NEW HAMPSHIRE ASSOCIATION FOR JUSTICE

Volume 32 Fall 2010

In This Issue:
Mismanaged Methodone Treatment: A Prescription for Personal Injury
Kevin F. Dugan, Esq. and Holly B. Haines, Esq.
Admission of Medical Screenings Panel Findings Unconstitutional
Heather V. Menezes, Esq.
Fault Grounds and Defenses in New Hampshire Divorce Actions
Margaret R. Kerouac, Esq.
National Perspective
Robert S. Peck, Esq.
Looxcie Hersay
Martin R. Jenkins, Esq.
Plus Verdicts and Settlements, Superior Court Digest, Member News and more
32TBN - Fall 2010

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Featured A
Art
rticles

Regular Columns

Member News

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NHAJ
2010-11 Board of Governors NEW HAMPSHIRE ASSOCIATION FOR JUSTICE
President
Paul M. Monzione
Wolfeboro
TRIAL BAR NEWS
President-Elect
Maureen Raiche Manning
Manchester
Register Today!
Treasurer
Paul W. Chant Dancing Charity Auction Local Art Wine Tasting
North Conway

Secretary
Barney L. Brannen For the NHAJ
Grafton

Immediate Past President

Annual Holiday Party
Ralph F. Holmes
Manchester
Thursday, December 9, 2010
Governors-at-Large
Wentworth by the Sea
Heather M. Burns
Concord
Ronald J. Caron Editor-in-Chief Thomas R. Watson, Portsmouth
Manchester ISSN 08934789 Managing Editor Jared R. Green, Manchester
40 North Main Street, 2nd Floor Verdicts and Settlements Editor V. Richards Ward, Wolfeboro
Christine M. Craig Concord, NH 03301 Superior Court Digest Editor Benjamin T. King, Concord
Dover (603) 224-7077 Issue Editor Ellen J. Shemitz, Concord
Kevin F. Dugan Production Manager Julian D. Keenan, Concord
Manchester
Trial Bar News is a quarterly publication of the New Hampshire Association for Justice. It is a forum for the
Margaret Roselyn Kerouac bar, bench, and others concerned with the administration of justice. We invite people to submit letters, articles
Manchester and proposals to the Board of Editors for review.
The statements and opinions expressed in the editorials, articles and commentaries are those of the authors and
Michael S. McGrath not necessarily those of the Association. Although Trial Bar News is the official publication of the Association,
Concord opinions expressed should not be construed as an endorsement by the Association of any opinions or facts ex-
pressed therein. Opposing viewpoints are welcome and, if possible, will be published.
Leslie C. Nixon Subscription price is $160 / year to non-members; $60 to members (included in annual dues).
Manchester Advertising rates on request. POSTMASTER: Send address changes to Trial Bar News, 40 North Main St, 2nd
Floor, Concord, NH 03301. Periodical postage paid at Concord, NH.
David P. Slawsky
Manchester
Roger D. Turgeon
Past Presidents
Haverhill
Ralph F. Holmes ........................ 2009-10 Leslie C. Nixon ..................... 1992-93
Andru H. Volinsky
Manchester Scott H. Harris ........................... 2008-09 Mark S. Gearreald ................. 1991-92
County Governors Christopher J. Seufert ................ 2007-08 Gary B. Richardson ............... 1990-91
William D. Woodbury
Belknap Heather M. Burns ...................... 2006-07 R. David DePuy .................... 1989-90
John B. Kenison, Jr. Matthew B. Cox ........................ 2005-06 Lee C. Nyquist ...................... 1988-89
Hillsborough North
Thomas E. Craig........................ 2004-05 Edward W. Stewart, Jr. ......... 1987-88
David M. Gottesman
Hillsborough South Timothy C. Coughlin................. 2003-04 Roger B. Phillips ................... 1986-87
Benjamin T. King Paul A. Maggiotto ..................... 2002-03 John P. Griffith ...................... 1985-86
Merrimack
Timothy C. Coughlin Nicholas D. Brown .................... 2001-02 Bernard J. Robertson ............. 1984-85
Rockingham
Martin R. Jenkins ...................... 2000-01 Edward R. Thornton, Jr. ........ 1983-84
Patrick T. O'Day
Strafford Kevin F. Dugan ......................... 1999-00 John T. Broderick, Jr. ............ 1982-83
AAJ Representatives Finis E. Williams, III ................. 1998-99 Robert L. Hemeon ................. 1981-82
Thomas R. Watson
Governor David M. Gottesman ................. 1997-98 W. Wright Danenbarger ........ 1980-81
Finis E. Williams, III Linda S. Paquette....................... 1996-97 George W. Walker ................ 1978-80
Governor
Thomas R. Watson .................... 1995-96 Harold W. Perkins ................. 1977-78
Christopher J. Seufert
Delegate $*2¶1HLO-U ......................... 1994-95 6WHSKHQ/7REHU«««««
Cover Photograph by Cheryl P. Moore. Kenneth C. Brown ..................... 1993-94
Shaker Village, Canterbury, NH

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President’s Message
by Paul M. Monzione, Esq.

The basic lessons we learned in think about every single day that I
law school, and the ones we learned as practice law: a tort is a wrong for which
kids, are just as important to us today the law will render redress.
as adults in the way we practice law We are concerned as an association
and work to fulfill our mission as an of lawyers that not all of the people
association of lawyers working for jus- who will be in the New Hampshire
tice, as they were back then. We can General Court after this November will
draw on these life experiences to help have learned this very fundamental and
us stay focused on what really matters extremely important lesson, the law
to us as lawyers. renders redress. We should also be con-
I knew this old lawyer in a neigh- cerned that the people coming to the
borhood about two and one-half miles Legislature this year have also learned a
as the crow flies, from the Boston new lesson, namely that any law that
Commons, where I grew up as a kid, serves to hamper or to prevent the law
who from time to time used to share from rendering redress is wrong. PAUL M. MONZIONE, ESQ.
his wisdom with us and teach us pro- The ability of our legal system to PAUL M. MONZIONE of the Law Offices of Paul
found things. He was always dressed in render redress is in immediate peril. M. Monzione in Wolfeboro received his JD in 1981
an old but very nice suit, but he no The lack of funding for the judicial from Southwestern University School of Law. Since then,
both on his own and as a partner of Melvin M. Belli, Sr.
longer went to Court. Instead, he branch of government is causing a (deceased), he has represented hundreds of plaintiffs in a
spent his days in one of the local pubs, number of drastic consequences. It wide range of personal injury actions including tobacco
litigation, toxic torts, product liability cases, pharmaceu-
like a character in a Paul Newman appears that the potential solution may
tical litigation, construction defects, wrongful termina-
movie. I do not know whether either come by focusing on finding a source tion, medical malpractice, human rights civil litigation,
of these things is true, but people who of alternative funding, but politics may the Exxon Valdez oil spill litigation, and litigation
resulting from air disasters including the downing of KL
knew him said he graduated from get in the way of this practical solution. Flight 007 and the Pan Am Flight 103 bombing over
Harvard Law School, and other people There was also a well-motivated effort Lockerby, Scotland. He has also provided legal services
said he had gotten disbarred. In any to compel the funding of our judicial and representation to many entertainment industry
clients. In addition to his principal office in Wolfeboro,
event, it was obvious he was no longer branch through the judicial process he practices in Massachusetts and California.
practicing law. itself as members of our Association
One day he asked me what I want- took the lead in bringing a lawsuit on strengthen our voice and we add more
ed to do when I grew up. “I want to go behalf of certain individuals who have lawyers to share in our efforts to make
to law school,” I told him “and been denied redress from the Courts as sure that the law renders redress to our
become a lawyer.” a direct result of a lack of funding for clients and to the public at large.
“Law school,” he said. “When you our judicial branch of government. Regardless of the outcome of the
go to law school you will study torts. This effort continues and should be recent election, through our efforts to
Do you know what a tort is?” He asked supported by our members and others educate the members of the
me. I had never heard the word before. who understand the importance of Legislature, we can assure that a major-
“I am going to give you your first keeping our courts open and accessible. ity of its members recognize it is the
law school lesson and to teach you As we move forward this year, we government’s responsibility under our
what a tort is, and you should memo- also continue to stay fully focused on Constitution to maintain a means by
rize what I’m telling you so that when one of our most important responsibil- which its citizens are afforded redress.
you go to law school, you will already ities and one that Immediate Past We may not get them to memorize the
know the definition of a tort.” President, Ralph Holmes, emphasized definition of a tort, but we should
Then he said, “A tort is a wrong last year, and that is membership. show them that any law or act or inac-
for which the law will render redress.” Among other things, we continue to tion of government that serves to
This lawyer not only got me to make every effort to keep our services restrict or eliminate the ability of the
memorize the definition of a tort, reasonable and affordable for all eligible law to render redress is wrong.
which I can still recite over forty years lawyers in these tough economic times. Please let your colleagues and
later, he taught me a concept that I By increasing our membership, we other lawyers who share our goals
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know that your Association is working tively without the assistance of an asso- lesson that you learned long before
diligently at the legislative level to edu- ciation of lawyers working together for becoming a lawyer in the forefront of
cate our Legislature to assist them in these common goals. Your membership your thoughts; our system of justice
making the right choices when it comes and the membership of others who requires the law to render redress to
to their votes on civil justice issues. have not yet joined or renewed, is anyone who has been unjustly wronged
Please also let them know that essential to our purpose, and we are by another. Anything that interferes
lawyers who bring to life the notion grateful to have you with us. with or prohibits that is wrong, and the
that a tort is a wrong for which the law And each day that you go to your law should render redress.
will render redress cannot work effec- office or to work, keep this one basic

Jeanine M. Kilgallen, Esq. Mark Edmund Youngholm, Esq.

McLane, Graf, Raulerson & Middleton, PA Attorney at Law
Manchester, NH Littleton, NH

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From Your Executive Director

by Ellen J. Shemitz, Esq.

I write this column the day after involved the state budget and preserva-
the elections. No question access to tion of funding for the judicial system.
justice took a blow across the country Still we failed to advance reforms in
and in our state. I say this based not on several priority areas, as key bills passed
a partisan count of seats won or lost the House only to falter in the Senate
but rather on specific positions articu- on issues concerning the scope of med-
lated by some of the day’s victors. ical screening panels, judicial discre-
Already we hear national voices priori- tion in the division of recovery from
tizing efforts to limit legal recourse in third party suits, and the rate of pre-
different ways: voices protecting the judgment interest.
interests of the Chamber of Commerce Looking ahead, we will need to
and Big Industry, brought into your draw on our strengths: the soundness
living room thanks in large part to the of our message, our existing relation-
Citizens United decision. ships across party lines, and our poten-
Our response has to be to rally, not tial grassroots presence across the state.
to despair. To focus without exception Thanks to some infrastructure
on our core mission- protecting access improvements at NHAJ, we have the ELLEN J. SHEMITZ, ESQ.
to the courts and justice for all - and to ability to make that potential real, as a ELLEN J. SHEMITZ serves as the Executive Director
increase the level of participation of all new database system will allow us to of the New Hampshire Association for Justice. Prior to
joining NHAJ, she worked to advance children’s rights,
members. And yes, when I write of mobilize members based on geography both as an attorney for special needs children and as
increased member participation, I do and areas of expertise. We hope to President of the Children’s Alliance of New Hampshire.
refer to participation in the legislative work with new faces and help new She earned both her undergraduate (1983) and law
degrees (1987) from Yale University.
advocacy work of our association. voices speak on behalf of civil justice.
Legislative advocacy is essential to We urge all of you to become more
the mission of NHAJ. We simply can- engaged, to think about what you can
not protect access to the courts, pro- do to spread our message and build
tect worker and consumer rights, or our presence. With right on our side,
defend the fundamental rule of law we can-and we must-prevail.
without a strong voice in the legisla-
ture. Thanks to you, NHAJ has assem-
bled a tough team of advocates, from
our experienced lobbyists led by for-
mer Senator Bob Clegg, to our
Legislative Committee led last year by
Chris Seufert and this year by Barney
Brannen, to the invaluable members
who regularly take time away from
their offices to testify on critical mat-
ters.
Last year our advocacy helped
advance important issues, even as we
fell short on some priority measures.
We prevailed on bills increasing work-
er rights (through increased protec-
tions related to IMEs, medical records,
and payment of legal fees). We pre-
vailed by defeating bills seeking to
undermine the right to legal recourse
through special interest immunities.
Perhaps our most visible work last year
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Ne w H am p s h i r e ’ s l e ad i n g M e d i c a l M a lp r a c t i c e f i r m .

Abramson, Brown & Dugan

Abramson, Brown and Dugan is the premier Mark and Kevin have also been named by
medical malpractice firm in New Hampshire. The New England Super Lawyers® as two of the top
firm has obtained over $250 million in settlements attorneys in New England for 2010 in the
and verdicts for their clients. Abramson, Brown & Malpractice and Personal Injury categories. This
Dugan is proud to announce that once again, Mark is the forth consecutive year that the pair has earned
Abramson and Kevin Dugan have been named to this distinction. In addition, Holly Haines has been
the 2010 edition of selected for inclusion in
Best Lawyers®, the New England Super Lawyers®
oldest and most as a Rising Star for the third
respected peer-review year in a row.
publication in the legal profession. Mark has been
named to this publication every year since 1994, If you or a loved one has a potential medical
and was named “Lawyer of the year” in 2009. malpractice or serious injury claim, contact
Kevin has enjoyed Best Lawyer distinction for each the lawyers of Abramson, Brown and Dugan.
of the past 6 years.

Working together for your client

1819 Elm Street

Manchester, NH
Ph: 603-627-1819
Fax: 603-666-4227
www.arbd.com

Referral fees honored

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Mismanaged Methadone Treatment:

A Prescription for Personal Injury
by Kevin F. Dugan, Esq. and Holly B. Haines, Esq.
I. Introduction any other chronic relapsing disease, any injury sustained or caused by the
Drug use and abuse is increasing cannot just be prophylactically treated addict while driving.
in New Hampshire and nationwide. with medication. To be successfully
When left untreated, substance abusers treated, addictions require not only II. Methadone and Opioid Treatment
become addicted — both physically medication but also behavioral, psy- Programs (OTPs)
and psychologically dependent on the chological and lifestyle changes made Methadone is a narcotic. It is clas-
effects of the drugs they abuse. available through comprehensive treat- sified by the DEA as a Schedule II con-
Addiction is a disease that can be treat- ment programs for patients. As such, trolled substance due to its high poten-
ed, however, if an appropriate combi- substance abuse treatment centers and tial for abuse and severe physical and
nation of medication and behavioral outpatient methadone treatment pro- psychological dependence.1 Narcotics
therapy tailored to a patient’s individ- grams have a duty to provide these are drugs that cause impairment and
ual needs is implemented. Opiate comprehensive treatment services to are associated with side effects such as
addiction is one of the most common their patients. When they fail to do so drowsiness, inability to concentrate,
treatable addictions in our state. It and a patient or member of the gener- and respiratory depression. As the dose
occurs not only in people addicted to al public is harmed by that failure, the of methadone is increased, the toxic
heroin or other illegal drugs, but also substance abuse treatment program effects become more pronounced.
in people involved in chronic pain must be held professionally liable for Unlike many drugs of impairment,
management programs. In an effort to the injuries sustained. Substance abuse there is no apparent loss of motor
treat opiate addiction, many for-profit treatment centers and outpatient coordination or slurred speech as
companies have established substance methadone treatment programs can- occurs with many depressants.2
abuse treatment centers in New not be allowed to exist as legalized Because methadone alone can cause
Hampshire with a focus on outpatient drug dealers in our state. Nor can they impairment, in 2006 the FDA warned
methadone treatment. Unfortunately, be allowed to turn a blind eye to their physicians and health care providers
instead of treating the diseases and patients after dispensing their prescribing this drug to have a height-
addictions of their patients, these treat- methadone dose. When these treat- ened awareness of the symptoms of
ment centers are merely treating the ment centers dispense drugs to addicts, impairment in their patients to prevent
opiate and fostering a new, cheaper, known to be impaired, and allow those death, narcotic overdose and serious
addiction to and dependence upon addicts to drive from the treatment cardiac arrhythmias from occurring.3
methadone. center, they should be held liable for Methadone is indicated for the
As a practical matter, these pro-
grams take the opiate addict’s cash,
give the addict methadone and send
the addict home. The only time that
methadone is generally denied to an
opiate addict is if the addict cannot
afford to pay for his or her dose.
Meanwhile, opiate addicts engaged in
these methadone treatment programs
continue to use other drugs due to
their untreated addictions to those
substances and continue to drive to
and from their daily methadone dos-
ing. Allowing addicts to foster their
addictions and drive impaired by the
effects of methadone and other drugs KEVIN F. DUGAN, ESQ. HOLLY B. HAINES, ESQ.

is a prescription for personal injury for KEVIN F. DUGAN is a partner and HOLLY B. HAINES is an associate at Abramson, Brown &
Dugan in Manchester, N.H. Their firm’s practice focuses on representing plaintiffs in personal injury and
both the addict and the general public. medical malpractice litigation. Attorney Dugan received his J.D. from Stetson Law School in 1985 and
Opiate addiction, like diabetes or Attorney Haines received her J.D. from Franklin Pierce Law Center in 2000. Both are members of the
American Association for Justice.
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treatment of opiate addiction and has whom they are prescribing grams are required to comply with
been used in that capacity since the methadone.11 heightened state regulations in their
1960s. In fact, it is the most widely In recognition of the inherent operations, including the New
used medication for the treatment of problems with such a dangerous drug, Hampshire Controlled Drug Act, to
opioid addiction.4 Methadone sup- the U.S. Department of Health and adhere to treatment requirements for
presses withdrawal symptoms, reduces Human Services Substance Abuse and methadone maintenance and detoxifi-
cravings for opioid drugs and blocks Mental Health Services Administration cation programs.12
the euphoric effects of opioids for 24- (SAMHSA) with the Center for Under federal and state regula-
36 hours.5 When used as prescribed Substance Abuse Treatment (CSAT) tions, OTPs are supposed to provide
and appropriately monitored, have established a regulatory system certain core services such as medical
methadone is an effective tool in the based on an accreditation model for the care and psychological services, treat-
treatment of opiate addiction. When use of methadone and other narcotic ment for drugs other than heroin, and
prescribed improperly, in concert with drugs in maintenance treatment and treatment for addiction to alcohol or
other drugs and/or alcohol and without detoxification of opioid addicts. other illicit drugs. OTPs may provide
medical monitoring, however, SAMHSA has administrative and over- additional ancillary services such as
methadone can be fatal.6 “Patients who sight responsibility for all opioid treat- educational, vocational, financial, legal,
are prescribed methadone need to be ment programs (OTP) and must certify housing, transportation and childcare
monitored by a physician well trained all programs before opioid treatment assistance. The accreditation require-
in the pharamacodynamic and phar- can be provided. OTPs must be certified ments assess administrative organiza-
macokinetic properties of the drug.”7 by SAMHSA before they can dispense tion, clinical and facility management,
Methadone deaths are increasing methadone. To become certified, the risk management and quality assur-
nationwide.8 Some of these deaths are programs must meet Federal Regulatory ance, professional credentials, patient
due to diversion of methadone from standards under 42 C.F.R. part 8, which admission criteria, patient medical and
narcotic treatment centers to the illegal includes accreditation by an approved psychosocial assessment, therapeutic
market by patients.9 Some of these accreditation body such as JCAHO dosing, treatment planning, evaluation
deaths, however, are the result of (Joint Commission on Accreditation of and continuous clinical assessment,
patients using legitimately prescribed Healthcare Organizations) or CARF testing for illicit drug use and
methadone when they have been (Commission on Accreditation of polypharmacy abuse, unsupervised
improperly counseled or monitored by Rehabilitation Facilities). approved use, withdrawal and dis-
their physician for the dangers of tak- In addition to federal regulatory charge, management of concurrent
ing the drug in combination with other compliance, OTPs must comply with alcohol and polysubstance abuse,
drugs or medications.10 Most general all State statutes and regulations appli- patient rights, concurrent services,
practitioners and health care providers cable to the dispensing and manage- record keeping and documentation,
lack the training necessary to adequate- ment of methadone. In New community relations and education,
ly assess and monitor the patients to Hampshire, methadone treatment pro- and diversion control.

III. The Problem - Legalized Drug

Dealing
In the face of all of these regula-
tions, accreditation, and certification
requirements, one would think that
substance abuse treatment programs
would engage in strict compliance and
provide well-trained medical profes-
sionals for their patients in an effort to
treat their addictions. Unfortunately,
the reality is that these treatment cen-
ters are placing their profits over the
people they are treating and they have
an incentive to get their patients
addicted to methadone to continue the
profit stream indefinitely into the
future. Many OTPs in New Hampshire
superficially comply with accreditation
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standards to maintain certification to OTPs willingly increase doses at the OTP for treatment are impaired on
dispense methadone, without ever request of the addict. The OTPs know arrival, so they are never seen in a sober
addressing the needs of the patients that the higher the methadone dose state by these OTPs and the baseline
they are treating and ignoring the real- provided, the more dependent the for the patient is impairment. Thus,
ities of the populations and cultures addict will become and the addict will these patients come to the clinic
from which their patients come. continue in the program. This is noth- impaired, receive a dose of a narcotic
In order to be eligible for admis- ing more than legalized drug dealing. which increases their impairment, and
sion to an OTP, a patient must have a In order to maintain accreditation, then they are allowed to leave the clin-
formal medical or psychiatric diagnosis OTPs must regularly perform drug ic and drive home.
of opioid dependence under DSM-IV screens of their patients. The problem SAMHSA recognizes that the fail-
304.00. While this should require a is, while OTPs perform regular urinal- ure of OTPs to recognize and treat
formal medical examination and assess- yses on their patients, they do not patient impairment is the greatest risk
ment before a medical diagnosis is impose consequences for positive drug factor for claims to be filed against
made, OTPs that superficially comply screens. Many patients will consistently OTPs for personal injury and death
will make the diagnosis with a positive test positive for cocaine, marijuana, caused by an OTP patient.13 This is
drug test for opiates and a patient’s own benzodiazepines, or other drugs but because impaired patients present
report that he or she is an opiate addict. they are never kicked out of the pro- potential dangers themselves and oth-
Once a patient is admitted to the pro- gram. Nor do they ever receive treat- ers if they do not restrict their activities
gram, he or she is able to get a daily ment for their continued drug use and to those that can be done safely and
dose of methadone indefinitely, merely abuse. As long as the patient continues without risk of harm to others.
by showing up and paying for it. Drug to show up and pay for his or her dose, “Identifying impairment in a patient is
dealers who are familiar with the cul- the OTP will continue to provide it typically grounds to support the refusal
ture of these programs know the script despite ongoing evidence of illicit drug to medicate. Suspicion of impairment
to tell the admissions personnel and use and polypharmacy abuse. can and [] should trigger a set of pre-
also know that if they pop a few pills Finally, OTPs are not monitoring emptive actions aimed at avoiding and
they can get a positive drug test granti- their patients for impairment. minimizing the risk of potential
ng them admission to the program. Methadone alone can cause impair- harm.”14 Notably, SAMHSA has iden-
Once they are in the program, they can ment. When used in concert with other tified the following risk factors for
pay for their daily dose and divert it to illegal or controlled substances, impair- injury and death:
the street to make their own profit. ment is even more likely. OTPs often • During induction, patient
Drug addicts know that they can get use their baseline assessment of a impairment is common and
their daily fix much cheaper at an OTP patient when they receive the first dose should be anticipated.
than on the street and that there is no as the gauge for whether or not a • Loss associated with patient
oversight once they have received their patient is impaired in the future. The impairment is more probable
dose. Drug addicts also know the script problem is, most patients truly suffer- in patients whose urinalysis
to recite to increase their dose and most ing from addiction who come to an indicates continued poly-sub-
stance use.
• For patients who drive long
distances to and from the
OTP, loss becomes even more
probable.
• Loss associated with automo-
bile accidents often involves
third parties and can be
severe.15
The major risk factor for
methadone injury or death is poly-sub-
stance abuse.16

IV. The Law - Professional Liability

for Legalized Drug Dealing
In the Petition of Juli George, the
New Hampshire Supreme Court
recently found that a substance abuse
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treatment center dispensing poly-substance abuse because they were patients. Willful ignorance is not a
methadone to patients is a medical never provided with any actual treat- defense. When a treatment center
provider subject to the provisions of ment for their addictions. Notably, knows or should know that a patient is
the medical injury statute, RSA ch. these two cases and the case of Juli impaired, it has a duty to take reason-
507-E, and the medical injury screen- George arise out of three different clin- able action by not dispensing the
ing panel statute, RSA ch. 519-B.17 In ics in three different regions of New methadone dose and by preventing
the George case, the plaintiff was Hampshire, which means this problem that patient from driving. When a
injured when she was struck by a driv- is happening statewide and drivers patient is harmed by a center’s failure to
er impaired by methadone who fell impaired by methadone and other drugs treat his or her addiction or by a the
asleep at the wheel after receiving her are on the roadways throughout our center dispensing methadone to that
dose of methadone at a substance abuse state due to the legalized drug dealing of patient when he or she is already
treatment center. While the Supreme these centers. impaired, the patient is entitled to
Court declined to address the merits of compensation for his or her injuries.
the plaintiff ’s third-party liability Duty to the Patient
claim, the George Court clearly recog- Addiction is a disease that must be Duty to Third Parties
nized that these OTPs are medical care treated. To be successfully treated, Whether an OTP owes a duty of
providers subject to the medical mal- addictions require not only medication care to reasonably foreseeable non-
practice and professional liability laws but also behavioral, psychological and patient third-parties has yet to be deter-
in New Hampshire. lifestyle changes made available mined by the New Hampshire
We recently filed suit in two cases through comprehensive treatment pro- Supreme Court. In fact, the Supreme
against OTPs, one on behalf of a patient grams for patients, tailored to the Court expressly declined to answer this
and one on behalf of a third-party, both patient’s individual needs. As such, question in the Petition of Juli George.18
plaintiffs who were catastrophically substance abuse treatment centers and The New Hampshire Supreme Court
injured because the OTP allowed its outpatient methadone treatment pro- has recognized, however, that a profes-
patients to drive while impaired. In each grams have a duty to provide these sional person acting in the course of his
case, the patient of the treatment center comprehensive treatment services to or her employment may own a duty of
sought comprehensive treatment for his their patients who come to them seek- care to third parties in certain circum-
or her addictions, but received only a ing treatment for their addictions. stances.19 New Hampshire does impose
new, stronger addiction to methadone. Under federal and state regulations, third-person liability on medical
In each case, the patient was impaired these treatment centers have a duty to providers when they know of a specific
by and addicted to substances in addi- provide certain core services such as risk of harm by their patient to an iden-
tion to Heroin when they sought treat- medical care and psychological services, tifiable third-party and the medical
ment. In each case, the patient consis- treatment for drugs other than heroin, provider fails to take reasonable action
tently tested positive for drugs and poly- and treatment for addiction to alcohol to prevent that harm from occurring.20
substance abuse in addition to or other illicit drugs. Furthermore, The difficulty in extending this rule of
methadone for a period of more than when dispensing methadone as part of liability arises when the third-party is
one year and continued to receive his or the treatment to an opiate addict, these not readily identifiable because he or
her dose as long as he or she continued centers have a duty to have medical she is a member of the general public.
to pay. In each case, the patient was staff trained in the pharamacodynamic In those cases, our Supreme Court has
known to be driving to and from the and pharmacokinetic properties of the indicated that the existence of a duty to
OTP to get his or her dose and was drug. The centers also must have staff third-parties must be based “upon a
known to have positive drug screens trained to recognize and address balancing of the societal interests
indicative of impairment by other drugs impairment of the patient to prevent involved, the severity of the risk, the
when receiving treatment. Finally, in administration of another narcotic, burden [placed] upon the defendant,
each case, the patient was able to get methadone, from being given to an the likelihood of occurrence and the
dose increases at his or her request. already impaired patient. relationship between the parties.”21
Neither of these patients were warned One of the hallmarks of addiction We submit that the liability of an
about driving while under the influence is denial of impairment, so the OTP for providing methadone to an
of methadone. Neither of these patients providers at these treatment programs impaired patient is no different than
were told not to drive while under the have a heightened duty to detect the liability imposed on a liquor licens-
influence of methadone and other drugs impairment to prevent the patient ee who provides alcoholic beverages to
such as marijuana and benzodiazepines. from harming him or herself and oth- an intoxicated patron.22 In each case,
Finally, neither of these patients were ers. These centers cannot be allowed to the defendant is engaged in a highly
ever reprimanded for their continued ignore evidence of impairment of their regulated profession and the societal
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known to routinely abuse prescription

and nonprescription drugs, yet the
OTP failed to test the patient for drugs
that could adversely interact with
methadone. Specifically, the Court
held that the defendant had a duty to a
non-patient third party because the
defendant’s conduct foreseeably and
substantially caused the injury that
occurred.
[T]his case presents a situation in
which the variables are, or should be,
known to the doctor or health care
provider at the time the drug is admin-
istered .... When one administers a
drug which, when combined with
other drugs or alcohol, may severely
impair the patient, the doctor’s failure
to take the proper precautions (e.g.,
verify whether the patient is already
under the influence of another drug) is
risks are high. Drivers impaired by causing injury or death to a third party. an affirmative act which creates the risk
methadone and other illegal drugs are One of the leading cases is Taylor v. that unidentifiable third parties might
no less of a risk to public safety than Smith, where the Alabama Supreme be injured. Under these circumstances,
drivers impaired by alcohol. OTPs have Court imposed liability on an OTP for there is, most certainly, a duty to
a duty to inform their patients of all administering methadone to an outpa- unidentifiable third parties who may be
side effects and potential drug interac- tient who consistently failed drug injured as a result.26
tions when they prescribe and adminis- screens for other illegal drugs and who In other non-methadone cases, a
ter methadone to their patients. Before was known to be a daily user of mari- duty to non-patient third-parties has
administering methadone the OTP juana and benzodiazepines during her been upheld when the physician knew
also has a duty to ensure that the methadone treatment. The patient left or should have known that adverse
patient is not otherwise impaired and the clinic for her daily 90 minute drive reactions to a prescription drug could
the methadone is not contraindicated. home and caused an accident with a affect a patient’s ability to drive. In
Finally, if an OTP gives treatment of third-party. The Taylor Court found those cases, the risk of harm to non-
any kind that may impair a patient’s that the physician’s knowledge of the patient, third-parties was reasonably
driving abilities, the OTP has a duty to patient’s known, continuing, drug foreseeable and the physician’s duty was
ensure that the patient does not drive abuse along with the knowledge that extended to the general public. In
until he or she is able. the patient would get behind the wheel Wilschinsky v. Medina, the physician
We have written in the past about made the accident entirely foresee- administered certain drugs to his
Medical Provider Liability to Non- able.24 The Court also found that the patient in his office. Like methadone,
Patient Third Parties for Negligent societal costs of the accidents caused by these drugs were known to impair
Medical Care and Prescribing impaired drivers outweighed the need judgment and physical abilities, there-
Practices.23 All of the principles to treat patients with methadone, espe- by adversely affecting the patient’s abil-
addressed in that article are applicable cially those receiving methadone while ity to drive. Shortly after receiving the
to OTPs as medical providers to opiate continuing to use illegal drugs.25 medication, the patient was involved in
addicts and should be incorporated In a Florida case, Cheeks v. Dorsey, a serious motor vehicle accident that
here by reference. an OTP patient killed the appellant’s caused the plaintiff ’s injuries. The New
Injuries and deaths caused by fiancé and her daughter in an accident, Mexico Supreme Court held that a
patients impaired by methadone are a after receiving his methadone dose and duty was owed to the non-patient
problem nationwide. Many other while he was impaired by other drugs. third-party plaintiff who was foresee-
States already impose third-party liabil- The Florida Appellate Court found ably harmed when the physician
ity on OTPs when they negligently dis- that the OTP breached its duty to the recently administered powerful drugs
pense methadone to an impaired third-party appellants by its willful which had known side effects of
patient and allow him or her to drive, blindness because the patient was drowsiness and impaired judgment.27
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Similarly, in Joy v. Eastern Maine END NOTES 18. See id.

19. See Hungerford v. Jones, 143 N.H. 208, 211
Medical Center, a patient operated his 1. See http://www.justice.gov/dea/pubs/abuse/1-
(1998) (listing cases) (finding psychiatrist owed
csa.htm.
motor vehicle after receiving an eye 2. See http://www.justice.gov/dea/pubs/abuse/4-
duty to parent who suffers injury due to criminal
charges arising from psychiatric treatment of
patch from the defendant medical cen- narc.htm. child patient).
ter. No one warned him that he should 3. See http://www.fda.gov/cder/drug/advisory/ 20. See RSA 329:31 (2004).
methadone.htm. 21. Carnigan v. N.H. Int’l. Speedway, Inc., 151 N.H.
not drive while wearing the eye patch, 4. See Eric C. Strain, M.D. and Maxine L. Stritzer, 409, 413 (2004) (quoting Williams v. O’Brien,
and he caused a collision with the Ph.D., Methadone Treatment for Opioid 140 N.H. 595, 599 (1995) (finding business
Dependence, 1 (1999). liable to the general public for risks arising when
plaintiff. The Maine Supreme Judicial 5. See Methadone Diversion, Abuse, and Misuse: business assumed duty of directing traffic to its
Court held that the physician owed a Deaths Increasing at an Alarming Rate, U.S. establishment).
duty to the third-party plaintiff because Department of Justice National Drug 22. See RSA 507-F:4 (2010).
Intelligence Center Publication No. 2007- 23. See Mark Abramson and Holly Haines, Medical
the physician knew or should have Q0317-001, at 3. (November 2007). Provider Liability to Non-Patient Third Parties
known that the eye patch would affect 6. See id for Negligent Medical Care and Prescribing
7. See id. at 2. Practices, 31 TBN 9 (Winter 2009).
the patient’s ability to drive. “[W]hen a 8. See id. at 1. 24. See Taylor v. Smith, 892 So.2d 887, 895 (Ala.
doctor knows, or reasonably should 9. See id. at 5. 2007).
10. See id. at 7. 25. See id. at 896.
know that his patient’s ability to drive 11. See id. 26. Cheeks v. Dorsey, 846 So.2d 1169, 1173 (Fla.
has been affected, he has a duty to the 12. See RSA ch. 318-B, The N.H. Controlled Drug Dist. Ct. App. 2003).
Act; see also Ch. He-A 300 of the N.H. Code of 27. See Wilschinsky v. Medina, 775 P.2d 713, 716-17
[] public as well as to the patient to Administrative Rules. (N.M. 1989); see also Burroughs v. Magee, 118 S.W.3d
warn his patient of that fact.”28 13. See SAMHSA, Effective Strategies in Outpatient 323 (Tenn. 2003) (duty to non-patient third-party to
Methadone Treatment: Legal and Clinical Issues warn patient of adverse effects of medication on abil-
In all of these cases, the bottom (Risk Management Seminar Materials) (April 2, ity to safely driving motor vehicle); Myers v.
line is that when a medical provider 2010). Quesenberry, 144 Cal.App.3d 888 (Cal. App. Ct.
14. Id. 1983) (duty to non-patient third-party to warn
treats a patient who has a foreseeable 15. Id. patient not to operate motor vehicle when physician
risk of causing an accident, the medical 16. See National Association of State Alcohol and knew or should have known that patient’s diabetic and
Drug Abuse Directors, State Issue Brief on irrational condition would impair her driving ability).
provider has a duty to take all reason- Methadone Overdose Deaths, at 4 (2007). 28. Joy v. Eastern Maine Medical Center, 529 A. 2d
able precautions to prevent that acci- 17. See Petition of George, ___ N.H. ___ (September 1364, 1366 (Me. 1987).
dent from occurring and to prevent 17, 2010).

that patient from causing injury to

himself or others.
Interested in becoming more involved?
V. Conclusion
New Hampshire cannot allow &RQVLGHUMRLQLQJRQHRI1+$-¶V&RPPLWWHHV
these for-profit methadone treatment
programs to place their profits over the Amicus Committee
Ben King- Chair
people they are treating or the public
The Amicus Committee reviews and recommends NHAJ involvement in matters
that they serve. Opiate addiction is a related to our core mission.
treatable disease and addicts seeking
CLE Committee
treatment to overcome their addictions Ralph Holmes- Chair
should receive appropriate comprehen- The CLE Committee develops the educational lineup for NHAJ, setting the annual
sive medical care that will enable them to calendar, identifying program chairs, and ensuring the overall quality and relevance
do so. OTPs have a duty to their patients of professional programming.
to treat their addictions and they have a Legislative Committee
duty to the public to prevent their Barney Brannen- Chair
patients from driving while impaired. The Legislative Committee works with NHAJ Lobbyist, former Senator Robert
Methadone is a dangerous, highly addic- Clegg, to develop and advance a strategic civil justice agenda. Activities include
research, testimony, outreach to members and outreach to legislators.
tive drug that cannot just be blindly dis-
pensed to patients who are known to Member Services Committee
succumb to the effects of addiction, who Paul Chant- Chair
are known to be impaired by other sub- The Member Services Committee develops and advances programs and services to
increase member satisfaction and engagement.
stances, and who are known to be driv-
ing. If it is, its prescription will be for Publications Committee
personal injury and death. Thomas Watson- Chair
7KH3XEOLFDWLRQV&RPPLWWHHUHYLHZVHGLWVDQGGHYHORSVPDWHULDOVIRU1+$-¶V
printed and online materials, including the Trial Bar News, Verdicts and
Settlements and the Pleadings Bank.

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 Fall 2010 - 32TBN

Admission of Medical Screening Panel

Findings Unconstitutional
by Heather V. Menezes, Esq.

I. Introduction
All medical malpractice cases are (a) The panel process is a preliminary
subject to the screening panel proce- procedural step through which
dures set forth in RSA 519-B. After the malpractice claims proceed.
law took effect in 2005, there were (b) The panel in this case consisted
many constitutional challenges. Several of (insert name and identity of
Superior Court judges upheld the con- the members).
stitutionality of the panel process (c) The panel conducts a summary
itself.1 However, those judges declined hearing and is not bound by the
to rule on the statutory provisions per- rules of evidence.
taining to admission of the panel find- (d) The hearing is not a substitute for
ings at trial, as that issue was not ripe a full trial and may or may not
for review because the parties had not have included all of the evidence
yet gone before a screening panel.2 that is presented at the trial.
HEATHER V. MENEZES, ESQ.
More recently, challenges to the (e) The jury is not bound by the
HEATHER V. MENEZES is an associate with
admissibility provisions have been findings of the panel and it is the McDowell and Osburn, P.A. She graduated from
making their way through the jurors’ duty to reach their own Providence College with a double major in English and
Superior Court. In Eaton v. Fleet, conclusions based on all of the History. Attorney Menezes graduated from Franklin
Pierce Law Center in 2005, where she was an editor for
Judge Houran found that the admissi- evidence presented to them.
the Pierce Law Review. After law school, she worked as
bility provisions violate the separation (f ) The panel proceedings are privi- a Superior Court Law Clerk at Hillsborough North
of powers doctrine of the New leged and confidential. Superior Court for three years and served as Senior Law
Clerk for one year.
Hampshire Constitution.3 Judge Consequently, the parties may Attorney Menezes focuses her practice on civil liti-
Vaughan previously upheld the consti- not introduce panel documents gation, primarily personal injury, medical malpractice
or present witnesses to testify and workers’ compensation. If you have any questions
tutionality of the statute.4 The New about this article or would like copies of any of the orders
Hampshire Supreme Court has not about the panel proceedings, and referenced in this article, please contact her at
yet addressed the issue. This article they may not comment on the hmenezes@mcdowell-osburn.com or 603-623-9300,
ext. 209.
analyzes the statutory provisions, panel findings or proceedings
applicable constitutional precedent except as provided in subpara- on the findings, without payment, or
and the current split among Superior graphs (a) through (e).7 be subject to the admissibility of those
Court judges and concludes that the findings under RSA 519-B:8, I(c).”10
admissibility provisions violate the The Court must give the instructions
New Hampshire Constitution. both “when the findings are admitted III. Constitutional Issues
into evidence and when the court
II. Statutory Provisions instructs the jury prior to submitting A. Separation of Powers
Unanimous screening panel find- the case to the jury.”8
ings are admissible at trial in certain The separation of powers
circumstances. If the screening panel RSA 519-B:10 details the conse- doctrine of the New Hampshire
findings as to standard of care and quences of admissible unanimous Constitution guarantees:
causation are unanimous and unfavor- panel findings. If the panel findings are
able to the defendant, the findings are in the plaintiff ’s favor, “the defendant In the government of this state,
admissible at trial.5 If any finding is shall promptly enter into negotiations the three essential powers thereof,
unanimous and unfavorable to the to pay the claim or admit liability. . . . to wit, the legislative, executive,
plaintiff, the findings are admissible at If the claim goes to a trial, the findings and judicial, ought to be kept as
trial.6 Further, the statute provides are admissible as provided in RSA 519- separate from, and independent
mandatory instructions that the Court B:8, I(b).”9 If the panel findings are in of, each other, as the nature of a
must give when the panel findings are the defendant’s favor, “the plaintiff free government will admit, or as
admitted at trial: shall release the claim or claims based is consistent with that chain of

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connection that binds the whole branches of the state government, jurisprudence concerning the separa-
fabric of the constitution in one would be rendered subservient to the tion of legislative and judicial powers,
indissoluble bond of union and Legislature in a fashion never contem- persuades me that the mandatory pro-
amity.11 plated by any.”14 visions of RSA 519-B:8, 9 and 10
In Opinion of the Justices (PSAE), impermissibly intrude into core judi-
“The Separation of Powers directive is the New Hampshire Supreme Court cial functions.”18 Judge Houran com-
violated by an improper imposition found that proposed legislation creat- pared the legislation at issue in Opinion
upon one branch of constitutional ing a rebuttable presumption in favor of the Justices (PSAE) with the admissi-
duties belonging to another, or, an of admitting evidence of a defendant’s bility provisions and determined that
encroachment by one branch on a con- other sexual assaults in certain sexual the admissibility provisions are consti-
stitutional function of another branch assault cases violated the separation of tutionally infirm for the same reasons
of government.”12 Our Supreme Court powers doctrine.15 The Court found the Court struck down the proposed
has found, “Despite the explicit consti- that the proposed legislation interfered legislation in Opinion of the Justices
tutional language concerning the sepa- with the Court’s judicial function of (PSAE):
ration of powers in our State, . . . the making relevancy determinations on a [T]he bill at issue in Opinion of
doctrine does not require an absolute case by case basis.16 the Justices (PSAE) impaired the
division of powers, but a cooperative In Eaton v. Fleet, Judge Steven courts’ power to make relevancy
accommodation among the three Houran ruled that the admissibility determinations as part of its prop-
branches of government.”13 While the provisions set forth in RSA 519-B:8, 9 er exercise of control over core
constitution contemplates overlapping and 10 are unconstitutional.17 Judge judicial functions or procedures. I
of power between the branches of gov- Houran thoroughly analyzed the sepa- conclude that the legislation at
ernment, such power is constrained ration of powers precedent and found: issue here, which mandates the
because, “if the legislature could over- “The Supreme Court’s analysis in introduction of certain evidence
rule the courts in some of their essen- Opinion of the Justices (PSAE), 141 and prohibits the introduction of
tial operations, the judiciary instead of N.H. 562, considered together with additional evidence which may
being one of the three coordinate the larger body of Supreme Court place the mandated evidence in

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context, likewise usurps the judi- provisions setting forth the panel New Hampshire Supreme Court exam-
cial function of making eviden- process itself, finding, “While the ined the constitutionality of a statute
tiary admissibility determina- unconstitutionality of RSA 519-B:8, 9, requiring that certain civil suits be tried
tions.19 and 10 removes a provision the legisla- first before a referee and allowing the
ture determined to be ‘equally essential referee’s report to be admitted at a sub-
Judge Houran found that the pro- to the effectiveness of the panel sequent jury trial as prima facie evi-
vision requiring mandatory jury process,’ RSA 519-B:1, I, it does not dence subject to impeachment.29 In
instructions in RSA 519-B:9 also vio- prevent the remaining statutory provi- King, the Court found that the admis-
lated the separation of powers doctrine, sions from being a self-effecting and sion of the referee’s findings at trial vio-
reasoning, cohesive whole.”22 lated the right to a jury trial.30 The
The crafting of jury instructions is Since Eaton, there have been other Court reasoned, “And what shadow of
a core function in the province of constitutional challenges to the admis- an argument is there to show that a
the judiciary as directly relating to sibility provisions of RSA 519-B in common law jury trial is had when a
the judiciary’s role of ensuring Superior Court. In two separate cases, jury, instead of passing upon the real
fairness of judicial proceedings. Judge Garfunkel adopted Judge issue presented in the pleadings, weigh-
While the boundary line between Houran’s reasoning in Eaton and grant- ing the evidence pro and con, pass upon
the legislature and the judiciary is ed the plaintiff ’s motion in limine to the question whether some other tribu-
unfixed and cooperatively flexible, exclude admission of the panel findings nal has correctly decided the issue
when a statute reaches into the at trial.23 between the parties, starting with the
courtroom and mandates what a However, in Phillips v. Pascal, a decision of the other tribunal as mak-
trial judge must say, and mandates case decided before Eaton, Judge ing a prima facie case in favor of its own
that the trial judge may not per- Vaughan found that the admissibility correctness?”31
mit any more to be said, the provisions do not violate the separation Similarly, the mandatory admis-
boundary has by any reasonable of powers doctrine.24 In Phillips, Judge sion of the panel findings required by
definition been crossed.20 Vaughan ruled that the statutory provi- RSA 519-B impedes the independence
sions do not encroach upon the judi- of the jury and the exercise of the right
Judge Houran concluded, ciary’s power to control the court- such that the sanctity of the jury trial
For me, notwithstanding the pre- room.25 Rather, the Court stated, right is lost. By mandating the admis-
sumption of constitutionality to “Recognizing that the doctrine of the sion of the panel findings at trial, the
which legislative actions are enti- separation of powers allows some over- legislature has undermined the consti-
tled… a presumption to which I lap between the branches of govern- tutional power of the jury to independ-
adhere and in which I believe, ment… the Court declines to adopt a ently decide all issues in dispute. The
whether RSA 519-B:8, 9 and 10 position that would make any statute mandatory admission of panel findings
are unconstitutional under our that affects procedure or admissibility infects the sanctity of the jury to “pass
separation of powers clause, Part I, of evidence unconstitutional.”26 The upon the real issue presented in the
Article 37, is not a close call. The Court reasoned that the admissibility pleadings,” and weigh “the evidence
statute’s mandates that unanimous provisions were conditions placed on a pro and con” as guaranteed by our con-
medical panel results must be litigant to accomplish policy goals stitution.32 The jury is told that the
admitted, that the court must pro- related to costs of medical care and panel consisted of a doctor, a lawyer
vide a specific set of instructions to insurance and that those conditions do and a retired judge and that the evi-
the jury, and that the court may not undermine the Court’s ability to dence at the panel may or may not be
not permit any additional informa- control the courtroom or interfere with the same as that presented at trial.33 The
tion or further explanation to the the judiciary’s core functions.27 The jury is also informed that they are not
jury, separately and together Court also found that the admissibility bound by the findings of the panel, but
“usurp[] the judicial function” of provisions of the screening panel the parties are not allowed to discuss
making determinations concerning statute did not violate the Court’s the differences between the panel pro-
the admissibility of evidence “with- Constitutional rulemaking authority.28 ceedings and the trial.34 This leaves the
out regard for the particular facts panel findings shrouded in secrecy and
or circumstances of a case.” B. Right to a Jury Trial the only facts known to the jury are
Opinion of the Justices (PSAE), 141 Part I, Article 20 of the New that the panel consisted of a doctor, a
N.H. at 579.21 Hampshire Constitution guarantees a lawyer and a retired judge who unani-
right to a jury trial and expressly states, mously found against the party on the
Judge Houran found the admissibility “This method of procedure shall be same questions that the jury must con-
provisions could be severed from the held sacred . . . .” In Copp and King, the sider. Under these circumstances,
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introduction of the findings against a too much weight on the findings.38 END NOTES
party would be difficult for any juror to Judge O’Neill adopted Judge Vaughan’s 1. RSA 519-B:1-7; Wilson v. Valley Reg’l Hosp., 05-
C-0052 (Sullivan Super. Ct.)(Houran, J.);
ignore. opinion.39 Significantly, in Phillips, it Mohseni v. Rahman, 05-C-343 (Hills. Super. Ct.
Further, the admission of the panel does not appear as though the Court S. Dist.)(Brennan, J.); Lavoie v. Hoepp, 05-C-735
(Hills. Super. Ct. N. Dist.)(Mangones, J.).
findings at trial is a penalty imposed on considered Copp and King in its analy- 2. Wilson at 31; Mohseni at 8-9; Lavoie at 4. The
the party who insists on exercising his sis; indeed, the Phillips plaintiffs did statutory provisions concerning admission of
the panel findings at trial and the mandatory
right to a jury trial despite the negative not cite Copp or King in their memo- jury instructions, RSA 519-B:8-10, are collec-
panel findings. This alone makes the randum of law. tively referred to as the admissibility provisions
in this article.
admissibility provisions an unconstitu- 3. Eaton v. Fleet, 08-CV-074 (Carroll Super.
tional restriction on the jury trial right IV. Conclusion Ct.)(Houran, J.).
4. Phillips v. Pascal, 07-C-060 (Coos Super. Ct.)
because any penalty imposed for a The admissibility of the panel (Vaughan, J.).
party’s exercise of his constitutional findings at trial violates the separation 5. RSA 519-B:8, I (b).
6. RSA 519-B:8, I (c).
jury trial right “is a manifest infringe- of powers doctrine. Judge Houran’s 7. RSA 519-B:9, I.
ment of the right, an alteration of its analysis in Eaton finding that the 8. RSA 519-B:9, II.
9. RSA 519-B:10, I.
substance.”35 admissibility provisions violate the sep- 10. RSA 519-B:10, II.
Thus far, no New Hampshire aration of powers doctrine is thorough 11. N.H. Const., Pt. I, Art. 37.
Superior Court judge has found that and consistent with New Hampshire 12. Petition of the Judicial Conduct Committee, 151
N.H. 123, 125 (2004) (quotations omitted).
the admissibility provisions violate the precedent. Further, the admissibility 13. Opinion of the Justices (Prior Sexual Assault
right to jury trial.36 In Phillips, Judge provisions severely impede a litigant’s Evidence), 141 N.H. 562, 569 (1997)
(“Opinion of the Justices (PSAE)”)
Vaughan upheld the statute against this jury trial rights and act as an improper 14. Id. (quotations and brackets omitted).
challenge: “Under the provisions, the penalty. Given the strength of the 15. Id. at 577.
16. Id.
plaintiffs still have the right to trial by aforementioned constitutional argu- 17. Eaton at 18.
jury, they simply have to deal with the ments, it is likely the New Hampshire 18 Id. at 14.
19. Id. at 16.
fact that undesirable findings will be Supreme Court would find the admis- 20. Id. at 17.
presented against them.”37 The Court sibility provisions unconstitutional. 21. Id. at 18.
22. Id. at 19-20.
also found that the mandatory instruc- 23. Cook v. Griffiths, 07-C-0746 (Hills. Super. Ct.
tions ensured the jury would not put N. Dist.) (Garfunkel, J.); Landry v. Garstka,
08-CV-0161 (Hills. Super. Ct. N.
Dist.)(Garfunkel, J.).
24. Phillips v. Pascal, 07-C-060 (Coos Super. Ct.)
(Vaughan, J.).
25. Id. at 13.
26. Id. at 14.

Save the Date

27. Id. at 13-14.
28. Id. at 14.
29. King v. Hopkins, 57 N.H. 334 (1876); Copp v.
Henniker, 55 N.H. 179 (1875).
30. King, 57 N.H. at 356.
31. Id. at 350. See also, Simon v. St. Elizabeth
Med.Ctr., 355 N.E.2d 903, 908 (Ohio Ct.
)RU1+$-·V Cm. Pl. 1976) (finding that admission of arbi-
tration decision in a medical malpractice action
17th Annual Golf Tournament violates the right to a jury trial because it
“effectively and substantially reduces a party’s
Portsmouth Country Club ability to prove his case because that party
must persuade a jury that the decision of the
Tuesday, June 7, 2011 arbitrators was incorrect, a task not easily
accomplished in view of the added weight
which juries have traditionally accorded the
Join your colleagues and friends for a day of fun at testimony of experts.”).
ŽŶĞŽĨEĞǁ,ĂŵƉƐŚŝƌĞ͛ƐƚŽƉĐŽƵƌƐĞƐ͘ 32.
33.
King, 57 N.H. at 350.
RSA 519-B:9, I (b), (d).
34. RSA 519-B:9, I (e), (f ).
Included in your greens fees are 18 holes 35. Copp, 55 N.H. at 199.
36. The plaintiff in Eaton argued that RSA 519-
of golf, lunch, dinner, B:8-10 violated the right to a jury trial, due
process and equal protection. However, Judge
beverages and more! Houran declined to rule on the plaintiff ’s other
constitutional challenges because he found that
the statute violated the separation of powers
Please RSVP 37.
doctrine. See Eaton at 18-19.
Phillips, at 4.
38. Id. at 5.
Today! 39. Estate of Krakie, 06-C-717 (Hills. Super. Ct. N.
Dist.) (O’Neill, J.).
P: 603.224.7077 F: 603.224.3256 nhaj@nhaj.org www.nhaj.org

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Verdicts and Settlements Form

Please send information via e-mail to nhaj@nhaj.org

VERDICT/SETTLEMENT

Facts/Liability:

Defense:

Injuries:

Specials (if any):

Verdict/Settlement:

Points of Interest (if any):

Plaintiff ’s Experts (if any):

Defense Experts (if any):

Plaintiff ’s Counsel (please include name and firm):

Defense Counsel (please include name and firm):

Insurance Carrier (if relevant):

Name of Case/County:

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Verdicts and Settlements

Edited by V. Richards Ward, Jr.

- INDEX -

PERSONAL INJURY - MOTOR VECHICLE . . . . . . . . . . . . . . . . . . . . . . . . . .177

PERSONAL INJURY - PRODUCT LIABILITY . . . . . . . . . . . . . . . . . . . . . . . .178

PERSONAL INJURY - PREMISES LIABILITY . . . . . . . . . . . . . . . . . . . . . . . .179

MEDICAL MALPRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180

Personal Injury impact with a traffic signal pole at the

southeast corner of the intersection. V. RICHARDS “RICK” WARD, JR. is a solo
Witnesses from three different per- practitioner in Wolfeboro, with a satellite office in
spectives gave sworn statements attest- Manchester. Attorney Ward’s practice focuses prima-
SETTLEMENT ing to the fact that the Defendant rily on personal injury, workers’ compensation,
employment litigation, medical malpractice, and
never stopped and went through the products liability.
Personal Injury – red light at the intersection, causing
Motor Vehicle the crash.
Injuries: Zygomatic fracture, left
orbital rupture with vitreous and reti-
Facts/Liability: The Plaintiff, 81 years Defense: The Defendant maintained
nal hemorrhage, blindness in both eyes
old at the time of the crash, was a very that he entered the intersection on a
(right eye has minimal vision), col-
active individual in the Town of green light.
lapsed lungs, soft tissue hematoma
Hudson. On May 27, 2009 at approx-
imately 9:30 a.m., the Plaintiff was the
operator of a motor vehicle which was
traveling in an easterly direction on
Kinsley Street where it intersects with
Main Street in Nashua, New
Hampshire. After waiting for a light to
change from red to green, she entered
the intersection on a green light. At
the same time and place, the
Defendant, 88 years old, was the oper-
ator of a motor vehicle that was travel-
ing in a southerly direction on Main
Street. The Defendant failed to stop at
the traffic signal, which was red for
him, entered the intersection at an
increased rate of speed and violently
collided into the driver side front door
of Plaintiff ’s vehicle. After the initial
impact, the Plaintiff ’s vehicle contin-
ued forward and had a secondary

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overlying the right orbit and left pari- artery, loss of 7 left upper teeth, amount of $1,000,000.00, with
etotemporal convexity, bilateral com- numbness in left cheek, dropping left Vermont Mutual Insurance Company.
minuted, mildly depressed nasal bone eye requiring surgery, asystolic arrest, The Defendant was also compelled to
fractures involving bilateral frontal upper lip laceration. pay $50,000.00 out of his own person-
processes of maxilla, comminuted frac- al savings. An attachment on real estate
ture of the nasal septum and nasal Settlement: The case settled after suit had been obtained on property in
spine, fracture – subluxation of T2, was filed, but prior to trial at private Massachusetts to try to secure personal
fracture – subluxation of T3, fracture mediation for $1,300,000.00. Judge assets, to satisfy any judgment.
of C7 vertebral body, laminectomy of Harry Perkins served as mediator. The
T1 with decompression, intracerebral settlement proceeds were paid, as fol- Medical Bills: Specials were
bleed, significant facial injuries requir- lows: The policy limits of $1,000,000.00 and were paid by
ing suturing, progressive facial edema, $250,000.00 were paid by the Medicare and Anthem. Defendant’s
focal narrowing of the proximal left Defendant’s carrier, Travelers of Motion to exclude full value of the
vertebral artery, mild stenosis of the Massachusetts. The Defendant also medical bills as opposed to what was
right proximal cervical internal carotid paid his excess policy limits in the actually paid by Medicare and Anthem
was granted by Judge Groff before
Mediation. The Garretson Resolution
Group was retained to resolve the
Medicare and Anthem liens, which
were much less than the total of the
actual bills.

Plaintiff ’s Counsel: David M.

Gottesman, Esq., Gottesman &
Hollis, P.A.

Defense Counsel: Gary M. Burt, Esq.,

Wiggin & Nourie, P.A. for the insurers
and Shenanne R. Tucker, Esq. and
Paul Kleinman, Esq., Bouchard
Kleinman & Wright, P.A. for the
Defendant individually.

Name of Case/County:
Anonymous v. Anonymous,
Hillsborough County – Southern
District

VERDICT

Personal Injury –
Product Liability

Facts/Liability: The Trulls were driv-

ing their Volkswagen van equipped
with lap seat belts only in the middle
passenger seat. Mr. Trull lost control
on ice and crashed into oncoming
vehicle in other lane. Passenger in the
other vehicle died. The Trull children
were seated in the middle bench seat
wearing their seatbelts. Due to lack of

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shoulder belts, they sustained head Injuries: Death and brain injury Name of Case/County:
injuries resulting in the death to the Trull v. Volkswagen 320 F. 3d 7 (1st
youngest child and a brain injury to Specials: Approximately $50,000.00 Cir. 2002)
the older child. The case tried in in medical bills.
Federal Court and resulted in an
adverse determination. On a certified Verdict/Settlement: The jury returned SETTLEMENT
question on appeal, the New a verdict in the amount of
Hampshire Supreme court adopted $10,208,315.97. With interest, the Personal Injury –
new law on crashworthiness. See Trull total recovery amounted to a judgment Premises Liability
v. Volkswagen, 761 N.H. 477 (2000). of approximately $17,500,000.00,
As a result of the New Hampshire’s which was collected, in full. Facts/Liability: A twenty-one year old
holding on the certified question of man was a guest at a hotel in Northern
law, the First Circuit remanded the Points of Interest (if any): Changed New Hampshire when he was struck
case to the United States District the law of crashworthiness in New by what was estimated to be a 125
Court for a new trial. See Trull v. Hampshire and the First Circuit pound block of ice that fell from the
Volkswagon, 320 F.3d 7 (1st Cir. roof approximately 20 feet above. The
2002). Plaintiff ’s Counsel: hotel maintenance staff had blocked
David P. Angueira off a doorway and removed ice from
Defense: The Defendant asserted that Swartz & Swartz the roof above that door earlier that
the seats belts were safe without shoul- Boston, MA morning. However, they then opened
der straps. that door and the adjacent walkway
that went along the side of the build-

179
32TBN - Fall 2010

ing, even though they had not Injuries: The teenage Plaintiff lost
removed the ice on the roof above the Medical one of his testicles resulting in disfig-
walkway. The plaintiff went outside to urement, emotional distress, and a
smoke a cigarette and was standing on Malpractice potential decrease in fertility.
the walkway when the ice block fell on
him. Verdict/Settlement: The case settled
The Plaintiff ’s alleged that the after suit, but before trial for a confi-
SETTLEMENT
Defendant was negligent in that the dential amount.
walkway should have remained
Medical Malpractice
blocked off until the ice above it was Plaintiff ’s Counsel:
removed. Mark A. Abramson, Esquire
Facts/Liability: A teenage boy pre-
Jared R. Green, Esquire
sented to an emergency department
Injuries: The plaintiff suffered a frac- Abramson, Brown & Dugan, PA
with complaints of severe testicular
tured skull, a fractured scapula, a right
pain that had begun a couple of hours
shoulder separation, three fractured
earlier. After being examined by a
ribs, and a punctured lung among SETTLEMENT
physician’s assistant and the attending
other injuries. He made an excellent
physician, he was diagnosed with an
recovery and was back to working in a Medical Malpractice
infection and discharged home with
very physical occupation at the time of
prescription medication. A testicular
mediation. Facts/Liability: The Plaintiff ’s claims
ultrasound was not done before the
arose out of the misinterpretation of a
diagnosis was made. Six days later, the
Specials: Medical bills were core breast biopsy pathology specimen
pain had decreased but the area had
$49,474.72, with no claim for lost as invasive and in situ breast cancer by
become very swollen, so the boy’s
wages. two defendant pathologists. The biop-
mother took him to the pediatrician
sy was in fact benign. The Defendants’
and an ultrasound study was done.
Verdict/Settlement: The case settled negligent misinterpretation of the
The ultrasound revealed a testicular
at mediation for $210,000. biopsy resulted in a misdiagnosis of
torsion with probable testicular
invasive and in situ breast cancer and
infarction. He was rushed to another
Plaintiff ’s Counsel: the unnecessary surgical removal of
facility for surgery, but the testicle
Jared R. Green, Esquire Plaintiff ’s right breast.
could not be saved.
Abramson, Brown & Dugan, PA
1819 Elm Street, Manchester, NH Injuries: The plaintiff suffered signifi-
03104 cant physical pain and suffering, four
invasive surgeries and medical treat-
ments, permanent scarring, mental
pain and anguish, a loss of her right
breast, a loss of body image, and a loss
of enjoyment of life. She has incurred
medical and hospital expenses that
exceed $150,000.00.

Verdict/Settlement: The parties

reached a settlement for a confidential
amount at mediation prior to suit.

Plaintiff ’s Counsel:
Holly B. Haines, Esq.
Eva H. Bleich, Esq.
Mark A. Abramson, Esq.
Abramson, Brown & Dugan, PA

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Superior Court Digest

Edited by Benjamin T. King, Esq.

Court Grants Motion to Compel which resulted in the defen-

Against State Farm Automobile dant’s injuries, the name and
Insurance Company in Declaratory position with [State Farm] of
Judgment Action. any individuals who partici-
pated in the investigation, and
Facts: State Farm brought a declara- attach to your answers to these
tory judgment action seeking a deter- Interrogatories copies of all
mination as to its coverage obligations notes, memoranda, witness
to its insured, Preston Thissell, in con- statements, correspondence,
nection with an accident that occurred reports or photographs of
on February 14, 2008. Kaitlyn Sullivan which you are aware concern-
brought suit against Mr. Thissell for ing such investigation.
injuries caused by the accident, leading
State Farm to name her a party to the State Farm objected to providing
declaratory judgment action. State internal claims notes, citing the work
product doctrine. BENJAMIN T. KING, ESQ.
Farm’s position in the case was that Mr.
Thissell’s delay in providing State Farm Ms. Sullivan also propounded the BENJAMIN T. KING is a member of the Concord
law firm of Douglas, Leonard & Garvey, P.C., concen-
notice of the accident constituted a following Interrogatory: trating in civil litigation, business law, employment liti-
proper basis to deny coverage. Interrogatory 10: Please iden- gation and litigation involving property right disputes.
Ms. Sullivan propounded certain tify all claims manuals, policy Attorney King, who has been a New Hampshire trial
lawyer since 1997 and who also practices in Maine,
interrogatories against State Farm statements, internal memoran-
serves as NHAJ’s County Governor for Merrimack
including: da or other documents relied County, and also serves as Vice Chair of the Town of Rye
Interrogatory 6: Describe upon by you to determine Zoning Board of Adjustment. Attorney King graduated
whether notice by your from Dartmouth College and the University of Virginia
what, if any, investigation you School of Law.
performed concerning the insureds of a claim is “timely”
events of February 14, 2008 under your policy. Held: The Court ordered that: “State
State Farm objected, Farm shall provide its claim notes in a
stating as follows: “State redacted form to exclude mental
Farm’s legal counsel advises impressions, i.e. comments on the legal
us that timeliness of notice aspects of the case, such as evaluations
is a legal determination of the evidence or legal strategies.”
based on the length of the The Court further ordered that:
delay, the reasons for the “State Farm shall provide its internal
delay, and whether any claims manuals and documents that
prejudice has resulted to reflect on any policy or procedure its
the insurer. See Dover Hills agents are directed to follow in investi-
Partnership v. Commercial gating late noticed claims. The infor-
Union Ins. Co., 144 N.H. mation may impact on the credibility
336, 338 (1999). of its agents on the efforts made to
Therefore, the requested obtain pertinent information on a late
information is not relevant noticed claim to overcome any preju-
nor likely to lead to the dice that may have resulted from
admissibility of relevant delay.”
evidence.”
Ms. Sullivan filed a Plaintiff ’s Counsel:
motion to compel. Mary Ann Dempsey, Esquire

Defendant’s Counsel:
Leslie C. Nixon, Esquire
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32TBN - Fall 2010

transactions, unless there has been an

accounting or settlement of partner-
ship affairs.” Smith v. Manchester
Mgmt. Corp., 117 N.H. 361, 363
(1977). The Court also acknowledged
that “courts are moving away from this
long standing rule and permitting
some partnership actions to be pur-
sued as actions at law without an
accounting.” See Thompson v.
Coughlin, 997 P.2d 191, 194 (Or.
2000). The Court found that the gen-
eral rule did not apply in this case,
however. As the Court explained,
“[t]here...is no requirement that an
accounting must occur prior to bring-
ing an equitable action.”
The Court held that no judicial
Case Name: standing that the petitioners sought an accounting was required as a prerequi-
State Farm Mut. Automobile Ins. Co. v. accounting in their prayer for relief. site to the petitioners’ claim because
Sullivan, Rockingham County “this action [falls] under the court’s
Superior Court, Docket No. 09-E- Held: The Court denied the respon- equitable jurisdiction.” As the Court
0506 dents judgment on the pleadings, hold- noted, the petitioners primarily
ing that “[t]he respondents’ argument claimed that the respondents breached
Order Date: that this case cannot be brought until their fiduciary duty to the plaintiffs by
May 17, 2010 (Nicolosi, J.) there has been a judicial accounting diverting Partnership assets. “Equity
must fail.” The Court acknowledged has jurisdiction over an alleged breach,
the general rule that “in the absence of abuse, or betrayal of a duty or obliga-
Court Denies Motion for Judgment statutory permission an action at law, tion arising out of a fiduciary or trust
on the Pleadings, Holding That as distinguished from an action in relationship,” said the Court. 30A
Partners May Bring An Equitable equity, is not maintainable between C.J.S. Equity §58 (2010).
Action Against Other Partners partners with respect to partnership “Accordingly, the petitioners’ action
Without A Judicial Accounting.

Facts: The petitioners, all limited

partners of the Mount Washington
Hotel Limited Partnership (MWH),
brought an action against the manag-
ing partners of the Partnership, Joel
Bedor and Wayne Presby. The petition-
ers alleged that they suffered damages
as a result of Bedor and Presby divert-
ing assets from MWH to the Mount
Washington Cog Railway, an entity
owned primarily by the Bedor and
Presby families. The petitioners
claimed breach of fiduciary duty and
sought an accounting.
The respondents moved for judg-
ment on the pleadings, arguing among
other things that “[p]artners cannot sue
other partners until and unless there
has been an accounting.” The respon-
dents advanced this argument notwith-
182
 Fall 2010 - 32TBN

for an accounting is properly before violations of RSA 354-A. The harassment and constructive dis-
the Court as an equity action,” the Defendant moved to dismiss the con- charge,” citing Sefiane v. Wal-Mart
Court held. structive discharge claim, arguing that Stores, Inc., 2002 WL 484664 at **3, 6
The Court further rejected the it constituted “a common law cause of (D.N.H. Mar. 27, 2002) and
petitioners’ argument that “the peti- action, which cannot be advanced DeHotman v. New Hampshire Dep’t of
tioners’ claims for an accounting and where a statutory remedy exists.” The Corrections, 2005 WL 3801470 at *5
for breach of fiduciary duty cannot Plaintiff objected, arguing that the con- (D.N.H. June 3, 2005).
survive because the partnership has structive discharge claim derived from Because constructive discharge is a
been dissolved and because ‘there has statute, not the common law, and that cognizable claim under Title VII, the
been a settlement of accounts.’” This the motion to dismiss should therefore Court held that it was likewise a cogniz-
argument was erroneous, the Court be denied. able claim under RSA 354-A. The Court
held, because: 1.) “the right to an thus denied the motion to dismiss.
accounting does not accrue until the Held: The Court denied the motion
date” the partnership dissolves, under to dismiss, holding that the construc- Plaintiff ’s Counsel:
New Hampshire’s Uniform tive discharge claim was advanced Benjamin T. King, Esquire
Partnership Act; and 2.) “the petition- under RSA 354-A, not the common
ers’ claims—whether the respondents law. The Court looked to case law aris- Defendant’s Counsel:
breached their fiduciary duty by ing under Title VII to determine Debra Weiss Ford, Esquire
diverting assets to the Cog—-are whether RSA 354-A provides for con-
premised on the results of an account- structive discharge claims, noting that Case Name:
ing.” “Therefore,” held the Court, “the “in an issue of first impression under Robinson v. Fairfield’s Pontiac, Cadillac,
petitioners could not have brought this RSA chapter 354-A, we rely upon cases Buick, GMC, Cheshire County
claim until after the partnership was developed under Title VII to aid in our Superior Court, Docket No. 10-C-
dissolved and the respondents’ argu- analysis.” Madeja v. MPB Corp., 149 0038
ment that dissolution of the partner- N.H. 371, 378 (2003).
ship precludes a cause of action against The Court held that “Title VII Order Date:
the former partners is without merit.” allows claims to be brought both for September 28, 2010 (Arnold, J.)
Emphasis supplied.

Petitioners’ Counsel:
Charles G. Douglas, III, Esquire, and
Benjamin T. King, Esquire

Respondents’ Counsel:
James E. Higgins, Esquire, and Jamie
N. Hage, Esquire

Case Name:
Eames v. Bedor, Merrimack County
Superior Court, Docket No. 217-
2010-cv-00166

Order Date:
July 19, 2010 (McNamara, J.)

Court Denies Motion to Dismiss

Constructive Discharge Claim in Case
Arising From Violations of RSA 354-A.

Facts: The Plaintiff alleged racial

harassment and constructive discharge
against his former employer, alleging

183
32TBN - Fall 2010

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184
 Fall 2010 - 32TBN

National Perspective - September 2010

by Robert S. Peck, Esq.
National Perspective focuses this licensees, or trespassers when injured passageways to do battle with the fall-
month on two cases. In one, on the property of another. Tenants, en snow, the sun-melted snow now
Massachusetts modernizes its law on for example, were owed a duty of rea- turned to ice, or the frozen rain.”
slip and falls, taking a more plaintiff- sonable care to keep common areas no The Court then announced a new
friendly approach, while the Third less safe than when the lease com- rule: “a property owner owes a duty to
Circuit issues a decision finding that menced. Under this approach, the all lawful visitors to use reasonable care
federal law does not preempt failure- owner was liable for obstructions he to maintain its property in a reason-
to-warn claims against pesticide manu- negligently caused, but not for ably safe condition in view of all the
facturers. obstructions arising from natural caus- circumstances.” To apply the rule,
es or others’ acts. To invitees, the courts were instructed to consider “the
Massachusetts Abandons owner was required to make reason- likelihood of injury to others, the
“Massachusetts Rule” in Slip and able efforts to remove or repair danger- probable seriousness of such injuries,
Fall Cases ous conditions or warn against dangers and the burden of reducing or avoid-
In an example of common-law that were not obvious. Licensees ing the risk.”
rulemaking, the state that gave its received the least protection; they were The Court also determined that
name to the “Massachusetts Rule” in only protected against willful or wan- the new rule would be applied retroac-
slip and fall cases has abandoned the ton injuries at the hands of the owner, tively, to the Papadopoulos case, as well
rule, which distinguished between as was true of trespassers. as all other cases now in court. In
owners’ responsibilities when snow or Slowly, courts began to reconsider doing so, the Court noted that gener-
ice naturally accumulated and the what the Massachusetts court called ally, “changes in the common law
same responsibilities where the accu- the “obsolete machinery of the com- brought about by judicial decisions are
mulation was unnatural. mon law” and eliminated most of these given retroactive effect,” largely
Emanuel Papadopoulos went distinctions. In Papadopoulos, the because “[r]eliance plays a much small-
shopping at the local Target Court decided that the distinction er part under tort law” than it does in
Department Store at Liberty Tree Mall between natural and unnatural accu- contract or property law.
in Danvers, Massachusetts in mulations of snow and ice had out-
December 2002. Though it was not lived its usefulness, being the subject of Failure to Warn Suit Against Pesticide
snowing or raining at the time, a prior great “confusion and conflict” in the Manufacturer Not Preempted
snow and freezing temperatures had cases as courts struggled to determine It has become de rigueur for defen-
rendered patches of the parking lot whether “the accumulation of snow dants to claim preemption at nearly
hazardous. Papadopoulos parked near and ice was natural or unnatural.” every opportunity. Two trips to the
the store entrance and made his pur- Sometimes, “the trampling of feet, the Third Circuit have now confirmed
chases. When he returned to his car, he rolling of tires, and even the passage of that pesticide manufacturers cannot
slipped on ice that had frozen to the time” would transform natural accu- avoid liability for failure to warn by
pavement and was injured. The trial mulations into unnatural ones. asserting preemption in Indian Brand
judge granted the defendants’ motion Sometimes, courts would decide that Farms, Inc. v. Novartis Crop Protection
for summary judgment, concluding underlying layers of ice were naturally Inc., 2010 WL 3122815 (3d Cir. Aug.
that the ice that caused the fall was a accumulated and not affected by shov- 10, 2010).
“natural accumulation,” which under eling or other activities and thus result In 1997, Novartis introduced a
the “Massachusetts Rule” entailed no in no liability. new, updated version of its pesticide,
liability. The court of appeals affirmed. Taking a new attitude to the issue, which a 17-page color marketing
In Papadopoulos v. Target Corp., the Court quoted the Rhode Island brochure proclaimed provided the
930 N.E.2d 142 (Mass. 2010), the Supreme Court in Fuller v. Housing “same powerful product performance”
Supreme Judicial Court of Authority (1971) approvingly: “We as its earlier products, but with better
Massachusetts abandoned the rule, believe that today a landlord, armed “safety to users and the environment”
finding it to be a “relic” of earlier case with an ample supply of salt, sand, and better “crop safety.” Blueberry
law. That case law often distinguished scrapers, shovels and even perhaps a farmers who had used Novartis’s earli-
between plaintiffs on the basis of snow blower, can acquit himself quite er products began using the new ver-
whether they were tenants, invitees, admirably as he takes in the common sion, mixing it with fungicides, as they
185
32TBN - Fall 2010

did before. The result, however, was systemic injury to their

blueberry plants, including blotches, depressions, spots, and
plant death.
A group of blueberry farms and farmers brought suit in fed-
eral court against Novartis, claiming damages based on strict lia-
bility because the pesticide had a latent design defect and
Novartis had failed to warn against mixing the product with
fungicides; negligence in failing to test the product; negligent
misrepresentation/fraud for marketing the product as having
increased crop safety; breach of the New Jersey consumer pro-
tection act for deceptively representing that the pesticide was
safe for blueberry plants; and breach of express warranty.
Novartis successfully moved for summary judgment, argu-
ing that all claims were preempted by the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA). On appeal, the Third
Circuit reversed, finding that most claims were not preempted,
but remanding for fuller briefing on whether oral and written
misrepresentations should be treated differently for preemption
purposes, whether failure to warn claims were preempted, and
determinations on whether the plaintiffs had relied on the
alleged misrepresentations.
Once again, the district court granted summary judgment
to Novartis, finding that the farmers relied on written misrepre-
sentations that if corrected “would impose a labeling require-
ment in addition to the requirements set forth in FIFRA and
thus the claims were preempted.
In the new appeal, the Third Circuit reversed again.
Disagreeing with the district court, the appellate court held that
the Novartis marketing brochure does not constitute a “label”
and that a successful failure-to-warn claim “would not result in a
labeling requirement in addition to or different from those
required by FIFRA.” While the product’s 21-page “label” did
contain language that indicated crop injury could result from the
“presence of other materials, or the manner of use or applica-
tion,” the court found that mixing the pesticide with fungicides
was foreseeable. The court also held that there was a genuine issue
of material fact as to what the prudent manufacturer would do in
light of foreseeable mixing with respect to the design-defect claim
that rendered summary judgment inappropriate.

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A Review of Fault Grounds and Defenses in

New Hampshire Divorce Actions
by Margaret R. Kerouac, Esq.
Fault grounds are an intriguing only voluntary sexual intercourse
and controversial topic in family law. between a man and woman.2 In the
On the one hand, practitioners loathe matter of Blanchflower and
the inappropriate use of fault grounds Blanchflower, the Supreme Court
to gain an advantage, untimely plead- ruled that homosexual sex acts do not
ing of fault grounds and the pleading constitute “adultery” within the mean-
of fault grounds when such grounds ing of RSA 458:7.3 The Court required
will make little difference to the out- two persons of the opposite gender and
come of a case, but greatly escalate hos- “coitus,” defining “coitus” as “insertion
tility and/or costs. On the other hand, of the penis in the vagina.”4 The
most family law practitioners also Supreme Court further elaborated that
believe that fault grounds, used prop- non-coital acts are excluded from the
erly and responsibly, can be critical to fault ground of adultery.5 Proof of actu-
the fair adjudication of certain family al coitus is necessary to prevail on an
law cases, providing monetary relief to adultery fault ground.6 Circumstantial
aggrieved spouses in the form of dis- evidence is sufficient to proof, but sus-
proportionate property divisions and picion alone will not suffice.7 MARGARET R. KEROUAC, ESQ.
alimony awards. This article will When alleging the fault ground of MARGARET R. KEROUAC is a director in the
Manchester law firm of McLane, Graf, Raulerson &
endeavor to review the current status adultery, whether in a petition or cross Middleton. She received her JD from Suffolk University
of New Hampshire’s fault grounds. petition, counsel should ensure that Law School in 2000, where she served as an editor of the
Fault grounds have long been the petition contains the name and Suffolk Transnational Law Review. Attorney Kerouac’s
litigation practice focuses on domestic relations and per-
available in New Hampshire. In fact, address of the person with whom the sonal injury. She brings a broad skill set to her domestic
New Hampshire did not allow no-fault party is accused of committing adul- work, resolving cases through collaborative law, media-
divorces until 1971, when RSA 458:7- tery.8 Facts supporting a party’s fault tion, negotiation, and when necessary, trial. Her per-
sonal injury litigation practice includes diverse cases,
a was enacted. Prior to the enactment ground must be sufficiently set forth in ranging from medical negligence to product liability
of RSA 458:7-a, parties were required the petition for divorce.9 If the co- defense. Attorney Kerouac serves as the Chair of the New
Hampshire Bar Association Family Law Section, and
to prove fault to obtain a divorce. The respondent lives in New Hampshire, formerly served on the board of directors of the New
requirement that each party prove fault he or she will be served with the orders Hampshire’s Women’s Bar Association. She was recog-
to obtain a divorce resulted in many of notice and will become a party to nized among the New England Rising Stars ® 2009,
and received the Jack B. Middleton Pro Bono Legal
parties colluding to commit perjury, the action.10 If the co-respondent lives Services Award.
by stipulating to a fault ground that he outside of New Hampshire, then serv-
violence restraining orders15 and/or
or she did not commit, to obtain a ice by US regular mail is acceptable.11
suits against a spouse or former spouse
divorce. New Hampshire recognizes
in tort to recover damages for injuries
nine fault grounds, established by RSA Extreme Cruelty
occasioned by his/her abuse.16
458:7, including: adultery, extreme The fault ground of extreme cruel-
cruelty, treatment to seriously injure ty is available where physical violence
Treatment to Seriously Injure Health
health or endanger reason, habitual was perpetrated by one spouse upon
or Endanger Reason
drunkenness, conviction of a crime another.12 In most cases, proof of
Treatment to seriously injure
punishable by incarceration of more extreme cruelty will require a course of
health or endanger reason was enacted
than one year, impotency, desertion, conduct, meaning multiple instances
as a fault ground in 1840 to capture
abandonment and membership in a of abusive conduct, rather than a single
abusive conduct that fell short of the
religious sect that declares marriage to act.13 However, as articulated by the
extreme cruelty fault ground and
be unlawful. Each fault ground will be Supreme Court “acts of physical vio-
encompass the pain caused by mental
discussed in this article. lence need not be persistent, or
cruelty.17 The determination of
become a fixed habit, or be many in
whether the fault ground will be suc-
Adultery number, before they can be said to
cessful in a particular case depends
Adultery is the most commonly constitute extreme cruelty.”14 It should
upon the individual affected. A divorc-
pled fault ground.1 The fault ground of be noted that such bad behavior may
ing party need only prove that he/she
adultery is narrowly defined to include also lead to criminal charges, domestic
187
32TBN - Fall 2010

was actually adversely affected, not that endanger reason.22 To the extent that Impotency
a reasonable person under the circum- expert testimony is necessary, counsel for The impotency of either party is a
stances would have been so affected.18 the injured spouse should encourage the fault ground for divorce.26 The impo-
Certain factors presented in combination injured spouse’s mental health treatment tence fault ground requires that the
with each other have met this standard, providers to speak with independent condition be incurable and in existence
including: verbal abuse, physical abuse, counsel about the therapist’s rules of pro- at the time of the marriage.27 However,
being the target of alcoholic tirades, fessional conduct relating to his/her the condition itself is not the fault
being the victim of an unfaithful spouse, involvement to ensure that the therapist ground. As stated by the Court “the
fear, severe distress, nervousness, weight does not inadvertently run afoul of per- right to relief rests upon the ground of
loss, and suffering the consequences of tinent professional rules in the litiga- imposition and fraud.”28 Mere misfor-
intimidation tactics, death threats or tion context. tune, not occasioned by fault or fraud
unseemly behavior, such as urination on will not form the basis for a fault find-
clothing.19 However, mere feelings of Habitual Drunkenness ing. This fault ground is rarely utilized.
anger, upset and distress, such as those Chronic alcoholism for a period of
suffered by one spouse upon learning two years or more is a fault ground for Criminal Conviction and
that her husband was exchanging sugges- divorce.23 The language of the statute Imprisonment
tive emails with his former girlfriend, provides for a finding of fault in favor A divorce will be allowed in favor
were not sufficient, either in the form of of the innocent spouse when one party of the innocent party upon the “con-
the act or the claimant’s response there- is a “habitual drunkard, and has been viction of either party, in any state or
to.20 It should also be noted that there is such for 2 years together.”24 The federal district, of a crime punishable
no element of proof required concerning Supreme Court declined the invitation with imprisonment for more than one
the intent to cause harm or malicious to expand this fault ground to other year and actual imprisonment under
intent of the spouse against whom the intoxicants, such as prescription such conviction.”29 The scope of this
fault ground is asserted.21 Expert testimo- drugs.25 It is safe to assume that this fault ground has been interpreted to
ny may be helpful, but is not necessarily fault ground would not be expanded to include court-martial tribunals, even
required, to prove the fault ground of encompass illegal drugs under the same though the tribunal did not sit in New
treatment to seriously injure health or analysis. Hampshire, because the place of the
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conviction is not material to the ment may accrue while the parties are of provocation is that one is not enti-
statute.30 In Liberato v. Liberato, one separated, but live together in separate tled to assert a fault ground for marital
spouse moved from Rhode Island, rooms of the same house.41 In Brown v. wrong sustained as a result of his or her
where her spouse was imprisoned, to Brown, the Supreme Court explained a misconduct.49
New Hampshire, and then initiated result under such facts as follows: “the The defense of condonation may
proceedings for divorce under the fault offence at which this [section] is aimed be available if a party can prove the
ground statute.31 This was held to be is the abandonment of the relation of full, free and voluntary forgiveness of a
impermissible.32 The wife’s actions in husband and wife, not the abandon- previous “matrimonial offense on the
Liberato were essentially tantamount ment of the house in which they were condition that it would not be repeat-
to fault ground forum shopping. It living as man and wife.”42 An insanity ed.”50 Forgiveness based on condona-
should be noted that RSA 458:6 exception to this fault ground has been tion is conditional, the condition
requires the cause of a divorce to whol- established, wherein any period of being that the party at fault shall be
ly arise or accrue while the petitioner is insanity will toll the computation of guilty of no further misconduct.51
domiciled in the State.33 This is appli- the statutory period of abandonment.43 Should additional misconduct occur,
cable to all fault grounds. Any petition for divorce alleging the the original offense and subsequent
fault ground of abandonment should offense are available as fault grounds
Desertion sufficient set forth both the basis for for divorce.52 Condonation is an affir-
A party may pursue a divorce on a the fault ground and allege that the mative defense53 and should be pled as
fault ground of desertion when a refusal to cohabit continues to the such.
“party has been absent 2 years togeth- present date.44 A party can assert the defense of
er, and has not been heard of.”34 The connivance when the other party
desertion fault ground requires com- Religious Sect assented to the act underlying the fault
plete absence – not merely that the If a party joins “any religious sect ground in question.54 Where a party
party not be heard from, but that the or society which professes to believe passively or actively aided in the
party not be heard of.35 Testimony the relations of husband and wife accomplishment of the activity, the
from friends and/or family members unlawful, and [refuses] to cohabit with defense is available.55 Insanity at the
relating to the spousal desertion and the other for six months together,”45 a time of the commission of the acts
lack of knowledge as to the spouse’s fault ground is available. Whether one constituting the grounds for divorce is
location are required elements of or both parties are members of the also an affirmative defense.56
proof.36 Communication between group at some point is irrelevant.46
spouses and/or knowledge of location Practical Considerations
has been held sufficient to defeat this Defenses to Fault In addition to knowledge of the
fault ground.37 A party asserting the Several defenses are available to a current law surrounding fault grounds,
desertion fault ground must also con- party against whom a fault ground has there are a number of other considera-
tend with a legal relic dating back to been asserted, including: recrimina- tions to keep in mind when pleading a
the late 1800s. The Supreme Court has tion, condonation, innocence, con- fault ground, including the Rules of
interpreted the desertion fault ground nivance, insanity and provocation. The the Family Division, Rules of
to include an element of proof that the defense of innocence is, quite obvious- Professional Conduct and costs (actu-
deserting party had the pecuniary abil- ly, an assertion that the party did not al, emotional and familial).
ity, either through income or property, engage in the act alleged. These defens- Clients may be motivated to pur-
to provide support to the deserted es should be pled in an answer to a sue fault regardless of financial cost or
spouse during his/her absence, but fault ground petition for divorce and emotional cost as a reaction to the pain
neglected to do so.38 are explained below. associated with marital failure and for
Recrimination is a defense that the purpose of retribution, rather than
Abandonment can be asserted against a spouse who the legal remedies available in the form
“When either party, without has also engaged in wrongful conduct47 of alimony and property division.
cause, and without consent of the RSA 458:7 authorizes a fault-based Clients must be counseled against such
other, has abandoned and refused, for divorce only to an “innocent party.” an approach. The only use of a fault
2 years together, to cohabit with the Consequently, “a spouse who is guilty ground that will serve the best interest
other,”39 the abandonment fault of an offense against the other spouse, of a client, and therefore the only
ground is available. Abandonment which would be grounds for divorce, proper use, is when fault: (1) will make
does not require one spouse to lose cannot himself obtain one” on fault a meaningful difference to the finan-
contact with the other.40 In fact, the grounds because of the doctrine of cial outcome of the case; and (2) a
basis for a fault ground of abandon- recrimination.48 Similarly, the defense party is in possession of the necessary
189
32TBN - Fall 2010

evidence or is willing to fund the dis- loss to the marital estate or the injured 19 In the Matter of Gronvaldt and Gronvaldt, 150
covery necessary to obtain it. Even party.58 If this test is met, then fault can N.H. 551 (2004); Routhier v. Routhier, 128 N.H.
then, a client should be cautioned also be considered in the context of an 439 (1986); Morgan v, Morgan, 101 N.H. 471
(1958); Szulc v. Szulc, 96 N.H. 190 (1950)
about the long road ahead of any client alimony award.59 Ultimately, however, 20 Guy, 158 N.H at 413.
who pleads a fault ground, including the court’s decision on alimony and 21 Guy, 158 N.H at 413.
22 Gronvaldt, 150 N.H. at 554.
actual cost, emotional cost, and discov- property division matters is a matter of
23 RSA 458:7(VII); In the Matter of Sarvella and
ery necessary to prove the fault ground. equity and an exercise of discretion.60 A Sarvella, 154 N.H. 426, 429(2006).
Fault related discovery is often finding of fault may be given signifi- 24 RSA 458:7(VII).
cant weight and a large impact on 25 Sarvella, 154 N.H. at 429-30 (noting that defini-
intrusive and frequently offensive to tion of “drunkard” and intent at time of enactment
the recipient spouse. Counsel should property division and alimony or it
were clear and encompassed alcohol only).
be careful to remain objective in assess- may have no impact at all in matters of 26 RSA 458:7(I).
property division and alimony. 27 See RSA 458:7(I); Bascomb v. Bascomb, 25 N.H.
ing what information is necessary to 267 (1852).
prove the fault ground and ensure that The court must determine a single 28 Bascomb, 25 N.H. at *18
he/she does not ask superfluous and primary cause for the breakdown 29 RSA 458:7(IV).
of the marriage, whether irreconcilable 30 Clark v. Clark, 94 N.H. 398 (1947)
requests designed to punish, embarrass, 31 Liberato v. Liberato, 93 N.H. 219, 220 (1944).
intimidate a party or merely to satisfy differences or a fault ground.61 A court 32 Liberato v. Liberato, 93 N.H. at 220.
the curiosity of his/her client when cannot find that multiple fault grounds 33 RSA 458:6 (“jurisdiction of the cause for divorce

such information is irrelevant. Rule 3.4 caused the breakdown of the marriage exists when it wholly arose or accrued while the
or that both fault and irreconcilable plaintiff was domiciled in the state, and not other-
of the New Hampshire Rules of wise”).
Professional Rule of Conduct, entitled differences caused the breakdown of 34 RSA 458:7(VI); Davis v. Davis, 37 N.H. 191

“Fairness to Opposing Party and the marriage.62 Instead, the court must (1858); Fellows v. Fellows, 8 N.H. 160 (1835)
35 Fellows, 8 N.H. at 162.
Counsel” prohibits “frivolous discovery find the primary cause and declare that 36 Fellows, 8 N.H. at 162.
request[s].” Consequently, counsel to be the reason for the breakdown of 37 Davis, 37 N.H at 193-94
should carefully consider whether sen- the marriage.63 38 James v. James, 58 N.H. 266, 267 (1878); Davis,
Used appropriately, fault grounds 37 N.H at 193; Fellows, 8 N.H. at 162.
sitive discovery inquiries are likely to 39 RSA 458:7(IX).
lead to admissible evidence pursuant to allow aggrieved spouses the ability to 40 Brown v. Brown, 78 N.H. 337 (1917)
Family Division Rule 1.25(C). recover for marital wrongs through the 41 Brown, 78 N.H. at 338.
42 Brown, 78 N.H. at 338.
Attorneys should be careful not to ask divorce process. 43 Storrs v. Storrs, 68 N.H. 118 (1894).
questions of an embarrassing or offen- 44 Kimball, 13 N.H. 223-24.
sive nature simply because they are END NOTES 45 RSA 458:7(VIII); Dyer v. Dyer, 5 N.H. 271
1. Douglas, New Hampshire Practice: Family Law, (1830).
somehow related in type, but not rele- § 13.18 (2009) (citing statistics gathered by the 46 Fitts v. Fitts, 46 N.H. 184 (1865).
vant to, the fault ground. For example, New Hampshire Division of Vital Records 47 Rockwood v. Rockwood, 105 N.H. 129, 131
in an adultery fault ground case, coun- Administration Reports and reported in the New (1963).
Hampshire Sunday News) 48 Rockwood, 105 N.H. at 131.
sel would be well advised to avoid ques- 2 See In the Matter of David G. Blanchflower and 49 Poor v. Poor, 8 N.H. 307, 316 (1836)
tions inquiring about the name and Sian E. Blanchflower, 150 N.H. 226 (2003). 50 Tibbetts v. Tibbetts, 109 N.H. 239, 241(1968);
3 Id. at 227.
addresses of a spouse’s pre-marital sexu- 4 Id. at 227.
Szulc v. Szulc, 96 N.H. 190, 192 (1950); Paille v.
Paille, 91 N.H. 249 (1941)
al partners, sexual activities engaged in 5 Id. at 228. The Court noted that this was true 51 Szulc, 96 N.H. at 192.
with such partners and other intimate whether the participants were homosexual or hetero- 52 Szulc, 96 N.H. at 192.
details related thereto. Such discovery sexual. 53 Tibbetts, 109 N.H. at 241.
6 Id. at 229. 54 Bailey v. Bailey, 67 N.H. 402, 403 (1892)
would be irrelevant and unlikely to lead 7 Id. at 229. 55 Bailey, 67 N.H. at 403.
to admissible evidence. 8 See Family Division Rule 2.3(H). If the name of 56 Storrs v. Storrs, 68 N.H. 118 (1894)(noting that
The purpose of pleading a fault the co-respondent is unknown, then a statement to insanity can also toll the statutory time period com-
so-state will suffice. putation).
ground and conducting such discovery 9 Kimball, 13 N.H. at 223. 57 RSA 458:16-a(II)(l); RSA 458:19(IV)(b).
is, of course, the potential for a dispro- 10 See Family Division Rule 2.4(D). 58 RSA 458:16-a(II)(l).
11 See Family Division Rule 2.4(D). 59 RSA 458:19(IV)(b).
portionate property division and influ- 12 Tibbetts v. Tibbetts, 109 N.H. 239 (1968) 60 RSA 458:16-a(II); RSA 458:19(IV).
encing an alimony award. Fault is a 13 Tibbetts, 109 N.H. at 240. 61 Ebbert v. Ebbert, 123 N.H. 252 (1983).
permissible consideration, by statute, 14 Tibbetts, 109 N.H. at 240. 62 Ebbert, 123 N.H. at 254.
15 See RSA 173-B 63 Ebbert, 123 N.H. 254-55; In the Matter of
in both property distributions and
16 See Aubert v. Aubert, 129 N.H. 422
alimony awards.57 In the context of Mannion and Mannion, 155 N.H. 52, 56 (2007)
(1987)(allowing tort suit by one ex-spouse against
property division, fault may be consid- other to recover damages after extreme cruelty fault
ered if it caused the breakdown of the ground divorce in which same abusive conduct was
litigated, albeit in different context).
marriage and: (1) caused substantial 17 In the Matter of Guy and Guy, 158 N.H. 411
physical or mental pain and suffering; (2009)
or (2) resulted in substantial economic 18 Guy, 158 N.H. at 413.

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$*2·1HLO-U 1RUPDQGLQ&KHQH\ 2·1HLO
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32TBN - Fall 2010

NHAJ CLEs: By Litigators, For Litigators

Friday, November 19, 2010 Friday, April 15, 2011

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9:00 a.m. - 4:30 p.m. Program Chair: Fran Murphy , Esq.
Program Chair: Randolph Reis, Esq. SERESC Conference Center³Bedford, NH
SERESC Conference Center³Bedford, NH

Friday, February 18, 2011 Friday, May 20, 2011

Family Law Forum Litigating Medical Negligence
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SERESC Conference Center³Bedford, NH SERESC Conference Center³Bedford, NH
Friday, March 18, 2011 Friday, June 17, 2011
:RUNHUV·&RPSHQVDWLRQ&/( Here Come the Judges
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Program Chair: Ed Stewart, Esq. Program Chair: Finis Williams, Esq.
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NHAJ CLE Library

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Big Verdicts in New England High Stakes Litigation

Employment Cases Date of Program: May 2010
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Your Rewards and Minimize Your Date of Program: March 2010
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Ethics Blitz 2010 Family Law Forum - ³:KDW6R

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Looxcie Hearsay
By Martin R. Jenkins, Esq. © 2010

We have all seen those tiny con- The manufacturer says that the
traptions that people wear over their device can capture an event that you
ear, to use their cell phone hands-free. do not expect, which might be gone by
(Side rant—why don’t those the time you get your camera ready. As
things have a light or something? So they explain it, “Everybody gets the
you could tell when the wearer is talk- splash, but nobody gets the whale—
ing on the phone and not talking to you’re always just a little bit too late.
you in person. I always feel like an With Looxcie, you capture the
idiot when someone nearby starts jab- moment as it happens.” So the wearer
bering, and I think they’re talking to just goes about his business, and if
me, and I respond, and they wave something interesting occurs, he can
vaguely at their own head to indicate touch a button on the earpiece and
MARTIN R. JENKINS, ESQ.
they’re on the phone. At least with a send a clip of the last 30 seconds to his
light I would have a visual warning of phone. From there, he can send the MARTIN R. JENKINS (Attorney at Law, Concord)
received his JD from Boston University School of Law in
their phone activity. Anyway, where video and audio clip instantly by e- 1978. He is a Past President of NHTLA, as well as for-
was I?… Oh yeah, ear hardware.) mail or upload it to Facebook or mer Hillsborough County Governor and Chair of the
Membership Committee. He has chaired NHTLA’s
There is a new electronic device YouTube. Amicus Committee and the New Hampshire Bar
that looks a lot like those Bluetooth Now most folks, upon learning of Association’s Workers’ Compensation Section. He is a
phones. But this new device, from a this technology, might think about member of the American Association for Justice. Attorney
Jenkins is Counsel to the NH Department of Labor.
company called Looxcie, also acts as a sports events or baby’s first steps or
video camera, capturing everything the wild parties (or porn; check out the However, would such a video be
wearer looks at. (“Looxcie”, as in look- product forum pages). But as a lawyer, acceptable as evidence in a New
see, get it?) I think about evidence. Hampshire courtroom? Or, might the
The concept is that the wearer will Imagine how great it would be if person who made the recording face
record everything he hears and sees. your client had a video proving the sanctions for invading privacy?
Constantly. light was green when she was hit Ever since Hamberger v. Eastman,
Not even the biggest narcissist will broadside. Or to show what was really 106 N.H. 107 (1964), almost half a
think anyone is interested in viewing said and done in that heated con- century ago, our courts have had a
his activities 24/7. So the Looxcie frontation. Or to capture the inadver- hard time dealing with recordings and
holds only about four hours of video, tent admissions just after a traumatic the concept of a reasonable expectation
and then erases the oldest as it fills up event or just before signing a contract. of privacy. In Hamberger, although the
with the newest. court seemed to struggle, it should not
really have been a close call; a hidden
microphone in an unknowing couple’s
bedroom was pretty obviously a tort.
MAINE CASE? After that, and RSA chapter 570-
A, there were many cases about when
and how police can wiretap and secret-
Lawyers throughout Maine and around the country regularly rely on ly record material to convict people of
the experience and resources that Berman & Simmons attorneys bring committing crimes. But I am more
to personal injury cases. Perhaps that is because we are recognized as the
interested in recordings by average cit-
“Best Plaintiff’s Firm In The State.” If you have clients who might benefit
from working with us, please call. Think of us as your office “Down East.” izens and how those work out. (Well,
average citizens who know how to bug
a phone, maybe.)
For example, in State v. Sheedy,
125 N.H. 108 (1984), a man was con-
800 244 3576 victed of a crime for recording phone
ber
bermansimmons.com
mansimmons.com

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 Fall 2010 - 32TBN

calls into his own business without

telling the callers. He got off on the
technicality of not being allowed to
argue that he thought he was permitted
to make the recordings under federal
law. The Feds allow recording with the
consent of only one party, while New
Hampshire law requires the consent of
everyone.
In Fischer v. Hooper, 143 N.H. 585
(1999), a divorced couple were disput-
ing visitation, and the ex-husband
recorded the phone calls into his home
from his ex-wife to their daughter (at
the guardian ad litem’s suggestion, no
less). When the recordings came out,
the wife sued for invasion of privacy.
The husband was found liable and
ordered to pay tens of thousands in
damages. The court remanded, focus-
ing on the narrow question whether an expectation of privacy anywhere
the recording was done “knowingly” or short of their bedroom?
“willfully”. And as for me, if you ever meet me
All this leaves me no closer to cer- when I’m wearing an earpiece, then
tainty about the usefulness or legality smile. I might be recording you. Even if
of someone recording their own life there is no little red light.
and using that as evidence. Clearly, for
some people, such recordings have
turned around to bite them in the butt.
The key seems to be whether everyone
knew, and therefore consented, to
being recorded. But in today’s
YouTube, traffic-cam, Google street-
view world, can anybody really claim

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