By Pamela C. Maloney, J.D.
Holding that hedonic damages were available to compensate plaintiffs for both the temporary and the permanent inability to engage in life activities that once brought pleasure, the New Hampshire Supreme Court found that a trial court did not error in instructing a jury on this issue and in submitting to the jury the question of whether a restaurant patron who contracted salmonella allegedly after eating a hamburger served at local chain restaurant was entitled to hedonic damages and damages for future pain and suffering. Furthermore, in light of these holdings, and based on the evidence presented, the jury’s award of $750,000 in general damages when the patron’s medical expenses totaled only $43,000 was not manifestly exorbitant or plainly excessive (Stachulski v. Apple New England, LLC, July 18, 2018, Marconi, H.).
The restaurant patron, who contracted salmonella allegedly after eating a hamburger at an Applebee’s Neighborhood Bar and Grill, filed a strict product liability action against Apple New England, LLC, claiming that the hamburger was defective. Following a three-day trial, the jury returned a general verdict in the patron’s favor, awarding him $750,000 in damages. Apple New England appealed, arguing that the trial court committed a number of errors, including the following: (1) admitting unreliable testimony by the patron’s infectious disease expert; (2) submitting the issue of causation to the jury; (3) failing to direct a verdict on hedonic damages and in instructing the jury on awarding hedonic and future pain and suffering damages; and (4) denying its request for remittitur of the damages award.
Expert testimony. As an initial matter, the state high court reviewed and rejected Apple New England’s challenges to the reliability of testimony proffered by the restaurant patron’s infectious disease expert. According to the company, the expert’s testimony was not based on sufficient facts or data, nor was it the product of reliable principles and methods.
The facts relied on by the expert, as recited by the court, included: (1) the patron’s medical records recounting his diagnosis of non-typhodial salmonella, which is typically food-borne; (2) the patron’s ownership of a pet lizard—which the company had argued was a possible source of the salmonella—with whom his wife and daughter also had contact, yet neither became ill; (3) consumption of a hamburger at the restaurant by the patron’s brother-in-law, who experienced similar gastrointestinal symptoms; (4) the patron’s preparation of meals that he and his wife ate at home, yet his wife did not become ill; (5) the patron’s wife’s celiac disease, which made her more prone to contract salmonella and other infections; and (6) the timeline of the patron’s symptoms, which presented within the six- to 72-hour incubation, or "look-back," period for salmonella following his meal at the restaurant. According to the state high court, this evidence supported the trial court’s finding that the expert’s testimony was based on sufficient facts.
Based on both the facts presented, his expertise in infectious diseases, and the elimination of other potential causes for the patron’s salmonella, the expert rendered his differential diagnosis, concluding that the restaurant’s hamburger was, more likely than not, the cause of the patron’s salmonella. The fact that the company’s expert had reached a different conclusion did not render the differential diagnosis reached by the patron’s expert unreliable.
Causation issue. The evidence which had been found to be sufficient by both the trial court and the state supreme court to support the testimony proffered by patron’s expert also was sufficient to support the jury’s finding that the restaurant’s hamburger caused the patron’s salmonella illness, despite conflicts raised by testimony presented by the company’s expert.
Future pain and suffering damages. Under New Hampshire law, compensation for future damages is not available unless there is evidence to support a finding that it is more probable than not that future damages would occur. The patron had submitted more than 700 pages of medical records, which characterized his ongoing gastrointestinal symptoms as post-infectious and most likely due to salmonella. In addition, the patron’s expert testified that up to one-third of individuals have prolonged gastrointestinal complaints after salmonella and that the patron’s illness would, more probably than not, cause him to experience future pain. Finally, the patron had testified that more than two years after his illness, he continued to work with doctors and a nutritionist to treat and manage his ongoing symptoms. He also described the prescription medications he continued to take and the side effects of those drugs. The medical records, expert testimony, and the lay testimony of the patron provided sufficient evidence to support the jury’s conclusion that the patron suffered from, and would continue to suffer, pain and residual symptoms from his salmonella illness.
Hedonic damages. The company also challenged the trial court’s failure to direct a verdict on the issue of hedonic damages. Noting that hedonic damages, or loss of enjoyment of life damages, were intended to compensate plaintiffs for the lost ability to engage in activities that once brought pleasure, the New Hampshire Supreme Court refused to condition an award of hedonic damages on proof of a permanent impairment. In this case, there was sufficient evidence from which the jury reasonably could have found that the patron was limited in his activities. The jury heard testimony from the patron that his gastrointestinal symptoms continued to interrupt and restrict his life, that he could no longer eat food and drink beverages of his choice without repercussions, hike at his leisure, or participate in other activities in the absence of a nearby restroom without fearing embarrassing accidents. The jury also was provided with medical evidence linking the patron’s ongoing limitations to his salmonella illness. Based on this evidence, the trial court did not err in denying the company’s motion for a directed verdict on the issue of hedonic damages and in submitting the issue to the jury, the state supreme court held.
Excessiveness of award. Finally, the court held that the company failed to meet its heavy burden of proving that the jury’s award of $750,000 in general damages award was manifestly exorbitant and plainly excessive in light of the patron’s actual medical expenses, which were only $43,000. The patron had testified that his inability to control his bowels embarrassed him and interrupted his personal and professional life. He also provided details about the changes to his diet, lifestyle, and habits in order to avoid and mitigate future discomfort and "flare ups." In addition, the jury heard expert testimony regarding salmonella’s symptoms, complications, treatments, and side effects. Finally, the jury was provided with voluminous medical records demonstrating the extent of the patron’s medical history since he contracted salmonella. In light of this evidence, the state supreme court could not conclude that the trial judge had committed error in upholding the jury’s damages award.
The case is No. 2016-0692.
Attorneys: B.J. Branch Jr. (Backus, Meyer & Branch, LLP) for Brandon Stachulski. Kenneth H. Naide (Bonner Kiernan Trebach & Crociata, LLP) for Apple New England, LLC.
Companies: Apple New England, LLC
MainStory: TopStory DamagesNews ExpertEvidenceNews CausationNews EvidentiaryNews FoodBeveragesNews NewHampshireNews
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