New Hampshire Compendium of Law

STATE OF NEW HAMPSHIRE COMPENDIUM OF LAW

Prepared by R. Matthew Cairns, Samantha Elliott and Caroline Lyons Gallagher, Callahan & Gartrell, PC 214 North Main Street Concord, NH 03302-1415 (603) 228-1181 www.gcglaw.com

Updated 2012 PRE-SUIT AND INITIAL CONSIDERATIONS

Pre-suit Notice Requirements/Prerequisites to Suit

A) Professional liability. N.H. REV. STAT. ANN. § 507-C is titled Actions for Medical Injury. N.H. REV. STAT. ANN. § 507-C:5, Notice of Intent to Sue, provides that "no action for medical injuries shall be commenced until at least 60 days after service upon the person or persons alleged to be liable, by certified or registered mail, of a written notice of claim setting forth, under oath, the nature and circumstances of the alleged injuries and the damages claim." The statute provides further that "if the notice is served within 60 days of the expiration of the period for bringing suit . . ., the time for commencement of the action shall be extended 60 days from the service of the notice." Thus, if a party serves notice before the expiration of the two year statute of limitations provided for in N.H. REV. STAT. ANN. § 507-C:4, the statute of limitations is extended sixty days from the service of the notice.1

B) Actions against government agencies.

1) Claims against the State. N.H. REV. STAT. ANN. § 541-B provides that claims against the state are to be brought before the Board of Claims. That chapter also describes the types of claims that can be brought against the state and the damage caps applicable to those claims. N.H. REV. STAT. ANN. § 541-B:14, IV provides that the state department or agency being sued shall, as a condition precedent to suit, be provided with written notice within 180 days after the time of injury or damages as to the date, time, and location of the injury or damage that has occurred. The statute provides further that failure to provide the notice required "shall not bar a claim unless the agency can show by a preponderance of the evidence that its ability to defend against the action was substantially prejudiced thereby."

2) Suits against governmental units other than the State of New Hampshire. N.H. REV. STAT. ANN. § 507-B is titled Bodily Injury Actions Against Governmental Units. Governmental units are defined "as any political subdivision within the state including any county, city, town, precinct, school district, chartered public school, school administrative unit, or department or agencies thereof, or any other body corporate and politic within the state, but does not include the state or any department or agency thereof." N.H. REV. STAT. ANN. § 507- B:7 provides that as condition precedent to commencing any action against a "governmental unit," the "clerk of the governmental unit shall be notified by registered mail within 60 days after the time of the injury or damage or discovery of the injury or damage, if it could not reasonably have been discovered at the time of the occurrence of the injury or damage, as to the date, time and location where the injury or damage occurred." The statute imposes upon the "governmental unit" the burden of proving substantial prejudice if the 60 day notice requirement is not met.

C) Special notice provisions with respect to skiing accidents.

Because New Hampshire has a number of ski areas, it has adopted specific legislation governing lawsuits against ski area "operators." N.H. REV. STAT. ANN. § 225-A:25, IV provides that "no action shall be maintained against any operator for injuries to any skier or passenger

1 No bills in 2012, 2011 or 2010 on point re RSA 507-C. 1 unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury."

Relationship to the Federal Rules of Civil Procedure

Procedure in New Hampshire courts is governed by the New Hampshire Court Rules Annotated. A number of years ago, New Hampshire considered adoption of the Federal Rules of Civil Procedure but that proposal was rejected by the New Hampshire Supreme Court. The structure of the New Hampshire court rules is substantially different from that of the Federal Rules of Civil Procedure. New Hampshire, however, much like the federal rules, has adopted the concept of notice pleading. See Porter v. City of Manchester, 151 N.H. 30, 43 (2004) ("New Hampshire maintains a system of notice pleadings. As such, we take a liberal approach to technical requirements of pleadings. If, however, the plaintiff has suffered damages that are not readily apparent from the facts alleged, those damages should be specifically stated.") (citations and internal citations omitted). With respect to actions at law, a party need not file specific answers to each allegation. The entry of an appearance acts as a general denial. Parties, however, must file written notice of affirmative defenses in accordance with the court rules.

In equity matters, the defendant is required to file an answer which either admits, denies or states that the party is without knowledge as to a particular fact, which will be treated as a denial.

On October 1, 2010 in Strafford and Carroll Superior Courts, a civil rules pilot project began. This project, designed to make the civil litigation process more efficient and affordable, is known as “Proportional Discovery/Automatic Disclosure" (“PAD”). On October 1, 2012, the PAD rules will take effect in both Hillsborough County Superior Courts. The PAD rules will apply prospectively to all new cases filed in Hillsborough North and South after October 1, 2012. The PAD rules continue to apply to cases filed in Strafford and Carroll counties.

Description of the Organization of the State Court System

A) Judicial selection. Supreme Court justices, Superior Court justices, Probate Court judges and District Court judges are appointed for life by the governor with the approval of the executive council and hold their offices "during good behavior." See N.H. CONST. pt. 2, art. 73. Marital Masters are not “judicial officers” within the meaning of the state constitutional provisions on appointment and term of judicial officers. While they are nominated and appointed by the governor with the approval of the executive council, they serve an initial term of three years. See Opinion of the Justices (Recommendations of Marital Masters), 155 N.H. 524, 526-27 (2007).

B) Structure. New Hampshire's unified judicial system features three levels of courts. Those levels from highest authority to lowest consist of the Supreme Court, Superior Court and District Court. The Probate Court is a court of limited jurisdiction but its position in the court hierarchy is similar to that of the Superior Court. Additionally, the New Hampshire legislature

2 has created a family division within the current judicial branch structure. Marital Masters preside over family division proceedings.

1) Supreme Court. The Supreme Court is New Hampshire's only appellate court. It has "general superintendence of all courts of inferior jurisdiction to prevent and correct error and abuses . . . ." See N.H. REV. STAT. ANN. § 490:4.

2) Superior Courts. The Superior Courts are courts of general jurisdiction, with power to hear all suits at law and in equity, except those specifically reserved for the district or probate courts. See N.H. REV. STAT. ANN. §§ 491:7, 498:1. New Hampshire has eleven Superior Courts, one in each county with the exception of Hillsborough County which has two.

3) Circuit Courts. On July 1, 2011, the New Hampshire Circuit Court began operation. This merged the District Courts, Probate Courts, and the Family Division. The Circuit Court handles approximately ninety percent of the cases filed in the state court system. Jurisdictions for the district, probate and family divisions of the Circuit Court are the same as the prior District and Probate Courts and Family Division. Court locations, addresses, telephone numbers, rules, filing procedures and scheduling are also the same in the District, Probate and Family Divisions of the Circuit Court.

There are ten Circuit Courts, one for each of New Hampshire’s counties. In Cheshire County, the marital division continues to operate as part of the Cheshire County Superior Court. In all the other counties, the Circuit Court Family Division operates at the same locations as the former Family Division. Judges who now sit on the Circuit Court continue to preside over the same types of cases for which they were appointed prior to the July 1, 2011 merger.

1. District Courts. The District Courts are located throughout the state. See N.H. REV. STAT. ANN. § 502-A:1. These courts have exclusive jurisdiction over civil claims that do not exceed $1,500 and do not involve title to real estate, but trial by jury is not provided in the District Courts. The Circuit Courts have concurrent jurisdiction with the Superior Courts over civil actions where the damages claimed do not exceed $25,000 and which do not involve title to real estate. Concurrent jurisdiction of any Circuit Court can be increased to $50,000 by the Supreme Court under certain conditions. See N.H. REV. STAT. ANN. § 502-A:14, II-a. If the amount in controversy is greater than $1,500 or the title to real estate is involved, a defendant may request a jury trial within statutorily prescribed time limits. Such a request will result in an immediate transfer to the Superior Court. See N.H. REV. STAT. ANN. § 502-A:15.

2. Small Claims Court. Small claims court is a non-jury proceeding in the District Court when the claim does not exceed $5,000 and does not involve title to real estate. It is a simplified and informal procedure and the claim be prosecuted by an individual acting pro se or by the individual's attorney. If the amount in controversy is greater than $1,500, the defendant may request a jury trial within the statutorily prescribed time limit, which will result in an immediate transfer of the claim to Superior Court. See N.H. REV. STAT. ANN. § 503.

3. Probate Courts. Probate Courts have exclusive jurisdiction over wills, administration of estates, administration of trusts, guardianships, adoptions, name changes,

3 termination of parental rights, living wills, durable powers of attorney for health care, and certain land disputes. In addition, the Probate Courts have concurrent jurisdiction with the superior court over cases involving charitable trusts, certain durable powers of attorney and waivers for the marriage of minors. See N.H. REV. STAT. ANN. § 547:3.

4. Family Division. The family division exercises exclusive jurisdiction over matters that were previously heard in the Superior, District and Probate Courts. Those matters are as follows:

a) Petitions for divorce, nullity of marriage, alimony, custody of children, support and to establish paternity.

b) Actions for support or custody for children of unwed parties.

c) Actions relating to delinquent children except for concurrent jurisdiction with the district court for the entry of temporary orders.

d) Actions relating to abused and neglected children except for concurrent jurisdiction with the district court to enter certain orders.

e) Actions relating to children in need of service except for jurisdiction with the district court for the entry of certain orders.

f) Actions relating to protection of persons from domestic violence except for concurrent jurisdiction with the superior and district courts to enter protective orders.

g) The adoption of children in abuse and neglect cases, termination of parental rights cases and guardianship over the person of minors.

h) The guardianship of persons of minors, except, however, in cases involving the guardianship of both the person of the minor and the estate of the same minor which remains with the probate court.

See N.H. REV. STAT. ANN. § 490-D:2.

C) Alternative dispute resolution.

Alternative dispute resolution is governed by Superior Court Rule 170. That rule provides parties with four options: mediation; neutral evaluation; binding arbitration; or any other method of dispute resolution agreed upon by the parties. The alternative dispute resolution program provides for selection of mediators under either a volunteer or pay for services program. Except for a limited category of cases, alternative dispute resolution is mandatory under Rule 170. Parties, however, can opt out of the court sponsored program and select private mediation with the approval of the Court.

Service of Summons

A) Individual. Service of Process upon an individual is governed by N.H. REV. STAT. ANN. § 510:2. Process may be served on an individual by handing a copy to the individual and any place within the state or, by leaving an attested copy at the defendant’s home, unless otherwise provided by law. 1) Nonresident Defendant. Service of process outside of New Hampshire is governed by N.H. REV. STAT. ANN. § 510:4. Process may be served on the Secretary of State by leaving a copy with $10 fee. However, in order for the service to have the same legal effect as personal service, the plaintiff or his attorney must send to the defendant at his last know abode or place of business in the state or country in which the defendant resides, by registered mail, postage prepaid, a copy of the process. The plaintiff must submit to the court the sheriff’s return showing service on the Secretary of State, the registered mail receipt and an affidavit of the plaintiff or his attorney stating that the plaintiff has forwarded process as required. If the notice and copy of the process are not delivered or accepted by the defendant, the court may order additional notice, as justice may require. The statute also provides that this method of service is not exclusive. 2) Scire Facias. If the defendant is not an inhabitant of New Hampshire, a writ of scire facias may be service on the attorney who appeared for him in the original action pursuant to N.H. REV. STAT. ANN. § 510:6. 3) Other Notice. N.H. REV. STAT. ANN. § 510:8 provides that if a defendant is not an inhabitant of New Hampshire, and either no mode of serving the writ is prescribed or service cannot be made by the prescribed mode, the action may be entered in court and notice ordered as the case requires. 4) Publication. Notice can be given via publication in a newspaper when ordered by the court. N.H. REV. STAT. ANN. § 510:9. The notice must contain the title of the case, the name of the court in which it is pending, the time and place of the return and hearing, the fact that the original is on file and may be examined, and any other facts that the court ordered. B) Defendant Local Governments. Service of writs against defendant local governments is governed by N.H. REV. STAT. ANN. § 510:10. Service may be made against counties upon one of the county commissioners and the treasurer for the county; against cities, upon the mayor or one of the aldermen and the city clerk; against towns, upon one of the selectmen and the town clerk; against school districts, upon one of the members of the school board and the clerk of the district; and against village districts, upon one of the commissioners and the clerk of the district. 1) Service on Town Clerk. Service of process on Town Clerk is governed by N.H. REV. STAT. ANN. § 510:12. If service of process is required to be made by leaving a copy at the home of the town or city clerk, it is sufficient if the copy is left at his office, in case he has an office separate from his dwelling.

C) Associations. Service of writs or other process against unincorporated associations, joint stock companies, limited liability companies, syndicates, orders or any mutual association of person, other than a partnership having not more than four members, within New Hampshire, except as otherwise provided, may be made upon any officer, or, if it has no officer, then upon any two members. N.H. REV. STAT. ANN. § 510:13. A New Hampshire Partnership with four or fewer general partners cannot be sued in the firm name, and all general partners must be served by in-hand or abode service. Id. D) Corporations. Service of writs against other domestic corporations may be made upon the clerk, treasurer, cashier, or one of the directors, trustees or managers, in New Hampshire, and upon any principal member or stockholder, or upon any agent, overseer or other person having the care of any of the property or charge of any of the business of the domestic corporation. N.H. REV. STAT. ANN. § 510:14. Alternatively, a domestic corporation’s registered agent is the corporation’s agent for service of process. N.H. REV. STAT. ANN. § 293-A:5.04. If a domestic corporation has no registered agent, or the agent cannot with reasonable diligence be served, the domestic corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. N.H. REV. STAT. ANN. § 293-A:5.04(b). Service is perfected under this subsection at the earliest of: (1) the date the corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the corporation; or (3) five days after its deposit in the U.S. mail, as evidence by the postmark, if mailed postpaid and correctly addressed. N.H. REV. STAT. ANN. § 293- A:5.04 states that it does not prescribe the only means, or necessarily the required means, of serving a domestic corporation. 1) Foreign Corporations. Service of process against foreign corporations is governed by N.H. REV. STAT. ANN. § 293-A:15.10. Process may be served on the secretary of state by leaving a copy with $10 fee. However, in order for the service to have the same legal effect as personal service, the plaintiff or his attorney must send to the defendant at his last know abode or place of business in the state or country in which the defendant resides, by registered mail, postage prepaid, notice of service on secretary of state and a copy of the process. The defendant’s return receipt and an affidavit of the plaintiff or his attorney of compliance with the section must be appended to the process and entered at the Secretary of State’s office. If the notice and copy of the process are not delivered or accepted by the defendant, the court may order additional notice, as justice may require. The statute also provides that this method of service is not exclusive. Alternatively, the registered agent appointed by a foreign corporation authorized to transact business in New Hampshire is the agent of the foreign corporation for service of process. N.H. REV. STAT. ANN. § 293-A:15.10. A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent annual report if the foreign corporation: (1) has no registered agent or its registered agent cannot with reasonable diligence be served; (2) has withdrawn from transacting business in this state under N.H. REV. STAT. ANN. § 293- A:15.20; or (3) has had its certificate of authority revoked under N.H. REV. STAT. ANN. § 293-A:15.31. N.H. REV. STAT. ANN. § 293-A:15.10(b). Service is perfected under this

subsection at the earliest of: (1) the date the foreign corporation receives the mail; (2) the date shown on the return receipt, if signed on behalf of the foreign corporation; or (3) five days after its deposit in the U.S. mail, as evidence by the postmark, if mailed postpaid and correctly addressed. N.H. REV. STAT. ANN. § 293-A:15.10(c). N.H. REV. STAT. ANN. § 293-A:15.10 states that it does not prescribe the only means, or necessarily the required means, of serving a foreign corporation. 2) Foreign Banks. Service of process against foreign banks is governed by N.H. REV. STAT. ANN. § 384-F:25. Any process arising out of a foreign bank’s activities in New Hampshire must be made on the New Hampshire banking commissioner by delivering to and leaving with him, or with any official having charge of his office, duplicate copies of such process. The commissioner then shall immediately forward a copy by registered mail addressed to such foreign bank at its principal office. Any service on the commissioner shall be returnable in not less than thirty days. N.H. REV. STAT. ANN. § 384-F:25(III) states that it does not limit or affect the right to serve any process in any other manner permitted by law. E) Commencing action. Writs may be entered with the court prior to service of process or after service of process. N.H. SUP. CT. R. 2. For purposes of complying with the statute of limitations, an action will be deemed commenced on the date of the service of the writ, or the date of entry of the writ, whichever occurs first. Id. F) Railroads. Writs may be served against a railroad corporation upon any person doing the business as ticket master for the sale of passenger tickets at any station upon its railroad. N.H. REV. STAT. ANN. § 510:15. G) Manufacturing Corporations. Service of writs against a manufacturing corporation may be made by leaving an attested copy at the office or counting room off the corporation. N.H. REV. STAT. ANN. § 510:16. Statutes of Limitations

A) Personal Actions. Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought within three years of the act or omission. N.H. REV. STAT. ANN. § 508:4(I). This includes the following actions: medical malpractice,2 legal malpractice, wrongful death, personal injury, and contract. 1) Discovery rule. When the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovery at the time of the act or omission, the action will be commenced within three years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission. N.H. REV. STAT. ANN. § 508:4(I). 2) Slander and Libel. Unless otherwise provided by law, may be brought within three years of the time the cause of action accrued. N.H. REV. STAT. ANN. § 508:4(II).

2 N.H. REV. STAT. ANN. 507-C:4 that gives a two (2) year statute of limitations was held unconstitutional. 7

3) Damages from Construction. Except as otherwise provided in the statute, all actions to recover damages for injury to property, injury to the person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including without limitation the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection of that improvement, shall be brought within eight years from the date of substantial completion of the improvement, and not thereafter. N.H. REV. STAT. ANN. § 508:4-B. 4) Actions Based on Sexual Assault and Related Offenses. A person, alleging to have been subjected to any offense under N.H. REV. STAT. ANN. § 632-A or an offense under N.H. REV. STAT. ANN. § 639:2, who was under eighteen years of age when the alleged offense occurred, may commence a personal action based on the incident within the later of: (I). Twelve years of the person's eighteenth birthday; or (II). Three years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of. N.H. REV. STAT. ANN. § 508:4- G. B) Survival. If an action is not then pending, one may be brought for such cause at any time within six years after the death of the deceased party, subject to the provisions of N.H. REV. STAT. ANN. § 508. N.H. REV. STAT. ANN. § 556:11. C) Product Liability. Action must be commenced within three years of the time the injury is, or should, in the exercise of reasonable diligence, have been discovered by the plaintiff. D) Real Estate. No action for the recovery of real estate can be brought after twenty years from the time the right to recover first accrued to the party claiming it or to some persons under whom the party claims. N.H. REV. STAT. ANN. § 508:2(I). 1) Possibility of reverter, right of re-entry, or executor interest. No action for the recovery of real estate pursuant to the rights based on the possibility of reverter, right of re-entry, or executor interest shall be brought after five years from the time the right to recover possession or the right of re-entry first accrued to the party claiming it or to some persons under whom the party claims. N.H. REV. STAT. ANN. § 508:4(II). E) Joinder, Impleader, Intervention. (Joinder): Any party to any action may, at any stage of the proceedings, move that third parties as to whom the claim has not been barred by joined, either as plaintiffs or defendants, for the determination of their rights or obligations in the underlying claim. (Impleader): A defendant may bring an action against any other person who will be liable to him should the plaintiff prove any part of his claim. N.H. SUP. CT. R. 27. The third-party proceeding must be commenced within sixty days of the return day of the writ or within sixty days of the plaintiff filing a counterclaim. Id. (Intervention): A party seeking to intervene in a pending action should file a Petition to Intervene at any time before verdict or decree. However, the court is less likely to grant the Petition the later in the case that it is filed.

F) Minor or Disabilities. An infant or mentally incompetent person may bring a personal action within two years after such disability is removed. N.H. REV. STAT. ANN. § 508:8. G) Specialties. Actions of debt upon judgments, recognizances, and contracts under seal may be brought within twenty years after the cause of action accrued. N.H. REV. STAT. ANN. § 508:5. Statute of Repose

A) Damages from Construction. All actions to recover damages from injury to property, injury to person, wrongful death or economic loss arising out of any deficiency in the creation of an improvement to real property, including the design, labor, materials, engineering, planning, surveying, construction, observation, supervision or inspection that that improvement, must be brought within eight years from the date of substantial improvement. N.H. REV. STAT. ANN. § 508:4-b(I). 1) Substantial completion. Substantial completion means that construction is sufficiently complete so that an improvement may be utilized by its owner or lawful possessor for the purposes intended. N.H. REV. STAT. ANN. § 508:4-b(II). 2) Fraud. Actions involving fraudulent misrepresentations or fraudulent concealment of material facts must be brought within eight years after the date on which all relevant facts are, or with due care ought to be, discovered by the person bringing the action. N.H. REV. STAT. ANN. § 508:4-b(V)(a). 3) Products Liability. Actions arising out of a deficiency in the creation of an improvement protect only those who are involved in some way in the transformation of a product into an enhancement to the value or use of real estate, based upon their role in that transformation. Phaneuf Funeral Home v. Little Giant Pump Co., No. 2011–151, 2012 WL 2476952, at *4 (N.H. June 29, 2012). Venue Rules

A) Generally, an action, in which any one of the parties is an inhabitant of New Hampshire, must be brought in the county where one of them resides. N.H. REV. STAT. ANN. § 507:9. If none of the parties is an inhabitant of New Hampshire, the action may be brought in any county. Id. Special rules exist with respect to the following types of actions: 1) By or Against Executor. The action must be brought in the same county or in one of the counties in which it might have been brought by or against the testator in intestate at the time of his death; provided, that an executor can maintain an action in the county in which he or she is appointed. N.H. REV. STAT. ANN. § 507:10. B) Improper venue. Improper venue can be questioned at any stage of the proceeding. Langdell v. E. Basket & Veneer Co., 78 N.H. 243 (1916). Considerations of venue usually focus on one of two issues: (1) the location or locations in which the action must be entered; and (2) the location in which an action ought to be tried. Upon a finding of improper venue, the court will transfer the case to the appropriate county. C) Forum non conveniens. The forum non conveniens doctrine allows a court to refuse to exercise jurisdiction if it is a seriously inappropriate forum for the trial of the action so 9

long as an appropriate forum is available to the plaintiff. Vandam v. Smit, 101 N.H. 508 (1959). There are eight basic principles governing this doctrine: (1) It cannot be invoked until the court’s jurisdiction has been established. It is invoked via a Motion to Dismiss; (2)The decision to invoke the doctrine is generally within the discretion of the trail court and should be based on the facts of each case; (3) It will not ordinarily be applied in favor of a defendant who resides in New Hampshire; (4) The plaintiff’s choice of forum enjoys a presumption of appropriateness; (5) If neither the parties nor the case has any connection with New Hampshire, the plaintiff has the burden of justifying his choice of forum; (6) The court will not invoke the doctrine for reasons such as, for example, both parties or their witnesses reside outside the state or the United States; (7) It will not be applied in favor of a forum in another country, in the absence of unusually extreme circumstances, when it cannot be doubted that material injustice will otherwise result; and (8) The court may invoke the doctrine in specific circumstances.

Negligence

Comparative Fault/Contributory Negligence

A) Contributory negligence. “A plaintiff's [contributory] negligence involves a breach of the duty to care for oneself.” Boughton v. Proulx, 152 N.H. 549, 558 (2005). To prove contributory negligence, the defendant must prove that the plaintiff failed to exercise care and that such failure was a substantial factor in bringing about his/her injury.

B) Comparative negligence. “Contributory fault shall not bar recovery in an action by any plaintiff or plaintiff’s legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of the fault attributed to the plaintiff by general verdict. The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation.” N.H. REV. STAT. ANN. § 507:7-d. Consequently, under New Hampshire law a plaintiff may recover when the plaintiff’s own negligence is not greater than the causal negligence of the defendant or defendants, if more than one. When the percentage of negligence attributable to the plaintiff is 50% or less, the amount recovered is calculated by reducing the total damages, as determined by the finder of fact, in proportion to the negligence of the plaintiff.

C) Multiple defendants. N.H. REV. STAT. ANN. § 507:7-e provides:

I. In all actions, the court shall:

(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and

(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party's liability shall be several and not joint and he shall be liable only for the damages attributable to him.

(c) RSA 507:7-e, I(b) notwithstanding, in all cases where parties are found to have knowingly pursued or taken active part in a common plan or design resulting in the harm, grant judgment against all such parties on the basis of the rules of joint and several liability.

II. In all actions, the damages attributable to each party shall be determined by general verdict, unless the parties agree otherwise, or due to the presence of multiple parties or complex issues the court finds the use of special questions necessary to the determination. In any event, the questions submitted to the jury shall be clear, concise, and as few in number as practicable, and shall not prejudice the rights of any party to a fair trial.

III. For purposes of contribution under RSA 507:7-f and RSA 507:7-g, the court shall also determine each defendant's proportionate share of the obligation to each claimant in accordance with the verdict and subject to any reduction under RSA 507:7-i. Upon motion filed not later than 60 days after final judgment is entered, the court shall determine whether all or part of a defendant's proportionate share of the obligation is uncollectible from that defendant and shall reallocate any uncollectible amount among the other defendants according to their proportionate shares. The party whose liability is reallocated is nonetheless subject to contribution and to any continuing liability to the claimant on the judgment.

IV. Nothing contained in this section shall be construed to modify or limit the duties, responsibilities, or liabilities of any party for personal injury or property damage arising from pollutant contamination, containment, cleanup, removal or restoration as established under state public health or environmental statutes including, but not limited to, RSA 146-A, RSA 147-A and RSA 147-B.

D) Apportionment. Under New Hampshire law, apportionment of liability may include all parties to a transaction or occurrence giving rise to a plaintiff’s injuries. “[A]llegations of a non-litigant tortfeasor’s fault must be supported by adequate evidence before a jury or court may consider it for fault apportionment purposes.” DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793, 805 (2006).

E) Effects of New Hampshire Comparative Fault Statute. Passage of the New Hampshire Comparative Fault Statute subsumed doctrine of contributory negligence within doctrine of comparative negligence. See Bazazi v. Michaud, 856 F. Supp. 33 (D.N.H. 1994); Bohan v. Ritzo, 141 N.H. 210 (1996).

F) Loss of consortium. A loss of consortium claim is “separate and distinct and not derivative." Reid v. Spadone Mach. Co., 119 N.H. 198, 199 (1979). Therefore, a spouse's loss of consortium action will not be barred or reduced by a verdict rendered against the

plaintiff in a negligence action. Brann v. Exeter Clinic, 127 N.H. 155, 158-59 (1985).

G) Last clear chance. The New Hampshire Supreme Court has never explicitly stated that the advent of comparative negligence has replaced the “last clear chance” doctrine. It is likely, however, that its factors are only to be considered in the apportionment of fault. See Hanson v. N.H. Pre-Mix Concrete, Inc., 110 N.H. 377 (1970). In any event, to be applicable, there must be evidence from which the following facts can be found: "1. That the one to be charged with liability was actually aware of the other's presence. 2. That he was actually aware that the other was either ignorant of the peril or unable to extricate himself from it. 3. That, after discovery of the situation, due care required and time afforded an opportunity for saving action." Hamlin v. Roundy, 96 N.H. 123 (1950).

Exclusive Remedy – Workers’ Compensation protections

A) Statute. Workers’ compensation in New Hampshire is governed by the “Workers’ Compensation Law,” N.H. REV. STAT. ANN. § 281-A.

B) Construction. “[T]he Workers' Compensation Law [is construed] liberally, resolving all reasonable doubts in statutory construction in favor of the injured employee in order to give the broadest reasonable effect to its remedial purpose.” Appeal of Ann Miles Builder, Inc., 150 N.H. 315, 319 (2003).

C) Elements. “To prove that a claim is compensable under the Workers' Compensation Law, the claimant must prove: (1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to employer and employee.” Harrington v. Brooks Drugs, 148 N.H. 101, 105 (2002).

D) Exclusivity. N.H. REV. STAT. ANN. § 281-A:8 provides:

Employees Presumed to Have Accepted.

I. An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee's personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers; and

(b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer or the employer's insurance carrier or an association or group providing self-insurance to a number of employers.

II. The spouse of an employee entitled to benefits under this chapter, or any other person who might otherwise be entitled to recover damages on account of the employee's personal injury or death, shall have no direct action, either at common law or by statute or otherwise, to recover for such damages against any person identified in subparagraph I(a) or (b).

III. Nothing in this chapter shall derogate from any rights a former employee may have under common law or other statute to recover damages for wrongful termination of, or constructive discharge from, employment. However, if a former employee makes a claim under this chapter for compensation for injuries allegedly caused by such wrongful termination or constructive discharge, the employee shall be deemed to have elected the remedies of this chapter, and to have waived rights to recover damages for such wrongful termination or constructive discharge under common law or other statute. Similarly, if a former employee brings an action under common law or other statute to recover damages for such wrongful termination or constructive discharge, the employee shall be deemed to have waived claims under this chapter for compensation allegedly caused by such termination or discharge.

1) Co-employees. Employees are precluded from asserting negligence claims, but still may assert intentional tort claims, against co-employees. Young v. Conductron Corp., 899 F. Supp. 39 (D.N.H. 1995).

2) Insurance carrier. The workers’ compensation carrier is expressly immune from civil liability. N.H. REV. STAT. ANN. § 281-A:8.

3) Exception to exclusivity. “[A] n employee of an employer failing to comply with the provisions of RSA 281-A:5, or dependents of that employee if death ensues, may pursue any available remedy at law, free of the waivers and immunities conferred by RSA 281-A:8.” N.H. REV. STAT. ANN. § 281-A:7, IV.

F) In the Course of Employment. “Once an activity has been placed in physical contact with the employment environment, ‘the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might.’” Appeal of Estate of Balamotis, 141 N.H. 456, 458 (1996).

G) Time limitations. N.H. REV. STAT. ANN. § 281-A:21-a provides: Time Limitations for Filing Claim.

Compensation for disability, rehabilitation, medical benefits, or death benefits under this chapter shall be barred unless a claim is filed within 3 years after the date of injury; provided, however, that if the nature of the injury and its possible relationship to the

employment are not known to the employee, the time for filing a claim shall not begin to run until the earlier of the following:

I. The date the employee knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employment; or

II. In the event of death, the date any dependent knows, or by reasonable diligence should know, of the nature of the injury and its possible relationship to the employee's employment.

Indemnification

A) Generally. Indemnity is a common law remedy that shifts the entire loss from one who is compelled by legal obligation to pay a judgment occasioned by the initial negligence of another, despite no active fault on his part, and for which that person only is liable secondarily. Jaswell Drill Corp. v. Gen. Motors Corp., 129 N.H. 341, 346 (1987). “[O]ne joint tortfeasor ha[s] a right to indemnity ‘against another where the indemnitee's liability is derivative or imputed by law . . . or where an express or implied duty to indemnify exists.” Id.

B) Express or implied. The right of indemnification may be based upon a contract to indemnify. “[E]xpress language is not necessary to obligate a contractor to protect against injuries resulting from the owner's negligence where the parties' intention to afford such protection is clearly evident.” Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623 (1980). “In interpreting an indemnification contract, the same rules apply as are used to interpret contracts generally.” Id. The New Hampshire Supreme Court has “found an implied duty to indemnify in two cases: Sears, Roebuck & Co. v. Philip, 112 N.H. 282 (1972), and Wentworth Hotel v. Gray, Inc., 110 N.H. 458 (1970). In each case the indemnitor had agreed to perform a service for the indemnitee. In each, the indemnitor was assumed to have performed negligently. And in each, the result was a condition that caused harm to a third person in breach of a non-delegable duty of the indemnitee. In neither was the indemnitee assumed to have been negligent, at least beyond a failure to discover the harmful condition. Collectramatic v. Ky. Fried Chicken Corp., 127 N.H. 318, 321 (1985). “The rationale for finding an implied agreement to indemnify in that situation is based on ‘the fault of the indemnitor as the source of indemnitee's liability in the underlying action and, conversely, the indemnitee's freedom from fault in bringing about the dangerous condition.’” Jaswell Drill Corp. v. Gen. Motors Corp., 129 N.H. 341, 346 (1987).

C) Indemnification for own negligence. Although New Hampshire law generally prohibits exculpatory contracts which indemnify a person for his own negligence, the court will enforce them if: (1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff's claims were within the contemplation of the parties when they executed the contract. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106-07 (1986). In interpreting an exculpatory contract, the court gives the language

used by the parties its common meaning and gives the contract itself the meaning that would be attached to it by a reasonable person. As long as the language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant's negligence, the agreement will be upheld. New Hampshire strictly construes exculpatory contracts against the defendant. Id.

D) Joinder. While New Hampshire’s Workers’ Compensation Law operates to deprive an injured employee of his rights of action at common law against his employer and the employer's insurer, it expressly preserves the employee's right to proceed against third persons in tort. N.H. REV. STAT. ANN. § 281:13. Hence our compensation law apparently presents no obstacle to the maintenance of the employee's action at common law against a third party and the consequent action over by the third party against the employer. “[T]he mere conferral upon the employee of rights to compensation against the employer should not operate to deprive third persons of common-law rights against the employer which they may have as a result of breach by the employer of separate obligations to them.” Wentworth Hotel v. F. A. Gray, Inc., 110 N.H. 458, 460 (1970).

Joint and Several Liability

A) Contribution vs. Indemnity. Indemnity is a complete shifting of liability to another, while contribution generally allows recovery of only a part of the liability. Consol. Util. Equip. Servs., Inc. v. Emhart Mfg. Corp., 123 N.H. 258 (1983). Indemnity is only available when there is an expressed or implied duty to indemnify; contribution is available through statute and allows in some circumstances a tortfeasor to recover from another tortfeasor the damage caused by the other. Hamilton v. Volkswagen of Am., Inc., 125 N.H. 561 (1984); Consol. Util. Equip. Servs., Inc. v. Emhart Mfg. Corp., 123 N.H. 258 (1983).

B) Single, Individual Injury. If separate and independent acts of negligence by two or more parties are each a substantial cause of a single injury to a third person, and if it is not possible to determine what portion of the injury was caused by each party, then each is liable for the entire injury. Maxfield v. Maxfield, 102 N.H. 101 (1959); Panagoulis v. Philip Morris &Co., 95 N.H. 524, 525 (1949).

C) Joint Venture/Common Plan. When two or more persons join in a business enterprise for profit, or some activity with a common purpose, and each has a right to control or manage, then each is liable for any negligence of the other committed within the scope of the enterprise. The right to have a voice in the operation and control of the enterprise or activity must result from the circumstances, purpose, and nature of the joint venture. Miami Subs Corp. v. Murray Family Trust, 142 N.H. 501 (1997).

D) Comparative Fault. A jury may allocate legal fault of the plaintiff's injuries against one or more defendants, as well as against the plaintiff. A plaintiff who is more than 50% legally at fault cannot recover any damages. If a plaintiff is 50% or less legally at fault, he/she can recover damages, but only in proportion to the amount of the defendants' legal

fault. For example, a plaintiff who is found to be 51% at fault for an accident can recover nothing. If, on the other hand, a plaintiff and one defendant were each found 50% legally at fault and the total of the plaintiff's damages were found to be $100.00, then the plaintiff can recover $50.00 from that defendant. Bohan v. Ritzo, 141 N.H. 210 (1996); DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006).

The plaintiff has the burden of proving by a preponderance of the evidence that a defendant is legally at fault for an accident and damages. However, in connection with the defendant's claim that the plaintiff is at fault, the defendant carries the burden of proof that the plaintiff was comparatively at fault because the plaintiff failed to use reasonable care and that such failure was a substantial factor in bringing about his/her injury. N.H. REV. STAT. ANN. § 507:7-d.

A special verdict form is used to determine comparative fault issues. N.H. REV. STAT. ANN. § 507:7-e(II).

E) Apportionment of Damages. In all actions, the court shall instruct the jury, or find if there is no jury, the amount of damages to be awarded to each claimant and against each defendant (and party) in accordance with the proportionate fault allocated to each party. N.H. REV. STAT. ANN. § 507:7- e(I)(a); DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006); Nilsson v. Bierman, 150 N.H. 393 (2003).

F) Joint Tortfeasors and Contribution. In all actions, the court shall enter judgment against each party liable on the basis of joint and several liability. Under the rule of joint and several liability, a joint tortfeasor defendant who is partially responsible for a plaintiff's injuries may be held responsible for the entire amount of the recoverable damages if that defendant is found to be 50% or more responsible for the injuries. If a joint tortfeasor defendant is found to be less than 50% at fault, then that defendant’s liability will be only for that portion attributed to him/her. N.H. REV. STAT. ANN. § 507:7- e(I)(b); DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006); Nilsson v. Bierman, 150 N.H. 393 (2003); Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007).

G) Common Plan or Design. In all cases where parties are found to have knowing pursued or taken active part in a common plan or design resulting in the harm, the court shall grant judgment against all such parties on the basis of the rules of joint and several liability. N.H. REV. STAT. ANN. § 507:7- e(I)(c).

H) Procedure for Apportionment of Damages Among Tortfeasors. For the purposes of contribution and enforcement of contribution, the court shall determine each defendant's proportionate share of the obligation to each claimant in accordance with the verdict and subject to any reduction by settlement. If a motion is filed within sixty days of the final judgment, the court shall determine whether all or part of a defendant's proportionate share of the obligation is uncollectable from that defendant and shall reallocate any uncollectable amount among the other defendants according to their proportionate shares. N.H. REV. STAT. ANN. § 507:7-e(III).

I) Contribution Among Tortfeasors. A right of contribution exists between or among two or more persons who are jointly and severally liable upon the same individual claim, or otherwise liable for the same injury, whether or not judgment has been recovered against all or any of them. N.H. REV. STAT. ANN. § 507:7-f(I).

Generally, the right of contribution may be enforced only by a separate action brought for that purpose. The basis for contribution is each person's share of the obligation, including the proportionate share of the claimant at fault. No right of contribution exists against a person who is immune to the claim or against the claimant at fault. N.H. REV. STAT. ANN. § 507:7-f(I).

Contribution is not available to a person who enters into a settlement with a claimant unless the settlement extinguishes the liability of the person from whom contribution is sought, and then only to the extent that the amount paid in settlement was reasonable. N.H. REV. STAT. ANN. § 507:7-f(II).

J) Enforcement of Contribution. If the proportionate fault of the parties to a claim for contribution has been established, a party paying more than its proportionate share of the obligation may recover judgment for contribution upon motion in the same action, or by separate action. N.H. REV. STAT. ANN. § 507:7-g(I).

If, on the other hand, the proportionate share of the parties to the claim for contribution has not been established, contribution may be enforced in a separate action, whether or not a judgment has been rendered against either the person seeking contribution or the person from whom contribution is being sought. N.H. REV. STAT. ANN. § 507:7-g(II).

If a judgment has been rendered, the action for contribution must be commenced within one (1) year after the judgment becomes final. N.H. REV. STAT. ANN. § 507:7-g(III).

If not judgment has been rendered, the person bringing the action for contribution must have either (a) discharged by payment the common liability within the statute of limitations applicable to the claimant's right of action against that person and commence the action for contribution within one (1) year after payment, or (b) agreed while action was pending to discharge the common liability and, within one (1) year after the agreement, have paid liability and commence an action for contribution. N.H. REV. STAT. ANN. § 507:7-g(III).

K) Resolution of Claims for Contribution. While the general rule under the New Hampshire Statute favors resolution of claims for contribution by arbitration in accordance with the rules of the American Arbitration Association, in reality, arbitration is rarely used because there are two exceptions: (i) a party seeking contribution by separate action may elect to have the contribution action heard in the same court by filing an action; or (b) the party against whom contribution is sought in a separate action may, within sixty (60) days of receiving notice by certified mail of a demand for arbitration, elect to have the contribution action heard by a court of competent jurisdiction. Thus, despite the general rule in favor of arbitration, either a plaintiff or defendant may have the

action heard by a court rather than arbitration. N.H. REV. STAT. ANN. § 507:7-g(IV)(a, b).

Notwithstanding the above, if and only if the plaintiff and the principal action agrees, may a defendant seeking contribution bring an action in contribution prior to the resolution of the plaintiff's principal action, and such action shall be consolidated for all purposes with the principal action. N.H. REV. STAT. ANN. § 507:7-g(IV)(c).

L) Effect of Release on Right of Contribution. A release, given in good faith, to one or more person liable in tort for the same injury discharges only that person in accordance with its terms and from all liability for contribution, but it does not discharge any other person liable upon the same claim unless its terms expressly so provide.

However, the release reduces the claim of the releasing person against other persons, jointly and severally liable (50% at fault or greater), by the amount of consideration paid for the release. Other persons, who are only severally liable (less than 50% at fault) do not receive the pro tanto credit. N.H. REV. STAT. ANN. § 507:7-h; Tiberghein v. B.R. Jones Roofing, 156 N.H. 110 (2007); DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006).

M) Inadmissible Evidence and Post Verdict Procedure. Evidence of a settlement with one or more persons liable for the same injury shall not be introduced in evidence. However, the court shall inquire of counsel the amount of any consideration paid for any such settlement and shall reduce the plaintiff's verdict by that amount. N.H. REV. STAT. ANN. § 507:7-i.

Strict Liability in Tort

A) Elements.

Strict liability requires six elements to be proved:

1. The defendant is in the business of selling the product; and 2. The product was in a defective condition unreasonably dangerous to the user or the consumer; and 3. The unreasonably dangerous condition existed when the defendant sold the product; and 4. The product reached the user or consumer without substantial change in the defective condition in which it was sold; and 5. The unreasonably dangerous condition caused or substantially cause the plaintiff's injury; and 6. The purpose and manner of the plaintiff's use of the product was intended or, although not intended, was reasonably foreseeable by the defendant.

Kelleher v. Marvin Lumber &Cedar Co., 152 N.H. 813 (2005).

B) Defect in Design.

A defective design of a product requires four elements to be proved:

1. The design of the product created a defective condition unreasonably dangerous to the users; and 2. The condition existed when the product was sold by a seller in the business of selling such products; and 3. The use of the product was reasonably foreseeable by the manufacturer; and 4. The condition caused injury the user or the user's property.

Trull v. Volkswagen of Am., Inc., 145 N.H. 259 (2000).

A defect in design occurs when the product sold has been manufactured in conformity with the manufacturer's design but the design itself presents unreasonable dangers to users or consumers.

In determining whether a design presents an unreasonably danger, the jury is to consider the desired ability and usefulness of the product to the public. Even if the product is desirable and useful to the public, the jury should consider whether the risk of unreasonable danger could have been reduced without significant impact on the effectiveness of the product and the cost of the manufacturing; liability may exist if the manufacturer did not take available and reasonable steps to lessen or eliminate the danger of even a useful and desirable product. A manufacturer is not obligated to design the safest possible product, or a safer product, or one as safe as others may, so long as the design adopted is not unreasonably dangerous.

Thibeault v. Sears Roebuck & Co., 118 N.H. 802, 807-08 (1978).

C) Defect in Manufacture. A defect in manufacturing occurs when a product is intended to conform to a design that does not present unreasonable danger to users or consumers, but a mistake in the manufacturing process causes the product not to conform to the design.

Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813 (2005).

D) Failure to Warn. In determining whether there is a design defect in a product, the jury may consider whether there was a warning and if so, whether the warning was adequate.

A manufacturer may avoid liability if it has given reasonable warnings of dangers incident to the use of the product.

Some products, such as knifes, are obviously inherently dangerous, so no warning to the users or consumers is required. However, when a risk in using a product is not apparent, the user or consumer must be adequately and understandably warned of the dangers that are not readily apparent.

Nor is a manufacturer required to warn against dangerous uses which are not intended and not reasonably foreseeable by the manufacturer/seller. Individual consumers and users have certain responsibilities to use reasonable and due care. A manufacturer/seller cannot reasonably foresee and warn of every conceivable dangerous use of his/ her product.

However, when an unreasonable danger could have been eliminated without excess cost or loss of product efficiency, liability may attach even though the use was intended or was unintended and reasonably foreseeable and the danger was obviously or there was adequate warning. The obviousness of the danger is evaluated against the reasonableness of the steps which the manufacturer/seller must take to reduce or eliminate the danger.

Thibeault v. Sears Roebuck & Co., 118 N.H. 802, 808-09 (1978).

E) Failure to Warn - Obvious Hazards and Plaintiff's Misuse. A manufacturer/seller of a product is under no duty to provide notice or warning of an obvious hazard presented by a product or for a hazard which has been created by the plaintiff's own alteration or misuse of the product.

A manufacturer/seller of a product is not required to furnish a warning with respect to the product when the danger presented by the product is known and recognized by those persons who are using or foreseeably would use the product.

N.H. CIV. JURY INSTR. 23.5 (2007); RESTATEMENT (SECOND) OF TORTS §402a cmt. I (1965).

F) Plaintiff's Misconduct Defense. If the product was unreasonably dangerous and the defendant is liable, a jury may go on to determine if the plaintiff committed misconduct that contributed to cause his/her injuries.

With respect to the plaintiff's alleged misconduct, the defendant bears the burden of proof that it is more likely than not that the plaintiff committed misconduct in his/her use of the product.

Misconduct includes, but is not limited to, abnormal use of the product, misuse of the product, failing to discover or foresee dangers which an ordinary person would have discovered or foreseen, and voluntarily and unreasonably proceeding to encounter a known danger.

If the jury finds that the misconduct of the plaintiff was not reasonably foreseeable by the defendant, the plaintiff is not entitled to recover for his/her injuries.

Even in the case in which the plaintiff's misconduct was reasonably foreseeable by the defendant, the plaintiff is not entitled to recover if that misconduct was more than 50% responsible for the injuries.

If the plaintiff's misconduct contributed 50% or less to cause his injuries, a jury may return a verdict in favor of the plaintiff but the amount of the verdict will be reduced by the court by the percentage represented by the plaintiff's misconduct.

Cyr v. J.I. Case Co., 139 N.H. 193 (1994); Thibeault v. Sears Roebuck & Co., 118 N.H. 802, 811-13 (1978).

H) State of the Art Defense. The test for deciding whether the design of a product is defective is whether the manufacturer/seller has complied with the state of the art. The “state of the art” test requires that the design be viewed in light of what was scientifically, technologically and economically feasible when the product was distributed or sold. The test is not want the industry was doing when the product was distributed or sold. The test is what the industry could feasibly have been doing scientifically, technologically and economically when the product was sold or distributed. Heath v. Sears Roebuck &Co., 123 N.H. 512, 530 (1983).

DISCOVERY

PAD Automatic Disclosures

Under the PAD Rules (discussed above on page 2), the following materials must be provided to the other parties without awaiting a discovery request:

(a) Name and, if known, the address and telephone number of each individual likely to have discoverable information hat the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment, and, unless such information is contained in a document provided pursuant to PR 3(a)(2), a summary of the information believed by the disclosing party to be possessed by each such person; (b) A copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (c) A computation of each category of damages claimed by the disclosing party together with all documents or other evidentiary materials on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and (d) For inspection and copying, any insurance agreement or policy under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

These disclosures must be made by:

(a) The plaintiff no later than thirty (30) days after the defendant to whom the disclosure is being made has filed its answer to the complaint; (b) The defendant no later than sixty (60) days after the defendant making the disclosure has filed its answer to the complaint.

Each party has a duty to supplement that party’s initial disclosure promptly upon becoming aware of the supplemental information. A party who fails to timely make the disclosures under this rule may be sanctioned as provided in Rule 35. N.H. PAD R. 3.

Expert Witnesses

A) Identity. In New Hampshire, under N.H. REV. STAT. ANN. § 516:29-b, I, a party in a civil case shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the New Hampshire Rules of Evidence.

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report signed by the witness. The report shall contain a complete statement of:

(a) All opinions to be expressed and the basis and reasons therefor;

(b) The data or other information considered by the witness in forming the opinions;

(d) The qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years;

(e) The compensation to be paid for the study and testimony; and

(f) A listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding 4 years.

These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least ninety days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party, within thirty days after the disclosure made by the other party. The parties shall supplement these disclosures when required in accordance with the court's rules.

B) Discoverability. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of New Hampshire’s general discovery rule, N.H. SUP. CT. R. 35(b)(1), may be obtained only as follows under N.H. SUP. CT. R. 35(b)(3):

(a) (i) A party may through interrogatories require any other party to identify each person, whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the Court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (c) of this rule, concerning fees and expenses as the Court may deem appropriate.

(b) A party may discover facts known or opinions held by an expert, who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(c) Unless manifest injustice would result, (i) the Court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery, and (ii) with respect to discovery obtained under subdivision (a)(ii) of this rule, the Court may require, and with respect to discovery obtained under subdivision (b), the Court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

C) Deposition. Deposition of experts is governed by N.H. REV. STAT. ANN. § 516:29-b, IV.

The deposition of any person who has been identified as an expert whose opinions may be presented at trial, and whose testimony has been the subject of a report under this section, shall not be conducted until after such report has been provided.

Non-Party Discovery

A) A summons (or subpoena) may be used to summon witnesses either to trial or depositions and they may be used to secure the production of documents from non-parties. The issuance of subpoenas is governed by N.H. REV. STAT. ANN. § 516. Subpoenas should be in the form prescribed by statute and may be signed by the Clerk of Court, any justice of the peace, or by a notary for depositions. Subpoenas are served by giving them in hand or reading them to the party to be deposed and by tendering the proper attendance fee as governed by N.H. REV. STAT. ANN. § 516:16: $30.00 for a law enforcement officer, $12.00 per half day for all others and mileage (currently $.17 per mile) to and from the place where attendance is required. Failure to honor a subpoena is a violation and repayment of costs may be ordered.

It is important to note, however, that nonresident witnesses cannot be compelled, as resident witnesses may be, to attend a trial, at least in civil actions; their consent must be secured. Ela v. Ela, 68 N.H. 312 (1895). Depositions are most often taken by agreement of counsel; no formal notice or subpoena is required. Usual procedure is to contact the attorney for the opposing party, make known a desire to depose the individual, and propose several possible dates for deposition. When a convenient date for all concerned has been determined, the party taking the deposition normally contacts a stenographer to arrange to have the deposition taken at the agreed place and time.

Privileges

Testimonial privileges may be divided into two groups: absolute and qualified. Absolute privileges apply as a complete protection at all times unless waived; qualified privileges do not prevent disclosure but form the basis for objection and the imposition of conditions on disclosure. Absolute privileges include self-incrimination and priest/penitent privilege. Qualified privileges include:

A) Journalists. The New Hampshire Supreme Court has recognized a qualified privilege against forced disclosure of a journalist’s sources. Downing v. Monitor Publ’g Co., Inc., 120 N.H. 383 (1980). A journalist is justified in refusing to respond to requests for discovery of his sources until adequate safeguards have been imposed.

B) Work-Product of Attorneys or Other Representatives. Except in the case of experts retained for and expected to testify at trial, a party cannot be required to disclose what his attorney or other representative has prepared or has had prepared in the course of work on the case except upon a showing that the discovering party has “substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” N.H. SUP. CT. R. 35(b)(2).

C) Attorney-client privilege. This privilege is codified at Rule 502 of the New Hampshire Rules of Evidence: 502(b) General Rule of Privilege: A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . . The burden of proving that an attorney-client privilege should apply rests on the party asserting the privilege. Information which is otherwise discoverable cannot be protected from disclosure simply by communicating it to a party’s attorney. Under N.H. SUP. CT. R. 18, no attorney shall be compelled to testify in any cause in which he is retained, unless he shall have been notified in writing previous to the 24

commencement of the term of trial that he will be summoned as a witness therein, and unless he shall have been so summoned previous to the commencement of the trial. Under the New Hampshire Rules of Professional Conduct, Rule 1.6, a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation. That said, attorneys have often been subpoenaed to disclose the identity of clients and the nature of the fee arrangement between the attorney and the client. Except for special and narrowly-defined circumstances, courts usually compel attorneys to provide such information. The general rule, as state in In re Grand Jury Proceedings (Jones), 517 F.2d 666 (5th Cir. 1975), is that “identity of clients is not normally within the privilege, nor are matters involving the receipt of fees from a client usually privileged . . . .”

D) Hospital Review Committee Records (self-critical analysis). Under N.H. REV. STAT. ANN. § 151:13-a, records of a hospital committee organized to evaluate matters relating to the care and treatment of patients or to reduce morbidity and mortality and testimony by hospital trustees, medical staff, employees, or other committee attendees relating to activities of the quality assurance committee shall be confidential and privileged and shall be protected from direct or indirect means of discovery, subpoena, or admission into evidence in any judicial or administrative proceeding. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil or administrative action merely because they were presented to a quality assurance program, and any person who supplies information or testifies as part of a quality assurance program, or who is a member of a quality assurance program committee, may not be prevented from testifying as to matters within his or her knowledge, but such witness may not be asked about his or her testimony before such program, or opinions formed by him or her, as a result of committee participation. Further, a program's records shall be discoverable in either of the following cases:

(a) A judicial or administrative proceeding brought by a quality assurance committee to revoke or restrict the license, certification, or privileges of a physician or hospital staff member; or

(b) A proceeding alleging repetitive malicious action and personal injury brought against a physician or hospital staff member.

A hospital board of directors or trustees may waive its privilege under this statute and release information or present committee records by discovery, subpoena, or admission into evidence in any judicial or administrative proceeding.

E) Physician/Surgeon/Psychiatrist/Patient. A physician or surgeon licensed in New Hampshire may not be compelled to disclose information obtained in the course of and for the purposes of providing professional care. N.H. REV. STAT. ANN. § 329:26; N.H. R. EVID. 503(a). In addition, no person working under the supervision of a physician or surgeon licensed in New Hampshire may be compelled to disclose communications “that

are customary and necessary for diagnosis and treatment.” N.H. REV. STAT. ANN. §§ 329:26, 330-A:19; N.H. R. EVID. 503(a). The privilege has been extended to other health-related professionals, including chiropractors (N.H. REV. STAT. ANN. § 316-A:27), occupational therapists (N.H. REV. STAT. ANN. § 328-F:28), and registered nurse practitioners (N.H. REV. STAT. ANN. § 326- B:30). Information communicated to a practitioner in an effort to unlawfully procure a drug, or to procure administration of any such drug, is not privileged. N.H. REV. STAT. ANN. § 318-B:21; State v. Summers, 142 N.H. 429 (1997).

F) Psychologist and Related Professional/Patient. Communications between a patient and a psychologist, associate psychologist, pastoral counselor, or certified clinical social worker and any person working under the supervision of any such person, if the communications are “necessary for diagnosis and treatment,” are privileged from compulsory disclosure unless such disclosure is required by court order. N.H. REV. STAT. ANN. § 330-A:19; N.H. R. EVID. 503(b). This privilege may not be claimed in cases of suspect child abuse or neglect or of adult abuse. N.H. REV. STAT. ANN. §§ 169-C:32, 161-D:3-b. The privilege also does not apply to any information which is relevant to the involuntary admission of a person to a mental health treatment facility or to information which must be communicated in order to warn of or take precautions against a patient’s violent behavior. N.H. REV. STAT. ANN. §§ 330- A:19, 22.

Requests to Admit

Requests for admission are governed by SUPER. CT. R. 35(a). A party may make requests for admissions to another party at any time after the return day and prior to trial. A plaintiff’s first requests for admissions are contained in his writ, petition, or libel. Any facts that are properly pleaded and not denied are admitted. SUPER. CT. R. 133. Any party may file a Request for Admissions with the clerk of court and mail or hand-deliver a copy to either the party from whom admissions are sought, or to his attorney. SUP. CT. R. 53; DIST. & MUN. CT. R. 3.16(B). Each signature, document, or fact as to which an admissions is sought should be set forth in a separate paragraph in the Request for Admissions. There is no limit to the number of items as to which admissions may be sought or the number of times that admissions may be requested. If the party from whom admissions are requested fails to respond within thirty days, the requests will be deemed admitted for the purposes of any dispositive motion at trial. SUP. CT. R. 54; DIST. & MUN. CT. R. 3.16(B); PROB. CT. R. 11.

Unique State Issues

A) Pre-complaint discovery. Under N.H. REV. STAT. ANN. § 498:1, “the superior court shall have the powers of a court of equity in . . . discovery.” The Court in Gutbier v. Hannaford Bros. Co., 150 N.H. 540 (2004), found that a nonparty often has no interest in participating in the plaintiff's suit against another litigant, and, absent equitable

discovery, a plaintiff himself may have no means at law to obtain necessary information prior to initiating a lawsuit.

EVIDENCE, PROOFS & TRIAL TACTICS

A) Expert Witness. New Hampshire Rules of Evidence 701-706 govern the admissibility of opinion and expert testimony. Rule 702 governs testimony by experts. If scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or facts in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. N.H. R. EVID. 702. It is well established that experts may base their opinions on inadmissible hearsay. Brown v. Bonnin, 132 N.H. 488 (1989).

B) Lay witness. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the testimony or the determination of a fact in issue. N.H. R. EVID. 701. Moreover, a lay witness’s testimony based on personal knowledge may be supplemented by internet (or similar) research relating to the issue in question and would not render that testimony inadmissible under the terms of Rule 701 for lack of expertise or personal knowledge. McNamara v. Moses, 146 N.H. 729 (2001).

C) Demonstrative evidence. The trial court may decide whether justice requires that a demonstration be performed and may set the conditions, times, and location for it. See Chouinard v. Shaw, 99 N.H. 26 (1954) (finding manner and extent of experiments or demonstrations at a site view are regulated by the trial court and will not be disturbed unless plainly wrong); Lindel v. Stone, 77 N.H. 582 (1915) (holding demonstration of plaintiff’s ability to write legibly was at trial court’s discretion).

Appeal

A) When permitted. Only issues that have been fully developed by events in the proceeding below may be the subject of appellate review. Plourde v. Plourde, 130 N.H. 96 (1987). New Hampshire does not have an intermediate appellate court. However, various avenues of appellate review of adjudicatory proceedings are recognized in New Hampshire. These include, but are not limited to, statutory appeal from state and local administrative agencies to the superior court, statutory review by the superior court of proceedings in state and local agencies, statutory appeal from one agency to another, statutory review by one agency of proceedings in another, statutory appeal from an agency to the probate court, statutory appeals from the district and municipal courts to the superior court, statutory review by the Supreme Court of proceedings in the lower courts, and post- judgment and interlocutory review by the Supreme Court of proceedings in the superior courts.

Supreme Court. Cases from the superior court, the probate court, and the district courts shall be entered upon the filing of an interlocutory transfer without ruling, an interlocutory appeal with ruling, or upon the filing of a notice of appeal after a decision on the merits. Cases from administrative agencies shall be entered upon the filing of an interlocutory transfer without ruling or upon the filing of an appeal by petition.

B) Timing. When claiming and prosecuting appellate review, the particular requirements of the statute granting the right of appeal or review must be carefully examined. In most cases, appellate review must be claimed within a definite number of days by filing a pleading with a particular agency or court. Often it is difficult to determine the scope of appellate review simply by examining the statute—the clerks of court and their equivalents in administrative agencies should be consulted for advice on the form of pleadings and timing.

Unless otherwise provided by law or Supreme Court rules, an appeal from a trial court decision on the merits shall be filed by the moving party within thirty days from the date on the clerk’s written notice of the decision on the merits. Similarly, the time for filing a notice of appeal in criminal appeals shall be within thirty days of the sentencing or the date of the clerk’s written notice of disposition of post-trial motions, whichever is later, provided, however, that the date of the clerk’s written notice of disposition of post-trial motion shall not be used to calculate the time for filing a notice of appeal in criminal cases if the post-trial motion was filed more than ten days after sentencing. SUP. CT. R. 7. The definition of “decision on the merits” (SUP. CT. R. 3) includes decisions on motions made after an order, verdict, opinion, decree, or sentence.

Collateral Source Rule

The collateral source rule is a principle that prevails in personal injury actions and provides that an award of damages may not be reduced by the amount of benefits a plaintiff receives from a collateral source, such as insurance. It has been held that a tort defendant can derive no benefit from the fact that the plaintiff was insured, Rolfe v. Bos. & M. R.R., 69 N.H. 476 (1899), or that his bills have been paid by a fireman's relief association, Clough v. Schwartz, 94 N.H. 138 (1946), or that he has received workmen's compensation, Abbott v. Hayes, 92 N.H. 126 (1942), or retirement benefits, Descoteau v. Bos. & Me. R.R., 101 N.H. 271 (1958).

Because a jury's fair assessment of liability is fundamental to justice, its verdict on liability must be free from doubt, based on conviction, and not a function of compromise. Evidence of collateral source benefits may lead the jury to believe that the plaintiff is trying to obtain a double or triple payment for one injury, or to believe that compensation already received is sufficient recompense. Despite assertions that collateral source evidence is needed to rebut or impeach, there generally will be other evidence having more probative value and involving less likelihood of prejudice than the victim's receipt of insurance-type benefits. Cyr v. J.I. Case Co., 139 N.H. 193 (1994).

Convictions

A) Civil. If a party plans to use or refer to any prior criminal record, for the purpose of attacking or affecting the credibility of a party or witness, he shall first furnish a copy of same to the opposing party, or to his counsel, and then obtain a ruling from the Court as to whether the opposing party or a witness may be questioned with regard to any conviction for credibility purposes. SUPER. CT. R. 68. Evidence of a conviction under Rule 68 will not be admissible unless there is introduced a certified record of the judgment of conviction indicating that the party or witness was represented by counsel at the time of the conviction, unless counsel was waived. The trial court still has the discretion to exclude convictions from evidence if it concludes that their prejudicial effect outweighs their probative value. State v. Niquette, 122 N.H. 870 (1982).

B) Criminal. N.H. R. EVID. 404(b) permits evidence of past crimes for purposes of demonstrating motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. There is a three-part test to assess the admissibility of evidence under 404(b). The evidence must be relevant for a purpose other than proving the defendant’s character or disposition; (2) there must be clear proof that the defendant committed the act; and (3) the probative value of the evidence must not be substantially outweighed by its prejudice to the defendant. State v. Smalley, 151 N.H. 193 (2004). Under N.H. R. EVID. 609, evidence that a witness, other than an accused, has been convicted of a crime shall be admitted, subject to admissibility standards, if the crime was punishable by death or imprisonment in excess of one year. Evidence of such past crime of the accused will be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused. However, evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonestly or false statement by the witness. N.H. R. EVID. 609(a)(2).

Videotaped Evidence

There is no New Hampshire specific case law on videotaped evidence. This evidence is "demonstrative evidence" and its admission is within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Like photographs, to be admissible, the video must be authenticated by a person who prepared the video or another person with sufficient knowledge to testify that the video "fairly and accurately depicts" the events captured on the recording at the time of the recording; it must generally meet the admissibility requirements under N.H. R. EVID. 401-403, 901, and 1001-1003.

Medical Bills

A) In a personal injury action, the Plaintiff is entitled to recover for “actual nursing and medical expenses, past and prospective.” Holyoke v. Grand Trunk Ry., 48 N.H. 541 (1869). The recovery is limited to the reasonable value necessarily incurred. See Leighton v. Sargent, 31 N.H. 119 (1855). The plaintiff must show, and the defendant may challenge, that the treatment, equipment, or supply was or will be medically necessary and that the cost was reasonable. Any claim for future expenses must be

reduced to present worth. Lees v. Nolan, 121 N.H. 680 (1981). New Hampshire does not necessarily rely on the amount paid by insurance or other benefits for medical care to determine the amount the Plaintiff is entitled to recover. Further, New Hampshire Superior Court Rule 62 requires, as part of the Plaintiff’s Pretrial Statement, an itemized statement of special damages. Though there is no definition of “special damages” in the rules or any statute, the accepted practice is to include medical expenses in that statement. Finally, though an offer to pay medical expenses is not admissible to prove liability for an injury, the amount actually paid will be deducted from any settlement or judgment rendered with respect to that injury. N.H. R. EVID. 409 (2008).

B) Automobile cases.

1) Admissibility. No special rules apply regarding the admissibility of medical bills in auto cases in New Hampshire.

2) Health insurance. The collateral source rule prevents consideration of any collateral sources of benefits the Plaintiff may have received in connection with the claimed injuries in a personal injury action. This includes payments under health insurance coverage, O’Donnell v. HCA Health Servs. of N.H., Inc., 152 N.H. 608 (2005) and Workers’ Compensation benefits, Cyr v. J.I. Case Co., 139 N.H. 193 (1995). See also Moulton v. Groveton Papers Co., 114 N.H. 505, 509 (1974) (listing benefits to which the rule has been applied).

3) Amount recoverable. New Hampshire does not have a statute or case law dictating the amount a plaintiff may put into evidence or collect for any medical expense. Claims will be subject only to the necessary and reasonable requirements and, under the collateral source rule, may not be reduced by any compensation received from any source independent of the tortfeasor. See O’Donnell v. HCA Health Servs. of N.H., Inc., 152 N.H. 608 (2005). There is presently a split among trial courts on whether a plaintiff is entitled to put before the jury the entire medical bill for services, or only that amount which her insurer paid, provided that the provider “wrote off” the balance. The issue has been appealed to the Supreme Court, but at the time of this article, no decision has been rendered.

Offers of Judgment

New Hampshire Superior Court Rules 60 and 61 are New Hampshire’s version of FED. R. CIV. P. 68 (2008). Like the federal rule, the New Hampshire rule awards costs to the defendant if the plaintiff does not ultimately receive judgment in greater amount than the offer made under the rule. The key differences between the state and federal rules are that the New Hampshire rule requires the defendant to actually pay into court the money offered, sets no time limits as to when the offer may be made, and declares that the plaintiff shall have no costs if the defendant is entitled to its costs under the rule.

Offer of Proof

N.H. R. EVID. 103(b) (2008) directs offers of proof in New Hampshire courts. The effective language is identical to the corresponding federal rule. First, the exclusion of evidence must affect a substantial right of the party. Second, the party so affected must contemporaneously point out the error with specificity and make an offer of proof explaining the substance of the evidence to the Court. Only then is the issue preserved for review. State v. Hopkins, 136 N.H. 272 (1992).

Prior Accidents

The trial court is accorded broad discretion in ruling on the admissibility of evidence. Madeja v. MPB Corp., 149 N.H. 371, 391 (2003). Whether evidence of prior accidents or other lawsuits will be admissible to show that a defendant had knowledge of a danger or a duty to warn depends on the trial court’s application of N.H. R. EVID. 403 (2008). McLaughlin v. Fisher Eng’g, 150 N.H. 195 (2003). That rule, effectively identical to the Federal Rule, requires the court to weight the probative value of the evidence against other considerations such as prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. N.H. R. EVID. 403 (2008).

Relationship To The Federal Rules Of Evidence

Though the New Hampshire Rules of Evidence are substantially identical to the Federal Rules of Evidence, there are differences between the two. For instance, the Federal Rule governing Compromise and Offers to Compromise makes offers and compromises inadmissible with regard to the claim or its amount. See FED. R. EVID. 408 (2008). The mirror New Hampshire rule prohibits the introduction of evidence of settlement for any purpose with any tortfeasor whether or not the tortfeasor is present as a defendant in the case (though N.H. REV. STAT. ANN. § 507:7-I provides for setoff after a verdict is returned). See N.H. R. EVID. 408 (2008). The New Hampshire Rules also differ in that they codify the rules governing privilege. See N.H. R. EVID. 501-512 (2008). Further, Rule 611 grants to the trial judge more control in determining the scope of cross-examination. See N.H. R. EVID. 611 (2008). Finally, the exception to the hearsay rule under the New Hampshire and Federal rules differ substantively with regards to statements for the purpose of medical diagnosis or treatment, recorded recollection, learned treatises, and judgment of a previous conviction. See N.H. R. EVID. 803 (2008); FED. R. EVID. 803 (2008). Because of these and other minor differences, it is important that counsel review the New Hampshire Rules of Evidence when faced with an evidentiary issue.

Seat Belt and Helmet Use Admissibility

A) Seat belts. A plaintiff’s failure to wear a seatbelt or use a child passenger restraint system is not admissible in New Hampshire as evidence of contributory negligence. If the claimant should have been secured in a child passenger restraint or was under the age of eighteen and was not wearing a seatbelt, the evidence is excluded by statute. See N.H. REV. STAT. ANN. § 265:107-a, IV. If the claimant is an adult who was not wearing his or her seatbelt at the time of the accident, the evidence is excluded by precedent. Thibeault v. Campbell, 136 N.H. 698 (1993). Evidence of

failure to wear a seatbelt is also inadmissible as evidence of the Plaintiff’s misconduct or failure to mitigate damages. Forsberg v. Volkswagen of Am., 769 F. Supp. 33 (D.N.H. 1990); see also Estate of Warren v. Am. Marine Holdings, No. CIV. 00–310, 2002 WL 818296 (D.N.H. Apr. 30, 2002) (relying on seatbelt jurisprudence, failure to use kill switch lanyard on personal watercraft not admissible to show comparative fault).

B) Bicycle helmets. New Hampshire law requires by statute only that all children under the age of sixteen wear helmets when riding a bicycle. N.H. REV. STAT. ANN. § 265:144. Unlike the statute requiring seatbelt use, it is silent as to contributory negligence. The same reasoning that led the New Hampshire Supreme Court to determine that seatbelt non-use was inadmissible, however, would support exclusion of similar evidence with regards to helmets. If faced with the issue, the Court is likely to hold that failure to wear a helmet does not, by itself, create an unreasonable risk of injury and the state legislature generally disfavors this type of evidence to prove negligence. See Thibeault v. Campbell, 136 N.H. 698 (1993). The United States District Court for the District of New Hampshire has already applied the reasoning from the seatbelt cases to the nonuse of a helmet by military personnel. See Ritch v. A.M. Gen. Corp., No. Civ. 93–451, 1997 WL 834214 (D.N.H. Nov. 17, 1997). The evidence would, therefore, likely be excluded if introduced to prove contributory negligence or failure to mitigate.

C) Motorcycle helmets. Likewise, New Hampshire law permits adults over the age of eighteen to operate motorcycles (N.H. REV. STAT. ANN. § 256:122), OHRVs (N.H. REV. STAT. ANN. § 215-A:29), and snowmobiles (N.H. REV. STAT. ANN. § 215-C:49) without helmets. Given the legislature’s reluctance to mandate helmet use, and the reasoning from the seatbelt cases, New Hampshire is unlikely to permit evidence of non-use to establish contributory negligence or failure to mitigate.

Spoliation

When a party to litigation destroys evidence, that party may be subjected to an “adverse inference” jury instruction. The adverse inference, that the evidence would have been favorable to the opposing party, is proper only if the evidence was “destroyed deliberately with a fraudulent intent.” Murray v. Developmental Servs. of Sullivan Cnty., 149 N.H. 264, 271 (2003) (citations omitted). The sanction may be appropriate even when the evidence was destroyed prior to the filing of the claim. Id. The New Hampshire Supreme Court has not yet reached the issue of whether an independent cause of action exists based on spoliation of evidence. See Rodriguez v. Webb, 141 N.H. 177 (1996) (no need to reach spoliation cause of action because the testimony regarding the destruction of the evidence was admissible on the negligence count and the jury never considered the spoliation count).

Subsequent Remedial Measures New Hampshire Rule of Evidence 407 prevents a plaintiff from introducing evidence of a remedial measure taken after an injury or event in an effort to prove negligence or culpable conduct in connection with that event. A remedial measure is a measure that, “if taken

32 previously, would have made the event less likely to occur.” N.H. R. Evid. 407 (2008). The substance and exceptions of the New Hampshire rule and the Federal rule are identical. Both permit evidence of subsequent remedial measures if offered for the purpose of establishing “ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Id. This rule applies in both negligence and strict liability cases. Cyr v. J.I. Case Co., 139 N.H. 193 (1995).

Use of Photographs

Photographic evidence must satisfy the same basic requirements of relevancy and admissibility as any other type of evidence and is subject to the same challenges. Marcotte v. Timberlane/Hampstead Sch. Dist., 143 N.H. 331 (1999). It is within the trial court’s discretion to exclude photographic evidence if it deems the photographs prejudicial or merely cumulative evidence of an issue already established, Kallgren v. Chadwick, 134 N.H. 110 (1991), or if the court deems it appropriate under any other aspect of N.H. R. EVID. 401 or 403 (2008). The trial court’s ruling will be analyzed under the “abuse of discretion” standard, Aubert v. Aubert, 129 N.H. 422 (1987), and will be upheld unless it was “clearly untenable or unreasonable.” McLaughlin v. Fisher Eng’g, 150 N.H. 195 (2003) (quoting State v. Stayman, 138 N.H. 397, 402 (1994)). Under N.H. R. EVID. 1002, the photographic evidence submitted must be the original unless one of the exceptions from N.H. R. EVID. 1003 or 1004 (2008) apply.

DAMAGES

Caps on Damages

The New Hampshire Legislature has established damages caps in only a few areas, having had a cap on non-economic damages and a general damages cap struck down as unconstitutional. Carson v. Maurer, 120 N.H. 925 (1980) (discussing medical malpractice cap on non-economic damages); Brannigan v. Usitalo, 134 N.H. 50, 587 A.2d 1232(1991) (discussing general personal injury cap on non-economic damages). Caps that remain are:  Claims against Governmental Units—$275,000/$925.000 or insurance limits, whichever is higher (N.H. REV. STAT. ANN. § 507-B:4)  Non-profits—$250,000 (N.H. REV. STAT. ANN. § 508:17(II)  Claims against the State of New Hampshire—$475,000/$3,750,000 or insurance limits, whichever is higher (N.H. REV. STAT. ANN. § 541-B:14)  Loss of Consortium—$150,000 for spouse; $50,000 per child (N.H. REV. STAT. ANN. § 556:12)

Calculation of Damages

Damages in New Hampshire are designed to be remedial and not punitive. Compensatory damages are supposed to restore an injured person to as near a position as he would have been but for the injury. Durocher v. N.Y. Cas., Co., 99 N.H. 129 (1954). New Hampshire does not recognize or allow punitive damages. N.H. REV. STAT. ANN. § 507:16. The best outline of damages and the manner of calculating those is found in MURPHY & POPE, NEW HAMPSHIRE

CIVIL JURY INSTRUCTIONS (revised edition) ch. 9; see also MCNAMARA, NEW HAMPSHIRE PRACTICE: PERSONAL INJURY TORT AND INSURANCE PRACTICE § 11 (3d ed.) [hereinafter MCNAMARA].

Available Items of Personal Injury Damages

A) Past medical bills. Past medical bills are recoverable and are not subject to set-off for insurance proceeds received under the collateral source rule. There is presently a split among trial courts on whether a plaintiff is entitled to put before the jury the entire medical bill for services, or only that amount which her insurer paid, provided that the provider “wrote off” the balance. The issue has been appealed to the Supreme Court, but at the time of this article, no decision has been rendered.

B) Future medical bills. Future medical bills are recoverable if the plaintiff proves by a preponderance of the evidence that such expenses will probably be required and given in the future. MODEL JURY INSTR. 9.6.1.

C) Hedonic damages. New Hampshire has defined hedonic or loss of enjoyment of life damages as “the deprivation of certain pleasurable sensations and enjoyment through impairment or destruction of the capacity to engage in activities formerly enjoyed by the injured plaintiff.” Bennett v. Lembo, 145 N.H. 276 (2000). They are available in cases in which the plaintiff is claiming permanent injury or death and are designed to compensate a plaintiff for not being able to carry on and enjoy a life in the same manner he would have had the accident not occurred. MODEL JURY INSTR. 9.9; DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793 (2006) (upholding $3 million hedonic damages award in wrongful death case).

D) Increased risk of harm. In the medical malpractice context, damages are recoverable for “loss of opportunity,” i.e. that the malpractice caused the patient to lose an opportunity for a substantially better recovery. Lord v. Lovett, 146 N.H. 232 (2001) (alleged negligent treatment for broken neck). New Hampshire does not recognize a separate right of recovery for the shortening of a plaintiff’s life expectancy. Ham v. Me.- N.H. Interstate Bridge Auth., 92 N.H. 268 (1943).

E) Disfigurement. Disfigurement is impairment of or injury to the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner. See BLACK’S LAW DICTIONARY 468 (6th ed. 1990). Disfigurement is a recognized element of common law damages. See Alonzi v. Ne. Generation Servs. Co., 156 N.H. 656 (2008) (distinguishing workers compensation recovery from tort recovery).

F) Disability. Future disability as a result of permanent injury is an accepted element of personal injury damages. See MCNAMARA §11.05. Such permanent impairment damages are often subsumed within the Hedonic Damages category. See Bennett v. Lembo, 145 N.H. 276 (2000). New Hampshire recognizes the AMA Guidelines for Evaluation of Permanent Injuries, but has indicated that competent expert testimony is

required on the application of the Guidelines. Figliori v. R.J. Moreau Cos., Inc., 151 N.H. 618 (2005).

G) Past and Future pain and suffering. “Reasonable compensation for pain and suffering experienced to date and which will probably be experienced in the future” may be awarded. MODEL JURY INSTR. 9.6.4. While a plaintiff may not use a “per diem” argument for such an award, Duguay v. Gelinas, 104 N.H. 182 (1962), he can argue a lump sum to the jury. Rodriquez v. Webb, 141 N.H. 177 (1996). Formulae or mathematical tools are not allowed to compute such damages. Steel v. Bemis, 121 N.H. 425 (1981).

H) Emotional Distress. Emotional distress damages are recoverable for both negligent and intentional infliction claims. For both, the plaintiff must prove that the emotional distress has manifested itself through physical symptoms. He must use expert testimony to prove that the physical symptoms are due to the emotional injury. In re Crematory, LLC, 155 N.H. 781 (2007); Morancy v. Morancy, 134 N.H. 493 (1991). For claims of intentional infliction, the plaintiff must prove that the defendant acted intentionally or recklessly; the acts were extreme and outrageous; and that the caused distress was severe. Morancy, 134 N.H. at 494.

I) Loss of consortium. New Hampshire defines “loss of consortium” to include loss of comfort, society, companionship, sex and services of the decedent spouse. N.H. REV. STAT. ANN. § 556:12; MODEL JURY INSTR. 9.10. It is available to surviving spouses subject to a $150,000 cap and to each surviving minor child subject to a $50,000 cap per child. N.H. REV. STAT. ANN. § 556:12(II)-(III). Any loss of consortium claim is subject to reduction for the comparative fault of the decedent. Id.

J) Lost income, wages, earnings. An injured party may recover for lost wages and lost future earning capacity. Dowling v. L.H. Shattuck, Inc., 91 H.H. 234, 17 A.2d 529 (1941). Lost past wages are easily calculable, but future wages and lost earning capacity typically require expert testimony. See, e.g., Vachon v. New Eng. Towing, Inc., 148 N.H. 429 (2002). Damages for lost future wages must be discounted to present value. Lees v. Nolan, 121 N.H. 680 (1981). A person responsible for an illegal alien’s employment may be held liable for lost earnings if the employer know or should have known of the employee’s status as an illegal alien; independent tortfeasors are not liable to an injured illegal alien for lost wages. Rosa v. Partners in Progress, 152 N.H. 6 (2005).

Mitigation

A person who has been injured must use reasonable efforts without undue risk or expense or humiliation in caring for and heeling his injuries and seeking to prevent further aggravation. Carbone v. Tierney, 151 N.H. 521 (2004). Mitigation is not an affirmative defense that must be pled or lost. Anglin v. Kleeman, 140 N.H. 257 (1995). However, the burden of proving failure to mitigate is on the defendant. Carbone, 151 N.H. at 529.

Punitive Damages

A) New Hampshire does not allow Punitive Damages. N.H. REV. STAT. ANN. § 507:16; Crowley v. Global Realty, Inc., 124 N.H. 814 (1984); Munson v. Raudonis, 118 N.H. 474, (1978); Vratsenes v. N.H. Auto Inc., 112 N.H. 71 (1972).

B) Enhanced Compensatory Damages. Enhanced Compensatory Damages may be awarded when the tort is committed wantonly, maliciously, or oppressively. In Munson v. Raudonis, 118 N.H. 474, 479 (1978), the Court stated “instead of allowing an award of damages to be based on implied or legal malice [citation omitted], we prefer to base such an award only on a showing of actual malice. [citation omitted]. It must be ill will, hatred, hostility or even motive on the part of the defendant. Without such a showing, the mere commission of a tort will not give rise to the aggravated circumstances necessary for the award of liberal compensatory damages. Enhanced compensatory damages are awarded only in exceptional cases, and not in every intentional tort.” Id. The enhanced damages must bear some relationship to the actual compensatory damages suffered by the plaintiff and reflect aggravating circumstances. Id.; MODEL JURY INSTR. 9.14.

Recovery of Pre- and Post-Judgment Interest

A) Pre-judgment interest. Pre-judgment interest is permitted from “the date of the writ or the filing of the petition.” N.H. REV. STAT. ANN. § 524:1-b. The date of the writ is the date that a plaintiff or counsel signs the writ of summons (i.e. complaint). Interest is calculated based on the judgment amount and rate set by the State Treasurer which is two points above the rate on the 26-week US Treasury bill auction before the last day of September in the preceding year. N.H. REV. STAT. ANN. § 336:1. For cases lasting more than one year, you must use the applicable interest rates for each partial or full year prior to judgment being entered. Nault v. N&L Dev. Co., 146 N.H. 35 (2001).

B) Post-judgment interest. The recovery of post-judgment interest is also governed by N.H. REV. STAT. ANN. § 524:1-b. Despite the availability of pre-judgment interest, the post judgment interest is calculated only on the judgment and not accrued pre-judgment interest—i.e. there is no compounding. Metro. Prop. & Liab. Ins. Co. v. Ralph, 138 N.H. 378 (1994).

Recovery of Attorneys Fees

A) Absent statutory exception, the general rule in New Hampshire is that a party bears his own attorney’s fees. See WIEBUSCH, NEW HAMPSHIRE PRACTICE: CIVIL PRACTICE AND PROCEDURE §53:02 (collecting statutory provisions for attorneys’ fees).

B) Judicial exceptions for the general rule have been created for cases where “litigation has been instituted or unnecessarily prolonged through a party’s oppressive, vexatious, arbitrary, capricious or bad faith conduct.” Harkeem v. Adams, 117 N.H. 687 (1977); Kukene v. Genualdo, 145 N.H. 1 (2000). Similarly, a Court may award attorneys fees against any party whose frivolous or unreasonable conduct has caused the filing of a motion or the holding of a hearing. SUP. CT. R. 59. The party seeking fees bears the

burden of accounting for their time and justifying the time and expenses submitted. See Funtown USA, Inc. v. Town of Conway, 129 N.H. 352 (1987).

Settlements Involving Minors

A) Settlements involving minors is governed by Superior Court Rule 111, which provides a comprehensive procedure which parties must engage in to have a minor’s case settled. Cases settled for $10,000 or below do not require court approval. However, settlements that exceed $10,000 require court approval and involvement of the Probate Court which will appoint and oversee the person who receives the money on behalf of the minor. If a structured settlement is involved, defense counsel have added responsibilities placed upon them including presenting an affidavit from a CPA or other financial professional attesting to the present value of the annuity, and presenting detailed rating information as to the entity issuing the annuity. Care should be taken to review the complicated Rule for the specific procedures and requirements placed on both parties to the settlement.

Taxation of Costs

A) Pursuant to Superior Court Rule 87, a prevailing party may be awarded his costs at the end of the case. See Van Der Stok v. Van Voorhees, 151 N.H. 679 (2005). The prevailing party must file a motion with a verified bill of costs. N.H. SUP. CT. R. 87(b). There is no deadline for filing the costs request. Quirk v. Town of New Boston, 140 N.H. 124 (1995).

B) Mandatory Costs. Fees of the Clerk, fees for service of process, witness fees, expense of view, cost of transcripts and other costs as provided by law. N.H. SUP. CT. R. 87(c). See WIEBUSCH, NEW HAMPSHIRE PRACTICE: CIVIL PRACTICE AND PROCEDURE §51:03 (collecting statutory provisions for costs).

C) Permissive Costs. Stenographic cost of an original and one copy of a deposition (including videotaping costs if appropriate); actual costs of expert witnesses. N.H. SUP. CT. R. 87(c).