Christine Rivas v. Nadia Ciecko

1. Did the trial court properly allow testimony from Dr. Michael Whitekus, Defendant’s expert toxicologist, pursuant to the New Hampshire Rules of Evidence? P Appx. I at 144, 148-150. 1 2. Did the trial court properly deny the Plaintiff’s motion to strike the testimony of Dr. Whitekus? T 616-621.

3. Did the trial court properly limit the scope of Plaintiff’s cross-examination of Dr. Michael Alexander, Defendant’s expert neurologist? T 585-586. 4. Did the trial court properly deny Plaintiff’s request to Dr. Alexander as a rebuttal witness? T 591-592.

5. Did the trial court properly deny the Plaintiff’s motion to submit a passage from Plaintiff’s deposition testimony as substantive evidence? T 171-172. 6. Did the trial court properly deny Plaintiff’s motion to strike a portion of defense counsel’s closing argument or give a curative instruction? T 653-658. 7. Did the trial court properly deny Plaintiff’s motion to set aside the verdict? P Appx. I at 160.

265-A:11 Evidence. –

II. Upon complaint, information, indictment, or trial of any person charged with a violation of the provisions of RSA 265-A:2, II relative to the operation of boats by a person under the influence of intoxicating liquor or a controlled drug, prescription drug, over-the-counter drug, or any other chemical substance, natural or synthetic, which impairs a person's ability to drive the court may admit evidence of the defendant's alcohol concentration at the time alleged, as shown by a chemical, infrared molecular absorption, or liquid or gas chromatograph test or tests of his or her breath, urine, or blood. Evidence that there was, at the time alleged, an alcohol concentration of 0.08 or more, is prima facie evidence that the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of more than 0.03 and less than 0.08 is relevant evidence and may be considered with other competent evidence in determining whether or not the defendant was under the influence of intoxicating liquor. Evidence that the defendant had, at the time alleged, an alcohol concentration of 0.03 or less is prima facie evidence that the defendant was not under the influence of intoxicating liquor.

Source. 2006, 260:1. 2012, 267:9, eff. Jan. 1, 2013. 2017, 78:3, eff. July 1, 2017.

507:7-d Comparative Fault. – Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff's legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation.

Source. 1986, 227:2, eff. July 1, 1986.

630:3 Negligent Homicide. –

II. A person is guilty of a class A felony when in consequence of being under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and controlled drug while operating a propelled vehicle, as defined in RSA 637:9, III or a boat as defined in RSA 265-A:1, II, he or she causes the death of another. III. In addition to any other penalty imposed, if the death of another person resulted from the negligent driving of a motor vehicle, the court may revoke the license or driving privilege of the convicted person for up to 7 years. In cases where the person is convicted under paragraph II, the court shall revoke the license or driving privilege of the convicted person indefinitely and the person shall not petition for eligibility to reapply for a driver's license for at least 7 years. In a case in which alcohol was involved, the court may also require that the convicted person shall not have a license to drive reinstated until after the division of motor vehicles receives certification of installation of an ignition interlock device as described in RSA 265-A:36, which shall remain in place for a period not to exceed 5 years.

Source. 1971, 518:1. 1977, 588:40. 1985, 290:2. 1989, 415:2. 1992, 257:10. 1993, 272:2. 2000, 287:4; 318:2. 2006, 260:32, eff. Jan. 1, 2007.

New Hampshire Rules of Evidence: Rule 106. Remainder of or Related Writings or Recorded Statements

(a) If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at the time, of any other part - or any other writing or recorded statement - that in fairness ought to be considered at the same time.

(b) A party has a right to introduce the remainder of an unrecorded statement or conversation that his or her opponent introduced so far as it relates:

(2) tends to explain or shed light on the meaning of the part already received.

Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States or New Hampshire Constitution; a statute; these rules; or other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

(2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Rule 801. Definitions That Apply to this Article; Exclusions from Hearsay

(a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. (b) Declarant. "Declarant" means the person who made the statement. (c) Hearsay. "Hearsay" means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant's testimony, and was given under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (C) identifies a person as someone the declarant perceived earlier. (2) An Opposing Party's Statement. The statement is offered against an opposing party and: (A) Was made by the party, in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party's agent or employee on a matter within the scope of that relationship, and while it existed; or (E) was made by the party's coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

New Hampshire Superior Court Rules Rule 36. Standing Trial Orders - Procedures

(a) Addressing the Court. Anyone addressing the court or examining a witness shall stand. The rule may be waived if the person is physically unable to stand or for other good cause. No one should approach the bench to address the court except by leave of the court.

(b) Opening Statements and Closing Arguments. Opening statements shall not be argumentative and shall not be longer than 30 minutes unless the court otherwise directs. Closing arguments shall be limited to 1 hour each, unless otherwise ordered by the court in advance. Before any person shall read to the jury any excerpt of testimony from a transcript prepared by the designated court transcriber, he or she shall furnish the opposing party with a copy thereof.

(c) Copies of Documents for Court. Counsel shall seasonably furnish for the convenience of the court, as it may require, copies of the specifications, contracts, letters or other papers offered in evidence.

(d) Examination of Witnesses.

(1) Only one counsel on each side will be permitted to examine a witness. (2) A witness cannot be re-examined by the party calling him or her, after his or her cross-examination, unless by leave of court, except so far as may be necessary to explain his or her answers on his or her cross-examination, and except as to new matter elicited by cross-examination, regarding which the witness has not been examined in chief. (3) After a witness has been dismissed from the stand, the witness cannot be recalled without permission of the court.

(4) No person, who has assisted in the preparation of a case, shall act as an interpreter at the trial thereof, if objection is made. (5) Attorney as Witness.

(i) Compelling Testimony. No attorney shall be compelled to testify in any cause in which he or she is retained, unless the attorney shall have been notified in writing that he or she will be summoned as a witness therein. Except for good cause shown, such notice shall be provided no later than 30 days after the opposing party discovers that the attorney is a witness in the matter or 30 days after the attorney's appearance in the case, whichever occurs later.

(ii) Participation as Advocate. An attorney who gives testimony at trial or hearing shall not act as advocate at such trial or hearing unless the attorney’s testimony relates to an uncontested issue, or relates to the nature and value of legal services rendered in the case, or unless the court determines that disqualification of the attorney would work unreasonable hardship on the attorney’s client.

(e) Exceptions Unnecessary. Formal exceptions to non-evidentiary rulings or orders of the court are unnecessary, and for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at or before the time the ruling or order of the court is made or sought, makes known to the court by motion or orally on the record the action which the party desires the court to take or his or her objection to the action requested by a party opponent, provided that in each instance the party has informed the court of the specific factual or legal basis for his or her position. (f) Objections. When stating an objection, counsel will state only the basis of the objection (e.g., “leading, ” “non-responsive, ” or hearsay”), provided, however, that upon counsel’s request, counsel shall be permitted a reasonable opportunity to approach the bench to elaborate and present additional argument or grounds for the objection. (g) Submission of Case. In all trials, the plaintiff shall put in his or her whole case before resting and shall not thereafter, except by permission of the court for good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his or her whole defense, and shall not thereafter introduce any evidence except such as may be in reply to the rebutting evidence.

(h) Bench Motions. Motions for dismissal or mistrial as well as offers of proof should be made at the bench and out of the hearing of the jury.

1. On July 2nd, 2020 at approximately 1:30 pm there was an automobile accident involving Plaintiff Christine Rivas and Defendant Nadia Ciecko at the intersection of North and Drinkwater Roads in Kensington, NH. P Appx. III at 118-121; T 183.

2. Plaintiff alleged that she sustained injuries as a result of the accident and sued the Defendant for negligence. P. Appx. I at 4-5. 3. Plaintiff’s claimed injuries from the motor vehicle accident included traumatic brain injury (“TBI”), headaches and neck pain. T 71, 136, 451. 4. Defendant Nadia Ciecko denied negligence and asserted the defense of comparative fault. P. Appx. I at 8-9.

5. On October 9th, 2021, Plaintiff Christine Rivas attended a party for her sister-in- law’s birthday. T 138, 139.

6. While at the party, Plaintiff made and consumed several mixed drinks with 100 proof alcohol. T 85, 139.

7. While leaving the party, Plaintiff fell down a set of exterior stairs. T 86. 8. Plaintiff was driven to the Emergency Room at Exeter Hospital and diagnosed with a broken leg. T 92.

9. Medical staff at Exeter Hospital documented that Plaintiff was “obviously intoxicated.” T 143, 374.

10. Exeter Hospital performed a blood draw and measured a plasma alcohol volume concentration of 118 mg/dl. T 363.

11. The defense called as an expert witness Dr. Michael Whitekus, who has a PhD and is board certified in toxicology. T 351-352. 12. Dr. Whitekus opined that Plaintiff’s BAC was between a 0.122 to a 0.152 at the time of her fall. T 363.

13. Plaintiff argued that Defendant Nadia Ciecko’s was legally at fault for her October 9th 2021 fall based on a theory that either the July 2nd 2020 motor vehicle accident or the medications Plaintiff took to manage symptoms stemming from the motor vehicle accident resulted in syncope (fainting), which she asserted manifested as she was descending the stairway leaving the party. T 13-14, 86-87. 14. The jury held that Defendant Nadia Ciecko was legally at fault for the July 2nd, 2020 accident and awarded damages in the amount of $ 28, 119.46. P. Appx. I at 156.

15. The jury found that Defendant Nadia Ciecko was not legally at fault for the injuries Plaintiff sustained due to her fall on October 9th, 2021. Id. 16. Plaintiff filed a motion to set aside the verdict, asking the Court to hold a new trial on the issue of damages only. P. Appx. I at 160-176. The defense objected.

Appx. I at 160, 262-265.

Plaintiff fell down an exterior staircase while leaving a party. T 5, 13-14. The Plaintiff’s claim put the issues of causation and comparative fault squarely before the trier of fact. T 710-713. The evidence indicated that Plaintiff was intoxicated at the time of the second accident, with a BAC level between 0.122-0.152 at the time of her fall, well above the legal limit of. 08 where impairment is presumed in motor vehicle cases. T 363, RSA 265-A:11. As causation and comparative fault were issues for the trier of fact to resolve, evidence pertaining to Plaintiff’s intoxication prior to the second accident was relevant and admissible. Dr. Whitekus was a qualified expert witness, and the Trial Court properly allowed the jury to hear his testimony which related to issues in factual dispute. II. The Trial Court exercised its discretion under Rule of Evidence 611, at the request of the Plaintiff, to limit defense cross-examination of Plaintiff’s expert to the scope of direct. After sustaining the Plaintiff’s objection to the defense cross- examination, the Trial Court could not then in fairness allow Plaintiff to exceed the scope of direct in cross-examining the defense expert over defense counsel’s identical objection. Even had the Court allowed the cross-examination, there is nothing in the record which supports the Plaintiff’s claim that the testimony would have rebutted an issue in dispute.

III. The Trial Court did not err in denying the Plaintiff’s motion to strike a portion of the defense closing argument or issue a curative instruction, because the Plaintiff failed to meet the evidentiary showing required in Kerr v. Allard 130 N.H. 247 (1987) to establish a prima facie case that defense counsel’s closing argument relating to missing witnesses was inappropriate.

IV. The Trial Court did not err in denying the Plaintiff’s motion to set aside the verdict because the Plaintiff failed to articulate any legal basis as to why the verdict was unreasonable under the legal standard enunciated in Broderick v. Watts, 136 N.H. 153, 162 (1992).

The Trial Court has broad discretion to determine the admissibility of evidence, and the Appellant bears the burden of demonstrating an unsustainable exercise of discretion. State v. Milton, 169 N.H. 431, 435 (2016). The same standard applies in evaluating a Trial Court’s denial of a motion to set aside a verdict. Thomas v. Finger 144 N.H. 500, 503 (1999). As the Trial Court “is in the best position” to gauge the impact of closing argument, a trial court’s decision to decline to give a curative instruction and assessment of whether closing argument was improper is also governed by the unsustainable exercise of discretion standard. State v. DeCosta, 146 N.H. 405, 415 (2001).

To meet her burden of demonstrating that the Trial Court’s rulings were unsustainable exercises of discretion, the Appellant must show that “the trial court’s ruling was clearly untenable or unreasonable to the prejudice” of her case. Milton 169 N.H. at 435. On appeal, this Court will “determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made.” State v. Letarte, 169 N.H. 455, 461 (2016). The Court’s task “is not to determine whether we would have found differently, but is only to determine whether a reasonable person could have reached the same decision as the trial court on the basis of the evidence before it.” Id.

Under the New Hampshire Rules of Evidence, all relevant evidence is admissible. N.H. Rules of Evidence 402. An expert may testify to an opinion when doing so assists the trier of fact in understanding the evidence or determining a fact at issue. N.H. Rules of Evidence 702. Rule 702 is to be interpreted liberally in favor of the admissibility of expert testimony. Mosciki v. Leno 173 N.H. 121, 125 (2020). Plaintiff’s theory of liability was that the Defendant was responsible not just for injuries Plaintiff sustained as the result of the July 2020 motor vehicle accident, but also for Plaintiff’s injuries that resulted from an incident approximately fifteen months later when she fell down the stairs leaving a party. T 13. Plaintiff therefore assumed the burden of proving that the Defendant’s conduct “caused or contributed to cause the harm” that resulted from the October 2021 fall. Estate of Joshua T. v. State 150 N.H. 405, 408 (2003). Plaintiff attempted to meet that burden by arguing that the Plaintiff fainted at the party while going down the exterior staircase, and attributed the fainting to neurological injuries she asserted were the result of the July 2020 motor vehicle accident. T 13. Problematic for the Plaintiff’s theory were facts which showed that, prior to stumbling on the staircase, the Plaintiff had mixed and consumed several alcoholic drinks using 100 proof rum. T 139. Exeter Hospital staff, who treated Plaintiff on the night of the second accident, noted in their medical records that Plaintiff was “obviously intoxicated.” T 143. Nadia Ciecko therefore contested causation and asserted the defense of comparative fault. RSA 507-7:d. “[T]he applicability of the doctrine of comparative fault is triggered by a plaintiff’s negligence…A plaintiff’s negligence involves a breach of the duty to care for oneself.” Broughton v. Proulx 152 N.H. 549, 558 (2005) [internal citations omitted]. As the issues of causation and comparative fault were in dispute, the jury was required to consider the extent of the legal fault of both the Plaintiff and the Defendant. T 712. The Plaintiff does not in this appeal challenge the applicability of the comparative fault statute or claim that the Trial Court’s jury instructions on either causation or comparative fault were in error. T 710-713. The defense assumed the burden of introducing evidence that the Plaintiff failed to exercise due care and that her failure to do so was a substantial cause in bringing about her injury, but the defense was not required to establish that the Plaintiff’s conduct was the sole cause of her injuries. T 712. As the Trial Court noted, evidence relating to the Plaintiff’s alcohol consumption and intoxication prior to the second accident has clear relevance to the defense relating to both the issues of causation and comparative fault. P. Appx. I at 148. Critically, Plaintiff’s expert, Dr. Warriner acknowledged that alcohol was also a factor in Plaintiff’s fall, highlighting the relevance of the evidence. T 542:23-543:9. The testimony of Dr. Whitekus was therefore relevant and the Trial Court correctly denied the Plaintiff’s motion to preclude him.

The Plaintiff cites to cases dealing with the law of negligent homicide and dram shop liability to argue that “in cases where it is alleged that alcohol contributed to cause an injury, it is not enough to show that the Plaintiff or the Defendant was intoxicated. There must be a causal link between the intoxication and the claimed injury.” P. B. 20.

Those cases do not apply to a negligence case; as the Trial Court instructed, “intoxication doesn’t excuse a person’s obligation to exercise due care” and a jury may consider intoxication in assessing negligence. T 713. Further none of the cases Plaintiff cites stand for the proposition that evidence of intoxication is inadmissible; rather, the evidence is necessary as part of the evidentiary foundation the proponent needs to establish the existence of the casual link. In other words, even if “it is not enough” to show that Plaintiff or Defendant is intoxicated, the facts relating to intoxication are still relevant for the jury to consider whether the proponent has established the existence of a casual link.

For example, in State v. Wong 125 N.H. 610 (1984), which the Plaintiff relies on, the Court did not place any restrictions on the State’s ability to introduce evidence of intoxication in a negligent homicide prosecution; it simply held that such evidence, in and of itself, did not meet the elements of RSA 630:3 (II). Wong at 620. Wong does not support excluding evidence of alcohol consumption absent proof that intoxication resulted in the causation of a deadly accident; it’s the jury’s prerogative to determine the extent to which intoxication evidence does or does not support the State’s theory of liability. Wong at 624. Nor do the other cases the Plaintiff cites in her brief support the proposition that the Court should limit evidence of intoxication such as BAC levels. Currier v. Newport Lodge No. 1236, 589 F.3d Supp 210, 224 (D.N.H. 2022) does hold that BAC alone is insufficient to establish dram shop liability, but does not indicate the evidence is inadmissible; rather, the BAC evidence is admissible in combination with other evidence to create an issue of fact as to whether a dram shop is liable for overserving. Id at 227-228.

Similarly, the Plaintiff cites to cases which hold that intoxication is not a bar to recovery. P. B. 21. That is a “straw man” argument, as the defense has never taken the position that intoxication, in and of itself, presents an absolute bar for Plaintiff to recover damages; rather, the defense has argued that intoxication is a relevant factor in assessing causation and comparative fault under the facts of this particular case. Plaintiff cites to a Pennsylvania Superior Court case, Kriner v. McDonald, 223 Pa. Super 531 (1973) for the proposition that evidence of intoxication is inadmissible to establish negligence. P. B 21. Under Pennsylvania law, evidence of alcohol use, standing alone, is insufficient to establish negligence; the Pennsylvania rule is that “no reference should be made to a pedestrian’s use of alcohol unless there is evidence of intoxication or copious drinking on the part of the pedestrian….evidence that an injured person was staggering or had liquor on his breath gives support to such an inference.” Kriner at 533 [emphasis added]; see also Grenier v. Volkswagenwerk Aktiengeselleschaft 540 F.2d 85, 89 (3rd. Cir. 1976) (explaining Pennsylvania law on the admissibility of alcohol consumption evidence). Although a New Hampshire Court has no obligation to follow Pennsylvania law, even if the Court does find the Pennsylvania cases persuasive the defense evidence in this case would have still been admissible under the Pennsylvania standard. Dr. Whitekus, who has a PhD and is board certified in toxicology, testified that Plaintiff’s BAC was between a 0.122 to a 0.152 at the time of her fall. T 363:1-7. Such a BAC level is well-above the. 08 legal limit where there is a presumption that an individual is too impaired to drive. RSA 265-A:11 (I) (BAC above. 08 is prima facie evidence of an individual being impaired by alcohol). Dr. Whitekus calculated BAC using a methodology that this Court has previously deemed to be reliable. P. Appx. I at 150; State v. Lavoie 152 N.H. 542, 546 (2005). Dr. Whitekus was therefore able to opine that Plaintiff was “intoxicated, ” not just that she had consumed alcohol, which would make his testimony admissible under the Pennsylvania standard.

The Plaintiff’s position appears to be that the Plaintiff should be allowed to assert a casual link between her medical condition and the October 2021 fall but that the defense should be precluding from presenting any contrary evidence suggesting alternative reasons for the second accident; such a position is fundamentally unfair and ignores the fact that Plaintiff possesses the burden of proof on causation. Nor did Dr. Whitekus rely on an impermissible “correlation” argument, as the Plaintiff asserts. P B. 24. In the first instance, there is no rule of evidence prohibiting correlation evidence and this Court has frequently relied on correlation evidence supplied by expert witnesses. See Bronson v. Hitchcock Clinic, 140 N.H. 798, 803 (1996) (relying on correlation evidence to find that Plaintiff met burden of establishing casual connection sufficient to withstand motion for a directed verdict); State v. Dahood 148 N.H. 723, 728 (2002) (upholding admissibility of Horizontal Gaze Nystagmus evidence because of literature indicating correlation between alcohol consumption and the angle of nystagmus); see also Thrasher v. Bright Hospital LLC 2018 DNH 193 at 7- 8 (finding that defense toxicologist expert opinion that intoxication increased Plaintiff’s risk of fall creates issue of material fact as to extent to which Plaintiff’s conduct contributed to fall injury). The Plaintiff’s objection goes to the weight of the evidence, not it’s admissibility.

Moreover, the Plaintiff mischaracterizes the testimony of Dr. Whitekus. In his expert disclosure report. Dr. Whitekus opined that: “There is a consensus in the scientific literature that acute alcohol consumption is a contributing factor in fall injuries. Studies show that increases blood alcohol concentrations impair judgment, diminish motor coordination, reduce visual acuity, and lengthens reaction time. In the peer-reviewed article entitled ‘’The More you Drink the Harder you Fall..” Taylor documents the alcohol injury dose-response effect for non-vehicle related events…Taylor’s paper indicates that for alcohol consumed within 3 hours prior to an injury event, the odds of a non- motor vehicle injury increase from approximately 2 to 25- fold (compared to a sober individual) when 1 to 10 standard drinks of alcohol are consumed, respectively. Honkanen published a study with the stated objective of estimating the risk of injury from accidental falls related to BAC. This study was prompted in part by prior findings that alcohol severely affects standing steadiness…The conclusions of the author were as follows: was above a 0.10% compared to a sober individual. T 417-422. Dr. Whitekus’s opinion and testimony established that Plaintiff’s high level of obvious intoxication was a potential cause of the second fall, and was therefore relevant evidence that the Trial Court properly allowed the jury to consider as they decided the issues of causation and comparative fault.

After Dr. Whitekus testified on May 1st, the Plaintiff filed a written motion to strike his testimony. Pl. Appx I 153-154. The Plaintiff argued that Dr. Whitekus’s opinion that alcohol consumption was a contributing cause of Plaintiff’s fall down the staircase in October of 2021 was inadmissible, and that evidence relating to Plaintiff’s BAC was not relevant. Id.

“[A]s long as an expert’s testimony rests upon reliable grounds, it should be tested by the adversary process, rather than excluded from jurors’ scrutiny for fear that they will not grasp its complexities or satisfactorily weight its inadequacies.” Moscicki v. Leno, 173 N.H. 121, 125 (2020). The Plaintiff did not object to Dr. Whitekus’s qualifications to opine on BAC levels or the physiological effects of alcohol consumption. T 360. As Dr. Whitekus’s testimony was relevant and admissible for the reasons laid out in preceding section (I), there was no reason for the Trial Court to strike it from the record and the Court properly denied the Plaintiff’s motion. T 621.

Plaintiff argues that the Trial Court erred in restricting his cross-examination of defense expert Dr. Michael Alexander, a neurologist. P. B. at 28. Prior to when the defense called Dr. Alexander, the Plaintiff introduced expert evidence through a physiatrist, Dr. Bruce Myers. T 302. Dr. Myers had provided expert reports prior to trial which opined that (1) the June 2020 motor vehicle accident resulted in Plaintiff’s experiencing exacerbated migraines, and (2) that the medication propranolol, which Plaintiff took to manage these migraines, combined with alcohol, caused her syncope (loss of consciousness) that resulted in her falling down the staircase in October of 2021.

Dr. Warriner, who testified that the second accident was caused by TBI symptoms. T 487-88.

In response to the Plaintiff’s changed strategy the defense made its own strategic decision to limit the testimony of Dr. Alexander to the question of whether the July motor vehicle accident had caused a TBI. P. Appx I at 214. The defense did not ask Dr. Alexander any questions on direct as to his opinion as to the cause of Plaintiff’s migraines. On cross-examination, Plaintiff’s counsel asked the following question: Q: And her migraines, in particular, you would attribute to the whiplash injury, right? T 585.

Defense counsel objected, citing the Court’s position in its prior ruling that cross be limited to the scope of direct (because Dr. Alexander was not asked about migraines in his direct exam). T 585-586. The Court sustained the ruling under the law of the case doctrine. T 586. The law of the case doctrine applies to rules of law announced at earlier stages of an ongoing case. Taylor v. Nutting 133 N.H. 451, 456 (1990). The Trial Court has wide discretion to decide on the scope of cross-examination, including the right to limit cross-examination with respect to matters not testified to on direct examination. New Hampshire Rule of Evidence 611 (b). Once the Trial Court made its ruling restricting defense counsel’s ability to cross-examine Dr. Myers, it would have been patently unfair to apply different rules to Plaintiff’s counsel and allow him to cross- examine Dr. Alexander to matters outside the scope of direct. Moreover, even if Plaintiff had been allowed to cross-examine Dr. Alexander, it would not have affected the outcome of the case. Plaintiff is simply incorrect in his statement that “Dr. Alexander agreed with Dr. Warriner’s conclusion that the crash exacerbated the migraines…” P. B. at 28. Dr. Alexander opined in his expert report that Plaintiff’s “headache phenomenology is either never or too vaguely described to reach a conclusion about an effect of the 2020 accident on her chronic headaches. Whether migraine without aura, or chronic migraine or tension headaches or a mixture, she has had headaches, chronic daily headaches for periods of time, with intermittent treatment throughout the 9 years of available documentation. She had no head trauma in the MVC. There was no convincing evidence for even a cervical strain. She reports a long history of headaches. I cannot conclude anything more.” P. Appx I at 216. There is nothing in the record to support the Plaintiff’s speculative hypothesis that Dr. Alexander would have corroborated Dr. Warriner if Plaintiff had been allowed additional cross- examination. While the Plaintiff cites broadly to Dr. Alexander’s deposition testimony, in his deposition Dr. Alexander testified only that Plaintiff “has a long history of mixed headaches, probably…mixed tension and migraine headaches, and they have been, by her report, consistently worse since the injury in 2020.” P. Appx I 67-68 [emphasis added]. Dr. Alexander clarified that “the problem with migraine, of course, there’s no test for it. All we know is what she tells us. By what she tells us, yes, [the MVA] did exacerbate it.” P. Appx I at 194. The testimony makes it clear that Dr. Alexander would only have agreed that, according to Plaintiff’s self-reporting, her migraines had worsened since the accident, not that he concurred with Dr. Warriner’s conclusions. Moreover, if he had provided any additional testimony on the point, Dr. Alexander also would have made it clear that he did not believe the migraines played any role in the second accident, which he attributed to her alcohol consumption. P. Appx I at 195-199.

Plaintiff argued that she should have been allowed to call Dr. Alexander back to the stand as a rebuttal witness. P. B. at 34. “The admissibility of evidence in rebuttal is committed to the sound discretion of the trial judge, and the Court’s ruling will not be disturbed unless there has been a clear abuse of discretion.” Roy v. Perrin, 122 N.H. 88, 95 (1982). Prior to calling Dr. Alexander, the defense requested that the Plaintiff confirm that they had rested and did not intend to call any additional witnesses in their case in chief. T 545-547. After Dr. Alexander’s testimony for the defense, Plaintiff’s counsel stated “I would like to call him as my witness. I haven’t rested yet.” T 591. The Court pointed out that he stated on the record that he did not intend to call any additional witnesses. T 591. Superior Court Rule 36 (g) requires Plaintiff to “put in his or her whole case before resting” and states that Plaintiff “shall not, except by permission of the Court for good cause shown, be permitted to put in any evidence except such that may be strictly rebutting.” Plaintiff argued that “good cause” was their inability to anticipate the Court’s ruling limiting the scope of cross-examination; however, Plaintiff’s counsel should have been aware that scope of cross-examination of the defense expert would be limited to any opinions expressed in direct, based on the Court sustaining his objection to expansion of the scope of cross-examination. T 337. Under the abuse of discretion standard, the question is whether a reasonable person could have reached the decision as the trial court based on the state of the evidence before it. Taylor v. Gagne 121 N.H. 948, 949 (1981). As a reasonable person could have reached the same conclusion as the trial court, there was no error in denying the Plaintiff’s request.

Plaintiff alleges that the Trial Court “erred in precluding the plaintiff from submitting into evidence a passage from her deposition.” P. B. at 36. The Plaintiff does not identify the specific passage in her deposition that she believes should have been read into evidence, but summarizes it, asserting that “Ms. Rivas stated that her daughter was with her mother so that her mother could help with school. This collision happened on July 2, 2020, when school was not in session and when the COVID-19 pandemic was in full swing.” P.B. at 36.

There was no error by the Trial Court. In her direct examination, Plaintiff testified that she “sent my daughter to live with her grandmother…because I couldn’t take care of her anymore, physically” after the accident. T 107. On cross-examination, defense counsel had the following exchange with Plaintiff on that point: Q: Isn’t it true that at the time of the automobile accident your daughter was already living with her grandmother?

A: No, ma’am. T 149.

Defense counsel than impeached Plaintiff with a statement she had made at her deposition, when she had testified that at the time of the accident her daughter was living at Plaintiff’s mother’s house in Salisbury. T 150. That culminated in the following exchange: Q I don’t think there’s any room for negotiation on this one, so I want to go back. Same page, same line. Question “Where was Olivia living?” Answer, “Olivia was at my mother’s house in Salisbury.” Correct?

A: That’s what it says.

Q: Right, because that’s what you said under oath in your deposition, correct?

A: Yes, ma’am.

T 151.

On re-direct, Plaintiff’s counsel elicited that Plaintiff’s daughter was staying in Salisbury to help with school, but that in July of 2020 school was not in session and the COVID pandemic was happening. T 172. That is the exact substance of the deposition testimony that Plaintiff complains he was unable to present. P. B. at 36. “The admissibility of prior consistent statements for rehabilitative purposes is a matter wholly within the discretion of the trial court, and will not be overturned absent an unsustainable exercise of discretion.” State v. White, 159 N.H. 76, 79 (2009). The Plaintiff must therefore show that the Trial Court’s decision was “clearly untenable or unreasonable to the prejudice of his case.” State v. Lambert 147 N.H. 295, 296 (2001).

Plaintiff lived in Kensington, NH. T 45-46. Her daughter apparently was enrolled in the Salisbury, MA school district at the time of the accident. T 151. Plaintiff on cross admitted that at that time her daughter “was staying with my mom quite a bit for schooling and for all her schooling purposes, her address. And she lives in Salisbury at my mother’s house, where she physically stays most of the time. If she can, is with me.” T 151. Under Rule 106, known as the “doctrine of completeness, ” “ if a party presents a portion of a recorded statement, then the adverse party is entitled to the introduction of any other part of the statement that in fairness “ought to be considered at the same time.” N.H. Rule of Evidence 106 (a). The purpose of the rule is “to prevent the misleading impression given by an out-of-context presentation from taking root.” State v. Keith 136 N.H. 572, 574 (1992). There was nothing misleading about the defense cross-examination that required introduction of the passage the Plaintiff attempted to elicit. The Plaintiff made a claim in her direct testimony about her daughter’s living situation – stating that she had to send her daughter to her grandmother’s home Salisbury because of the accident -- that was contradicted by the earlier statement under oath at her deposition that her daughter was living there before the accident. The fact that the Salisbury school was in not session in July of 2020 does nothing to rehabilitate Plaintiff; the issue in dispute was the truthfulness of the Plaintiff’s testimony on that point in her direct examination. Moreover, the passage the Plaintiff indicates they should have been allowed to enter into evidence is redundant with testimony Plaintiff was able to give on re-direct. T 173. Nor does Rule 801 (d) (1) (B) apply. That rule exempts from hearsay prior consistent statements of a witness offered to “rebut an express or implied charge that the defendant recently fabricated.” Id. As stated in the above paragraph, the fabrication in this instance was the claim on direct examination that Plaintiff’s daughter only moved to Salisbury after the accident; the statement in the deposition that school was not in session at the time of the accident does not rebut the charge of fabrication, since the deposition testimony – and Plaintiff’s own subsequent trial testimony on cross – was unequivocal that her daughter had actually lived in Salisbury prior to the accident. T 150-151.

The general rule in New Hampshire is that “either party may comment on an opponent’s failure to call a witness, when the record indicates that the witness could have given relevant testimony and was apparently in the jurisdiction and available to call.” Kerr v. Allard, 130 N.H. 247, 248 (1987). However, if “the party against whom the argument would be directed can expeditiously show that the absent witness would not have testified unfavorable to him” than the trial judge “may properly forbid comment on the witnesses’ absence unless the party wishing to make the comment proffers a portion of the deposition indicating that the witness probably would have been unfavorable to the other side.” Id at 249. Defense counsel, in her closing argument, argued that the Plaintiff had failed to call a number of witnesses, including Dr. Robertson, who had been Plaintiff’s treating neurologist since 2012, or the emergency room doctor, or Plaintiff’s primary care physician or mental health counselors. T 637-638. Defense counsel further pointed out that at the party where the second accident occurred, “Her husband was there. Chris’ family was there. None of them came. None of them came and told you what happened. She wants you to believe her testimony. We don’t have any witnesses who testified about it. She herself does not know how she fell.” T 642. Plaintiff’s counsel did not make any contemporaneous objections, instead waiting to raise their objection at the end of the closing argument. T 653-656. However, while Plaintiff’s counsel cited to Kerr, he did not make – or even attempt to make -- an individualized showing that any of those three witnesses would have provided favorable testimony. Id. Defense counsel pointed that out, and so the Trial Court properly denied the Plaintiff’s motion. T 657.

The Plaintiff argues that the Trial Court erred in denying her motion to set aside the verdict. P.B. at 44. To prevail on a motion to set aside the verdict, the Plaintiff bears the burden of establishing that the jury verdict was either (1) conclusively against the weight of the evidence or (2) the result of mistake, partiality, or corruption. Broderick v. Watts, 136 N.H. 153, 162 (1992).

“[T]he guiding principle behind all cases on setting aside verdicts, regardless of the specific language any individual case might employ, is that the jury verdict must be an unreasonable one before the judge may set it aside.” Panas v. Harakis 129 N.H. 591, 603 (1987). When the basis of a motion to set aside the verdict is “mistake, partiality, or corruption” then the proponent bears the burden of establishing “that the jury made an affirmative mistake, as for example, by rendering internally inconsistent findings that manifest legal error. Similarly, the fact that the jury had been bribed would warrant setting aside a verdict on the basis of corruption. The crucial distinction is that in a motion to set aside a verdict because of mistake, partiality or corruption, the moving party must demonstrate the mistake, partiality or corruption as grounds independent of a verdict conclusively against the weight of the evidence.” Id. The motion that was filed in the Trial Court alleged that the verdict should be set side because the Court had (a) improperly limited the cross-examination of Dr. Alexander, (b) improperly permitted Dr. Whitekus to testify, and (c) denied the Plaintiff’s motion to strike a portion of the closing argument. P. Appx I at 160-176. These are the exact same arguments that the Plaintiff has raised on appeal, and so the defense incorporates by reference the arguments made in sections I, III and VI of this brief, which address the substantive merits of Plaintiff’s claims. The Plaintiff did not advance any arguments that the verdict was against the weight of the evidence, and did not articulate any “mistake, partiality or corruption” by the jury that allegedly tainted the proceeding. The Trial Court therefore did not err in denying the Plaintiff’s motion to set aside the verdict.

For the foregoing reasons, the Appellee respectfully requests that this Honorable Court affirm the decisions of the Trial Court.

In the event that the Court determines that oral argument would assist in deciding this appeal, Appellee requests 15 minutes for argument and designates David Betancourt to present it.