2005-287, MARY CARIGNAN v. LESLIE WHEELER & a.

among other things, that the trial court erred by: (1) refusing to admit Officer plaintiff, Mary Carignan, which was appealed. Id. at 412. Wheeler argued, Carignan. Id. at 411-12. In Carignan, the jury returned a verdict for the 23, 1998 accident from which this case arises, are sufficiently recited in Speedway, 151 N.H. 409 (2004). The facts, including the details of the August This is the second appeal of this case. See Carignan v. N.H. Int’l

hence was properly excluded at trial. We affirm. Court (Smith, J.) that a police officer’s accident report is not trustworthy and HICKS, J. Defendant Leslie Wheeler appeals a decision of the Superior

Leslie Wheeler. and Shenanne R. Tucker on the brief, and Mr. Bouchard orally), for defendant Bouchard, Kleinman & Wright, P.A., of Hampton (Kenneth G. Bouchard

orally), for the plaintiff. Errors may be reported by E-mail at the following address: Matthew J. Lahey, P.A., of Laconia (Matthew J. Lahey on the brief and

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-287 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as day.

p. 2 when it used a

reaching his conclusion of fault. Locke issued his accident report on that same

independently verifiable objective facts.” as his conclusion of fault was based “on witness testimony rather than of fault to be admitted” and that his investigation was “rather unsophisticated” reduce them to present value; and (4) denying his motion to reconvene the jury

In addition, he received statements from witnesses upon which he relied in 2 pavement, took measurements, prepared a diagram, and made observations. triangulation to mark the resting place of the vehicles and gouge marks on the

skill, training, and experience in accident investigation to allow his conclusion cost of medical treatment and lost wages without requiring the plaintiff to “motion to set aside the jury verdict and for new trial”; (3) allowing the future witness based upon inadmissible deposition testimony; (2) failing to grant his

Inc.’s parking facility. During his subsequent investigation, Locke used per diem formula in calculating its pain and suffering award

was properly excluded at trial.” The court found that “Officer Locke lacked the

plaintiff to establish a new liability theory by cross-examining Wheeler’s expert errors, which were raised, but not addressed, in Carignan: (1) allowing the report and findings. He also argues that the trial court made the following On appeal, Wheeler argues that the trial court erred by excluding Locke’s

which was entering co-defendant New Hampshire International Speedway, was a factual finding within the meaning of Rule 803(8)(C). defendant Dennis Carignan’s motorcycle and Wheeler’s recreational vehicle, Loudon Police Department, arrived at the scene of an accident involving co- The trial court ruled that the “the police report is not trustworthy and

excessive and improperly calculated. in excluding testimony concerning Locke’s conclusion. facts that underlay or formed the basis of his opinion, the trial court did not err

driver of the motorcycle made a wrong decision in his attempt to pass the RV” the following facts: On August 23, 1998, Locke, a part-time officer in the On remand, the trial court conducted an evidentiary hearing and found

the jury verdict; and (4) failing to grant a remittitur because the jury award was Id. at 418. inadmissible deposition testimony; (3) failing to grant his motion to set aside liability theory by cross-examining Wheeler’s expert witness based upon witness could be asked on cross-examination about otherwise inadmissible was trustworthy.” Id. at 417. We also concluded that while Wheeler’s expert remanded the case “for a determination of whether that portion of the report Accordingly, we vacated the trial court’s ruling excluding the report and

We determined that the conclusion in Locke’s police report that “the

Rule of Evidence Rule 803(8)(C); (2) allowing the plaintiff to establish a new Locke’s police accident report under the hearsay exception in New Hampshire experience indicated that his conclusion of fault lacked trustworthiness.

p. 3 accident.” As such, the trial court determined that Locke’s skill, training, and

testimony that this technique does not “determine what or who caused an using triangulation.” In regard to triangulation, the court noted Locke’s program and he did not learn any accident reconstruction skills aside from

“only training in accident investigation came from a part-time Academy

previously investigated only five to ten accidents. It also found that Locke’s

reconstructionist” or have investigated “a large number of accidents.”

with any improper motive.

The trial court found that Locke was a part-time officer who had

information or other circumstances indicate a lack of trustworthiness.” “admissible under that subsection of the rule, unless the sources of reconstruction” when it is “not necessary” that he be an “accident court “inappropriately dwelled on Officer Locke’s lack of accident Wheeler first contends that, with respect to the second factor, the trial

at which the investigation was conducted; and (4) whether the report was made of the investigation; (2) the special skill or experience of the official; (3) the level other circumstances indicate lack of trustworthiness.” 551, 558 (6th Cir. 1978), cert. denied, 441 U.S. 933 (1979): (1) the timeliness remand, the following factors from Baker v. Elcona Homes Corp., 588 F.2d Carignan, 151 N.H. at 416-17. We suggested that the trial court consider, on

motorcycle made a wrong decision in his attempt to pass the RV” was In Carignan, we ruled that Locke’s conclusion that “the driver of the

N.H. R. Ev. 803(8)(C).

authority granted by law, unless the sources of information or factual findings resulting from an investigation made pursuant to public offices or agencies, setting forth . . . (C) in civil actions . . . “[r]ecords, reports, statements or data compilations, in any form, of

Rule 803(8)(C) provides an exception to the hearsay rule for:

Carignan, 151 N.H. at 416. are clearly untenable or unreasonable to the prejudice of a party’s case. unsustainable exercise of discretion standard, and reverse only if the rulings We review a trial court’s ruling on the admissibility of evidence under an

I. Police Report

damages award. and impermissibly awarded the plaintiff a credit for attorney’s fees in its statements and draw a conclusion,” Locke testified, “Sure, anybody could.”

p. 4 as well as Wheeler and Carignan. When asked if “anybody could take [their] statements were two employees of the New Hampshire International Speedway use as the basis for his conclusion. The witnesses who provided these

statements of an interested [witness]”); physical evidence to support his conclusion that was “largely based upon the

reconstructionist,” he did not have anything besides the witness statements to

method for “checking or corroborating” the report and there was insufficient

statements he received, Locke explained that without “being an accident is both tenable and reasonable. 4 fault. In addition to admitting that his conclusion was formed from the witness measurements (triangulation) was used by him to arrive at his conclusion of

his conclusion of the accident’s cause was inadmissible because there was no observations, and performing triangulation. to interviewing witnesses, included taking measurements, making Locke made his findings based upon his entire investigation, which, in addition conclude that the trial court’s finding, that Locke’s report was untrustworthy,

calculations, and that neither his diagram nor his vehicle resting point v. Lynch, 133 N.H. 79, 88 (1990) (same); Saltzman v. Town of Kingston, 124 of an accident is properly excluded when it would not assist the jury); Johnston (1994) (finding that an officer’s opinion testimony concerning the fault or cause

F.2d 619, 623 (8th Cir. 1986) (ruling that a trooper’s accident report containing

improper motive. Considering the trial court’s findings on all of the factors, we that the investigation was timely and the report was made without any testified that he did not perform any accident reconstruction or any skid mark Wheeler does not contest the trial court’s findings on the other factors – and experience). “he did not consider this evidence in drawing a conclusion as to fault.” Locke vehicles and gouge marks on the pavement using triangulation,” it found that

court erred by finding that Locke relied “solely on witness statements and

in detail about the vector analysis he performed possessed the requisite skill Although the trial court noted that Locke “marked the resting place of

findings. We see no error in the court’s consideration of these facts.

Wheeler also contends that, with respect to the third factor, the trial

who “had investigated hundreds or even thousands” of accidents and testified Baker, 588 F.2d at 558 (finding that a twenty-eight-year veteran patrolman

limited training and experience in evaluating the trustworthiness of his large number of accidents, the trial court could properly consider Locke’s police officer be an expert in accident reconstruction or have investigated a Although we agree with Wheeler that there is no requirement that a considered in forming his opinions. p. 5 that the deposition evidence was relevant only for what Wheeler’s expert

his opinions. In addition, the trial court gave a limiting instruction to the jury

was no “radical departure” within the meaning of deposition because he testified that he relied upon this deposition in forming direct examination both as a normal and as a gradual turn. Therefore, there

inadmissible.”

Wheeler’s expert witness. The record reflects otherwise. plaintiff’s case as presented to go to the jury for consideration. We therefore conclude that the trial court did not err in allowing the

was a total lack of evidence to sustain it.” Citing

cross-examine Wheeler’s expert witness about statements in Carignan’s Subsequently, the plaintiff and Carignan described Wheeler’s turn in their

Carignan, 151 N.H. at 417. Plaintiff’s counsel was allowed to

facts underlying an expert’s opinion even if those facts would be otherwise Hampshire Rule of Evidence 705 “permits inquiry on cross-examination into not admitted into evidence, we reiterate our statement from Carignan that New expert witness using the inadmissible deposition testimony of Carignan. rather was “spontaneously developed” during the cross-examination of Furthermore, even though large portions of Carignan’s deposition were statement, opening statement, or anywhere in the Plaintiff’s case in chief,” but jury essentially because it “was not presented in the Plaintiff’s pretrial foundation). new theory of cause of fire interjected at conclusion of trial without

defendant’s expert,” when it “constituted a radical departure from the theory was suggested “[j]ust before the close of evidence, in cross-examination of the the “clipped corner” manner of Wheeler’s turn during his opening statement. Unlike in Russell, plaintiff’s counsel here referenced evidence concerning

motorcycle’s lane causing the collision”) during cross-examination of Wheeler’s

argue that the trial court erred in allowing this new liability theory to go to the

that a plaintiff was not entitled to present to a jury a new liability theory, which In Russell v. Boston & Maine Railroad, 83 N.H. 246, 252 (1928), we held

but rather drifted left on a direct angle well before the turn, and entered the establish a new liability theory (that Wheeler “did not make a normal left turn, Wheeler next argues that the trial court erred by allowing the plaintiff to

II. New Liability Theory

ruling that “the police report . . . was properly excluded at trial.” N.H. 515, 524-25 (1984) (same). We thus find no error in the trial court’s p. 6 6

arguments lack merit and warrant no further discussion. requiring the plaintiff to reduce them to present value. We conclude that these

discretion of the trial court.

by allowing the future cost of medical treatment and lost wages without

unreasonable to the prejudice of a party’s case. concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

the motion. Affirmed.

failing to grant his “motion to set aside the jury verdict and for new trial,” and Wheeler asserts in his remaining arguments that the trial court erred by discretion standard, and reverse only if the rulings are clearly untenable or IV. Remaining Arguments

the information that formed the basis for the motion. The trial court denied denial of the defendant’s motion is neither untenable nor unreasonable. 12 p. 6 6 N.H. 674, 683 (1985). Based upon the record before us, the trial court’s

unsustainable exercise of discretion standard). Whether or not to reconvene (1993); see State v. Lambert, 147 N.H. 295, 29 p. 6 6 (2001)(explaining

We review the trial court’s decision under an unsustainable exercise of

a response to a juror questionnaire, he called the juror and thereby received Kenneth Bouchard. Attorney Bouchard’s affidavit detailed how, upon receiving Wheeler’s motion was accompanied by an affidavit of his attorney,

per year above medical costs, lawyer’s fees and any other expenses.” diem” based formula in order to make sure that the plaintiff received “$20,000

reconvene the jury when its verdict was based upon “impermissible speculation Wheeler also argues that the trial court erred in denying his motion to

III. Reconvening the Jury