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Stachulski v. Apple New England, LLC

Supreme Court of New Hampshire, Rockingham

July 18, 2018

BRANDON STACHULSKI
v.
APPLE NEW ENGLAND, LLC

          Argued: November 14, 2017

          Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on the brief and orally), for the plaintiff.

          Bonner 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.

          HANTZ MARCONI, J.

         The 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.

         On 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.

         The 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).

         As the 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.

         The 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.

         Rule 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).

         RSA 516:29-a provides:

         I. A witness shall not be allowed to offer expert testimony unless the court finds:

(a) Such testimony is based upon sufficient facts or data;
(b) Such testimony is the product of reliable principles and methods; and
(c) The witness has applied the principles and methods reliably to the facts of the case.

         II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's ...


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