2005-809, JOHN MILLIKEN & a. v. DARTMOUTH-HITCHCOCK CLINIC

The plaintiffs, John Milliken, individually, and Dianne

the brief, and Mr. Snow orally), for the defendants. Orr & Reno, P.A., of Concord (Ronald L. Snow and Emily Gray Rice on

Van Dorn Jr. on the brief, and Mr. Van Dorn orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Van Dorn and Curtiss, PLLC, of Orford (Robin C. Curtiss and Edward M.

editorial errors in order that corrections may be made before the opinion goes No. 2005-809 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. 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 preserved, the trial court did not engage in an unsustainable exercise of

p. 2 review. Alternatively, the defendants argue that even if these issues were

defendants argue that the plaintiffs have not preserved these arguments for our 2006); and (2) she was not qualified to give an opinion on these issues. The issues were not included in her report in violation of RSA 516:29-b, II (Supp.

timing of the baby’s injury was inadmissible because: (1) her opinions on these

another physician. the trial court retains the discretion to admit expert testimony, The plaintiffs first argue that D’Alton’s testimony on the cause and

I. Testimony of Mary D’Alton, M.D. deformed and bruised skull, as well as severe brain damage.

omitted). “clearly untenable or unreasonable to the prejudice of his case.” Id. (quotation was not sustainable, the appealing party must show that the ruling was Engineering, 150 N.H. 195, 197 (2003). To show that the trial court’s decision complaint alleged, under an unsustainable exercise of discretion standard, McLaughlin v. Fisher son. Lauria was subsequently dismissed as a defendant. The plaintiffs’ Letendre & Letendre, 149 N.H. 31, 37 (2002), and its decision will be reviewed shift then ended and she left the hospital. Milliken’s care was assumed by In the Matter of testimonies of each witness in turn, applying the correct standard of review: radiologist, to testify regarding the timing of the injury. We address the injury and by allowing Dr. Robert Zimmerman, the defendant’s expert condition known as Bandl’s Ring. The baby was delivered suffering from a Dr. Mary D’Alton and Lauria to testify regarding the timing and cause of the revealed that the baby’s head was constricted by the lower uterus, a rare The issues raised on appeal are whether the trial court erred by allowing 30, 2000, an emergency caesarean section was recommended. The surgery section. After a jury trial, a verdict was returned for the defendants. recognize a lack of progress in labor, and failure to timely perform a caesarean

several physicians, including Lauria, involved in the care of Milliken and her results, Lauria ordered that Milliken be given pitocin to induce labor. Lauria’s The plaintiffs brought suit on March 28, 2003, against DMHC and chorioamnionitis, an intrauterine infection. Based upon the amniocentesis specialist, ordered an amniocentesis which revealed fetal lung maturity and

despite the pitocin, she never went into active labor. At 7:00 a.m. on March Milliken was monitored throughout the night of March 29, 2000, and

progressively more tender, and Dr. Michele Lauria, a maternal fetal medicine four weeks at DMHC. On March 29, 2000, Milliken’s abdomen became p. 3 3

disclosure requirements of RSA 516:29-b (Supp. 2006) or Superior Court Rule testimony was inadmissible because the defendants failed to comply with the regarding timing would be unreliable. The motion did not argue that the The plaintiff’s motion in limine argued only that D’Alton’s testimony

issue regarding D’Alton’s qualifications to testify on the timing of the injury. plaintiffs’ motion in limine. However, we hold that the motion did preserve the qualifications to testify on the cause of the injury were not preserved by the by the trial court. We agree that the issues regarding D’Alton’s report and her therefore no definitive pretrial ruling on the plaintiffs’ appeal issues was made on a motion unreliability of D’Alton’s opinion on the timing of [the baby’s] injury” and definitively rules on the issue prior to trial. A ruling testimony” because “[t]he sole issue raised in plaintiffs’ motion concerned the as a matter of law to preserve the issues . . . on appeal concerning D’Alton’s The defendants argue that the plaintiffs’ motion in limine “is insufficient

necessary. Klar, 145 N.H. at 488-89 (quotation omitted).

the trial court. ruled on it.

order demonstrates that it considered the issue and sufficiently alerted to the issue and the court’s written

for appeal without an objection at trial if the trial court

motions were filed. [a] motion in limine is sufficient to preserve an issue that they have not appealed. The record does not reflect that any post-trial (2004). However,

State v. Ayer, 150 N.H. 14, 21 (200 p. 3 3), cert. denied, 541 U.S. 942

allows the trial court to consider errors as they occur and remedy them as

Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). This

appealing party to demonstrate that the issues on appeal were raised before Mitoulas, 145 N.H. 48 p. 3 3, 488 (2000) (quotation omitted). The burden is on the objection during trial to preserve an issue for appellate review.” Klar v. “Generally, a [party] must make a specific and contemporaneous

the plaintiffs objected only once during D’Alton’s testimony regarding an issue held that her opinion was sufficiently reliable on the issue of timing. At trial, (Rule 702). In denying this motion, the court reviewed D’Alton’s deposition and requisite indicia of reliability required by New Hampshire Rule of Evidence 702 from testifying about the timing of the baby’s injury, claiming that it lacked the Before trial, the plaintiffs filed a motion in limine to preclude D’Alton

Blackmer, 1 p. 4 49 N.H. 47, 48 (200 p. 3 3), we first address the preservation issue. discretion. As we will not review any issue that was not raised below, State v. 4

within the trial judge’s discretion. decision whether a witness qualifies as an expert is principles and methods; and opportunity to hear and observe the witness, the or data;

timing. We disagree. admitted that she would defer to a pediatric neurologist or radiologist on the (2) she has never seen a Bandl’s Ring in a premature infant; and (3) she

(b) Such testimony is the product of reliable qualifications. Because the trial judge has the (a) Such testimony is based upon sufficient facts testimony unless the court finds: A witness shall not be allowed to offer expert [the] injury does not undercut her

ruled: “that [D’Alton] defers to pediatric neurologists on the exact timing of and ellipsis omitted). RSA 516:29-a provides, in pertinent part: cited to Rule 702 and RSA 516:29-a, which deal with expert qualifications, and Hodgdon v. Frisbie Mem. Hosp., 1 p. 4 47 N.H. 286, 289 (2001) (quotation, citation,

the timing of the injury because: (1) her specialty is maternal fetal medicine;

conduct an adequate investigation of the expert’s qualify a witness as an expert, the trial judge must education, may testify thereto. In deciding whether to preserved by the motion expert by knowledge, skill, experience, training, or Under Rule of Evidence 702, a witness qualified as an

pediatric neurologist on the timing of [the] injuries.” In its order, the trial court

The plaintiffs argue that D’Alton is not qualified to offer an opinion on

review, we address it. here.” (Emphasis added.) Accordingly, as this issue was preserved for our

testimony about the cause of the injury. Accordingly, we hold that the trial neither the plaintiffs’ motion nor the court’s order addressed D’Alton’s was only the “[d]efendants’ liability expert” who planned to “defer to the . . . motion alleged that D’Alton’s testimony was unreliable, in part, because she timing as required by Rule 702 and RSA 516:29-a (Supp. 2006). The plaintiffs’ their argument that D’Alton was not qualified to offer an opinion regarding In contrast, the plaintiffs’ motion in limine was sufficient to preserve

at trial, we find that they are not preserved for our review.

upon the issue of reliability and did not discuss disclosure issues. Likewise, 35(f). The trial court’s order denying the plaintiffs’ motion specifically focused testifying as an expert in that field.” 5

p. 5 a particular medical field does not automatically disqualify a doctor from qualified to give her opinion regarding the injury. “The lack of specialization in as the plaintiffs’ witness. During examination by the plaintiffs’ counsel, Lauria At trial, Lauria, who had previously been a party defendant, was called

145 N.H. at 488-89. insufficient to preserve this issue, a timely objection at trial was required. Klar, specifically mentioned in the motion. Since the motion in limine was The court made no definitive ruling on the motion and Lauria was not even appeal. We agree. insufficient to preserve the issue regarding disclosure of Lauria as an expert. from Klar, discussed above, we hold that the plaintiffs’ motion in limine was Applying the same rule regarding preservation and motions in limine

information before it, the trial court reasonably could have found that she was motion was renewed. entire practice and witness[ing] them and see[ing] the results.” motion, finding that the issue was not ripe. The record does not reveal that the Having this opinions have been disclosed.” The court did not directly rule on the plaintiffs’ opinion testimony from physicians testifying for the defense for whom no expert Before trial, the plaintiffs filed a broad motion in limine “to exclude any

opinions. The defendants again argue that these issues were not preserved for Superior Court Rule 35(f); and (2) Lauria was not qualified to give such defendants did not disclose her as an expert as required by RSA 516:29-b and testify regarding the causation and timing of the baby’s injury because: (1) the The plaintiffs next assert that Lauria should not have been permitted to

timing, referring to her experience in delivering “many, many babies in [her] II. Testimony of Michele Lauria, M.D. In her deposition, D’Alton gave several reasons to support her opinion on Hospital, and the author of numerous medical chapters, books, and abstracts. gynecology. She is a supervisor at her hospital, New York Presbyterian injury. discretion in permitting D’Alton to testify regarding the cause and timing of the we cannot find that the trial court committed an unsustainable exercise of

D’Alton’s background includes many years in the field of obstetrics and

RSA 516:29-a, I.

This issue was properly preserved through the motions

plaintiffs’ counsel conceded this issue below. testimony on the basis of unreliable principles and methods because the objection at trial. defendants argue that the plaintiffs waived their right to contest Zimmerman’s in limine and the other circumstances concerning timing, including the timing of edema . . . .” outside Zimmerman’s area of expertise, “[t]hat doesn’t mean he can’t testify to objection and permitted the testimony, holding that although Bandl’s Ring was objection during Zimmerman’s testimony. The trial court overruled the baby’s injury. The trial court did not address these motions until the plaintiffs’ limine to preclude Zimmerman from testifying regarding the timing of the On August 31, 2005, and October 4, 2005, the plaintiffs filed motions in

argue that these issues were not preserved below. Alternatively, the not disclosed to the plaintiffs as required by RSA 51 p. 6 6:29-b. The defendants principles and methods; and (2) the exhibits used during his testimony were have been excluded because: (1) his testimony was not the product of reliable concerning the timing of the injury continued for some time without objection. The plaintiffs next argue that portions of Zimmerman’s testimony should

III. Testimony of Robert Zimmerman, M.D.

causation and timing during examination by the plaintiffs’ counsel. bench conference or above discussion regarding the lack of an objection to Lauria’s testimony on However, the plaintiffs’ counsel submitted no objection, and did not request a reflect that a motion in limine was ever filed on this issue and we reiterate our opinion on causation and timing was not preserved. The record does not We also hold that the issue regarding Lauria’s qualifications to offer an

answers had ensued is of no consequence.” (emphasis added)). and requested a mistrial in each instance after easily [it] could have happened before I left that evening.” This testimony a few additional questions and 118 N.H. 17 p. 6 6, 179 (1978) (“The fact that defense counsel raised the objection long time in that if you look at what happened to the skin on his head, I think She responded: “Oh, sir, I . . . think that [the] Bandl’s ring was there for a very the defense, does not preserve this issue on appeal. Cf. State v. LaBranche, objection made later in the witness’s testimony, during cross-examination by to Lauria’s testimony came during the defendants’ cross-examination. An

prompted by the plaintiffs’ counsel and did not respond to the questions asked. On appeal, the plaintiffs argue that Lauria’s responses were not

when you left to go home, or you . . . wouldn’t have gone home, isn’t that fair?” was asked the following question: “And certainly this baby was not injured p. 7 “compromise of the claim or a confession of judgment.”

“[e]xcept as otherwise stipulated or directed by the court.” Therefore, the trial

Zimmerman took the stand.

during litigation are binding upon the client unless amounting to a during trial does not bind them. We disagree. Admissions made by counsel plaintiffs now appeal. The plaintiffs argue that this statement made by counsel

Therefore, we hold that the issue was properly preserved below. disclosure issue was specifically raised and addressed by the trial court. regarding exhibit disclosure, these requirements are qualified by the phrase Although RSA 516:29-b, II may contain additional requirements

exhibits themselves were disclosed approximately two weeks before trial, in accordance with the trial court’s previous scheduling order. The defense counsel stated that an exhibit list had been provided one month before their expert report, unless “otherwise stipulated or directed by the court.” ruling on the disclosure of Zimmerman’s exhibits. During oral argument, neurology, that’s different.” This statement concedes the very issue that the 516:29-b, II(c) requires that any exhibits used by experts must be disclosed in We find no unsustainable exercise of discretion regarding the trial court’s previously disclosed in violation of RSA 516:29-b, II(c) (Supp. 2006). RSA

b was not specifically cited by the plaintiffs during their objection, the below and cannot be raised for the first time on appeal. Although RSA 516:29exhibits. The defendants argue that RSA 516:29-b was not specifically raised that they were not “part of the expert disclosure.” The trial court admitted the The plaintiffs objected to the admission of the exhibits at trial, arguing

very legitimate, but when we go on to these other areas, it’s in the area of counsel stated: “He’s very capable of looking at edema and timing it, and that’s Zimmerman’s testimony should not have been admitted because they were not scan.” At a bench conference during Zimmerman’s testimony, plaintiffs’ The plaintiffs also argue on appeal that certain exhibits used during

issue was waived and we do not address it. timing. We agree. The issue raised in the plaintiffs’ notice of appeal is: Chemical Corp., 480 F. Supp. 377, 383-84 (E.D. Va. 1979). Therefore, this before the trial court that Zimmerman was qualified to render his opinion on Moore v. Allied

about the timing of [the baby’s] injury based on the edema found on the CT “Whether the trial court erred in allowing Dr. Robert Zimmerman to testify

defendants counter that the plaintiffs waived this argument by conceding made by Zimmerman that his opinion was “based on experience.” The report and deposition testimony regarding timing, and point to statements product of unreliable principles and methods; they allege inconsistencies in his On appeal, the plaintiffs argue that Zimmerman’s testimony was the p. 8 8

Zimmerman’s exhibits. discretion in overruling the plaintiffs’ objection and permitting admission of

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

requirements. We find that the trial court engaged in a sustainable exercise of court was permitted to exercise its discretion and impose different