2007-807, JOSEPH P. GOUDREAULT, JR. v. THOMAS J. KLEEMAN

unsuccessful and diagnostic testing revealed degeneration in the discs and spine surgery, who initially recommended conservative therapies. These were

in 2001. He consulted Dr. Kleeman, an orthopedic surgeon specializing in

Kleeman. We reverse and remand.

The record supports the following. Goudreault developed a back problem

non-litigants and the failure to impose joint and several liability upon Dr. plaintiff, Joseph P. Goudreault, Jr., cross-appeals the apportionment of fault to the Superior Court (Murphy, J.) made during a medical malpractice trial. The HICKS, J. The defendant, Thomas J. Kleeman, M.D., appeals rulings of

defendant. Mosseau and Jonathan A. Lax on the brief, and Mr. Mosseau orally), for the Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (Peter W.

orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Sullivan & Gregg, P.A., of Nashua (Kenneth M. Brown on the brief and

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-807 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 on Goudreault’s condition.

p. 2 testified that she also contacted Dr. Mahon around 6:30 a.m. and updated him

a tonometer.

surgery concluded around 4:00 p.m.

potential compartment syndrome. The ICU nurse observing Goudreault as evidence that Dr. Mahon agreed to take responsibility for treating any Kleeman’s testimony only as evidence that a telephone call was made and not nurse returned because she had informed him that she did not think CMC had

the vascular injuries were repaired and the bleeding was controlled. The

and saw no symptoms of the complication.

to Dr. Mahon were disputed, and the court instructed the jury to consider Dr. room, but found that he had left. Dr. Kleeman testified that he left before the returned to tell Dr. Kleeman that there was a tonometer in the emergency ICU nurse testified that she left and asked the charge nurse for the instrument,

assisted Dr. Nepomnayshy. Dr. Kleeman returned to complete the ALIF after vascular injuries arose, Dr. Kleeman left the surgery table and Dr. Mahon sure whether he or Dr. Nepomnayshy caused the vascular injuries. After the familiar with compartment syndrome, observed Goudreault around 9:30 p.m. p.m. due to concern over some of his symptoms. Dr. Kleeman, who was monitoring and contacted Dr. Kleeman and his partner, Dr. Ahn, around 9:00

that he then called Dr. Mahon. The substance and timing of the telephone call

that can detect compartment syndrome by measuring pressure in the leg. The

more intrusive open approach. Dr. Kleeman testified that he could not say for

PACU nurse eventually transferred him to the intensive care unit (ICU) for

left calf the following morning when he observed him at 6:30 a.m. He testified

Around 6:45 a.m., Dr. Kleeman requested a tonometer, which is a device

and requiring conversion from a laparascopic, minimally invasive approach to a Goudreault’s spine. Vascular injuries occurred causing substantial bleeding fusion part of the surgery, complications arose with respect to accessing unit (PACU) at CMC, where he was monitored and given intravenous fluid. The

Dr. Kleeman began to suspect compartment syndrome in Goudreault’s

and Nepomnayshy. Although there were no complications with the spinal Following the surgery, Goudreault was taken to the post-anesthesia care

by a vascular surgeon teamed with a spine surgeon. procedure is performed laparascopically to minimize its invasiveness, typically bone graft to prevent inflammation by immobilizing the affected discs. The

Patrick Mahon. The operation began at 7:00 a.m., initially with Drs. Kleeman April 2002 by Dr. Kleeman and vascular surgeons Dmitry Nepomnayshy and Goudreault’s ALIF was performed at Catholic Medical Center (CMC) in

called an anterior lumbar interbody fusion (ALIF). The ALIF procedure uses a cartilage of Goudreault’s lower back. Dr. Kleeman recommended a procedure not that Dr. Kleeman caused at least one of Goudreault’s vascular injuries.

p. 3 Dr. Kleeman caused the injuries, he later testified that it was more likely than Golding initially said that it was difficult to tell whether Dr. Nepomnayshy or vessels fell far below the standard of reasonable surgical care. Although Dr.

testified that the quantity and severity of the injuries to Goudreault’s blood

Goudreault’s entire surgery, Dr. Kleeman said his “index of suspicion” responsibility for the delay. Additionally, because he was not present for upon being informed of the suspected compartment syndrome, but denied any to blood vessels sometimes happened during spinal surgery, they are rare. He Kleeman, typically heads the team. He further testified that, although injuries commonly have leaders, and that the attending surgeon, in this case Dr.

walking. Goudreault testified that he now experiences pain, numbness and difficulty

surgeon’s responsibility. He acknowledged that Dr. Mahon did not act quickly

cardiovascular and general surgery. Dr. Golding testified that surgical teams

compartments in the leg. Although he saw improvement in his back pain, syndrome.

admitting physician. Dr. Kleeman further testified that he was not qualified to and denied any general responsibility for Goudreault’s condition as the Golding, a surgeon with vascular training and board-certification in thoracic,

Nepomnayshy and Mahon to also monitor Goudreault’s condition. suffered a permanent loss of the peroneal nerve, which runs through one of the when the compartment syndrome had reached an advanced state. Goudreault four vascular injuries and for failing to timely diagnose and treat compartment surgery to relieve the pressure in Goudreault’s leg until around 2:00 p.m.,

supervise the surgical team performing the ALIF. Dr. Kleeman disputed this, Both sides presented expert testimony. Goudreault called Dr. Michael

regarding compartment syndrome was not high and that he relied upon Drs.

Kleeman’s duty of care, including responsibility for causing at least one of the and made additional notes on his chart. Dr. Mahon did not perform the

Goudreault maintained that Dr. Kleeman advised him that he would

defendants. Goudreault introduced evidence of several breaches of Dr. Goudreault’s condition. He returned to observe Goudreault around 11:30 a.m. the sole trial defendant, however, because Goudreault settled with the other several telephone calls to Dr. Mahon and the hospital attempting to discover against CMC and Drs. Nepomnayshy, Mahon and Kleeman. Dr. Kleeman was elective surgery at another hospital. Dr. Kleeman testified that he placed Goudreault initiated the instant action for professional negligence

compartment syndrome, during which time Dr. Kleeman performed scheduled Several hours elapsed before surgery took place to treat Goudreault’s the jury to deliberate further. p. 4 you find D[r.] Kleeman is responsible to any degree.” The court then instructed

treat the compartment syndrome caused permanent injuries.

and Mahon for lack of adequate evidence. The trial court denied each motion. directed verdict prohibiting the apportionment of fault to Drs. Nepomnayshy to non-litigants. The court cautioned the jury not to “reach that issue unless ALIFs to give expert testimony on the breach of duty. Goudreault moved for a

Remedies? averts permanent injury and that Dr. Kleeman’s failure to timely diagnose and damages.

charge that apprised the jury, for the first time, of its ability to apportion fault from other parties? (For example, Dr. Mahon?) care, Dr. Kleeman argued that Dr. Golding lacked the requisite experience with it necessary to prove Dr. K’s negligence in order to seek remedy

ie - is it Necessary bef ore [pursuing] other People i.e. Is

Does a Decision which Favors The Defendant Preclude other testified that early diagnosis and treatment of compartment syndrome usually to address question two, which asked the jury to determine the total amount of compartment syndrome, notwithstanding the presence of warning signs. He asking: standard of reasonable care by failing to timely confirm or deny the presence of Thereafter, the jury foreperson submitted a written question to the court caused Goudreault’s injuries. Both disputed the assertions that Dr. Kleeman breached duties of care and orthopedic surgeon and internist who had performed over two thousand ALIFs.

Upon learning that the jury was deadlocked, the court gave an additional causation was speculative. As to the count alleging negligent postoperative alleging negligent vascular injury because Dr. Golding’s expert opinion on Kleeman argued that no jury could reasonably find for Goudreault on the count defendant was at fault for the plaintiff’s injuries. If so, the jury was instructed explained the special verdict form. The first question asked whether the one of its common causes. He also testified that Dr. Kleeman breached the After the jury was instructed and heard closing arguments, the court

certified general and vascular surgeon, and Dr. John Regan, a board-certified

At the close of evidence, both parties moved for a directed verdict. Dr.

compartment syndrome and any surgeon would know that vascular injury was Goudreault’s surgery created an environment that predisposed him to surgical monitoring. In Dr. Golding’s opinion, the circumstances of Dr. Kleeman called two expert witnesses: Dr. Bruce Morgan, a board-

Goudreault’s admitting physician, Dr. Kleeman was responsible for post- As for the compartment syndrome, Dr. Golding opined that as p. 5 20% of fault to Dr. Nepomnayshy and 70% of fault to Dr. Mahon.

found total damages of $1,109,000 and attributed 10% of fault to Dr. Kleeman,

then gave further closing arguments on the issue of apportionment. The jury defendant bore the burden of proving the fault of non-litigants. Each counsel contributed to cause [Goudreault’s] injuries.” It reminded the jury that the

privileges by 1988. Additionally, Dr. Kleeman points out that Dr. Golding “was because he had not operated since 1986 and had relinquished all surgical

fault to non-litigants pursuant to our holdings in

remand.” remaining questions and apportion fault “to each person who [it] determine[d] vascular injuries;

Golding to offer expert testimony. He argues that Dr. Golding was not qualified

(1997); and (2) Dr. Kleeman failed to adduce adequate evidence to apportion

question. We address the remaining issues because they “are likely to arise on percentages of fault to each. The court instructed the jury to proceed to the and, if the answer was “yes,” question four asked the jury to attribute Golding to opine that Dr. Kleeman likely caused at least one of Goudreault’s additional questions: question three asked whether non-litigants were at fault Dr. Kleeman first argues that the trial court erred by allowing Dr.

jointly liable with Drs. Nepomnayshy and Mahon under RSA 507:7-e, I(c) A. Qualification as an Expert Witness

I. Testimony of Dr. Golding

statement; Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 622 (2005).

We reverse and remand based upon the court’s response to the jury’s

error by: (1) qualifying Dr. Golding as an expert witness; (2) permitting Dr. 393 (2003), and DeBenedetto v. CLD Consulting Eng’rs, 153 N.H. 793 (2006). damages. The court gave the jury another special verdict form with two Nilsson v. Bierman, 150 N.H.

Goudreault cross-appeals, arguing that: (1) Dr. Kleeman should be

and misleading answer to its question during deliberations.

and (4) unfairly prejudicing the jury by submitting a nonresponsive

impeachment of Dr. Golding by the American College of Surgeons’ (ACS) policy

(3) granting Goudreault’s motion in limine to exclude

On appeal, Dr. Kleeman argues that the trial court committed reversible regarding liability but failed to answer the second question concerning

found legally at fault for plaintiff’s injuries to some degree.

The jury then returned an affirmative response to the first question

the defendant Dr. Kleeman to occur, Dr. Kleeman would have to be [I]n order for any apportionment of fault among parties other than

Over Dr. Kleeman’s objection, the court responded in writing: teaching surgeons about compartment syndrome, Dr. Golding authored a p. 6 attending surgeon and consultant at three different hospitals. In addition to

medicine, performed research and practiced as a cardiac surgeon. He is an

compartment syndrome can arise from various types of surgery. maintains that vascular injuries are not unique to the ALIF procedure and that currently licensed to practice in three states. During his career, he taught longer operates, he has been licensed to practice medicine since 1959 and is certified in thoracic, cardiovascular and general surgery. Although he no

he was well familiar with the techniques and [related] equipment.” Goudreault

of discretion. Dr. Golding had training in vascular surgery and was board-

opinions about “the role and responsibility of Dr. Kleeman as the lead surgeon judge’s discretion.”

anatomy” and “while [he] had never performed a lapar[a]scopic spinal surgery, the prejudice of his case.” Goudreault asserts that Dr. Golding was “very familiar with the . . . lumbar conversion to an open approach, which was within Dr. Golding’s experience. objective basis sufficient to sustain the discretionary judgment made.” We cannot say that the trial court’s ruling was an unsustainable exercise

. . . on plaintiff’s procedure.”

surgery performed on the plaintiff and his follow-up care” together with witness, the decision whether a witness qualifies as an expert is within the trial experience, . . . Dr. Golding is qualified to render his opinions about the After a hearing, the trial court ruled that “[b]ased on his training and

demonstrate that the court’s ruling was clearly untenable or unreasonable to Lambert, 147 N.H. at 296. To prevail on appeal, “the defendant must was not strictly a laparascopic procedure because the complications required 147 N.H. 295, 296 (2001). Our inquiry is “whether the record establishes an Hodgdon v. Frisbie Mem. Hosp., 147 N.H. 286, 289 (2001); State v. Lambert, reverse that decision absent a clearly unsustainable exercise of discretion.

“Because the trial judge has the opportunity to hear and observe the

omitted); cf. RSA 516:29-a, I (2007). Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, 667 (2006) (quotation must conduct an adequate investigation of the expert’s qualifications.” 702. “In deciding whether to qualify a witness as an expert, the trial judge health reasons, he remained active in medicine. Goudreault points out that his expert by knowledge, skill, experience, training, or education.” N.H. R. Ev. negligence case. See RSA 507-E:2, I (1997). A witness is “qualified as an Expert witness testimony is required to establish a prima facie medical

Goudreault counters that, although Dr. Golding retired from surgery for

an ALIF, or cared for a post-operative ALIF patient.” never trained in and had never performed any lapar[a]scopic surgery, observed th[is] case.” probably existed.” p. 7 facts or data and a lack of “reliable principles reliably applied to the facts of causation had no foundation under RSA 516:29-a, I, because of insufficient

admissibility.

the harm would not have occurred.”

juror’s conclusion that the causal link between the negligence and the injury

Goudreault’s vascular injuries. He contends that Dr. Golding’s opinion on 7

testimony given by Dr. Golding should go the weight of his opinion, not its experience as a surgeon. Goudreault maintains that any inconsistent based it upon the records, depositions and testimony coupled with his Bronson, 140 N.H. at 802-03. probability, not mathematical certainty, that but for the defendant’s negligence, see RSA 507-E:2, I(c). “The plaintiff need only show with reasonable trial court’s ruling qualifying Dr. Golding as an expert. Bronson v. The Hitchcock Clinic, 140 N.H. 798, 801 (1996); witness to give an opinion on every conceivable medical question,” introduce, by expert testimony, “evidence sufficient to warrant a reasonable To make out a prima facie case of medical negligence, a plaintiff must testified that either Dr. Nepomnayshy or Dr. Kleeman could have caused Goudreault’s vascular injuries. Dr. Kleeman points out that Dr. Golding also Golding to opine that Dr. Kleeman more likely than not caused at least one of

Goudreault argues that Dr. Golding’s opinion was admissible because he

problems that occurred during spinal fusions. Thus, we find no error in the facts at issue. “Although a medical degree does not automatically qualify a

Dr. Kleeman next argues that the trial court erred by allowing Dr.

disqualify a doctor from testifying as an expert in that field.” B. Causation of Vascular Injuries

lumbar area hundreds of times and had assisted to resolve major vascular negate his ability to advance the jury’s understanding and determination of never personally performed an ALIF, he had performed surgery in the posterior Although Dr. Golding had not operated on patients since 1986 and had

psychological health of a patient.”). surgeon is not per se unqualified to render expert testimony on the at 667 (quotation omitted); see also Mankoski, 137 N.H. at 312 (“An orthopedic

lack of specialization in a particular medical field does not automatically Briley, 137 N.H. 308, 313 (1993) (quotation omitted), we have held that “[t]he

Dr. Golding’s lack of laparascopic ALIF experience and training does not

compartment syndrome. chapter about vascular trauma in a medical textbook including a discussion of from the traction.”

p. 8 vascular injuries were “[c]ertainly” caused by traction and a third “could be damaged by either traction or counter-traction.” Dr. Golding testified that two hands, which occurred here in an area of blood vessels that “can easily be

dissection . . . requires traction and counter-traction” performed by two sets of

the retro-peroneal space.” He added that the “use of blunt and sharp dissection in the retro-peroneal space is done, and how vessels get injured in a progression of major bleeding episodes” coupled with his “sense of how

injuries, but he elaborated that “[i]n reviewing the operative records, there was

records he reviewed did not expressly identify which doctor caused the vascular and forty years of experience in surgery.” Dr. Golding conceded that the the records and some depositions and testimony that I heard here yesterday

be admissible in evidence. opinions or inferences upon the subject, the facts or data need not reasonably relied upon by experts in the particular field in forming

opinion on causation. Dr. Golding testified that “[t]he basis is when I reviewed

made known to the expert at or before the hearing. If of a type

Golding’s opinion in the jury’s presence before allowing him to render an the facts of the case.” RSA 516:29-a, I; and . . . [that t]he witness has applied the principles and methods reliably to be afforded an expert’s testimony. permitting the fact-finder to determine the weight and credibility to as a gatekeeper, ensuring a methodology’s reliability before

expert bases an opinion or inference may be those perceived by or

The trial court permitted Dr. Kleeman to explore the basis for Dr.

sufficient facts or data; . . . is the product of reliable principles and methods; N.H. R. Ev. 703.

expert’s methodology or technique. The trial court functions only

The facts or data in the particular case upon which an

Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 616 (2002).

been shown to the satisfaction of the court that the “testimony is based upon

necessary. The proper focus for the trial court is the reliability of the

(quotation omitted). under New Hampshire Rule of Evidence 702.” Emerson, 146 N.H. at 254 expert’s testimony must rise to a threshold level of reliability to be admissible

N.H. 251, 256 (2001). However, such an opinion is admissible only after it has

See id. at 802; see also N.H. R. Ev. 704; Emerson v. Bentwood, 146

“probably caused” the harm establishes the quantum of expert testimony A medical expert’s competent opinion that the defendant’s negligence demonstrated competence in ALIF surgery and post-operative care. Dr. p. 9 would have precluded him from testifying” due to a lack of experience and

burnish his reputation had promulgated recommendations that, if . . . followed,

demonstrated [that] the professional organization Dr. Golding relies upon to province of the fact-finder, not the trial court.” legitimate basis for rejecting Dr. Golding’s testimony” because it “would have untimely motion to reconsider.” He urges that the policy statement “exposed a

the source of statements and not their contents. The Trial Court (

testimony on matters related to the ALIF procedure. The Trial Court ( testimony rather than the basic reliability of such testimony, and are the Dr. Kleeman argues that the trial court “erred by granting plaintiff’s

ruling “it is appropriate to prevent injustice.” reconsidered the earlier decision and granted Goudreault’s motion in limine,

by cross-examination of the expert.” reconsideration clarifying that he objected only to identification of the ACS as Fellow of the [ACS], and is not unfairly prejudicial.” Goudreault moved for accorded the opinion evidence, and not to its admissibility.” to the competency and credibility of Dr. Golding, particularly where he is a J.) denied Goudreault’s motion in limine, ruling that the “standard is relevant

expert testimony because he lacked sufficient experience to offer opinion omissions concern the relative weight and credibility of competing expert by testifying, Dr. Golding was failing to abide by the ACS policy statement on Prior to trial, Goudreault sought to exclude any evidence suggesting that,

C. Use of ACS Policy for Impeachment

“reliability of the expert’s methodology or technique,” Id. at 615-16 (quotation omitted). omitted). “The appropriate method of testing the basis of an expert’s opinion is

at 615. “[O]bjections to the basis of an expert’s opinion go to the weight to be

To the extent there were gaps in Dr. Golding’s explanations, “these

least one of these vascular injuries.” Baxter v. Temple, 157 N.H. 280, 285 (2008). to give his opinion “that more likely than not that Doctor Kleeman caused at N.H. at 616, and not upon the expert’s conclusion, see id. at 615; see also

this testimony because admissibility of expert opinions turns upon the Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999). We find no error in admitting likely causes until the most probable one is isolated.” Westberry v. Gislaved technique of identifying the cause of a medical problem by eliminating the etiology,” Baker Valley Lumber, 148 N.H. at 616, “a standard scientific methodology. He appears to have relied upon something akin to “differential The trial court did not expressly rule as to the reliability of Dr. Golding’s

presence in response to Dr. Kleeman’s objection. Dr. Golding was then allowed The trial court recessed to examine the record outside of the jury’s would be left without a remedy.”

p. 10 based on the mistaken belief that unless it found [him] liable[,] . . . Goudreault by its finding on Dr. Kleeman’s liability. He argues that “the jury’s verdict was was that Goudreault’s remedies against the other doctors would not be affected

Nepomnayshy, he maintains that the correct response to the jury’s question competency.

exceeded its “broad discretion to fix the limits of cross-examination.”

ignorance of the previous settlements reached with Drs. Mahon and avoid juror confusion regarding the threshold determination of expert witness that was the product of bias and confusion about the law. Noting the jury’s 10 submitting a nonresponsive answer to a deadlocked jury, resulting in a verdict

of fact for the trial court . . . .”). Thus, we cannot say the trial court’s ruling

injustice. The trial court could have reasoned that its ruling was necessary to Dr. Kleeman maintains that the trial court committed reversible error by

II. The Supplemental Jury Instruction

judicial standards and not those of a private organization. Miller, 155 N.H. 246, 253 (2007).

whether one possesses the requisite qualifications to testify as an expert is one untenable or unreasonable to the prejudice of h[is] case.” Emery v. Company, 89 N.H. 165, 169 (1937) (“The question

an unsustainable exercise of discretion. that reconsideration of Judge McGuire’s prior ruling was necessary to prevent an unsustainable exercise of discretion standard. Upon clarification of Goudreault’s motion in limine, Judge Murphy concluded 506 (1941) (quotation omitted). “It is immaterial that different judges act.” Id. court until final judgment or decree.” Redlon Co. v. Corporation, 91 N.H. 502, untenable. “[T]he power to [reconsider an issue once decided] remains in the made the determination that Dr. Golding was qualified as an expert guided by We cannot say that the trial court’s ruling was unreasonable or witness in a judicial proceeding.” Rather, he maintains that the trial court should not have any role in determining the qualifications of any expert Med. Ctr., 153 N.H. 607, 610 (2006).

[Dr. Kleeman] must demonstrate that the trial court’s rulings were clearly

N.H. 592, 599-600 (2006). We will not disturb the trial court’s decision absent

We review a trial court’s decisions on the admissibility of evidence under

Goudreault argues that “medical specialty societies, such as ACS, . . .

1078 (2002). Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), cert. denied, 534 U.S. American Association of Neurosurgeons. See Austin v. American Ass’n of Kleeman cites case law attaching weight to similar policies promulgated by the especially in view of the portion that was stricken, is whether returning a p. 11 finding of liability. However, we believe the better reading of the question,

The jury asked:

apportionment of fault and whether that issue is germane to the threshold

from other parties? (For example, Dr. Mahon?)

Remedies?

posed to the court was reasonably susceptible of competing interpretations.

One trained in the law might interpret this as an inquiry about the in the case.”

Goudreault argues that any perceived prejudice is but “wild speculation.” it necessary to prove Dr. K’s negligence in order to seek remedy

ie - is it Necessary before [pursuing] other People i.e. Is

Does a Decision which Favors The Defendant Preclude other

committed a substantial error in answering the jury’s question. The question aside a jury verdict if the error resulted in mistake or partiality. Inc., 144 F.3d 173, 176 (1st Cir. 1998). Here, we conclude that the trial court matters fairly encompassed within the question.” Testa v. Wal-Mart Stores, People v. Childs, 636 N.E.2d 534, 539 (Ill. 1994). It should address “those question and whether the charge as a whole fairly covered the issues and law a point of law arising from facts about which there is doubt or confusion.” to the jury where it has posed an explicit question or requested clarification on that the jury understood the requisites for a determination of liability. Finally, “[T]he general rule is that the trial court has a duty to provide instruction

A. The Question and Answer

531. Clark, 150 N.H. 98, 100 (2003) (quotation omitted); Francoeur, 146 N.H. at

court.” supplemental instruction is shown to be a substantial error, we will only set

Stewart, 155 N.H. at 214 (quotation omitted). Even if the

charge to determine whether the answer accurately conveys the law on the the trial court’s answer to a jury inquiry in the context of the court’s entire understood it . . . .” regarding liability and collateral sources of recovery were sufficient to ensure State v. Dingman, 144 N.H. 113, 115 (1999). “We review instruction must be judged as a reasonable juror would probably have those parties.” Goudreault also argues that the original jury instructions applicable law.” degree, [then he] could not pursue anyone else because he had settled with Francoeur v. Piper, 146 N.H. 525, 531 (2001). “The was a substantial error such that it could have misled the jury regarding the standard.” Id. “First, [the party challenging an instruction] must show that it review the court’s response under the unsustainable exercise of discretion State v. Stewart, 155 N.H. 212, 214 (2007) (quotation omitted). “[W]e “The response to a jury question is left to the sound discretion of the trial

of the law because “[i]f Dr. Kleeman was not [found to be] legally at fault to any Goudreault argues that the trial court’s response was a correct statement words that fall from him.” p. 12 necessarily and properly of great weight and jurors are ever watchful of the

law “[even though] the jury was properly instructed” originally),

negligence did not cure the prejudice.

context of the whole jury charge, heightened scrutiny.”

871 N.E.2d 54 (Ill. 2007). “The influence of the trial judge on the jury is

1152, 1157 (Ill. App. Ct.) (trial court has duty to resolve jury confusion about

Although we consider the trial court’s supplemental instruction in the begun comes at a particularly delicate juncture and therefore evokes

466 N.W.2d at 437. negligent if [Goudreault] was to recover anything for [his] damages.” Hassler, about the applicable law by “impl[ying] that the jury must find [Dr. Kleeman] permitted lingering confusion at minimum or even promoted misapprehension To warrant reversal, the error must be said to have prejudiced Dr. Kleeman. 217; Francoeur, 146 N.H. at 531-32. The court’s nonresponsive answer likely Ct. App. 1991), which was heavily disputed at trial, see Stewart, 155 N.H. at Van Winkle, 683 N.E.2d at 991; Hassler v. Simon, 466 N.W.2d 434, 437 (Minn. evinces confusion about the law and its application to a dispositive issue, see interpretation of the jury’s inquiry. At worst, it was entirely nonresponsive. question. Testa, 144 F.3d at 175. In addition, the jury’s question

accurately dispel any confusion about the law. We begin by noting that “a jury instruction given after deliberations have

result in] prejudicial error.” that the trial court’s error likely caused prejudice. which provides no answer to the particular question of law posed . . . [can See Stewart, 155 N.H. at 217; Francoeur, 146 N.H. at 531. We are persuaded multiple interpretations). “The failure to answer or the giving of a response The fact that the trial court substantially erred does not end our inquiry.

B. Prejudice

See Lambert, 147 N.H. at 296.

latter. At best, its response addressed one possible, though unlikely, 612-13. Accordingly, we cannot sustain its answer to the deadlocked jury’s

omitted). The trial court should have taken special care to specifically and

where question and answer between judge and deliberating jury was subject to United States, 326 U.S. 607, 613-15 (1946) (declining to sustain conviction Corning Fiberglas, 683 N.E.2d 985, 991 (Ill. App. Ct. 1997); see Bollenbach v.

The trial court responded to the former interpretation but ignored the

damages against other persons involved in bringing about his alleged harm. defendant’s verdict on liability would foreclose the plaintiff from pursuing consider what the legislature might have said or add language that p. 13 beyond it for further indication of legislative intent, and we will not

the basis of the rules of joint and several liability.

a statute’s language is plain and unambiguous, we need not look

review

harm, [the court shall] grant judgment against all such parties on 13 chart[,]. . . and individually profited [from] the services rendered.” We disagree.

design,” of his percentage of fault because he “t[ook] active part in a common plan or ascribe the plain and ordinary meanings to the words used. When first examine the language of the statute, and, where possible, as expressed in the words of the statute considered as a whole. We

de novo. We are the final arbiters of the legislature’s intent The interpretation of a statute is a question of law, which we

taken active part in a common plan or design resulting in the and assisted one another[,] . . . wrote notes and observations in the same responsible for [his] treatment and care[,] . . . stood side by side during surgery the entire amount of recoverable damages.” id., with the other doctors operating upon him where each “w[as] is only partly responsible for a plaintiff’s injuries may be held responsible for Goudreault asserts that Dr. Kleeman should be jointly liable regardless

RSA 507:7-e, I(c) (1997).

[I]n all cases where parties are found to have knowingly pursued or

507:7-e, I(c), restores joint liability by providing, in pertinent part: damages attributable to him.” Id. Notwithstanding RSA 507:7-e, I(b), RSA severally liable. “Under the rule of joint and several liability, a defendant who party’s liability shall be several and not joint and he shall be liable only for the However, where “any party shall be less than 50 percent at fault, then that for each party fifty percent at fault or greater. See RSA 507:7-e, I(b) (1997). Under New Hampshire’s statutory scheme, liability is “joint and several”

‘inequities’ suffered by low fault, ‘deep pocket’ defendants . . . .” Id. at 799. including New Hampshire,] have enacted legislation seeking to ameliorate the unilluminating abstract charge.” amount of recoverable damages.” Id. “As a result, numerous jurisdictions[, “This allows a plaintiff to sue any one of several tortfeasors and collect the full

Goudreault argues that Dr. Kleeman should have been jointly and

III. Joint & Several Liability

Accordingly, we reverse and remand for a new trial.

misleading, the error is not cured by a prior unexceptionable and omitted). “If [the court’s answer] is a specific ruling on a vital issue and which may be unfairly treated under the rule of joint and several liability.” p. 14 than their fault, [it] sought to amend RSA 507:7-e to treat fairly those entities

to upset this balance.” balance of the rights of defendants and plaintiffs . . . [, and i]t is not our place

design (4) resulting in harm. See RSA 507:7-e, I(c). The present dispute tortfeasor (1) knowingly (2) pursued or took active part in (3) a common plan or The plain language of RSA 507:7-e, I(c) imposes joint liability where a targets for damage recoveries because of their potential money resources rather

comprehensive scheme of RSA chapter 507 reflects the legislature’s careful hybrid jurisdiction” employing both several and joint liability. Id. “[T]he Id. (quotation omitted). “The resulting legislation made New Hampshire a adopting several liability only for those parties less than 50 percent at fault.” [a] pure several liability approach and instead passed a compromise measure basically unfair and illogical that it should have no further place in the State’s DeBenedetto, 153 N.H. at 799 (quotations and ellipsis omitted). “[It] rejected

apportionment of tort liability. negligence and section 7-e to address apportionment.” “[R]ecognizing that manufacturers, professionals and public agencies become contributory negligence, “enact[ing] section 7-d to address contributory

“In 1989, the legislature amended section 7-e, I(b) to protect minimally several liability as well.” (quoting Laws 1986, 227:2). liability,” DeBenedetto, 153 N.H. at 808, for “‘each party liable,’” id. at 798 system for contribution among tortfeasors and reinstituted joint and several (quotation and brackets omitted). “[T]he legislature [thereby] established a motivated by a deep conviction that the contributory negligence rule was so in all actions, not only those involving contributorily negligent plaintiffs.” Id. 397. “As enacted in 1986, section 7-e provided for apportionment of damages chapter 507 is a broad framework governing comparative fault and Nilsson, 150 N.H. at

In 1986, the legislature separated the concepts of apportionment and

“However, the statute abolished not only contributory negligence, but joint and the entire statutory scheme. enacting them, and in light of the policy sought to be advanced by DeBenedetto, 153 N.H. at 808 (quotation and brackets omitted). goal is to apply statutes in light of the legislature’s intent in

Hampshire legislature first enacted a comparative negligence statute in 1969,

We begin our analysis by considering RSA 507:7-e, I(c), in context. RSA

Cloutier v. City of Berlin, 154 N.H. 13, 17 (2006) (citations omitted).

however, we consider legislative history to aid our analysis. Our the legislature did not see fit to include. If a statute is ambiguous, benefit.” W. Keeton,

p. 15 another’s tortious conduct.” concerted activity of civil conspiracy. as . . . civil conspiracy or when a defendant intentionally aids and abets

conduct

to the wrongdoer, or ratify and adopt the wrongdoer’s acts done for their

41, 47 (1987) (outlining elements of civil conspiracy). “It is . . . essential that result.” See Jay Edwards, Inc. v. Baker, 130 N.H. he is aware that it is practically certain that his conduct will cause a prohibited In this way, the requirements of RSA 507:7-e, I(c), resemble the rule of joint and several liability when there is concerted wrongful activity such ed. 1984) (footnotes omitted). with respect to conduct or to a circumstance . . . when he is aware that his Prosser and Keeton on the Law of Torts § 46, at 323 (5th undertaken “knowingly.” Under the Criminal Code, “[a] person acts knowingly account of the fact that, to be subject to RSA 507:7-e, I(c), the conduct must be in it, or further it by cooperation or request, or who lend aid or encouragement pursuit of a common plan or design to commit a tortious act, actively take part limited exception restoring common law joint liability for “[a]ll those who, in We believe the legislature required the mental state of “knowingly” as a

State v. Hall, 148 N.H. 394, 398 (2002) (quotation omitted).

(2007) (emphases added). “In other words, a defendant acts knowingly when I(c) “creates a narrow exception to several liability, preserving the common law is of such nature or that such circumstances exist.” RSA 626:2, II(b) for the full extent of the patient’s[] damages.” He maintains that RSA 507:7-e, subjecting every doctor involved in a patient’s care to joint and several liability

The better reading of the statute, considering its object and purpose, takes did it require a “common plan or design” to achieve any other variety of result. such as “common plan or design” to commit a tortious act. However, neither Goudreault correctly points out that the legislature did not include words

negligence is sufficient. result, or, conversely, if the pursuit of a desirable result gone awry due to activity; specifically, whether it contemplates collaboration to achieve a tortious Recognizing this, both parties attempt to define what constitutes concerted ed. 2002); Restatement (Third) of Torts: Apportionment of Liability § 15 (2000). argues that Goudreault’s construction “would have the absurd result of B. A. Lindahl, Modern Tort Law Liability & Litigation § 19:4, at 19-7 to -8 (2d imposition of joint and several liability for concerted activity. See 2 J.D. Lee & tort liability, RSA 507:7-e, I(c), most closely resembles the common law We note that of the several ways one may be subject to joint and several

in a common plan which results in harm.” On the other hand, Dr. Kleeman specific intent. He argues it is enough that the doctors “t[ook] a conscious part with knowledge of the others’ participation” without proof of civil conspiracy or Goudreault argues that its plain meaning is “concerted action, taken by each centers upon what the legislature meant by “a common plan or design.” Id. court.” p. 16 grounds and fundamental fairness to litigants. shift fault to non-litigants. He premises this argument on equal protection

testimony,” testimony from the “apportionees,” or evidence from a defense apportion fault by presenting a prima facie case through “unequivocal expert Dr. Kleeman argues that New Hampshire law does not require him to

action, including those immune from liability or otherwise not before the

the defendant should carry the same or a similar burden of proof in order to elements of a medical negligence plaintiff’s prima facie case. He argues that and Nepomnayshy derives from RSA chapter 507-E, the statute governing the construction “would swallow the rule” of several liability. Goudreault’s effort to preclude apportionment of liability to Drs. Mahon

apportionment purposes.” Id. (emphases added). adequate evidence before a jury or court may consider it for fault noted that “allegations of a non-litigant tortfeasor’s fault must be supported by only as an DeBenedetto, 153 N.H. at 804. However, in order to shift fault, we

[embraces] . . . all parties contributing to the occurrence giving rise to an states. ellipsis omitted). In DeBenedetto, we elaborated that “the word ‘party’ action, including settling parties.” Nilsson, 150 N.H. at 396 (quotation and purposes under [RSA 507:7-e, I(b)], the word ‘party’ refers to parties to an Mahon and Nepomnayshy. In Nilsson, we held “that for apportionment and architects rarely practice their trades in isolation” and that Goudreault’s evidence,” DeBenedetto, 153 N.H. at 804, for the jury to apportion fault to Drs. Goudreault argues that Dr. Kleeman failed to adduce “adequate

IV. Apportionment of Fault to Non-litigants

507. We have previously observed that RSA 507:7-e, I(c) imposes joint liability (Wash. 1998). Schaaf, 603 N.W.2d 869, 876 (N.D. 1999); Kottler v. State, 963 P.2d 834, 841 See, e.g., GES, Inc. v. Corbitt, 21 P.3d 11, 15 (Nev. 2001); Schneider v. Finally, we note that our construction accords with the decisions of other

liability. Dr. Kleeman correctly points out that “[d]octors, lawyers, dentists, legislature’s objective of shielding minimally liable tortfeasors from undue civil N.H. 41, 44 (2002). Goudreault’s expansive exception would contravene the

exception to RSA 507:7-e, I(b). Rodgers v. Colby’s Ol’ Place, 148

Our construction is guided by the legislative policy behind RSA chapter

323 (footnotes omitted). without consultation decide to race their cars on the public highway.” Id. at there be a tacit understanding, as where two automobile drivers suddenly and However, “[e]xpress agreement is not necessary, and all that is required is that requisite to committing a tort, or with negligence.” Keeton, supra at 324. each . . . defendant . . . be proceeding tortiously, which is to say with the intent and proximate causation of damages, p. 17 witness,” RSA 507-E:2, I, of the standard of reasonable care, breach thereof “affirmative evidence which must include expert testimony of a competent

plaintiff’s burden of proof outlined in RSA 507-E:2. That statute requires

jury apportionment where the “[d]efendants produced no expert testimony that

layman,”

him.” Where the defendant seeks to reduce or eliminate the plaintiff’s recovery seek to impose liability on a [non-litigant] just as plaintiff seeks to impose it on

of the plaintiff’s foot and ankle, those claims were also properly excluded from 594. Although some evidence suggested a breach of care regarding treatment nature of an the plaintiff’s femur precluded apportionment to the nonparty doctor. that a nonparty caused or contributed to the plaintiff’s injury has been met.”). Id. at at 593-94. The lack of such expert testimony with respect to the treatment of that the [nonparty doctor breached] the accepted standard of medical care.” Id.

id., such adequate evidence “require[d] expert testimony to establish

“where the lack of reasonable care would [not] be apparent to the average

Id. at 593. In the context of a medical negligence claim

evidence” in support of “allegations that a nonparty’s negligence caused a id. at 591. The Tenth Circuit applied Kansas law to require “adequate litigant apportionment defense essentially “becomes another plaintiff who must at 593, after the plaintiff sought recovery for harm to his femur, foot and ankle, accident action sought to apportion fault to a nonparty doctor, Gust, 162 F.3d In Gust, a case we relied upon in DeBenedetto, defendants in a vehicle deflect fault by apportionment to non-litigants is raising something in the upon retrial. Goudreault correctly observes that a civil defendant who seeks to nonparty only after it is convinced that the defendant’s burden of establishing see RSA 507-E:2, I(a)-(c). Kleeman did not appeal this issue, but clarification may assist the litigants such fault);

persuasion.

We further agree with Goudreault that a defendant who raises a non-

defense is an affirmative defense [and as such], a jury can apportion fault to a objection, Dr. Kleeman had the burden of proving non-litigant liability. Dr. Carroll v. Whitney, 29 S.W.3d 14, 21 (Tenn. 2000) (“[T]he nonparty require defendant asserting non-party doctor’s fault to bear burden of proving Gust v. Jones, 162 F.3d 587, 593 (10th Cir. 1998) (interpreting Kansas law to

See id.; see also Brann v. Exeter Clinic, 127 N.H. 155, 159 (1985);

allegation”). Thus, the defendant carries the burdens of production and amount of fault attributable to a party shall rest upon the party making such to comparative fault of a party, that “[t]he burden of proof as to the existence of

affirmative defense. Cf. RSA 507:7-d (1997) (stating, with regard

First, we consider whether, as the trial court instructed the jury over his

remains with the plaintiff.” 508 U.S. 930 (1993), arguing that the burden of proof on causation “rests and expert. He cites Wilder v. Eberhart, 977 F.2d 673 (1st Cir. 1992), cert. denied, there was ample evidence supporting the jury’s verdict as to Dr. Mahon.

p. 18 the compartment syndrome caused permanent injuries. We conclude that

permanent injury. He also testified that the failure to timely diagnose and treat cause of compartment syndrome and that time was of the essence in averting testified that any surgeon would know that vascular injury was a common

that several hours elapsed before Goudreault’s surgery began. Dr. Golding also

syndrome. Dr. Kleeman acknowledged that Dr. Mahon did not act quickly and testified to alerting Dr. Mahon of Goudreault’s suspected compartment surgical monitoring of vascular issues. Both Dr. Kleeman and the ICU nurse

that the vascular surgeons, including Dr. Mahon, were responsible for post-

BRODERICK, C.J.