2008-790, Joseph Laramie & a. v. Shawn Stone & a.

No. 2008-790

Merrimack

together for the department of corrections (DOC) at the New Hampshire State The record supports the following relevant facts. The parties worked

Douglas, Leonard & Garvey, P.C. ___________________________

in part, reverse in part and remand. $650,000 and $1.3 million, respectively, in compensatory damages. We affirm jury verdict awarding the plaintiffs, Joseph Laramie and Timothy Hallam, a DALIANIS, J. The defendants, Shawn Stone and Todd Connor, appeal a

Orville B. Fitch II

attorney general, and Laura E. B. Lombardi, assistant attorney general, on the

THE SUPREME COURT OF NEW HAMPSHIRE C. Kevin Leonard on the brief, and Mr. Douglas orally), for the plaintiffs.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as light). The suits were consolidated, and the Trial Court (Lynn p. 2 intentional interference with contractual relations and invasion of privacy (false supervisors, the DOC, and the defendants, alleging, among other claims, Laramie and Hallam filed separate multi-count writs against their

on medical disability. that he was permanently unable to return to work at the DOC, and he retired of work on medical leave. An independent psychiatric evaluation concluded benefits and seniority. Laramie returned to the DOC, but Hallam remained out terminations were unjust, and it reinstated Laramie and Hallam with back pay, I. Expert Testimony board (PAB). After an evidentiary hearing, the PAB concluded that the They appealed their employment terminations to the personnel appeals

expert properly by providing “a summary of facts and opinions to which [he] testimony. Specifically, they argue that Hallam failed to disclose Sturke as an management of discovery and its decisions regarding the admissibility of expert The defendants raise several arguments pertaining to the trial court’s

against the State or its employees to $475,000 per claimant. RSA 541-B:14, I (Supp. 2009), which limits recovery in certain claims filed 2005. counsel during closing argument; and (5) failing to apply the statutory cap in reports led to an investigation, and Laramie and Hallam lost their jobs in July by the PAB; (4) failing to set aside the verdict based upon statements made by told Hallam on April 12 that he saw Laramie punching the inmate. These of Arthur Kenison, Ph.D; (3) admitting evidence of the plaintiffs’ reinstatement inmate during the extraction. Defendant Connor’s report also stated that he psychologist, to testify as an expert witness; (2) admitting the expert testimony defendant filed a second report, stating that he saw Laramie assaulting the (Sullivan had specifically accused the defendants. One week after the incident, each, J.) erred by: (1) permitting Robert W. Sturke, Ph.D, Hallam’s treating compensatory damages. On appeal, the defendants argue that the Trial Court report, which mentioned the alleged assault but did not state that the inmate trial, a jury returned verdicts for Laramie and Hallam, awarding them but neither report mentioned the inmate’s assault claim. Hallam also filed a summary judgment in favor of all parties except the defendants. Following On the day of the incident, the defendants filed written incident reports, , C.J.) granted

accusations implicated the defendants. DOC employee who used excessive force during the extraction, and his physically “extract[ed]” from his cell. The inmate claimed he was injured by a as a result of an incident on April 12, 2005, involving an inmate who had to be Prison in Concord. Laramie and Hallam were dismissed from their employment p. 3 Hallam’s objection to the defendants’ motion in transcript of Sturke’s deposition is not in the record, an excerpt quoted in would be presenting expert testimony at trial. In addition, although a complete Hallam’s counsel did not interject or otherwise immediately clarify that Sturke

A. No, I’m a fact witness.

expert, correct? Q. Okay. It’s my understanding you haven’t been retained as an

about. A. Just to report what we’ve talked about. That’s all you can talk Q. What do you understand your role at trial to be in this case?

took place: When the defendants’ counsel deposed Sturke, the following colloquy

problems. Specifically, he was asked: defendants’ counsel asked Sturke about the cause of Hallam’s psychological

“adequate.” defendants’ opportunity to depose was “sufficient” and that the disclosure was The trial court found that this letter, coupled with Sturke’s records and the

current condition, medications and assessment. or inability for Mr. Hallam to return to employment given his employment at the Department of Corrections, as well as his ability ongoing treatment routine, Mr. Hallam’s inability to return to Dr. Sturke will testify at trial on his treatment, clinical diagnosis, am enclosing a copy of his curriculum vitae. It is anticipated that may call Dr. Sturke, Ph.D., as a witness in the trial in this case. I will forward you Dr. Sturke’s more recent office notes. The Plaintiff Sturke, Ph.D., Mr. Hallam’s treating counselor. Upon my receipt, I Under separate cover, I sent you office notes from Robert W.

At a hearing on the defendants’ motion in

A. Disclosure of Sturke

provided: deadline, Hallam’s attorney sent a letter to the defendants’ attorneys which testimony, the trial court noted that on the plaintiffs’ expert disclosure

to calculate Hallam’s loss of earning capacity, was inadmissible. contend that the testimony of Arthur Kenison, Ph.D, involving formulae for how current or future ability to return to work. See N.H. R. Ev. 702. Finally, they disclosed properly, they argue, he was not qualified to testify about Hallam’s required by discovery rules. Super. Ct. R. 35(f)(4). Even if Sturke was [wa]s expected to testify and a summary of the grounds for each opinion,” as and the basis of those opinions.” Figlioli v. R.J. Moreau Cos. p. 4 substance of the facts and opinions about which they are expected to testify, “A party is . . . entitled to disclosure of an opposing party’s experts, the

know.” defendants were the cause of Hallam’s depression, Sturke replied, “I don’t (Emphasis omitted.) Later, when asked more specifically whether the

away, whose healthcare is taken away for unfounded reasons.

anyone whose livelihood is taken away, whose career is taken

demonstrate that they raised such issues in the trial court. See of the record as is sufficient to decide the issues they raise on appeal, and to It is the defendants’ burden, as the appealing party, to submit so much

psychological stress that that exerts on any – would exert on

disclosure of Sturke was consistent with the requirements of superior court witness,” we cannot determine, based upon the record provided, whether the failed to correct Sturke’s erroneous deposition statement that he was “a fact the prejudice of their case. While we find it disturbing that Hallam’s counsel decision to admit Sturke’s testimony was clearly untenable or unreasonable to false grounds and the subsequent financial, emotional and us with a sufficient record on appeal to determine whether the trial court’s experienced from his workplace. You know, being fired for – on Oak Prop. Mgmt A. Well, certainly a portion of it is related to the abuse he’s., 151 N.H. 248, 250 (2004). The defendants have not provided

665 (2006) (quotation omitted). prejudice of his case.” Milliken v. Dartmouth-Hitchcock Clinic, 154 N.H. 662, must show that the ruling was clearly untenable or unreasonable to the show that the trial court’s decision was not sustainable, the appealing party discretion standard. In re Juvenile 2002-209, 149 N.H. 559, 561 (2003). “To discovery, and its decisions will be reviewed under an unsustainable exercise of (quotation omitted). The trial court has broad discretion in the management of amount of information.” Gulf Ins. Co. v. AMSCO Q. Yes., 153 N.H. 28, 33 (2005) by a system that reduces surprise at trial by giving both parties the maximum disclosure of expert witnesses rests upon the premise that justice is best served disclose.” Id. (quotation omitted); see Super. Ct. R. Preface. “The policy of opinion testimony unless good cause is shown to excuse the failure to failure to supply this information should result in the exclusion of expert acts as an expert.” Wong v. Ekberg, 148 N.H. 369, 372 (2002). “A party’s 626 (2005). This disclosure rule applies “even when a known factual witness

A. Right now?

problem? Q. What do you believe is the cause of Mr. Hallam’s psychological interpret these arguments as issues that “go to the weight to be accorded the p. 5 the foundation for Sturke’s testimony and the bases for his conclusions, we To the extent that the defendants raise additional arguments regarding

unsustainably exercised its discretion in doing so. a result of his psychological condition, and we cannot say that the trial court qualified to give his opinion about Hallam’s current or future ability to work as information before it, the trial court reasonably could have found that he was about Hallam’s ability to return to work at the DOC or elsewhere. Having this before, and he testified that this experience helped him to form his opinions of Hallam through this program in 2003. He has worked in a prison setting through which State employees are referred to him, and he began his treatment thereto.” Milliken participates in the State of New Hampshire’s Employee Assistance Program, expert by knowledge, skill, experience, training, or education, may testify treating patients for depression, anxiety and work-related stress. He “Under New Hampshire Rule of Evidence 702, a witness qualified as an

B. Sturke’s Qualifications

treating impaired professionals, conducting personnel assessments and practiced adult psychotherapy for thirty years, including evaluating and Sturke has been a board-certified psychologist since 1977. He has

the record before us that its exercise of discretion was unsustainable. retains broad discretion in the management of discovery, we cannot say upon adequate, we are unable to review its decision. Thus, because the trial court materials upon which the trial court determined that the disclosure was of impairment to earning capacity.” We disagree. counsel was able to obtain from Sturke upon deposing him. Without the background showed a lack of any significant expertise . . . in the relevant area and opinions, if any, the notes disclosed or what other information Hallam’s opinion on Hallam’s current or future ability to return to work “because his to provide a complete record of Sturke’s deposition. We do not know what facts The defendants next argue that Sturke was not qualified to give an letter, it does not include Sturke’s office notes. Further, the defendants failed is within the trial judge’s discretion. Id. Although the defendants’ appendix includes the plaintiffs’ disclosure and observe the witness, the decision whether a witness qualifies as an expert expert’s qualifications. Id. Because the trial judge has the opportunity to hear qualify an expert, the trial judge must conduct an adequate investigation of the

, 154 N.H. at 667 (quotation omitted). In deciding whether to

permitting Sturke to testify as an expert. rules or whether the trial court unsustainably exercised its discretion in emotional injury from certain physically and verbally abusive conduct. In the p. 6 For example, expert testimony is not necessarily required to establish knowledge and everyday experience in a considerable range of circumstances. By contrast, we have permitted juries to rely upon their common

the average layperson. Carbone v. Tierney related to some science, profession or occupation as to be beyond the ken of Expert testimony is required when the subject presented is so distinctly

(2010). to explain a crime victim’s mental condition. State v. Horak, 159 N.H. 576, 583 (2003) (quotation omitted). In addition, expert testimony is not always required humiliating manner.” Silva v. Warden, N.H. State Prison, 150 N.H. 372, 375 the genitals and from a strip-down search done in a slow, exaggerated and mental and emotional harm might result from unprivileged physical contact of searches at the State prison, it is within the ken of average lay people what may not have common knowledge of and everyday experience with specific injury in a different context, we have stated that “[a]lthough the average juror Matter of Gronvaldt & Gronvaldt, 150 N.H. 551, 554 (2004). Regarding similar

E:2 (Supp. 2009). requirements for expert testimony in medical malpractice suits. See RSA 507- Crematory, 155 N.H. 781, 786 (2007). There are specific statutory alleged negligent infliction of emotional distress. Petition of Bayview earning capacity were based upon the jury’s speculation. 674 (2008). It is also required to prove physical symptoms suffered from suitably apply Kenison’s formulae, and any damages awarded for loss of a legal malpractice suit. Id.; Estate of Sicotte v. Lubin & Meyer, 157 N.H. 670, such expert testimony, they argue, there was nothing to which the jury could held that expert testimony is generally required to establish proximate cause in establishing to what degree, if any, his earning capacity was impaired. Without most claims, it depends upon the factual circumstances. For example, we have proper foundation for it, Hallam was required first to present expert testimony elements of some claims for which expert testimony is always required, for the trial court erred in admitting this testimony because, to establish the common knowledge and everyday experience. Id. While there are certain what Hallam’s loss of earning capacity might be. The defendants argue that testimony is not required when the subject presented is within the realm of Arthur Kenison, Ph.D presented formulae the jury could use to calculate, 151 N.H. 521, 527 (2004). Expert

C. Kenison’s Testimony

Id. testing the basis of an expert’s opinion is by cross-examination of the expert.” 236, 248 (2009) (quotations and citations omitted). “The appropriate method of opinion evidence, and not its admissibility.” Goudreault v. Kleeman, 158 N.H. establish impairment of earning capacity.” Nates et p. 7 general rule, “[e]xpert testimony is admissible but usually not required to occupation as to be beyond the ken of the average layperson. Indeed, as a that the subject itself is so distinctly related to some science, profession or inferences to arrive at an estimation of damages, it does not necessarily follow Though a claim for loss of earning capacity may involve a series of

(acknowledging that calculating the extent of impairment to one’s ability to little aid from evidence.”); McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943) capacity rests largely on the common knowledge of the jury, sometimes with 405 (Mass. 1980) (“The assessment of damages for impairment of earning 39 (emphasis omitted); accord Griffin v. General Motors Corp., 403 N.E.2d 402,

(explaining unsustainable exercise of discretion standard). exercise of discretion. See id.; cf. State v. Lambert, 147 N.H. 295, 296 (2001) 798, 806 (1996). We review the trial court’s decision for an unsustainable the trial court’s sound discretion. Bronson v. The Hitchcock Clinic, 140 N.H. analysis accordingly. The admission or exclusion of expert testimony is within was required to present expert testimony to meet this burden, we limit our pecuniary value of the loss. Because the defendants argue only that Hallam reasonable probability and be sufficient to permit the jury to arrive at a demonstrate impairment of earning capacity with reasonable certainty or amount he is capable of earning thereafter. In addition, this evidence had to of the amount which he was capable of earning before the injury and the that his earning capacity was reduced as a result of his injury, and (2) evidence proper foundation for Kenison’s testimony, Hallam had to present (1) evidence could affect the plaintiff’s power to earn money.” Id. at 434. Thus, to provide a evidence of a permanent injury, but no suggestion of how the injury would or an instruction on a future impairment of earning capacity claim where there is caused, or resulted in, diminished earning power.” Id. “There is no basis for considered, there must be at least some evidence that the physical injury 433 (2002) (quotations omitted). “While proof of a permanent injury may be a pecuniary value of the loss.” Vachon v. New England Towing, 148 N.H. 429, probability,” and must produce “evidence which will permit the jury to arrive at impairment of earning capacity “with reasonable certainty or reasonable warrant recovery for impairment of earning capacity, the plaintiff must show “future loss of earning capacity,” and “lifetime loss of earning capacity”). To 10-6 (2006) (noting distinctions among claims for “future loss in earnings,” rev. 1997); see 2 J. Nates et al., Damages in Tort Actions § 10.01, at 10-3 to thereafter.” 2 J. Stein, Stein on Personal Injury Damages § 6:5, at 6-15 (3d ed. before the injury and the amount which he or she is capable of earning difference between the amount which the plaintiff was capable of earning (1965). “[T]he measure of damages for impairment of earning capacity is the the tortfeasor.” Restatement (Second) of Torts § 906(b) comment c at 462 the earning capacity of the plaintiff has been reduced through the conduct of Loss of earning capacity damages are “based upon the amount by which extent of impairment.” Id p. 8 award for lost earning capacity must be supported by evidence indicating the capacity, stating, “Absent readily apparent and complete disability, . . . an

Like the plaintiff in Salveson 8

from which a jury could derive figures to plug into the formulae Kenison be affected by his psychological injuries. There was no information presented demonstrating how or to what extent Hallam’s future work opportunities would Just as in Salveson, the record in this case contains no evidence duration of Hallam’s injury and its effect on his ability to work were equivocal. Nonetheless, the court reversed the jury award for loss of earning psychologist’s testimony in Salveson, Sturke’s opinions regarding the projected was not “readily apparent and complete.” Id. at 189. Similar to the

injuries.” Id. at 189-90. how or to what extent her future jobs would be affected by her psychological normal employment for the next three years, there was no evidence indicating psychologist] discussed his doubt that [the plaintiff] would be capable of

continue to be affected by the harassment she received at work.” Id. at 189. at 188, 189. Her treating psychologist testified that she “[wa]s and w[ould] and suffered from post-traumatic stress disorder, depression and anxiety. Id. county paramedic for fourteen years, was sexually harassed by her supervisor extent of her diminished earning capacity. The plaintiff, who had been a capacity because the plaintiff failed to present any evidence establishing the 630 N.W.2d 182 (Wis. 2001), the court reversed a jury award for lost earning Salveson v. Douglas County, 610 N.W.2d 184, 188 (Wis. Ct. App. 2000), aff’d, certain claims for lost earning capacity), cert. denied, 529 U.S. 1131 (2000). In damages as a factor influencing whether expert testimony is required for 1999) (considering whether litigant places a specific monetary value on whether expert testimony is required to establish such damages. See based upon “conjecture”); Gerver v. Benavides, 530 S.E.2d 701, 706 (W. Va. the sound discretion of the jury,” but specifying that its decision cannot be Other jurisdictions subscribe to a variety of approaches regarding 685, 697-98 (Tex. App. 2005) (delegating calculation of lost earning capacity “to certainty that future damages will result”); Clayton v. Wisener, 190 S.W.3d itself “provides an evidentiary basis for a jury to conclude with reasonable for lost future earnings if “injury is subjective in nature,” but not if the injury (Ohio Ct. App. Nov. 17, 2009) (requiring expert testimony to establish a claim expert); Martin v. CSX Transportation, No. 08AP-846, 2009 WL 3823364, at *3 of earning capacity without expert testimony from vocational rehabilitation (S.D. Ala. July 30, 2008) (permitting plaintiff to go forward with claim for loss Portis v. Wal-Mart Stores East, No. 07-0557-WS-C, 2008 WL 2959879, at *7

calculation of lost earning capacity to sound discretion of jury). work constitutes an exercise in uncertainty and, accordingly, leaving generally required to preserve an issue for appellate review. Klar v. Mitoulas p. 9 It is well-settled that a contemporaneous and specific objection at trial is

Here, the defendants filed a motion in

II. PAB Evidence

requested the following jury instruction: under New Hampshire Rules of Evidence 401, 402 and 403. In particular, they all evidence relating to the [PAB] decision overturning the plaintiffs’ dismissal”

preserved for appellate review. We agree. definitive ruling. See prevailed in that forum. The plaintiffs contend that this issue was not properly State v. Sefton, 125 N.H. 533, 537 (1984). court’s decision to defer a ruling upon a motion in evidence that the plaintiffs appealed their terminations to the PAB and limine until trial is not a demonstrates that it considered the issue and ruled upon it. Id The defendants next argue that the trial court erred in admitting. at 490. A trial when the court is sufficiently alerted to the issue, and its written order issue prior to trial. Id. at 488-89. A ruling on a motion in limine is definitive for appeal without objection at trial if the trial court definitively rules upon the 145 N.H. 483, 488 (2000). A motion in limine is sufficient to preserve an issue mathematical calculations, cf,

Hallam. testimony. Accordingly, we remand for a new trial on the issue of damages for case, it was an unsustainable exercise of discretion to admit Kenison’s defendants’ conduct and to what degree involved more than simple jury.”). We, therefore, agree with the defendants that, under the facts of this earning capacity was, in fact, impaired as a result of the injury caused by the damages cannot be awarded on the speculation, passion, or guess of the he was able to work despite his condition. Determining whether Hallam’s mental health conditions before his termination, and the record indicates that conjecture or speculation. Stein, supra § 6:4, at 6-14 (“The law is clear that conditions, the future effects of which are unknown. He suffered from similar testimony, any jury award for loss of earning capacity would be based upon Hallam’s injury involves complex psychological and mental health order to avoid pure speculation on the part of the jury.”). Without expert future earnings capacity must be established by expert medical testimony in 787 F.2d 507, 509 (10th Cir. 1986) (“Where the injury is obscure, . . . a loss of everyday experience. Accord Parra v. Atchison, Topeka & Santa Fe Ry. Co., (2004), and it was not within the jury’s realm of common knowledge and

arrive at a pecuniary value of the loss. See Vachon, 148 N.H. at 433. reasonable certainty or reasonable probability that would permit the jury to presented. Hallam has not shown impairment of earning capacity with the evidence relating to the PAB proceeding for plain error. See p. 10 The defendants urge us to review the trial court’s decision to admit

reputation of judicial proceedings. Id. We use this rule sparingly, limiting it to criterion is met: the error must seriously affect the fairness, integrity or public we may then exercise our discretion to correct a forfeited error, only if a fourth error must affect substantial rights. Id. If all three of these conditions are met, we may do so: (1) there must be error; (2) the error must be plain; and (3) the raised in the trial court. State v. Panarello demonstrates that it considered the issue and ruled upon it.” Mitoulas, 157 N.H. 204, 206 (2008). Before The plain error rule allows us to exercise our discretion to correct errors not of all evidence relating to the PAB proceedings such that “its written order demonstrating that it was “sufficiently alerted to the issue” of the admissibility Sup. Ct. R. 16-A. sense.” However, they do not identify any statement by the trial court the admissibility of all evidence relating to the PAB proceedings defies common court’s oral statements and written ruling as deferring until trial a ruling on evidence of the PAB decision was introduced. whether to admit the written PAB order. They argue that to “interpret the were required to object contemporaneously and specifically at trial when it ruled definitively upon the defendants’ motion in degree to admit evidence related to the PAB decision, it does not show that the dismissal.” court’s decision to reserve ruling on their motion pertained only to the issue of Accordingly, to preserve the argument for appeal, the defendants While the record shows that the trial court considered whether and to what “any and all evidence relating to the [PAB] decision overturning the plaintiffs’ PAB references at trial, but argue that they did not have to because the trial issued upon the defendants’ motion in its entirety, which sought to exclude In their reply brief, the defendants concede that they did not object to N.H. at 489 (quotations omitted). Moreover, the court’s written order was

their reinstatement. we’ll deal with it.” It then issued a written ruling repeating the oral ruling. you should not speculate about the circumstances surrounding warden] testifies on direct, so that it will be after his testimony on direct that their reinstatement are not relevant to the issues in this trial, and the trial court reiterated, “This issue will be addressed at trial after [the during the period of time they were unemployed. The reasons for discussion of the possibility of a stipulation to a jury instruction on the issue, to reserve ruling on this [until] trial.” After further argument, including a trial court considered the parties’ arguments, but specifically stated, “I’m going

reimbursed for any wages and benefits that were not provided they were reinstated to their former positions. The plaintiffs were Eight months following the plaintiffs’ dismissal from employment, p. 11 III. Closing Argument

of the PAB proceedings rises to the level of plain error. cannot say that any error the trial court may have made in admitting evidence suffered was not addressed by this instruction. Thus, upon this record, we The defendants have raised no argument that the claimed prejudice they

plaintiffs. either of these defendants are to be held liable for damages to the

reinstatement cannot be considered in your decision of whether

scandals unrelated to the facts presented at trial.” purpose of associating Connor and Stone with egregious criminal acts or (2) “made multiple references to facts outside the trial, for the apparent suggested to the jury that, by their verdict, they could “send a message”; and closing argument. Specifically, they argue that counsel for the plaintiffs: (1) the verdict based upon statements made by the plaintiffs’ counsel during Next, the defendants argue that the trial court erred in failing to set aside decision only on the facts before you, and the plaintiffs’ 11 fact that the plaintiffs were reinstated. You should base your employment. You should not and cannot infer anything from the

that the plaintiffs were subsequently reinstated to their their termination to the Personnel Appeals [Board], or PAB, and You have heard reference in this trial that the plaintiffs appealed

was instructed: based upon the credibility of the witnesses at trial. More specifically, the jury and the jury was properly instructed that it should draw its own conclusions equal opportunity to present their version of events through witness testimony, the outcome of the proceeding. The record reflects that the defendants had assertion, by itself, fails to carry their burden of proving that the error affected witness testimony and made a conclusion based on that testimony.” This was to admit “[e]vidence that a separate fact finder had previously heard The defendants argue that the error was prejudicial because its effect

that it affected substantial rights. Thus, the third criterion is not satisfied. See related to the PAB proceedings and that the error was plain, we do not agree Even if we were to assume that the trial court erred in admitting evidence

the proceeding. Id. demonstrate that the error was prejudicial, i.e., that it affected the outcome of demonstrating that an error affected substantial rights, the defendant must State v. Lopez, 156 N.H. 416, 425 (2007). Generally, to satisfy the burden of

Id. those circumstances in which a miscarriage of justice would otherwise result. damages, but no enhanced damages. p. 12 enhanced damages. The jury awarded Hallam $1.3 million in compensatory The jury awarded Laramie $650,000 in compensatory damages, but no

but not to send a message. That’s for punitive damages.

plaintiffs if you find that there were aggravating circumstances,

message. You can use the enhanced damages to compensate the

Okay? It isn’t -- you can’t use the enhanced damages to send a

Remember the comment send a message? That’s punitive damage.

instruction, which the court then provided: Defendants’ counsel again objected and requested a more specific curative

instructions, okay? last page. So when you get to it, just read that and follow my is no other -- that’s it, right? And it’s right there, it’s on the next to enhanced damages and where it’s appropriate and why. And there just follow my instructions. And that spells out the sole purpose of when you -- if you get to that issue, when you get to that issue, okay? When you get to that issue, if you’re going -- you know, you on enhanced damages and the concept of sending a message,

The defense has objected to the argument that the plaintiff gave

trial court gave the following curative instruction:

damages to “send a message” and requested a curative instruction. The Defendants’ counsel objected to the suggestion that the jury could award

it.

compensated on the compensatory damages side, you can enhance

damages, which mean if you don’t feel you’ve adequately

New Hampshire doesn’t have that, but we do have enhanced

to send a message. do when they get teed off and they say, that ain’t right. We’ve got Farm for lying about someone’s wind insurance, that’s what juries your paper, 50 million against Aetna, 10 million against State them. That’s what punitive damages are for. When you read it in punitive award. Absolutely; Send a message, pound the hell out of did, this would be a great case for a huge multi-million dollar

Now New Hampshire does not have punitive damages. If we

damages: the verdict form and the section that permitted them to award enhanced During closing argument, counsel for the plaintiffs explained to the jury

A. “Send a message” p. 13 This contention is incorrect. As noted above, it is well-settled that a support of the improper message does not result in a waiver of their objection.” fact that [they] did not identify every remark made by Plaintiffs’ counsel in in their post-trial motion. In their reply brief, however, they contend that “the references to facts outside of trial or unrelated scandals until after the verdict The defendants concede that they did not specifically object to the

B. References to Facts Outside of Trial 13

followed the curative instructions. State v. Lemire any, was immediately addressed by the trial court, and we presume the jury and received two curative instructions. Impropriety by plaintiffs’ counsel, if plaintiffs only compensatory damages. In addition, the defendants requested applicable to enhanced and compensatory damages, and it awarded the Here, the jury was provided with written instructions about the law

In Murray Accordingly, the trial court did not err in failing to set aside the verdict.

untenable or unreasonable to the prejudice of the defendant’s case. Id. decision not to give an additional curative instruction was not clearly instructions were sufficient to cure any impropriety, and that the trial court’s a result of the defendants’ legal fault.” Id. We concluded that these for any wrongdoing, but to compensate the plaintiff for the injuries incurred as unsustainably exercised its discretion in denying the defendants’ motion. purpose of awarding damages to the plaintiff was “not to punish the defendant message” was improper. Nonetheless, we cannot say that the trial court that it should not award a “verdict . . . to punish the defendant” and that the there was no separate curative instruction, the jury in Murray was instructed but affirmed the trial court’s denial of the motion for a new trial. Id. Though improper” and that “a separate curative instruction would have been prudent,” curative instruction. Id. at 270. We held that the plaintiff’s argument “was in that case sustained the defendant’s objection, but then declined to give a in his closing argument, though in a slightly different context. The trial court

, 149 N.H. at 269-70, plaintiff’s counsel used the same phrase

We assume, without deciding, that counsel’s use of the phrase “send a treated the comments, and the strength of the case. Murray, 149 N.H. at 270. real issues before the jury, the manner in which the parties and the court the nature of the comments, their frequency, their possible relevancy to the examine, on a case-by-case basis, the totality of the circumstances, including assessing the effect of improper conduct by counsel, the trial court must Sullivan County, 149 N.H. 264, 270 (2003); see Jackson, 158 N.H. at 436. In unsustainable exercise of discretion. Murray v. Developmental Servs. of court’s denial of the defendants’ motion to set aside the verdict for an counsel’s closing remarks may have had upon the jury, we review the trial As the trial court is in the best position to gauge any prejudicial effect p. 14 Kleeman

agency” with the superior court. RSA 541-B:9, IV. The cap provision states, in and exclusive jurisdiction of all claims in excess of $50,000 against any $50,000, against any agency.” RSA 541-B:9, III. The statute vests “original with the superior court on all claims in excess of $5,000, but not exceeding the entire statutory scheme. agency. RSA 541-B:9. The board of claims has “concurrent jurisdiction . . . enacting them, and in light of the policy sought to be advanced by conduct hearings and make decisions, and render or deny awards” against any goal is to apply statutes in light of the legislature’s intent in jurisdiction” of the board of claims, which has the power to “investigate, however, we consider legislative history to aid our analysis. Our claims for damages of less than $5,000 fall under the “original and exclusive the legislature did not see fit to include. If a statute is ambiguous, 14 its employees. Subject to certain specific exceptions not relevant here, all consider what the legislature might have said or add language that the procedure by which individuals may seek damages from the State and/or beyond it for further indication of legislative intent, and we will not RSA chapter 541-B is entitled “Claims Against the State.” It establishes a statute’s language is plain and unambiguous, we need not look ascribe the plain and ordinary meaning to the words used. When

IV. Statutory Cap on Damages first examine the language of the statute, and, where possible,, 158 N.H. at 252-53 (quotation omitted).

review de The interpretation of a statute is a question of law, which we

the statutory cap to reduce each plaintiff’s jury verdict to $475,000. See Finally, the defendants argue that the trial court erred in failing to apply

as expressed in the words of the statute considered as a whole. We

novo. We are the final arbiters of the legislature’s intent

541-B (2007 & Supp. 2009). 541-B:14, I. Whether the cap applies requires us to interpret RSA chapter

thereafter.” (quotation and ellipsis omitted)). the time the alleged improper statement is made, or within a reasonable time preserve an objection to closing arguments, “an objection should be taken at preserved for our review. See Broderick v. Watts, 136 N.H. 153, 167 (1992) (To upon the defendants’ objections. Accordingly, we find that this issue was not been identified specifically, the trial court was unable to consider and rule claim were “references to facts outside the trial.” Without each remark having defendants failed to object in a timely fashion to the specific remarks they preserve an issue for appellate review. Mitoulas, 145 N.H. at 488. The contemporaneous and specific objection at trial is generally required to doctrines of sovereign and official immunity. In this case, the defendants do p. 15 RSA 99-D:1, however, is simply a statement of policy adopting the common law claims at issue are claims for which immunity exists under RSA 99-D:1 (2001). whether RSA chapter 541-B applies, we must first determine whether the In arguing for a contrary result, the plaintiffs contend that, to determine

plaintiffs’ jury verdict in this case. stated. We, therefore, agree with the defendants that the cap applies to the

actions for damages against state employees unless otherwise specifically conclusion that the legislature intended that RSA chapter 541-B govern all of claims and/or the superior court, and its legislative history support the comprehensive nature establishing procedures for filing claims with the board

The broad language of the statute considered as a whole, its

its employees.” N.H.H.R. Jour. to provide a comprehensive procedure for bringing claims against the state and in the House of Representatives as House Bill (HB) 440, with “the intention . . . remedy is specifically provided by statute. RSA chapter 541-B was introduced govern all claims against the State and/or its employees unless another Legislative history reveals that the legislature intended this chapter to

torts, subject to certain exceptions. See Other provisions, however, suggest that the chapter also governs all intentional limiting the types of claims governed by the chapter to negligence claims. from any law.” RSA 541-B:1, II-a(a). This provision could be construed as of action for money damages which either expressly or by implication arises (1985). when that duty was owed to the person making the claim, including any right remedy for damages claims unless otherwise specified. N.H.S. Jour. 2210 failure of . . . state . . . employees . . . to follow the appropriate standard of care amount],” further indicating an intent that the bill was to provide the sole relevant part, any request for monetary relief for personal injury “caused by the pass the bill, “it . . . could expose the State to liability beyond [the capped The definition of “claim” under the chapter is broad. It includes, in debated on the floor of the Senate, one senator stated that if the Senate did not damage . . . to bring claims against the state.” Id. at 703. When the bill was “This bill establishes a procedure for those who suffer injury or property

our analysis. we find that the statute is ambiguous, and we look to legislative history to aid claims against the State and its employees are governed by RSA chapter 541-B, Opinion of the Justices, 126 N.H. 554, 562 (1985). Because it is not clear what

per claimant.” RSA 541-B:14, I. for damages in tort actions shall be limited to an award not to exceed $475,000 relevant part: “All claims arising out of any single incident against any agency p. 16 Affirmed in part; reversed in

be served by applying the cap separately to each plaintiff and each defendant. and Connor each signed a separate report. Thus, no remedial purpose would resulting from the conduct at issue was not compounded by the fact that Stone false reports arose out of a single incident. The harm suffered by the plaintiffs exceed $475,000 per claimant.” Here, the record supports that the defendants’ “arising out of any single incident . . . shall be limited to an award not to with this interpretation of the statute. RSA 541-B:14, I, provides that claims plaintiff to recover total damages of up to $950,000 in this case. We disagree words, under the plaintiffs’ reading of the statutory cap, it permits each find that each plaintiff is entitled to $475,000 from each defendant. In other The plaintiffs also argue that, if we find that the cap applies, we must

BRODERICK, C.J.