David Meehan v. State of New Hampshire et al.

No. 2025-_____ PETITION OF NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, & a.

Appeal from David Meehan v.

New Hampshire Department of Health and Human Services, & a.

Rockingham County Superior Court Docket No. 217-2020-cv-00026 PETITION FOR ORIGINAL JURISDICTION PURSUANT TO SUPREME COURT RULE 11 NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, & a.

By Its Attorneys, JOHN M. FORMELLA ATTORNEY GENERAL and ANTHONY J. GALDIERI SOLICITOR GENERAL Mary A. Triick, Bar No. 277277 Senior Assistant Attorney General New Hampshire Department of Justice Office of the Solicitor General 1 Granite Place South Concord, NH 03301 (603) 271-0447 Mary.A.Triick@doj.nh.gov I. DECISION BELOW The Defendants, the New Hampshire Department of Health and Human Services and the other predecessor and subsidiary entities (collectively “DHHS”), petition this Court to exercise original jurisdiction under New Hampshire Supreme Court Rule 11 to review the Rockingham County Superior Court’s decision to order a new trial. The appealed from December 9, 2024, order—as well as a January 8, 2025, order denying Defendant’s motion to reconsider—is attached to this Petition as an Addendum.

II. QUESTIONS PRESENTED FOR REVIEW Did the superior court err in ordering a new trial de novo on all issues? 1. Did the superior court have a procedurally proper motion for a new trial de novo before it? a. Can a motion for a new trial de novo pursuant to RSA 526 be made prior to the entry of judgment? b. Can a motion for a new trial de novo pursuant to Superior Court Rule 43 be made long after the deadline for such motions has run? c. Can a motion for a new trial de novo be made through a motion to reconsider after the plaintiff has expressly refused to seek such relief previously? 2. Can the superior court order a new trial de novo without a procedurally proper motion requesting such a remedy? 3. Were there substantive grounds sufficient to support the granting of a new trial de novo? a. Was the verdict contrary to the weight of the evidence? b. Was the verdict consistent with the jury instructions and the applicable law? III. PROVISIONS OF CONSTITUTION, STATUTES, RULES, AND REGULATIONS INVOLVED Superior Court Rule 43. Procedure After Trial A motion to set aside a jury verdict shall be filed within 10 days after its rendition, and a motion to set aside any other verdict or decree shall be filed within 10 days from the date on the court’s written notice with respect to same, which shall be mailed by the court on the date of the notice. In each case, the motion shall fully state all reasons and arguments relied on.

RSA Chapter 526: New Trials 526:1 When Granted. – A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable. 526:2 Petition. – In such case a petition may be presented to the superior court in the county where the judgment was rendered, by any person interested, setting forth the reasons for such new trial, and such notice shall be given to the adverse party or his attorney as the court may order. 526:3 Costs; Grant on Terms. – Costs may be allowed to either party upon such petition, and the new trial may be granted upon such terms as the court may deem just. 526:4 Time. – A new trial shall not be granted unless the petition is filed within three years after the rendition of the judgment complained of, or the failure of the suit. 526:5 Effect of Order. – Whenever a new trial is granted the action shall be brought forward on the docket of the court, and shall be tried as if no judgment had been rendered therein. 526:6 Stay of Execution. – Execution on the original judgment shall not be stayed by reason of a new trial; but the court, on motion, may order a stay of execution upon such terms as it thinks fit.

IV. DOCUMENTS INVOLVED IN THE CASE A large number of documents are necessary to understand the procedural history underlying this appeal. These documents are listed in a table of contents and contained in the appendix contemporaneously filed with this petition.

V. CONCISE STATEMENT OF THE CASE AND PROCEDURAL SUMMARY Plaintiff, David Meehan, filed a lawsuit against DHHS alleging that he was abused while in custody at the Youth Development Center (YDC) as a result of DHHS’s negligent supervision, training, and hiring. His lawsuit, the first of the well-publicized YDC litigation cases, was presented to a jury after a month-long trial in the spring of 2024.

On May 3, 2024, the jury entered a verdict finding in favor of the plaintiff on the question of liability and awarded compensatory damages of $18 million dollars as well as enhanced compensatory damages of another $20 million. App.I 39-45.1 The last question on the verdict form asked the jury: How many “incidents” does the jury unanimously find the plaintiff has proven by a preponderance of the evidence. For the purpose of this instruction an “incident” is a: (a) single episode during which the plaintiff was injured; (b) for which injuries the jury has found DHHS liable in response to previous questions; (c) on claims the jury found to be timely claims in response to question 1.

Id. In response to this question, the jury answered: one.

A. The Initial Post-Trial Filings After the verdict, both DHHS and the plaintiff filed motions. DHHS moved to apply the statutory damages cap under RSA 541-B:14, I’s waiver of sovereign immunity based upon the jury’s finding of one incident. App.I 46-48. The plaintiff filed a motion requesting a hearing based upon communications received from jurors. App.I 49-53. In this motion, Plaintiff contended that the finding of one incident was “conclusively against the weight of the evidence and [] logically inconsistent with the jury’s award of $38 million in damages.” Id. at ¶10. Plaintiff argued the superior court was “duty-bound to take corrective action[,]” but requested no specific actions beyond the scheduling of a hearing. Id. at ¶11. DHHS objected to this motion because it requested no substantive relief as 1 “App.I,” “App.II,” and “App.III” refer to the three-volume appendix filed contemporaneously with this petition. required under Superior Court Rule 11 and pointed out that the plaintiff was free to ask for a new trial but had not done so. App.I 63-68. In response to this objection, the plaintiff made a request for specific relief in the form of an opportunity to poll the jury. App.I 71-78. This request was denied in a margin order. Id. The superior court also indicated that a more detailed narrative order would be forthcoming. Id.

On May 13—the tenth day after the verdict—both parties filed motions under Superior Court Rule 43. DHHS filed a Motion for Judgment Notwithstanding the Verdict raising statute of limitations issues. App.I 99- 106. This motion was denied by the court one day after it was filed. Id.

The plaintiff filed a motion for partial judgment notwithstanding the verdict or, in the alternative, to set aside the verdict as to the number of incidents. App.I 83-93. Plaintiff again asserted that the finding of one incident was manifestly contrary to the weight of the evidence. Id. As remedy for this alleged error, Plaintiff requested first that the court enter judgment notwithstanding the verdict in favor of the plaintiff and, in the alternative, grant a new trial solely on the question of the number of incidents. Id. Plaintiff was clear that “a new trial as to all issues is not required[.]” Id.

This same day, May 13, DHHS filed a motion requesting the deadline for DHHS to file post-trial motions be extended to 10 days after the court issued the narrative order it had previously indicated was forthcoming. App.I 107-08. Plaintiff did not assent to this request, but it was granted without narrative explanation by the court. Id.

B. The May 22 Narrative Order On May 22, the superior court issued a detailed narrative order.

App.I 109-65. The court noted it had two pending motions before it: DHHS’s motion to apply the damages cap and the plaintiff’s motion for an emergency hearing. App.I 111. (The court noted it was not ruling upon the plaintiff’s pending Rule 43 motion for partial judgment notwithstanding the verdict as DHHS’s response period had not yet run. Id.) But, instead of addressing the requests made in each of these motions, the court proceeded down its own chosen course. Specifically, the court described what it believed to be the problem requiring redress, stating: “The cognitive dissonance between a $38 million verdict and the finding of a ‘single incident’ of actionable abuse cannot stand.” App.I 110. This conclusion of inevitable cognitive dissonance was based upon the court’s legal interpretation of the term “single incident.” See App.I 109-65. The court “identified what it believed to be the five available options” for addressing this problem, although it described all of these as “incorrect options[.]” App.I 112, 165. As summarized by the court, these options were: 1. Asking the jury to clarify its verdict (e.g. to require further deliberation and a second verdict from the same jury); 2. Taking testimony from individual jurors as to the course of deliberations and their subjective intents, when no suggestion of juror misconduct or exposure to outside influences has been made; 3. Granting the State Defendants’ motion to enter judgment in the amount of the $475,000 statutory damages cap for injuries arising from a “single incident.” RSA 541-B:14, I; 4. Granting a motion to set aside the verdict (or for a new trial) and ordering a de novo jury trial on all issues; and 5. Granting a motion for something akin to additur with respect to the number of “incidents” subject to both parties’ right to reject the “additur” and demand instead a de novo jury trial on all issues.

App.I 112-13.

The court described options one and two, the remedies the plaintiff requested, as “the two most incorrect options[.]” App.I 113-22. The court then considered the action requested by DHHS’s motion, what it described as option three. App.I 122-48. The court found this option—entering judgment after applying the damages cap—to be inappropriate because it would result in “an obvious miscarriage of justice” as the single incident finding—when legally defined in the manner the superior court believed it must be—was “contrary to the weight of the evidence.” App.I 122-23. The court then moved on to option four, the ordering of a new trial de novo.

App.I 148-51. The court described this option—the only option which had clearly not been requested by any party— as the “legally correct result.” Id.

Finally, the court discussed option five: “Additur of Incidents” or, more accurately, something similar thereto. App.I 151-65. This was clearly the option the court preferred. Id. It was also an option Plaintiffs had requested or at least suggested, albeit in a motion the court had expressly disclaimed currently ruling upon. App.I 92. The problem with this option for the court was that additur requires agreement by both parties. App.I 151-65.

The court then concluded it narrative order by stating: There is no clear correct option. The court has identified what it believes to be the five available options. These options shall be discussed at the upcoming hearing.

App.I 165.

C. The Parties’ Responses to the May 22 Narrative Order The parties filed a number of pleadings in the weeks following the court’s May 22 narrative order.

On May 23, DHHS filed a timely objection to the yet to be ruled upon motion of the plaintiff for partial judgment notwithstanding the verdict. App.I 166-79. DHHS argued that the standard for judgment notwithstanding the verdict had not been met (nor the claim preserved); a new trial on incidents was not appropriate as the verdict was not contrary to the weight of the evidence, and in the event a new trial was ordered, it would have to be on both liability and damages. Id.

On May 24, the plaintiff filed an objection to DHHS’s motion to apply the damages cap. App.I 180-91. Plaintiff raised claims that application of the cap violated a number of his constitutional rights and requested that the court “ENTER judgment in the full amount of the damages awarded by the jury[.]” On May 31, DHHS filed a motion to reconsider and vacate the May 22 narrative order. App.I 192-202. Among other things, DHHS objected to the court’s apparent willingness to place itself in an adversarial role through raising issues not requested by any party and expressing conclusions about those issues without the benefit of full briefing by the parties. Id.

On June 10, the plaintiff filed a reply to DHHS’s objection to his motion for partial judgment notwithstanding the verdict. App.I 203-07.

And, on the same day, DHHS filed a reply to Plaintiff’s objection to DHHS’s motion to apply the damages cap. App.I 208-14.

D. The Hearing and Subsequent Orders and Pleadings A post-trial hearing was held on June 24, 2024. App.I 219-22.

Immediately following this hearing, the court issued an order which purported to extend the deadline for filing post-trial motions, which had already long expired2, until July 15. App.I 215. This July 15 deadline was then extended several more times, with an ultimate deadline of August 21.

App.I 216-18.

In addition to these scheduling orders, the court issued a narrative order on August 1. App.I 219-22. The court explained that its previously proposed “additur of incidents” option for resolving the case was no longer possible as DHHS was not in agreement. Id. It also formally denied the plaintiff’s request for judgment notwithstanding the verdict, concluding that this would require the judge to substitute findings of fact made by the court for those made by the jury. Id. The court declined to rule upon the plaintiff’s claims regarding the constitutionality of the cap but indicated the court’s disinclination to find the cap unconstitutional. Id. Finally, the court wrote: 2 Plaintiff’s post-trial motion deadline ran on May 13, ten days after the verdict. DHHS’s post-trial motion deadline ran on June 3 due to the extension of time requested by DHHS.

As this judge said many times at the June 24 hearing, in the absence of a motion for a new trial, the issuance of a judgment consistent with the State’s Motion To Apply Damages Cap will likely be a ministerial act. Therefore, the question facing plaintiff on the cusp of this third extension of the deadline for post -trial motions, is how to caption his forthcoming motion.

Id.

In response to this August 1 Order, the plaintiff filed two documents.

The first was a supplemental memorandum of law. App.I 223-49. This memorandum again objected to DHHS’s request to apply the damages cap.

Id. It continued to argue that the plaintiff’s motion for judgment notwithstanding the verdict should be granted, despite this motion having already been denied by the court. Id. The memorandum also reminded the court that the plaintiff’s originally filed Rule 43 post-trial motion requested alternative relief in the form of a new trial on incidents only and reiterated this was the alternative remedy being requested. Id. The plaintiff explained that it believed the court’s position that it had only a binary choice—either enter judgment applying the damage cap or order a new de novo trial—was incorrect. App.I 229. Plaintiff requested that the court refrain from taking “such a restrictive view of its power” and instead grant one of the remedies actually being requested by Plaintiff. Id. Additionally, Plaintiff expressly wrote that, “Mr. Meehan does not request (nor agree to) a de novo new trial on liability and damages (or even just on damages) . . . . ” App.I 231. The second document filed by the plaintiff was a motion for a new trial on the number of incidents only. App.II 3-5.3 Within the motion, Plaintiff effectively just directed the court back to the arguments made in his original Rule 43 post-trial motion. Id.

In response to the court’s August 1 Order, DHHS also filed a memorandum of law. App.I 250-78.4 DHHS explained its position that the court’s definition of incident in the verdict form was consistent with the law and did not provide a basis for setting aside the jury’s verdict. Id. DHHS also explained that the standard for granting a new trial had not been met as the verdict was not contrary to the weight of the evidence and the plaintiff had not established that the verdict was a result of mistake, partiality, or corruption. Id. Finally, DHHS argued that the damages cap was not unconstitutional. Id. 5 E. The Court’s October and November Orders Nearly two months passed without any filings and then, at the end of October, the court issued a margin order denying DHHS’s May 31 motion to reconsider and vacate its May 22 narrative order. App.II 6, 16. In denying this motion, the court explained that its goal in issuing the May 22 narrative order “was to hasten the resolution of post-verdict proceedings[,]” but that this “goal was manifestly not achieved.” Id. 3 DHHS filed an objection to this motion. App.I 279-83. 4 Plaintiff filed a reply to this memorandum. App.I 284-93. 5 Around this same time there were several filings related to the issue of remittitur.

DHHS has excluded these from the discussion here as they were only relevant in the event the court found application of the statutory cap unconstitutional.

The court also denied Plaintiff’s motion for a new trial on the number of incidents in a margin order. App.II 3-5. The court wrote: As explained in the May 22 order, “a de novo jury trial would be a legally correct result” under RSA 526:1. Had plaintiff asked for this relief, it would have been ordered. That was made clear at the post-verdict hearing.

But plaintiff eschews a new trial. Plaintiff won’t ask for a new trial on all issues. Instead, plaintiff wants to keep the $38,000,000 award, while resubmitting the evidence to a different jury so that it will find more incidents. This cannot be done. There is no way to determine what “incidents” (as the court defines the term in the May 22 Order, pp. 14 -34) the first jury found were proven by a preponderance of the evidence. The jury could have found that plaintiff proved some but not all of what he alleged. The jury could have found that the State Defendants were not liable for some of the tortfeasors’ conduct. Counsel will recall that both sides requested a general verdict and did not allow the court to specify specific occasions or incidents. If plaintiff wants a de novo jury trial, he can move to reconsider, but the court will [sic] order a new trial de novo sua sponte.

App.II 5.

The following day, on November 1, the court issued a narrative order. App.II 17-27. This order began by making clear that it was or had already denied all pending post-trial motions made by the plaintiff. Id. The court extensively discussed the problems it saw with DHHS’s legal interpretation of the word incident and took issue with the manner in which Plaintiff’s counsel chose to litigate the case (and their position during the trial as to how incidents should be calculated). Id. The court discussed what it saw as its limited options when instructing the jury. Id. Finally, the court again expressed a belief that the verdict was contrary to the weight of the evidence. Id. However, this was not because (as the plaintiff argued) no reasonable jury could conclude only one incident had been proven but rather because a finding of one incident (as the court believed that term should be interpreted), could not be reconciled with the high damages award and the court would have to substitute its own judgment for the jury’s judgment in order to determine which finding was in error. Id. The court then concluded in a very similar manner as it had the prior day, writing: As the court noted in its May 22 Order, the standard for a new tri al de novo has been met.

May 22 Order, p. 41. But the court will not order a new tri al de novo sua sponte . Plaintiff has asked only for a new tri al on the issue of incidents. That request was denied, and is denied again, for the reasons set forth above. If plaintiff wants a new trial de novo, he may ask for via a motion for reconsideration. … So far, at least, the plaintiff has declined to request a new trial de novo on all issues.

Id.

Several days later, on November 4, the court issued another narrative order, this one “reluctantly” granting DHHS’s motion to apply the damages cap. App.II 28-36. In this order, the court explained that “there is only one remedy for the disconnect in the jury’s verdict” and “that remedy is a new trial de novo, as provided for in RSA 526:1.” Id. “Yet, the plaintiff has been resolute in asking for every form of relief except a new trial de novo on all issues.” Id. The court found the damages cap constitutional on its face and as applied. Id. In conclusion, the court wrote: Unless plaintiff requests a new trial de novo , on all issues, the court will enter judgment in his favor in the amount of $475,000 (plus statutory interest and recoverable costs) in ten days from the clerk’s notice of this order.

Id.

F. The Motion to Reconsider, the New Trial Order, and the Interlocutory Appeal On November 14, 2024, the plaintiff filed a motion to reconsider.

App.II 37-40. Plaintiff asked the court to reconsider two separate orders: (1) “its orders granting State Defendants’ motion to apply the damages cap under RSA 541-B:14, I,” and (2) its order “denying Plaintiff’s motion for partial judgment notwithstanding the verdict and, in the alternative, to partially set aside the verdict and order a new trial solely to determine the number of ‘incidents’ for purposes of the damages cap.” Id.6 For the first time in this motion, Plaintiff asked the court to order a new trial de novo despite “its costs and burdens.” Id. This was not only not a request ruled upon in either of the orders under reconsideration but also 6 This motion was timely as to both underlying orders, App.II 17-36, because the notice of order of decision on both was issued November 4 despite having been signed by the judge on different dates. the plaintiff continued to argue that a de novo new trial was not the appropriate remedy despite making the request. Id. Plaintiff explained that, faced with the forced choice of requesting a new trial de novo or allowing the damages cap to be applied and judgement to enter, the plaintiff “is compelled to move for reconsideration of the Court’s orders and request a de novo retrial on his case[.]” Id.

In conjunction with this motion, Plaintiff filed two additional motions. Plaintiff requested the court authorize an interlocutory appeal of the court’s denial of his request for judgment notwithstanding the verdict, the court’s denial of his request for a new trial on incidents only, and the court’s granting of DHHS’s motion to apply the damages cap. App.II 41- 46. The plaintiff also moved to stay the entire proceeding pending the requested interlocutory appeal. App.II 113-18. This included an express request for the court to “hold[] in abeyance the Court’s consideration of Plaintiff’s contemporaneously filed motion for reconsideration[.]” Id.

DHHS filed objections to all three motions: the motion to reconsider, the motion for interlocutory appeal, and the motion to stay. App.II 47-71.

In these filings, DHHS pointed out that plaintiff’s motion to reconsider was nothing more than an untimely motion to set aside the jury verdict and therefore procedurally improper. App.II 47-51.

On December 9, the court issued two margin orders and a narrative order. The court granted plaintiff’s interlocutory appeal request, ordered a new trial de novo, and then stayed further proceeding in the case. App.II 86-118. The court noted that now that a new trial had been ordered, it felt an interlocutory appeal was necessary because it was vital for the Supreme Court to determine the legal definition of “single incident” as it is used in RSA 541-B:14, I. App.II 86-89. The court, however, did not address the fact that the three issues raised by the plaintiff in his request for interlocutory appeal did not include a request for the Supreme Court to define the term single incident. See [48, P.3] (raising three claims: (1) as applied constitutionality of the damages cap; (2) the court’s authority to grant their motion for judgment notwithstanding the verdict; and (3) the court’s authority to grant a new trial on the issue of incidents only).

On December 20, DHHS filed a motion to reconsider the court’s decision to order a new trial and its approval of Plaintiff’s request to take an interlocutory appeal. App.II 72-80. DHHS argued that ordering a new trial was in error because the plaintiff was not substantively or procedurally entitled to such relief. Id. Alternatively, DHHS argued that the granting of a new trial rendered the interlocutory appeal inappropriate because the effect of granting a de novo trial is to wipe away the jury’s verdict from the first trial and this verdict (and the effects thereof) was the subject of the interlocutory appeal request. Id. Finally, if the court was going to allow the interlocutory appeal to proceed, DHHS requested the ability to add a question of whether the court erred in granting a de novo new trial. Id.

The plaintiff responded to this motion to reconsider. App.II 81-85.7 Within this response, Plaintiff also expressed concern about the procedural posture created when the court ordered both an interlocutory appeal from a jury’s verdict and simultaneously ordered a new trial de novo. Id. Plaintiff proposed the court resolve this issue by ordering that the new trial order be “held in abeyance pending the duration of the interlocutory appeal.” Id. By 7 DHHS also filed a reply to this response. App.II 119-24. this, the plaintiff intended the court to be ordering that the court clarify that “Plaintiff’s request for a new de novo trial has not yet been granted[.]” Id.

On January 8, 2025, in a margin order, the superior court denied DHHS’s motion to reconsider. App.II 125-33. The court reiterated its belief that plaintiff was substantively entitled to a new trial. Id. As to the questions of procedure, the court wrote: Plaintiff made a timely request for a new trial.

A motion for a new trial is subject to a generous three-year limitations period. RSA 526:4. Yes, the better practice would have been to include an alternative request for a new trial in [sic] first post-verdict motion. But the request was nonetheless timely. Not only did the timing comply with the statute, but it complied with due process and fundamental fairness. The opposing party was given adequate time to oppose the request.

With respect to the decision to grant an interlocutory appeal, the appeal is from the denial of the preferred form of relief requested by the plaintiff. The plaintiff asked for JNOV, and in the alternative a limited new trial. Those requests were denied. A new tri al on the merits will not moot the question of whether the plaintiff is entitled to JNOV based on the original verdict.

Id.

VI. ARGUMENT Petitions for original jurisdiction are to be granted “only when there are special and important reasons for doing so.” Sup. C. R. 11. This case presents three such reasons. First, the superior court’s order granting a new trial de novo, and the process by which it came to issue that order, so far departed from the appropriate procedural authority of a superior court under both statute and court rule as to call for this Court’s exercise of supervision.

Second, the substance of the superior court’s ruling was substantively and legally erroneous and not in accord with applicable decisions of the Supreme Court. Third, granting this petition will serve important interests in judicial economy, both as it relates to this case and as it relates to other pending YDC cases.

A. The Superior Court Order Was Procedurally Improper.

The procedures by which this case moved from jury verdict to the setting aside of that verdict departed at a fundamental level from the procedures established by both statute and court rule. The superior court went well beyond its proper role in the adversarial process, advocating heavily for the relief it believed most appropriate for the plaintiff to request rather than limiting itself to granting or denying the relief requested by the competent and fully informed attorneys representing the adversarial parties.

While, after much pressure from the superior court, Plaintiff eventually capitulated and requested a de novo new trial as alternative relief in a motion to reconsider rulings on other requests, there was at no point a procedurally proper Rule 43 motion or an RSA Chapter 526 petition for a new trial placed before the superior court upon which it could rule. “A motion to set aside a jury’s verdict shall be filed within 10 days after its rendition[.]” Super. Ct. R. 43. This period expired as applied to the plaintiff on May 13.8 The plaintiff filed a post-trial motion in compliance with this deadline, but it did not ask for the jury verdict to be set aside in its entirety and a new trial de novo to be held. App.I 83-98. To the contrary, Plaintiff expressly disavowed such a request. Id. With the running of this deadline, it became procedurally improper for the court to entertain further, new post-trial motions.

However, instead of simply ruling on the motions made by the adversarial parties, the superior court issued an order which set out its own list of actions it believed the parties could request the court to take and then set a hearing for discussion and consideration of those actions. App.I 109- 65. At this hearing, the court explained that it was not amenable to granting the remedies being requested by the plaintiff. App.III 244-246. The court clearly and repeatedly explained its belief that it had only two legally permissible choices: apply the damages cap and enter judgment or order a new trial de novo. App.III 244-267. The court also made clear on the record at the hearing that, to set aside the verdict in its entirety and grant a new trial, it would need a motion from a party requesting the same. App.III 244-246; 274.The court explained that its “job [was] to rule on the motions in front of [it], and not necessarily to figure out everybody’s subsequent moves on the chessboard.” Id. To that end, the court granted both parties twenty days to make further post-verdict filings, and Plaintiff’s counsel 8 As discussed in the procedural history above, DHHS filed a motion to extend its post- trial motion deadline, but the plaintiff did not assent to nor join in on that request on their own behalf. App.I 107-08. responded by explaining that they would take that time to consider what the court had said about the possibility of filing a motion for a new trial de novo and file any motions accordingly. App.III 275-276; 304-305; 307-308.

DHHS is aware of no legal authority that would allow the superior court to order a long since run deadline for filing post-verdict motions under Rule 43 to be resurrected. However, even accepting (without conceding) that the superior court has such power, the plaintiff made an informed choice not to make use of this new deadline to file a motion requesting a new trial de novo. Instead, the plaintiff continued to make the same two requests he had been making since his first Rule 43 motion: that the court enter judgment notwithstanding the verdict or, alternatively, set aside the verdict solely with relation to the incidents finding and order a limited new trial on that issue only. App.I 223-249; App.II 3-5. As a result, the manufactured deadline for filing Rule 43 post-trial motions again ran without any request by any party for the verdict to be set aside in its entirety.

This represented a clear strategic litigation choice made by the plaintiff. But the court did not accept that choice and move forward with its self-described obligation “to rule on the motions in front of [it], and not necessarily to figure out everybody’s subsequent moves on the chessboard.” App.III 274. Instead, the court wrote an order denying the plaintiff’s pending post-trial motions, but also stated that “[i]f plaintiff wants a new trial de novo, he may ask for [sic] via a motion for reconsideration.” App.II 17-27. In a separate order, the court “reluctantly” granted the only other motion before it, DHHS’s motion to apply the damages cap, and stated: Unless plaintiff requests a new trial de novo , on all issues, the court will enter judgment in his favor in the amount of $475,000 (plus statutory interest and recoverable costs) in ten days from the clerk’s notice of this order.

App.II 28-36. On the tenth day, before judgment could enter, plaintiff reluctantly requested a new trial de novo within a motion to reconsider.

App.II 37-40.

This request did not constitute a procedurally proper motion—upon which the court could order the jury verdict set aside—for two reasons.

First, as a motion to reconsider it could not raise new substantive arguments. Second, as a Rule 43 motion for a new trial de novo it was untimely.

The New Hampshire Superior Court Rules provide that motions to reconsider “shall state, with particular clarity, points of law or fact that the court has overlooked or misapprehended and shall contain such argument in support of the Motion as the movant desires to present[.]” N.H. Super. Ct.

R. 12(e). By its very nature, a motion to reconsider asks the court to reconsider a ruling it rendered on a previously made motion. The court has some discretion in deciding whether to entertain new, alternative legal arguments or hear new evidence a party seeks to introduce through a motion to reconsider. See State v. Tselios, 134 N.H. 405, 407 (1991) (finding error preserved when the defendant raised, and the court ruled on, alternative grounds for granting his previously filed motion to strike default in a motion to reconsider the denial of that motion); Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 654-55 (2000) (party cannot raise an issue for the first time in motion for reconsideration when the issue was readily apparent at the time the party initially filed for relief); Lillie-Putz Trust v. Downeast Energy Corp., 160 N.H. 716, 726, (2010) (“Whether to receive further evidence on a motion for reconsideration rests in the sound discretion of the trial court.”). However, that is not what occurred in this case.

There were three substantive decisions made by the superior court which the plaintiff could seek to have the court reconsider: (1) denial of Plaintiff’s request for partial judgment notwithstanding the verdict; (2) denial of Plaintiff’s request to set aside the jury’s finding of one incident and to order a new trial on incidents only; and (3) granting of DHHS’s request to apply the damages cap. Ordering a new trial de novo after setting aside the jury’s verdict in its entirety is not a result that can be achieved by reconsidering and reversing any of these rulings.

To order a new trial de novo, the court needed a substantive motion requesting such a ruling. However, even assuming the court can refashion a motion to reconsider into a substantive motion of its own, it would not have been properly before the court as it was clearly untimely without good cause shown. As outlined above, the deadline for filing Rule 43 post-trial motions had long run. Such procedural rules and deadlines can be waived “[a]s good cause appears and as justice may require[.]” Super. Ct. R. 1(d).

No such showing was or could have been made in this case where the plaintiff had for many months persistently made an express, strategic choice not to file such a motion and not to seek such relief.

The superior court disagreed on this timeliness question, although not directly disagreeing that the Rule 43 deadline had passed. Instead, the court concluded the plaintiff’s motion for a new trial was timely under RSA 526:4 which subjects motions for a new trial “to a generous three-year limitations period.” App.II 125-33. The problem with this ruling is that the request made by the plaintiff was not, and could not have been, a motion for a new trial under RSA Chapter 526. Motions for a new trial under Chapter 526 require the filing of a petition “within three years after the rendition of the judgment complained or, or the failure of the suit.” RSA 562:4. Not only was a petition not filed but, it could not have been, as there has at this point been no “rendition of … judgment” nor a “failure of the suit.” Id.; see also RSA 526:5 (directing that new trials be conducted “as if no judgment had been rendered); RSA 526:6 (providing that “[e]xecution of the original judgment shall not be stayed by reason of a new trial; but the court, on motion, may order a stay of execution upon such terms as it thinks fit”). Instead, the superior court expressly withheld entry of judgment.

App.II 28-36.

Furthermore, the justifications for granting a new trial under RSA Chapter 526 are limited. “A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable.” RSA 526:1. The grounds relied upon by the superior court in setting aside the verdict and granting a new trial de novo in this case related to its belief that the verdict was contrary to the weight of the evidence based upon its legal interpretation of the term incident. The plaintiffs did not argue, and the court made no finding, that justice had not been done through “accident, mistake or misfortune[.] Id.

Finally, a substantial question exists as to whether RSA 526 applies to claims against the State under RSA chapter 541-B. RSA chapter 541-B is a waiver of sovereign immunity, and it alone prescribes the terms and conditions on which an agency like DHHS may be sued in tort. RSA chapter 541-B does not provide for new trials after final judgment enters.

Accordingly, final judgments against state agencies are not subject to retrial within three years upon petition under RSA 526.

Without any procedurally proper request for a de novo new trial made by the plaintiffs, the superior court erred in ordering such a new trial.

B. The Superior Court’s Order Was Substantively Incorrect.

In addition to the plethora of procedural errors identified above, the superior court’s decision to order a de novo new trial was substantively incorrect and constituted an unsustainable exercise of discretion. “A jury’s verdict may only be set aside if it is conclusively against the weight of the evidence[.]” N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 436 (2009). “Conclusively against the weight of the evidence means that the verdict was one no reasonable jury could return.” Id. (internal citation omitted). In this case, a reasonable jury could return a finding of a single incident and, as such, no new trial was warranted.

This court has not specifically defined a “single incident” within the meaning of RSA 541-B:14, I. However, the jury was instructed that an incident is: (a) a “single episode during which the plaintiff was injured;” (b) “for which injuries the jury has found DHHS liable in response to previous questions;” (c) “on claims the jury found to be timely claims in response to question 1.” App.I 45. Based upon this instruction, and particularly in the context of the broader jury instructions, a reasonable jury could conclude the plaintiff had established a single incident or single episode during which he suffered injuries for which DHHS was liable.

It is important to start by noting that this was a case where the plaintiff alleged DHHS was liable for its own actions or inactions, and not a respondeat superior case where DHHS was being held liable for the conduct of its employees. App.I 11-13. As such, the jury was instructed that DHHS had “a duty to use reasonable care to prevent injury to the juveniles in its care” as well as a duty to “use prudence and diligence to create an environment free of sexual assault, physical assault, excessive confinement and emotional abuse.” App.I 16-18, 20-22. The jury was further instructed that the plaintiff was claiming DHHS breached these duties by failing to adequately train, discipline, and oversee staff, by failing to adequately implement the ombudsman system, and by failing to adequately implement its room confinement policy. Id. The jury was also asked to decide whether DHHS was “knowing and active participant in a common plan or design that caused harm to the plaintiff[.]” App.I 27.

Based upon these instructions, the liability question put to the jury was whether the plaintiff was “injured during the time he was a resident at YDC” and “DHHS’s Negligence and/or Breach of Fiduciary Duty was a substantial factor in bringing about one or more of his injuries[.]” App.I 39- 45. See also App.I 11 (instructing the jury that their “task is to determine whether (a) plaintiff was injured during his residency at YDC, and if so, (b) whether DHHS … was legally at fault for any of his injuries”). The jury answered this question in the affirmative and concluded that the plaintiff’s injuries were “caused by DHHS’s knowing and active participation with others in a common plan or design[.]” App.I 39-45.

After making all of these findings and determining damages, the jury was asked to decide how many “incidents” this case involved. Id. The jury were instructed that an incident was a “single episode during which the plaintiff was injured” and “for which injuries the jury has found DHHS liable in response to previous questions[.]” Id. A rational jury could have concluded that the episode for which the jury found DHHS liable was the plaintiff’s residency at YDC, during which he was repeatedly injured due to DHHS’s breach of its duty to keep him safe. Id. As such, the finding of a single incident or episode was in conformity with the instructions and questions presented to the jury and certainly not one no rational jury could reach.

This single incident finding—based upon one continuous episode of residency at YDC—was also consistent with the manner in which the plaintiff argued the case and with a plethora of case law across the country dealing with situations where insurance liability is limited by the number of occurrences involved.

Plaintiff’s counsel’s closing argument contained little discussion of the details of the assaults against himself. See App.III 105-174. Instead, consistent with the jury instructions and the verdict form, Plaintiff’s counsel focused on the evidence he believed established that DHHS had created an environment with pervasive corruption, pervasive brutality, and pervasive abuse of children. See, e.g. App.III 108, 148. He all but mocked DHHS’s argument that one could find the individual tortfeasors at all responsible for the abuse suffered by the plaintiff. See App.III 148-149; 155-58. He then concluded by discussing damages in the aggregate and encouraging the jury to figure out how many rapes, beatings, etc., the plaintiff suffered. App.III 159-74. He said that figuring out the number of rapes, beatings, etc., was important for two reasons: rapes do not become less damaging because they occur repeatedly, and abuse should not be treated as a “buy one get one free” type of situation. Id.

This framing of the case by the Plaintiff was not only consistent with the jury instructions but it was also consistent with well-established case law from other jurisdictions dealing with determining the number of occurrences in cases involving with broad reaching harms flowing from an institutional actor’s negligent supervision, training, and oversight.

For example, in Washoe County v. Transcontinental Ins. Co., 878 P.2d 306 (Nev. 1994), the Nevada Supreme Court considered a situation where approximately 40 children were sexually assaulted over a three-year period by an employee of a daycare center and the County was sued for negligently licensing that center. It was alleged that the county breached a duty to investigate the daycare employees and monitor the daycare’s activities. Id. The Nevada court “adopted the ‘causal approach’ used by the vast majority of jurisdictions in determining whether certain circumstances constitute one occurrence or multiple occurrences for the purposes of insurance liability.” Id. at 308. The focus of the inquiry is not “on the number, magnitude or time of the injuries, but rather on the cause or causes of the injury.” Id. When liability “arises from the entities’ failure to adequately perform an ongoing duty” the damages caused by that ongoing failure constitute a single occurrence as they all arise out of the continuous or repeated exposure to substantially the same general conditions. Id.

Numerous federal circuits have long applied this same legal standard. See, e.g., Mead Reinsurance v. Granite State Ins. Co., 873 F.2d 1185 (9th Cir. 1988) (city incurred liability under §1983 in several lawsuits alleging numerous civil rights violations and circuit court found them to be combinable into a single occurrence where they arose from the one municipal policy of condoning police brutality); Appalachian Ins. Co. v.

Liberty Mut. Ins. Co., 676 F.2d 56 (3rd Cir. 1982) (applying the majority used “cause theory” in determining the number of occurrences and noting that “the fact that there were multiple injuries and that they were of different magnitudes and that injuries extended over a period of time does not alter our conclusion that there was a single occurrence”); Home Indem.

Co. v. Mobile, 749 F.2d 659 (11th Cir. 1984) (finding one occurrence covering over 200 lawsuits for property damage caused after a series three major rainstorms causes property damage due to the City’s negligent “planning, construction, operation, and maintenance of its surface water drainage system”). In applying this standard, the Massachusetts courts have explained: “it is [the liable party’s] actions or failures to act … and not the deliberate acts of a wrongdoer that constitute the ‘cause’ of a victims’ injuries” and therefore is the basis of the number of incidents. RLI Ins. Co. v. Simon’s Rock Early Coll., 765 N.E.2d 247, 252 (Mass. App. Ct. 2002). If this was a case where the plaintiff alleged, and the jury found, DHHS to be vicariously liable for the actions of the individual tortfeasors, it is very possible that the superior court’s definition of an incident (as including “all related acts of abuse—sexual, physical, or emotional—that occur in a compressed time frame, in a single location, without any salient intervening events” App.I 141-42, 146) may have been legally correct and it may have been true that no reasonable jury could have found only one incident of abuse. See Barnett v. State, 303 So. 3d 508 (2020).

But that is not how this case was plead, tried, or instructed. In this case, the jury held DHHS liable for knowing and active participation in a common plan or design and behaving negligently through its supervision and oversight and/or breaching its fiduciary duty, which created an environment that exposed the plaintiff to ongoing harm and caused his injuries while he was a resident at YDC. App.I 39-45. Based upon these findings, it was not irrational to conclude that all of Plaintiff’s injuries for which DHHS was liable, and for which a large amount of damages were awarded, arose from a single incident—Plaintiff’s residency at YDC.

C. Considering These Issues Now Will Serve the Interests of Judicial Economy. .

This court has yet to offer direct guidance on the definition of “single incident” as it is used within RSA 541-B:14, I. While DHHS believes there is a clear majority position as outlined above, the superior court rejected this position in favor of its own unique definition and the plaintiff does not agree with the application of this case law. See App.I 109- 65. Any new trial in this case, as well as trials being scheduled in numerous other litigation matters raising from sustainably similar claims against DHHS, will require a determination of the number of incidents for purposes of applying the statutory damages cap. As such, answering this question sooner rather than later will serve important interests in judicial economy.

Moreover, answering the broader question of whether the superior court properly granted a new trial de novo will serve the interests of efficiency and judicial economy. After half a decade, the plaintiff’s civil case is the first YDC case to go to trial and reach a jury verdict. Over 8009 other cases remain pending before the same judge and not a single one has yet reached final judgment. Resolving these issues now will ensure the parties do not waste time retrying this very lengthy and complex case only to have it reversed on appeal on one or more of the grounds presented herein.

VII. JURISDICTIONAL BASIS FOR APPEAL The New Hampshire Supreme Court has jurisdiction to hear this case pursuant to RSA 490:4 and as further specified in New Hampshire Supreme Court Rule 11.

VIII. PRESERVATION OF ISSUES DHHS raised the relevant issues before the superior court on multiple occasions, including in an objection to the plaintiff’s motion to reconsider and in an independent motion to reconsider. See App.I 250-78; App.II 47-51, 72-80.

IX. PARTIES Plaintiff: David Meehan Plaintiff’s Counsel of Record: Nixon Peabody LLP 9 As of the time of this writing, approximately 535 of 838 cases are stayed as a result of the Claims Fund. 900 Elm Street, 14th Floor Manchester, NH 03101 David A. Vicinanzo, Esq. (Bar No. 9403) W. Daniel Deane, Esq. (Bar No. 18700) Mark Tyler Knights, Esq. (Bar No. 264904) Nathan Warecki, Esq. (Bar No. 20503) Erin S. Bucksbaum, Esq. (Bar No. 270151) Allison K. Regan, Esq. (Bar No. 272296) Jonathan O’Neil, Esq. (Bar No. 276336) Rilee & Associates, P.L.L.C. 264 South River Road Bedford, NH 03110 Cyrus F. Rilee, III, Esq. (Bar No. 15881) Laurie B. Rilee, Esq. (Bar No. 15373) Defendants: The State of New Hampshire; the Department of Health and Human Services; the Division for Children, Youth, and Families; the Division of Juvenile Justice Services; the Sununu Youth Services Center (f/k/a Youth Development Center); and the Youth Detention Services Unit (f/k/a Adolescent Detention Center).

Defendants’ Counsel of Record: New Hampshire Department of Justice 1 Granite Place, South Concord, NH 03301 Anthony J. Galdieri, Esq. (Bar No. 18594) Mary A. Triick, Esq. (Bar No. 277277) Samuel R.V. Garland, Esq. (Bar No. 266273) Brandon F. Chase, Esq. (Bar No. 270844) X. TRANSCRIPT All transcripts necessary for this appeal have already been ordered and produced.

Respectfully Submitted, NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, & a.

By Its Attorneys, JOHN M. FORMELLA ATTORNEY GENERAL ANTHONY J. GALDIERI SOLICITOR GENERAL February 7, 2025 /s/ Mary A. Triick Mary A. Triick, Bar No. 277277 Senior Assistant Attorney General New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301 (603) 271-3658 CERTIFICATE OF SERVICE I, Mary A. Triick, hereby certify that I am filing this petition electronically and that a copy is being served on all other parties or their counsel, in accordance with the rules of the Supreme Court, as follows: I am serving registered e-filers through the court’s electronic filing system; I am serving or have served all other parties by mailing or hand-delivering a copy to them..

February 7, 2025 /s/ Mary A. Triick Mary A. Triick ADDENDUM TABLE OF CONTENTS Order on Post-Verdict Motions .............................................................................. 36 DHHS’s Motion to Reconsider and Margin Order ................................................ 40 STATE OF NEW HAMPSHIRE SUPERIOR COURT Rockingham, ss.

DAVID MEEHAN v.

STATE OF NEW HAMPSHIRE, DIVISION OF HEALTH AND HUMAN SERVICES 217-2020-CV-00026 (This Order Applies Only To The Individual Meehan case.) ORDER ON POST-VERDICT MOTIONS (Granting A New Trial and Approving An Interlocutory Appeal) I. The Motion For Reconsideration / New Trial Docket document 872, e.g. the plaintiff’s motion for reconsideration of the court’s orders of October 31, 2024, November 1, 2024 and November 4, 2024 is GRANTED IN PART AS FOLLOWS: The plaintiff’s last minute, alternative request for a new trial de novo on all issues submitted to the first jury, including (a) the factual disputes relating to limitations, (b) liability, (c) damages for such particular “incidents” as liability may be found, (d) enhanced compensatory damages, (e) apportionment of damages among possible joint tortfeasors (e.g.

Debendetto), and (f) the total number of “incidents” for which liability may be found, is GRANTED.

A new trial is hereby ORDERED.

All other relief requested in the motion for reconsideration is DENIED.

In its Order of May 22, 2024 (docket document 777) the court explained why plaintiff is entitled to a new trial 12/10/2024 7:38 AM Rockingham Superior Court This is a Service Document For Case: 217-2020-CV-00026 pursuant to RSA 526:1. The court reaffirmed this ruling in all of its subsequent post-verdict motions. In essence, the jury’s award of $38 million in compensatory and enhanced compensatory damages cannot be reconciled with its finding that the award is based on a single incident. No purpose would be served by restating what has already been said.

II. The Motion For Interlocutory Appeal Docket document 874, plaintiff’s motion to approve interlocutory appeal is also GRANTED. In this judge’s view, now that a new trial has been ordered, an interlocutory appeal is not merely appropriate but necessary. Had plaintiffs not requested an interlocutory appeal, this judge would have sua sponte transferred similar questions. Here’s why: -The resolution of the proposed appeal turns largely on a question of first impression involving the contested interpretation of a New Hampshire statute, RSA 541-B:14, I.

That statute creates a “single incident” damages cap for tort claims against the State and its agents. The parties dispute the meaning of the term “single incident.” Under plaintiff’s reading of the statute, a jury could find liability over 200 “single incidents.” While this court reads the statute somewhat differently than the plaintiff, it nonetheless believes that a jury could find liability for more than 100 incidents. The State Defendants serially proffered two alternative interpretations of the statute (compare Order of May 22, 2024 at pp. 15-27 with Order of November 1, 2024 at pp. 3-4, both discussing the State Defendant’s oral arguments on the issue).

Under either interpretation urged by the State Defendants, there could only be liability for a single “incident” in this case. -The question of what constitutes a “single incident” within the meaning of RSA 541-B:14, I has never been addressed, even obliquely by the New Hampshire Supreme Court. This court relied on the persuasive value of national caselaw decided in other jurisdictions under similar statutes. However, the national case is sparse and incapable of providing clear guidance under the New Hampshire statute. -The meaning of the statutory term “single incident” is important, both to this case and to over 1,200 other pending consolidated cases arising from alleged historical abuses at the Youth Development Center. In this case, the plaintiff testified that he was anally raped and forced to perform fellatio, on many different occasions spread out over several years, some occasions separated by furloughs from the facility, at various locations, at least one of which was off campus, sometimes by force and once at gun point, by several different individual tortfeasors. While many of the consolidated cases may not have the same complexity, the question of how many “incidents” have been alleged or proven will be a common theme. -The answer to what constitutes an “incident” will thus inform settlement discussions and jury trials in a large number of cases. -This is a legal issue that will have to be resolved by the New Hampshire Supreme Court unless the Legislature first clarifies the statute. It is an issue that is best addressed sooner, rather than later. -Accepting the interlocutory appeal is the quickest way to get this important issue before the Supreme Court.

December 9, 2024 ________________ Andrew R. Schulman, Presiding Justice THE STATE OF NEW HAMPSHIRE ROCKINGHAM, SS SUPERIOR COURT Docket No. 217-2020-CV-00026 DAVID MEEHAN V.

NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.

THIS PLEADING RELATES SOLEY TO DAVID MEEHAN’S INDIVIDUAL CASE DEFENDANT’S MOTION TO RECONSIDER “ORDER ON POST-VERDICT MOTIONS” AND INTERLOCUTORY APPEAL STATEMENT The Defendants, the New Hampshire Department of Health and Human Services, by and through its counsel, the New Hampshire Department of Justice, respectfully moves to reconsider the Court’s “Order on Post-Verdict Motions” (December 10, 2024) (hereinafter, “Order – Post- Verdict”) and Order on Interlocutory Appeal (December 10, 2024). In support of its motion, DHHS states as follows: Introduction 1. DHHS seeks reconsideration on three grounds. 2. First, the Court should reconsider and vacate its order granting the plaintiff a new de novo trial because the plaintiff is not substantively or procedurally entitled to that relief. 3. Second, if the Court declines to vacate its order granting a new de novo trial, then it should reconsider and vacate its decision to approve the plaintiff’s interlocutory appeal statement insofar as doing so would transfer the three questions presented in that statement as part of the appeal. The effect of the Court’s order granting a new de novo trial is to entirely wipe out the jury’s verdict in the first trial. Because the plaintiff’s three questions presented are all Filed File Date: 12/20/2024 12:44 PM Rockingham Superior Court E-Filed Document 1/8/2025 3:03 PM Rockingham Superior Court This is a Service Document For Case: 217-2020-CV-00026 premised on those jury findings, the questions have been rendered moot and are not appropriate for appellate review. 4. Third, the Court should reconsider its order granting an interlocutory appeal to allow DHHS to add the question of whether the Court erred in granting a new de novo jury trial under the circumstances of this case. Allowing that question to go up would bring with it the “single incident” question this Court would like answered.

Discussion A. The Court should reconsider and vacate its order granting the plaintiff’s motion for a new de novo jury trial. 5. On December 10, 2024, this Court issued an order on the plaintiff’s motion for reconsideration of the court’s orders of October 31, 2024, November 1, 2024, and November 3, 2024, as follows: The plaintiff’s last minute, alternative request for a new trial de novo on all issues submitted to the first jury, including (a) the factual disputes relating to limitations, (b) liability, (c) damages for such particular “incidents” as liability may be found, (d) damages among possible joint tortfeasors (e.g. Debenedetto), and (f) the total number of “incidents” for which liability may be found, is GRANTED. A new trial is hereby ORDERED. All other relief requested in the motion for reconsideration is DENIED. See Order – Post-Verdict at 1. As a basis therefore, the court cited to its May 22, 2024, Interim Order and “reaffirmed this ruling in all of its subsequent post-verdict motions” stating that “the jury’s award of $38 million in compensatory and enhanced compensatory damages cannot be reconciled with its finding that the award is based on a single incident.” See id. at 1-2. 6. As previously briefed, in Defendant’s “Memorandum in Response to the Court’s May 22, 2024 Order” (filed August 21, 2024), incorporated by reference in full, the jury’s verdict was not conclusively against the weight of the evidence. 7. “A jury’s verdict may only be set aside if it is conclusively against the weight of the evidence or if it is the result of mistake, partiality, or corruption.” N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 435 (2009). “Conclusively against the weight of the evidence means that the verdict was one no reasonable jury could return.” Id. The “result of mistake, partiality, or corruption” must be based on grounds independent from whether the verdict was conclusively against the weight of the evidence. See Broderick v. Watts, 136 N.H. 153, 162- 163 (1992) (citing to Panas v. Harakis, 129 N.H. 591, 604 (1992)). The “proper inquiry is into the conduct of the jury, separate and apart from its consideration of the weight of the evidence produced at trial.” Id. 8. In this case, a reasonable jury could have returned a verdict finding one incident1 based on the record evidence and jury instructions provided. A reasonable jury could have concluded that one or more instances of negligence and/or breach of fiduciary duty by DHHS in managing YDC gave rise to a single, harmful condition of confinement (an incident) to which the plaintiff was continually exposed and repeatedly injured during his detention at YDC. A reasonable jury could have viewed this incident as spanning the plaintiff’s entire detention at YDC or only a significant part of his detention. Thus, the jury’s verdict is not conclusively against the weight of the evidence. 9. Additionally, and as stated in its Objection to Plaintiff’s Motion for Reconsideration (filed November 24, 2024), also incorporated in full by reference, it was mistake of law to grant a new trial de novo on Plaintiff’s Motion for Reconsideration because it was a form of relief 1 “Incident” is/was a defined term as used in this case. “Incident” was defined by this Court as a: “(a) single episode during which the plaintiff was injured; (b) for which injuries the jury has found DHHS liable in response to previous questions; (c) on claims the jury found to be timely claims in response to question 1 [of the verdict form].” See Verdict Form at 7. To be clear, this is the definition that is intended whenever DHHS refers to an “Incident” within this pleading. never before requested by the Plaintiff (and was even expressly rejected by Plaintiff). See gen. Def.’s Obj. to Pl.’s Mot. for Reconsideration (filed November 25, 2024) (where Defendant summarizes the multiple opportunities Plaintiff had to request a new trial yet failed to do so.). 10. The New Hampshire Superior Court Civil Rules do not permit a party to introduce entirely new forms of relief in a motion for reconsideration. See Mt. Valley Mall Assocs. v.

Municipality of Conway, 144 N.H. 642, 654-55 (2000) (party cannot raise an issue for the first time in motion for reconsideration when the issue was readily apparent at the time the party initially filed for relief); Sklar Realty v. Town of Merrimack, 125 N.H. 321, 328 (a party may not be entitled to judicial review of matters not raised at the earliest possible time). The purpose of a motion for reconsideration is to correct manifest errors of law or fact, not to introduce new claims or requests that could have been raised earlier. See N.H. Super. Ct. R. 12(e). 11. The New Hampshire Superior Court Civil Rules apply to this plaintiff just as they do to any other. Good cause has never been established to waive them for the Plaintiff, N.H. Super. Ct.

Civ. R. 1(c), nor could they be given how many opportunities the Plaintiff has had to seek a new trial de novo. Granting the Plaintiff’s motion was therefore an abuse of discretion. 12. The Court should therefore vacate its Order – Post-Verdict to the extent that order grants the plaintiff a new de novo jury trial and enter judgment consistent with the statutory damages cap. The plaintiff can then file a direct appeal from that decision.

B. To the extent the Court does not reconsider its order granting a new de novo jury trial, it should vacate its December 10 orders to the extent those orders authorize an interlocutory appeal of the questions presented in the Plaintiff’s interlocutory appeal statement. 13. DHHS agrees that the legal question of what constitutes a “single incident” under RSA 541- B:14, I, is an important question that the Supreme Court should weigh in on sooner rather than later. DHHS believes that the proper vehicle to present that question would be through a direct appeal after judgment entered in accordance with the cap. See Def.’s Obj. to Pl.’s Mot. to Stay Pending Int. Appeal (filed November 24, 2024); Def.’s Obj. to Pl.’s Mot. for Int.

Appeal (filed November 24, 2024). But if the Court is not willing to reconsider its order granting a new de novo jury trial, then DHHS does not oppose that specific question going to the Supreme Court through an interlocutory appeal, as contemplated in the Court’s Order – Post-Verdict. 14. DHHS respectfully disagrees, however, that the three questions proposed in the Plaintiff’s interlocutory appeal statement necessarily turn on the legal question of what constitutes a “single incident” under RSA 541-B:14, I. See Order – Post-Verdict at 2. 15. Rather, each of the questions is premised upon things that the plaintiff contends occurred during the first trial in this case, including the jury’s factual findings in the special verdict form. 16. For instance, the first question Plaintiff presented is an as-applied constitutional challenge to the statutory cap specifically premised on the jury’s finding that DHHS’s “conduct toward the plaintiff was wanton, malicious, or oppressive.” Pls.’ Interlocutory Appeal Statement at 13. 17. The second question presented is likewise specifically premised on the jury’s findings in its special verdict form. Id. Additionally, it is premised on the notion that one of those findings “is obviously the product of juror error.” Id. 18. The third question is specifically premised on the proposition that “the jury’s findings of liability, and the jury’s award of damages, are supported by the trial record but its finding regarding the number of ‘incident[s]’ is not.” Id. 19. It has been long established that the “effect” of an “award of a new trial” is that “the previous verdict is entirely set aside, and the case is to be heard anew like an original action and as if no judgment had been rendered in the court below.” Bickford v. Franconia, 73 N.H. 194, 195 (1905); see RSA 526:5 (“Whenever a new trial is granted the action shall be brought forward on the docket of the court, and shall be tried as if no judgment had been rendered therein.”). 20. This Court specifically granted the plaintiff’s request for a new de novo trial in its Order – Post-Verdict. 21. The legal effect of that ruling is to entirely wipe out the jury’s prior verdict. See RSA 526:5. 22. Because all three of the plaintiff’s proposed questions presented ask the Supreme Court to issue an opinion based on a verdict that “is entirely set aside,” id., any opinion would be purely advisory. 23. “Part II, Article 74 does not authorize [the Supreme Court] to render advisory opinions to private individuals.” Duncan v. State, 166 N.H. 630, 640 (2014) (citations omitted). 24. This is true “no matter how high the stakes or how important the question.” Id. at 641 (citations and quotation marks omitted). 25. Additionally, one of the proposed questions is specifically premised on the notion that the jury’s finding of one “incident” is “obviously the product of juror error.” Pl.’s Interlocutory Appeal Statement at 13. The Court never entered a finding to this effect. Indeed, the Court correctly concluded that it would be inappropriate to recall the jury days after the verdict was rendered when no party asked for that on the date of the verdict and jurors would have been exposed to the considerable press the verdict in this case generated. 26. For this reason, too, the second question presented is not appropriate. 27. In sum, DHHS does not oppose an interlocutory appeal related to the proper interpretation of the phrase “single incident” as used in RSA 541-B:14, I, but there is no legal or factual basis to grant the plaintiff’s motion as it relates to the three questions the plaintiff presents. Rather, if an interlocutory appeal is to be taken, a new transfer statement with new questions is required. 28. Thus, to the extent the Court does not reconsider its decision to grant a new de novo trial, it should reconsider its decision to grant an interlocutory appeal to the extent doing so transfers the plaintiff’s proposed questions.2 C. The Court should add to any interlocutory appeal the question of whether it erred in granting the plaintiff a new de novo trial. 29. DHHS requests that the Court reconsider its Order – Post-Verdict and Order on Interlocutory Appeal to add the following question: Whether the trial court erred in granting the plaintiff a new de novo trial? 30. Unlike the questions presented in the plaintiff’s interlocutory appeal statement, this question directly implicates the proper interpretation of the phrase “single incident” in RSA 541-B:14, I. 2 To the extent the plaintiff wished to bring these questions directly to the Supreme Court, he could have sought to do so, consistent with the preservation doctrine and the actual record in this case, through a direct appeal from judgment. He did not pursue that path, and instead moved for a new de novo trial. It is simply a natural consequence of this strategic decision that these questions cannot be presented now. 31. Additionally, this question is appropriate for review now because the Court has granted a new de novo trial over DHHS’s objection, thus generating a ruling that can be appealed. 32. Resolving this question has the potential to materially advance the termination or to otherwise clarify further proceedings in this case and other YDC-related cases currently pending in this Court and other courts. See Sup. Ct. R. 8(1). 33. It would also promote efficiency and judicial economy to allow this question to go up now, as part of an already-approved interlocutory appeal, rather than require DHHS to seek to file a separate interlocutory appeal or directly petition the Supreme Court for review under Rule 11.

WHEREFORE, for the reasons set forth in this Motion, DHHS respectfully requests that this Honorable Court: A. Grant this motion to reconsider; and B. Grant such further relief as the Court deems just and proper.

Respectfully Submitted, New Hampshire Department of Health and Human Services; Division of Children, Youth, and Families; and Division of Juvenile Justice Services By their attorneys, JOHN M. FORMELLA ATTORNEY GENERAL Date: December 20, 2024 /s/ Brandon F. Chase Brandon F. Chase, Bar #270844 Assistant Attorney General N.H. Department of Justice – Civil Bureau 1 Granite Place South Concord, NH 03301 (603) 271-3650 brandon.f.chase@doj.nh.gov CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was sent via the Court’s electronic filing system to all parties of record on the date above. /s/ Brandon F. Chase Brandon F. Chase