Baxter v. Temple

• Citation: 157 N.H. 280,949 A.2d 167
• Decision Date: 20 May 2008
• Docket Number: No. 2007–102.,2007–102.
• Court: Supreme Court of New Hampshire
• Parties: Shelby BAXTER, by her Mother and Next Friend, Patricia Baxter v. Charles TEMPLE and another.

157 N.H. 280

949 A.2d 167

Shelby BAXTER, by her Mother and Next Friend, Patricia Baxter

v.Charles TEMPLE and another.

No. 2007–102.

Supreme Court of New Hampshire.

Argued: Jan. 31, 2008.

Opinion Issued: May 20, 2008.

Seufert Professional Association, of Franklin (Christopher J. Seufert on the brief), and Thornton & Naumes, LLP, of Boston, Massachusetts (Neil T. Leifer and Andrew S. Wainwright on the brief, and Mr. Leifer orally), for the plaintiff.

Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Doreen F. Connor on the brief, and Mr. Burt orally), for the defendants.

Hall, Stewart & Murphy, P.A., of Manchester (Francis G. Murphy on the brief and orally), for the American Academy of Clinical Neuropsychology, as amicus curiae.

DUGGAN, J.

The minor plaintiff, Shelby Baxter, by and through her mother and next friend, Patricia Baxter, appeals the exclusion by the Trial Court (Hollman, J.) of two expert witnesses in her negligence action against the defendants, Charles and Kelly Temple. The exclusion of these witnesses resulted in dismissal of the plaintiff's case. We reverse in part, vacate in part, and remand.

I. Factual and Procedural Background

The record supports the following relevant facts. Between May 11, 1995, and May 11, 1996, the plaintiff and her parents resided in an apartment in Concord that they rented from the defendants. In early September 1995, the plaintiff, who was almost fourteen months old at the time, was tested for lead paint poisoning. The test results revealed an elevated blood lead level of thirty-six micrograms per deciliter. On September 26, 1995, the New Hampshire Department of Health and Human Services investigated the premises and found substantial evidence of lead paint contamination.

The plaintiff subsequently filed this action, alleging, among other things, that the defendants failed to warn her of the presence and dangers of the lead paint. She contended that her exposure to and ingestion of the high levels of lead paint present in the apartment caused her to suffer from "lead paint poisoning and the effects thereof including but not limited to: reduced life expectancy, brain damage, past and future pain and suffering, and loss of expected earnings capacity...."

To prove her case, the plaintiff designated three expert witnesses: (1) Barbara Bruno–Golden, Ed.D., a neuropsychologist who evaluated the plaintiff by administering a series of neuropsychological tests to determine her cognitive and behavioral status; (2) William Bithoney, M.D., a pediatrician who concluded that the plaintiff suffers from organic brain syndrome

caused by lead poisoning ; and (3) Arthur Kaufman, M.Ed., a vocational rehabilitation specialist. On the day of trial, the defendants moved in limine to exclude the testimony of Dr. Bruno–Golden as unreliable under New Hampshire Rule of Evidence 702, RSA 516:29–a (2007), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Thereafter, the trial court held a six-day Daubert hearing. The trial court heard testimony from: (1) Dr. Bruno–Golden; (2) Sandra J. Shaheen, Ph.D., a pediatric neuropsychologist introduced by the plaintiff to support Dr. BrunoGolden's testimony; and (3) David Faust, Ph.D., a psychologist presented by the defendants to criticize Dr. Bruno–Golden's testimony. The trial court, in a lengthy order, subsequently ruled that Dr. Bruno–Golden's testimony was inadmissible.

The plaintiff moved for reconsideration, requesting that the trial court allow Dr. Bruno–Golden to testify to her administration and scoring of three specific tests—two tests measuring IQ and one test measuring attention—that the plaintiff alleged were "not subject to the methodological objections raised by the defendants." The defendants objected, arguing that these three tests could not properly and reliably be extracted from the comprehensive battery of tests that Dr. Bruno–Golden administered and, further, that such limited testimony would "confuse the jury, not assist it." The trial court agreed with the defendants and denied the plaintiff's motion.

Subsequently, the defendants moved in limine to exclude the testimony of Dr. Bithoney and Mr. Kaufman, arguing that both experts' opinions were unreliable because they were "based almost exclusively on Dr. Bruno–Golden's unreliable findings." The plaintiff conceded that Mr. Kaufman was precluded from testifying at trial, but contended that Dr. Bithoney's testimony was admissible because it was based upon sufficient information independent from Dr. Bruno–Golden's reports. The trial court found that Dr. Bithoney's testimony was unreliable and inadmissible. Because the plaintiff no longer had an expert to prove her case, the trial court concluded that the plaintiff could not proceed and dismissed the case.

On appeal, the plaintiff contends that the trial court erred by: (1) excluding Dr. Bruno–Golden's testimony as unreliable; (2) not permitting Dr. Bruno–Golden to testify to the results of the two IQ tests and the attention test; and (3) excluding Dr. Bithoney's testimony. We address only the first argument because we agree that the trial court erred in excluding Dr. BrunoGolden's testimony as unreliable.

II. Standards for Admissibility of Expert Testimony

Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

N.H. R. Ev. 702. Thus, expert testimony must rise to a threshold level of reliability to be admissible. Baker Valley Lumber v. Ingersoll–Rand, 148 N.H. 609, 613, 813 A.2d 409 (2002).

In Baker Valley, we applied the Daubert framework for evaluating the reliability of expert testimony to Rule 702. Id. at 614, 813 A.2d 409. Subsequently, in 2004, the legislature enacted RSA 516:29–a, which 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.

"Section II of RSA 516:29–a unambiguously codifies the four Daubert factors we applied in Baker Valley, and section I(b) codifies Daubert's requirement that the court preliminarily assess ‘whether the reasoning or methodology underlying the testimony is scientifically valid.’ " State v. Langill, 157 N.H. 77, ––––, 945 A.2d 1 (2008) (quoting Daubert, 509 U.S. at 592–93, 113 S.Ct. 2786; citation omitted). "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, 148 N.H. at 616, 813 A.2d 409 (citation omitted). The inquiry is a flexible one, and the focus "must be solely on the principles and methodology, not on the conclusions that they generate." State v. Dahood, 148 N.H. 723, 727, 814 A.2d 159 (2002) (quotation omitted). Moreover, the list of Daubert factors are "meant to be helpful, not definitive. Indeed, those factors do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged."

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Thus, one or more of these factors is relevant only "if appropriate to the circumstances." RSA 516:29–a, II(a).

"Importantly, the Daubert test does not stand for the proposition that scientific knowledge must be absolute or irrefutable." Dahood, 148 N.H. at 727, 814 A.2d 159. To be sure, "it would be unreasonable to conclude that the subject of scientific testimony must be known to a certainty; arguably, there are no certainties in science." Id. (quotation omitted). Rather, "the proposed scientific testimony must be supported by appropriate validation—i.e., good grounds, based on what is known." Id. (quotation omitted). "[A]s 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."

Langill, 157 N.H. at ––––, 945 A.2d 1 (quotation omitted). Thus, "[i]f [the evidence] is of aid to a judge or jury, its deficiencies or weaknesses are a matter of defense, which affect the weight of the evidence but do not determine its admissibility." Dahood, 148 N.H. at 727, 814 A.2d 159 (citation omitted).

In Langill, we interpreted RSA 516:29–a, I(c) as requiring the trial court to also "examine whether a witness has in actuality reliably applied the methodology to the facts of the case." Langill, 157 N.H. at ––––, 945 A.2d 1. However, for the testimony to be inadmissible, the flaws in application must so infect the procedure as to skew the methodology itself. Id. Otherwise, "the adversary process is available to highlight the errors and permit the fact-finder to assess the weight and credibility of the expert's conclusions." Id. (citation omitted).

III. Admissibility of Dr. Bruno–Golden's Testimony

The trial court found that Dr. Bruno–Golden used the Boston Process Approach (BPA) in evaluating the plaintiff. It found that "the Boston Process...