Munn v. Hotchkiss School (24 F. Supp. 3d 155, 2014)

RULING ON DEFENDANT’S MOTION FOR A NEW TRIAL, RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW, AND MOTION TO ALTER JUDGMENT

STEFAN R. UNDERHILL, District Judge.

In July 2007, Cara Munn contracted tick-borne encephalitis (“TBE”) while on a trip to. China sponsored by her boarding school, The Hotchkiss School (“Hotch-kiss”). TBE attacks the central nervous system, causing swelling in the brain and spinal cord. In severe cases, the inflammation results in permanent brain damage. Munn suffered that fate: She has lost the ability to speak; she has little control over her facial muscles, so that she always appears to be smiling and often drools uncontrollably; and she has cognitive deficits that slow her ability to think through complex problems.

Munn and her parents, Orson and Christine Munn (collectively “the Munns”), filed this lawsuit alleging that Hotchkiss’s negligent planning of the trip and careless supervision during the trip caused Cara to fall ill. On March 27, 2013, after seven days of evidence including testimony from the Munns, school personnel, and almost a dozen experts, the jury found Hotchkiss solely liable for Munn’s injuries. It awarded the Munns $10.25 million in past and future economic damages, and $31.5 million in non-economic damages.

Hotchkiss now challenges that verdict and award, moving for judgment as a matter of law under Rule 50(b) (doc. 206), or, in the alternative, for a new trial under. Rule 59 of the Federal Rules of Civil Procedure (doc. 207). The school asserts five claims in support of its motions: (1) Munn’s infection was unforeseeable; (2) Munn failed to prove that she was infected with TBE in a specific location; (3) the court mismanaged expert testimony; (4) Mr. and Mrs. Munns’ negligence contributed to Munn’s injury; and (5) a $41.75 million verdict is excessive. Hotchkiss additionally moves to alter judgment (doc. 209). For the reasons set forth, the combined motions are denied, and the motion to alter judgment is denied as moot in light of the parties’ joint stipulation regarding collateral source reduction (doc. 251).

I. Background

A. Facts

Munn entered Hotchkiss as a fourteen-year-old freshman in the fall of 2006. Trial Tr. 988:12. During the winter of her first year, Munn learned of Hotchkiss’s international programs, and, after discussion with her mother, she signed-up for Hotchkiss’s summer school in Tianjin, China. Trial Tr. 912:9-18. The China program immersed students in Chinese language and culture; for one month, participants attended intensive language classes at a high school during the week and visited cultural landmarks on the weekends. Pis.’ Trial Ex. 11.

During the spring semester, Jean Yu, the director of Hotchkiss’s Chinese Language and Culture Program and the trip leader, and David Thompson, the director of Hotchkiss’s International Programs, provided students and parents with information about the trip. In early March 2007, Yu sent an email with two attachments: a packet that outlined the trip’s activities and a set of legal forms that asked participants and parents to waive legal claims against the school. Def.’s Trial Exs. 507, 616. The packet mentioned that the students would visit “Mount Pan” as part of a Tianjin city tour. Def.’s Trial Ex. 506, at 2; Def.’s Trial Ex. 507, at 4. Parents were instructed to sign and return the waiver. Def.’s Trial Ex. 616, at 1. Christine Munn, Munn’s mother, and Munn both signed the waiver. Pis.’ Mot. in Limine, Ex. C (doc. 143).

In April 2007, Yu followed up with another email with medical advice for trip participants. Pis.’ Trial Ex. 2. It included a link to a U.S. Centers for Disease Control and Prevention (“CDC”) webpage and instructed parents that the Hotchkiss infirmary could “serve as a travel clinic.” Id. But the advice was inaccurate; the web address linked to a webpage on Central America, not China, and the school infirmary was only available to administer vaccines prescribed by an outside doctor and could not give students independent advice on medical risks abroad. Trial Tr. 79:4-19, 209:14-16, 220:4-7. According to Thompson, the school expected students to know about the school clinic’s limitations and to “go to a travel medicine specialist or a travel clinic at home ... when the students would have two, two and-a-half weeks [of spring break].” Trial Tr. 237:1-9.

Yu also sent recipients a complete itinerary, a packing list, and a handbook on international travel. Pis.’ Trial Ex. 2. The itinerary again listed “Mount Pan” as part of a city tour. Pis.’ Trial Ex. 10. The packing list mentioned bug spray under the category “Miscellaneous,” just above the item “musical instrument.” Pis.’ Trial Ex. 2. The travel handbook contained no warnings about insect-borne disease, though it devoted pages to other health risks, including a reminder to be wary of foreign blood banks in the event a student .required surgery abroad and advice to bring American condoms to China to avoid using faulty protection and contracting a serious sexually-transmitted disease. Pis.’ Trial Ex. 1.

Thus, as Munn headed to China, neither she nor her parents had notice that she would visit a non-urban, forested area that might contain ticks or other insects carrying disease. Nor had Munn or her parents received any warnings about how to prevent insect-borne disease during the trip. The first few weeks of Munn’s trip proceeded without incident: she attended classes, visited sites, and made new friends. Yu testified that the students were all healthy during that time and that she only heard complaints about bug bites once, when the children visited Nanking University at dusk. Trial Tr. 569:11-570:8.

On June 23, 2007, the students left for a weekend excursion about sixty miles from Tianjin’s city center. The students visited the Great Wall in the early morning, and they arrived at Mount Panshan in the late morning or very early afternoon. Trial Tr. 594:11-22. According to video and pictures admitted at trial, Mount Panshan is a forested peak that sits next to several other smaller foothills. Pis.’ Trial Exs. 20, 405; Def.’s Trial Ex. 614. It is surrounded by what Americans might call an exurban landscape — a traditionally rural community with growing housing density created by commuters to the cities. Trial Tr. 512:12-18, 551:14-17.

No one had warned students that they should dress for a serious hike — all walked up the mountain in shorts and t-shirts or tank tops, and some even wore sandals instead of sneakers. Def.’s Trial Ex. 614. No one warned students to apply bug spray before they trekked up the mountain. Indeed, Yu left her bug spray on the bus. Trial Tr. 540:15-24. At the beginning of the hike, a guide led students up a paved pathway to a set of temples at the top of the mountain. Trial Tr. 592:6-10. At the top of the mountain the group split-up: Teachers, chaperones, and the majority of students rode a cable car down the mountain. Trial Tr. 519:1-522:25, 538:1-540:25.' Munn and two or three other students, however, asked to walk down the mountain by themselves. Id. Yu pointed them towards the path and said she would wait for them at the bottom. Id.

According to Munn’s uncontroverted testimony, the students decided to leave the paved path and venture down Mount .Panshan on narrow dirt trails that connected other temples on the mountain. Trial Tr. 526:1-533:25, 1007:22-1008:15. Munn recounted that the hikers quickly became lost and ended up walking among trees and through brush before eventually finding the path and reconnecting with the others. Trial Tr. 1029:7-25. The students then visited another forested area of Mount Panshan, one reached by a dirt path. Pis.’ Trial Ex. 20; Trial Tr. 1029:1-1030:25. •

After the trip to Mount Panshan, Munn recalled having many insect bites and a welt on her arm. Trial Tr. 1008:14-22, 1034:17-1035:13. Other than itchy discomfort, though, she felt fine. Trial Tr. 1034:17-1035:7, 1036:8-10. Ten days later she awoke with flu-like symptoms — a headache, a fever, and wooziness. Pis.’ Trial Ex. 36-2; Trial Tr. 693:6-16. Munn then grew more disoriented, and Yu decided to take her to the local hospital.

From that point, Munn’s condition deteriorated rapidly. Pis.’ Trial Ex. 36-2, 36-3, The local hospital transferred her to a Beijing hospital, and her parents 'arrived from the United States. Trial Tr. 694:1-11, 915:19-916:16; Pis.’ Trial Ex. 36-2, at 29; Pis.’ Trial Ex. 36-3, at 4-5, 7. They found her severely ill. Trial Tr. 915:22-916:14; Pis.’ Trial Ex. 36-3, at 23. She was partially paralyzed. Pis.’ Trial Ex. 36-3, at 23, 25; Trial Tr. 694:5-6; 918:10-919:2. She could not speak. Pis.’ Trial Ex. 36-3, at 23, 25; Trial Tr. 694:15-20. She dipped into a semi-comatose state. Pis.’ Trial Ex. 36-3, at 25; Trial Tr. 918:15-25. Once it became clear that Munn’s condition would not improve quickly, her father arranged for her to be airlifted to New York, where she was admitted to New York Presbyterian Hospital. Trial Tr. 919:3-8, 990:22-991:15; Pis.’ Trial Ex. 36-5, at 1.

After a week at New York Presbyterian and a month at a rehabilitation center, Munn’s condition stabilized and improved, but she was left permanently disabled. She never regained the ability to speak. Trial Tr. 800:7-11. Indeed, her vocal cords are so taut that she can at best make soft, single-syllable sounds, and like a “child who’s developing language,” she often cannot be understood by strangers. Trial Tr. 783:3-25, 794:11-796:4. Her hands have limited dexterity, particularly in her fingers, which are too stiff to bend easily, inhibiting the fine motor skills that facilitate tasks like typing. Trial Tr. 860:1-20, 928:17-929:13, 1013:3-10, 1071:20-1073:4, 1078:23-1079:4. She has limited control over her facial muscles, so that she drools, has difficulty eating and swallowing, and exhibits socially inappropriate expressions. Trial Tr. 792:3-794:10, 929:16-930:1, 991:18-993:10, 1010:3-14, 1012:11-1013:1.

Munn’s brain function is also compromised. She suffers from diminished executive function, which, according to the neu-ropsychologist who testified on her behalf, makes constructing multi-step solutions to everyday problems difficult. Trial Tr. 848:22-850:7, 852:14-853:24, 854:13-855:22, 861:3-862:24, 877:12-879:7. For this reason, Munn’s scores on problem-solving tests have plummeted. Thus, although her verbal comprehension (vocabulary) scores remain in the ninety-sixth percentile— comparable to her pre-injury scores — her reading comprehension and math scores have fallen precipitously; she now scores in the third percentile for reading comprehension, Trial Tr. 863:17-864:25, 869:15-19, and in the first percentile for math. Trial Tr. 869:19-22. Her scores on perceptional reasoning are almost as low, in the twelfth percentile. Trial Tr. 865:1-866:12. In other words, Munn is a “very intelligent person” but has great difficulty “using that intelligence, accessing it, planning [with] it.” Trial Tr. 868:10-869:2.

That said, Munn is in other ways normal. She still experiences the world much the same way as a person without a brain injury might — she understands what happens around her, she reads, she writes, she feels, she has opinions, and she dreams about her future. Indeed, with help, she finished high school and enrolled at Trinity University in Hartford, Connecticut. Trial Tr. 924:14-17; 981:7-982:20.

B. Procedural History

On June 11, 2009, Orson and Christine Munn filed this lawsuit as next friend to their daughter, Cara, alleging that Hotch-kiss’s negligence in the execution of its 2007 China Summer Program caused Munn’s injuries while Munn was a student in Hotchkiss’s care. Specifically, the Munns alleged that Hotchkiss was negligent in: (1) failing to properly warn Munn and her parents of the risks of insect-borne diseases, specifically, viral encephalitis; (2) failing to provide proper protective clothing, insect repellent, or vaccination by its employees and agents; (3) failing to provide appropriate medical personnel on the trip who could diagnose or arrange treatment for students on the trip; (4) failing to establish procedures for identifying medical emergencies, notifying parents of seriously ill children, and transporting seriously ill students to the United States for treatment; and (5) failing to advise the Munns of the availability of vaccines against viral encephalitis for children of Munn’s age traveling to rural areas of northeastern China in summer 2007. Compl. ¶ 41 (doc. 1); Am. Compl. ¶ 41 (doc. 79) (amended at Munn’s majority to include her claims as an independent party). At trial, the Munns abandoned the majority of these grounds for liability, proceeding with their arguments regarding Hotchkiss’s alleged failure to adequately warn of the risks of insect-borne disease on the China trip, and the alleged failure by its employees and agents to provide proper protection or prophylaxis (e.g., clothing, insect repellent, vaccination).

In addition to denying the allegations of negligence, Hotchkiss asserted several affirmative defenses, including that the Munns’ claims were barred by the doctrine of assumption of risk when the Munns signed the school’s pre-trip “Agreement, Waiver, and Release of Liability”; Munn’s injuries were the result of force majeure or caused by third parties; Munn’s injuries were caused by her parents’ contributory negligence; and finally, that with the exception of injuries caused solely by Hotchkiss’s negligence or willful misconduct, the Munns’ claims were barred by a signed release and waiver. Answer 3-4 (doc. 82).

After four years of discovery, two settlement conferences, a dispositive motion hearing and numerous pre-trial motions, the parties undertook a ten-day jury trial in which nine fact witnesses and ten expert witnesses testified. After the Munns rested their case, Hotchkiss moved for a directed verdict (judgment as a matter of law) pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, arguing that Munn contributed to her own injuries and that the risk of contracting insect-borne diseases while in Tianjin Province was unforeseeable as a matter of law. Trial Tr. 1200:17-1201:17. I denied that motion, noting that the key bases for the motion focused on factual disputes that were within the province of the jury, as the trier of fact, rather than questions of law. Trial Tr. 1201:18-1202:2.

At the culmination of the trial, the jury found that the Munns met their evidentia-ry burden in showing (1) Hotchkiss was negligent in failing to warn Munn of the risk of insect-borne illnesses; (2) Hotch-kiss was negligent in failing to ensure Munn used protective measures to prevent insect-borne infection; (3) Munn was infected by an insect-borne disease while visiting Mount Panshan; (4) one or more of Hotchkiss’s negligent acts or omissions was the cause in fact of Munn’s injuries; and (5) Hotchkiss’s negligent acts or omissions were a substantial factor that, acting alone or in conjunction with other factors, brought about Munn’s injuries. Jury Verdict Form 1-2 (doc. 193). The jury further found that Munn had not contributed to her injuries, and it awarded Munn $450,000 in past economic damages, $9,800,000 in future economic damages, and $31,500,000 in non-economic damages. Id. at 2. Judgment entered for the Munns on April 9, 2013.

Hotchkiss then filed its renewed motion for judgment as a matter of law pursuant to Rule 50(b) (doc. 206), and in the alternative, for a new trial and to alter judgment pursuant to Rule 59 (docs. 207, 210). I heard argument on all three post-trial motions on July 11, 2013 (doc. 248).

II. Standard of Review

Rule 50(b) of the Federal Rules of Civil Procedure allows for the entry of judgment as a matter of law if a jury returns a verdict for which there is no legally sufficient evidentiary basis. See Fed.R.Civ.P. 50. The standard under Rule 50 is the same as that for summary judgment: A court may not grant a Rule 50 motion unless “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.” This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (citation and internal quotation marks omitted). Thus, in deciding such a motion, “the court must give deference to all credibility determinations and reasonable inferences of the jury ... and it may not itself weigh the credibility of the witnesses or consider the weight of the evidence.” Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (citations omitted). In short, the court cannot “substitute its judgment for that of the jury.” LeBlancSternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995) (citations omitted). Rather, judgment as a matter of law may only be granted if:

(1) there is such a complete absence of evidence supporting the verdict that the'jury’s findings could only have been the result of sheer surmise and conjecture, or

(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded persons could not arrive at a verdict against it.

Galdieri-Ambrosini 136 F.3d at 289 (quoting Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir.1994)) (internal quotation marks omitted); see also Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir.1997).

In contrast, the decision whether to grant a new trial following a jury trial under Rule 59 is “ ‘committed to the sound discretion of the trial judge.’ ” Stoma v. Miller Marine Servs., Inc., 271 F.Supp.2d 429, 431 (E.D.N.Y.2003) (quoting Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992)). A new trial “ ‘should be granted when, in the opinion of the district court, the jury reached a seriously erroneous result or ... the verdict is a miscarriage of justice.’” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir.1998) (quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992)). “A new trial may be granted, therefore, when the jury’s verdict is against the weight of the evidence.” Id.

Hotchkiss advances several related arguments in each motion. In its Rule 50(b) motion, Hotchkiss argues (1) the Munns did not present sufficient evidence that Cara Munn’s injury was foreseeable, see infra section III.A.2.a; (2) public policy bars liability in this case, see infra section III.A.5; and (3) the Munns did not present sufficient evidence to prove Cara Munn was infected during the trip to Mount Pan-shan, see infra section III.A.3. In its Rule 59 motion, Hotchkiss argues (1) the jury instruction on foreseeability misstated the law, see infra section III.A.2.b; (2) the court improperly excluded evidence of Mr. and Mrs. Munns’ contributory negligence, including exclusion of release language in the school’s waiver, see infra section III.A.4; (3) the court erroneously admitted some expert testimony and improperly excluded other testimony, see infra section III.B; and (4) the non-economic damages awarded by the jury were excessive, see infra section III.C.

III. Discussion

In this section, I address each of Hotchkiss’s arguments: (1) the scope of Connecticut law governing duty and foreseeability in an action for common law negligence, including the challenge to the jury’s factual determinations and the jury instructions concerning foreseeability; (2) Hotchkiss’s assertion that the Munns failed to demonstrate that Munn was infected during the trip to Mount Panshan, effectively an argument against cause in fact; (3) arguments regarding the Munns’ alleged contributory negligence; (4) the assertion that public policy requires vacating the jury’s verdict; (5) challenges to the court’s decision to include certain-experts and exclude others; (6) the contention that the jury’s award for non-economic damages is excessive as a matter of law; and (7) the request to alter judgment in light of the parties’ joint stipulation regarding collateral source reduction.

A. Duty to Take Precautions, Foreseeability, Causation and Public Policy

In order to make a prima facie case of negligence under Connecticut law, a plaintiff must show that a duty existed, that the breach of that duty caused the plaintiffs injuries, and that the plaintiff experienced actual harm or injury. Considine v. City of Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006) (citations and quotation marks omitted). Within the element of causation, the individual or entity owing a duty to another is only liable for failing to prevent foreseeable harms that are the cause in fact of the plaintiffs injuries. LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002) (foreseeability); Gomes v. Com. Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462 (2001) (foreseeability); Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999) (discussing the interplay of cause in fact and proximate cause); Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980) (cause in fact).

In its post-trial motions, Hotchkiss conflates the concepts of the existence and scope of one’s duty with the separate element of proximate causation. Hotchkiss does not challenge the jury’s determination that Munn was harmed, but it contests that its alleged negligence was the proximate cause or cause • in fact of Munn’s injuries. Finally, Hotchkiss argues that even if the jury’s determinations regarding scope of duty, foreseeability, and causation are reasonable as a matter of law, it should be relieved from negligence liability for public policy reasons. In this subsection, I evaluate those elements and their designations as either questions of law or 'questions of fact, as well as Hotchkiss’s public policy defense.

1. Duty

The Connecticut Supreme Court explains that in a claim of general negligence, “it is necessary to determine the existence of a duty, and then, if one is found ... to evaluate the scope of that duty.” Maffucci v. Royal Park Ltd. P’ship, 243 Conn. 552, 566, 707 A.2d 15 (1998) (internal citations and quotation marks omitted). Whether a duty exists is a question of law, but the scope of that duty and whether the defendant acted as “a reasonable person would have done under the circumstances is a question to be determined by the trier of fact, except where the [defendant’s] conduct ‘clearly has or has not conformed to what the community requires, [such] that no reasonable [trier of fact] could reach a contrary conclusion.’ ” Considine, 279 Conn. at 859, 905 A.2d 70 (citing William Lloyd Prosser & W. Page Keeton, On Torts § 37 (5th ed.1984)); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994) (citations and quotation marks omitted). Hotchkiss attempts to argue that it bore no legal duty to Munn because it could not have foreseen the risk of students contracting insect-borne diseases, and TBE in particular, during its China summer pro-' gram.

As a matter of law, Hotchkiss undoubtedly owed Munn, a minor child in its care, a duty to protect her from known threats to her health and safety during the 2007 China summer program trip. Every public school shares this common-sense duty to protect the health and safety of students in its care, Connecticut General Statutes § 10-220, but this duty may be heightened for boarding schools, institutions that accept responsibility for students’ well being. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-55, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); cf. Loomis Inst. v. Town of Windsor, 234 Conn. 169, 172, 661 A.2d 1001 (1995) (reasoning that on-campus “faculty members, unlike off campus faculty members, act in loco par-entis to boarding students and must be available on a twenty-four hour basis to take care of any problems that may occur at the school.”); accord Andreozzi v. Rubano, 145 Conn. 280, 282, 141 A.2d 639 (1958) (holding that teachers “stand in loco parentis toward a pupil” in matters of discipline and security). Further, a boarding school may create a legal duty by its representations to students and their parents/guardians, particularly in the provision of health services. Bhagwant v. Kent School Corp., 453 F.Supp.2d 444 (D.Conn.2006); see also Trial Tr. 125:6-128:5 (detailing Hotchkiss’s pervasive supervision and control of its students). Regardless of the supervisory relationship between school and student, at a minimum Hotch-kiss has a legal duty “to use care ... [in] circumstances under which a reasonable person [in the defendant’s position], knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” Ryan Transp., Inc. v. M & G Assocs., 266 Conn. 520, 525-26, 832 A.2d 1180 (2003); Gomes, 258 Conn. at 615, 783 A.2d 462; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).

Hotchkiss admits that it owes students in its travel-abroad programs a general duty of care to advise them of the foreseeable risks of, and strategies for preventing contraction of, insect-borne diseases. At trial, Head of School Malcolm McKenzie testified that the school has “an unquestionable duty to protect the kids from dangerous conditions and injuries” wherever it can. Trial Tr. 118:22-119:1. McKenzie further testified that the school warns students of the risk of malaria in tropical regions, including in its materials to students regarding the China trip and in certain other eases, and it requires students to take steps to prevent infection. Trial Tr. 113:24-114:13, 123:18-124:2, 124:13-125:5. Thompson also affirmed that the school had a duty to determine if there were disease risks on the trip and specifically to protect Munn against insect-borne disease. Trial Tr. 235:16-17, 235:24-236:12; see also Trial Tr. 325:24-326:4 (“Q: Do you agree that the school had an unquestionable duty to protect Cara against insect-borne disease while on the trip? A: As much as that is possible through information and advice and direction.”).

Further, Hotchkiss embraces its duty of care at its own campus in Lakeville, Connecticut. The school provides comprehensive information on the risks of insect-borne diseases on its campus, and it requires that students take precautions against insect-borne diseases, even when those diseases may impose moderate to serious harms, as opposed to the serious and severe harms caused by TBE. Trial Tr. 155:7-156:9, 305:20-306:13, 313:14-18.

Hotchkiss’s arguments regarding want of a legal duty are more properly understood as a challenge to the jury’s factual determination that Hotchkiss had a duty of care to participants in its 2007 summer China program to warn the Munns of the potential risks of insect-borne diseases and advise Munn of precautions against contracting an insect-borne disease. Connecticut state courts have consistently held that determining the scope of one’s duty, also known as the standard of care, is fundamentally a question of fact. Considine, 279 Conn. at 859; 905 A.2d 70; Maffucci, 243 Conn. at 566, 707 A.2d 15; accord LePage, 262 Conn. at 123, 809 A.2d 505; Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975) (“negligence ... requires the trier of fact to determine whether the standard of care was met in a specific situation”).

This case required, and employed evidence from, numerous experts who attempted to establish the parameters of what a reasonable school in Hotchkiss’s position “knew or should have known” regarding the standard of care. As discussed in depth infra section III.B (Expert Witnesses), a district judge plays a gatekeeper role in its admission or exclusion of expert testimony, but once admitted, any other questions regarding an expert’s opinion, testimony or qualifications go to the weight and credibility of that expert — questions reserved for the jury. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (“The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts.” Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 1 (1991)); cf. W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 423, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985) (noting that it is improper to give all expert opinions equal weight because this eliminates the function of the jury in evaluating conflicting testimony); see-also Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990) (citing Sanderson v. Bob’s Coaster Corp., 133 Conn. 677, 682, 54 A.2d 270 (1947)); Johnson v. Chaves, 78 Conn.App. 342, 346-47, 826 A.2d 1286, cert. denied, 266 Conn. 911, 832 A.2d 70 (2003); Sorenson Transp. Co., Inc. v. State of Conn., 3 Conn.App. 329, 332, 488 A.2d 458, cert. denied, 196 Conn. 801, 491 A.2d 1105 (1985). Moreover, when there is a disagreement among qualified experts who meet Daubert’s requirements for admission, there is necessarily a disputed factual issue that requires resolution by the trier of fact.

A court may only vacate the jury’s determination regarding the standard of care if the defendant’s “conduct clearly has or has not conformed to what the community requires” such that no reasonable trier of fact could reach a contrary conclusion, Considine, 279 Conn. at 859, 905 A.2d 70, or “if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for another party.” Santopietro v. City of New Haven, 239 Conn. 207, 225-26, 682 A.2d 106 (1996). As discussed in depth infra in section III.A.2 (Foreseeability), this is not a case in which either provision for vacating a jury’s verdict is appropriate. Hotchkiss cannot demonstrate that its behavior “clearly conformed” to community standards, nor is it appropriate for the court to substitute its judgment for the jury’s factual determinations. Galdieri-Ambrosini, 136 F.3d at 289; LeBlanc-Sternberg, 67 F.3d at 429. This case involved difficult issues of fact that required a jury to weigh the evidence, evaluate the credibility of witnesses and determine the community’s standards regarding the scope of Hotch-kiss’s duty to Munn (i.e., the standard of care). After taking on the difficult task of assessing duty and liability, the jury returned a verdict unfavorable to Hotchkiss. Hotchkiss has not provided an adequate or reasonable rationale for vacating the verdict in this case.

Hotchkiss next argues that it could not have breached its standard of care because Munn’s infection was unforeseeable. This argument is also unavailing.

2. Foreseeability

Connecticut law limits the bounds of tort liability by restricting liability to those harms that are foreseeable. LePage, 262 Conn. at 124, 809 A.2d 505 (citing Gomes, 258 Conn. at 615, 783 A.2d 462). Foreseeability does not turn on the narrow question whether the plaintiffs specific harm was foreseeable to the defendant; it asks “would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate the harm of the general nature of that suffered was likely to result?” Id. (emphasis added); Conn. Sav. Bank v. First Nat’l Bank & Trust Co., 138 Conn. 298, 303-04, 84 A.2d 267 (1951) (citing Orlo v. Conn. Co., 128 Conn. 231, 237, 21 A.2d 402 (1941)). As discussed supra in section III.A.1 (Duty), although the existence of a duty is usually a question of law, the narrow question of foreseeability often turns on the facts of a particular case. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d 753 (1995) (when evidence supports finding that injury was within foreseeable scope of duty, issue involved question of fact for the jury, not question of law); Frankovitch v. Burton, 185 Conn. 14, 21, 440 A.2d 254 (1981) (“[wjhether the defendant should have anticipated danger ... presents] a question of fact.”); Gutierrez v. Thorne, 13 Conn. App. 493, 501, 537 A.2d 527 (1988) (“if there is room for a reasonable disagreement [regarding foreseeability of an injury], the question is one to be determined by the trier as a matter of fact.” (internal citations omitted)); Vendrella v. Astriab Family Ltd. P’ship, 311 Conn. 301, 329, 87 A.3d 546 (2014) (“[w]hether an injury was foreseeable is to be determined by the jury”). Moreover, although Connecticut courts are concerned with questions of public policy, a trial court must determine foreseeability before turning to a public policy analysis. Monk v. Temple George Assocs., LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005) (“before addressing policy concerns ... we must first determine under the foreseeability prong whether a duty existed ... absent other considerations.”); . see also infra section III.A.5 (Public Policy).

In this case, the jury determined that Hotchkiss knew or should have known that Munn could contract an insect-borne disease in China, specifically, on Mount Pan-shan. It was a pivotal finding. According to the jury, as the students gathered in the parking lot at the base of Mount Panshan, Hotchkiss faculty knew, or should have known, that the students were about to enter an area populated by insects carrying diseases. Jury Verdict Form 1.

Thus, for Hotchkiss to prevail on this issue, it must overcome the jury’s determination in one of. two ways. First, it can unsettle the jury’s factual determinations, either by showing that the jury misjudged the sufficiency of the evidence of foreseeability or by demonstrating that the jury was misled by the court’s description of the law governing foreseeability. Second, Hotchkiss can argue that despite the foreseeability of the risk, it had no legal duty to protect students from known diseases when traveling abroad.

a. Sufficiency of the Evidence of Foreseeability

Foreseeability encourages those owing a duty to others to take precautions to minimize identifiable risks while limiting tort liability from risks that are so “novel or extraordinary” that they could not be anticipated. Schiavone v. Falango, 149 Conn. 293, 298, 179 A.2d 622 (1962); Palsgraf v. Long Isl. R.R. Co., 248 N.Y. 339, 345-47, 162 N.E. 99 (1928); see also Prosser & Keeton, On Torts § 31 (“The idea of risk ... necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow.”). The test of foreseeability is not limited to whether a specific harm could have resulted from the defendant’s conduct; instead, it determines whether the injury suffered falls within a reasonably foreseeable category of potential risks or harms. Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008); Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997) (noting that the test of foreseeability is “harm of the general nature suffered”); Frankovitch, 185 Conn, at 21, 440 A.2d 254 (“[it] is not meant that one charged with negligence must be found actually to have foreseen ... the particular injury that resulted was foreseeable”); see also Vendrella, 311 Conn. at 335 n. 27, 87 A.3d 546 (“by logical deduction, the foreseeability component of the duty analysis must be something different than the foreseeability component of proximate cause. More precisely, it must be a lesser inquiry;” that -is, a lesser burden) (internal citations omitted).

Hotchkiss asks this court to depart from longstanding Connecticut law by imposing a higher burden of proof on the plaintiffs. Hotchkiss argues that the Munns must prove that the precise injury Munn actually sustained, TBE, was specifically foreseeable, not that the general category of harm to which she was exposed — insect-borne disease — was foreseeable and thus fell within the scope of Hotchkiss’s duty to students on its China trip. This argument is an unprecedented departure from case law, and as such, it is unavailing.

Munn’s health was compromised the moment an insect, in a zone known to be a risk area for insect-borne diseases, latched onto her arm and infected her. That insect happened to be a tick, and it happened to carry TBE. But Munn likely would have suffered severe harm if she contracted a different insect-borne disease; for example, if a mosquito injected her with the malaria virus, or a flea transmitted the bubonic plague. To hold otherwise conflates two distinct concepts: “harm” as a trigger for legal liability, and “harm” as a measure of damages.

A person commits a tort when he imprudently fails to foresee and take precautions against a risk that he should have recognized, and another person suffers an injury as the result of that failure. LePage, 262 Conn. at 124, 809 A.2d 505 (“the factfinder must consider whether the defendant knew, or should have known, the situation at hand would ‘obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken.’ ”) (citing Bonczkiewicz v. Merberg Wrecking Corp., 148 Conn. 573, 579, 172 A.2d 917 (1961)). That injury is the “harm” or risk that the defendant should have foreseen, and, in this case, it occurred the moment a tick bit into Munn’s skin and transmitted a disease that compromised her health. That injury had extreme consequences, so that the total “harm” for which the Munns sought compensation is substantial. But the preventable legal injury at issue was Munn’s infection by an insect, not her specific illness. Thus, the jury properly determined that Hotchkiss had a duty to warn Munn and ensure that she took protective measures to prevent that category of injury described to the jury as “insect-borne disease.” Jury Verdict Form 2.

Jaworski v. Kiernan illustrates how the Connecticut Supreme Court has distinguished between foreseeability of a category or class of injuries from foreseeability of specific injuries. In Jaworski, the Court held that players can and should foresee the risk of bodily injury to competitors during a soccer game. 241 Conn, at 408, 696 A.2d 332. The defendant had tripped the plaintiff in an attempt to gain possession of a ball during a soccer game. Id. at 400, 696 A.2d 332. The plaintiff fell and tore a ligament, resulting in a permanent injury to her left knee. Id. On appeal, the Court held that the harm to the plaintiff was foreseeable because athletes should know that aggressive play increases the chance of injuries to fellow players. Id. To reach this result, the Court defined the foreseeable risk as injury resulting from .contact on the field, not of severe damage to a knee that results from tripping a competitor:

Soccer, while not as violent a sport as football, is nevertheless replete with occasions when the participants make contact with one another during the normal course of the game. When two soccer players vie for control of the ball, the lower limbs are especially vulnerable to injury. If a player seeks to challenge another player who has possession of the ball or seeks to prevent another player from gaining possession of the ball, the resulting contact could reasonably be foreseen to result in injury to either player. We conclude, therefore, that the plaintiffs injury was foreseeable.

Id. at 408, 696 A.2d 332. Like the hard-tackling soccer player in Jaworski, the jury here determined that Hotchkiss could have foreseen that its conduct might cause injury, even if it could not have anticipated the severity of the harm.

Hotchkiss rejects this interpretation of Connecticut law. It attempts to create a narrower rule by referencing a Connecticut Supreme Court decision, Lodge v. Arett Sales Corp., 246 Conn. 563, 717 A.2d 215 (1998), in which the Court held that defendants could not have anticipated the tertiary effects of their conduct. In Lodge, a group of injured- firefighters sued alarm companies that transmitted false alerts. As the firefighters raced to a location where they were not needed, the brakes on their fire engine failed, and the vehicle careened into a tree. Id. at 567, 717 A.2d 215. After a jury returned a verdict in favor of the accident victims, the Connecticut Supreme Court vacated the award because the alarm companies could not have foreseen that the vehicle would have faulty brakes, even if the companies had carelessly transmitted a signal that put the firefighters on a path that ended in a crash. Id. at 574, 717 A.2d 215. The Court described its holding as based on the scope of the injury, writing that “[w]e agree with the defendants that the analysis of foreseeability logically cannot be extended so far that the term ‘general harm’ incorporates any accident involving a fire engine responding to a false alarm.” Id.

The holding in Lodge, however, is fundamentally concerned with cause in fact, not the scope of duty. Id. (a court should examine duty in the context of causation when “the duty is asserted against one who is' not the direct cause of the harm”). In Lodge, the alarm company’s behavior could not be traced back to the fire engine’s brake failure; the alarm company had not serviced or replaced the brakes, nor could it have known that the brakes were kept in poor repair. Id. at 577-78, 717 A.2d 215. The Court ultimately decided that the plaintiffs’ harm was too attenuated from the defendant’s conduct to reasonably apply legal liability. Id. at 574, 577, 717 A.2d 215. Although the Court framed the plaintiffs’ harm as “too remote” from the defendant’s conduct to require liability, “remote” was used to describe the closeness of the relationship between the plaintiffs’ harm and the defendant’s conduct, not to refer to the probability, or improbability, of that harm occurring. Id. at 575, 717 A.2d 215. Ultimately, the Court indicated that the plaintiffs had sued the wrong defendant, not that the anticipated harm was unforeseeable if liability were asserted against another defendant under the same circumstances. Id. at 578-79, 717 A.2d 215.

No third party’s negligence distances Hotchkiss from Munn’s infection. The Munns’ claim was directly related to Hotchkiss’s conduct and the impact of that conduct on Munn’s exposure to a foreseeable risk. Munn argued that the school should have warned her of, and advised and ensured she took protective measures against, the risk of insect-borne disease. Because the school ignored the threat of insect-borne diseases, Munn walked down Mount Panshan without any protection against insects carrying diseases, including ticks carrying TBE.

In contrast, the Lodge plaintiffs’ argument required several logical leaps to connect their injuries to the alarm companies’ negligence: the companies had a duty to send accurate information, but they could not have anticipated that their false signal would reach a fire station serviced by a fire engine with poorly-maintained brakes that prevented a driver from stopping the vehicle before it skidded toward a tree. Id. at 577-78, 717 A.2d 215 (noting that the poor maintenance of the vehicle was beyond the control of the alarm company). The Lodge plaintiffs could not argue that they would have avoided an accident had the defendants sent only accurate alarm reports.

Conversely, in this case the jury found that Munn demonstrated that, but for Hotchkiss’s negligence, she would have applied bug spray that would properly repel insects, and as a result, prevent her from contracting insect-borne diseases like TBE. At trial, Hotchkiss advanced arguments and offered evidence to muddy the alleged causal connection between its conduct and Munn’s injuries by alleging that Munn was comparatively negligent and offering expert testimony that Munn may have contracted a different form of encephalitis in a different location. The issue here was not whether Hotchkiss was being held responsible for another party’s conduct; instead, there was a factual dispute regarding causation, and that dispute required expert testimony and exhibits from both parties.

Once the scope of Hotchkiss’s duty was defined — as an obligation to protect students from insects carrying disease — the jury was provided with ample evidence that the school ignored a predictable risk within the scope of its duty to Munn. First, the CDC warned travelers about many insect-borne diseases in China. Pis.’ Trial Ex. 9, at 2-4. As witnesses for both sides attested, the.CDC is the primary source for assessing travelers’ health risks abroad. Indeed, Thompson testified that he based much of the school’s pre-trip advice on the CDC website. Trial Tr. 235:10-14. At trial, the Munns presented two CDC advisories about disease risks in China. The first advisory described health risks in “East Asia.” Pis.’ Trial Ex. 9. That advisory warned of malaria in “some areas of China” and that “dengue, filariasis, Japanese encephalitis, leishmaniasis, and plague are diseases carried by insects ... in this region.” Id. at 3. It also counseled travelers to bring “[i]nseet repellant containing DEET” and “long-sleeved shirt[s] [and] long pants” to prevent contracting insect-borne disease. Id. at 4. The second advisory outlined risks in China specifically. Def.’s Trial Ex. 546. That webpage advised travelers about risks of Japanese encephalitis, malaria, leishmaniasis, and, most relevant, TBE; it stated that “[t]ick-borne encephalitis occurs in forested regions in northeastern China.” Id. It then repeated the advice on insect precautions found on the East Asia webpage — travelers should use DEET-based bug repellant and wear long pants and long sleeves when outdoors. Id.

With this foundation laid, the Munns presented evidence that Mount Panshan fell within the category of geographies described in the CDC’s warnings — a forested region in northeastern China. Photographs and video depicted a mountain covered with dense patches of trees and brush. Pis.’ Trial Ex. 20; Def.’s Trial Exs. 405, 614. The jury heard a debate about whether Mount Panshan fell within northeastern China or should be treated as a northern portion of central-eastern China. The Munns displayed a map that placed Mount Panshan at the northern end of Tianjin, above the Bohai Sea, Pis.’ Trial Ex. 14, and a second map that placed northern Tianjin within the TBE-endemic region in China, a band whose southern tip ended at the Bohai Sea. Pis.’ Trial Ex. 22; Trial Tr. 679:9-25. Thus, the jury reasonably could have interpreted those maps to establish that Mount Panshan fell within the area described as “northeastern China” in the CDC’s advisory. ■ Hotchkiss’s witnesses bolstered this interpretation. Thompson conceded that Tianjin lay in northeastern China. Trial Tr. 253:12-14 (Q: “When we talked about it a minute ago, you agreed we were in Northeastern China” A: “Yes, sir.”). Dr. David Freedman, Hotchkiss’s only expert on liability, testified that he was unfamiliar with the CDC’s mention of Tianjin as part of China’s northeastern provinces, Trial Tr. 1247:1-4, but he then equivocated, admitting bluntly that “Tianjin is in northeastern China.” Trial Tr. 1247:5-6. On cross-examination, he also admitted that the Munns’ map, placing Mount Panshan in northeastern China’s TBE-endemic region, was authoritative; indeed, it was so reliable it had appeared in a travel medicine textbook edited by Freedman. Trial Tr. 1262:7-1264:15.

Even if the jury had found the CDC evidence inconclusive, expert opinion also supported . a finding of foreseeability. Both travel medicine experts testified that the school had reason to know and be wary of insect-borne diseases in the region. Dr. Stuart Rose, the Munns’ expert, testified that, according to travel medicine reports routinely consulted by doctors and commercial trip planners in 2007, rural China was an endemic region for TBE, Japanese encephalitis, and Lyme disease. Trial Tr. 650:21-651:7, 655:19-656:4. Rose opined that any competent trip planner would have understood the risk of these diseases; would have warned children in advance of their hike on Mount Panshan that they had to wear DEET-based repellant, ' long sleeves and long pants; and would have checked for ticks at the conclusion of their excursion. Trial Tr. 681:4-683:8.

Freedman’s testimony also supported a finding of foreseeability regarding insect-borne diseases. Freedman testified that he had “a very strong opinion” that the school had done nothing wrong, that if “Cara would have presented to [his] travel medicine clinic ... she would have gotten exactly the same advice as' she did receive.” Trial Tr. 1231:8-11.. During direct and cross-examination, however, he also admitted facts that permitted an inference in favor of the Munns: Freedman admitted that Lyme disease and Japanese encephalitis could be found in Tianjin. Trial Tr. 1243:25-1245:5, 1254:20-1255:19. He further conceded that TBE was present in Tianjin. Trial Tr. 1222:24-1223:6 (“There were clearly, there are clearly — there are clearly cases in the local population during that time.... It’s not a nationally tracked disease in China.”). He then admitted that the school was on notice of that risk; after the Munns’ counsel pressed him on whether the school should have heeded the CDC’s warning, Freedman grudgingly responded that “all I can say is that [TBE] is something should concern you, that you might want to question [whether to take precautions against TBE] a little bit more.” Trial Tr. 1253:2-12.

Munns’ counsel put forth evidence that illuminated what the school would have found had it looked into the CDC’s warning about the risk of TBE — the same advisory relied upon by Rose, which warned travelers about TBE in rural China and which was published by a widely-used commercial service. Trial Tr. 1250:1-12, 1253:13-22. Freedman could not undermine the advisory’s accuracy; he sat on the commercial service’s editorial board and approved all content for its website. Trial Tr. 1248:12-22. The Munns also submitted a British health advisory that counseled that TBE occurred “in forested regions of China and Japan.” Def.’s Trial Ex. 604, at 1.

Faced with the task of overcoming this substantial evidence, Hotchkiss launches one final attack on the sufficiency of the Munns’ case: Before Munn contracted TBE in summer 2007, the CDC had no record of an American traveler contracting the illness while visiting China. As it did at summary judgment and trial, Hotchkiss points to the unprecedented nature of Munn’s illness as evidence that the illness was unforeseeable as a matter of law. If no one like Munn had contracted the illness before, the logic goes, how could the school anticipate that it would happen to her? According to Hotchkiss, then, Munn’s illness was a “freak accident,” not a foreseeable harm that the school had a duty to guard against. Trial Tr. 146:7-9.

The rarity or commonness of TBE only goes to the weight of factual evidence, not its legal sufficiency. As noted, the general category of harm at issue related to insect-borne diseases, within which certain diseases were more or less common. The jury found that Hotchkiss failed to meet its standard of care for this category of harm, and as a result, Munn contracted a rare but severe, insect-borne disease. This determination is fundamentally a factual inquiry.

Prior incidents are only one way of proving that a defendant should have anticipated harm. In Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 80 (2d Cir.1997), the Second Circuit reversed a district court’s grant of a motion for judgment as a matter of law. The district court had ruled that the plaintiff could not establish foreseeability if there was no evidence that a previous passenger had suffered a similar injury. The Second Circuit disagreed. Writing for the majority, Judge Guido Calabresi explained that “such evidence — though relevant — was not necessary to a showing of negligence in a particular case.... If there is sufficient other evidence of negligence, no evidence of prior accidents is required.” Id. (internal citations omitted); accord Pratt & Whitney Aircraft v. Donovan, 715 F.2d 57, 63-64 (2d Cir.1983) (reasoning that “unusual or infrequent hazards undoubtedly can in some circumstances pose a meaningful possibility of injury”). Indeed, the relative rarity or commonness of a potential injury or harm is central to the calculus of negligence when setting a standard of reasonable care. In re N.Y.C., 522 F.3d 279, 284 (2d Cir.2008) (“[W]e are mindful of the formula first stated by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947): whether the burden of adequate precautions (B) is less than the gravity of the injury (L) discounted by the probability that the injury will occur (P), i.e., whether B