Michnovez v . Blair CV-20-100-LM 7/5/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Michnovez, individually and as Executor of the Estate of Velma Michnovez; and Susan Michnovez

v. Civil N o . 10-cv-110-LM Opinion N o .

Blair, LLC

O R D E R

This suit arises from the death of Velma Michnovez (“Mrs.

Michnovez”). Plaintiffs, her son and daughter-in-law, have sued

Blair, LLC (“Blair”), which sold Mrs. Michnovez the bathrobe she

was wearing at the time she sustained fatal injuries as a result

of a cooking accident. In their Second Amended Complaint,

plaintiffs assert claims for Mrs. Michnovez’s wrongful death

(Count I ) , enhanced compensatory damages (Count I I ) , Mrs.

Michnovez’s conscious pain and suffering (Count I I I ) , personal

injuries to John Michnovez (Count I V ) , and negligent infliction

of emotional distress on John Michnovez (Count V ) and Susan

Michnovez (Count V I ) . Before the court is Blair’s motion for

summary judgment. Plaintiffs object. For the reasons that

follow, Blair’s motion for summary judgment is granted in part

and denied in part. Summary Judgment Standard

“To prevail on summary judgment, the moving party must show

that ‘there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Markel

Am. Ins. C o . v . Diaz-Santiago,

1 , 29 (1st Cir. 2012)

(quoting Fed. R. Civ. P. 56(a)). “[A]n issue of fact is genuine

if ‘a reasonable jury could resolve it in favor of either

party.’” Markel,

-30 (quoting Basic Controlex

Corp. v . Klockner Moeller Corp.,

5 0 , 453 (1st Cir.

2000)). “A fact is material if it ‘might affect the outcome of

the suit’ under governing law.” Markel,

(quoting

Anderson v . Liberty Lobby, Inc.,

4 2 , 248 (1986)). “In

determining whether a genuine issue of material fact exists,

[the court] construe[s] the evidence in the light most favorable

to the non-moving party and make[s] all reasonable inferences in

that party’s favor.” Markel,

(citing Flowers v .

Fiore,

4 , 29 (1st Cir. 2004)).

“The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Dávila

v . Corporación de P.R. para la Diffusión Pública,

(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh

the evidence and determine the truth of the matter but to

2 determine whether there is a genuine issue for trial.” Noonan

v . Staples, Inc.,

0 , 25 (1st Cir. 2009) (citations and

internal quotation marks omitted).

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Sánchez-Rodríguez v . AT&T

Mobility P.R., Inc.,

, 9 (1st Cir. 2012) (quoting

Iverson v . City of Boston,

4 , 98 (1st Cir. 2006)).

“However, ‘a conglomeration of conclusory allegations,

improbable inferences, and unsupported speculation is

insufficient to discharge the nonmovant’s burden.’” Sánchez-

Rodríguez,

(quoting DePoutot v . Raffaelly,

1 2 , 117 (1st Cir. 2005)). “Rather, the party seeking to

avoid summary judgment must be able to point to specific,

competent evidence to support his [or her] claim.” Sánchez-

Rodríguez,

(quoting Soto-Ocasio v . Fed. Ex. Corp.,

4 , 18 (1st Cir. 1998)) (internal quotation marks

omitted).

Background

As required by Rule 7.2(b)(1) of the Local Rules of this

district, Blair’s memorandum of law “incorporate[s] a short and

concise statement of material facts, supported by appropriate

record citations, as to which [it] contends there is no genuine

issue to be tried.” While plaintiffs argue at several points

3 that genuine issues of material fact preclude summary judgment,

their memorandum of law does not “incorporate a short and

concise statement of material facts, supported by appropriate

record citations, as to which [they] contend[ ] a genuine

dispute exists so as to require a trial.” LR 7.2(b)(2).

Accordingly, “[a]ll properly supported material facts set forth

in [Blair]’s factual statement shall be deemed admitted.”

In January of 2006, Mrs. Michnovez purchased a bathrobe

from Blair, a clothing retailer. In November of 2007, she

sustained fatal burns while wearing that robe, which caught on

fire when she was alone in her apartment. Plaintiffs, who lived

downstairs from Mrs. Michnovez, first realized that she was in

trouble when they heard the smoke alarm in her apartment go off.

In response, they ran upstairs and found Mrs. Michnovez in the

bathroom shouting “I’m on fire.” Over the course of

approximately thirty seconds, John Michnovez (“John”) put out

the fire, burning himself in the process. Later that day, Mrs.

Michnovez died.

Mrs. Michnovez was the only witness to the start of the

fire. Susan Michnovez (“Susan”) recalls hearing her mother-in-

law say that she was reaching over the back burner of her gas

stove when the sleeve of her bathrobe ignited. It appears to be

undisputed that Mrs. Michnovez was cooking at the time of her

accident.

4 John does not know how long his mother’s bathrobe was on

fire before he got upstairs or how quickly the fire spread once

the robe ignited. Susan does not know whether the sleeves on

Mrs. Michnovez’s robe were rolled up or how long they were, how

long the robe was exposed to the burner flame before it ignited,

or how quickly the fire spread. Mrs. Michnovez never told

anyone how quickly the fire spread or how long she was on fire. 1

Susan was not physically injured by the fire. She has had

nightmares about i t , but has not sought treatment from a

psychiatrist, psychologist, or therapist for any mental or

emotional condition resulting from the fire. Her activities

have not been limited in any way as a result of her alleged

emotional distress.

Discussion

Blair moves for summary judgment on all of plaintiffs’

claims on grounds that plaintiffs have failed to produce

evidence that any characteristic of Mrs. Michnovez’s bathrobe

was the proximate cause of her fatal injury. In addition, Blair

makes specific arguments for summary judgment on two of the five

1 Because John and Susan were not with Mrs. Michnovez when the fire started, they also do not know which hand she was cooking with, which burner or burners she was using, or what she did immediately after the fire started.

5 negligence theories stated in Count I.2 Blair also makes

specific arguments concerning Counts I I , V , and V I . Plaintiffs

concede that Blair is entitled to summary judgment o n : (1) the

failure-to-recall claim stated in Count I at paragraph 21(e);

and (2) Count V , John’s claim for negligent infliction of

emotional distress. In this section, the court turns first to

Blair’s argument on proximate cause, and then addresses its

arguments o n : (1) the failure-to-warn claim stated in Count I at

paragraph 21(b); (2) Count I I , plaintiffs’ claim for enhanced

compensatory damages; and (3) Count V I , Susan’s claim for

negligent infliction of emotional distress.

A . Proximate Cause

Blair concludes its memorandum of law with an argument that

all of plaintiffs’ claims require proof of causation, and that

without an eyewitness to the start of the fire,

there is no evidence as to how the fire started, what exactly Mrs. Michnovez was doing at the time the fire started, what part of the bathrobe caught fire and when, how long the robe was exposed to the flame before it burned, how long the bathrobe burned before the smoke alarm sounded, or what evasive action (if

2 Count I of plaintiffs’ Second Amended Complaint is a cornucopia of claims. Paragraph 21 asserts five negligence theories: negligent design, ¶ 21(a); failure to warn, ¶ 21(b); failure to inspect or test, ¶ 21(c); failure to insure that Mrs. Michnovez’s bathrobe complied with federal flammability standards, ¶ 21(d); and failure to recall the bathrobe, ¶ 21(e). Paragraph 22 asserts a breach-of-warranty claim. Paragraph 23 asserts a claim for strict product liability.

6 any) Mrs. Michnovez took to either put out the fire or attempt to remove the robe.

Def.’s Mem. of Law (doc. no 8 5 - 1 ) , at 2 1 . Blair continues:

“Absent such evidence, it is purely speculative to attribute the

proximate cause of the fire to the characteristics of the

bathrobe about which plaintiffs complain.”

Plaintiffs

contend that they have produced sufficient evidence to create a

triable issue on the element of causation, including an expert

opinion based o n , among other things, the expert’s testing of a

robe similar to the one Mrs. Michnovez was wearing when she

suffered her fatal injuries.

In response to plaintiffs’ objection to summary judgment,

Blair points out that “[w]hen the matter [of causation] remains

one of pure speculation and conjecture, or the probabilities are

at best evenly balanced, it becomes the duty of the court to

direct a verdict for the defendant.” Def.’s Reply (doc. n o .

8 8 ) , at 9 (quoting Ricci v . Alt. Energy Inc.,

5 7 , 162

(1st Cir. 2000) (citation omitted)) (emphasis in Ricci). Blair

next clarifies its position: “In the instant case, the

inferences that can be drawn from the facts simply do not permit

the conclusion that this fire more likely occurred as a result

of a product defect versus an inadvertent accident.” Def.’s

Reply, at 9 (emphasis in the original).

As a preliminary matter, Blair is correct that plaintiffs’

claims in both negligence and strict liability require proof of

7 causation. See White v . Asplundh Tree Expert Co.,

4 4 ,

547 (2004) (“To recover on a claim of negligence, a plaintiff

must establish that a defendant breached its duty of care and

that the breach proximately caused the claimed injury.”) (citing

Weldy v . Town of Kingston,

(1986)); Kelleher

v . Marvin Lumber & Cedar Co.,

(2005) (“Under

the doctrine of strict liability, ‘[o]ne who sells any product

in a defective condition unreasonably dangerous to the user or

consumer or to his property is subject to liability for physical

harm thereby caused to the ultimate user or consumer.’”)

(quoting Price v . BIC Corp.,

(1997); citing

Restatement (Second) of Torts § 402A(1) (1965)); see also Wilson

v . Bradlees of N.E., Inc.,

0 , 15 n.6 (1st Cir. 2001)

(“Under New Hampshire law, strict liability, as well as

negligence, requires proof of causation.”) (citing Thibault v .

Sears, Roebuck & Co.,

0 2 , 809 (1978)).

In a recent opinion in a medical-negligence action, the New

Hampshire Supreme court described the principles of causation:

The concept of proximate cause includes both the cause-in-fact and the legal cause for the injury. [Bronson v . Hitchcock Clinic,

9 8 , 801 (1996)]. Conduct is cause-in-fact if the injury . . . would not have occurred without that conduct.

The evidence to support this causal link must be “sufficient to warrant a reasonable juror’s conclusion that the causal link between the negligence and the injury probably existed.” Id.; see also Goudreault v . Kleeman,

(2009); RSA 507–E:2, I ( c ) . This standard is satisfied if the evidence shows “with reasonable probability, not mathematical certainty,

8 that but for the defendant’s negligence, the harm would not have occurred.” Bronson, 140 N.H. at 802– 0 3 . “[L]egal cause requires a plaintiff to establish that the negligent conduct was a substantial factor in bringing about the harm.” Estate of Joshua T . v . State,

(2003). “Although the negligent conduct need not be the sole cause of the injury, to establish proximate cause a plaintiff must prove that the defendant’s conduct caused or contributed to cause the harm.”

Beckles v . Madden,

1 8 , 124-25 (2010).

While Blair has identified the relevant legal principles,

its argument misses the mark in at least two significant ways.

Blair’s reluctance to acknowledge the legitimacy of circum-

stantial evidence as proof of causation is an analytical

misstep. See Emery v . Tilo Roofing Co.,

, 167

(1937); Ricci,

; c f . Masse v . Commercial

Union Ins. Co.,

2 8 , 633 (1993). But, the larger

problem with Blair’s argument is its reliance on Ricci.

In Ricci, which was decided under Maine law,3 see

, an environmental worker testing emissions from a

biomass stack at a power plant, David Ricci, fell eighty feet to

his death, see id. at 158-59. “There were no eyewitnesses to

Ricci’s fall.” Id. at 160. At summary judgment, the district 3 Maine law and New Hampshire law run parallel in all relevant respects. Compare Ricci,

(“Under Maine law, proximate cause may be established entirely through circumstantial evidence.”) (citing Thompson v . Frankus,

(Me. 1955), with Emery, 89 N.H. at 167 (“This does not mean, however, that physical causation must always be proved by an eyewitness to the fact. As in the case of other questions of fact, a finding upon the issue of causation may be made as an inference from evidentiary facts.”).

9 court was presented with two competing explanations for Ricci’s

fall, each based on circumstantial evidence. Id. at 159.

Finding “one inference no more likely than the other and,

because the plaintiff could not prevail if the inferences were

evenly balanced, [the district court] entered summary judgment

dismissing plaintiff’s claim.” Id. On appeal,

[t]he primary question [was] whether, on the materials submitted on summary judgment, a factfinder could find only that the competing inferences explaining Ricci’s cause of death are equally probable, or whether the evidence would permit the factfinder to infer that one explanation, on which plaintiff’s negligence claim rests, is the more probable cause of Ricci’s falling to his death.

Id. (emphasis added). The court of appeals “conclude[d] that it

was error for the district court to grant summary judgment for

the defendants.” Id.

In its opinion, the court began its causation analysis by

stating the rule of law on which Blair relies in this case:

The trial court stated that the plaintiff could not prevail if the only conclusion that could reasonably be drawn was that the probabilities of plaintiff’s and defendants’ competing theories as to what caused Ricci’s fall were evenly matched. The trial court’s statement was accurate. “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Restatement (Second) of Torts § 433B cmt. a (emphasis added); accord Champagne v . Mid-Maine Med. Ctr.,

4 2 , 845 (Me. 1998) (stating that a tort plaintiff must establish causation to avoid summary judgment and that “judgment as a matter of law in a defendant’s favor is proper when any jury verdict for the plaintiff would be based

10 on conjecture or speculation”); Unobskey v . Continental Ins. Co., 147 M e . 249, 257-58,

(Me. 1952) (“Conjecture [and] choice of possibilities . . . [are] not proof. There [must be] something more to lead a reasoning mind to one conclusion rather than to the other.”) (internal quotation marks omitted) (second alteration in original). Given that the burden of proof is on a plaintiff to show that it was more likely than not that the defendant’s negligence caused the harm, the trial judge’s method of analysis was appropriate. C f . Celotex Corp. v . Catrett,

1 7 , 322 (1986) (explaining that summary judgment should be entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”).

Ricci,

(parallel citations omitted). Based on

the foregoing principles, and under de novo review, see id. at

163, the court of appeals held that a reasonable jury could find

the plaintiff’s explanation for Ricci’s fall more probable than

the defendants’ explanation. See id. Thus, while endorsing the

legal principles applied by the district court, the court of

appeals held that the district court had misapplied those

principles to the facts of the case before i t .

This case is distinguishable from Ricci in at least two key

respects that render the rule of law stated therein inapplicable

to the question before this court. First, this is not a case

involving two competing theories based exclusively on inferences

from circumstantial evidence. In Ricci, the plaintiff claimed

that Ricci fell to his death when he accidentally stepped into

an unguarded opening in the platform on which he was working,

while the defendants theorized, from the same circumstantial

11 evidence (consisting of the location of tools, work gloves, and

safety devices on the platform), that Ricci fell as he was about

to descend a ladder leading down from the platform. See id. at

159. Here, by contrast, all agree that Mrs. Michnovez died from

burns she received when her robe caught fire while she was

cooking. What the parties dispute is how quickly the robe

ignited and how fast the flames spread. Blair relies on the

fact that plaintiffs have no eyewitness evidence to establish

the speed with which the fire spread, while plaintiffs note the

expert opinions they have produced on that matter, which are

based on more than informed inferences from the circumstantial

evidence. Thus, this case is not analogous to Ricci. See

(declining to consider expert opinions where those

opinions were based on circumstantial evidence and “individual

practical experiences and notions of common sense”).

There is another even more important distinction between

Ricci and this case. In Ricci, the decedent fell to his death

either when he unknowingly stepped through an unguarded opening

in the platform on which he was working, or as he attempted to

descend a ladder. And, according to the court of appeals, it

was for the jury to determine which theory was more likely, not

for the judge to determine, as a matter of law, that they were

equally likely. Here, Blair attempts to describe competing

inferential theories locked in equipoise: “In the instant case,

12 the inferences that can be drawn from the facts simply do not

permit the conclusion that this fire more likely occurred as a

result of a product defect versus an inadvertent accident.”

Def.’s Reply (doc. n o . 8 8 ) , at 9.

The problem is that Blair has set up a false dichotomy.

The two theories advanced in Ricci were mutually exclusive;

Ricci either fell through an unguarded opening or he slipped

while climbing down a ladder. But the two theories Blair

identifies, accidental ignition and an overly flammable robe,

are not mutually exclusive, and the jury will not be called upon

to find one more likely than the other. Moreover, as the New

Hampshire Supreme Court has explained, there is no requirement

that a plaintiff prove a single cause of his or her injuries.

See Beckles,

(“the negligent conduct need not be

the sole cause of the injury”) (citation omitted).

Plaintiffs do not dispute that Mrs. Michnovez’s death

resulted, in part, from an inadvertent accident, reaching across

a lit burner on her gas stove. The basis of their claims

against Blair, however, is that Mrs. Michnovez’s death was also

caused by a defect in her bathrobe, that defect being the

physical characteristics that caused the cotton chenille from

which the robe was made to catch fire too easily and to burn too

quickly once ignited. On those matters, plaintiffs have

produced expert evidence. Because plaintiffs need only prove

13 that the physical characteristics of Mrs. Michnovez’s robe were

a substantial factor in bringing about her death, but not the

sole factor, see Beckles,

2 4 , and because that

theory is not inconsistent with the theory that Mrs. Michnovez’s

robe made contact with the flame on her stove by accident, there

is nothing in Ricci that entitles Blair to summary judgment.

B . Failure to Warn

In their Second Amended Complaint, plaintiffs assert that

Blair

negligently failed to warn or instruct, adequately warn or adequately instruct concerning the dangers of [Mrs. Michnovez’s] bathrobe and the safe and proper method of using it in that it was excessively flammable, designed such that it was easy to ignite, difficult to remove in the event of fire, and did not comply with federal flammability standards.

Second Am. Compl. (doc. n o . 44-3) ¶ 21(b). In addition to the

foregoing claim for negligent failure to warn, plaintiffs also

assert the following product-liability claim:

[D]efendant placed said defective product [i.e., Mrs. Michnovez’s robe] in the stream of commerce knowing that it would be used without substantial change and said product proved to be defective as a result of the failure of the defendant to properly inspect, test, market, advertise, sell, and supply said product to prevent it from becoming unreasonably dangerous and unsafe for its foreseeable and intended use as set forth in Paragraph 21 herein[.]

14 Id. ¶ 23. 4 Somewhat charitably, see note 4 , Blair appears to

construe paragraph 23 of the Second Amended Complaint as

asserting a design-defect claim based upon an alleged failure to

provide an adequate warning. Blair moves for summary judgment

on plaintiffs’ failure-to-warn theory, arguing that: (1) “the

fact that clothing, including bathrobes, can burn when exposed

to flame is an open and obvious danger for which no warning is

required,” Def.’s Mem. of Law (doc. n o . 8 5 - 1 ) , at 1 8 ; and (2) in

the event a warning was required, “plaintiffs cannot prove that

a particularized warning would have prevented Mrs. Michnovez

from acting as she did on the morning of the incident,” id.

Plaintiffs disagree categorically.

Blair’s argument rests almost entirely on the First

Circuit’s opinion in Wilson. Wilson was a product-liability

action, decided under New Hampshire law, that involved a

4 This is a very odd product-liability claim. Plaintiffs charge Blair with placing a “defective product in the stream of commerce,” but they do not allege either a manufacturing defect or a design defect, a category that includes the lack of an adequate warning, see Chellman v . Saab-Scania A B ,

3 , 77-78 (1993). Rather, they allege that Mrs. Michnovez’s robe was defective because Blair did not “properly inspect, test, market, advertise, sell, and supply” i t . Paragraph 23 sounds more like a negligence claim than a strict-liability claim. With regard to that conflation, the New Hampshire Supreme Court has explained: “While we note that both counts are permitted, we do not recommend to plaintiffs that counts in both negligence and strict liability against the same defendant be submitted to the jury because of the confusion which is created.” Thibault,

. Plaintiffs would be well advised to heed that advice as this case moves toward trial.

15 sweatshirt that caught fire when the person wearing it “leaned

across a kitchen stove to turn off [a] burner” that was being

used to heat a tea kettle.

3 . Blair places more

weight on Wilson than that opinion can bear.

1 . Duty to Warn

In Wilson, the court of appeals reported, but had no

occasion to rule o n , the trial court’s decision at summary

judgment to “dismiss[ ] so much of plaintiff’s failure to warn

claim as involved an obvious danger,”

at 1 4 , that obvious

danger being “the danger that clothing can catch fire if exposed

to a heated stove burner,”

At the same time, however the

trial court

reserved for trial the issue whether [the defendant] had a duty to warn of the “particular” flammability characteristics of the sweatshirt that were not obvious, specifically the possibility that the sweatshirt could “ignite spontaneously,” could “be very difficult to extinguish,” or could “melt and cause a more severe burn.”

Following the trial court in Wilson, this court rules that

to the extent plaintiffs assert that Blair owed Mrs. Michnovez a

duty to warn her of the obvious danger that her robe could catch

fire if exposed to a lit burner on a gas stove, Blair is

entitled to summary judgment on the failure-to-warn claims

stated in paragraphs 21(b) and 2 3 .

That said, the court agrees with plaintiffs that their

failure-to-warn claims go beyond asserting the breach of a duty

16 to warn of the obvious danger that a cotton chenille robe could

catch fire when exposed to an open flame; plaintiffs claim that

Blair owed Mrs. Michnovez a duty to warn her about how quickly

her robe would burn if it did catch fire, and that it could be

difficult to remove in the event of fire. Given that under New

Hampshire law, “obviousness of the harm [is a ] question of fact

to be decided by the jury,” Collins v . the Tool Exchange LLC,

N o . Civ. 01-302-M,

, at *1 (D.N.H. Oct. 1 6 ,

2002) (quoting Price,

9 0 ) , the court grants summary

judgment on only as much of the failure-to-warn claim as is

based on the danger that Mrs. Michnovez’s robe could catch fire

if exposed to an open flame; the remainder of plaintiffs’

failure-to-warn claim survives Blair’s argument that it had no

duty to warn Mrs. Michnovez about the flammability of her robe.

2 . Effectiveness of a Warning

The Wilson court made no decision with respect to a

seller’s duty to warn, but merely reported what the district

court had done. It did, however, render a decision on the

plaintiffs’ failure-to-warn claim. It affirmed the district

court’s determination, in the context of a motion under Rule

50(a) of the Federal Rules of Civil Procedure, “that [the]

plaintiff[s] had failed to prove that a more particularized

warning as to the unwonted flammability characteristics of the

sweatshirt would have prevented Ailsa’s spontaneous act of

17 reaching for the kettle.” Wilson,

. More

specifically, the court held that the district court did not err

by: (1) “viewing the effect of a warning from Ailsa’s vantage,

rather than from the perspective of her mother,”

at 1 5 ; or

(2) “fail[ing] to instruct the jury as to the so-called ‘read

and heed’ presumption approved by Restatement (Second), Torts, §

402A, comment j,” id. at 15-16.

Rather than arguing that one or both of the two rulings the

court of appeals made in Wilson supports its position in some

particular way,5 Blair does little more than argue that it is

entitled to summary judgment on plaintiffs’ failure-to-warn

claim because the defendant in Wilson prevailed on its Rule

50(a) motion. Blair’s argument is not persuasive, in light of

the factual differences between the two cases, their different

procedural postures, and most significantly, Blair’s failure to

provide any sort of legal reasoning or analysis.

C . Count II

Count II is a claim for enhanced compensatory damages. In

i t , plaintiffs assert that Blair engaged in conduct that was

wanton, malicious, or oppressive. Blair moves for summary

judgment, arguing that: (1) enhanced compensatory damages are a

remedy rather than a cause of action; and (2) this case does not 5 Such an argument would be difficult to make, in that this case involves neither an adult who purchased a product for a child nor jury instructions.

18 present the kind of exceptional circumstances that would warrant

an award of enhanced compensatory damages. Plaintiffs appear to

concede Blair’s first point, but contest the second.

“Under New Hampshire law, a claim for enhanced damages is

not a separate cause of action; it is a request for a particular

remedy.” Minion Inc. v . Burdin,

2 1 , 523 (D.N.H.

1996) (citation omitted). Accordingly, Blair is entitled to

dismissal of Count II as a free-standing cause of action. See

Precourt v . Fairbank Recon. Corp., ___ F. Supp. 2d ___, ___,

(D.N.H. Mar. 5 , 2012). But, as in

Precourt, the court is disinclined to take the possibility of

enhanced compensatory damages off the table, given its inability

to predict how the evidence will come in at trial. Accordingly:

If the evidence at trial is sufficient to warrant an instruction on enhanced compensatory damages, the jury will be given an instruction with proper definitions of the relevant terms. If the evidence is insufficient, as a matter of law, the jury will not be instructed on enhanced compensatory damages.

at * 1 6 .

D. Count VI

Count VI is Susan Michnovez’s claim for negligent

infliction of emotional distress. She asserts that as a result

of “direct emotional shock from being at the scene of the

incident and observing the injuries and death of her mother-in-

law and the injuries to her husband,” Second Am. Compl. ¶ 3 6 ,

19 she “sustained serious mental and emotional strain accompanied

by objective physical symptoms,”

¶ 3 7 . The complaint does

not further identify the “objective physical symptoms” Susan

claims to have suffered. Blair argues that it is entitled to

judgment as a matter of law on Count VI because Susan has

produced no evidence of any physical manifestation of her

emotional distress, and has “identified no expert who will

testify that [she] suffered emotional harm so severe that it

caused [her] to suffer physical symptoms of that distress.”

Def.’s Mem. of Law (doc. n o . 8 5 - 1 ) , at 1 0 . Plaintiffs contend

that Susan’s nightmares, and her difficulty getting back to

sleep after she has had them, are the physical manifestation of

her emotional distress and that such an obvious physical

manifestation does not require expert testimony.

In New Hampshire, “[t]he elements of a claim for negligent

infliction of emotional distress include: ‘(1) causal negligence

of the defendant; (2) foreseeability; and (3) serious mental and

emotional harm accompanied by objective physical symptoms.’”

Tessier v . Rockefeller,

2 4 , 342 (2011) (quoting

O’Donnell v . HCA Health Servs. of N.H., Inc.,

0 8 , 611

(2005)). In O’Donnell, the New Hampshire Supreme Court

elaborated:

To recover for emotional distress under a traditional negligence theory, we have consistently required plaintiffs to demonstrate physical symptoms of their distress regardless of physical impact.

20 Palmer v . Nan King Restaurant,

8 1 , 683-84 (2002); Thorpe v . State,

(1990). Because pain experienced upon the death, illness or injury of a loved one is an emotional cost borne by everyone living in society, “[t]he law intervenes only when the plaintiff bears an unusual or aggravated burden.” Nutter v . Frisbie Mem. Hosp.,

9 1 , 796 (1984) (quotation omitted). Consequently, we have held that the emotional harm must be a significant, painful mental experience with lasting effects. Palmer,

. To ensure that the emotional injury is sufficiently serious to be afforded legal protection as well as to establish causation, we have repeatedly held that “expert testimony is required to prove physical symptoms suffered from alleged negligent infliction of emotional distress.” Silva v . Warden, N.H. State Prison,

7 2 , 374 (2003).

152 N.H. at 611-12 (parallel citations omitted).

The opinion in O’Donnell teaches that the expert-testimony

requirement serves two purposes; it establishes both the

seriousness of the emotional injury and the causal relationship

between that injury and the defendant’s alleged negligence.

Regarding the former, the New Hampshire Supreme Court has held

“that when damages for impact are not sought, expert testimony

is required to prove that the plaintiff experienced physical

symptoms from the alleged emotional distress.” Thorpe,

. That i s , “expert testimony is required to prove that

[the plaintiff] suffered physical symptoms and to prove

causation.” Thorpe,

. (emphasis added). As the

Thorpe court further explained:

In Chiuchiolo [v. N.E. Wholesale Tailors], we determined that a plaintiff could recover damages for mental distress under a theory of negligence only if he or she suffered physical symptoms as a result of

21 the emotional distress. Chiuchiolo, 84 N.H. [329,] 337-38 [(1930)]. This court expounded on the negligence theory in Corso, wherein we stated:

“The emotional harm . . . cannot be insignificant. Recovery is not to be permitted for ‘mere upset, dismay, humiliation, grief and anger.’

The emotional harm must be a painful mental experience with lasting effects. . . . In other words, the harm for which plaintiff seeks to recover must be susceptible to some form of objective medical determination and proved through qualified medical witnesses.”

-03 (quoting Corso v . Merrill,

4 7 , 652-

53 (1979)) (parallel citation omitted).

Here, it is undisputed that plaintiffs have disclosed no

expert who will offer testimony in support of Susan’s claim for

negligent infliction of emotional distress. They argue,

however, that under the circumstances of this case, no expert

testimony is required. They are wrong.

According to plaintiffs, the rule “requir[ing] expert

testimony to link physical injury to emotional distress . . .

does not apply where ‘it is within the ken of average lay people

what mental and emotional harm might result.’” Pl.’s Mem. of

Law (doc. n o . 8 6 - 1 ) , at 9 (quoting O’Donnell, 152 N.H. at 6 1 2 ) .

Plaintiffs’ reliance on O’Donnell is misplaced. To be sure, the

opinion in that case did note that the court had allowed

recovery for emotional distress damages without requiring expert

testimony in cases involving “direct physical injury and/or

22 intentional torts where ‘it is within the ken of average lay

people what mental and emotional harm might result.’” 152 N.H.

at 612 (citation omitted). But, the O’Donnell court expressly

“decline[d] the invitation to expand this exception to the

negligent infliction of emotional distress to bystanders under

the facts of [the] case [before it],” id. Thus, O’Donnell does

not relieve plaintiffs of the burden of providing expert

testimony in this case.

O’Donnell makes it clear that a plaintiff asserting a claim

for negligent infliction of emotional distress may recover only

for emotional distress that is “unusual or aggravated,” that is

a “significant, painful mental experience,” and that is

“sufficiently serious.” See 152 N.H. at 611. The purpose of

the expert-testimony requirement is to prevent recovery for the

“emotional cost[s] borne by everyone living in society.” Id.;

see also Bresnahan v . McAuliffe,

(Mass.

App. C t . 1999) (pointing out the risk of fraudulent claims for

negligent infliction of emotional distress). Here, plaintiffs’

failure to secure an expert to provide testimony on either the

third element of Susan’s claim or the issue of causation

forecloses her claim, under O’Donnell, and entitles Blair to

judgment as a matter of law on Count V I .

23 Conclusion

For the reasons described above, Blair’s motion for summary

judgment, document n o . 8 5 , is granted in part and denied in

part. Specifically, Blair is entitled to summary judgment o n :

(1) as much of the failure-to-warn claims stated in Count I as

involve a duty to inform consumers of the obvious danger that

clothing can catch fire when exposed to an open flame, see

Wilson,

4 ; (3) Count I I , but only to the extent

that plaintiffs’ claim for enhanced compensatory damages is

dismissed as a free-standing cause of action (the availability

of such damages remains an open question); and (3) Count V I ,

Susan’s claim for negligent infliction of emotional distress.

Blair’s motion is otherwise denied. Finally, in the interest of

simplifying what i s , even in its third iteration, a perplexingly

pled case, the court dismisses Count III sua sponte, for the

same reasons that support summary judgment in favor of Blair on

Count I I . Mrs. Michnovez’s conscious pain and suffering may

well factor into the damages available under one or more of

plaintiffs’ theories of liability, but conscious pain and

suffering is not a free-standing cause of action.

Based on the foregoing, this case now consists o f : the

negligence, breach-of-warranty, and strict-liability claims

stated in Count I , minus the negligence theory stated in

24 paragraph 12(e), and with a slightly narrowed failure-to-warn

theory; and Count IV, John’s claim for personal injury.

SO ORDERED.

Landya MccSferty United States Magistrate Judge

July 5 , 2012

c c : David P. Angueira, Esq. Eric K. Blumenfeld, Esq. Alan L . Cantor, Esq. Joel Thomas Emlen, Esq. Dona Feeney, Esq. Bruce W . Felmly, Esq. James C . Fitzpatrick, Esq. D. Patterson Gloor, Esq. Theodore V.H. Mayer, Esq. Steven M . Shear, Esq. Edward M . Swartz, Esq. Jori L . Young, Esq.

25