Barrett v . Ambient Pressure Diving 06-CV-240-SM 11/17/08 P UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephanie B . Barrett, individually; and as Administratrix of the Estate of Robert C . Barrett, deceased; and as natural mother of Madison Hope Barrett, a minor, Plaintiff Civil N o . 06-cv-240-SM v. Opinion N o . 2008 DNH 199
Ambient Pressure Diving, Ltd., Defendant
O R D E R
Defendant has filed a supplemental motion for application of
English law. Defendant concedes that English law and New
Hampshire law are substantially similar with regard to the
liability aspects of plaintiff’s various causes of action, and
agrees to the application of New Hampshire law to all liability
questions.1 But, based on differences between the damages
available under the two legal schemes, defendant asks the court
t o : “(1) bar the request for hedonic damages on any of the
Plaintiff’s claims; and (2) bar the request for multiplied
damages on the Plaintiff’s Unfair Trade Practices claim, as no
such multiplication of damages is permitted under English
1 Defendant’s proposed jury instructions on strict liability, negligent design, and unfair and deceptive trade practices all describe New Hampshire law. Consumer Protection statutes.”2 Defendant has subsequently
identified two additional aspects of English law from which it
seeks to benefit — the unavailability of damages for loss of
consortium, see Massaquoi v . Virgin Atl. Airways, 945 F . Supp.
5 8 , 61 ( S . D . N . Y . 1996), and the English cost-shifting rule under
which “the prevailing party can generally recover its attorneys’
fees from the losing party,” R L S Assocs., L L C v . United Bank of
Kuwait P L C , 464 F . Supp. 2d 206, 210 ( S . D . N . Y . 2006).
Plaintiff objects, and asks the court to apply New Hampshire
law, which: ( 1 ) permits the recovery of hedonic damages in
wrongful death cases, see Marcotte v . Timberlane/Hampstead Sch.
Dist., 143 N . H . 3 3 1 , 336-345 (1999); ( 2 ) allows for an award of
double or treble damages in private actions brought under the
Consumer Protection Act, see N . H . R E V . S T A T . A N N . ( “ R S A ” ) § 358-
A : 1 0 , I ; ( 3 ) permits spouses and minor children to recover in
wrongful-death cases, see R S A 556:12, I I & I I I ; and ( 4 ) follows
the American rule, under which “each party is responsible for
paying his or her own counsel fees” unless there is “statutory
authorization [to the contrary], a court rule, an agreement
2 English law does, indeed, bar the recovery of hedonic damages in wrongful death cases, see Administration of Justice Act, 1982, c. 5 3 , § 1(1)(a), and would appear to bar the recovery of punitive or exemplary damages in product liability cases, see Broom v . Cassell & Co., (1972) App. Cas. 1027 (citing Rookes v . Barnard, (1964) App. Cas. 1129)).
2 between the parties, or an established exception [to the general
rule].” In re Martel, 157 N.H. 5 3 , 63 (2008) (citing In re
Hampers, 154 N.H. 275, 289 (2006)).
The choice-of-law question presented here is somewhat
complicated. The plaintiff’s decedent, a Maryland resident, died
while diving in Pennsylvania, using a rebreather manufactured in
England, imported to North America through Canada, and purchased
by the decedent through a New Hampshire dive shop. Plaintiff
initially brought this suit in the District of Pennsylvania.
Venue was subsequently transferred to this court, given the lack
of personal jurisdiction over Ambient in Pennsylvania.
There are substantive differences between English damages
law and New Hampshire law. Accordingly, a choice-of-law analysis
is necessary. See Royal Bus. Group, Inc. v . Realist, Inc., 933
F.2d 1056, 1064 (1st Cir. 1991). New Hampshire’s choice-of-law
rules apply. See Klaxon C o . v . Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941). (While there is some authority for the
proposition that a court adjudicating a case that has been
transferred to it should apply the choice-of-law rules of the
jurisdiction from which the case was transferred, see CPC Int’l,
Inc. v . Northbrook Excess & Surplus Ins. Co., 46 F.3d 1211, 1213
(1st Cir. 1995), that proposition would seem inapplicable where,
3 as here, the transferring court lacked personal jurisdiction over
the defendant.)
The choice-of-law analysis is not, of course, limited to
consideration to the two options suggested by the parties. See
LaBounty v . Am. Ins. Co., 122 N.H. 7 3 8 , 741 (1982) (“While
Thompson urges that New Hampshire law should be applied and
LaBounty contends that Massachusetts law should control, we will
not be restricted to the choice of the parties where it is clear
that the interests of another State – Maine – are also
involved.”). 3 Because Robert Barrett was a resident of Maryland
at the time of his death, and the plaintiff is currently a
resident of that state, due consideration must be given to the
application of Maryland law, notwithstanding the fact that
neither party seeks its application. See id. That Robert
Barrett died in Pennsylvania gives rise to that state’s interest
in the liability aspect of the case, but it is difficult to see
what compelling interest Pennsylvania might have with respect to
3 Pennsylvania appears to follow a similar rule. See Commonwealth v . Eichinger, 915 A.2d 1122, 1133 (Pa. 2007) (citing Commonwealth v . Ohle, 470 A.2d 6 1 , 68 (Pa. 1983)) (“where more than one state has a substantial connection with the activity in question, the forum state may analyze the interests of all states involved and choose which state’s law to apply”) (emphasis added).
4 the damages a Maryland citizen might recover from an English
defendant.
The New Hampshire Supreme Court “has rejected the
traditional lex loci delicto rule that the law of the forum where
the injury occurs is paramount.” LaBounty, 122 N.H. at 741.
Rather, conflict-of-law questions are resolved by weighing five
choice-influencing considerations:
(1) predictability of results; (2) maintenance of reasonable orderliness and good relationship among the States in our federal system; (3) simplification of the judicial task; (4) advancement by the court of its own State’s governmental interests rather than those of other States; and (5) the court’s preference for what it regards as the sounder rule of law.
Lessard v . Clarke, 143 N.H. 555, 556 (1999) (quoting Ferren v .
Gen. Motors Corp., 137 N.H. 423, 425 (1993)). 4
4 For its part, Pennsylvania employs a “flexible choice of law rule which weighs the interests [all] states [involved] may have in the transaction.” Eichinger, 915 A.2d at 1133 (citing Griffith v . United Air Lines, Inc., 203 A.2d 796, 805 (Pa. 1964)). As the Pennsylvania Supreme Court explained in Griffith:
[A]fter careful review and consideration of the leading authorities and cases, we are of the opinion that the strict lex loci delicti rule should be abandoned in Pennsylvania in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court. As said in Babcock v . Jackson, “The merit of such a rule is that it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the
5 Both parties agree that the liability aspect of each of
plaintiff’s claims should be governed by New Hampshire law.
While the court might, independently, come to a different
conclusion, the parties’ agreement will be honored, as it
simplifies the judicial task.
The parties’ choice-of-law disagreement is about damages.
While it might seem strange to apply the law of one jurisdiction
to resolve liability issues, and the law of another to resolve
damages claims (called “depecage” see Schwartz v . Liberty Mut.
Ins. Co., 539 F.3d 135, 153 & n.4 (2d Cir. 2008)), the
application of different states’ laws to different issues is not
uncommon. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145 cmt. d
(“courts have long recognized that they are not bound to decide
all issues under the local law of a single state”). Application
of New Hampshire’s law to the liability issues does not
necessarily foreclose application of the law of a different
jurisdiction to plaintiff’s claims for damages. See Lessard, 143
N . H . at 558 (determining, without reference to the applicable
liability law, that Ontario law of damages applied in negligence
jurisdiction most intimately concerned with the outcome of the particular litigation.”
203 A.2d at 805-06 (footnote, citations, and internal quotation marks omitted). Thus, it seems relatively certain that if the court were to undertake its analysis under Pennsylvania’s choice- of-law rule, the result would be identical.
6 action arising out of motor vehicle accident in New Hampshire).
S o , the choice-of-law analysis described in Lessard determines
whether the damages law of England, New Hampshire, or Maryland
should apply in this case.
The first element of the choice-of-law analysis,
“[p]redictability of results[,] relates primarily to consensual
transactions, in which it is important that parties be able to
know in advance what law will govern a transaction so that they
can plan it accordingly.” Lessard, 143 N.H. at 556-57 (quoting
LaBounty, 122 N.H. at 7 4 2 ) . “This factor ‘emphasizes the
importance of applying to the parties’ bargain or other dealings
the law on which they agreed to rely at the outset.’” Ferren,
137 N.H. at 426 (quoting Keeton v . Hustler Magazine, Inc., 131
N.H. 6, 17 (1988)).
Here, there is evidence that Robert Barrett’s rebreather
owner’s manual included a reference to choice of law that
provided: “All products are sold only on the understanding that
only English law applies in cases of warranty claims and product
liability, regardless of where the equipment is purchased or
where used.” Evidence in the record also establishes that
Barrett read the owner’s manual. While Barrett’s awareness of
the choice-of-law provision in his owner’s manual does not
7 establish that he explicitly agreed to be bound by English law,
it does demonstrate Ambient’s expectation that English law would
apply to at least some of the claims a purchaser might bring
against i t . Barrett’s acknowledgment that he read his owner’s
manual also demonstrates at least his knowledge of Ambient’s
expectation in that regard.
Plaintiff’s argument in support of applying New Hampshire
law is based on multiple contacts between Robert Barrett and
Cliff Simoneau, a New Hampshire resident who sold the rebreather,
as well as contacts between Simoneau and Ambient.5 In
plaintiff’s view, those contacts show that the goal of
predictability of results would be enhanced by applying New
Hampshire law. Plaintiff’s point might be well taken if this
were a suit against Cliff Simoneau, or a dispute between Simoneau
and Ambient. But the issue is what damages are available to a
Maryland plaintiff for the death of a Maryland resident using a
device that was allegedly defectively designed in England. None
of plaintiff’s asserted causes of action arise out of conduct she
5 Plaintiff also notes that in years following this accident, in 2005 and 2007, Silent Diving Systems, Ambient’s North American distributor, used a liability release requiring that any suit against itself or Ambient be brought under the laws of the State of New Hampshire. Plaintiff argues, unpersuasively, that since all future actions against Ambient must be brought under New Hampshire law, it would create confusion to apply the law of another jurisdiction in this suit.
8 identifies as having taken place in New Hampshire (e.g.,
Simoneau’s collecting checks from Robert Barrett or running his
credit card number). With respect to plaintiff’s product
liability claim, the first Lessard factor favors application of
English law.
The choice-of-law provision in Barrett’s owner’s manual says
nothing about consumer protection claims, which could support a
conclusion that even Ambient did not expect consumer protection
claims to be resolved under English law. The owner’s manual
provision is the only relevant discussion of choice-of-law that
has been brought to the court’s attention. With respect to
plaintiff’s consumer protection claim, the first factor points
toward none of the three jurisdictions.
The “second consideration [in the choice-of-law analysis],
the maintenance of reasonable orderliness and good relationship
among the States in our federal system, requires no more ‘than
that a court apply the law of no state which does not have
substantial connection with the total facts and with the
particular issue being litigated.’” Lessard, 143 N.H. at 557
(citation omitted). Here, as in Lessard, the court assumes,
without deciding, that this factor applies to nation states as
well. See id.
9 The operative concern is comity. Plainly, principles of
comity would not be offended by applying either the law of
Maryland or the law of England. Robert Barrett was a citizen of
Maryland at the time of his death, and plaintiff is a citizen of
Maryland. Ambient designed and manufactured Robert Barrett’s
rebreather in England. It seems apparent that New Hampshire is
the forum with the weakest connection to the facts of this case.
The rebreather was not designed, manufactured, or used in New
Hampshire, and may have never been in the state at all. Cliff
Simoneau performed administrative tasks incident to the sale of
the rebreather, but none of Simoneau’s activities are at issue in
any of plaintiff’s asserted causes of action. Finally, if
plaintiff prevails, no damages will be paid by or recovered by a
citizen of New Hampshire. In sum, the second factor disfavors
the application of New Hampshire law and points, about equally,
toward both Maryland law and English law.
The “third consideration is the simplification of the
judicial task.” Lessard, 143 N.H. at 557. Because the only
contested issue is the availability of various types of damages,
and because the relevant law is readily available, this factor
adds little weight in favor of either forum. C f . Benoit v . Test
Sys., Inc., 142 N.H. 4 7 , 53 (1997) (citing LaBounty, 122 N.H. at
743).
10 The “fourth consideration is the advancement by the court of
its own State’s governmental interest.” Lessard, 143 N.H. at
558. Again, it is important to be clear that in this case, the
inquiry should focus on the relative interests of Maryland,
England, and New Hampshire in the nature and scope of the damages
plaintiff could recover if she prevails.
It is difficult to see any governmental interest that would
tip this factor in favor of applying New Hampshire law. Where no
New Hampshire conduct is advanced as a basis for recovery, and
where any recovery will be paid by an English defendant to a
Maryland plaintiff, New Hampshire does not have an overriding
interest in the application of its law in determining damages.
Plaintiff’s argument to the contrary, based on New Hampshire’s
interest in “protect[ing] its citizens from dangerous and
potentially fatal devices” and its putative “corollary
responsibility to halt the exportation of such devices to its
sister states” and “duty, right and obligation to its sister
states,” is simply not persuasive; the interest plaintiff
ascribes to New Hampshire is no greater than the interest any
other state might have in the outcome of this case. Because the
governmental interest factor substantially weighs against
application of New Hampshire law, as opposed to either English
law or Maryland law, it is unnecessary to consider the final
11 factor before determining that New Hampshire law should not be
applied.
As between Maryland and England, with regard to the question
of damages, Maryland decidedly has the stronger interest.
Stephanie Barrett lost her husband, and her daughter lost a
father. Both are citizens of Maryland. Maryland’s interest in
effecting its policy judgment regarding just compensation for
injuries suffered by its citizens due to tortious conduct
substantially outweighs England’s interest in regulating damages
payable by its citizens whose conduct results in injuries
sustained by foreign citizens in foreign jurisdictions.
Ambient argues that English law ought to be applied because,
absent an enforceable choice-of-law provision, Ambient “would
have little control over which country or principality’s laws
might apply to any claim made against it [and] would, in effect,
need to ensure its compliance with the laws of every country in
the world containing a water body accessible by scuba equipment.”
The foregoing concern might militate against the application of
non-English law to the question of liability, where complying
with the requirements of numerous product liability and consumer
protection schemes could be costly and difficult. But here,
Ambient has agreed to the application of New Hampshire law to the
12 issue of liability. The only English law it seeks to have
applied is law that would, comparatively, limit plaintiff’s
recovery. But it is difficult to see how applying English law
rather than Maryland law on the question of damages would
materially advance Ambient’s interest in simplifying its
compliance responsibilities.
In sum, the fourth factor eliminates New Hampshire law from
consideration, and points strongly in the direction of Maryland
law.
The “final consideration is the court’s preference for what
it regards as the sounder rule of law.” Lessard, 143 N.H. at
558. (citation omitted). In doing s o , the court must compare
English and Maryland law. But, there is a twist. The law in
Maryland is that “where the events giving rise to a tort action
occur in more than one State, [Maryland courts] apply the law of
the State where the injury – the last event required to
constitute the tort occurred.” Erie Ins. Exch. v . Heffernan, 925
A.2d 636, 648-49 (Md. 2007) (quoting Lab. Corp. of Am. v . Hood,
911 A.2d 8 4 1 , 845 (Md. 2006)). In Erie, Maryland’s highest court
held that “because the automobile collision [at issue] occurred
in Delaware, under Maryland law, a Maryland Court would apply the
substantive tort law of Delaware to determine what the claimants
13 are ‘entitled to recover’ in an action for uninsured motorist
benefits.” 925 A.2d at 649; see also Naughton v . Bankier, 691
A.2d 712 (Md. C t . Spec. App. 1997) (holding that in action
brought in Maryland, against Maryland defendant, plaintiff’s
entitlement to an instruction on punitive damages was governed by
law of Delaware, where plaintiff was injured). Thus, in
analyzing the fifth factor, English law should be compared to
Pennsylvania law because, under Maryland law, the plaintiff in
this case would be entitled to recover those damages available
under the law of Pennsylvania, the state in which Robert Barrett
died.6
Because both England and Pennsylvania bar the recovery of
hedonic damages in wrongful death cases, see Administration of
Justice Act, 1982, c. 5 3 , § 1(1)(a); Willinger v . Mercy Catholic
Med. Ctr. of S e . Pa., 393 A.2d 1188, 1190-91 (Pa. 1978), analysis
of the final factor reduces to the three identified areas of
difference between English and Pennsylvania law: (1) punitive or
exemplary damages in product-liability actions (available under
Pennsylvania law but not under English l a w ) ; (2) damages for loss
6 Applying New Hampshire law to liability and the law of another jurisdiction to damages would be unlikely to trouble a court in Maryland, as Maryland has also embraced the concept of depecage. See Erie, 925 A.2d at 649-50 (citing Bishop v . Twiford, 562 A.2d 1238, 1241 (Md. 1989); Hauch v . Connor, 453 A.2d 1207 (Md. 1983)).
14 of consortium (available under Pennsylvania law but not under
English l a w ) ; and (3) shifting attorneys’ fees to the losing
party (available under English law but not generally available
under Pennsylvania l a w ) . In each area, the court determines that
the law of Pennsylvania provides the sounder rule.
Punitive or exemplary damages. In Pennsylvania, punitive
damages appear to be available in product liability cases. See
Hutchinson v . Penske Truck Leasing Co., 876 A.2d 9 7 8 , 983 (Pa.
Super C t . 2005) (“In product liability cases grounded in a theory
of strict liability, it appears that a plaintiff may seek
punitive as well as compensatory damages, although our Supreme
Court has not definitively so held.”). Such damages, however,
“are awarded only in rare instances, to punish and deter
outrageous, extreme, egregious behavior.” Id. (citing Martin v .
Johns-Manville Corp., 494 A.2d 1088, 1096-97 (Pa. 1985),
abrogated on other grounds, Kirkbride v . Lisbon Contractors,
Inc., 555 A.2d 800 (Pa. 1989)). By making punitive damages
available in product liability actions, Pennsylvania law
discourages the sale of products known to be defective when the
seller is willing to accept the payment of ordinary compensatory
damages for product liability as a reasonable cost of doing
business. Pennsylvania law provides a greater disincentive for
15 manufacturers and sellers to distribute defective and
unreasonably dangerous products.
According to the Pennsylvania Suggested Standard Civil Jury
Instructions, punitive damages are also available to an estate
that prevails in a survival action (but not to survivors who
prevail in a wrongful death action). Pennsylvania’s remedial
rule aimed at outrageous conduct is generally preferable to a
system of compensation without such disincentives.
Loss of consortium. The death of a loved one represents
both an economic and a non-economic loss to the immediate family
of the deceased. Pennsylvania law provides compensation for
those non-economic losses; English law does not. The sounder
rule (and the rule more consistent with social and policy
expectations of the jurisdictions in which the injury has had an
affect) is that which both recognizes and compensates a
significant injury. Pennsylvania’s is the sounder rule.
Attorneys’ fees. “[Pennsylvania] has consistently followed
the general, American rule that there can be no recovery of
attorneys’ fees from an adverse party, absent an express
statutory authorization, a clear agreement by the parties or some
other established exception.” De Lage Landen Fin. Servs., Inc.
16 v . Rozentsvit, 939 A.2d 915, 923 (Pa. Super. C t . 2007) (quoting
Merlino v . Delaware County, 728 A.2d 949, 951 (Pa. 1999)). The
English cost-shifting rule is generally thought to quite
effectively discourage frivolous litigation, but it also
effectively reduces access to the courts by those with non-
frivolous claims but no means to pay opponents’ legal fees in the
event of an adverse resolution. As the New Hampshire Supreme
Court has explained:
Underlying the rule that the prevailing litigant is ordinarily not entitled to collect his counsel fees from the loser is the principle that no person should be penalized for merely defending or prosecuting a lawsuit. An additional important consideration is that the threat of having to pay an opponent’s costs might unjustly deter those of limited resources from prosecuting or defending suits.
Harkeem v . Adams, 117 N . H . 6 8 7 , 690 (1977) (citing Tau Chapter,
Alpha Xi Delta Frat. v . Durham, 112 N . H . 233, 237 (1972);
Fleischmann Distilling Corp. v . Maier Brewing Co., 386 U . S . 7 1 4 ,
718 (1967)). Moreover, while the American rule generally
requires a defendant to bear the cost of successfully defending
against claims that are ultimately determined to lack merit,
“under Pennsylvania law, a litigant is entitled to attorneys fees
if he [or she] can establish that an action was brought
arbitrarily, vexatiously, or in bad faith.” P . Liedtka Trucking,
Inc. v . James H . Hartman & Son, Inc., 537 F . Supp. 3 8 1 , 382 (E.D.
Pa. 1982) (citing 42 P A . C O N S . STAT. A N N . § 2503(9) (West 1981)).
17 Because the American rule, as practiced in Pennsylvania, does not
“unjustly deter those of limited resources from prosecuting or
defending suits,” Harkeem, 117 N.H. at 6 9 0 , while also providing
protection from bearing the cost of vexatious litigation, see
Liedtka Trucking, 537 F. Supp. at 3 8 2 , Pennsylvania’s version of
the American rule presents a sounder option.
In each of the three areas where English law differs from
Pennsylvania law, Pennsylvania provides the sounder rule. Thus,
as with the governmental-interest factor, the final factor also
favors the application of Maryland law, which, in turn, provides
that plaintiff would be entitled to recover those damages that
are available in Pennsylvania.
New Hampshire’s interest in applying its law to the
determination of damages in this case is insubstantial compared
to that of Maryland and England. As between Maryland and
England, predictability of results (factor one) favors England
slightly; comity (factor two) and simplification of the judicial
task (factor three) favor neither jurisdiction; governmental
interest (factor four) favors Maryland law; and preference for
the sounder rule of law (factor five) favors the Pennsylvania law
that Maryland courts would apply to determine the damages
available in this case. Accordingly, defendant’s supplemental
18 motion for application of English law (document n o . 274) is
denied. The damages available to plaintiff, in the event she
prevails, will be those a Maryland court would award, which are
those available under Pennsylvania law.
SO ORDERED.
____________ St?feven J./McAuliffe 'hief Judge
November 1 7 , 2008
cc: Nannina L . Angioni, Esq. David J. Berardinelli, Esq. Courtney Q . Brooks, Esq. Thomas M . Brown, Esq. David G. Concannon, Esq. Walter P. DeForest, Esq. Mary A . Dempsey, Esq. Richard W . Evans, Esq. John P. Fagan, Esq. Dona Fenney, Esq. Jamie N . Hage, Esq. Samuel Hankin, Esq. Pamela J. Khoury, Esq. Mark L . Mallory, Esq. W . John McNally, III, Esq. Robert H. Miller, Esq. John T . O’Connell, Esq.