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Osman v. Lin

Supreme Court of New Hampshire

August 23, 2016

WEN LIN & a.

          Argued: June 22, 2016

         Hillsborough-northern judicial district

          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.

          Kazan Shaughnessy McDonald, PLLC, of Manchester, filed no brief for defendant William Stergios.


          BASSETT, J.

         In this 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 consideration:

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 Hampshire law?

         We answer the transferred question in the negative.

         I. Background

         We 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.

         According 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' apartments.

         The 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.

         According 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 ...

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