Michnovez v . Blair CV-20-100-LM 7/5/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
John Michnovez, individually and as Executor of the Estate of Velma Michnovez; and Susan Michnovez
v. Civil N o . 10-cv-110-LM Opinion N o . 2012 DNH 114 Blair, LLC
O R D E R
This suit arises from the death of Velma Michnovez (“Mrs.
Michnovez”). Plaintiffs, her son and daughter-in-law, have sued
Blair, LLC (“Blair”), which sold Mrs. Michnovez the bathrobe she
was wearing at the time she sustained fatal injuries as a result
of a cooking accident. In their Second Amended Complaint,
plaintiffs assert claims for Mrs. Michnovez’s wrongful death
(Count I ) , enhanced compensatory damages (Count I I ) , Mrs.
Michnovez’s conscious pain and suffering (Count I I I ) , personal
injuries to John Michnovez (Count I V ) , and negligent infliction
of emotional distress on John Michnovez (Count V ) and Susan
Michnovez (Count V I ) . Before the court is Blair’s motion for
summary judgment. Plaintiffs object. For the reasons that
follow, Blair’s motion for summary judgment is granted in part
and denied in part. Summary Judgment Standard
“To prevail on summary judgment, the moving party must show
that ‘there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’” Markel
Am. Ins. C o . v . Diaz-Santiago, 674 F.3d 2 1 , 29 (1st Cir. 2012)
(quoting Fed. R. Civ. P. 56(a)). “[A]n issue of fact is genuine
if ‘a reasonable jury could resolve it in favor of either
party.’” Markel, 674 F.3d at 29-30 (quoting Basic Controlex
Corp. v . Klockner Moeller Corp., 202 F.3d 4 5 0 , 453 (1st Cir.
2000)). “A fact is material if it ‘might affect the outcome of
the suit’ under governing law.” Markel, 674 F.3d at 29 (quoting
Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248 (1986)). “In
determining whether a genuine issue of material fact exists,
[the court] construe[s] the evidence in the light most favorable
to the non-moving party and make[s] all reasonable inferences in
that party’s favor.” Markel, 674 F.3d at 30 (citing Flowers v .
Fiore, 359 F.3d 2 4 , 29 (1st Cir. 2004)).
“The object of summary judgment is to ‘pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.’” Dávila
v . Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12
(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc., 386
F.3d 5 , 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh
the evidence and determine the truth of the matter but to
2 determine whether there is a genuine issue for trial.” Noonan
v . Staples, Inc., 556 F.3d 2 0 , 25 (1st Cir. 2009) (citations and
internal quotation marks omitted).
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.” Sánchez-Rodríguez v . AT&T
Mobility P.R., Inc., 673 F.3d 1 , 9 (1st Cir. 2012) (quoting
Iverson v . City of Boston, 452 F.3d 9 4 , 98 (1st Cir. 2006)).
“However, ‘a conglomeration of conclusory allegations,
improbable inferences, and unsupported speculation is
insufficient to discharge the nonmovant’s burden.’” Sánchez-
Rodríguez, 673 F.3d at 9 (quoting DePoutot v . Raffaelly, 424
F.3d 1 1 2 , 117 (1st Cir. 2005)). “Rather, the party seeking to
avoid summary judgment must be able to point to specific,
competent evidence to support his [or her] claim.” Sánchez-
Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v . Fed. Ex. Corp.,
150 F.3d 1 4 , 18 (1st Cir. 1998)) (internal quotation marks
omitted).
Background
As required by Rule 7.2(b)(1) of the Local Rules of this
district, Blair’s memorandum of law “incorporate[s] a short and
concise statement of material facts, supported by appropriate
record citations, as to which [it] contends there is no genuine
issue to be tried.” While plaintiffs argue at several points
3 that genuine issues of material fact preclude summary judgment,
their memorandum of law does not “incorporate a short and
concise statement of material facts, supported by appropriate
record citations, as to which [they] contend[ ] a genuine
dispute exists so as to require a trial.” LR 7.2(b)(2).
Accordingly, “[a]ll properly supported material facts set forth
in [Blair]’s factual statement shall be deemed admitted.” Id.
In January of 2006, Mrs. Michnovez purchased a bathrobe
from Blair, a clothing retailer. In November of 2007, she
sustained fatal burns while wearing that robe, which caught on
fire when she was alone in her apartment. Plaintiffs, who lived
downstairs from Mrs. Michnovez, first realized that she was in
trouble when they heard the smoke alarm in her apartment go off.
In response, they ran upstairs and found Mrs. Michnovez in the
bathroom shouting “I’m on fire.” Over the course of
approximately thirty seconds, John Michnovez (“John”) put out
the fire, burning himself in the process. Later that day, Mrs.
Michnovez died.
Mrs. Michnovez was the only witness to the start of the
fire. Susan Michnovez (“Susan”) recalls hearing her mother-in-
law say that she was reaching over the back burner of her gas
stove when the sleeve of her bathrobe ignited. It appears to be
undisputed that Mrs. Michnovez was cooking at the time of her
accident.
4 John does not know how long his mother’s bathrobe was on
fire before he got upstairs or how quickly the fire spread once
the robe ignited. Susan does not know whether the sleeves on
Mrs. Michnovez’s robe were rolled up or how long they were, how
long the robe was exposed to the burner flame before it ignited,
or how quickly the fire spread. Mrs. Michnovez never told
anyone how quickly the fire spread or how long she was on fire. 1
Susan was not physically injured by the fire. She has had
nightmares about i t , but has not sought treatment from a
psychiatrist, psychologist, or therapist for any mental or
emotional condition resulting from the fire. Her activities
have not been limited in any way as a result of her alleged
emotional distress.
Discussion
Blair moves for summary judgment on all of plaintiffs’
claims on grounds that plaintiffs have failed to produce
evidence that any characteristic of Mrs. Michnovez’s bathrobe
was the proximate cause of her fatal injury. In addition, Blair
makes specific arguments for summary judgment on two of the five
1 Because John and Susan were not with Mrs. Michnovez when the fire started, they also do not know which hand she was cooking with, which burner or burners she was using, or what she did immediately after the fire started.
5 negligence theories stated in Count I.2 Blair also makes
specific arguments concerning Counts I I , V , and V I . Plaintiffs
concede that Blair is entitled to summary judgment o n : (1) the
failure-to-recall claim stated in Count I at paragraph 21(e);
and (2) Count V , John’s claim for negligent infliction of
emotional distress. In this section, the court turns first to
Blair’s argument on proximate cause, and then addresses its
arguments o n : (1) the failure-to-warn claim stated in Count I at
paragraph 21(b); (2) Count I I , plaintiffs’ claim for enhanced
compensatory damages; and (3) Count V I , Susan’s claim for
negligent infliction of emotional distress.
A . Proximate Cause
Blair concludes its memorandum of law with an argument that
all of plaintiffs’ claims require proof of causation, and that
without an eyewitness to the start of the fire,
there is no evidence as to how the fire started, what exactly Mrs. Michnovez was doing at the time the fire started, what part of the bathrobe caught fire and when, how long the robe was exposed to the flame before it burned, how long the bathrobe burned before the smoke alarm sounded, or what evasive action (if
2 Count I of plaintiffs’ Second Amended Complaint is a cornucopia of claims. Paragraph 21 asserts five negligence theories: negligent design, ¶ 21(a); failure to warn, ¶ 21(b); failure to inspect or test, ¶ 21(c); failure to insure that Mrs. Michnovez’s bathrobe complied with federal flammability standards, ¶ 21(d); and failure to recall the bathrobe, ¶ 21(e). Paragraph 22 asserts a breach-of-warranty claim. Paragraph 23 asserts a claim for strict product liability.
6 any) Mrs. Michnovez took to either put out the fire or attempt to remove the robe.
Def.’s Mem. of Law (doc. no 8 5 - 1 ) , at 2 1 . Blair continues:
“Absent such evidence, it is purely speculative to attribute the
proximate cause of the fire to the characteristics of the
bathrobe about which plaintiffs complain.” Id. Plaintiffs
contend that they have produced sufficient evidence to create a
triable issue on the element of causation, including an expert
opinion based o n , among other things, the expert’s testing of a
robe similar to the one Mrs. Michnovez was wearing when she
suffered her fatal injuries.
In response to plaintiffs’ objection to summary judgment,
Blair points out that “[w]hen the matter [of causation] remains
one of pure speculation and conjecture, or the probabilities are
at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.” Def.’s Reply (doc. n o .
8 8 ) , at 9 (quoting Ricci v . Alt. Energy Inc., 211 F.3d 1 5 7 , 162
(1st Cir. 2000) (citation omitted)) (emphasis in Ricci). Blair
next clarifies its position: “In the instant case, the
inferences that can be drawn from the facts simply do not permit
the conclusion that this fire more likely occurred as a result
of a product defect versus an inadvertent accident.” Def.’s
Reply, at 9 (emphasis in the original).
As a preliminary matter, Blair is correct that plaintiffs’
claims in both negligence and strict liability require proof of
7 causation. See White v . Asplundh Tree Expert Co., 151 N.H. 5 4 4 ,
547 (2004) (“To recover on a claim of negligence, a plaintiff
must establish that a defendant breached its duty of care and
that the breach proximately caused the claimed injury.”) (citing
Weldy v . Town of Kingston, 128 N.H. 325, 330 (1986)); Kelleher
v . Marvin Lumber & Cedar Co., 152 N.H. 813, 824 (2005) (“Under
the doctrine of strict liability, ‘[o]ne who sells any product
in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer.’”)
(quoting Price v . BIC Corp., 142 N.H. 386, 388 (1997); citing
Restatement (Second) of Torts § 402A(1) (1965)); see also Wilson
v . Bradlees of N.E., Inc., 250 F.3d 1 0 , 15 n.6 (1st Cir. 2001)
(“Under New Hampshire law, strict liability, as well as
negligence, requires proof of causation.”) (citing Thibault v .
Sears, Roebuck & Co., 118 N.H. 8 0 2 , 809 (1978)).
In a recent opinion in a medical-negligence action, the New
Hampshire Supreme court described the principles of causation:
The concept of proximate cause includes both the cause-in-fact and the legal cause for the injury. [Bronson v . Hitchcock Clinic, 140 N.H. 7 9 8 , 801 (1996)]. Conduct is cause-in-fact if the injury . . . would not have occurred without that conduct. Id. The evidence to support this causal link must be “sufficient to warrant a reasonable juror’s conclusion that the causal link between the negligence and the injury probably existed.” Id.; see also Goudreault v . Kleeman, 158 N.H. 236, 246 (2009); RSA 507–E:2, I ( c ) . This standard is satisfied if the evidence shows “with reasonable probability, not mathematical certainty,
8 that but for the defendant’s negligence, the harm would not have occurred.” Bronson, 140 N.H. at 802– 0 3 . “[L]egal cause requires a plaintiff to establish that the negligent conduct was a substantial factor in bringing about the harm.” Estate of Joshua T . v . State, 150 N.H. 405, 408 (2003). “Although the negligent conduct need not be the sole cause of the injury, to establish proximate cause a plaintiff must prove that the defendant’s conduct caused or contributed to cause the harm.” Id.
Beckles v . Madden, 160 N.H. 1 1 8 , 124-25 (2010).
While Blair has identified the relevant legal principles,
its argument misses the mark in at least two significant ways.
Blair’s reluctance to acknowledge the legitimacy of circum-
stantial evidence as proof of causation is an analytical
misstep. See Emery v . Tilo Roofing Co., 98 N.H. 165, 167
(1937); Ricci, 211 F.3d at 162-163; c f . Masse v . Commercial
Union Ins. Co., 136 N.H. 6 2 8 , 633 (1993). But, the larger
problem with Blair’s argument is its reliance on Ricci.
In Ricci, which was decided under Maine law,3 see 211 F.3d
at 161-62, an environmental worker testing emissions from a
biomass stack at a power plant, David Ricci, fell eighty feet to
his death, see id. at 158-59. “There were no eyewitnesses to
Ricci’s fall.” Id. at 160. At summary judgment, the district 3 Maine law and New Hampshire law run parallel in all relevant respects. Compare Ricci, 211 F.3d at 162 (“Under Maine law, proximate cause may be established entirely through circumstantial evidence.”) (citing Thompson v . Frankus, 115 A.2d 718, 720 (Me. 1955), with Emery, 89 N.H. at 167 (“This does not mean, however, that physical causation must always be proved by an eyewitness to the fact. As in the case of other questions of fact, a finding upon the issue of causation may be made as an inference from evidentiary facts.”).
9 court was presented with two competing explanations for Ricci’s
fall, each based on circumstantial evidence. Id. at 159.
Finding “one inference no more likely than the other and,
because the plaintiff could not prevail if the inferences were
evenly balanced, [the district court] entered summary judgment
dismissing plaintiff’s claim.” Id. On appeal,
[t]he primary question [was] whether, on the materials submitted on summary judgment, a factfinder could find only that the competing inferences explaining Ricci’s cause of death are equally probable, or whether the evidence would permit the factfinder to infer that one explanation, on which plaintiff’s negligence claim rests, is the more probable cause of Ricci’s falling to his death.
Id. (emphasis added). The court of appeals “conclude[d] that it
was error for the district court to grant summary judgment for
the defendants.” Id.
In its opinion, the court began its causation analysis by
stating the rule of law on which Blair relies in this case:
The trial court stated that the plaintiff could not prevail if the only conclusion that could reasonably be drawn was that the probabilities of plaintiff’s and defendants’ competing theories as to what caused Ricci’s fall were evenly matched. The trial court’s statement was accurate. “A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Restatement (Second) of Torts § 433B cmt. a (emphasis added); accord Champagne v . Mid-Maine Med. Ctr., 711 A.2d 8 4 2 , 845 (Me. 1998) (stating that a tort plaintiff must establish causation to avoid summary judgment and that “judgment as a matter of law in a defendant’s favor is proper when any jury verdict for the plaintiff would be based
10 on conjecture or speculation”); Unobskey v . Continental Ins. Co., 147 M e . 249, 257-58, 86 A.2d 160 (Me. 1952) (“Conjecture [and] choice of possibilities . . . [are] not proof. There [must be] something more to lead a reasoning mind to one conclusion rather than to the other.”) (internal quotation marks omitted) (second alteration in original). Given that the burden of proof is on a plaintiff to show that it was more likely than not that the defendant’s negligence caused the harm, the trial judge’s method of analysis was appropriate. C f . Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 322 (1986) (explaining that summary judgment should be entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”).
Ricci, 211 F.3d at 162 (parallel citations omitted). Based on
the foregoing principles, and under de novo review, see id. at
163, the court of appeals held that a reasonable jury could find
the plaintiff’s explanation for Ricci’s fall more probable than
the defendants’ explanation. See id. Thus, while endorsing the
legal principles applied by the district court, the court of
appeals held that the district court had misapplied those
principles to the facts of the case before i t .
This case is distinguishable from Ricci in at least two key
respects that render the rule of law stated therein inapplicable
to the question before this court. First, this is not a case
involving two competing theories based exclusively on inferences
from circumstantial evidence. In Ricci, the plaintiff claimed
that Ricci fell to his death when he accidentally stepped into
an unguarded opening in the platform on which he was working,
while the defendants theorized, from the same circumstantial
11 evidence (consisting of the location of tools, work gloves, and
safety devices on the platform), that Ricci fell as he was about
to descend a ladder leading down from the platform. See id. at
159. Here, by contrast, all agree that Mrs. Michnovez died from
burns she received when her robe caught fire while she was
cooking. What the parties dispute is how quickly the robe
ignited and how fast the flames spread. Blair relies on the
fact that plaintiffs have no eyewitness evidence to establish
the speed with which the fire spread, while plaintiffs note the
expert opinions they have produced on that matter, which are
based on more than informed inferences from the circumstantial
evidence. Thus, this case is not analogous to Ricci. See 211
F.3d at 164 (declining to consider expert opinions where those
opinions were based on circumstantial evidence and “individual
practical experiences and notions of common sense”).
There is another even more important distinction between
Ricci and this case. In Ricci, the decedent fell to his death
either when he unknowingly stepped through an unguarded opening
in the platform on which he was working, or as he attempted to
descend a ladder. And, according to the court of appeals, it
was for the jury to determine which theory was more likely, not
for the judge to determine, as a matter of law, that they were
equally likely. Here, Blair attempts to describe competing
inferential theories locked in equipoise: “In the instant case,
12 the inferences that can be drawn from the facts simply do not
permit the conclusion that this fire more likely occurred as a
result of a product defect versus an inadvertent accident.”
Def.’s Reply (doc. n o . 8 8 ) , at 9.
The problem is that Blair has set up a false dichotomy.
The two theories advanced in Ricci were mutually exclusive;
Ricci either fell through an unguarded opening or he slipped
while climbing down a ladder. But the two theories Blair
identifies, accidental ignition and an overly flammable robe,
are not mutually exclusive, and the jury will not be called upon
to find one more likely than the other. Moreover, as the New
Hampshire Supreme Court has explained, there is no requirement
that a plaintiff prove a single cause of his or her injuries.
See Beckles, 160 N.H. at 124 (“the negligent conduct need not be
the sole cause of the injury”) (citation omitted).
Plaintiffs do not dispute that Mrs. Michnovez’s death
resulted, in part, from an inadvertent accident, reaching across
a lit burner on her gas stove. The basis of their claims
against Blair, however, is that Mrs. Michnovez’s death was also
caused by a defect in her bathrobe, that defect being the
physical characteristics that caused the cotton chenille from
which the robe was made to catch fire too easily and to burn too
quickly once ignited. On those matters, plaintiffs have
produced expert evidence. Because plaintiffs need only prove
13 that the physical characteristics of Mrs. Michnovez’s robe were
a substantial factor in bringing about her death, but not the
sole factor, see Beckles, 160 N.H. at 1 2 4 , and because that
theory is not inconsistent with the theory that Mrs. Michnovez’s
robe made contact with the flame on her stove by accident, there
is nothing in Ricci that entitles Blair to summary judgment.
B . Failure to Warn
In their Second Amended Complaint, plaintiffs assert that
Blair
negligently failed to warn or instruct, adequately warn or adequately instruct concerning the dangers of [Mrs. Michnovez’s] bathrobe and the safe and proper method of using it in that it was excessively flammable, designed such that it was easy to ignite, difficult to remove in the event of fire, and did not comply with federal flammability standards.
Second Am. Compl. (doc. n o . 44-3) ¶ 21(b). In addition to the
foregoing claim for negligent failure to warn, plaintiffs also
assert the following product-liability claim:
[D]efendant placed said defective product [i.e., Mrs. Michnovez’s robe] in the stream of commerce knowing that it would be used without substantial change and said product proved to be defective as a result of the failure of the defendant to properly inspect, test, market, advertise, sell, and supply said product to prevent it from becoming unreasonably dangerous and unsafe for its foreseeable and intended use as set forth in Paragraph 21 herein[.]
14 Id. ¶ 23. 4 Somewhat charitably, see note 4 , Blair appears to
construe paragraph 23 of the Second Amended Complaint as
asserting a design-defect claim based upon an alleged failure to
provide an adequate warning. Blair moves for summary judgment
on plaintiffs’ failure-to-warn theory, arguing that: (1) “the
fact that clothing, including bathrobes, can burn when exposed
to flame is an open and obvious danger for which no warning is
required,” Def.’s Mem. of Law (doc. n o . 8 5 - 1 ) , at 1 8 ; and (2) in
the event a warning was required, “plaintiffs cannot prove that
a particularized warning would have prevented Mrs. Michnovez
from acting as she did on the morning of the incident,” id.
Plaintiffs disagree categorically.
Blair’s argument rests almost entirely on the First
Circuit’s opinion in Wilson. Wilson was a product-liability
action, decided under New Hampshire law, that involved a
4 This is a very odd product-liability claim. Plaintiffs charge Blair with placing a “defective product in the stream of commerce,” but they do not allege either a manufacturing defect or a design defect, a category that includes the lack of an adequate warning, see Chellman v . Saab-Scania A B , 138 N.H. 7 3 , 77-78 (1993). Rather, they allege that Mrs. Michnovez’s robe was defective because Blair did not “properly inspect, test, market, advertise, sell, and supply” i t . Paragraph 23 sounds more like a negligence claim than a strict-liability claim. With regard to that conflation, the New Hampshire Supreme Court has explained: “While we note that both counts are permitted, we do not recommend to plaintiffs that counts in both negligence and strict liability against the same defendant be submitted to the jury because of the confusion which is created.” Thibault, 118 N.H. at 811-12. Plaintiffs would be well advised to heed that advice as this case moves toward trial.
15 sweatshirt that caught fire when the person wearing it “leaned
across a kitchen stove to turn off [a] burner” that was being
used to heat a tea kettle. 250 F.3d at 1 3 . Blair places more
weight on Wilson than that opinion can bear.
1 . Duty to Warn
In Wilson, the court of appeals reported, but had no
occasion to rule o n , the trial court’s decision at summary
judgment to “dismiss[ ] so much of plaintiff’s failure to warn
claim as involved an obvious danger,” id. at 1 4 , that obvious
danger being “the danger that clothing can catch fire if exposed
to a heated stove burner,” id. At the same time, however the
trial court
reserved for trial the issue whether [the defendant] had a duty to warn of the “particular” flammability characteristics of the sweatshirt that were not obvious, specifically the possibility that the sweatshirt could “ignite spontaneously,” could “be very difficult to extinguish,” or could “melt and cause a more severe burn.”
Id. Following the trial court in Wilson, this court rules that
to the extent plaintiffs assert that Blair owed Mrs. Michnovez a
duty to warn her of the obvious danger that her robe could catch
fire if exposed to a lit burner on a gas stove, Blair is
entitled to summary judgment on the failure-to-warn claims
stated in paragraphs 21(b) and 2 3 .
That said, the court agrees with plaintiffs that their
failure-to-warn claims go beyond asserting the breach of a duty
16 to warn of the obvious danger that a cotton chenille robe could
catch fire when exposed to an open flame; plaintiffs claim that
Blair owed Mrs. Michnovez a duty to warn her about how quickly
her robe would burn if it did catch fire, and that it could be
difficult to remove in the event of fire. Given that under New
Hampshire law, “obviousness of the harm [is a ] question of fact
to be decided by the jury,” Collins v . the Tool Exchange LLC,
N o . Civ. 01-302-M, 2002 WL 31395929, at *1 (D.N.H. Oct. 1 6 ,
2002) (quoting Price, 142 N.H. at 3 9 0 ) , the court grants summary
judgment on only as much of the failure-to-warn claim as is
based on the danger that Mrs. Michnovez’s robe could catch fire
if exposed to an open flame; the remainder of plaintiffs’
failure-to-warn claim survives Blair’s argument that it had no
duty to warn Mrs. Michnovez about the flammability of her robe.
2 . Effectiveness of a Warning
The Wilson court made no decision with respect to a
seller’s duty to warn, but merely reported what the district
court had done. It did, however, render a decision on the
plaintiffs’ failure-to-warn claim. It affirmed the district
court’s determination, in the context of a motion under Rule
50(a) of the Federal Rules of Civil Procedure, “that [the]
plaintiff[s] had failed to prove that a more particularized
warning as to the unwonted flammability characteristics of the
sweatshirt would have prevented Ailsa’s spontaneous act of
17 reaching for the kettle.” Wilson, 250 F.3d at 14-15. More
specifically, the court held that the district court did not err
by: (1) “viewing the effect of a warning from Ailsa’s vantage,
rather than from the perspective of her mother,” id. at 1 5 ; or
(2) “fail[ing] to instruct the jury as to the so-called ‘read
and heed’ presumption approved by Restatement (Second), Torts, §
402A, comment j,” id. at 15-16.
Rather than arguing that one or both of the two rulings the
court of appeals made in Wilson supports its position in some
particular way,5 Blair does little more than argue that it is
entitled to summary judgment on plaintiffs’ failure-to-warn
claim because the defendant in Wilson prevailed on its Rule
50(a) motion. Blair’s argument is not persuasive, in light of
the factual differences between the two cases, their different
procedural postures, and most significantly, Blair’s failure to
provide any sort of legal reasoning or analysis.
C . Count II
Count II is a claim for enhanced compensatory damages. In
i t , plaintiffs assert that Blair engaged in conduct that was
wanton, malicious, or oppressive. Blair moves for summary
judgment, arguing that: (1) enhanced compensatory damages are a
remedy rather than a cause of action; and (2) this case does not 5 Such an argument would be difficult to make, in that this case involves neither an adult who purchased a product for a child nor jury instructions.
18 present the kind of exceptional circumstances that would warrant
an award of enhanced compensatory damages. Plaintiffs appear to
concede Blair’s first point, but contest the second.
“Under New Hampshire law, a claim for enhanced damages is
not a separate cause of action; it is a request for a particular
remedy.” Minion Inc. v . Burdin, 929 F. Supp. 5 2 1 , 523 (D.N.H.
1996) (citation omitted). Accordingly, Blair is entitled to
dismissal of Count II as a free-standing cause of action. See
Precourt v . Fairbank Recon. Corp., ___ F. Supp. 2d ___, ___,
2012 WL 707080, at *15 (D.N.H. Mar. 5 , 2012). But, as in
Precourt, the court is disinclined to take the possibility of
enhanced compensatory damages off the table, given its inability
to predict how the evidence will come in at trial. Accordingly:
If the evidence at trial is sufficient to warrant an instruction on enhanced compensatory damages, the jury will be given an instruction with proper definitions of the relevant terms. If the evidence is insufficient, as a matter of law, the jury will not be instructed on enhanced compensatory damages.
Id. at * 1 6 .
D. Count VI
Count VI is Susan Michnovez’s claim for negligent
infliction of emotional distress. She asserts that as a result
of “direct emotional shock from being at the scene of the
incident and observing the injuries and death of her mother-in-
law and the injuries to her husband,” Second Am. Compl. ¶ 3 6 ,
19 she “sustained serious mental and emotional strain accompanied
by objective physical symptoms,” id. ¶ 3 7 . The complaint does
not further identify the “objective physical symptoms” Susan
claims to have suffered. Blair argues that it is entitled to
judgment as a matter of law on Count VI because Susan has
produced no evidence of any physical manifestation of her
emotional distress, and has “identified no expert who will
testify that [she] suffered emotional harm so severe that it
caused [her] to suffer physical symptoms of that distress.”
Def.’s Mem. of Law (doc. n o . 8 5 - 1 ) , at 1 0 . Plaintiffs contend
that Susan’s nightmares, and her difficulty getting back to
sleep after she has had them, are the physical manifestation of
her emotional distress and that such an obvious physical
manifestation does not require expert testimony.
In New Hampshire, “[t]he elements of a claim for negligent
infliction of emotional distress include: ‘(1) causal negligence
of the defendant; (2) foreseeability; and (3) serious mental and
emotional harm accompanied by objective physical symptoms.’”
Tessier v . Rockefeller, 162 N.H. 3 2 4 , 342 (2011) (quoting
O’Donnell v . HCA Health Servs. of N.H., Inc., 152 N.H. 6 0 8 , 611
(2005)). In O’Donnell, the New Hampshire Supreme Court
elaborated:
To recover for emotional distress under a traditional negligence theory, we have consistently required plaintiffs to demonstrate physical symptoms of their distress regardless of physical impact.
20 Palmer v . Nan King Restaurant, 147 N.H. 6 8 1 , 683-84 (2002); Thorpe v . State, 133 N.H. 299, 304 (1990). Because pain experienced upon the death, illness or injury of a loved one is an emotional cost borne by everyone living in society, “[t]he law intervenes only when the plaintiff bears an unusual or aggravated burden.” Nutter v . Frisbie Mem. Hosp., 124 N.H. 7 9 1 , 796 (1984) (quotation omitted). Consequently, we have held that the emotional harm must be a significant, painful mental experience with lasting effects. Palmer, 147 N.H. at 684. To ensure that the emotional injury is sufficiently serious to be afforded legal protection as well as to establish causation, we have repeatedly held that “expert testimony is required to prove physical symptoms suffered from alleged negligent infliction of emotional distress.” Silva v . Warden, N.H. State Prison, 150 N.H. 3 7 2 , 374 (2003).
152 N.H. at 611-12 (parallel citations omitted).
The opinion in O’Donnell teaches that the expert-testimony
requirement serves two purposes; it establishes both the
seriousness of the emotional injury and the causal relationship
between that injury and the defendant’s alleged negligence.
Regarding the former, the New Hampshire Supreme Court has held
“that when damages for impact are not sought, expert testimony
is required to prove that the plaintiff experienced physical
symptoms from the alleged emotional distress.” Thorpe, 133 N.H.
at 305. That i s , “expert testimony is required to prove that
[the plaintiff] suffered physical symptoms and to prove
causation.” Thorpe, 133 N.H. at 303. (emphasis added). As the
Thorpe court further explained:
In Chiuchiolo [v. N.E. Wholesale Tailors], we determined that a plaintiff could recover damages for mental distress under a theory of negligence only if he or she suffered physical symptoms as a result of
21 the emotional distress. Chiuchiolo, 84 N.H. [329,] 337-38 [(1930)]. This court expounded on the negligence theory in Corso, wherein we stated:
“The emotional harm . . . cannot be insignificant. Recovery is not to be permitted for ‘mere upset, dismay, humiliation, grief and anger.’
The emotional harm must be a painful mental experience with lasting effects. . . . In other words, the harm for which plaintiff seeks to recover must be susceptible to some form of objective medical determination and proved through qualified medical witnesses.”
133 N.H. at 302-03 (quoting Corso v . Merrill, 119 N.H. 6 4 7 , 652-
53 (1979)) (parallel citation omitted).
Here, it is undisputed that plaintiffs have disclosed no
expert who will offer testimony in support of Susan’s claim for
negligent infliction of emotional distress. They argue,
however, that under the circumstances of this case, no expert
testimony is required. They are wrong.
According to plaintiffs, the rule “requir[ing] expert
testimony to link physical injury to emotional distress . . .
does not apply where ‘it is within the ken of average lay people
what mental and emotional harm might result.’” Pl.’s Mem. of
Law (doc. n o . 8 6 - 1 ) , at 9 (quoting O’Donnell, 152 N.H. at 6 1 2 ) .
Plaintiffs’ reliance on O’Donnell is misplaced. To be sure, the
opinion in that case did note that the court had allowed
recovery for emotional distress damages without requiring expert
testimony in cases involving “direct physical injury and/or
22 intentional torts where ‘it is within the ken of average lay
people what mental and emotional harm might result.’” 152 N.H.
at 612 (citation omitted). But, the O’Donnell court expressly
“decline[d] the invitation to expand this exception to the
negligent infliction of emotional distress to bystanders under
the facts of [the] case [before it],” id. Thus, O’Donnell does
not relieve plaintiffs of the burden of providing expert
testimony in this case.
O’Donnell makes it clear that a plaintiff asserting a claim
for negligent infliction of emotional distress may recover only
for emotional distress that is “unusual or aggravated,” that is
a “significant, painful mental experience,” and that is
“sufficiently serious.” See 152 N.H. at 611. The purpose of
the expert-testimony requirement is to prevent recovery for the
“emotional cost[s] borne by everyone living in society.” Id.;
see also Bresnahan v . McAuliffe, 712 N.E.2d 1173, 1177 (Mass.
App. C t . 1999) (pointing out the risk of fraudulent claims for
negligent infliction of emotional distress). Here, plaintiffs’
failure to secure an expert to provide testimony on either the
third element of Susan’s claim or the issue of causation
forecloses her claim, under O’Donnell, and entitles Blair to
judgment as a matter of law on Count V I .
23 Conclusion
For the reasons described above, Blair’s motion for summary
judgment, document n o . 8 5 , is granted in part and denied in
part. Specifically, Blair is entitled to summary judgment o n :
(1) as much of the failure-to-warn claims stated in Count I as
involve a duty to inform consumers of the obvious danger that
clothing can catch fire when exposed to an open flame, see
Wilson, 250 F.3d at 1 4 ; (3) Count I I , but only to the extent
that plaintiffs’ claim for enhanced compensatory damages is
dismissed as a free-standing cause of action (the availability
of such damages remains an open question); and (3) Count V I ,
Susan’s claim for negligent infliction of emotional distress.
Blair’s motion is otherwise denied. Finally, in the interest of
simplifying what i s , even in its third iteration, a perplexingly
pled case, the court dismisses Count III sua sponte, for the
same reasons that support summary judgment in favor of Blair on
Count I I . Mrs. Michnovez’s conscious pain and suffering may
well factor into the damages available under one or more of
plaintiffs’ theories of liability, but conscious pain and
suffering is not a free-standing cause of action.
Based on the foregoing, this case now consists o f : the
negligence, breach-of-warranty, and strict-liability claims
stated in Count I , minus the negligence theory stated in
24 paragraph 12(e), and with a slightly narrowed failure-to-warn
theory; and Count IV, John’s claim for personal injury.
SO ORDERED.
Landya MccSferty United States Magistrate Judge
July 5 , 2012
c c : David P. Angueira, Esq. Eric K. Blumenfeld, Esq. Alan L . Cantor, Esq. Joel Thomas Emlen, Esq. Dona Feeney, Esq. Bruce W . Felmly, Esq. James C . Fitzpatrick, Esq. D. Patterson Gloor, Esq. Theodore V.H. Mayer, Esq. Steven M . Shear, Esq. Edward M . Swartz, Esq. Jori L . Young, Esq.