Argued: November 14, 2017
Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on
the brief and orally), for the plaintiff.
Kiernan Trebach & Crociata, LLP, of Boston, Massachusetts
(Kenneth H. Naide, John A. Kiernan, and Andrew Butz, on the
brief, and Mr. Kiernan orally), for the defendant.
plaintiff, Brandon Stachulski, brought suit against the
defendant, Apple New England, LLC, under a theory of strict
products liability alleging that he contracted salmonella by
eating a hamburger at the defendant's restaurant,
Applebee's Neighborhood Bar and Grill, where he dined
with his wife and brother-in-law in February 2014. The
defendant disputed the allegation that the hamburger was the
source of the plaintiff's salmonella illness and asserted
that the plaintiff's pet lizard or other food sources
could just as likely be the cause of his illness. Following a
three-day trial in Superior Court (Schulman, J.),
the jury returned a general verdict in the plaintiff's
favor, awarding him $750, 000 in damages.
appeal, the defendant argues that the trial court erred by:
(1) admitting unfairly prejudicial evidence; (2) admitting
the plaintiff's expert's testimony; (3) submitting
the issue of causation to the jury; (4) instructing the jury
on awarding hedonic and future pain and suffering damages;
(5) permitting the plaintiff's counsel to make certain
statements during his opening and closing arguments; and (6)
denying its request for remittitur. We affirm.
defendant first argues that the trial court erred in
admitting unfairly prejudicial testimony. Prior to trial, the
defendant moved in limine to exclude the
plaintiff's testimony about his belated offer to test the
lizard for salmonella. We construe the defendant's
argument as being a challenge to the trial court's denial
of its motion in limine. "Because the trial
court ruled upon the admissibility of the challenged evidence
before trial, we consider only the offers of proof presented
at the pretrial hearing." State v. Gordon, 161
N.H. 410, 414 (2011).
appealing party, the defendant has the burden of providing a
record sufficient to decide its issues on appeal. See
Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
Although the defendant provided its motion in limine
to exclude this testimony, it has failed to provide any
evidence regarding the basis for the trial court's
denial. Absent a complete record, we must assume that the
evidence was sufficient to support the result reached by the
trial court. See id. Thus, we cannot conclude that
it was an unsustainable exercise of discretion for the trial
court to deny the defendant's motion in limine.
defendant next argues that the trial court committed an
unsustainable exercise of discretion in allowing the
plaintiff's expert, Seth D. Rosenbaum, M.D., to testify.
The defendant contends that Dr. Rosenbaum's testimony was
not "based upon sufficient facts" or "the
product of reliable principles and methods," and
therefore "resulted from failure to apply accepted
principles and methods reliably to adequate facts."
Prior to trial, the defendant moved in limine to
exclude Rosenbaum's testimony and the court held a
hearing to determine its admissibility. Because we construe
the defendant's appellate argument regarding the
admissibility of Rosenbaum's testimony as a challenge to
the trial court's denial of its motion in
limine, "we consider only the offers of proof
presented at the pretrial hearing." Gordon, 161
N.H. at 414.
702 authorizes the trial court to admit expert witness
testimony. See N.H. R. Ev. 702. To be admissible,
however, expert testimony must rise to a threshold level of
reliability. Osman v. Lin, 169 N.H. 329, 335 (2016).
To determine the reliability of expert testimony, the trial
court must comply with RSA 516:29-a (2007). Id.
Portions of RSA 516:29-a codify principles outlined by the
United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993).
Id.; see also Baker Valley Lumber v.
Ingersoll-Rand, 148 N.H. 609, 614 (2002) (applying the
Daubert framework to evaluate the reliability of
expert testimony under Rule 702).
witness shall not be allowed to offer expert testimony unless
the court finds:
(a) Such testimony is based upon sufficient facts or data;
(b) Such testimony is the product of reliable principles and
(c) The witness has applied the principles and methods
reliably to the facts of the case.
In evaluating the basis for proffered expert testimony, the
court shall consider, if appropriate to the circumstances,
whether the expert's ...