Brandon Stachulski v. Apple New England, LLC
Brandon Stachulski v. Apple New England, LLC
Opinion
The plaintiff, Brandon Stachulski, brought suit against the defendant, Apple New England, LLC, under a theory of strict products liability alleging that he contracted salmonella by eating a hamburger at the defendant's restaurant, Applebee's Neighborhood Bar and Grill, where he dined with his wife and brother-in-law in February 2014. The defendant disputed the allegation that the hamburger was the source of the plaintiff's salmonella illness and asserted that the plaintiff's pet lizard or other food sources could just as likely be the cause of his illness. Following a three-day trial in Superior Court ( Schulman , J.), the jury returned a general verdict in the plaintiff's favor, awarding him $750,000 in damages.
On appeal, the defendant argues that the trial court erred by: (1) admitting unfairly prejudicial evidence; (2) admitting the plaintiff's expert's testimony; (3) submitting the issue of causation to the jury; (4) instructing the jury on awarding hedonic and future pain and suffering damages; (5) permitting the plaintiff's counsel to make certain statements during his opening and closing arguments; and (6) denying its request for remittitur. We affirm.
The defendant first argues that the trial court erred in admitting unfairly prejudicial testimony. Prior to trial, the defendant moved
in
limine
to exclude the plaintiff's testimony about his belated offer to test the lizard for salmonella. We construe the defendant's argument as being a challenge to the trial court's denial of its motion
in
limine
. "Because the trial court ruled upon the admissibility of the challenged evidence before trial, we consider
*1237
only the offers of proof presented at the pretrial hearing."
State v. Gordon
,
As the appealing party, the defendant has the burden of providing a record sufficient to decide its issues on appeal.
See
Bean v. Red Oak Prop. Mgmt.
,
The defendant next argues that the trial court committed an unsustainable exercise of discretion in allowing the plaintiff's expert, Seth D. Rosenbaum, M.D., to testify. The defendant contends that Dr. Rosenbaum's testimony was not "based upon sufficient facts" or "the product of reliable principles and methods," and therefore "resulted from failure to apply accepted principles and methods reliably to adequate facts." Prior to trial, the defendant moved
in
limine
to exclude Rosenbaum's testimony and the court held a hearing to determine its admissibility. Because we construe the defendant's appellate argument regarding the admissibility of Rosenbaum's testimony as a challenge to the trial court's denial of its motion
in
limine
, "we consider only the offers of proof presented at the pretrial hearing."
Gordon
,
Rule 702 authorizes the trial court to admit expert witness testimony.
See
N.H. R. Ev.
702. To be admissible, however, expert testimony must rise to a threshold level of reliability.
Osman v. Lin
,
RSA 516:29-a provides:
I. A witness shall not be allowed to offer expert testimony unless the court finds:
(a) Such testimony is based upon sufficient facts or data;
(b) Such testimony is the product of reliable principles and methods; and
(c) The witness has applied the principles and methods reliably to the facts of the case.
II. (a) In evaluating the basis for proffered expert testimony, the court shall consider, if appropriate to the circumstances, whether the expert's opinions were supported by theories or techniques that:
(1) Have been or can be tested;
(2) Have been subjected to peer review and publication;
(3) Have a known or potential rate of error; and
(4) Are generally accepted in the appropriate scientific literature.
(b) In making its findings, the court may consider other factors specific to the proffered testimony.
"The trial court functions only as a gatekeeper, ensuring a methodology's reliability before permitting the fact-finder to determine the weight and credibility to be afforded
*1238
an expert's testimony."
Baker Valley Lumber
,
On appeal, we review the trial court's decision to admit Rosenbaum's testimony under our unsustainable exercise of discretion standard.
See
id. at 336,
We first review whether Rosenbaum's testimony was "based upon sufficient facts or data." RSA 516:29-a, I(a). Rosenbaum relied upon the following facts when formulating his opinion, to a reasonable degree of medical certainty, that the plaintiff contracted salmonella from the defendant-restaurant's hamburger: (1) the plaintiff's medical records recounted his diagnosis of non-typhodial salmonella, which is typically food-borne; (2) the plaintiff owned a pet lizard, with whom his wife and daughter also had contact, yet neither became ill; (3) the plaintiff's brother-in-law also ate a hamburger at the defendant's restaurant and suffered similar gastrointestinal symptoms; (4) the plaintiff prepared the meals that he and his wife ate from home, yet his wife did not become ill; (5) the plaintiff's wife has celiac disease, making her more prone to contract salmonella and other infections; and (6) the plaintiff presented symptoms within the six to 72 hour incubation, or "look-back," period for salmonella following his meal at the defendant's restaurant. Based upon the pretrial record before us, including Rosenbaum's deposition and report and the pretrial hearing transcript, we cannot conclude that the court unsustainably exercised its discretion in finding that Rosenbaum's testimony was based upon sufficient facts.
We next review whether Rosenbaum's testimony was the "product of reliable principles and methods," RSA 516:29-a, I(b), and whether he "applied the principles and methods reliably to the facts," RSA 516:29-a, I(c). On appeal, the defendant argues, as it did at the motion in limine hearing, that Rosenbaum failed to lay a proper foundation and exercise the appropriate methodology, and therefore, his opinion was unscientific and should have been excluded. The plaintiff counters that both Rosenbaum and the defendant's expert, Sigal Yawetz, M.D., considered the same facts, but reached different conclusions, and thus Rosenbaum's opinion was scientifically valid.
*1239
Before his pretrial deposition, Rosenbaum reviewed the plaintiff's medical records and the depositions of the plaintiff, his wife, and his brother-in-law. During his deposition, Rosenbaum testified about his experience and qualifications as an infectious disease physician and explained the typical symptoms of salmonella. Using his expertise, Rosenbaum discussed and considered the above mentioned facts, eliminated potential causes, and concluded that the hamburger from the defendant's restaurant was, more likely than not, the cause of the plaintiff's salmonella illness.
See
Westberry v. Gislaved Gummi AB
,
Though the defendant contends, on appeal, that "the only principles and methods that have previously been tested, subjected to peer review, with known or potential error rates, and generally accepted in the scientific literature are the methods used for public health purposes," the defendant has failed to demonstrate how Rosenbaum's methodology "was so altered by a deficient application as to skew the methodology itself,"
Osman
,
The defendant also argues that Rosenbaum lacked an adequate foundation to testify that someone with celiac disease, like the plaintiff's wife, would be more susceptible to a salmonella illness than someone without such condition, and therefore, such testimony was "highly prejudicial." We disagree. Rosenbaum's testimony explained that he considered the fact that the plaintiff's wife did not contract salmonella, though she has celiac disease, to decrease the likelihood that the salmonella originated from a source within the home. Moreover, Rosenbaum's deposition testimony recognized that he could not quantify how much more likely someone with celiac disease would be to contract salmonella than someone without such illness. The trial court found that this admission reduced any unfair prejudice.
See
N.H. R. Ev.
403. We agree. To the extent that there were gaps in Rosenbaum's explanation regarding celiac disease, these omissions "go to the weight to be accorded the opinion evidence, and not to its admissibility."
Goudreault
,
Next, the defendant argues that there was insufficient causation evidence to prove that: (1) the hamburger from the defendant's restaurant caused the
*1240
plaintiff's salmonella; (2) the salmonella would cause the plaintiff future pain and suffering; and (3) the salmonella caused the plaintiff to suffer hedonic damages. Under the doctrine of strict products liability, "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer."
Kelleher v. Marvin Lumber & Cedar Co.
,
We first address the defendant's argument that there was insufficient evidence to prove that the hamburger caused the plaintiff's salmonella illness. The defendant asserts that the trial court erred when it submitted the case to the jury and thereafter denied its motion for judgment notwithstanding the verdict (JNOV). We disagree.
"A party is entitled to JNOV only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the non-moving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand."
Halifax-American Energy Co. v. Provider Power, LLC
,
At trial, the plaintiff submitted sufficient evidence for a reasonable jury to conclude that the defendant-restaurant's hamburger was, more likely than not, the proximate cause of the plaintiff's salmonella illness. In addition to Rosenbaum's testimony detailed above, the jury heard the following evidence: the plaintiff and his brother-in-law each ate a well-done hamburger at the defendant's restaurant around 8:00 p.m. on Monday, February 17, 2014; the plaintiff became violently ill at approximately 2:45 a.m. on Tuesday morning, within the six to 72-hour look-back period for salmonella; and on February 22, 2014, the plaintiff was diagnosed with salmonella. The defendant challenged the plaintiff's causation evidence with its own expert's testimony.
Though the causation evidence adduced at trial was conflicting, several reasonable inferences could be drawn from such evidence, including that the defendant-restaurant's hamburger was the cause of the plaintiff's salmonella illness. Thus, the trial court did not err by denying the defendant's motion for JNOV on the issue of liability.
We now turn to the defendant's argument that there was insufficient evidence to prove that the plaintiff's salmonella illness would cause him future pain and suffering. The defendant contends that, in order to submit to the jury the issue of future pain and suffering damages, the plaintiff needed to prove, through expert testimony, that he would experience future pain and suffering as a result of his salmonella illness. The defendant claims that, without such expert testimony, the trial court erred when it denied its motion for directed verdict and submitted the issue of future pain and suffering damages to the jury. The plaintiff counters that the *1241 ample medical records submitted to the jury, in conjunction with the plaintiff's testimony and Rosenbaum's expert opinion that "up to one-third of individuals have prolonged gastrointestinal complaints after salmonella," were sufficient to prove the plaintiff's future pain and suffering and to allow jury instruction on such. We agree with the plaintiff.
"A trial court may grant a motion for a directed verdict only if it determines, after considering the evidence and construing all inferences therefrom most favorably to the non-moving party, that no rational juror could conclude that the non-moving party is entitled to any relief."
Conrad v. N.H. Dep't of Safety
,
It is well settled in New Hampshire law that "there can be no recovery for future damages unless there is evidence from which it can be found to be more probable than not that they will occur."
Jolicoeur v. Conrad
,
To determine whether expert testimony is required, we must determine whether this issue - whether the plaintiff's pain and suffering from salmonella "will continue into the future" - is "within the realm of common knowledge and everyday experience" of the average layman,
Laramie v. Stone
,
Here, the plaintiff submitted medical records to the jury. The defendant did not object to the admission of more than 700 pages of medical records, nor did it request a limiting instruction. The records characterize the plaintiff's ongoing gastrointestinal symptoms as "most likely post-infectious ... due to the salmonella."
See, e.g.
,
Bailey v. Cataldo Ambulance Service, Inc.
,
The plaintiff also testified that, more than two years after his salmonella illness,
*1242
he continues to work with physicians and a nutritionist to treat and manage his ongoing gastrointestinal symptoms, as evidenced by the medical records. He explained that there are foods and beverages, including alcohol, that he can no longer consume without a potential "flare up," which prevents him from enjoying time with friends. He ceased consumption of sugar, beef, caffeine, and carbonated beverages and decreased his intake of fruits and vegetables. He spoke about the prescriptions he takes on an ongoing basis to control his symptoms and also explained some of the side effects of those medications. The plaintiff's lay testimony recounting his continuous gastrointestinal symptoms since his salmonella diagnosis was "probative on the issue of physical injury and the cause of that injury."
To the extent that the defendant argues that there was insufficient evidence that the salmonella caused the plaintiff's delayed-onset patchy colitis, we find such evidence to be unnecessary. The jury was not instructed that it needed to find that the plaintiff suffered from patchy colitis, or that the patchy colitis was caused by his salmonella illness. Moreover, the jury returned a general verdict that did not specify the allocation of the damages award. The jury had sufficient evidence, from testimony and medical records, to conclude that the plaintiff suffered, and would continue to suffer, pain and residual symptoms from his salmonella illness.
Based upon our review of the record - including the expert testimony of Rosenbaum, the medical records, and the plaintiff's testimony - viewed in the light most favorable to the plaintiff, we conclude that the plaintiff produced sufficient evidence from which reasonable jurors could find that the salmonella was the cause of his ongoing gastrointestinal symptoms, and more likely than not, they will continue in the future. We recognize that it would not have been unreasonable for the jury to conclude otherwise. Under these circumstances, however, the inferences that may be drawn from the evidence are not "so overwhelmingly in favor of the [defendant] that no contrary verdict could stand,"
Halifax
,
The defendant also argues that the plaintiff failed to introduce expert testimony regarding permanent impairment sufficient to submit the question of hedonic damages to the jury, and thus the trial court erred in denying its motion for directed verdict on that issue. Because we decline to condition hedonic damages on proof of a permanent impairment, we need not consider whether expert testimony is necessary to establish permanency.
In
Bennett v. Lembo
,
Here, the jury could reasonably have found that the plaintiff was limited in his activities. At trial, the plaintiff testified that his gastrointestinal symptoms continue to interrupt and restrict his life. The jury heard testimony that the plaintiff can no longer eat food and drink beverages of his choice without repercussions, hike at his leisure, or participate in other activities without fearing embarrassing accidents in the absence of a nearby restroom. The jury also received medical evidence linking the plaintiff's ongoing limitations to his salmonella illness. Viewing this evidence in the light most favorable to the plaintiff, the jury could reasonably have found that the plaintiff "lost [the] ability to engage in activities that once brought pleasure."
Bennett
, 145 N.H. at 281,
Similarly, to the extent that the defendant argues that the trial court erred in instructing the jury on hedonic and future pain and suffering damages, we disagree. A trial court's decision to give a particular jury instruction must be based upon "some evidence to support a rational finding in favor of that instruction."
N.H. Ball Bearings v. Jackson
,
Next, the defendant points to numerous statements made by the plaintiff's counsel during opening and closing statements and argues that the trial court's failure to sua sponte strike such statements deprived the defendant of a fair trial and constituted plain error. The defendant asserts that such error requires a new trial.
The defendant acknowledges that these purported errors were not brought to the attention of the trial court. Nevertheless, under the plain error rule, we may consider claims of error not raised before the trial court.
Halifax
,
Statements and arguments that appeal to the emotions or prejudices of jurors may be improper when "the statements or arguments take the form of counsel's presentation of facts which have not been introduced in, or are not fairly inferable from, evidence at trial."
McLaughlin v. Fisher Eng'g
,
The defendant argues that the trial court erred in failing to
sua
sponte
strike the plaintiff's counsel's opening and closing statements referencing Rosenbaum's expert medical opinion, testimony about celiac disease, the failure to test the lizard for salmonella, and the inferences from this evidence that the plaintiff's counsel suggested to the jury. The defendant argues that these statements were improper and the trial court should have acted on its own to strike them because they lacked sufficient scientific reliability or were based upon facts not in evidence. The facts highlighted by the plaintiff's counsel, however, were introduced into evidence and questions of reliability and credibility are to be resolved by the jury.
See
Osman
,
Finally, independent of all previously addressed arguments, the defendant contends that the trial court erroneously denied its motion for remittitur, arguing that the jury's damages award of $750,000, when the plaintiff's medical expenses totaled only $43,000, was manifestly exorbitant and plainly excessive. We disagree.
"Direct review of a damages award is the responsibility of the trial judge, who may disturb a verdict as excessive (or inadequate) if its amount is conclusively against the weight of the evidence and if the verdict is manifestly exorbitant."
Kelleher
,
At trial, extensive evidence was admitted regarding the condition of the plaintiff's health during and following his February 2014 salmonella illness. The plaintiff testified that his inability to control his bowels embarrassed him and interrupted his personal and professional life. He detailed the changes to his diet, lifestyle, and habits in order to avoid and mitigate future discomfort and "flare ups." The jury heard testimony regarding salmonella's symptoms, complications, treatments, and side effects. The jury was also provided with voluminous medical records demonstrating *1245 the extent of the plaintiff's medical history since February 2014.
Having previously determined that this evidence was properly admitted and that it was proper for the jury to be instructed on hedonic and future pain and suffering damages, we conclude there was sufficient evidence and testimony to support the jury's damages award. In light of the evidence presented at trial, we cannot say that the damages were manifestly exorbitant. Accordingly, we conclude that the trial judge did not commit an unsustainable exercise of discretion in upholding the jury's damages award.
Affirmed .
LYNN, C.J., and HICKS and BASSETT, JJ., concurred; DALIANIS, C.J., retired, specially assigned under RSA 490:3, concurred.
Reference
- Full Case Name
- Brandon STACHULSKI v. APPLE NEW ENGLAND, LLC
- Cited By
- 1 case
- Status
- Published