Stachulski v. Apple New Eng., LLC, 2016-0692

• Decision Date: 18 July 2018
• Docket Number: No. 2016-0692,2016-0692
• Citation: 171 N.H. 158,191 A.3d 1231
• Parties: Brandon STACHULSKI v. APPLE NEW ENGLAND, LLC
• Court: New Hampshire Supreme Court

171 N.H. 158

191 A.3d 1231

Brandon STACHULSKI

v.APPLE NEW ENGLAND, LLC

No. 2016-0692

Supreme Court of New Hampshire.

Argued: November 14, 2017

Opinion Issued: July 18, 2018

Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on the brief and orally), for the plaintiff.

Bonner Kiernan Trebach & Crociata, LLP, of Boston, Massachusetts (Kenneth H. Naide, John A. Kiernan, and Andrew Butz, on the brief, and Mr. Kiernan orally), for the defendant.

HANTZ MARCONI, J.

The plaintiff, Brandon Stachulski, brought suit against the defendant, Apple New England, LLC, under a theory of strict products liability alleging that he contracted salmonella by eating a hamburger at the defendant's restaurant, Applebee's Neighborhood Bar and Grill, where he dined with his wife and brother-in-law in February 2014. The defendant disputed the allegation that the hamburger was the source of the plaintiff's salmonella illness and asserted that the plaintiff's pet lizard or other food sources could just as likely be the cause of his illness. Following a three-day trial in Superior Court (Schulman, J.), the jury returned a general verdict in the plaintiff's favor, awarding him $750,000 in damages.

On appeal, the defendant argues that the trial court erred by: (1) admitting unfairly prejudicial evidence; (2) admitting the plaintiff's expert's testimony; (3) submitting the issue of causation to the jury; (4) instructing the jury on awarding hedonic and future pain and suffering damages; (5) permitting the plaintiff's counsel to make certain statements during his opening and closing arguments; and (6) denying its request for remittitur. We affirm.

The defendant first argues that the trial court erred in admitting unfairly prejudicial testimony. Prior to trial, the defendant moved in limine to exclude the plaintiff's testimony about his belated offer to test the lizard for salmonella. We construe the defendant's argument as being a challenge to the trial court's denial of its motion in limine. "Because the trial court ruled upon the admissibility of the challenged evidence before trial, we consider only the offers of proof presented at the pretrial hearing." State v. Gordon, 161 N.H. 410, 414, 13 A.3d 201 (2011).

As the appealing party, the defendant has the burden of providing a record sufficient to decide its issues on appeal. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004). Although the defendant provided its motion in limine to exclude this testimony, it has failed to provide any evidence regarding the basis for the trial court's denial. Absent a complete record, we must assume that the evidence was sufficient to support the result reached by the trial court. See id. Thus, we cannot conclude that it was an unsustainable exercise of discretion for the trial court to deny the defendant's motion in limine.

The defendant next argues that the trial court committed an unsustainable exercise of discretion in allowing the plaintiff's expert, Seth D. Rosenbaum, M.D., to testify. The defendant contends that Dr. Rosenbaum's testimony was not "based upon sufficient facts" or "the product of reliable principles and methods," and therefore "resulted from failure to apply accepted principles and methods reliably to adequate facts." Prior to trial, the defendant moved in limine to exclude Rosenbaum's testimony and the court held a hearing to determine its admissibility. Because we construe the defendant's appellate argument regarding the admissibility of Rosenbaum's testimony as a challenge to the trial court's denial of its motion in limine, "we consider only the offers of proof presented at the pretrial hearing." Gordon, 161 N.H. at 414, 13 A.3d 201.

Rule 702 authorizes the trial court to admit expert witness testimony. See N.H. R. Ev. 702. To be admissible, however, expert testimony must rise to a threshold level of reliability. Osman v. Lin, 169 N.H. 329, 335, 147 A.3d 864 (2016). To determine the reliability of expert testimony, the trial court must comply with RSA 516:29-a (2007). Id. Portions of RSA 516:29-a codify principles outlined by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Id.; see also Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. 609, 614, 813 A.2d 409 (2002) (applying the Daubert framework to evaluate the reliability of expert testimony under Rule 702 ).

RSA 516:29-a provides:

I. A witness shall not be allowed to offer expert testimony unless the court finds:

(a) Such testimony is based upon sufficient facts or data;

(b) Such testimony is the product of reliable principles and methods; and

(c) The witness has applied the principles and methods reliably to the facts of the case.

II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:

(1) Have been or can be tested;

(2) Have been subjected to peer review and publication;

(3) Have a known or potential rate of error; and (4) Are generally accepted in the appropriate scientific literature.

(b) In making its findings, the court may consider other factors specific to the proffered testimony.

"The trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded an expert's testimony." Baker Valley Lumber, 148 N.H. at 616, 813 A.2d 409. Although the proponent of an expert witness bears the burden of proving the admissibility of the expert's testimony, see State v. Newman, 148 N.H. 287, 291, 808 A.2d 7 (2002), the burden is not especially onerous because " Rule 702 has been interpreted liberally in favor of the admission of expert testimony." Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006) ; see also Bartlett v. Mutual Pharmaceutical Co., 742 F.Supp.2d 182, 187 (D.N.H. 2010). "Thus, as long as an expert's scientific testimony rests upon good grounds, it should be tested by the adversary process — competing expert testimony and active cross-examination — rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies." Osman, 169 N.H. at 335, 147 A.3d 864 (quotation omitted).

On appeal, we review the trial court's decision to admit Rosenbaum's testimony under our unsustainable exercise of discretion standard. See id. at 336, 147 A.3d 864. "In applying our unsustainable exercise of discretion standard of review, we determine only whether the record establishes an objective basis sufficient to sustain the discretionary judgment made." Id. (quotation omitted). "Under our unsustainable exercise of discretion standard, our task is not to determine whether we would have found differently, but 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. (quotation and brackets omitted).

We first review whether Rosenbaum's testimony was "based upon sufficient facts or data." RSA 516:29-a, I(a). Rosenbaum relied upon the following facts when formulating his opinion, to a reasonable degree of medical certainty, that the plaintiff contracted salmonella from the defendant-restaurant's hamburger: (1) the plaintiff's medical records recounted his diagnosis of non-typhodial salmonella, which is typically food-borne; (2) the plaintiff owned a pet lizard, with whom his wife and daughter also had contact, yet neither became ill; (3) the plaintiff's brother-in-law also ate a hamburger at the defendant's restaurant and suffered similar gastrointestinal symptoms; (4) the plaintiff prepared the meals that he and his wife ate from home, yet his wife did not become ill; (5) the plaintiff's wife has celiac disease

, making her more prone to contract salmonella and other infections; and (6) the plaintiff presented symptoms within the six to 72 hour incubation, or "look-back," period for salmonella following his meal at the defendant's restaurant. Based upon the pretrial record before us, including Rosenbaum's deposition and report and the pretrial hearing transcript, we cannot conclude that the court unsustainably exercised its discretion in finding that Rosenbaum's testimony was based upon sufficient facts.

We next review whether Rosenbaum's testimony was the "product of reliable principles and methods," RSA 516:29-a, I(b), and whether he "applied the principles and methods reliably to the facts," RSA 516:29-a, I(c). On appeal, the defendant argues, as it did at the motion in limine hearing, that Rosenbaum failed to lay a proper foundation and exercise the appropriate methodology, and therefore, his opinion was unscientific and should have been excluded. The plaintiff counters that both Rosenbaum and the defendant's expert, Sigal Yawetz, M.D., considered the same facts, but reached different conclusions, and thus Rosenbaum's opinion was scientifically valid.

Before his pretrial deposition, Rosenbaum reviewed the plaintiff's medical records and the depositions of the plaintiff, his wife, and his brother-in-law. During his deposition, Rosenbaum testified about his experience and qualifications as an infectious disease physician and explained the typical symptoms of salmonella. Using his expertise, Rosenbaum discussed and considered the above mentioned facts, eliminated potential causes, and concluded that the hamburger from the defendant's restaurant was, more likely than not, the cause of the plaintiff's salmonella illness. See Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (differential etiology reached "by determining the possible causes for the patient's symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely"); see also Goudreault v. Kleeman, 158 N.H....