Milliken v. Dartmouth-Hitchcock Clinic

• Decision Date: 28 December 2006
• Docket Number: No. 2005–809.,2005–809.
• Citation: 914 A.2d 1226,154 N.H. 662
• Court: New Hampshire Supreme Court
• Parties: John MILLIKEN and another. v. DARTMOUTH–HITCHCOCK CLINIC and another.

154 N.H. 662

914 A.2d 1226

John MILLIKEN and another.

v.DARTMOUTH–HITCHCOCK CLINIC and another.

No. 2005–809.

Supreme Court of New Hampshire.

Argued: Nov. 8, 2006.

Opinion Issued: Dec. 28, 2006.

Van Dorn and Curtiss, PLLC, of Orford (Robin C. Curtiss and Edward M. Van Dorn Jr., on the brief, and Mr. Van Dorn orally), for the plaintiffs.

Orr & Reno, P.A., of Concord (Ronald L. Snow and Emily Gray Rice, on the brief, and Mr. Snow orally), for the defendants.

HICKS, J.

The plaintiffs, John Milliken, individually, and Dianne Milliken, individually, and as next friend of their young son, appeal certain evidentiary rulings of the Superior Court (Houran, J.) made before and during the trial of this medical malpractice case. Specifically, they allege error with regard to the admission of testimony from three of the defendants' expert witnesses. We affirm.

The jury could have found the following. Ms. Milliken was admitted to defendant Dartmouth–Hitchcock Medical Center (DMHC) on March 4, 2000. She was twenty-eight weeks pregnant and suffering from premature preterm rupture of uterine

membranes. Milliken remained hospitalized for the next four weeks at DMHC. On March 29, 2000, Milliken's abdomen became progressively more tender, and Dr. Michele Lauria, a maternal fetal medicine specialist, ordered an amniocentesis which revealed fetal lung maturity and chorioamnionitis, an intrauterine infection. Based upon the amniocentesis results, Lauria ordered that Milliken be given pitocin to induce labor. Lauria's shift then ended and she left the hospital. Milliken's care was assumed by another physician.

Milliken was monitored throughout the night of March 29, 2000, and despite the pitocin

, she never went into active labor. At 7:00 a.m. on March 30, 2000, an emergency caesarean section was recommended. The surgery revealed that the baby's head was constricted by the lower uterus, a rare condition known as Bandl's Ring. The baby was delivered suffering from a deformed and bruised skull, as well as severe brain damage.

The plaintiffs brought suit on March 28, 2003, against DMHC and several physicians, including Lauria, involved in the care of Milliken and her son. Lauria was subsequently dismissed as a defendant. The plaintiffs' complaint alleged, inter alia, failure properly to monitor for infection, failure to recognize a lack of progress in labor, and failure to timely perform a caesarean section

. After a jury trial, a verdict was returned for the defendants.

The issues raised on appeal are whether the trial court erred by allowing Dr. Mary D'Alton and Lauria to testify regarding the timing and cause of the injury and by allowing Dr. Robert Zimmerman, the defendant's expert radiologist, to testify regarding the timing of the injury. We address the testimonies of each witness in turn, applying the correct standard of review: the trial court retains the discretion to admit expert testimony, In the Matter of Letendre & Letendre, 149 N.H. 31, 37, 815 A.2d 938 (2002), and its decision will be reviewed under an unsustainable exercise of discretion standard, McLaughlin v. Fisher Engineering, 150 N.H. 195, 197, 834 A.2d 258 (2003). To show that the trial court's decision was not sustainable, the appealing party must show that the ruling was "clearly untenable or unreasonable to the prejudice of his case." Id. (quotation omitted).

I. Testimony of Mary D'Alton, M.D.

The plaintiffs first argue that D'Alton's testimony on the cause and timing of the baby's injury was inadmissible because: (1) her opinions on these issues were not included in her report in violation of RSA 516:29–b, II (Supp.2006); and (2) she was not qualified to give an opinion on these issues. The defendants argue that the plaintiffs have not preserved these arguments for our review. Alternatively, the defendants argue that even if these issues were preserved, the trial court did not engage in an unsustainable exercise of discretion. As we will not review any issue that was not raised below, State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014 (2003), we first address the preservation issue.

Before trial, the plaintiffs filed a motion in limine to preclude D'Alton from testifying about the timing of the baby's injury, claiming that it lacked the requisite indicia of reliability required by New Hampshire Rule of Evidence 702 (Rule 702 ). In denying this motion, the court reviewed D'Alton's deposition and held that her opinion was sufficiently reliable on the issue of timing. At trial, the plaintiffs objected only once during D'Alton's testimony regarding an issue that they have not appealed. The record does not reflect that any post-trial motions were filed.

"Generally, a [party] must make a specific and contemporaneous objection during trial to preserve an issue for appellate review." Klar v. Mitoulas, 145 N.H. 483, 488, 767 A.2d 401 (2000) (quotation omitted). The burden is on the appealing party to demonstrate that the issues on appeal were raised before the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004). This allows the trial court to consider errors as they occur and remedy them as necessary. State v. Ayer, 150 N.H. 14, 21, 834 A.2d 277 (2003), cert. denied, 541 U.S. 942, 124 S.Ct. 1668, 158 L.Ed.2d 366 (2004). However,

[a] motion in limine is sufficient to preserve an issue for appeal without an objection at trial if the trial court definitively rules on the issue prior to trial. A ruling on a motion in limine is definitive when the court is sufficiently alerted to the issue and the court's written order demonstrates that it considered the issue and ruled on it.

Klar, 145 N.H. at 488–89, 767 A.2d 401 (quotation omitted).

The defendants argue that the plaintiffs' motion in limine "is insufficient as a matter of law to preserve the issues ... on appeal concerning D'Alton's testimony" because "[t]he sole issue raised in plaintiffs' motion concerned the unreliability of D'Alton's opinion on the timing of [the baby's] injury" and therefore no definitive pretrial ruling on the plaintiffs' appeal issues was made by the trial court. We agree that the issues regarding D'Alton's report and her qualifications to testify on the cause of the injury were not preserved by the plaintiffs' motion in limine. However, we hold that the motion did preserve the issue regarding D'Alton's qualifications to testify on the timing of the injury.

The plaintiff's motion in limine argued only that D'Alton's testimony regarding timing would be unreliable. The motion did not argue that the testimony was inadmissible because the defendants failed to comply with the disclosure requirements of RSA 516:29–b (Supp.2006) or Superior Court Rule 35(f). The trial court's order denying the plaintiffs' motion specifically focused upon the issue of reliability and did not discuss disclosure issues. Likewise, neither the plaintiffs' motion nor the court's order addressed D'Alton's testimony about the cause of the injury. Accordingly, we hold that the trial court was not sufficiently alerted to these issues and therefore they were not preserved by the motion in limine. As no objections on these issues were made at trial, we find that they are not preserved for our review.

In contrast, the plaintiffs' motion in limine was sufficient to preserve their argument that D'Alton was not qualified to offer an opinion regarding timing as required by Rule 702 and RSA 516:29–a (Supp.2006). The plaintiffs' motion alleged that D'Alton's testimony was unreliable, in part, because she was only the "[d]efendants' liability expert" who planned to "defer to the ... pediatric neurologist on the timing of [the] injuries." In its order, the trial court cited to Rule 702 and RSA 516:29–a, which deal with expert qualifications, and ruled: "that [D'Alton] defers to pediatric neurologists on the exact timing of [the] injury does not undercut her qualification to offer the opinion at issue here." (Emphasis added.) Accordingly, as this issue was preserved for our review, we address it.

The plaintiffs argue that D'Alton is not qualified to offer an opinion on the timing of the injury because: (1) her specialty is maternal fetal medicine; (2) she has never seen a Bandl's Ring

in a premature infant; and (3) she admitted that she would defer to a pediatric neurologist or radiologist on the timing. We disagree.

Under Rule of Evidence 702, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto. In deciding whether to qualify a witness as an expert, the trial judge must conduct an adequate investigation of the expert's qualifications. Because the trial judge has the opportunity to hear and observe the witness, the decision whether a witness qualifies as an expert is within the trial judge's discretion.

Hodgdon v. Frisbie Mem. Hosp., 147 N.H. 286, 289, 786 A.2d 859 (2001) (quotation, citation, and ellipsis omitted). RSA 516:29–a provides, in pertinent part:

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.

RSA 516:29–a, I.

D'Alton's background includes many years in the field of obstetrics and gynecology. She is a supervisor at her hospital, New York Presbyterian Hospital, and the author of numerous medical chapters, books, and abstracts. In her deposition, D'Alton gave several reasons to support her opinion on timing, referring to her experience in delivering "many, many babies in [her] entire practice and witness[ing] them and see[ing] the results." Having this information before it, the trial court reasonably could have found that she was qualified to give her opinion regarding the injury. "The lack of specialization in a particular medical field does not automatically disqualify a doctor from testifying as an expert...