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Bar News - March 13, 2009

NH Supreme Court At-a-Glance January 2009 Ė Part 2

NH Supreme Court At-a-Glance - January 2009, Part I

Medical Malpractice

Joseph P. Goudreault, Jr. v. Thomas J. Kleeman; 2007-807
January 9, 2009
Reversed and Remanded

Whether the trial court erred in certifying Dr. Golding as a medical expert when he had not operated for more than ten years, when he had never trained in or performed laparascopic surgery or cared for post-operative ALIF patients when the medical malpractice case concerned an ALIF patient.

Whether the trial court erred in allowing the medical expert to opine on the origin of the plaintiffís injuries when the expert based his opinion on the medical records and testimony at the time of trial but the trial court made no ruling as to the reliability of the expertís methodology.

Whether the trial court erred in reconsidering and granting the plaintiffís motion in limine when it had previously denied the motion.

Whether the trial courtís answer to the deadlocked juryís question concerning partial liability was reversible error that prejudiced the verdict against the defendant.

Whether the defendant should have been held joint and severally liable under RSA 507:7-e when he was found to be 10% at fault for the plaintiffís injuries.

Whether the defendant produced adequate evidence to find non-litigant tortfeasors partially liable when he did not present a full prima facie case against the other tortfeasors.

Goudreault developed back pain and went to Dr. Kleeman, an orthopedic surgeon specializing in spinal surgery, for care. After following a conservative physical therapy treatment program without improvement, Dr. Kleeman recommended a laparascopic anterior lumbar interbody fusion (ALIF). The ALIF was performed at Catholic Medical Center, with Drs. Nepomnayshy and Mahon assisting as vascular surgeons. Complications arose while accessing Goudreaultís spine such that substantial vascular injuries were sustained, and Dr. Kleeman left the surgery table so that Dr. Mahon could assist Dr. Nepomnayshy. Dr. Kleeman returned after the vascular repairs had been made and the bleeding stopped, and the ALIF procedure was conducted in an open and intrusive manner, although it proceeded to completion without flaw. Following surgery, Goudreault was taken to post operative care, but then removed to the ICU when it became apparent he needed more monitoring. Dr. Kleeman was contacted later that day concerning some of his symptoms, and it was suspected early the next morning that Goudreault had developed compartment syndrome in his leg. At that time, Dr. Kleeman contacted Dr. Mahon, while the ICU nurse also contacted Dr. Mahon. Several more calls were made to Dr. Mahon, and Dr. Kleeman performed another elective surgery at another hospital before Goudreaultís leg was operated on to treat the compartment syndrome. As a result, Goudreault suffered permanent damage to his peroneal nerve which has caused pain, numbness and difficulty walking.

The instant action was filed for medical malpractice against the three doctors and the hospital. All but Dr. Kleeman settled. At trial, Dr. Kleeman indicated he was not qualified to treat the compartment syndrome and that he relied on Dr. Mahon to deal with the vascular issues. Dr. Golding was called by Goudreault as his expert witness, and he testified that the surgical care was far below the standard of reasonable care, and that it was difficult to tell who had caused the injuries but that more than likely Dr. Kleeman was responsible for at least one of the vascular injuries. He also opined that Dr. Kleeman was responsible for post operative monitoring and that Dr. Kleemanís failures with regard to the compartment syndrome caused the permanent injuries. After trial, the jury was given the special verdict form. It was asked if the defendant was at fault and if so the amount of damages. The jury became deadlocked, and asked the court whether the plaintiff would be precluded from getting an award if it did not find the defendant guilty. The court responded by saying that in order to apportion fault to parties other than the defendant, the jury would have to find Dr. Kleeman guilty to some degree. The jury found the defendant guilty and found total damages of $1.19 million, with 10% of fault attributed to Dr. Kleeman.

The Court found that the decision as to whether a witness should be qualified as an expert is within the trial judgeís discretion, and it will be undisturbed so long as the decision was not "a clearly unsustainable exercise of discretion." The Court could not say there was an unsustainable exercise of discretion with regard to Dr. Golding since he was a trained vascular surgeon, board certified in surgery, licensed to practice medicine in three states, had taught and performed medicine since 1959, and authored a chapter on vascular trauma in a medical textbook. The Court refused to automatically disqualify Dr. Golding simply because he is not a specialist in the particular field at issue.

Generally, an expertís opinion concerning the causal link is enough to establish its existence, but such an opinion is only admissible after the trial court has determined that the testimony is based in sufficient facts and uses a sufficiently reliable methodology. The Court found Dr. Goldingís opinion as to the causal link admissible despite the trial courtís failure to determine the factual and methodological basis for it since Dr. Kleeman was given an ample opportunity to explore the basis for Dr. Goldingís opinion in the juryís presence, and since the methodology was clearly reliable.

The Court held that it would not overturn the trial courtís determination to reconsider the issue of the use of the ACS policy statements because the power to reconsider an issue remains with the trial court until the final judgment is made, and the judge here concluded that reconsideration of the motion in limine was necessary to prevent injustice. The Court refused to overturn that decision where the trial court was attempting to prevent juror confusion.

The Court found the trial court committed substantial error in answering the juryís question. The trial courtís response to a juryís question, especially after the jury has begun deliberations, is left within the discretion of the court, but a jury verdict may be set aside as a result of such a response if there "was a substantial error such that it could have misled the jury regarding the applicable law," and the error resulted in a mistake or partiality. Here, the trial court answered juryís question as if the jury was trained in the law, rather than taking a laymanís interpretation of the question so that the response was in effect none at all. The Court found that in this case where the juryís question shows confusion about a dispositive question of law, and the trialís court noresponsive error caused lingering confusion and likely implied error about the applicable law, that it caused prejudice, the verdict cannot be upheld and the case must be reversed and remanded.

Under the New Hampshire statutory scheme, RSA 507:7-e, I(b), joint and several liability exists only for any party 50% guilty or more, or who knowingly pursued a plan resulting in harm. The Court held that the legislature added the knowingly state of mind in order to create an exception where a minimally guilty party could be found jointly and severally liable. The Court determined that Dr. Kleeman was not joint and severally liable since he was found only 10% guilty, and since acting together with other doctors does not constitute knowingly pursuing a plan to harm.

As to the apportionment of fault to non-litigants, who may be charged with fault as non-litigant tortfeasors, the Court determined that a civil defendant seeking to shift fault is raising an affirmative defense and as such, the "non-litigant tortfeasorís fault must be supported by adequate evidence before a jury or court may consider it for fault apportionment purposes." lt this way is raising an affirmative defense, such that the defendant carries the burden of proof, and must include affirmative evidence including expert testimony. The Court concluded after reviewing the record that Dr. Kleeman met his burden of proof, including the requisite expert testimony, to support the apportionment of fault to Drs. Mahon and Nepomnayshy.

Sullivan & Gregg, P.A., of Nashua (Kenneth M. Brown on the brief and orally), for the plaintiff.

Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (Peter W. Mosseau and Jonathan A. Lax on the brief, and Mr. Mosseau orally), for the defendant.

Professional Misconduct

Connerís Case; 2008-005
January 29, 2009
So Ordered

Whether Attorney William E. Conner should be disbarred when he followed a deliberate course of deception against his clients, colluded with a fellow attorney to commit the deception, and maintained a number of meritless, expensive lawsuits on behalf of his clients, all while under a conflict of interest.

In 1993, Michael and Elena Abbene brought suit for alleged defects in their home, which suit ended with an arbitration award in 2000. The Abbenes paid Young and the respondent $7,500 to pursue further litigation concerning the home, after Young convinced them he and the respondent could improve upon the 2000 award. Two suits were initiated on the Abbenesí behalf by Young and the respondent: 1) challenging the arbitration award and 2) naming numerous entities alleged to be subcontractors as defendants. The first was dismissed as untimely, and in the second, the defendants filed motions to dismiss the action as barred by the statute of limitations, and res judicata. The respondent largely ignored these motions, and did not tell the Abbenes. Early in 2002, the trial court granted the first of these motions, which the respondent sought, unsuccessfully, to have vacated. In March of 2002, after a status conference, Young and the respondent sent a letter to the Abbenes informing them the suit might not be successful, but failed to inform them the case had been effectively dismissed and the trial court was preparing to award attorneys fees. The trial court issued a series of orders against the Abbenes for $16,000.00 in attorneys fees. The respondent and Young began a series of email discussions of how to pay the fees without telling the Abbenes. In December of 2002, the trial court entered final judgment for the defendants and authorized them to collect attorneys fees. In January 2003, the trial court granted the defendantís requests to have the Abbenes served for a show cause hearing, at which point the Abbenes reviewed the court files themselves, and learned of the extent of Young and the respondentís deceit. The Abbenes were ordered to pay the attorneys fees personally, and they then filed complaints against Young and respondent. The respondent stipulated to the facts before the PCC and the resulting violations of the New Hampshire Rules of Professional Conduct. The only remaining issue was the sanction.

The Court determined to follow the PCCís requested sanction of disbarment with allowance for reapplication in three years and participation in the New. The Court began by categorizing the misconduct; the most serious violations here were lying to his clients in violation of Rule 8.4(c) and operating under a conflict of interest in violation of Rule 1.7(b), both of which the Court views as "bedrock duties of the legal profession." The Court then looked to the mental state of the respondent, which given the period of time over which the violations took place and the respondentís attempted collusion, indicate that the respondent acted knowingly and intentionally. Finally, the Court looks to the injury caused by the respondentís misconduct, which here was to cause substantial financial harm to his clients in the form of court assessed attorneys fees and money spent on meritless law suits. Given the facts of this case, the Court found it difficult to imagine any sanction less than disbarment given the "lengthy and deliberate violation of ethical rules resulting in substantial financial harm."

The Court reviewed the aggravating and mitigating factors to temper the sanction, which mitigating factors suggested the respondent should be allowed to reapply for admission after a suitable period of time considering that he was facing a series of personal problems, including depression and alcoholism, his sincere remorse and cooperation with the PCC and that he has already taken steps towards rehabilitation, including ceasing his practice when this case came to bar. The Court finally determined that since the purpose of disbarment is not to punish the respondent but rather to keep the public safe, and since the respondent had taken steps and made substantial efforts to rehabilitate himself, he should be allowed an opportunity to reapply for admission after three times disbarrment.

Landya B. McCafferty, of Concord, on brief and orally, for the professional conduct committee.

William E. Conner, on the memorandum of law and orally, pro se.

Workerís Compensation

Appeal of Robert Belair (New Hampshire Compensation Appeals Board); 2088-277
January 14, 2009
Affirmed in part; Reversed in part; and Remanded

Whether the claimantís claim for indemnity benefits is time barred by RSA 281-A:48 when the claimant requested a hearing within the stated four year period but when the hearing was continued for a period of several years.

Whether a claimant is required to provide documentation when he requests a hearing under RSA 281-A:43 in order for the hearing request to be valid.

Whether the burden to make a request for a renewed hearing on indemnity benefits in a timely manner rests upon the claimant when he has requested a continuance.

Whether a claimant who has reserved his right to a hearing by requesting a hearing within a timely manner under RSA 281-A:48 is barred by the doctrine of laches from acting upon his claim for indemnity benefits when he has requested a continuance, and not renewed the request for a hearing within an eight year period.

Whether the claimaintís claim for medical benefits is time barred when he has requested a hearing on some of the bills but not others within the required time period of 18 months under RSA 281-A:43.

On August 16, 1993, the claimant reported a carpal tunnel injury, the initial denial of which caused a hearing before the department of labor (DOL), following which the claimant was awarded temporary total disability benefits from August 19, 1993 to October 4, 1993. An extension of full indemnity benefits was granted through December 6, 1993 and a reduced award through January 14, 1994. On January 13, 1998, the claimant requested a hearing in order to protect his right to a workerís compensation hearing, and a hearing was scheduled for June 22, 1998. On June 2, 1998, the claimant requested a continuance, which was granted. On August 30, 2006, the claimant requested a hearing, which the respondent moved to dismiss as barred by the statute of limitations.

RSA 281-A:48, I creates a statute of limitations such that disability payments may not be reinstated if the last disability payment was made more than four years before. The Court found that the trial court below erred when it viewed this as a bar to a claim made within the appropriate time, but where a continuance had stopped the hearing from being held within that time period. The Court found that the claimant satisfied RSA 281-A:48, I since he requested a hearing within the statutorily specified period of four years. When he made his request, the statute of limitations stopped running. Further, the Court found that the claimant satisfied RSA 281-A:43, I(a) in requesting a hearing and setting out his reasons for the request since the statute does not impose any documentation requirements.

The Court determined, that as to continuances, which are permitted under RSA 281-A:43, I(a), there is no language indicating a deadline for requesting a new hearing once a continuance has been issued. Further, the burden for requesting a new hearing is nowhere allocated in RSA 281-A:43, I(a), so that it rests equally with the respondent as with the claimant. The Court declined to reach the issue of laches because it was not addressed below, and the doctrine is an application of fact best left for the fact finder below.

As to the medical benefits, under RSA 281-A:42-d, compensation for medical benefits are barred unless the claimant petitions for a hearing within 18 months. Therefore, those benefits denied within 18 months of the claimantís request for a hearing on January 13, 1998 are allowed, but those denial since the hearing request are statutorily barred since the hearing request did not toll the statute of limitations for prospective denials.

Vanacore Law Office, of Concord (John G. Vanacore and Natalie J. Friedenthal on the brief, and Mr. Vanacore orally), for the petitioner.

Devine, Millimet & Branch, P.A. of Manchester, (Paul R. Kfoury, Jr. and Elizabeth M. Murphy on the brief, Mr. Kfoury orally), for the respondents.


Dovaro 12 Atlantic, LLC v. Town of Hampton; 2007-219; 2008-064
January 9, 2009

Whether the trial court erred when it reversed the boardís decision to require the condominium association to secure off site parking for some of the units in perpetuity when doing so would cause the petitioner to have to make his preexisting non conforming use conform to the parking regulations that made his use nonconforming.

Whether converting seasonal apartments into year round condominiums substantially changes or expands the petitionerís nonconforming use when that use was rental property on a seasonal basis.

This case is a consolidated appeal in which the Town challenges two trial court decisions concerning Dovaroís condominium conversion project, the first of which decisions ordered the Town to allow the project to proceed, the second of which upheld the Boardís decision to condition approval upon removal of all but four of Dovaroís parking spaces, but which reversed the Boardís decision to require perpetual parking offsite. Dovaro owns a 5000 square foot lot on Hampton Beach with two buildings on it: 1) a three story, six apartment structure; and 2) a three bedroom cottage. The use is nonconforming because it has too few parking spaces to satisfy the zoning ordinance which requires two spaces for each dwelling unit, because the spaces are not the required sized and do not offer proper ingress and egress via a street or surfaced driveway. Renters have leased parking offsite, although these spaces are not granted via easement. The petitioner applied to convert the rental property to a condominium project with seven units, changing only the usage from seasonal to year round. Initially the board denied the application due to the lack of parking, and upon rehearing, denied it again because the parking would be a public nuisance and jeopardize the public safety. The petitioner appealed, and the trial court reversed and modified the boardís order since the board should grant the application, just without the parking that would create a nuisance and safety hazard. The petitioner submitted a revised application, which was conditionally approved with four parking spaces and the requirement of securing perpetual offsite parking. The petitioner appealed to the superior court, which upheld the decision to strike all but four of the parking spaces, but reversed the requirement of perpetual parking.

The Court determined, based on the trial courtís findings, that the off site parking, since secured by tenants rather than the land owner, was not part of the nonconforming use so that the board could not require that the petitioner find perpetual offsite parking. The Court then found that once the petition was in partial compliance with the zoning ordinance by allowing only four parking spaces, that the Board could not require complete conformance by conditioning approval on perpetual parking since continuance of a nonconforming use is a vested right.

Current zoning ordinances will apply to a preexisting nonconforming use only when there is a substantial change in that use. Substantial change turns upon the facts of the particular case. To determine whether there has been a substantial change, the Court considered whether there is a use different in character, nature and kind, and if there will be a substantially different effect on the area. The Court looked to RSA 356-B:5 (1995) which states that "no zoning or other land use ordinance shall prohibit condominiums as such by reason of the form of ownership." The Court found that simply changing the form of ownership from tenant occupancy to owner occupancy would not operate to substantially change the preexisting non conforming use because parking space usage is the same regardless of ownership status. Second, changing from seasonal to year round is not substantial since the use of parking, and the year round occupancy will not effect the surrounding area.

Casassa and Ryan, of Hampton (Robert A. Casassa on the brief and orally), for the petitioner.

Mark S. Gearreald, of Hampton, by brief and orally, for the respondent.

NH Supreme Court At-a-Glance - January 2009, Part I


Elizabeth E. J. Nickerson is a graduate of Franklin Pierce Law Center and a recent admittee to the bars of New Hampshire and Massachusetts. She clerked for the firm of Crisp, Barrett, and Uchida, of Concord, New Hampshire, and has recently been staying at home with her children.

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