USCA1 Opinion
December 3, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1438
KIMBERLY F. AND JOHN F.,
Plaintiffs, Appellees,
v.
MARY HITCHCOCK MEMORIAL HOSPITAL AND
HITCHCOCK CLINICS, INC.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Clarence C. Newcomer, Senior U.S. District Judge]*
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Bradford W. Kuster, with whom Cordell A. Johnston, and Orr
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and Reno, P.A. were on brief for appellants.
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Francis G. Murphy, Jr., with whom Nixon, Hall & Hess, P.A.
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were on brief for appellees.
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*of the Eastern District of Pennsylvania, sitting by designation.
BOWNES, Senior Circuit Judge. This is an appeal by
BOWNES, Senior Circuit Judge.
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defendants-appellants, the Mary Hitchcock Memorial Hospital
and the Hitchcock Clinic, Inc., from a jury verdict finding
them liable to plaintiffs-appellees, Kimberly F. and her
husband, John F., because of negligent care given Kimberly F.
while she was a patient at the Mary Hitchcock Memorial
Hospital. John F.'s suit was for loss of consortium. We,
therefore, treat the plaintiffs as one. The Hitchcock
Clinic, Inc. is an incorporated association of physicians and
surgeons, some of whom treated Kimberly F. while she was at
the hospital. Because of the nature of Kimberly F.'s injury,
it was agreed that she and her husband could use pseudonyms
to keep some degree of anonymity.
Kimberly F. was admitted to the obstetrical unit of
the hospital on August 2, 1986. She gave birth to a son on
August 3. The child was full term. There were no birth
complications, and she was discharged on August 5. One week
later, on August 13, Kimberly F. was diagnosed as having an
outbreak of genital herpes. She subsequently sued the
defendants alleging that she was infected with herpes while
at the hospital and that defendants negligently failed to
protect her from such infection. Plaintiff also brought a
count for failure to obtain informed consent.1 The jury
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1. Plaintiff and her husband had moved from New Hampshire to
another state before this action, based on diversity
jurisdiction, was brought.
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found defendants not liable on this count and there has been
no appeal from this finding.
Defendants raise three issues before us: that, as
a matter of law, there was insufficient evidence for the
jury's finding of negligence; that testimony was improperly
admitted; and that the closing argument of plaintiff's
counsel on pain and suffering was improper. We discuss the
issues seriatim.
I.
I.
SUFFICIENCY OF THE EVIDENCE
SUFFICIENCY OF THE EVIDENCE
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In ruling on an appeal from the denial of a motion
for a directed verdict, we conduct a plenary review of the
evidence. Our review of the evidence and all reasonable
inferences therefrom is made in the light most favorable to
the non-moving party. American Private Line Services, Inc.
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v. Eastern Microwave, Inc., et al., 980 F.2d 33, 35 (1st Cir.
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1992); Gallagher v. Wilton Enterprises, Inc., 962 F.2d 120,
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124 (1st Cir. 1992). The denial of a motion for judgment
n.o.v. is also subject to plenary review. The standard of
review is whether the evidence and all reasonable inferences
therefrom could lead a reasonable person to but one
conclusion: that the moving party was entitled to judgment.
Pontarelli v. Stone, 930 F.2d 104, 113 (1st Cir. 1991);
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Hendricks & Associates, Inc. v. Daewoo Corp., 923 F.2d 209,
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214 (1st Cir. 1991). We have conducted the requisite review
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and find that the district court was correct in denying the
motions for a directed verdict and judgment n.o.v.
A. The Evidence
A. The Evidence
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The evidence viewed in the light most favorable to
plaintiff was as follows. When she was admitted to the
hospital on August 2, 1986, plaintiff had no prior history of
herpes. When plaintiff was examined by defendants on August
13, she was diagnosed as having an outbreak of genital
herpes. Such an outbreak is characterized by lesions in the
infected area. The incubation period for a herpes infection
is two to twenty-six days. Plaintiff entered the hospital on
August 2, was discharged on August 5, and the medical
diagnosis of genital herpes was made on August 13. She was
well within the herpes incubation period.
Genital herpes is a life-long affliction and, as is
true of other types of herpes, is incurable. Outbreaks of
herpes, manifested by lesions and cold sores, occur from time
to time during the victim's life. The first attack is
usually the most severe. The genital herpes outbreak
diagnosed on August 13 was a primary (first-ever) outbreak,
i.e., plaintiff never had a herpes outbreak prior to this
____
time. Plaintiff's sexual history was as follows. She had
sexual intercourse twice in high school; both times her
partners used condoms. She married for the first time in
1981. After her first child was born she was divorced. The
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divorce became final in 1982 or 1983. She met her present
husband in 1984. She had no sexual relations with other men
between separating from her first husband and meeting her
present one. Neither she nor her husband had ever engaged in
oral sex at any time. Plaintiff's husband has never had any
herpes symptoms.
When plaintiff was first admitted to the hospital
she was put in a birthing room that shared a bathroom with
another patient. Plaintiff went into the bathroom alone
because no one had come in response to her pushing the
nurses' call button. She felt dizzy and sat on the toilet to
avoid falling. In so doing, she sat on a urine catch basin
that was in the toilet bowl. The basin contained urine from
the other patient. As her labor pains increased in
frequency, a nurse suggested a warm bath might help. She was
taken to a room with a bathtub. Both she and her husband
noted that the tub contained some dead bugs. There was an
open window with no screen. Plaintiff's husband cleaned out
the tub and she took a bath. During the birthing process, an
episiotomy was done. This consists of making a surgical
incision into the perineum and vagina so as to prevent
tearing during delivery. Prior to delivery, nurses examined
plaintiff internally to see whether her cervix had dilated.
Some of the nurses did not wash their hands in the sink in
plaintiff's room before examining her.
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After delivery, plaintiff experienced pain and
discomfort at the site of the episiotomy. Reusable plastic
ice packs were applied to ease her discomfort. The ice packs
were wrapped in sterile green surgical cloth. At times, the
pack was placed over plaintiff's vaginal area in such a way
that the surgical cloth did not completely cover the plastic
bag. This resulted in direct contact between the site of the
episiotomy and the plastic bag. On the day of plaintiff's
discharge a nurse came in and checked plaintiff's perineal
area and touched the episiotomy site with her hands. The
nurse had not washed her hands, nor was she wearing gloves.
On July 31, a patient was admitted to the
obstetrics unit of the hospital with a herpes lesion behind
her right knee. The patient was placed on herpes isolation
precautions during all of the time she was at the hospital.
This entailed strict procedures to prevent the patient's
herpes infection from spreading to other patients. This
patient was discharged on the morning of August 2; plaintiff
was admitted at 11:30 p.m. on August 2.
A second patient with herpes was in the maternity
ward at the same time as plaintiff. This patient, "J.D.,"2
occupied the same room as did plaintiff immediately prior to
plaintiff being put in the room. The records of J.D. show
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2. This is the case name of the patient, not her actual
name.
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that because she had had monthly episodes of herpes outbreaks
during her pregnancy, she was admitted "at risk," and was
placed on herpes infection precautions. A herpes culture was
taken from J.D.'s right labial lesion on July 28. It was
noted in her records that she was at high risk and herpes
infection precautions were continued. J.D. gave birth via a
Caesarean section on July 29. Her records show that the
reasons for the Caesarean section were that the baby was
breached and that J.D. was at risk with herpes. On July 30,
a nurse's note in J.D.'s records stated that she had two
lesions on the left outer lower labia. A subsequent note on
the same day states that J.D. continued to have lesions on
the left lower labia. There is nothing in the record
indicating that any culture was taken from the lesions on her
left lower labia. The only culture taken was from the lesion
on the right labia. The lab report on this culture was
necessarily a preliminary one; it was negative for herpes. A
negative culture report on herpes normally includes the
statement, "these results do not exclude infection with
herpes simplex virus." This report did not so state. On the
evening of August 2, the day that plaintiff was admitted to
the hospital, J.D. was transferred to the second floor.
Later that evening she told a nurse that she was concerned
about the fact that she was still on herpes infection
precautions. The nurse, Linda Morgan, recorded in her chart
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that J.D. wanted to be taken off herpes infection precautions
and that she had shown no lesions since July 29. This
information was given by telephone to Dr. Ketterer and the
same night, August 2, he gave a verbal order to remove J.D.
from herpes precautions.
Nurse Morgan admitted during her testimony that she
did not tell Dr. Ketterer about the lesions on J.D.'s left
labial area. Dr. Ketterer admitted that his decision to take
J.D. off herpes infection precautions was based on incomplete
information. About two hours after J.D. was taken off
precautions, plaintiff was admitted to the hospital. She
spent the next eight hours in labor and delivery on the
second floor, where J.D. was also located. Both plaintiff
and J.D. were discharged from the hospital on the same day,
August 5.
Two nurses, J.W. and M.W., had herpes and worked in
the maternity ward of the hospital while plaintiff was a
patient there. J.W. had a history of genital herpes. She
gave direct patient care to plaintiff, which included placing
ice packs on her perineum and physically examining her.
There was no direct evidence that the other nurse with
herpes, M.W., had patient contact with plaintiff, but she was
present on the maternity ward and available to give care to
all of the patients in the ward.
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All of the doctors who testified agreed, in effect,
that it would be a violation of acceptable hospital infection
precautions for a patient to be infected by herpes while a
hospital patient.
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B. Testimony of Plaintiff's Expert Witness
B. Testimony of Plaintiff's Expert Witness
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Appellants' attack on the sufficiency of the
evidence focuses on the testimony of plaintiff's expert
witness, Dr. James Kahn. Their claim is that "no expert
witness identified any act of negligence that more probably
than not caused the infection." Appellants' Brief at 9.
Both sides agree that New Hampshire law controls this issue.
We will therefore examine New Hampshire law and rule
accordingly.
In Thorpe v. New Hampshire Department of
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Corrections, 575 A.2d 351, 353 (N.H. 1990), the court stated:
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"The general rule in medical malpractice cases is that the
proximate cause between the negligence and the injury must be
established through expert testimony." In Martin v.
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Wentworth-Douglass Hospital, 536 A.2d 174, 176 (N.H. 1987),
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the court held that expert testimony was necessary to
establish the causal link between the injury complained of
and the health care provider sought to be held accountable,
and "[t]he quantum of such evidence necessary to survive a
motion for nonsuit had to be enough to warrant the conclusion
of a reasonable juror that the causal link probably existed."
See also Wilder v. Eberhart, 977 F.2d 673, 676 (1st Cir.
___ ____ ______ ________
1992). In Pillsbury-Flood v. Portsmouth Hospital, 512 A.2d
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1126 (N.H. 1986), the court held:
In New Hampshire, the plaintiff in a
medical malpractice action must prove
that the defendant's negligence caused
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the patient's injury or loss. See
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Carrigan v. Sacred Heart Hospital, 104
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N.H. 73, 80, 178 A.2d 502, 506-07 (1962).
"[N]egligent conduct is a proximate or
legal cause of harm, if the actor's
conduct is a 'substantial factor in
bringing about the harm.'" Maxfield v.
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Maxfield, 102 N.H. 101, 105, 151 A.2d
________
226, 230 (1959) (quoting Restatement of
Torts 431(a) (1934)). This issue is
normally one for the trier of fact once a
prima facie case is established. See
___
id.; W. Keeton, D. Dobbs, R. Keeton & D.
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Owen, Prosser and Keeton on the Law of
Torts 41, at 269 (5th ed. 1984)
(hereinafter cited as Prosser & Keeton).
Id. at 1129.
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We now turn to Dr. Kahn's testimony. There was no
objection to Dr. Kahn's expert qualifications in the field of
infectious diseases. The crux of his testimony came in the
answers to a series of questions. Dr. Kahn was asked:
"Based on your review of all the information, do you have an
opinion, based on reasonable medical probabilities, as to
whether or not Mrs. F.'s infection, outbreak of herpes in
August of 1986 was a primary infection?" He answered: "Yes,
I continue to feel very emphatically that it was a primary
infection." In prior testimony Dr. Kahn had explained that
the term "primary infection" meant a first-ever herpes
infection. Dr. Kahn had explained the nature of herpes
infections and how outbreaks of the disease are manifested.
The next question bearing on the issue was: "Do
you have an opinion, based on reasonable medical
probabilities, as to whether or not the hospital was the
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probable source of -- general source of Kimberly F.'s
infection in August of 1986?" Dr. Kahn answered that the
infection was clearly associated with the plaintiff's
hospitalization. The following question was then asked:
"What were the possible means of transmission within the
hospital that could have resulted in her infection?" There
was an objection based on the use of the word "possible;"
that "the plaintiffs' burden of proof is probabilities." The
court denied the objection, pointing out that the main
question was premised on reasonable medical probabilities,
and these were the factors the expert considered in arriving
at his opinion. Dr. Kahn was asked again to state the
possible sources of plaintiff's infection. He answered:
"The likeliest, I think, is another patient who at the time
of your client's hospitalization had what to all intents and
purposes sounded like a recurrent genital herpes outbreak and
in at least one instance shared a care giver over a short
period of time." This answer was followed by a series of
questions and answers:
What is your understanding as to whether
or not there was any potential patient
source at the hospital?
A. My understanding from reading the
record is that there were two patients
that I'm aware of who had what was either
diagnosed by somebody else as an active
herpes infection or to my reading
certainly compatible with an active
herpes infection.
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Q. Were both those patients possible
sources?
A. Yes, I think they're both possible
sources.
Q. Would you consider health care
workers as possible sources?
A. Yes, they're possible sources too,
yes.
In his prior testimony Dr. Kahn had discussed
inanimate objects called fomites such as toilet seats,
flat surfaces and ice packs, as potential transmission
sources of herpes. He was asked if he considered fomites as
a possible infection source.
I did. I considered them, but my own
judgment is that that's considerably less
likely. I know there was one instance in
particular -- I don't know if it's been
raised before so I don't know if I should
mention it -- well, I read it so I guess
I can mention there was some talk about
an ice pack applied to the perineum.
My sense of that was that even though
the ice pack could have been wrapped in
gauze and therefore, could have held the
virus in it, it was more consistent with
what we know about herpes transmission,
that it was the hand of the nurse
applying the ice pack rather than the ice
pack that would have been the likelier
source of transmission.
Dr. Kahn was then asked:
Having considered all of the potential
sources of infection, did you arrive at
one that was most likely in your mind?
His answer was:
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I think the likeliest explanation is
the patient who had vaginal lesions with
a second crop on the left labia, I
believe, and was taken care of at one
point by a health care giver who very
shortly thereafter took care of Kim
[plaintiff].
Dr. Kahn identified the patient as J.D. He then
testified that, in light of the fact that the hospital
records showed that J.D. had left labial lesions that had not
been cultured it was imprudent to take her off herpes
infection precautions. He testified:
The probability or the possibility of
her having transmission -- transmissible
viruses was very high based on her
history and her presentation.
On cross-examination Dr. Kahn was asked, "Is the
best you can say is that J.D. is a possible source of the
herpes infection in this case?" Then came the following
exchange:
A. Comparing her to the other patient,
I'd say very possible. But again, I
can't say probable or with definite
certainty. But a very credible
likelihood.
Q. So the best you can say is possible,
but you cannot say probable, correct?
A. Slightly high on the possible but not
probable. "Probable" meaning certainty,
high possible meaning that's my choice.
To our knowledge, no New Hampshire case requires
the incantation of the word "probable" to establish probable
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causation. In a case involving expert testimony the New
Hampshire Supreme Court held:
The possibility that the blasting caused
the damage could reasonably be found "the
most probable possibility disclosed by
the evidence," and blasting the most
probable cause. Emery v. Tilo Roofing
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Company, 89 N.H. 165, 167, 195 A. 409,
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and cases cited.
Crocker v. W.W. Wyman, Inc., 110 A.2d 271, 274 (N.H. 1954).
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In Emery v. Tilo Roofing Company, 89 N.H. 165, 195 A. 409
_____ _____________________
(N.H. 1937), the issue was the cause of a fire to the roof of
a building. Defendant was hired to re-roof the building.
There was evidence that defendant's employees were seen
smoking cigarettes on the roof before the fire started.
There was no direct evidence that the fire had been caused by
a cigarette stub. In upholding a verdict for plaintiff the
court stated:
That the fire was caused by a cigarette
stub was the most probable possibility
disclosed by the evidence and we think
that the jury were justified in finding
it to be more probable than otherwise
that the fire resulted from this cause.
Staples v. Railroad, 74 N.H. 499. "It is
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not a case of conjecture between equal
possibilities, but the ordinary
determination of a conclusion from
inferences supported by a balance of
probabilities." Saad v. Papageorge, 82
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N.H. 294. Not only was the conclusion of
the jury as to the cause of the fire
proper as a direct inference from the
testimony but the improbability of any
other explanation "as an exclusionary
premise may serve to strengthen the force
of the deduction."
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Id. at 167.
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In the case before us the main defense was that
plaintiff was infected with herpes before she was admitted to
the hospital. There was no direct evidence of such an
infection. As with the plaintiff's evidence, it depended on
expert testimony.
We read Dr. Kahn's testimony to say that the
probable cause of the infection was one or more acts of
negligence by the hospital, and find that this conclusion,
which was rationally supported and explained, is sufficient
to establish causation even though the doctor could not
identify a single cause as the more-likely-than-not cause of
this infection. It follows, therefore, that the jury verdict
that the plaintiff was infected with herpes while a patient
at the Mary Hitchcock Memorial Hospital is unassailable on
causation grounds.
II.
II.
THE ADMISSION OF TESTIMONY
THE ADMISSION OF TESTIMONY
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Defendant's argument on this issue is stated as
follows:
The Trial Court Abused Its Discretion By
Allowing The Plaintiffs To Ask Nurse Watkins
Whether She Had Investigated The Source Of
Kimberly F.'s Infection
A. Mrs. Watkins's Testimony About Her
Investigation on Behalf of the Infections
Committee Was Precluded by the Express
Terms of the Statute
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Appellants' Brief at -i-.
We have scoured the record and can find no question
by plaintiff's counsel on direct examination of Nurse Watkins
asking "whether she had investigated the source of Kimberly
F.'s [plaintiff's] infection." Nor have we been able to find
any testimony by Nurse Watkins about her investigation on
behalf of the Infections Committee.
Nurse Watkins testified that plaintiff's husband
spoke to her in 1986 about the source of plaintiff's
infection. At that time he was employed by the Mary
Hitchcock Memorial Hospital as an echocardiography
technologist and knew Nurse Watkins as a co-worker.
Plaintiff's husband knew that Nurse Watkins' special
responsibility was infection control and transmission of
infectious diseases. According to Nurse Watkins, when
plaintiff's husband spoke to her he had three specific
concerns: the use of ice packs, lack of cleanliness
generally in the hospital, and the dirty bathtub. Nurse
Watkins said she would look into it. She denied that the
husband asked her "to inquire into a few things." She never
informed the husband about anything bearing on the source of
plaintiff's infection. Nor did she tell him that she would
make an investigation for the hospital. Most of the direct
examination of Nurse Watkins by plaintiff's counsel focussed
on the infection control procedures used at the hospital.
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Nurse Watkins was also asked questions about entries in the
plaintiff's hospital records by the doctors and nurses who
treated her.
On cross-examination Nurse Watkins gave the
following testimony:
Q. Given your job as [sic] the
hospital, as nurse epidemiologist, what
do you generally do when a, a question of
a hospital-acquired infection is brought
to you?
A. Well, it's my job to look into the
circumstances of the infection, with the
primary being a focus to identify
practices which could be improved to
decrease the risk of similar infections
in the future.
I also had the responsibility for
educating hospital personnel about
infection risk and transmission again so
that their practice will decrease the
risk of transmission.
Q. Now, did you take those steps when
Mr. F. came to you and suggested the
problems he did?
A. Certainly I looked into the
situation, yes.
Q. What did you conclude?
There was an objection by plaintiff's counsel to the last
question which was upheld on the ground that it was precluded
by N.H. Rev. Stat. Ann. ch. 151:13-a (1981).
Before we discuss the scope of the New Hampshire
statute we also must point out another serious omission in
the record. Defense counsel made no objection to any of the
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questions pertinent to this issue asked by plaintiff's
counsel. This was a waiver of the issue under Fed. R. Evid.
103(a)(1).3 Nor is this omission cured because defendants
had filed a motion in limine at the start of trial.
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Objections to questions must be made when the questions are
asked. We also point out that there was not even a general
objection to the line of questioning, although we do not
suggest that this would have been sufficient to preserve
defendants' rights.
The pertinent provision of the New Hampshire
statute provides:
II. 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
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3. Rule 103. Rulings on Evidence
Rule 103. Rulings on Evidence
(a) Effect of erroneous ruling. Error
Effect of erroneous ruling.
may not be predicated upon a ruling which
admits or excludes evidence unless a
substantial right of the party is
affected, and
(1) Objection. In case the ruling is
Objection.
one admitting evidence, a timely
objection or motion to strike appears of
record, stating the specific ground of
objection, if the specific ground was not
apparent from the context;
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evidence in any judicial or
administrative proceeding, except that in
the case of a legal action brought by a
quality assurance committee to revoke or
restrict a physician's license or
hospital staff privileges, or in a
proceeding alleging repetitive malicious
action and personal injury brought
against a physician, a committee's
records shall be discoverable.
N.H. Rev. Stat. Ann. ch. 151:13-a II. The New Hampshire
Supreme Court carefully delineated the scope of the statute
in a case that was the opening chapter to the case before us.
The parties were the same; the issue concerned only the scope
of the statute. Justice Souter, then an associate justice of
the New Hampshire Supreme Court, wrote the opinion, In re
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"K", 561 A.2d 1063 (N.H. 1989). In the state case the
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evidence was clear that Nurse Watkins made an investigation
as to the source of plaintiff's infection, then made a report
to the Infections Committee and prepared a written report
which was kept in files in her own office. Plaintiff's
lawyer requested the hospital, through Nurse Watkins, to
release the results of the investigation. The hospital
refused, claiming a privilege under N.H. Rev. Stat. Ann.
151:13-a. Plaintiff then brought a petition in the New
Hampshire Superior Court seeking a disclosure order. The
superior court held the privilege inapplicable and ordered
disclosure of Nurse Watkins' written report and the relevant
portion of the minutes of the meeting of the Infections
Committee at which Nurse Watkins made her report. The
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hospital appealed. Id. at 1065. After a lengthy explanation
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and discussion of the legislation, the New Hampshire Supreme
Court held that the minutes of the Infection Committee
meeting and Nurse Watkins' written report were insulated from
disclosure by the New Hampshire statute. Id. at 1065. The
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court also held:
Once, however, it is understood that
the requisite committee structure and
quality review function are present, our
traditionally limiting approach to
privilege claims must be honored by
recognizing that the privilege does not
go beyond the records of testimony, as
such, to which the statute refers. As we
observed before, a quality assurance
committee's attention does not place its
subject matter beyond the bounds of
discovery or disclosure in the normal
course; the privilege is confined to the
records and testimony described in the
statute. See N.H.S. Jour. 1410-14
___ ______________
(1981). Thus, the ordinary record of a
patient's treatment remains admissible as
it always has been, even though a quality
assurance committee may have studied that
record and issued a report based on data
culled from it. And a physician may
still be obligated to testify about the
course of a patient's case, and to render
a professional evaluation of the
treatment, even though a quality
assurance committee may already have
elicited the same testimony on the same
subject in the course of its own
proceedings.
Id. at 1070.
___
We have no difficulty finding that the New
Hampshire statute was not implicated by the direct
examination of Nurse Watkins in the case at bar. It was
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arguably implicated by defendants' cross-examination, but
that is not an issue before us. It is incredible to us that
defendants would misstate in their argument the questions
asked and the testimony given, fail to object at trial to
questions and answers which they now claim led to a violation
of the statute, deliberately implicate the statute on cross-
examination, and still appeal the issue. This not only
transcends the proper limit of appellate argument, it
requires a good measure of "chutzpa."
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III.
III.
THE CLOSING ARGUMENT
THE CLOSING ARGUMENT
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At the close of his argument, plaintiff's counsel
stated:
I gave a figure to you in the opening,
that I would suggest that you seriously
consider as a full, fair, adequate and
reasonable compensation for what they
have suffered, what they are suffering
and what they will suffer. And as I
promised you then, I will say it again
now.
I think I would suggest to you -- not
I think. What I think doesn't count. I
would suggest to you that on the
evidence, one million five hundred
thousand dollars for Kimberly and one
million five hundred thousand dollars for
John is adequate, fair, full and complete
compensation for their interests.
In Davis v. Browning-Ferris Industries, Inc., 898
_____ _________________________________
F.2d 836 (1st Cir. 1990), we held that, even in a diversity
case, the question of whether the amount of the ad damnum can
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be disclosed to the jury is a matter of procedure and
therefore federal law applies. Id. at 837. We went on to
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hold that such disclosure was improper. Id. at 837-38.
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Inexplicably, both parties addressed the question
below as exclusively one of New Hampshire law and,
unfortunately, persuaded the district judge, a visiting judge
from Pennsylvania, that New Hampshire law controlled. Just
prior to final argument defense counsel asked the court that
it preclude plaintiff's counsel from expressing his opinion
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about the dollar value of the case or referring to the ad
__
damnum in his argument. Plaintiff's counsel had, without
______
objection, stated the amount of the ad damnum in his opening.
__ ______
The court therefore asked: "You mean it's all right on
opening statement but not on closing?" Defense counsel
stated: "If I knew he was going to say it on opening, I
would have objected but rather than my saying anything and
object and make a bigger deal about it, I made the judgment
not to." The judge stated, after plaintiff's counsel argued
that under New Hampshire law reference to the ad damnum was
__ ______
allowed:
THE COURT: Coming from the Common-
wealth of Pennsylvania my ears stood
straight up when I heard you mention the
figures in your opening statement, but
hearing no objection I assumed that
probably was the practice in this
jurisdiction.
The court then asked plaintiff's counsel to supply him with
authority for his position.
The court's observation illustrates why counsel
should object at the time an incorrect statement is made by
opposing counsel. If an objection had been made to the ad
__
damnum disclosure in the opening, there would have been time
______
for some research by the court and counsel prior to closing
argument, and it probably would have been ascertained that
there was a First Circuit case that clearly controlled. As
it was, the court did not make a ruling until after
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defendants' argument. It ruled that under New Hampshire law
the ad damnum could be disclosed to the jury in final
__ ______
argument.
We are faced, therefore, with a ruling based on the
wrong law. This was due primarily to the neglect of both
counsel. We would think that counsel would be aware of the
controlling First Circuit cases by the time of trial. That
plain error was committed is clear, but it is also clear that
the error was harmless. The ad damnum was in the amount of
__ ______
one million five hundred dollars for each plaintiff. The
jury awarded plaintiff one hundred and twenty-five thousand
dollars and her husband twenty-five thousand dollars.
Clearly, the jury paid scant attention to the amount of the
ad damnum. Under the circumstances, there is no point in
__ ______
sending the case back for a new trial.
CONCLUSION
CONCLUSION
__________
The judgment below is affirmed. Appellees are
The judgment below is affirmed. Appellees are
___________________________________________________
awarded costs of appeal.
awarded costs of appeal.
________________________
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