Cynthia Thomas v. Oyster River Cooperative School District

• Court: District Court, D. New Hampshire
• Decided: January 5, 1999
• Docket: CV-95-402-SD
• Status: Published

Opinion

Mengers-0'Brien v. Oyster Riv Sch Dis CV-95-402-SD 12/22/9S UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jennifer Mengers-O'Brien; Tamara M i l n e ; Cynthia Thomas

v. Civil No. 95-402-SD

Oyster River Cooperative School District

O R D E R

This order addresses the issues raised by certain pretrial

motions.

1. Defendant's Motion In Limine to Exclude Opening Statements

that Plaintiffs are Entitled to Enhanced Compensatory Damages,

document 102

By this motion, defendant seeks to preclude plaintiffs from

making reference in their opening statements to any claims of

entitlement to enhanced compensatory damages. By their response

to the motion, plaintiffs agree that they will not make any such

referral in opening statements, but argue that they are entitled

to put in evidence concerning the issue and that the court should

then rule on same at the close of the evidence. Document 113. The remaining issues in this case are confined to state-law

claims of negligence. New Hampshire, the substantive law of

which here applies, has statutorily outlawed punitive damages.

New Hampshire Revised Statutes Annotated (RSA) 507:16; 507-B:4,

II.1 However, its courts have judicially created a category of

enhanced compensatory damages, the prerequisites of which are

that the challenged conduct be oppressive, wanton, or malicious.

Aubert v. Aubert, 129 N.H. 422, 431, 529 A. 2d 909, 914 (1987).

Defendant argues that in previously ruling that defendant

did not act with deliberate indifference, the court has

definitively ruled out the issue of enhanced compensatory

damages. The court disagrees with this argument, but with

respect to the instant motion, will allow same insofar as ruling

that no reference to such damages is to be made in the opening

statement. The court, however, will reserve its ruling as to

whether plaintiffs are entitled to claim enhanced compensatory

damages until it has heard all of the evidence in the case.2

1RSA 507:16 bars any award of punitive damages "unless otherwise provided by statute." RSA 507-B:4, II, bars awards of punitive damages "against a governmental unit for bodily injury, personal injury or property damage."

2A s of this writing, the court is dubious as to whether enhanced compensatory damages are available against a school district, having in mind Justice Blackmun's warning that

punitive damages imposed on a municipality are in effect a windfall to a fully compensated plaintiff, and are likely accompanied by an

2 2. Defendants' Motion In Limine to Strike Portions of Testimony

of Plaintiffs' Liability Expert, document 105

By this motion, defendant seeks to bar opinions of Cheryl

Dick, plaintiffs' liability expert, which (1) are based on her

experiences in schools after 1993; (2) are based on standards in

existence after 1993; and (3) are based on studies or surveys

conducted after 1993. Plaintiffs object. Document 114.

Wholly apart from the fact that plaintiffs contend that some

of the incidents on which they rely occurred in 1994, plaintiffs

correctly point out that the scope of an expert's testimony may

be based on expertise and information acquired by the expert as

of the time of trial. Forbro Design Corp. v. Raytheon C o . , 532

F.2d 758, 762 (1st Cir. 1976). However, with respect to the

Office for Civil Rights Guidance (OCRG), those administrative

regulations were rejected in Gebser v. Laao Vista Indep. School

Dist. , ___ U.S. ___ , , 118 S. Ct. 1989, 2000 (1998), the case

upon which the court relied in rejecting the claims of the

plaintiffs of any right to recovery under Title IX, 20 U.S.C. §

1681, et seer.

increase in taxes or a reduction of public services for the citizens footing the b i l l . Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers.

Newport v. Fact Concerts, In c . , 453 U.S. 247, 267 (1981) (footnote omitted).

3 It follows that the motion must be denied insofar as it

seeks to strike the testimony of plaintiffs' liability expert as

outlined, but that it must be granted with respect to any

reliance by said expert on the OCRG, as such, the court finds, is

not properly before the jury in this trial.

3. Defendant's Motion In Limine to Exclude Testimony Referencing

Allegations of Sexual Harassment and Other "Disruptive" Behavior

on Non-Middle School Property During Non-School H o u r s , document

Plaintiffs, whose claims are grounded on alleged

inappropriate sexual contact of a fellow student while they were

in grammar or middle school, have advised they do not object to

this motion.3 Plaintiffs, however, feel that defendant should

similarly be barred from attempting to introduce incidents of

"disruptive" behavior of the same type, and the court accordingly

grants the motion, but rules that "disruptive" behavior on non-

middle-school property and during non-school hours will not be

permitted in behalf of any of the parties.

3Plaintiffs' counsel so stated at the final pretrial on December 21, 1998. 4. Conclusion

The court having ruled on all motions pending to this point

in the proceedings, it now appears that the case can go forward

to final disposition by medium of jury trial, with jury selection

to commence as scheduled on Tuesday, January 5, 1999.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

December 22, 1998

cc: All Counsel