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Stachulski v. Apple New England, LLC

Supreme Court of New Hampshire

November 14, 2017, Argued; July 18, 2018, Opinion Issued

No. 2016-0692

Opinion

 [**1236]  Hantz Marconi, J. The plaintiff, Brandon Stachulski, brought suit against the defendant, Apple New England, LLC, under a theory of strict products liability alleging that he contracted salmonella by eating a hamburger at the defendant's restaurant, Applebee's Neighborhood Bar and Grill, where he dined with his wife and brother-in-law in February 2014. The defendant disputed the allegation that the hamburger was the source of the plaintiff's salmonella illness and asserted that the plaintiff's pet lizard or other food sources could just as likely be the cause of his illness. Following a three-day trial in Superior Court (Schulman, J.), the jury returned a general verdict in the plaintiff's favor, awarding him $750,000 in damages.

On appeal, the defendant [***2]  argues that the trial court erred by: (1) admitting unfairly prejudicial evidence; (2) admitting the plaintiff's expert's testimony; (3) submitting the issue of causation to the jury; (4) instructing the jury on awarding hedonic and future pain and suffering damages; (5) permitting the plaintiff's counsel to make certain statements during his opening and closing arguments; and (6) denying its request for remittitur. We affirm.

NHThe defendant first argues that the trial court erred in admitting unfairly prejudicial testimony. Prior to trial, the defendant moved in limine to exclude the plaintiff's testimony about his belated offer to test the lizard for salmonella. We construe the defendant's argument as being a challenge to the trial court's denial of its motion in limine. ] “Because the trial court ruled upon the admissibility of the challenged evidence before trial, we consider  [**1237]  only the offers of proof presented at the pretrial hearing.” State v. Gordon, 161 N.H. 410, 414, 13 A.3d 201 (2011).

NH] As the appealing party, the defendant has the burden of providing a record sufficient to decide its issues on appeal. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250, 855 A.2d 564 (2004). Although the defendant provided its motion in limine to exclude this testimony, it has failed to provide any evidence regarding [***3]  the basis for the trial court's denial. Absent a complete record, we must assume that the evidence was sufficient to support the [*163]  result reached by the trial court. See id. Thus, we cannot conclude that it was an unsustainable exercise of discretion for the trial court to deny the defendant's motion in limine.

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171 N.H. 158 *; 191 A.3d 1231 **; 2018 N.H. LEXIS 133 ***; CCH Prod. Liab. Rep. P20,386; 2018 WL 3447678

Brandon Stachulski v. Apple New England, LLC

Notice: THIS OPINION IS SUBJECT TO MOTIONS FOR REHEARING UNDER NEW HAMPSHIRE PROCEDURAL RULES AS WELL AS FORMAL REVISION BEFORE PUBLICATION IN THE NEW HAMPSHIRE REPORTS.

Prior History:  [***1] Rockingham.

Disposition: Affirmed.

CORE TERMS

salmonella, trial court, expert testimony, quotation, damages, illness, reliability, suffering, hedonic, future pain, symptoms, medical record, unsustainable, hamburger, exercise of discretion, methodology, gastrointestinal, principles, defendant argues, directed verdict, admitting, causation, disease, in limine, restaurant, permanent, celiac, award damages, deposition, scientific

Civil Procedure, Appeals, Standards of Review, Evidence, Procedural Matters, Objections & Offers of Proof, Offers of Proof, Record on Appeal, Admissibility, Expert Witnesses, Daubert Standard, Burdens of Proof, Allocation, Expert Witnesses, Rule Application & Interpretation, Standards of Review, Abuse of Discretion, Judicial Officers, Judges, Discretionary Powers, Torts, Products Liability, Theories of Liability, Strict Liability, De Novo Review, Trials, Judgment as Matter of Law, Judgment Notwithstanding Verdict, Directed Verdicts, Remedies, Damages, Types of Evidence, Testimony, Lay Witnesses, Opinion Testimony, Jury Trials, Verdicts, Types of Damages, Compensatory Damages, Types of Losses, Jury Instructions, Plain Error, Closing Arguments, Improper Remarks, Opening Statements, Relief From Judgments, Additur & Remittitur, Additurs, Remittiturs