2011-754, Petition of Southern New Hampshire Medical Center & a.

Sulloway & Hollis, P.L.L.C.

No. 2011-754 Original

Douglas, Leonard & Garvey, P.C.

, of Manchester (David P., of Nashua (Michael A. Pignatelli

Kenneth C. Bartholomew on the brief), for New Hampshire Medical Society, Rath, Young and Pignatelli, P.C. and

Hampshire Association for Justice, as amici curiae. reporter@courts.state.nh.us (Jeffrey R. White on the brief), for American Association for Justice and New brief), and Center for Constitutional Litigation, P.C., of Washington, D.C.

brief, and Martin P. Honigberg THE SUPREME COURT OF NEW HAMPSHIRE orally), for the defendants.

brief, for the plaintiff. to press. Errors may be reported by E-mail at the following address: Slawsky on the brief and orally), and Christine M. Smith, of Manchester, by Nixon, Vogelman, Barry, Slawsky & Simoneau

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as omissions did not “constitute a deviation from the applicable standard of care.”

p. 2 This we decline to do. Town of Orford v. N.H. Air Resources Comm. unanimously found that the defendants were not negligent in that their acts or

opinion addressing these other arguments so as to benefit future litigants. screening panel hearing in December 2010. Following the hearing, the panel RSA chapter 519-B, the parties participated in a two-day medical injury malpractice lawsuit brought against the defendants and others. Pursuant to

and ellipsis omitted)). In effect, the parties would have us issue an advisory

Sup. Ct. R. appeal. The underlying superior court action is the plaintiff’s medical

to render the issue appropriate for judicial review at this stage.” (quotations constitutional right to a jury trial, see does not impose an impact “on the parties sufficiently direct and immediate as assertion that final action presenting a purely legal question” because the contested action The parties do not dispute the following facts for the purposes of this portions of the statutes at issue violate a plaintiff’s state Estate of Sheila Parker by Wendy Roystan, Administratrix, prevails on its alternative grounds to support it.”). Specifically, we hold that the plaintiff, the I. Brief Background

issue advisory opinions.”). and they are neither preserved nor ripe for our review. See 539, 542 (1986) (“[T]he judicial power ordinarily does not include the power to

N.H. 205, 210 (2005) (“A case may lack ripeness . . . even when it involves a raised first in the trial court); Petition of State of N.H. (State v. Fischer), 152 on mistaken grounds, this court will sustain the decision if there are valid address appellants’ procedural due process arguments because they were not Malborn Realty Trust, 164 N.H. ___, ___ (decided August 17, 2012) (declining to

because the plaintiff did not argue them in its original motion to the trial court, Clause of the State Constitution, see regarding the constitutionality of the provisions, we decline to address them Although we granted the parties’ request to brief additional arguments Court (Nicolosi Bernard Bettencourt, Jr., D.O., seek review of the decision of the Superior N.H. CONST. pt. I, art. 20.

150 N.H. 262, 267 (2003) (“When a trial court reaches the correct result, but trial court’s decision, albeit on alternative grounds. See Sherryland v. Snuffer, that in so ruling, the trial court erred. Nonetheless, we affirm portions of the

screening panels, RSA 519-B:8-:10 (2007), violate the Separation of Powers

, J.) that three provisions of the statute governing medical injury

11, the defendants, Southern New Hampshire Medical Center (SNHMC) and DALIANIS, C.J. In this petition for original jurisdiction, see

Association, and American Medical Association, as amici curiae. Maine Medical Association, Vermont Medical Society, New Hampshire Hospital p. 3 (2007). See determination by the panel” shall be forwarded to the panel, RSA 519–B:4, II

return date . . . all the relevant medical and provider records necessary to a

reason.” RSA 519-B:4, IV.

de screening panel shall be convened, and, “no later than 6 months from the entry of a medical injury case,” RSA 519–B:3, II(a) (2007), a medical injury The medical injury screening panel statute provides that, “[u]pon the

B:4, IV (2007). The parties may also agree to bypass the panel “for any legislature did not see fit to include. Id nonbinding, unless the parties agree otherwise. Id. at 702-03; see RSA 519– II. Discussion Petition of George, 160 N.H. at 702. The panel’s determination is

jurisdiction.

and related provisions, which presents another question of law that we review the State Constitution. See

1. Medical Injury Screening Panel Statute statute, those doubts must be resolved in favor of its constitutionality.” Id of the overall statutory scheme and not in isolation. Id.

not consider what the legislature might have said or add language that the used. Id. We interpret legislative intent from the statute as written and will declare it invalid except upon inescapable grounds.” New Hampshire Health language of a statute, we ascribe the plain and ordinary meaning to the words court denied this request, the defendants filed the instant petition for original novo. Petition of George, 160 N.H. 699, 702 (2010). When examining the

Resolving the issues before us also requires interpreting RSA 519-B:8-:10 determined that RSA 519-B:8-:10 violate the Separation of Powers Clause of (quotation and brackets omitted).

omitted). “It also means that when doubts exist as to the constitutionality of a A. Separation of Powers substantial conflict exists between it and the constitution.” Id. (quotation means that we will not hold a statute to be unconstitutional unless a clear and Care Assoc. v. Governor, 161 N.H. 378, 385 (2011) (quotation omitted). “This

“In reviewing a legislative act, we presume it to be constitutional and will not defendants requested permission to file an interlocutory appeal. When the trial law that we review de novo. See Cloutier v. State, 163 N.H. 445, 451 (2012). trial court granted the motion on separation of powers grounds, and the N.H. CONST. pt. I, art. 37. This is a question of 519-B:8-:10 violate Part I, Articles 20 and 37 of the State Constitution. The The defendants first contend that the superior court erroneously

Thereafter, the plaintiff filed a motion, asking the court to find that RSA at trial. RSA 519–B:10, I; see p. 4 admit liability” and if the claim goes to trial, the panel’s findings are admissible favor, the defendant shall promptly enter into negotiations to pay the claim or

Under RSA 519-B:10, if the panel unanimously finds “in the plaintiff’s

may be necessary to prove fraud. unless by the party who called and presented the nonparty expert,” except as findings, or expert testimony or opinions expressed during the panel hearing,

testify at a later court proceeding concerning the deliberations, discussions,

privileged and confidential, and no such person may be asked or compelled to and discussion of the panel and the testimony of any expert . . . shall be 519-B:8, I(a)(1), (2). Additionally, under RSA 519-B:8, III, “[t]he deliberations

agree to the submission, use or disclosure of that statement or evidence. RSA

understand the nature of the panel findings and to put the panel findings in purposes; and (2) the party who made the statement or presented evidence may panel hearing may be used in a subsequent proceeding for impeachment trial,” except that: (1) “[a]ny testimony or writings made under oath” at the

these mandatory jury instructions is “to provide a basis for the jury to

in court” and “shall not be submitted or used for any purpose in a subsequent

submits the case to the jury for decision. RSA 519-B:9, II. The purpose of when panel findings are admitted into evidence and, again, before the court RSA 519-B:9 sets forth the instructions that the court must give the jury by a party or a party’s representative” at the panel hearing “are not admissible

findings and other writings of the panel and any evidence and statements made admissibility of those findings” at trial. RSA 519–B:10, II; see private and confidential by the panel and the parties to the claim.” “The or claims based on the findings, without payment, or be subject to the the panel proceedings, including its final determination, “shall be treated as

provider is found, whether any fault on the part of the patient was equal I(c).

unanimously finds “in the defendant’s favor, the plaintiff shall release the claim The plaintiff challenges RSA 519-B:8-:10. Pursuant to RSA 519-B:8, I(a),

the injury complained of”; and (3) “[i]f fault on the part of the medical care

the defendant . . . .”). . . to recover damages in tort . . . , if such fault was not greater than the fault of

care”; (2) “[w]hether the acts or omissions complained of proximately caused applicable standard of care by the medical care provider charged with that “[w]hether the acts or omissions complained of constitute a deviation from the

(2010) (“Contributory fault shall not bar recovery in an action by any plaintiff . (emphasis added); Petition of George, 160 N.H. at 703. But see RSA 507:7-d greater than the fault on the part of the provider.” RSA 519-B:6, I (2007)

Following a hearing, the panel must answer three questions: (1) p. 5 Id

(a) through (e). findings or proceedings except as provided in subparagraphs proceedings, and they may not comment on the panel

documents or present witnesses to testify about the panel

Consequently, the parties may not introduce panel (f) The panel proceedings are privileged and confidential.

all of the evidence presented to them.

is the jurors’ duty to reach their own conclusions based on

(e) The jury is not bound by the findings of the panel and it

at the trial.

may not have included all of the evidence that is presented

(d) The hearing is not a substitute for a full trial and may or

by the rules of evidence.

(c) The panel conducts a summary hearing and is not bound

circumstances exists under which the Act would be valid.” p. 5 Id

virtually all, of its applications.” p. 5 Id assertion that the challenged statute violates the Constitution in all, or

omitted). is not so under the particular circumstances of the case.” p. 5 Id. (quotations statute may be constitutional in many of its applications, but contends that it omitted). “[A]n as-applied challenge,” on the other hand, “concedes that the identity of the members).

(b) The panel in this case consisted of (insert the name and. (quotation

challenge to a statute, “the challenger must establish that no set of

omitted). “A facial challenge is a head-on attack of a legislative judgment, an asserting a facial challenge, an as-applied challenge, or both.” p. 5 Id. (quotation 2012). “An appellant may challenge the constitutionality of a statute by 519-B:8-:10. See State v. Hollenbeck, 164 N.H. ___, ___ (decided September 5, Our first task is to determine the scope of the plaintiff’s challenge to RSA

2. Analysis

.

through which malpractice claims proceed. (a) The panel process is a preliminary procedural step

Specifically, the court must instruct the jury: context in evaluating all of the evidence presented at the trial.” RSA 519-B:9, I. p. 6 New Hampshire Health Care Assoc.

and rigidity of powers between the three great departments of government.” N.H. CONST. pt. I, art. 37. Part I, Article 37 “contemplates no absolute fixation

in one indissoluble bond of union and amity.

these provisions is correct. See

chain of connection that binds the whole fabric of the constitution Article 37 because it conflicted with New Hampshire Rule of Evidence 404(b). nature of a free government will admit, or as is consistent with that kept as separate from, and independent of, each other, as the

discussion, we assume, without deciding, that the plaintiff’s characterization of

at 566-68. The justices opined that the proposed statute would violate Part I, admissible at trial, violated the Separation of Powers Clause. PSAE thereof, to wit, the legislative, executive, and judicial, ought to be, 141 N.H. presumption that evidence of a defendant’s prior sexual assaults was views as the exclusive province of the judiciary. For the purpose of this whether a proposed statute, which would have created a rebuttable PSAE powers doctrine because they are akin to evidentiary rules, which the plaintiff, the Senate asked this court to issue an advisory opinion regarding The plaintiff first argues that RSA 519-B:8-:10 violate the separation of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997) (PSAE). In In making this argument, the plaintiff relies primarily upon Opinion of

1977); Eastin v. Broomfield, 570 P.2d 744, 748 (Ariz. 1977). v. Arlen, 390 N.Y.S.2d 122, 126 (App. Div. 1976), aff’d, 372 N.E.2d 34 (N.Y. screening panel’s findings as “in essence, a rule of evidence”); accord usurps an essential power of another.” Id Comiskey 434, 451 (Wis. 1978) (viewing statutory admissibility of medical malpractice impenetrable barriers” among them is not required. Id State ex. rel. Strykowski v. Wilkie, 261 N.W.2d overlapping” among the three branches of government and that “the erection of In the government of this state, the three essential powers

provides:

State v. Merrill, 160 N.H. 467, 472 (2010) (quotation omitted). “defeat[s] or materially impair[s] the inherent functions” of the other branch. that one branch “usurps” an essential power of another branch when it

Thus, the Separation of Powers Clause “is violated only when one branch

Instead, it expressly recognizes that, as a practical matter, “there must be some

under which these provisions might be valid. Id

Next, we must determine whether, as the plaintiff asserts, RSA 519-B:8-

prevail, the plaintiff must demonstrate that there is no set of circumstances The plaintiff has brought a facial challenge to RSA 519-B:8-:10. Thus, to rules, see

p. 7 provision merely endorsed the judiciary’s inherent authority to adopt such

authority to adopt evidentiary rules belongs exclusively to the judiciary. This to be followed in all such courts,” this provision does not state or imply that the supreme court justices, make rules governing . . . the practice and procedure 7

] was an advisory opinion . . . , rather than a litigated

function.” McNamara, The Separation of Powers Principle and the Role of the justice of the supreme court “shall, with the concurrence of a majority of the constitutional considerations, such as impairment of the court’s ability to

authority to enact statutes on this subject. legislature does not infringe upon constitutional right to jury); cf (1966), and was not intended to divest the legislature of its concurrent Moreover, we believe that the language used in PSAE Nassif Realty Corp. v. National Fire Ins. Co., 107 N.H. 267, 268-69

Although Part II, Article 73-a provides, in pertinent part, that the chief in which the Judiciary and Legislature share concurrent authority, absent unconstitutionally shift burden of proof in criminal case to defendant). Rollins-Ercolino, 149 N.H. 336, 342-43 (2003) (statute may not

(recognizing that legislature may change evidentiary rules provided that should become law and a case should arise requiring its construction”). to consider certain facts); King v. Hopkins, 57 N.H. 334, 351 (1876) that directs how jury is to weigh evidence, it may enact provision allowing jury LaPointe, 81 N.H. 227, 234-39 (1924) (although legislature may not enact law Courts in New Hampshire, 42 N.H.B.J. 66, 82 (June 2001); see, e.g., State v.

inconsistent with prior precedent which suggests . . . that th[is] area . . . is one court’s] rulemaking authority regarding evidentiary . . . rules is exclusive is As numerous commentators have observed, the suggestion in PSAE “that [the

legislation is not binding upon the court in the event the proposed legislation Id Beaches), 139 N.H. 82, 94-95 (1994) (an opinion of the justices “on proposed N.H. 609, 625 (2011); cf. Opinion of the Justices (Public Use of Coastal jurisdiction of the courts.” Id case, the opinion does not constitute binding precedent.” State v. Ploof, 162 “Because [PSAE

44, 46 (March 2001). Powers in New Hampshire: The Need for Constitutional Reform, 42 N.H.B.J. See id. at 574-78; see also Lynn, Judicial Rule-Making and the Separation of evidence regarding the admissibility of other crime evidence in a criminal trial. that it was the exclusive province of the judiciary to adopt or modify a rule of . at 572 (quotations omitted). Using this framework, the justices concluded methods by which those rights and duties are to be protected and enforced.” rights and duties which people live by” and procedure as “the means and

legislative action,” and procedure was “a subject under the exclusive Id. at 578. The justices explained that substance was “a legitimate subject of p. 8 Journal of the Constitutional Convention

have, they would still have.

Del. NIGHSWANDER: I would think that any power that they now

presently has, to regulate court procedure by statute? adopted, would not deprive the Legislature of its right that it

Del. GROSS: Is my understanding correct that this amendment, if

of law. the rules of court, as far as procedure is concerned, have the effect

for approval. But I don’t think it changes the general principle that rules governing procedure in the courts?” Id

for themselves and then they submit them to the Supreme Court shall, with the concurrence of a majority of the supreme court justices, make At the present time, for example, the Superior Court makes rules supreme court shall be the administrative head of the state courts, and that he where the rules are promulgated; that is, in the Supreme Court. favor of amending the constitution to provide that the chief justice of the

jurisdiction of the judiciary. All this does is to unify the place exclusive. The ballot question submitted to voters merely asked: “Are you in

for the orderly procedure within the courts are within the that the authority of the judiciary to create procedural rules was intended to be Additionally, citizens voting on the 1974 amendment were not informed

courts now have rule-making power. The rules which they make Del. NIGHSWANDER [of Gilford]: It is my understanding that the

its concurrent authority to pass laws concerning evidentiary rules.

court procedures in the future? voting on the amendment understood that it did not deprive the legislature of

would have on the Legislature’s ability to provide by statute for and effect of law.” Could you tell us what effect that sentence amendment reads: “The rules so promulgated shall have the force

reflective of its known purpose or object.” Bd. of Trustees, N.H. Judicial Ret. language in accordance with its plain and common meaning while being determining the meaning of an amendment if they interpret the amendment’s

Del. GROSS of Concord: The last sentence of the proposed

occurred: discussions about the constitutional amendment, the following exchange Plan v. Sec’y of State, 161 N.H. 49, 55 (2010) (quotation omitted). During

confirm this interpretation. “We consider a delegate’s statements in Statements of the delegates at the 1974 constitutional convention adopted the model instructions as court rules. Cf

p. 9 refers to the model instruction as a “Model Rule”; however, we have not

with New Hampshire Model Civil Jury Instruction 2.2. The plaintiff mistakenly in RSA 519-B:9 violates the separation of powers doctrine because it conflicts The plaintiff next contends that the mandatory jury instruction set forth

like the judiciary, it has the authority to create evidentiary rules. has the authority to deem certain evidence relevant and admissible because, deem certain evidence relevant and admissible. To the contrary, the legislature

B. Right to Jury Trial based upon the mistaken premise that the legislature is without authority to

the original petition to the trial court. ability to determine the evidence a jury may fairly consider. This argument is

powers doctrine, we next consider whether they violate a plaintiff’s state have shared authority. See

we decline to address this argument because the plaintiff did not include it in court to admit the panel’s findings, and, thus, materially impairs the court’s court records repeatedly honored by the courts of the nation and of this state,” provision violates the separation of powers doctrine because it requires a trial contained in RSA 519-B:8 “implicitly overrule the expansive right of access to The plaintiff next focuses solely upon RSA 519-B:10, arguing that this 9

Having concluded that RSA 519-B:8-:10 do not violate the separation of instructions, we disagree. This is an area in which the judiciary and legislature

Although the plaintiff also argues that the confidentiality provisions

exclusive province of the judiciary to determine the proper wording of jury

constitutional rights of all persons who come before the courts. App. 1999); cf the judiciary to resolve cases fairly and impartially and to protect the. Gibbs v. Prior, 107 N.H. 218, 220-21 (1966). enact procedural statutes that compromise the core adjudicatory functions of Edwards v. State, 10 S.W.3d 699, 704 (Tex. Ct.

criminal cases). Moreover, to the extent that the plaintiff implies that it is the 630, 633 (2010) (recommending that trial courts use model jury instructions in

limits on how far the legislature may go. The legislature may not, for example,

legislature has the authority to enact laws affecting evidentiary rules. See evidentiary rules. In so holding, we join other courts in recognizing that the violate the Separation of Powers Clause merely because they are akin to

authority with the judiciary to regulate court procedure, there obviously are 2008); Comisky, 390 N.Y.S.2d at 126. Of course, while the legislature shares (Nev. 1995), overruled on other grounds by Lioce v. Cohen, 174 P.3d 970 (Nev. v. Gimbel, 691 A.2d 664, 672 (Me. 1997); Barrett v. Baird, 908 P.2d 689, 700

with the legislature’s, we disagree with the plaintiff that RSA 519-B:8-:10 Because we view our authority to make evidentiary rules as coextensive regulations which would make the right practically unavailable.” Zamora v. p. 10 that right is burdened by the imposition of onerous conditions, restrictions or “A statute will unconstitutionally restrict the right to a jury trial when

unconstitutionally infringes upon a plaintiff’s jury trial right.

questions of fact about which they are contending.” King right to have a jury decide “the actual controversy between the parties – the

that the admission of the hearing panel’s findings acts as a “penalty,” which resolution process, violates the jury trial right. Rather, the plaintiff contends argue that the medical screening process itself, as an alternative dispute 10

of issues of fact by the jury be not interfered with”). The plaintiff contends that for consideration by the jury at any trial de

evidence. The right to a jury trial guaranteed by Part I, Article 20 entails the

findings,” and, thus, violates the right to a jury trial. The plaintiff does not

Amendment to Federal Constitution mandates “that the ultimate determination B:10 requires the non-binding unanimous findings of the panel to be admitted Ex Parte Peterson, 253 U.S. 300, 310 (1920) (right to jury trial under Seventh

“infects the sanctity of the jury” to pass upon the issues and weigh the Zamora The plaintiff next asserts that admission of the hearing panel’s findings

494. “mere evidence, which the jury is free to accept or reject.” Zamora who insists on exercising his right to a jury trial despite the negative panel, 213 P.3d at findings under RSA 519-B:10 and RSA 519-B:8, I(b), (c) penalizes “the party 494; Barrett, 908 P.2d at 694-95. “In this context,” the panel’s findings are The plaintiff first argues that the admission of the hearing panel’s novo. See Zamora, 213 P.3d at

at subsequent trial not shown to infringe upon jury trial right). Here, RSA 519- Cir. 1979); Parker, 394 A.2d at 942 (admissibility of arbitration panel’s decision panel opinion impermissibly burdens jury trial right), aff’d, 603 F.2d 646 (7th 421, 426-28 (N.D. Ind.) (rejecting assertion that admissibility of medical review , 213 P.3d. at 494; see Hines v. Elkhart General Hospital, 465 F. Supp. merely because the panel’s findings are admissible at a subsequent trial. the plaintiff’s assertion that the right to a jury trial is “practically unavailable” Children’s Hospital of Philadelphia, 394 A.2d 932, 942 (Pa. 1978). We reject Price, 213 P.3d 490, 493 (Nev. 2009) (quotation omitted); see Parker v.

Article 20 to try her medical injury claim to a jury. See

CONST. pt. I, art. 20; Murphy & Sons, Inc. v. Peters

are entitled to have issues tried to a jury). N.H. 406, 408 (1970) (plaintiffs bringing negligence actions at law for damages

(2005). Here, there is no dispute that the plaintiff had the right under Part I, constitution was adopted in 1784. SNCR Corp. v. Greene, 152 N.H. 223, 224 The right to a jury trial extends to all cases for which the right existed when the

Constitution, the right to a jury trial in civil causes “shall be held sacred.” N.H. constitutional right to a jury trial. Under Part I, Article 20 of the State weight as the legislature choose[s] to attach to it.

p. 11 that decision, on the trial of the question of its correctness, such correctness of the auxiliary decision, requiring the jury to give to decision, and then leave to the jury only the question of the

the issue to the presiding judge, or any other auxiliary tribunal, for

any of its incidents.” Meeker & Co. v. Lehigh Valley R. R. King jury,” and, therefore, “does not abridge the right of trial by jury or take away contestation of all the issues, and takes no question of fact from either court or

rulings of law. See

medical malpractice claims prior to trial.” Keyes v. Humana Hosp. Alaska, Inc. the parties’ consent, commit a civil case to a referee, Copp v. Henniker constitutionality of statutes providing for some form of non-binding review of award does not impinge upon the right to jury trial.” Keyes been leveled in nearly all of the cases which have addressed the To support its argument, the plaintiff relies upon King On no ground of constitutional principle can the legislature send

King, 57 N.H. at 354. The court ruled that this violated the right to a jury trial: , the jury had only to decide whether the referee’s report was correct. See impeached by either party.” Laws 1874, 97:13. Under the statute at issue in report was deemed “evidence of all the facts stated therein, subject to be carrier, such a provision “cuts off no defense, interposes no obstacle to a full

179, 202 (1875), who issued a written report, including findings of fact and

the constitutionality of a statutory process under which a court could, without trial”). “[L]egal commentators generally agree that admissibility of a panel. King concerned of the panel’s findings violates the right to a jury trial. “Similar charges have (1915).

manner as it weighs all of the other evidence presented.” Id and upon the belief that the jury weighs the panel’s opinion in the same on the ground that the jury remains the ultimate arbiter of factual questions executive agency in a subsequent civil action by a shipper against a defendant reviewing a statute that required admitting the findings and order of an n.3 (citing articles). As the United States Supreme Court explained when

upon jury and “jury . . . remains the final arbiter of questions of fact raised at We disagree with the plaintiff’s broad assertion that the mere admission constitutional right to a meaningful jury trial because findings are not binding of unanimous findings of panel does not infringe upon plaintiff’s state e.g. issues in dispute.”, Treyball v. Clark, 483 N.E.2d 1136, 1137 (N.Y. 1985) (requiring admission

750 P.2d 343, 346 (Alaska 1988). “The vast majority have rejected the charge

undermined the constitutional power of the jury to independently decide all “[b]y mandating the admission of the panel findings at trial, the legislature has p. 12 Irish In this regard we find the Maine Supreme Judicial Court’s opinion in

ability to evaluate the panel’s findings.

it in context. The effect of these provisions is to materially impair the jury’s

deny the parties the opportunity to explain or challenge the report, or to place circumstances. These provisions allow admission of the panel’s report but comment on the panel findings or proceedings” except under limited

precludes the introduction at trial of “any evidence

present witnesses to testify about the panel proceedings, and they may not

challenge to the panel’s report at a subsequent trial. RSA 519-B:8, I(a)

instruct the jury that “the parties may not introduce panel documents or

statute, as currently configured, parties are unable to mount a meaningful information that may be crucial to its assessment of the report. Under the plaintiff that because of other statutory provisions, the jury is denied to testify at a subsequent trial. RSA 519-B:9, I(f) requires the trial court to expert, who testified at the panel proceeding on behalf of the party’s opponent, RSA 519-B:8, III similarly precludes the parties from asking or compelling an

670. The court held that although the trial court “instructed the jurors that withheld “information that is essential to the jury’s fact-finding role.” Id. at without explanation. Id. at 669. The court ruled that this provision of the law panel’s findings were required to be admitted in any subsequent jury trial panel’s report, in and of itself, violates the jury trial right, we agree with the RSA chapter 519-B. p. 12 Irish, 691 A.2d at 668 n.3. Under the Maine statute, the instructive. Irish Although we reject the plaintiff’s assertion that the mere admission of the concerned a medical injury screening panel statute like

or made the statement agrees to their introduction at trial. (Emphasis added.)

differs from that of the jury under the statute at issue in King chooses to give it. In this way, the task of the jury under RSA chapter 519-B

disregard the panel’s report. of fact bearing upon a medical provider’s liability, and is free to completely introduced for impeachment purposes or the party who presented the evidence party” at the panel proceeding unless the evidence and statements are

Under RSA chapter 519-B, the jury is free to give the panel report the weight it

However, this part of King was correct, a jury in a case governed by RSA chapter 519-B decides all issues jury in the statute at issue in King decided only whether the referee’s report

reach its own conclusion “based on all of the evidence” presented at trial. is specifically instructed that it is not bound by the panel’s report and must N.H. at 348 (quotation omitted). By contrast, under RSA 519-B:9, I(e), the jury the referee’s findings were “evidence of all the facts stated therein.” King, 57 medical injury screening panel statute. In King, the jury was instructed that N.H. at 278. Moreover, the statute at issue in King is distinguishable from the

Id. at 355. the panel would redirect the focus of trials away from the conduct of the parties

p. 13 argument, concerns were raised that permitting an attack upon the findings of

amount of evidence that may be admitted at trial. We note that, at oral maintains its broad discretion to decide, on a case by case basis, the type or party may use to challenge a panel report in a subsequent trial. The trial court

We need not decide as a matter of law the type or amount of evidence a

testify as witnesses at trial. herein is intended to suggest that parties may call screening panel members to

this part of RSA 519-B:8, III intact, and observe, in particular, that nothing

information about “[t]he deliberations and discussion of the panel,” we leave order for the jury to properly assess the panel’s report at trial, it needs proceedings. Because the plaintiff has not argued or demonstrated that, in

panel proceedings, and that they may not comment on the panel findings or

may not introduce panel documents or present witnesses to testify about the

the extent that it requires the trial court to instruct the jury that the parties party’s opponent, to testify at a subsequent trial; and (3) RSA 519-B:9, I(f), to at, or whose report was submitted at, the panel proceeding on behalf of the

that it prevents the parties from asking or compelling an expert, who testified

made by a party or a party’s representative”; (2) RSA 519-B:8, III, to the extent 13 extent that it precludes the introduction at trial of “evidence and statements under Part I, Article 20 of the State Constitution: (1) RSA 519-B:8, I(a), to the

Specifically, we hold that the following provisions are unconstitutional

deprive a plaintiff of the state constitutional right to a jury trial. I(f) impermissibly infringe upon the jury’s fact-finding role, and, consequently,

deprived of information “essential to [its] fact-finding role.” Id

consistent with the constitutional right of a trial by a jury.” Id ultimately, rendered the Maine statute “a legitimate exercise of legislative power statute, the jury’s fact-finding role, and a plaintiff’s right to a jury trial, and,

Therefore, we conclude that portions of RSA 519-B:8, I(a), III and RSA 519-B:9,

modeled. Id the mandatory jury instructions, a New Hampshire jury is, nonetheless, those crafted by the Irish court, we conclude that they are insufficient. Despite operates.” Id Although the mandatory instructions set forth in RSA 519-B:9, I, codify jurors are deprived of any and all information of the context in which the panel

mandatory jury instructions, the court ruled, preserved the purposes of the evidence presented at the trial.” Irish, 691 A.2d at 671. The addition of the panel findings and to put the findings in context in evaluating all of the reasoned, would give the jury “a basis . . . to understand the nature of the

. at 671; see RSA 519-B:9, I. “This information,” the court

upon which the mandatory jury instructions set forth in RSA 519-B:9, I, are

. Accordingly, the court crafted mandatory jury instructions,

weight they thought appropriate[,] [t]his admonition rings hollow when the they were not bound by the findings and should give the findings whatever p. 14 14

contexts. See relevancy-versus-competing-interests issues on a regular basis in a variety of concerns, but we also are aware that trial courts deal with these kinds of

HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

task in this context as well.

, e.g., N.H. R. Ev. 403. We are confident that they are up to the

regarding the validity of panel findings. We are not insensitive to these and toward the panel proceedings, and could spawn a “trial within a trial”