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Allan B. Taylor, of Hartford, Conn.-based Day, Berry & Howard, said testimony by a Message Center Management secretary was just straightforward common sense. A recurring nightmare for Connecticut plaintiffs lawyers is the prospect that expert scientific testimony may become mandatory for even the simplest numerical projections, as an outgrowth of the 1993 U.S. Supreme Court ruling in Daubert v. Merill Dow, which was intended to limit testimony based on “junk science.” Countering those fears is the court testimony of secretary Maria Scotti, which could turn out to be worth $1.3 million — or just $1. Two years ago a jury awarded her Hartford-based company, Message Center Management, $1.3 million based on her reckoning. The trial judge later found her testimony too unscientific by Daubert standards, and slashed the award to $1 for MCM. On Oct. 5, the state Appellate Court upheld the validity of Scotti’s testimony, re-establishing the $1.3 million award. Now, a final state Supreme Court appeal looms, which could create an important guidepost for scientific testimony. Scotti is a high school graduate, alumna of the Catherine Gibbs secretarial school, and the star witness for MCM, a one-time Hartford beeper company. It sued Houston-based Shell Oil Products Co. for breach of a valuable national contract. MCM’s business was locating sites for wireless communication antennas. Tall gas station signs near highways were prime candidates. In the mid-1990s, MCM signed three contracts with Shell. One covered 429 properties in New England. A second covered 218 locations in Southeast Florida. And a third, created in April 1996, covered the 3,529 Shell properties in the rest of the United States. To Shell’s dismay, 13 months into the national contract, MCM had produced no licenses. Shell intentionally breached the contract, but contended the damages to MCM were little to none. Under the other two smaller contracts, MCM had made antenna leasing agreements in 1.08 percent of the potential locations. At that “penetration rate,” Scotti testified, MCM would have sold antenna contracts in 38 locations over the five-year life of the national contract. She testified the company would have an initial monthly rent of $1,250, increasing 4 percent annually for 20 years, on which MCM would earn a 30 percent commission. Another MCM witness was accountant Arthur Haut, who teaches at the Yale School of Management. He used Scotti’s figures to project lost profits of $2.7 million. In a 2001 trial before New Britain Superior Court Judge Julia L. Aurigemma, the jury decided to award exactly half that — $1.35 million. Midway through the trial, Scotti was grilled in a rare two-day hearing to qualify her as a witness. After the verdict, Aurigemma decided that allowing Scotti to testify had been a mistake. The subject matter was statistical, and since “statistics is considered a science,” she wrote, Scotti’s testimony had to pass the Daubert test, and didn’t. The Appellate Court found quite the opposite: as a director and office manager of MCM, Scotti was “uniquely qualified to testify” about projected lost profits, it ruled. Judge Trial Referee Antoinette L. Dupont wrote that Scotti’s statistical theory “was relatively simplistic” and was well-explained by accountant Haut. The panel, which included judges Anne C. Dranginis and Paul M. Foti, found fault with what Aurigemma did once she decided Scotti’s testimony had to be thrown out. Reducing the verdict to $1 wasn’t the right call. Excluding key witness testimony after the jury verdict “unfairly penalizes a party,” wrote Dupont, “because its strategy, its ability to provide other evidence that might fill an evidentiary gap and its closing argument are affected” and the litigant loses any chance to patch the holes in its case. The appellate lawyer for MCM is Allan B. Taylor, of Hartford-based Day, Berry & Howard. He said Scotti’s testimony was just straightforward common sense: “what we think will happen in the future based on what happened in the past.” “It’s important because, if that kind of evidence is considered scientific evidence that requires all the paraphernalia of a statistical expert, then Daubert becomes a way of removing common sense from the courtroom,” said Taylor, adding, “That’s the opposite of what it’s supposed to do.” Shipman & Goodwin partner Sheila A. Huddleston argued the appellate case for Shell, assisted by Shipman lawyers Paul D. Sanson and Alexandra M. McHugh. Lawrence G. Rosenthal, of Rogin, Nassau, Caplan, Lassman & Hirtle, assisted on the brief. Rosenthal said Shell had not yet decided whether to appeal.

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