supra note 22, at Similar to any other diagnostic test, the thermographic result must be placed within the context of the patient's clinical presentation, that is, in the context of the patient's medical history and physical examination. Hubbard, supra at 76. Thermographic abnormalities reveal physiologic changes which may relate to the sensation of pain. Id. Thermography substantiates complaints of pain, or conversely it can expose a malingerer. Annotation, supra at 282. Thermography can provide objective evidence of the presence of abnormal physiology and of pain in the affected area. Id. at It is more reliable evidence of pain than a patient's testimony and the possible conflicting opinions of doctors. Note: Objective Evidence, supra at 122. For a particularly enlightening discussion on the medical basis of neuromuscular thermography, the physiological basis of neuromuscular thermography, and the clinical uses of neuromuscular thermography, see the recent court opinion in Thermographic Diagnostics Inc. v. Allstate Insurance Co. & State Farm Insurance Co., 219 N.J. Super. 208, 530 A.2d 56 (1987). 34. Goodman & Zak, supra note 33, at 15. For a historical perspective on the use of thermography for pain-evaluation, see Hubbard, supra note 17, at 75. For more discussion on the history of thermography, see Bar-Sela, The History of Temperature Recording from Antiquity to the Present, in MEDICAL THERMOLOGY 1 (M. Abernathy and S.
7 1990) THERMOGRAPHY Thermography measures the surface temperature of the body with a high degree of accuracy 15 Thermography provides a graphic representation of skin temperature in the form of a photograph called a thermogram. 6 Usually, the surface temperature of a person without any pain symptoms shows thermal symmetry 37 Soft-tissue injuries and nerve disorders, however, create an increase or decrease in the skin temperature above the injured area. 3 The presence of a soft tissue injury or nerve disorder results in an asymmetrical thermogram. 9 When a known "pattern" appears, a nerve or soft tissue injury can be diagnosed." 0 Thermographic abnormalities reveal physiologic changes which may relate to the sensation of pain. 41 Thermography can assist in resolving issues regarding a plaintiff's pain symptoms: 1. Whether there is an objective, demonstrable sensory/autonomic nerve irritation. 2. Whether there are any other graphically documentable soft tissue injuries. 3. Whether the patient has an explainable reason or cause for his/her complaints of pain. 4. If physical therapy has been administered or time has passed, whether the sensory/autonomic nerve irritation or soft tissue injury is resolving graphically. 4 " Thermography has an important place in compensation and liability cases.' 3 It can show sensory nerve changes which might Uematsu eds. 1986) (discussing the history of thermography beginning in antiquity to the present); Goodman & Zak, supra note 33, at 14-15; and Rein, supra note 22, at 3-5. A review of the various medical and nonmedical applications of thermography can be found in Hubbard, supra note 17, at Pazer & Botwinick, supra note 16, at Annotation, supra note 33, at Pazer & Botwinick, supra note 16, at Note, Objective Evidence, supra note 33, at Id. at Rein, supra note 33, at Hubbard, supra note 17, at Wexler, Neuromuscular Thermographic Examinations, in THERMOGRAPHY AND PERSONAL INJURY LITIGATION 141, 154 (S. Hodge ed. 1987) (details the standards for neuromuscular thermographic examinations) [hereinafter THERMOGRAPHY]. 43. Uricchio, Jr., supra note 6, at 71.
8 BRIDGEPORT LAW REVIEW [Vol. 10:401 explain a plaintiff's pain complaints." C. The Admissibility of Novel Scientific Evidence The traditional requirements of relevancy and the doctrines governing expert testimony are applicable to scientific evidence. 4 In addition, many courts purport to apply special rules of admissibility when experts are called to testify regarding scientific evidence. 46 The emergence of a special rule for scientific 44. Id. at 70. For a striking example of the new hope that thermography can offer a patient with "pain of unknown origin" see R. M. LINCHITz, LIFE WITHOUT PAIN (1987). Linchitz tells the story of Clive Parker who had diffuse pain in his back, neck, and shoulder that radiated to his arms, legs, and buttocks. Id. at 28. X-rays, CT scans, and EMG's did not reveal a source of pain in his body, brain, or nerves. Id. Linchitz writes: Diagnosis: Psychosomatic pain, the type characterized by doctors as being "all in the head." Treatment: Psychotheraphy. It helped. It helped soften the stress of the pain experience. It helped dispel some of the depression of being a pain victim, depression which only adds to the suffering. It helped prevent Clive from becoming that sad person whose life revolves around his pain. But it didn't help his pain. It couldn't help, because his pain had been misdiagnosed. Clive's doctors, in their traditional approach, had eliminated one test that has become a standard procedure of the new pain-control specialists in cases of "pain of unknown origin." That test is a thermogram, a picture of the heat patterns of the body from which doctors can identify points whose temperatures are abnormally high. These points have been associated with tender spots in the body's soft tissue, and when touched they appear to trigger pain at distant sites in the body. The new hope came to Clive Parker when he was shown his thermogram, which revealed that his pain was not in his head, but real, and in many parts of his body. "I knew I wasn't nuts! What a relief. Pure absolutely pure joy!" Id. at (emphasis in original). Clive received intermittent relief from trigger point therapy and began a pain control program. Id. at 29. Clive eventually was able to enjoy a permanent 100 percent pain relief. Id. 45. E. W CLEARY, MCCORMICK ON EVIDENCE 203 (3rd ed. 1984) [hereinafter CLEARY]. In addition,federal Rule of Evidence 702 mentions scientific testimony and links it generally with expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. FED. R. EViD Cleary, supra note 45, at 203. Scientific evidence is typically presented by an expert witness who can explain the data or test results and explain the scientific principles that are said to give reliability to the evidence, if necessary. LILLY, AN INTRODUCTION To THE LAW OF EVIDENCE 12.4 (2d ed. 1987) [hereinafter LILLY]. Whenever a scientific principle is used at trial to prove or disprove disputed facts, questions may arise con-
9 1990] THERMOGRAPHY evidence originated in Frye v. United States. 4 7 Many jurisdictions have adopted this special rule for the admissibility of scientific evidence. 8 The "general acceptance" rule established in Frye led to the exclusion of lie detector evidence. 49 The court held that a scientific technique must be generally accepted by the relevant scientific community to be admissible. 50 Therefore, proponents of the Frye standard must not only satisfy the traditional requirements of relevancy and helpfulness to the trier of fact, but must also show general acceptance of the principle or technique in the scientific community 51 The expert testimony on such scientific evidence must be shown to be "generally accepted. '52 The court in Frye held that the lie detector test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting... [such evidence]." 53 cerning the validity of the scientific principle and the validity or accuracy of the particular application of the principle to the subject under investigation. Id. A standard is necessary for courts to govern the required reliability of scientific evidence, that is, one that prescribes the minimum degree of acceptance by professionals that gives the scientific process or technique sufficient reliability to allow its use as evidence. Id. at CLEARY, supra note 45, at 203. Frye v. United States, 293 F 1013, 1014 (D.C. Cir. 1923) addressed the issue of reliability. LILLY, supra note 46, at State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877, 879 (1987) (podiatrist's testimony not dependent upon advanced technology admissible and not subject to general acceptance in scientific community). For a survey of how the various circuits treat Frye, see Comments: The Admissibility of Evidence and Expert Testimony Based on Science, Technology or Other Specialized Knowledge - Is the "Frye" Standard Consistent With The Federal Rules of Evidence?, 4 COOLEY L. REV. 641 (1987) [hereinafter Comments, Technology]. 49. Note: The Frye Doctrine and Relevancy Approach Controversy: An Empirical Evaluation, 74 GEO. L.J. 1769, (1986) [hereinafter Note, Relevancy], 50. Frye, 293 F at The Frye test is laid down in the following oft-cited passage: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Id. 51. M. McCormick, Scientific Evidence: Defining a New Approach to Admissibility, 67 IOWA L. REV. 879, 882 (1982) (explores the present status of the Frye standard) [hereinafter Scientific Evidence]. 52. Comments, Technology, supra note 48, at Frye, 293 F 1013, 1014 (D.C. Cir. 1923).
10 BRIDGEPORT LAW REVIEW [Vol. 10:401 Federal and state courts gradually adopted the Frye rule when called upon to decide on the admission of novel scientific techniques, both in criminal and civil cases. 4 Over the years, however, the Frye rule has been subjected to a steady stream of criticism. 5 The adoption of the Federal Rules of Evidence has also resulted in reevaluation of the Frye rule. 56 The Rules are silent on whether the general acceptance standard of Frye has been superseded. 5 7 There are arguments that Frye survived the enactment of the Federal Rules 58 and arguments that reject this 54. Bretz, Scientific Evidence and the Frye Rule: The Case For a Cautious Approach, 4 COOLEY L. REV. 506, 507 (1987) (explores the various rules regarding the admission of scientific evidence) "[Olver the years the Frye standard has been warmly embraced, emphatically rejected, occasionally ignored, openly modified, and the subject of both criticism and praise by the commentators." Lilly, supra note 46, at Scientific Evidence, supra note 51, at 883. The Frye standard, although dominant in the older cases, has come under increasing attack in recent years. LILLY, supra note 46 at 494. For a discussion of various criticisms of the Frye standard, see Bretz, supra note 54, at ; Scientific Evidence, supra note 51, at ; Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 COLUM. L. REV. 1197, (1980) (explores evidentiary standards employed by courts to determine admissibility of novel scientific evidence); and Note: Novel Scientific Evidence: Does Frye Require that General Acceptance Within the Scientific Community be Established by Disinterested Scientists?, 65 U. DET. L. REV. 147, (1987) [hereinafter Note, Novel]. Critics of Frye find its standard difficult to apply. See LILLY, supra note 46, at 494. Critics also note that Frye's demand for "general acceptance" often requires a protracted waiting period within which a new principle or technique awaits acceptance throughout the scientific community. Id. at 495. The Frye test itself is ambiguous; by its terms, it speaks only to the standard of the scientific principle and not to the implementation of that principle. Id. at Note, Novel, supra note 55, at See Comments, Technology, supra note 48 for a discussion of how the circuits treat Frye in conjunction with the Federal Rules of Evidence. 57. Giannelli, supra note 55, at Specifically, Federal Rules of Evidence 401, 702 and 703 are silent as to whether Frye's general acceptance standard has been superseded. Id. at 1229 n.243. See FED. R. EviD. 401, 702 and 703. The text of Federal Rule of Evidence 401 appears infra, at note 93. The text of Federal Rule of Evidence 702 appears supra, at note 45. Federal Rule of Evidence 703 reads: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the partic ular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. FED. R. EviD Rule 401 defines relevant evidence, and Rules govern expert testimony. For the view that the Federal Rules are not inconsistent with the Frye standard, see Scientific Evidence, supra note 51, at See Note, Novel, supra note 55, at 153. For additional proponents' arguments that the Federal Rules of Evidence have not replaced the Frye rule, see Giannelli, supra note 55, at 1229.
11 1990] THERMOGRAPHY view. 59 Difficulty in the application of the Frye standard has led some states to abandon it in favor of the McCormick relevancy approach. 0 Other states have adopted a more stringent Frye approach, requiring that the testimony by from impartial, disinterested experts in the field." 1 Still other federal and state courts have demonstrably changed the Frye standard, while purporting to retain and apply it. 62 III. NOVEL SCIENTIFIC EVIDENCE IN CONNECTICUT COURTS A. General Principles of Evidence in Connecticut Courts The admissibility of expert testimony in general has been held in Connecticut courts to depend on whether the witness, who is offered as an expert, possesses special knowledge or expe- 59. Bretz, supra note 54, at 509. See Note, Novel, supra note 55, at 153. For more discussion of the view that the Federal Rules of Evidence are inconsistent with the Frye standard, see Giannelli, supra note 55, at Some courts assess the admissibility of scientific evidence by applying the familiar relevancy test and asking if the probative value of the scientific evidence is substantially outweighed by its tendency to mislead the jury or involve the court in time-consuming disputes about scientific reliability. LILLY, supra note 46, at Bretz, supra note 54, at 508. The McCormick relevancy approach only requires that the test be performed according to usual standards and that the witness be a qualified expert. Id. The relevancy approach monitors the admission of novel scientific evidence as if it were the same as other evidence. Note Relevancy, supra note 49, at Courts that follow the relevancy approach will admit evidence as long as it is helpful to the trier of fact rather than focus on the level of general acceptance. Id. Federal Rule of Evidence 702 is the major proponent of the relevancy approach. Id. For a summary of this principle, see the text of Federal Rule of Evidence 702 supra note 45. See also Bretz, supra, at for a discussion of the relevancy approach; Giannelli, supra note 55, at ; Note, Novel, supra note 55, at For a discussion of federal and state cases rejecting Frye, see Scientific Evidence, supra note 51, at For a comparison of the Frye doctrine and the relevancy approach, see Note, Relevancy, supra note Bretz, supra note 54, at 508. Michigan and California are two states that have adopted a more stringent Frye approach. Id. Courts that adhere to Frye argue that the standard is appropriate because it allows the relevant scientific community to resolve disputes regarding scientific validity. LILLY, supra note 46, at 495. Proponents of the Frye standard note further that it spares courts the time-consuming, difficult tasks of assessing scientific developments and protects the jury from its inclination to find all scientific matters accurate and reliable. Id. 62. Scientific Evidence, supra note 51, at 890. For a discussion of both federal and state cases that have modified the Frye standard, see supra, at A growing minority of courts relax the strict demands of the Frye test by requiring only that the scientific principle or process in question be shown to have gained "substantial" rather than "general" acceptance within the appropriate scientific community. LILLY, supra note 46, at 495.
12 BRIDGEPORT LAW REVIEW [Vol. 10:401 rience that is not commonly shared by the average person.1 3 Additionally, the admissibility of expert testimony depends upon the helpfulness of the expert's opinions to the court or jury in determining the issue at hand. 4 Connecticut appellate courts leave it to the discretion of the trial court as to whether a witness is qualified to testify as an expert. 5 They also give the trial court broad discretion in determining the relevancy of evidence."' Connecticut courts have held that expert testimony is to be considered, weighed and tested like any other evidence. 6 7 While evidence does not have to be conclusive, it is admissible if it tends to support a relevant fact even in a slight degree, so long as it is neither prejudicial nor merely cumulative. 6 8 Even though a witness may testify as an expert, the trier is not compelled to accept the testimony as true. 9 A trier is not bound by the opin- 63. State v. Hasan, 205 Conn. 485, 488, 534 A.2d 877, 878 (1987) (podiatrist's testimony not subject to Frye standard since not dependent upon advanced technology) (citing State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948, 954 (1985) and C. TAIT & J. LAPLANTE, CONNECTICUT EVIDENCE 7.16 (1976)). 64. Id. See also State v. Kemp, 199 Conn. 473, 476, 507 A.2d. 1387, 1389 (1986) (expert testimony admissible if helpful to court or jury, applicable to issue, or unknown to average person) and Hodge, Rules Concerning the Admissibility of Thermographic Evidence, in THERMOGRAPHY AND PERSONAL INJURY LITIGATION 223, 243 (S. Hodge ed. 1987). This essay discusses the various approaches to the question of the admissibility of novel scientific evidence, examines a few important thermographic admissibility decisions, and provides a listing of the standards followed in jurisdictions regarding the admissibility of scientific evidence. 65. Hasan, 205 Conn. at 488, 534 A.2d at 879 (whether witness is qualified as expert is within discretion of court) (citing State v. Palmer, 196 Conn. 157, 167, 491 A.2d 1075, 1081 (1985)). See also Struckman v. Burns, 205 Conn. 542, 552, 534 A.2d 888, 894 (1987) (trial court must determine qualifications of expert before he can testify). 66. Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338, 343 (1987) (trial court has broad discretion in determining relevancy of evidence) (citing Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791, 795 (1980) and State v. Schaffer, 168 Conn. 309, 317, 362 A.2d 893, 897 (1975)). See also State v. Parker, 197 Conn. 595, 601, 500 A.2d 551, 554 (1985) (trial court has broad discretion in determining relevancy of evidence) (citing State v. DeJesus, 194 Conn. 376, 382, 481 A.2d 1277, 1281 (1984) and State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581, 590 (1984)). 67. Aspiazu, 205 Conn. at 634, 535 A.2d at 343 (expert testimony to be weighed and tested like any other evidence) (citing State v. Kelly, 77 Conn. 266, 275, 58 A. 705, 708 (1904) and C. TAIT & J. LAPLANTE, supra note 63 at 7.16(e)). 68. State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76, 79 (1985) (evidence need only support relevant fact slightly so long as not prejudicial or merely cumulative); cited also in State v. Miller, 202 Conn. 463, 482, 522 A.2d 249, 259 (1987). 69. Aspiazu, 205 Conn. at 634, 535 A.2d at 343 (fact that expert witness testifies does not compel acceptance of testimony as true) (citing Nixon v. Gniazdowski, 145
13 1990] THERMOGRAPHY ion of an expert. 7 " B. Connecticut and Scientific Evidence The Connecticut Supreme Court has acknowledged that a special rule exists for the admissibility of scientific evidence." The concept that Frye sets forth the prevailing standard for evaluating the admissibility of evidence that is derived from innovative scientific techniques has been adopted by the Connecticut Supreme Court. 72 The Frye standard has been applied to the admissibility of polygraph testing, 7 and to the admissibility of human leukocyte antigen (HLA) testing for paternity 74 Under the Frye standard, Connecticut courts have found polygraph evidence to be inadmissible due primarily to its questionable accuracy 71 The results of HLA tests have been admitted in Connecticut under Frye, because HLA testing has attained general acceptance in the scientific community as a means to establishing paternity 76 Upon applying the Frye standard to the admissibility of testimony elicited by hypnosis and narcoanalysis, 77 a Connecticut Superior Court held that hypnosis and narcoanal- Conn. 46, 48, 138 A.2d 796, 797 (1958) and Pischitto v. Waldron, 147 Conn. 171, 177, 158 A.2d 168, 172 (1960)). 70. Aspiazu, 205 Conn. at 634, 535 A.2d at State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877, 879 (1987) (acknowledging that Frye sets forth prevailing standard for admissibility of scientific evidence). 72. Id. "The prevailing standard for judicial recognition of the probative value of scientific evidence has been carefully delineated in Frye v. United States " Moore v. McNamara, 201 Conn. 16, 30, 513 A.2d 660, 667 (1986). 73. See State v. Miller, 202 Conn. 463, 484, 522 A.2d 249, 260 (applying Frye to polygraph testing). 74. See Moore v. McNamara, 201 Conn. 16, 30, 523 A.2d 660, (1986) (applying Frye to admissibility of human leukocyte antigen testing for paternity); See also Miller v. Miller, 40 Conn. Supp. 66, 69, 481 A.2d 428, (1984) (applying Frye to admissibility of human leukocyte antigen testing for paternity). The Moore court stated: We note that combined blood grouping and HLA testing has attained general acceptance in the scientific community as a means of testing for paternity. [N]early all agree that such evidence is reliable and should be admitted in one form or another. It also appears that the decided trend in other jurisdictions is toward admission of HLA test results as evidence of paternity. Moore, 201 Conn. at 31, 513 A.2d at 668. (citation omitted). 75. Miller, 202 Conn. at 486, 552 A.2d at Moore, 201 Conn. at 31, 513 A.2d at Narcoanalysis is the "[p]rocess whereby a subject is put to sleep, or into a semisomnolent state by means of chemical injections and then interrogated while in this dreamlike state." BLACK'S LAW DICTIONARY 922 (5th ed. 1979).
14 BRIDGEPORT LAW REVIEW [Vol. 10:401 ysis have not achieved general acceptance in the scientific community Is Connecticut courts have consistently applied the Frye standard in evaluating the admissibility of scientific evidence. 9 C. The Second Circut Court of Appeals Approach To The Ad- 78. State v. Atwood, 39 Conn. Supp. 273, , 479 A.2d 258, (1984). The Atwood court concluded that Connecticut should align itself with those jurisdictions which deny admissibility to testimony elicited by the use of hypnotism and narcoanalysis. Id., 479 A.2d at 264. The Atwood court based its decision upon the fact that the processes have not achieved general acceptance in the scientific community. Id., 39 Conn. Supp. at 284. The court noted that the experts in the scientific field are the persons to whom the courts must look for guidance in evaluating complex processes. Id. Since there was no consensus among these scientists, the Atwood court decided not to "bestow respectability on a technique which was apparently still scientifically unpredictable and unreliable." Id. For more information on the admissibility of hypnotic testimony, see Note, Hypnosis and the Right to Testify: An Evdentiary and Constitutional Dilemma for Connecticut, 9 U. BRIDGEPORT L. REV. 359 (1988) [hereinafter Hypnosis]. For further discussion on State v. Atwood, see Id. at 366 n.27, The general acceptance standard has even been applied implicitly in Connecticut, without reference to Frye, to the admissibility of polygraph testing and to the admissibility of radar. State v. Hasan, 205 Conn. 485, 489, 534 A.2d 877, 879 (1987). See Molino v. Board of Public Safety, 154 Conn. 368, , 255 A.2d 805, 809 (1966) (implicitly applying Frye to the admissibility of polygraph testing). "The unreliability of the polygraph test has resulted in its universal rejection as competent legal evidence of truthfulness." Id. at , 255 A.2d at 809. See also State v. Mitchell, 169 Conn. 161, 169, 362 A.2d 808, 812 (1975) (implicitly applying Frye to the admissibility of polygraph testing) (citing Molino supra, in rejecting the admissibility of polygraphic evidence). The cases in Connecticut over the years have continued to focus on the fact that polygraphs "have not been accepted as a reliable and accurate means of ascertaining the truth." State v. Sala, 172 Conn. 37, 42, 372 A.2d 144, 147 (1976). "The overall reliability of such evidence is still widely debated and we see no reason to depart from the rule first announced in Molino. " State v. Miller, 202 Conn. 463, 486, 522 A.2d 249, 261 (1987) (rejecting polygraphic evidence as unreliable). See also State v. Summerville, 13 Conn. App. 175, 535 A.2d 818 (1988). "[Olur Supreme Court has consistently held polygraph evidence to be inadmissible.in Miller, the court ruled in accordance with the well established rule of this state that the 'questionable accuracy' of polygraph tests serves as a compelling reason for excluding such evidence." Id. at 181, 535 A.2d at 822. See also State v. Plourde, 208 Conn. 455, 545 A.2d 107 (1988), cert. denied, 109 S.Ct. 847 (1989). "Due to their questionable accuracy, the results of a polygraph examination are not admissible either as positive proof or for the purposes of impeachment." Id. at 471, 545 A.2d at For a discussion of the questionable accuracy of polygraph examinations, see Brown v. Darcy, 783 F.2d 1389, (9th Cir. 1986) (polygraph evidence inadmissible unless parties have stipulated to its admissibility). See State v. Tomanelli, 153 Conn. 365, 370, 216 A.2d 625, 629 (1966) (holding radar evidence to be admissible). "There can be no doubt, at this late date, of the general scientific acceptance of the Doppler-shift principle upon which police radar operates. Whether the instrument itself is accurate and is accurately operated must necessarily be demonstrated to the satisfaction of the trier in order to render the evidence produced by it admissible." Id. at , 216 A.2d at 629.
15 1990] THERMOGRAPHY missibility Of Scientific Evidence Several commentators have reported that the Second Circuit has rejected Frye, 80 basing their conclusion on the court's opinion in United States v. Williams." In holding that spectographic voice analysis was admissible for the purpose of voice identification, the Williams court applied a relevancy balancing approach. 82 There are other cases that support the proposition that the Second Circuit has rejected Frye. 83 However, a later Connecticut Superior Court case indicated that the Second Circuit has not abandoned Frye. 4 The court in Miller v. Miller" cited United States v. Williams s6 as holding that "there must be a preliminary showing that scientific evidence has been sufficiently established to have gained general acceptance in the particular field in which it belongs. '87 In Miller the Superior Court held that a human leukocyte antigen (HLA) test was admissible in a civil paternity suit because the HLA test satisfied "the criteria for admission of newly developed scientific tests set forth in Frye v. United States" as "adopted in the Second Circuit." 8 8 A closer look at the opinion in United States v. Williams 80. Frye v. United States, 293 F 1013 (D.C. Cir. 1923). 81. Comments, Technology, supra note 48, at 645 n.31. Other articles adhering to the proposition that the Second Circuit has rejected Frye include: Note, Relevancy, supra note 49, at 1770 n.5; Scientific Evidence, supra note 51, at ; Giannelli, supra note 55, at 1229 n.249; Rein, supra note 33, at 49; Archer & Zinn, supra note 4, at 70; Note, Objective Evidence, supra note 33, at See United States v. Williams, 583 F.2d 1194, 1198 (2d Cir. 1978), cert. denied, 439 U.S (1979). A relevancy balancing approach involves weighing the probativeness, materiality, and reliability of the evidence against the tendency to mislead, prejudice, or confuse the jury. Id. 83. For cases that support the proposition that the Second Circuit has rejected Frye, see United States v. Tormero, 735 F.2d 725, 731 n.9 (2d Cir. 1984) (citing United States v. Williams, 583 F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S (1979) (as not requiring general acceptance); Jones v. State 716 S.W.2d 142, 153 (Tex. App. 1986) (citing United States v. Williams, 583 F.2d 1194 (2d. Cir. 1978), cert. denied, 439 U.S (1979) (as expressly rejecting Frye); In Re Agent Orange Product Liability Litigation, 611 F Supp. 1223, 1242 (D.C.N.Y. 1985) (balancing test adopted in United States v. Williams over Frye); and In Re Agent Orange Product Liability Litigation, 611 F.Supp. 1267, 1279 (D.C.N.Y. 1985) (balancing test adopted in United States v. Williams over Frye). 84. Goodman & Zak, supra note 33, at 33 n Conn. Supp. 66, 69, 481 A.2d 428, (1984) F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S (1979). 87. Miller, 40 Conn. Supp. at 69, 481 A.2d at Id., 481 A.2d at
16 BRIDGEPORT LAW REVIEW [Vol. 10:401 reveals that the court applied a relevancy balancing approach to the admissibility issue. 89 Relevancy balancing involves weighing the probative value, materiality, and reliability of the proposed scientific evidence against the tendency to mislead the jury or unfairly prejudice the opponent. The Williams court focused on the reliability of spectography The court identified five indicators of reliability- potential rate of error in the use of the technique, the existence and maintenance of standards among its users, the care with which the technique was employed, the analogy of the technique to others whose results are admissible, and the presence of safeguards in the characteristics of the technique. 1 Although the court focused on the reliability of spectography, 2 the court recognized that a certain degree of acceptance in the scientific community was necessary to a finding of reliability 93 The Williams court also looked at the acceptance of the principles underlying spectography, and the technical device itself by courts and technical and legal commentators. 4 Therefore, Frye, although limited, is still present in Williams. 9 5 A later Second Circuit court opinion 98 makes it clear that the Second Circuit has not rejected Frye. 9 7 Although the court 89. Goodman & Zak, supra note 33, at Annotation, supra note 33, at 297. The approach involves Federal Rule of Evidence 401 which reads: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" and Federal Rule of Evidence 403 which reads: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Goodman & Zak, supra note 33, at Williams, 583 F.2d at See also Scientific Evidence supra note 51, at 896 (outlining the reliability indicia in Williams). 92. See Williams, 583 F.2d at The court identified five indicators of reliability: the potential rate of error in the use of the technique, the existence and maintenance of standards among its users, the care with which the technique was employed, the analogy of the technique to others whose results are admissible, and the presence of safeguards in the characteristics of the technique. Scientific Evidence, supra note 51, at Williams, 583 F.2d at "Doubtless, a technique unable to garner any support, or only minuscule support, within the scientific community would be found unreliable by a court." Id. (emphasis in original). 94. Goodman & Zak, supra note 33, at Id. 96. United States v. McBride, 786 F.2d 45 (2d Cir. 1986). 97. Comments, Technology, supra note 48, at 645 n.31.
17 1990] THERMOGRAPHY does not completely follow Frye, it does use its principles in a modified test." s In United States v. McBride, 99 Frye was retained as an element to be considered in deciding admissibility oo The court in McBride articulated the standard for the admissibility of expert testimony as one that "calls for the application of several somewhat overlapping requirements." 10 ' McBride held that evidence must be relevant, as required by the Federal Rules of Evidence. 02 McBride further held that the expert testimony must be based upon a reliable area of expertise.' The McBride court wrote that Frye required that novel scientific evidence be sufficiently established to have gained general acceptance in the field to which it belongs." 104 ; it held that Rule 702 of the Federal Rules of Evidence required that specialized knowledge "assist the trier of fact to understand the evidence or to determine a fact in issue."' 0 5 McBride concluded that otherwise admissible expert testimony could be excluded if its probative value is outweighed by the danger of confusion, prejudice, and delay or waste of judicial resources. 0 6 The Second Circuit, therefore, advocates a balancing of the probative value, materiality, and reliability of the evidence against the tendency of the evidence to mislead, prejudice, or 98. Id. For one analysis of the modified test postulated in United States v. Williams, see Goodman & Zak, supra note 33, at 32, apparently published before the opinion in United States v. McBride. Goodman & Zak state that the Second Circuit only limited the applicability of the Frye general acceptance standard. Goodman & Zak, supra note 33, at 32 (citing Scientific Evidence, supra note 51 at ). The court in Williams limited the possible applicability of Frye to the ascertainment of scientific principles rather than to the techniques or particular applications of those principles. Scientific Evidence, supra note 51 at F.2d 45 (2d Cir. 1986) Comments, Technology, supra note 48, at While the court in McBride retained Frye as an element of admissibility, the court also required that the evidence or testimony be relevant and of assistance to the trier of fact in understanding the evidence or in determining a fact in issue. Id. at United States v. McBride, 786 F.2d 45, 49 (2d Cir. 1986) (concerned the issue of whether expert testimony of psychiatrist as to McBride's mental facilities at the time of charged crime admissible) Id Id Id United States v. McBride, 786 F.2d 45, 49 (2d Cir. 1986). For the text of Federal Rule of Evidence 702, see supra note Id. (citing FED. R. EVID. 403).
18 BRIDGEPORT LAW REVIEW [Vol. 10:401 confuse the jury 107 It also appears to hold that reliability cannot be established without a showing of some degree of acceptance. 10 This approach has been described as a modification of the Frye standard, i.e., one that substitutes the requirement of "substantial acceptance" for general acceptance in the relevant scientific community 109 IV MEDICAL EVIDENCE IN CONNECTICUT COURTS A. Damages In Connecticut Personal Injury Cases Four elements are used to determine the dollar value of personal injury awards. n0 These include medical expenses, lost wages, temporary and permanent physical or mental incapacity, and pain and suffering.' Connecticut courts have held that ''proper compensation for personal injuries cannot be computed by mathematical formula, and the law furnishes no precise rules 107. See Annotation, supra note 33, at 297. The Connecticut rules regarding the relevancy of evidence and the testimony of experts are in accord with Federal Rules of Evidence 401, 402, 403 and 702. Downey, Connecticut Trial Lawyers' Guide to Evidence in Federal and State Courts, in CONNECTICUT RULES OF COURT, 723, and (1988 ed.). See FED. R. EviD. 401, 403. The text of rules 401 and 402 appear supra, at note 90. See FED.R. EvID the text of this rule appears supra, at note 45. Federal Rule of Evidence 402 reads "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." FED. R. EvID Connecticut law is in accord with the second sentence of Rule 703: "If of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject, the facts or data need not be admissible in evidence." FED. R. EVD The full text of Federal Rule of Evidence 703 appears supra, at note 57. See Downey, supra note 107, at 723, , (substantiate these statements and for an evidentiary guide for trial practice in Connecticut state and federal courts) The viewpoint that reliability cannot be established without a showing of some degree of acceptance is noted in Annotation, Thermographic Tests: Admissibility of Test Results in Personal Injury Suits, 56 A.L.R. 4th 1105, 1109 n.7 (1987). See also supra notes and accompanying text for additional support for the proposition that some acceptance is necessary to a finding of reliability Goodman & Zak, supra note 33, at The substantial acceptance test would be met if significant numbers of scientists, especially those scientists who are highly specialized in the field at issue, affirm the validity of the process or principle at issue. LILLY, supra note 46, at However, it appears that Connecticut courts have implicitly rejected a "substantial acceptance" test. See State v. Miller, 202 Conn. 463, , 522 A.2d 249, 260 (1987) Weinstein, supra note 5, at Id.
19 1990] THERMOGRAPHY for their assessment." 112 ' Comparison of verdicts in personal injury cases has been held to serve no useful purpose in Connecticut courts. 113 The test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation. 1 4 Connecticut courts have provided some guidance for ascertainment of the future medical expenses and lost wages elements of personal injury awards."' Past medical expenses are readily ascertainable. The awarding of future medical expenses in Connecticut involves a jury's determination of those expenses based upon the medical expert's estimate of the reasonable probabilities of such expenses."1 6 The burden of proof is upon the plaintiff in showing the loss of earning capacity "I Connecticut courts require that the evidence lay a foundation which will enable the trier of fact to make a fair and reasonable estimate of the earning capacity loss."1 8 Physical incapacity and pain and suffering, however, are difficult to ascertain objectively in personal injury litigation involving nerve and soft tissue injuries."' The thermogram can aid in the diagnosis of these injuries.' s Since pain and suffering is usu Rogers v. Delfino, 13 Conn. App. 725, 731, 539 A.2d 156, 160 (1988) (rejecting that propriety of personal injury award is not measured by comparison to other awards). (citing Lopez v. Price, 145 Conn. 560, 569, 145 A.2d 127, 132 (1958). The Rogers court concluded that proper tests for the propriety of a damage award in a personal injury action are "whether the total damages fall within necessarily uncertain limits of fair and reasonable compensation, and whether the verdict so shocks the court's sense of justice as to compel the conclusion that the verdict was influenced by partiality, prejudice, mistake or corruption." Id Id. (citing Birgel v. Heintz, 163 Conn. 23, 34, 301 A.2d 249, 255 (1972) Buckman v. People Express, Inc., 205 Conn. 166, 175, 530 A.2d 596, 601 (1987) See Rogers, 13 Conn. App. at , 539 A.2d at Id. at 729, 539 A.2d at Id. at , 539 A.2d at 159 (citing Lavieri v. Ulysses, 149 Conn. 396, 408, 180 A.2d 632, 638 (1962), Turner v. Scanlon, 146 Conn. 149, 159, 148 A.2d 334, 341 (1959)) Id., at 730, 539 A.2d at 159 (citing Hoadley v. University of Hartford, 176 Conn. 669, 675, 410 A.2d 472, 475 (1979)) See supra notes and accompanying text for a discussion of the difficulties involved in diagnosing nerve and soft tissue injuries and their associated pain and suffering For a discussion of how thermography aids in the diagnosis of nerve and soft tissue damage and how it aids in the substantiation of the plaintiff's pain and suffering associated with these injuries, see Hubbard, Thermography: A Medical Overview with Emphasis on Pain Evaluation, in THERMOGRAPHY AND PERSONAL INJURY LITIGATION 69,
20 BRIDGEPORT LAW REVIEW [Vol. 10:401 ally the highest dollar amount of a personal injury award,' 21 the admission of thermographic evidence in nerve and soft tissue injury cases litigated in Connecticut can help the attorney to secure adequate compensation for the personal injury plaintiff. B. Moore v. McNamara: Insight Into The Application Of The Frye Standard To Thermographic Evidence. Since it appears that Connecticut stands firm in its adherence to the Frye standard for the admissibility of scientific evidence,' 22 the admission of thermographic evidence will be subject to the Frye "general acceptance" rule. The Connecticut Supreme Court in Moore v. McNamara 2 3 found that it need not consider whether a human leukocyte antigen (HLA) report was admissible under the general common law rules that pertain to evidence derived from recently developed scientific techniques. 2 4 The Moore court, nevertheless, discussed the application of the Frye standard to the admission of HLA testing and blood grouping as evidence of paternity 125 An analysis of the court's discussion on this issue provides insight into how the admissibility of thermographic evidence might be adjudicated in Connecticut. In Moore, the court noted that combined blood grouping and HLA testing has attained general acceptance in the scien (S. Hodge ed. 1987); Annotation, supra note 33, at ; McKenney Person & Herzberg, Thermography: Objective Evidence of Soft Tissue Injury, 2 COOLEY L. REV. 363, (1984) (discusses thermographic process, relevant evidentiary standards, fundamental requirements, and case law); Weinstein, supra note 5, at ; Note, Objective Evidence, supra note 33, at Pazer & Botwinick, supra note 16, at 49; Rein, supra note 33, at 47; Goodman & Zak, supra note 33, at 19-24; Uematsu, Baden, Brelsford, Rissett, Trattner, Wolfe & Wursta, Reproducibility of Skin Temperature Symmetry During A One-Year Period in MEDICAL THERMOLOGY (M. Abernathy and S. Uematsu, eds. 1986) (discussing the use of thermography in the evaluation of nerve injury) Weinstein, supra note 5, at See supra notes and accompanying text for a discussion of Connecticut cases which demonstrate Connecticut's adherence to the Frye standard in considering the admission of scientific evidence Conn. 16, 513 A.2d 660 (1986) Id. at 30, 513 A.2d at 667. The Moore court found it unnecessary to examine the admissibility of the HLA report under common law rules since the defendant's objec tion to the report was solely upon the ground that General Statute's 46b-168 prohibited the admission of the report, a view which the court rejected. Id Id. at 31, 513 A.2d at