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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2016-0692

BRANDON STACHULSKI

v.

APPLE NEW ENGLAND, LLC

Argued: November 14, 2017

Opinion Issued: July 18, 2018

Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on the brief 

and orally), for the plaintiff.

Bonner Kiernan Trebach & Crociata, LLP, of Boston, Massachusetts

(Kenneth H. Naide, John A. Kiernan, and Andrew Butz, on the brief, and Mr. 

Kiernan orally), for the defendant.

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 
2

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 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.

The 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 only the offers 

of proof presented at the pretrial hearing.” State v. Gordon, 161 N.H. 410, 414 

(2011).

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 (2004). Although the defendant provided its motion 

in limine to exclude this testimony, it has failed to provide any evidence 

regarding the basis for the trial court’s denial. Absent a complete record, we 

must assume that the evidence was sufficient to support the 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.

The defendant next argues that the trial court committed an 

unsustainable exercise of discretion in allowing the plaintiff’s expert, Seth D.

Rosenbaum, M.D., to testify. The defendant contends that Dr. Rosenbaum’s

testimony was not “based upon sufficient facts” or “the product of reliable 

principles and methods,” and therefore “resulted from failure to apply accepted 

principles and methods reliably to adequate facts.” Prior to trial, the defendant 

moved in limine to exclude Rosenbaum’s testimony and the court held a 

hearing to determine its admissibility. Because we construe the defendant’s 

appellate argument regarding the admissibility of Rosenbaum’s testimony as a 

challenge to the trial court’s denial of its motion in limine, “we consider only 

the offers of proof presented at the pretrial hearing.” Gordon, 161 N.H. at 414.

Rule 702 authorizes the trial court to admit expert witness testimony. 

See N.H. R. Ev. 702. To be admissible, however, expert testimony must rise to 

a threshold level of reliability. Osman v. Lin, 169 N.H. 329, 335 (2016). To 

determine the reliability of expert testimony, the trial court must comply with 
3

RSA 516:29-a (2007). Id. Portions of RSA 516:29-a codify principles outlined 

by the United States Supreme Court in Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993). Id.; see also Baker Valley 

Lumber v. Ingersoll-Rand, 148 N.H. 609, 614 (2002) (applying the Daubert

framework to evaluate the reliability of expert testimony under Rule 702).

RSA 516:29-a provides:

I. A witness shall not be allowed to offer expert testimony unless 

the court finds:

 (a) Such testimony is based upon sufficient facts or data;

 (b) Such testimony is the product of reliable principles and 

methods; and

 (c) The witness has applied the principles and methods reliably 

to the facts of the case.

II. (a) In evaluating the basis for proffered expert testimony, the 

court shall consider, if appropriate to the circumstances, whether 

the expert’s opinions were supported by theories or techniques 

that:

(1) Have been or can be tested;

(2) Have been subjected to peer review and publication;

(3) Have a known or potential rate of error; and

(4) Are generally accepted in the appropriate scientific 

literature.

(b) In making its findings, the court may consider other factors 

specific to the proffered testimony.

“The trial court functions only as a gatekeeper, ensuring a methodology’s 

reliability before permitting the fact-finder to determine the weight and 

credibility to be afforded an expert’s testimony.” Baker Valley Lumber, 148 

N.H. at 616. Although the proponent of an expert witness bears the burden of 

proving the admissibility of the expert’s testimony, see State v. Newman, 148 

N.H. 287, 291 (2002), the burden is not especially onerous because “Rule 702 

has been interpreted liberally in favor of the admission of expert testimony.” 

Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006); see also Bartlett v. 

Mutual Pharmaceutical Co., 742 F. Supp. 2d 182, 187 (D.N.H. 2010). “Thus, 

as long as an expert’s scientific testimony rests upon good grounds, it should 
4

be tested by the adversary process — competing expert testimony and active 

cross-examination — rather than excluded from juror’s scrutiny for fear that 

they will not grasp its complexities or satisfactorily weigh its inadequacies.” 

Osman, 169 N.H. at 335 (quotation omitted).

On appeal, we review the trial court’s decision to admit Rosenbaum’s

testimony under our unsustainable exercise of discretion standard. See id. at 

336. “In applying our unsustainable exercise of discretion standard of review, 

we determine only whether the record establishes an objective basis sufficient 

to sustain the discretionary judgment made.” Id. (quotation omitted). “Under 

our unsustainable exercise of discretion standard, our task is not to determine 

whether we would have found differently, but only to determine whether a 

reasonable person could have reached the same decision as the trial court on 

the basis of the evidence before it.” Id. (quotation and brackets omitted).

We first review whether Rosenbaum’s testimony was “based upon 

sufficient facts or data.” RSA 516:29-a, I(a). Rosenbaum relied upon the 

following facts when formulating his opinion, to a reasonable degree of medical 

certainty, that the plaintiff contracted salmonella from the defendantrestaurant’s hamburger: (1) the plaintiff’s medical records recounted his 

diagnosis of non-typhodial salmonella, which is typically food-borne; (2) the 

plaintiff owned a pet lizard, with whom his wife and daughter also had contact, 

yet neither became ill; (3) the plaintiff’s brother-in-law also ate a hamburger at 

the defendant’s restaurant and suffered similar gastrointestinal symptoms; (4) 

the plaintiff prepared the meals that he and his wife ate from home, yet his wife 

did not become ill; (5) the plaintiff’s wife has celiac disease, making her more 

prone to contract salmonella and other infections; and (6) the plaintiff 

presented symptoms within the six to 72 hour incubation, or “look-back,”

period for salmonella following his meal at the defendant’s restaurant. Based 

upon the pretrial record before us, including Rosenbaum’s deposition and 

report and the pretrial hearing transcript, we cannot conclude that the court 

unsustainably exercised its discretion in finding that Rosenbaum’s testimony 

was based upon sufficient facts.

We next review whether Rosenbaum’s testimony was the “product of 

reliable principles and methods,” RSA 516:29-a, I(b), and whether he “applied 

the principles and methods reliably to the facts,” RSA 516:29-a, I(c). On 

appeal, the defendant argues, as it did at the motion in limine hearing, that 

Rosenbaum failed to lay a proper foundation and exercise the appropriate 

methodology, and therefore, his opinion was unscientific and should have been

excluded. The plaintiff counters that both Rosenbaum and the defendant’s 

expert, Sigal Yawetz, M.D., considered the same facts, but reached different 

conclusions, and thus Rosenbaum’s opinion was scientifically valid.

Before his pretrial deposition, Rosenbaum reviewed the plaintiff’s medical 

records and the depositions of the plaintiff, his wife, and his brother-in-law. 
5

During his deposition, Rosenbaum testified about his experience and

qualifications as an infectious disease physician and explained the typical 

symptoms of salmonella. Using his expertise, Rosenbaum discussed and 

considered the above mentioned facts, eliminated potential causes, and 

concluded that the hamburger from the defendant’s restaurant was, more 

likely than not, the cause of the plaintiff’s salmonella illness. See Westberry v. 

Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (differential etiology 

reached “by determining the possible causes for the patient’s symptoms and 

then eliminating each of these potential causes until reaching one that cannot 

be ruled out or determining which of those that cannot be excluded is the most 

likely”); see also Goudreault v. Kleeman, 158 N.H. 236, 247-48 (2009)

(recognizing differential etiology as reliable methodology in medical diagnosis 

and causation cases).

Though the defendant contends, on appeal, that “the only principles and

methods that have previously been tested, subjected to peer review, with 

known or potential error rates, and generally accepted in the scientific 

literature are the methods used for public health purposes,” the defendant has 

failed to demonstrate how Rosenbaum’s methodology “was so altered by a 

deficient application as to skew the methodology itself,” Osman, 169 N.H. at 

336. Moreover, the trial court found that Dr. Yawetz did not present a more 

reliable or preferred methodology. The methodology now proposed by the 

defendant does not render Rosenbaum’s methodology deficient, nor does it 

demonstrate that Rosenbaum’s testimony does not rest upon good grounds. 

See id. at 335-36. As the gatekeeper, the trial court has the discretion to admit 

expert testimony that it finds reliable, which will then be tested by competing 

expert testimony and cross-examination. See id. at 335. Therefore, because 

the defendant has failed to demonstrate that Rosenbaum’s methodology is 

unreliable, we cannot conclude that the trial court committed an 

unsustainable exercise of discretion by admitting Rosenbaum’s expert 

testimony.

The defendant also argues that Rosenbaum lacked an adequate 

foundation to testify that someone with celiac disease, like the plaintiff’s wife, 

would be more susceptible to a salmonella illness than someone without such 

condition, and therefore, such testimony was “highly prejudicial.” We disagree. 

Rosenbaum’s testimony explained that he considered the fact that the 

plaintiff’s wife did not contract salmonella, though she has celiac disease, to 

decrease the likelihood that the salmonella originated from a source within the 

home. Moreover, Rosenbaum’s deposition testimony recognized that he could 

not quantify how much more likely someone with celiac disease would be to 

contract salmonella than someone without such illness. The trial court found 

that this admission reduced any unfair prejudice. See N.H. R. Ev. 403. We 

agree. To the extent that there were gaps in Rosenbaum’s explanation 

regarding celiac disease, these omissions “go to the weight to be accorded the 

opinion evidence, and not to its admissibility.” Goudreault, 158 N.H. at 248 
6

(quotation omitted). Therefore, we cannot conclude that the trial court’s 

admission of this testimony was an unsustainable exercise of discretion.

Next, the defendant argues that there was insufficient causation evidence 

to prove that: (1) the hamburger from the defendant’s restaurant caused the 

plaintiff’s salmonella; (2) the salmonella would cause the plaintiff future pain 

and suffering; and (3) the salmonella caused the plaintiff to suffer hedonic 

damages. Under the doctrine of strict products liability, “[o]ne who sells any 

product in a defective condition unreasonably dangerous to the user or 

consumer . . . is subject to liability for physical harm thereby caused to the 

ultimate user or consumer.” Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 

813, 831 (2005) (quotation omitted). Causation is a necessary element in strict 

liability actions. See Trull v. Volkswagen of America, 145 N.H. 259, 264 (2000). 

A defective or unreasonably dangerous product is a “proximate cause if it is a 

substantial factor in bringing about the harm, and if the harm would not have 

occurred without that conduct.” Id. (quotation omitted). The plaintiff bears the 

burden of proving that the defendant’s sale of the defective product was a 

proximate cause of his injury, illness, or harm. See id. Proximate cause is a 

question for the trier of fact. Carignan v. N.H. Int’l Speedway, 151 N.H. 409, 

414 (2004).

We first address the defendant’s argument that there was insufficient 

evidence to prove that the hamburger caused the plaintiff’s salmonella illness. 

The defendant asserts that the trial court erred when it submitted the case to 

the jury and thereafter denied its motion for judgment notwithstanding the 

verdict (JNOV). We disagree.

“A party is entitled to JNOV only when the sole reasonable inference that 

may be drawn from the evidence, which must be viewed in the light most 

favorable to the non-moving party, is so overwhelmingly in favor of the moving 

party that no contrary verdict could stand.” Halifax-American Energy Co. v. 

Provider Power, LLC, 170 N.H. ___, ___ (decided Feb. 9, 2018) (slip op. at 4). 

We review motions for JNOV de novo. Id.

At trial, the plaintiff submitted sufficient evidence for a reasonable jury to 

conclude that the defendant-restaurant’s hamburger was, more likely than not, 

the proximate cause of the plaintiff’s salmonella illness. In addition to 

Rosenbaum’s testimony detailed above, the jury heard the following evidence: 

the plaintiff and his brother-in-law each ate a well-done hamburger at the 

defendant’s restaurant around 8:00 p.m. on Monday, February 17, 2014; the 

plaintiff became violently ill at approximately 2:45 a.m. on Tuesday morning, 

within the six to 72-hour look-back period for salmonella; and on February 22, 

2014, the plaintiff was diagnosed with salmonella. The defendant challenged 

the plaintiff’s causation evidence with its own expert’s testimony.
7

Though the causation evidence adduced at trial was conflicting, several 

reasonable inferences could be drawn from such evidence, including that the 

defendant-restaurant’s hamburger was the cause of the plaintiff’s salmonella 

illness. Thus, the trial court did not err by denying the defendant’s motion for 

JNOV on the issue of liability.

We now turn to the defendant’s argument that there was insufficient 

evidence to prove that the plaintiff’s salmonella illness would cause him future 

pain and suffering. The defendant contends that, in order to submit to the jury

the issue of future pain and suffering damages, the plaintiff needed to prove, 

through expert testimony, that he would experience future pain and suffering as 

a result of his salmonella illness. The defendant claims that, without such expert 

testimony, the trial court erred when it denied its motion for directed verdict and 

submitted the issue of future pain and suffering damages to the jury. The 

plaintiff counters that the ample medical records submitted to the jury, in 

conjunction with the plaintiff’s testimony and Rosenbaum’s expert opinion that 

“up to one-third of individuals have prolonged gastrointestinal complaints after 

salmonella,” were sufficient to prove the plaintiff’s future pain and suffering and 

to allow jury instruction on such. We agree with the plaintiff.

“A trial court may grant a motion for a directed verdict only if it 

determines, after considering the evidence and construing all inferences 

therefrom most favorably to the non-moving party, that no rational juror could 

conclude that the non-moving party is entitled to any relief.” Conrad v. N.H. 

Dep’t of Safety, 167 N.H. 59, 70 (2014) (quotation omitted). “The court may not 

weigh the evidence or judge the credibility of witnesses and should deny the 

motion for a directed verdict unless it can affirmatively determine that the 

plaintiff is not entitled to any relief on the evidence presented.” Id. (quotation 

omitted). Because motions for directed verdict relate to the sufficiency of the 

evidence, they present questions of law which we review de novo. See Halifax, 

170 N.H. at ___ (slip op. at 4).

It is well settled in New Hampshire law that “there can be no recovery for 

future damages unless there is evidence from which it can be found to be more 

probable than not that they will occur.” Jolicoeur v. Conrad, 106 N.H. 496, 

498 (1965). Future damages “are not to include any award for pain and 

suffering the experiencing of which by the plaintiff is merely possible, 

conjectural or speculative.” Dunham v. Stone, 96 N.H. 138, 140-41 (1950).

To determine whether expert testimony is required, we must determine 

whether this issue — whether the plaintiff’s pain and suffering from salmonella

“will continue into the future” — is “within the realm of common knowledge 

and everyday experience” of the average layman, Laramie v. Stone, 160 N.H. 

419, 427 (2010), or whether an expert opinion is needed to “preclude the jury 

from engaging in idle speculation,” Estate of Joshua T. v. State, 150 N.H. 405, 

408 (2003) (quotation omitted). “Lay testimony is probative on the issue of 
8

physical injury and the cause of that injury only if the cause and effect are so 

immediate, direct and natural to common experience as to obviate any need for 

an expert medical opinion.” Reed v. County of Hillsborough, 148 N.H. 590, 591

(2002) (quotation omitted). Expert testimony is required “if any inference of the 

requisite causal link must depend on observation and analysis outside the 

common experience of jurors.” Id. (quotation omitted).

Here, the plaintiff submitted medical records to the jury. The defendant 

did not object to the admission of more than 700 pages of medical records, nor 

did it request a limiting instruction. The records characterize the plaintiff’s 

ongoing gastrointestinal symptoms as “most likely post-infectious . . . due to 

the salmonella.” See, e.g., Bailey v. Cataldo Ambulance Service, Inc., 832 

N.E.2d 12, 18 (Mass. App. Ct. 2005) (holding medical records contain sufficient 

expert opinion evidence on causation). Moreover, the jury heard the expert 

testimony of Rosenbaum, who opined that “up to one-third of individuals have 

prolonged gastrointestinal complaints after salmonella.” This expert testimony 

assisted the jury in its decision regarding whether the plaintiff’s salmonella 

illness would, more probably than not, cause him to suffer future pain. Reed, 

148 N.H. at 591.

The plaintiff also testified that, more than two years after his salmonella 

illness, he continues to work with physicians and a nutritionist to treat and 

manage his ongoing gastrointestinal symptoms, as evidenced by the medical 

records. He explained that there are foods and beverages, including alcohol,

that he can no longer consume without a potential “flare up,” which prevents 

him from enjoying time with friends. He ceased consumption of sugar, beef, 

caffeine, and carbonated beverages and decreased his intake of fruits and 

vegetables. He spoke about the prescriptions he takes on an ongoing basis to 

control his symptoms and also explained some of the side effects of those 

medications. The plaintiff’s lay testimony recounting his continuous

gastrointestinal symptoms since his salmonella diagnosis was “probative on the 

issue of physical injury and the cause of that injury.” Id.

To the extent that the defendant argues that there was insufficient 

evidence that the salmonella caused the plaintiff’s delayed-onset patchy colitis, 

we find such evidence to be unnecessary. The jury was not instructed that it 

needed to find that the plaintiff suffered from patchy colitis, or that the patchy 

colitis was caused by his salmonella illness. Moreover, the jury returned a 

general verdict that did not specify the allocation of the damages award. The 

jury had sufficient evidence, from testimony and medical records, to conclude 

that the plaintiff suffered, and would continue to suffer, pain and residual 

symptoms from his salmonella illness.

Based upon our review of the record — including the expert testimony of 

Rosenbaum, the medical records, and the plaintiff’s testimony — viewed in the 

light most favorable to the plaintiff, we conclude that the plaintiff produced 
9

sufficient evidence from which reasonable jurors could find that the salmonella 

was the cause of his ongoing gastrointestinal symptoms, and more likely than 

not, they will continue in the future. We recognize that it would not have been 

unreasonable for the jury to conclude otherwise. Under these circumstances, 

however, the inferences that may be drawn from the evidence are not “so 

overwhelmingly in favor of the [defendant] that no contrary verdict could 

stand,” Halifax, 170 N.H. at ___ (slip op. at 4), and we will not endeavor “to 

reweigh the evidence and set aside the jury verdict merely because the jury 

could have drawn different inferences or conclusions or because we feel that 

other results are more reasonable,” Bronson v. Hitchcock Clinic, 140 N.H. 798, 

804 (1996) (quotation and brackets omitted). “Under our jury system, 

reasonably disputable issues of fact are to be resolved by the jury.” Id. 

(quotation omitted). We find no error in the trial court’s denial of the 

defendant’s motion for directed verdict on the issue of whether the plaintiff 

would likely sustain future pain and suffering and in the court’s submission of 

that damages issue to the jury.

The defendant also argues that the plaintiff failed to introduce expert 

testimony regarding permanent impairment sufficient to submit the question of 

hedonic damages to the jury, and thus the trial court erred in denying its 

motion for directed verdict on that issue. Because we decline to condition 

hedonic damages on proof of a permanent impairment, we need not consider

whether expert testimony is necessary to establish permanency.

In Bennett v. Lembo, 145 N.H. 276 (2000), we left for another day the 

question of whether hedonic damages are available for alleged non-permanent 

impairments. Bennett, 145 N.H. at 281. We recognized that hedonic damages, 

or loss of enjoyment of life damages, “compensate a plaintiff for the lost ability 

to engage in activities that once brought pleasure.” Id. “The inability to engage 

in certain activities is the natural result of the incapacity that an impairment 

award is designed to compensate.” Id. Courts in other jurisdictions have 

explained that hedonic damages are designed to include compensation for the 

plaintiff’s inability to perform or engage in his or her “usual specific activities 

which had given pleasure to this particular plaintiff, such as playing golf, 

dancing, bowling, playing musical instruments, and engaging in specific 

outdoor sports.” E.g., Ramos v. Kuzas, 600 N.E.2d 241, 243 (Ohio 1992). We 

see nothing in the Bennett rationale that would require plaintiffs to suffer a 

permanent loss of enjoyment of life in order to sustain an award of hedonic 

damages. Accordingly, we hold that hedonic damages are available to 

compensate plaintiffs for the temporary or permanent inability to engage in 

such pleasurable aspects of life. See Smith v. City of Evanston, 631 N.E.2d 

1269, 1279 (Ill. App. Ct. 1994) (instructing jury on loss of enjoyment of life 

damages when plaintiff suffers “temporary or permanent inability to pursue the 

pleasurable aspects of life”).
10

Here, the jury could reasonably have found that the plaintiff was limited 

in his activities. At trial, the plaintiff testified that his gastrointestinal

symptoms continue to interrupt and restrict his life. The jury heard testimony 

that the plaintiff can no longer eat food and drink beverages of his choice 

without repercussions, hike at his leisure, or participate in other activities 

without fearing embarrassing accidents in the absence of a nearby restroom. 

The jury also received medical evidence linking the plaintiff’s ongoing 

limitations to his salmonella illness. Viewing this evidence in the light most 

favorable to the plaintiff, the jury could reasonably have found that the plaintiff 

“lost [the] ability to engage in activities that once brought pleasure.” Bennett, 

145 N.H. at 281. We hold that the trial court did not err in denying the 

defendant’s motion for directed verdict on the issue of hedonic damages and 

submitting that issue to the jury.

Similarly, to the extent that the defendant argues that the trial court 

erred in instructing the jury on hedonic and future pain and suffering 

damages, we disagree. A trial court’s decision to give a particular jury 

instruction must be based upon “some evidence to support a rational finding in 

favor of that instruction.” N.H. Ball Bearings v. Jackson, 158 N.H. 421, 434

(2009) (quotation and brackets omitted). Because we find that there was “some 

evidence” that would allow the jury to award the plaintiff hedonic and future 

pain and suffering damages, we find no error in the trial court’s instruction on 

these damages.

Next, the defendant points to numerous statements made by the 

plaintiff’s counsel during opening and closing statements and argues that the 

trial court’s failure to sua sponte strike such statements deprived the 

defendant of a fair trial and constituted plain error. The defendant asserts that 

such error requires a new trial.

The defendant acknowledges that these purported errors were not 

brought to the attention of the trial court. Nevertheless, under the plain error 

rule, we may consider claims of error not raised before the trial court. Halifax, 

170 N.H. at ___ (slip op. at 9). “However, the rule should be used sparingly, its 

use limited to those circumstances in which a miscarriage of justice would 

otherwise result.” Id. To find plain error: “(1) there must be an error; (2) the 

error must be plain; (3) the error must affect substantial rights; and (4) the 

error must seriously affect the fairness, integrity or public reputation of judicial 

proceedings.” Id. (quotation omitted).

Statements and arguments that appeal to the emotions or prejudices of 

jurors may be improper when “the statements or arguments take the form of 

counsel’s presentation of facts which have not been introduced in, or are not 

fairly inferable from, evidence at trial.” McLaughlin v. Fisher Eng’g, 150 N.H. 

195, 204 (2003) (quotation omitted).
11

The defendant argues that the trial court erred in failing to sua sponte

strike the plaintiff’s counsel’s opening and closing statements referencing

Rosenbaum’s expert medical opinion, testimony about celiac disease, the

failure to test the lizard for salmonella, and the inferences from this evidence 

that the plaintiff’s counsel suggested to the jury. The defendant argues that 

these statements were improper and the trial court should have acted on its 

own to strike them because they lacked sufficient scientific reliability or were 

based upon facts not in evidence. The facts highlighted by the plaintiff’s 

counsel, however, were introduced into evidence and questions of reliability 

and credibility are to be resolved by the jury. See Osman, 169 N.H. at 339. We 

hold that the drawing of favorable inferences from this evidence by the 

plaintiff’s counsel in opening and closing statements was not improper. 

Moreover, the trial court’s failure to sua sponte strike these statements was not

error, let alone plain error. See State v. Drown, 170 N.H. ___, ___ (decided June 

5, 2018) (slip op. at 12) (declining to find error in trial court’s failure to sua

sponte interrupt counsel’s argument). Accordingly, we need not address the 

remaining factors of the plain error analysis.

Finally, independent of all previously addressed arguments, the 

defendant contends that the trial court erroneously denied its motion for 

remittitur, arguing that the jury’s damages award of $750,000, when the 

plaintiff’s medical expenses totaled only $43,000, was manifestly exorbitant 

and plainly excessive. We disagree.

“Direct review of a damages award is the responsibility of the trial judge, 

who may disturb a verdict as excessive (or inadequate) if its amount is 

conclusively against the weight of the evidence and if the verdict is manifestly 

exorbitant.” Kelleher, 152 N.H. at 838 (quotation omitted). “The proper 

standard for the trial court’s review of a jury award is whether the verdict is 

fair.” Id. (quotation omitted). “It is the trial judge’s responsibility to both 

ensure that the trial is fairly conducted and correct or vacate what turns out to 

be an unfair result.” Id. “Whether remittitur is appropriate rests with the trial 

court’s sound discretion.” Id. (quotation omitted). “Absent an unsustainable 

exercise of discretion, we will not reverse the trial court’s decision.” Id. 

(quotation omitted). “On review, we will not attempt to ascertain or divine the 

one and only correct verdict.” Id. (quotation omitted). “The party seeking to 

modify the verdict’s amount bears a heavy burden.” Id. (quotation omitted). At 

trial, extensive evidence was admitted regarding the condition of the plaintiff’s 

health during and following his February 2014 salmonella illness. The plaintiff 

testified that his inability to control his bowels embarrassed him and 

interrupted his personal and professional life. He detailed the changes to his 

diet, lifestyle, and habits in order to avoid and mitigate future discomfort and 

“flare ups.” The jury heard testimony regarding salmonella’s symptoms, 

complications, treatments, and side effects. The jury was also provided with 

voluminous medical records demonstrating the extent of the plaintiff’s medical 

history since February 2014.
12

Having previously determined that this evidence was properly admitted 

and that it was proper for the jury to be instructed on hedonic and future pain 

and suffering damages, we conclude there was sufficient evidence and 

testimony to support the jury’s damages award. In light of the evidence 

presented at trial, we cannot say that the damages were manifestly exorbitant. 

Accordingly, we conclude that the trial judge did not commit an unsustainable 

exercise of discretion in upholding the jury’s damages award.

Affirmed.

LYNN, C.J., and HICKS and BASSETT, JJ., concurred; DALIANIS, C.J., 

retired, specially assigned under RSA 490:3, concurred.