ARBAY M. OSMAN & a.
WEN LIN & a.
Argued: June 22, 2016
Shaheen & Gordon, P.A., of Manchester (Francis G. Murphy
on the brief and orally), and Seufert Law, PA, of Franklin
(Christopher J. Seufert on the brief), for the plaintiffs.
Primmer Piper Eggleston & Cramer, PC, of Manchester (Gary
M. Burt and Adam R. Mordecai on the brief, and Mr. Burt
orally), for defendants Wen Lin, Lepa Lin, and Property
Services Company, LLC.
Sulloway & Hollis, P.L.L.C., of Concord, filed no brief
for defendant Frederick Keefe, individually and as trustee of
KC Realty Trust.
Getman, Schulthess, Steere & Poulin, P.A., of Manchester,
filed no brief for defendants Rene Denis and Carmen Denis.
Shaughnessy McDonald, PLLC, of Manchester, filed no brief for
defendant William Stergios.
interlocutory appeal, the plaintiffs, children who are Somali
Bantu refugees or whose parents are Somali Bantu refugees,
challenge an order of the Superior Court (Nicolosi,
J.), granting the motion to exclude the expert testimony of
Peter Isquith, Ph.D., filed by the defendants in whose
Manchester apartments the plaintiffs once lived. See Sup.
Ct. R. 8. After evaluating the 20 plaintiffs, Isquith, a
clinical neuropsychologist, determined that 17 of them suffer
from neurological deficits and opined that lead exposure was,
more likely than not, a substantial factor in causing those
deficits. The superior court excluded Isquith's testimony
based upon its determination that his testimony was not
"the product of reliable principles and methods, "
RSA 516:29-a, I(b) (2007), and its finding that he did not
apply "the principles and methods reliably to the
facts" of this case, RSA 516:29-a, I(c) (2007). The
superior court has transferred the following question for our
Did the trial court commit an unsustainable exercise of
discretion in excluding the testimony of Peter Isquith,
Ph.D., based on its finding that Dr. Isquith's
methodology fails to meet the threshold level of reliability
required of an expert witness, per RSA 516:29-a and New
answer the transferred question in the negative.
accept the statement of the case and facts as presented in
the interlocutory appeal statement and rely upon the record
for additional facts as necessary. See State v. Hess
Corp., 159 N.H. 256, 258 (2009). Seventeen of the 20
plaintiffs are Somali Bantu refugees who were resettled to
the United States in 2004. Three of the plaintiffs were born
in the United States to Somali Bantu refugees. All of the
plaintiffs learned English as a second language; their first
language was either Maay Maay or a tribal language.
to the plaintiffs, and not disputed by the defendants, the
plaintiffs lived in the defendants' apartments during
2005-2006, and those apartments were contaminated by lead
paint, a known health hazard. The plaintiffs have elevated
levels of lead in their blood. In their complaints, which
were consolidated for discovery and trial, the plaintiffs,
through their parents, allege that they were injured by their
exposure to lead paint while living in the defendants'
plaintiffs' counsel hired Isquith to assess whether the
plaintiffs had neurological deficits that were more likely
than not caused by lead paint exposure. Isquith did so
primarily using two measures: (1) the Reynolds Intellectual
Assessment Scales (RIAS); and (2) the Developmental
Neuropsychological Assessment, Second Edition (NEPSY-II). The
RIAS measures verbal and nonverbal intelligence and general
intelligence. The NEPSY-II neuropsychological test is
"specifically designed for children." Baxter v.
Temple, 157 N.H. 280, 307 (2008) (describing the
predecessor to the NEPSY-II). It consists of a flexible
battery of 32 subtests, which are divided into six domains of
cognitive functioning: attention and executive functioning;
language; memory and learning; sensorimotor; social
perception; and visuospatial processing. See id.
"Each subtest has been individually standardized and . .
. scored." Id.
to one of the defendants' experts, standardization refers
to the process by which raw scores on a test are converted to
standard scores, meaning "a metric that has a uniform
meaning." According to that expert, one way to
standardize scores "is to test a substantial number of
individuals, line up the[ir] scores from lowest to highest,
and then determine, for each score or person, the percentage
of individuals whose scores that person surpasses."
"The result is referred to as a percentile score, which
reflects [an individual's] relative standing [when]
compared to others." Thus, "if one's . . .
score falls at the 25th percentile, " then that score is
equal to, or exceeds, the scores of 25 out of 100
individuals. According to this defense expert, "[f]or
information about relative standing to be of value, an
individual needs to be compared to a ...