Arbay M. Osman & a. v. Wen Lin & a.; Sharif Abdullahi & a. v. Wen Lin & a.; Mohamed Mohamed & a. v. Wen Lin & a.; Daud Hussein & a. v. Wen Lin & a.; Sidi Hassan & a. v. Wen Lin & a.; Ramadhani Musa & a. v. Wen Lin & a.; Mohamed Osman Mohamed & ( 2018 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2017-0314, Arbay M. Osman & a. v. Wen Lin &
a.; Sharif Abdullahi & a. v. Wen Lin & a.; Mohamed Mohamed &
a. v. Wen Lin & a.; Daud Hussein & a. v. Wen Lin & a.; Sidi
Hassan & a. v. Wen Lin & a.; Ramadhani Musa & a. v. Wen Lin &
a.; Mohamed Osman Mohamed & a. v. Wen Lin & a., the court on
March 21, 2018, issued the following order:
Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The plaintiffs, 20 children who are Somali Bantu refugees or whose
parents are Somali Bantu refugees, appeal the grant by the Superior Court
(Kissinger, J.) of summary judgment to the defendants, the owners and/or
managers of apartments in Manchester in which the plaintiffs once lived. See
Osman v. Lin, 169 N.H. 329, 331 (2016). The plaintiffs, through their parents,
allege that they were injured by their exposure to lead paint while living in the
defendants’ apartments in 2005-2006. Id. In 2008, their cases were
consolidated in the trial court for discovery and trial. The trial court granted
summary judgment to the defendants on the ground that the plaintiffs are
unable to meet their burden of proof on causation. We affirm.
This case was previously before us in an interlocutory appeal. See
Osman, 169 N.H. at 331. In 2015, the Superior Court (Nicolosi, J.) transferred
the following question for our consideration:
Did the trial court commit an unsustainable exercise of discretion
in excluding the testimony of Peter Isquith, Ph.D., based on its
finding that Dr. Isquith’s methodology fails to meet the threshold
level of reliability required of an expert witness, per RSA 516:29-a
and New Hampshire law?
Id. We answered the transferred question in the negative. Id.Isquith had been hired by the plaintiffs to assess whether they suffered
from neurological deficits that were more likely than not caused by lead paint
exposure. Id. at 332. After evaluating the 20 plaintiffs, Isquith, a clinical
neuropsychologist, determined that 17 of them suffer from neurological deficits
and opined that lead exposure was, more likely than not, a substantial factor
in causing those deficits. Id. at 331.
After we decided their interlocutory appeal, the plaintiffs sought to prove
that their injuries were caused by lead paint exposure through a different
expert, Robert Karp, M.D. In orders dated November 2016, January 2017, and
March 2017, the Trial Court (Kissinger, J.) precluded them from so doing. The
trial court’s 2016 and 2017 orders followed the Trial Court’s (Nicolosi, J.) June
2014 order, precluding the plaintiffs from relying upon Karp at the evidentiary
hearing related to whether Isquith’s testimony and report were admissible
under RSA 516:29-a (2007). RSA 516:29-a codifies principles outlined in
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Osman,
169 N.H. at 333. For ease of reference, we refer to the hearing related to the
admissibility of Isquith’s testimony and report as the “Daubert hearing.”
On appeal, the plaintiffs challenge: (1) our decision in Osman and the
trial court order that was the subject of Osman; (2) the trial court’s June 2014
order precluding them from relying upon Karp at the Daubert hearing; and (3)
the trial court’s November 2016, January 2017, and March 2017 orders
precluding them from using Karp at trial to establish the requisite causal link
between their exposure to lead paint and their injuries.
I. Osman and the Trial Court Order Appealed in Osman
The plaintiffs argue that, in Osman, we “erroneously affirmed the [trial
court’s] ruling precluding the expert testimony of . . . Isquith” on an
“alternative basis that had been waived by” the defendants. They contend that
“[t]his plain error . . . negatively impacts [their] inherent and fundamental
rights to access to the courts and to a remedy for the clear harm caused them
by the exposure to lead.” They further contend that, in Osman, we erred by
failing to consider their assertion that Isquith’s methodology was reliable
because his evaluations “were done in a way consistent” with certain federal
regulations and that we erred by failing to consider that Isquith, himself,
concluded that “the results of his assessments were indeed reliable.”
Additionally, the plaintiffs assert that we erred in Osman by failing to consider
whether the trial court had erred when it precluded Karp from testifying at the
Daubert hearing.
We will not, in this appeal, revisit the trial court order that was the
subject of the interlocutory appeal in Osman. See Saunders v. Town of
Kingston, 160 N.H. 560, 566 (2010) (explaining that questions explicitly
decided or decided by necessary inference by this court constitute the law of
the case and are not ordinarily reexamined in the same case upon a
subsequent appeal); see also State v. Robinson, 170 N.H. 52, 60-61 (2017)
(discussing the reach of the law of the case doctrine). Nor will we “reverse”
Osman, as the plaintiffs’ request. See State v. Quintero, 162 N.H. 526, 532-33
(2011) (discussing stare decisis factors).
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II. June 2014 Order
The trial court excluded Karp from the Daubert hearing because the
plaintiffs had failed to disclose him pursuant to the deadlines set in prior court
orders. The trial court found that, to allow the plaintiffs to rely upon Karp at
the Daubert hearing “would . . . prejudice the defendants financially and in
their ability to effectively prepare to meet the plaintiffs’ expert proof.”
“We have long recognized that justice is best served by a system that
reduces surprise at trial by giving both parties the maximum amount of
information.” Wong v. Ekberg, 148 N.H. 369, 372 (2002) (quotation omitted).
“A party is thus entitled to disclosure of an opposing party’s experts, the
substance of the facts and opinions about which they are expected to testify,
and the basis of those opinions.” Id. This policy of disclosure applies even
when a known factual witness acts as an expert. Id. “A party’s failure to
supply this information should result in the exclusion of expert opinion
testimony unless good cause is shown to excuse the failure to disclose.” Id.(quotation omitted).
The decision to sanction a party is a matter left largely to the discretion
of the trial court. Lillie-Putz Trust v. Downeast Energy Corp., 160 N.H. 716,
723 (2010). “In reviewing a discovery sanction, we will not reverse the trial
court’s ruling unless it constitutes an unsustainable exercise of discretion.”
Wong, 148 N.H. at 372. We will sustain the findings and rulings of the trial
court unless they lack evidentiary support or are tainted by error of law. Lillie-
Putz Trust, 160 N.H. at 723. “If the court’s findings can reasonably be made
on the evidence presented, they will stand.” In the Matter of Letendre &
Letendre, 149 N.H. 31, 36 (2002).
On appeal, the plaintiffs first argue that excluding Karp from the Daubert
hearing constituted an unsustainable exercise of discretion because, they
contend, Karp’s testimony and report would have been “highly relevant” to “the
central question under consideration” at that hearing. The relevance of Karp’s
testimony and report does not constitute “good cause” for the plaintiffs’ failure
to disclose his testimony and report in a timely fashion. The plaintiffs’
relevancy argument fails to persuade us that the trial court’s imposition of a
discovery sanction constituted an unsustainable exercise of discretion.
The plaintiffs next assert that the court erred when it found that they
failed to disclose Karp as an expert and to provide his expert report to the
defendants in a timely fashion. Based upon its review of its prior orders and of
“the parties’ dealings in the case,” the trial court found that the plaintiffs “were
duty bound to disclose experts whose opinions they intended to introduce at
the Daubert hearing” before the defendants were required to disclose their
opposing experts. The court determined that “[t]he parties’ agreements to
modify the schedule so that the defense would be fully apprised of the
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plaintiffs’ expert’s opinions and the bases for his opinions before [the defense]
experts were disclosed demonstrate that the plaintiffs were operating under the
same understanding of the trial plan.”
The court found that the plaintiffs did not disclose Karp until June 2013,
nearly a year after the deadline for their expert witness disclosure had passed.
Moreover, the court found that the plaintiffs did not provide Karp’s expert
report until October 2013, after the defendants had not only disclosed their
opposing experts, but also had filed their motion to exclude Isquith’s
testimony. Because those findings have support in the record, we uphold
them. See Letendre, 149 N.H. at 36. Those findings support the trial court’s
determination that the plaintiffs neither disclosed Karp as an expert nor
provided his expert report to the defendants in a timely fashion.
III. November 2016, January 2017, and March 2017 Orders
In its November 2016, January 2017, and March 2017 orders, the trial
court precluded the plaintiffs from offering any previously undisclosed opinions
from Karp or from any other expert that would seek to establish a causal link
between the plaintiff’s exposure to lead paint and their alleged injuries. The
trial court found that, as reflected in its prior scheduling orders, the parties
operated under the assumption that the plaintiffs intended to prove causation
through Isquith, their neuropsychological expert. The court determined that
the parties recognized that, to prove that the plaintiffs’ injuries were
proximately caused by their exposure to lead paint presented “a significant
Daubert issue”; thus, the parties bifurcated the case so as to address the
Daubert issue first and to address damages later. The trial court explained
that the plaintiffs, “[h]aving lost the Daubert issue,” now sought “to use . . .
Karp to attempt to show that the lead exposure caused [their] injuries.” The
trial court ruled that to allow the plaintiffs to use Karp or any previously
undisclosed expert for this purpose “would be contrary to the parties’ . . .
agreement and the [c]ourt orders regarding deadlines for experts.”
Based upon our review of the record submitted on appeal, which
includes the prior court orders upon which the trial court relied, we conclude
that the trial court did not err when it precluded the plaintiffs from offering any
previously undisclosed opinions from Karp or from any other expert that would
seek to establish a causal link between the plaintiff’s exposure to lead paint
and their alleged injuries.
The plaintiffs assert that the trial court’s error “effectively blocked [their]
access to seek a remedy for the clear harm caused them by the exposure to
lead, a right protected by Part I, Article 14, of the N.H. Constitution.” In
addition, they argue that the trial court’s “plain error . . . deprived [them] of
due process and justice.” We consider this argument to be insufficiently
briefed for our review. “[I]n the realm of appellate review, a mere laundry list of
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complaints regarding adverse rulings by the trial court, without developed legal
argument, is insufficient to warrant judicial review.” Douglas v. Douglas, 143
N.H. 419, 429 (1999) (citation omitted); see Keenan v. Fearon, 130 N.H. 494,
499 (1988) (explaining that “off-hand invocations” of constitutional rights
supported by neither argument nor authority warrant no extended
consideration).
Affirmed.
Dalianis, C.J., and Bassett and Hantz Marconi, JJ., concurred.
Eileen Fox,
Clerk
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