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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district

No. 2015-0561

ARBAY M. OSMAN & a.

v.

WEN LIN & a.

Argued: June 22, 2016

Opinion Issued: August 23, 2016

Shaheen & Gordon, P.A., of Manchester (Francis G. Murphy on the brief 

and orally), and Seufert Law, PA, of Franklin (Christopher J. Seufert on the 

brief), for the plaintiffs.

Primmer Piper Eggleston & Cramer, PC, of Manchester (Gary M. Burt

and Adam R. Mordecai on the brief, and Mr. Burt orally), for defendants Wen 

Lin, Lepa Lin, and Property Services Company, LLC.

Sulloway & Hollis, P.L.L.C., of Concord, filed no brief for defendant 

Frederick Keefe, individually and as trustee of KC Realty Trust.
2

Getman, Schulthess, Steere & Poulin, P.A., of Manchester, filed no brief 

for defendants Rene Denis and Carmen Denis.

Kazan Shaughnessy McDonald, PLLC, of Manchester, filed no brief for 

defendant William Stergios.

BASSETT, J. In this interlocutory appeal, the plaintiffs, children who are 

Somali Bantu refugees or whose parents are Somali Bantu refugees, challenge

an order of the Superior Court (Nicolosi, J.), granting the motion to exclude the 

expert testimony of Peter Isquith, Ph.D., filed by the defendants in whose 

Manchester apartments the plaintiffs once lived. See Sup. Ct. R. 8. After 

evaluating the 20 plaintiffs, Isquith, a clinical neuropsychologist, determined 

that 17 of them suffer from neurological deficits and opined that lead exposure 

was, more likely than not, a substantial factor in causing those deficits. The 

superior court excluded Isquith’s testimony based upon its determination that 

his testimony was not “the product of reliable principles and methods,” RSA 

516:29-a, I(b) (2007), and its finding that he did not apply “the principles and 

methods reliably to the facts” of this case, RSA 516:29-a, I(c) (2007). The 

superior court has transferred the following question for our consideration:

Did the trial court commit an unsustainable exercise of discretion 

in excluding the testimony of Peter Isquith, Ph.D., based on its 

finding that Dr. Isquith’s methodology fails to meet the threshold 

level of reliability required of an expert witness, per RSA 516:29-a 

and New Hampshire law? 

We answer the transferred question in the negative.

I. Background

We accept the statement of the case and facts as presented in the 

interlocutory appeal statement and rely upon the record for additional facts as 

necessary. See State v. Hess Corp., 159 N.H. 256, 258 (2009). Seventeen of 

the 20 plaintiffs are Somali Bantu refugees who were resettled to the United 

States in 2004. Three of the plaintiffs were born in the United States to Somali 

Bantu refugees. All of the plaintiffs learned English as a second language; 

their first language was either Maay Maay or a tribal language.

According to the plaintiffs, and not disputed by the defendants, the 

plaintiffs lived in the defendants’ apartments during 2005-2006, and those 

apartments were contaminated by lead paint, a known health hazard. The

plaintiffs have elevated levels of lead in their blood. In their complaints, which 

were consolidated for discovery and trial, the plaintiffs, through their parents, 
3

allege that they were injured by their exposure to lead paint while living in the 

defendants’ apartments.

The plaintiffs’ counsel hired Isquith to assess whether the plaintiffs had 

neurological deficits that were more likely than not caused by lead paint

exposure. Isquith did so primarily using two measures: (1) the Reynolds 

Intellectual Assessment Scales (RIAS); and (2) the Developmental 

Neuropsychological Assessment, Second Edition (NEPSY-II). The RIAS 

measures verbal and nonverbal intelligence and general intelligence. The 

NEPSY-II neuropsychological test is “specifically designed for children.” Baxter

v. Temple, 157 N.H. 280, 307 (2008) (describing the predecessor to the NEPSYII). It consists of a flexible battery of 32 subtests, which are divided into six 

domains of cognitive functioning: attention and executive functioning; 

language; memory and learning; sensorimotor; social perception; and 

visuospatial processing. See id. “Each subtest has been individually 

standardized and . . . scored.” Id.

According to one of the defendants’ experts, standardization refers to the 

process by which raw scores on a test are converted to standard scores, 

meaning “a metric that has a uniform meaning.” According to that expert, one 

way to standardize scores “is to test a substantial number of individuals, line 

up the[ir] scores from lowest to highest, and then determine, for each score or 

person, the percentage of individuals whose scores that person surpasses.” 

“The result is referred to as a percentile score, which reflects [an individual’s]

relative standing [when] compared to others.” Thus, “if one’s . . . score falls at 

the 25th percentile,” then that score is equal to, or exceeds, the scores of 25 

out of 100 individuals. According to this defense expert, “[f]or information 

about relative standing to be of value, an individual needs to be compared to a 

suitable group.” The expert explained that for many test applications, one 

seeks a “normative” group, which is a representative group of so-called 

“normal” individuals.

One of the challenges Isquith faced in using the RIAS and the NEPSY-II 

to evaluate the plaintiffs was the fact that most neuropsychological 

instruments, including the RIAS and NEPSY-II, were not developed and have 

not been validated for use with the plaintiff population. The normative sample 

for the RIAS did not include any recent immigrants to the United States from 

sub-Saharan Africa. The normative sample for the NEPSY-II expressly 

excluded children for whom English is a second language.

 



“The NEPSY-II normative sample is a national, stratified, random sample consisting of 1,200 

preschoolers, children, and adolescents between the ages of 3 and 16 years.” Brooks et al., 

Healthy Children Get Low Scores Too: Prevalence of Low Scores on the NEPSY-II in Preschoolers, 

Children, and Adolescents, 25 Archives of Clinical Neuropsychology 182, 183 (2010). 

“Stratification of the entire normative sample by age, race/ethnicity, geographic location, and 

parental education was based on the October 2003 U.S. Census Survey.” Id. Each of the 12 age 

groups “was sampled to closely resemble the 2003 U.S. Census information.” Id. “Exclusion 
4

To address that challenge, Isquith interpreted the plaintiffs’ test scores 

“cautiously.” Isquith explained that, to identify whether a plaintiff had a 

neurological deficit, he did not rely upon a single subtest score, but rather 

relied upon “patterns of poor scores on similar tests,” meaning two or more in a 

single domain. (Quotation omitted.) He also relied upon only scores that were 

defined as “falling below or well below” expected levels of performance. 

(Quotation omitted.) Isquith’s intent in so doing was to err on the side of not

identifying a deficit, thus, making it more likely that the identification of any 

deficit was accurate.

The defendants moved to exclude Isquith’s testimony on the ground that 

it is inadmissible under New Hampshire Rule of Evidence 702 and RSA 

516:29-a (2007). See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 

579 (1993). The defendants argued that the tests that Isquith used are not 

suitable for evaluating Somali Bantu refugees or their children because the 

tests were not “normed” for that population, and that the manner in which 

Isquith administered the tests and interpreted their results rendered his 

testimony unreliable.

Following a six-day evidentiary hearing, the trial court granted the 

defendants’ motion in a well-reasoned 19-page order, concluding that the 

plaintiffs had failed to demonstrate: (1) that Isquith’s testimony was “the 

product” of reliable methodology, RSA 516:29-a, I(b); and (2) that Isquith had

applied the methodology “reliably to the facts” of this case, RSA 516:29-a, I(c).

The trial court found that the “most significant” problem with Isquith’s 

methodology was that he evaluated the plaintiffs using tests that were neither 

developed nor validated for use with the plaintiff population. The tests were 

normed for a United-States born, English-speaking population and not for

children, like the plaintiffs, for whom English is a second language. The court 

explained that, although “the tests . . . Isquith employed in this case may have 

reliability and validity with respect to their normative samples and other 

groups for which there is available data,” they have no known reliability or 

validity for Somali Bantu refugees and their children. The court noted that 

“[w]hile the published tests have a known error rate, the error rate is for a very 

different normative sample, not for Somali Bantu refugees.”

The court observed that, because neither the RIAS nor the NEPSY-II was 

normed for the plaintiff population, Isquith did not know “how a normal, 

healthy Somali Bantu [refugee] would perform on any of the tests 

 

criteria included diagnosis of a number of conditions that could potentially affect scores (i.e., 

neurological, learning, sensory/motor, or psychiatric disorders), as well as English as a second 

language, recent history of previous testing, and medication usage that might potentially impact 

performance.” Id.
5

administered.” Without that information, the court questioned whether there 

was any “way of knowing whether the plaintiffs’ performance on the tests 

indicates a real deficit.”

The court also observed that Isquith’s specific methodology in this case 

“has not been subject to publication” or otherwise subject to the “rigors of 

meaningful peer review.” The court further found that Isquith did not “attempt 

to account for a host of other risk factors” that many of the plaintiffs may have

faced, such as lack of preventative health care, exposure to war, and “low 

socioeconomic status.”

The court determined that these deficiencies were “further compounded 

by the uncertainty surrounding the cutoff[ ] scores [Isquith] employed” when 

determining whether the plaintiffs had neurological deficits. The court 

observed that Isquith gave conflicting testimony about the “cutoff scores” that 

he used, at times testifying that he identified a deficit by using scores that fell 

below the 15th percentile, and at other times testifying that he identified a 

deficit by using scores that fell below the 10th percentile. Regardless of the 

percentile used, the court found that Isquith “had no scientific basis to believe 

scores falling below the 10th or 15th percentiles would accurately identify 

deficits in Somali Bantu refugees.” The court concluded that Isquith’s 

“cautious” approach “largely amounted to guesswork, albeit well-educated 

guesswork,” and, as such, “would not assist the jury in arriving at a fair and 

just verdict.” (Quotation omitted.) This interlocutory appeal followed.

II. Analysis

Before addressing the merits of the plaintiffs’ interlocutory appeal, we 

observe that they have not provided a complete record for our review. As the 

appealing party, the plaintiffs have the burden of providing a record sufficient 

to decide their issues on appeal. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 

248, 250 (2004); see also Sup. Ct. R. 13(2). Although they have provided the 

transcripts of the six-day evidentiary hearing, the plaintiffs have not provided

all of the exhibits admitted into evidence at that hearing, including Isquith’s 

complete, three-volume deposition. The plaintiffs have also failed to provide 

the defendants’ motion to exclude, their objection to it, the parties’ post-trial 

memoranda, or all of the attachments to those pleadings. Absent a complete 

record, we must assume that the record supports the trial court’s factual 

findings. In the Matter of Rokowski & Rokowski, 168 N.H. 57, 62 (2015).

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. State v. Langill, 157 N.H. 77, 83 (2008). To 

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

RSA 516:29-a. Portions of RSA 516:29-a codify principles outlined by the 

Supreme Court in Daubert. See id. at 85; see also Daubert, 509 U.S. at 592-
6

95; 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 overall purpose of Rule 702 and RSA 516:29-a is simply to ensure that a 

fact-finder is presented with reliable and relevant evidence, not flawless 

evidence.” Langill, 157 N.H. at 87. Thus, “as long as an expert’s scientific 

testimony rests upon good grounds, it should be tested by the adversary 

process — competing expert testimony and active cross-examination — rather 

than excluded from jurors’ scrutiny for fear that they will not grasp its 

complexities or satisfactorily weigh its inadequacies.” Id. at 88 (quotation and 

ellipsis omitted).

Here, one of the reasons that the court excluded Isquith’s testimony is 

that it found that he failed to apply the methodology reliably to the facts of this 

case. See RSA 516:29-a, I(c). “[U]nder RSA 516:29-a, I(c), when the 
7

application of a scientific methodology is challenged as unreliable . . . , outright 

exclusion of the evidence . . . is warranted only if the methodology was so 

altered by a deficient application as to skew the methodology itself.” Langill, 

157 N.H. at 88 (quotation and emphasis omitted). “This inquiry is of necessity 

a flexible one,” id. at 87 (quotation and brackets omitted), so as to “encompass 

the multitude of scenarios that may be presented and to maintain the division 

in function” between the jury, as fact-finder, and the trial court, as gatekeeper, 

id. at 88.

We review the trial court’s determination that Isquith did not apply the 

methodology reliably to the facts of this case under our unsustainable exercise 

of discretion standard. See Baxter, 157 N.H. at 302. 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.” State v. Lambert, 147 N.H. 295, 296 (2001). 

Under our unsustainable exercise of discretion standard, “[o]ur 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.” Benoit v. Cerasaro, 169 N.H. ___, 

___ (decided April 19, 2016) (quotation omitted).

The plaintiffs argue that the trial court unsustainably exercised its 

discretion because it used a higher standard for admissibility than whether

Isquith’s testimony rested upon “good grounds.” Langill, 157 N.H. at 88

(quotation omitted). They contend that, contrary to the trial court’s findings, 

“Isquith used sound principles in applying accepted assessment tools to the 

minor plaintiffs.” They assert that he “used the same methodology that is used 

in clinical and school settings for cross-cultural assessments.” According to 

the plaintiffs, therefore, the trial court “exceeded its role” as gatekeeper. We 

disagree.

We find Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), instructive. 

In that case, the Supreme Court ruled “that it was not the general acceptance 

of the methodology that was relevant.” Blue Dane Simmental v. American 

Simmental Ass’n, 178 F.3d 1035, 1040 (8th Cir. 1999); see Kumho Tire, 526 

U.S. at 153-54. “Rather, it was the reasonableness of using such an approach, 

along with [the expert’s] particular method of analyzing the data thereby 

obtained, to draw a conclusion regarding the particular matter to which the 

expert testimony was directly relevant.” Kumho Tire, 526 U.S. at 154. Thus, 

the Court upheld the trial court’s exclusion of a qualified tire expert’s use of 

visual and tactile examination of automobile tires even though “as a general 

matter, tire abuse may often be identified by qualified experts through visual or 

tactile inspection of the tire.” Id. at 156.

In upholding the trial court’s decision, the Court observed that the record 

did not demonstrate that other experts in the industry used the expert’s 
8

specific methodology. See id. at 157. Nor did the parties refer the Court to any 

articles or papers validating the expert’s approach. Id. Although the expert 

“claimed that his method was accurate,” the Court ruled that the district court 

was not required “to admit opinion evidence that is connected to existing data 

only by the ipse dixit of the expert.” Id. (quotation omitted). Under these 

circumstances, the Court concluded that “the doubts that triggered the [trial 

court’s] initial inquiry . . . were reasonable, as was [its] ultimate conclusion” 

that the expert’s testimony was insufficiently reliable to be admissible. Id. at 

153.

Similarly, in Blue Dane Simmental, although the expert in that case had 

“utilized a method of analysis typical within his field,” the appellate court 

concluded that the trial court had not abused its discretion by excluding his 

testimony when: (1) his method was “not typically used to make statements 

regarding causation without considering all independent variables that could 

affect the conclusion”; (2) there was “no evidence in the record that other 

economists” used the expert’s “before-and-after modeling” to support 

conclusions about the causes of fluctuations in the market; and (3) the 

plaintiffs had not cited “any articles or papers that would support [the expert’s] 

approach.” Blue Dane Simmental, 178 F.3d at 1040-41.

This case is analogous to Kumho Tire and Blue Dane Simmental. 

Although there was evidence that the RIAS and NEPSY-II are generally used to 

determine whether school children are in need of educational services, the trial 

court could reasonably have found that they are not typically used for the 

specific purpose for which Isquith used them — to determine whether children 

who are either Somali Bantu refugees themselves or the children of such 

refugees have neurological deficits that are more likely than not caused by lead 

paint exposure. As one of the defendants’ experts testified, Isquith used the 

RIAS and NEPSY-II here in a way that is “very different . . . from the usual 

application in clinical practice,” and for a purpose for which those tests have 

“not been validated.” As another defense expert explained, there is a difference 

between using the RIAS and NEPSY-II to determine “how well [the plaintiffs] are 

. . . progressing in their ability to perform verbal reasoning in English 

compared to their typical age mates in the United States at large” and using 

those tests to examine the plaintiffs’ “brain function” and “the cause of any 

known brain abnormalities.” This expert opined that because “the ‘expected 

levels’ of performance of Somali Bantu [refugee] children generally and

specifically those not exposed to environmental lead are unknown, . . . the 

inference that any number of scores that are below the expected level of [the] 

. . . individuals for whom [the tests were] normed represent neuropsychological 

or brain-related deficits caused by lead exposure has no basis in psychometrics 

(or science) and is simply speculation.” (Quotation and citation omitted.)
9

Moreover, the trial court could also have reasonably determined that the 

plaintiffs failed to establish that, when using the RIAS or NEPSY-II crossculturally, other neuropsychologists use the same method for interpreting test 

results that Isquith used here. The plaintiffs have not referred us to articles or 

papers validating the specifics of Isquith’s “cautious” approach to interpreting 

those results. At the evidentiary hearing, Isquith admitted that he was not 

aware of any study that had employed his specific methodology of relying upon 

nonverbal testing and scores below the 10th percentile, and requiring such 

scores on two or more tests in the same domain. One of the defense experts 

agreed that there was no publication in the relevant scientific community that 

“endorses specifically the methodology that . . . Isquith employed to assess 

these children.” Notably, one of the treatises upon which the plaintiffs relied 

specifically states that “[w]hen using [neuropsychological] procedures in a 

nonnormative and qualitative fashion, the use of numerical cutoffs and 

normative statistics is inappropriate and misleading, and should be avoided.” 

T. Wong et al., Theoretical and Practical Issues in the Neuropsychological 

Assessment and Treatment of Culturally Dissimilar Patients, in Handbook of 

Cross-Cultural Neuropsychology 3, 15 (Elaine Fletcher-Janzen et al., eds.,

2000). Although Isquith opined that his use of the RIAS and NEPSY-II

complied with the “generally-accepted principles” of his profession, the trial 

court was not required to admit his testimony based solely upon his authority. 

See Kumho Tire, 526 U.S. at 157.

Additionally, the trial court reasonably could have questioned Isquith’s 

methodology given the uncertainty surrounding the cutoff scores that he used 

to determine whether each plaintiff suffered from a neurological deficit. At one 

point in his deposition, Isquith testified that he did not use a specific cutoff 

score to conclude that a child had a deficit. Later in his deposition, he asserted 

that he used scores that fell below the 15th percentile. On the first day of the 

hearing, Isquith testified that his “interpretations were made when children fell 

at least below the 15th percentile.” Thereafter, he testified that he used scores 

that fell below the 10th percentile.

Under these circumstances, we cannot conclude that the trial court 

unsustainably exercised its discretion when it found that Isquith failed to apply 

the methodology reliably to the plaintiffs. The trial court reasonably could have 

found that Isquith’s use of the RIAS and NEPSY-II tests to assess whether the 

plaintiffs suffered from neurological deficits and his interpretation of their test 

results for that purpose did not constitute mere “minor variations in some 

steps” of the testing protocol. United States v. Johnson, 56 F.3d 947, 953 (8th 

Cir. 1995); cf. Baxter, 157 N.H. at 314 (ruling that the trial court unsustainably 

exercised its discretion by excluding the expert’s testimony when the “only 

arguably true error” in his application of the methodology was that he exceeded 

the time limits for certain tests). Rather, the trial court reasonably could have 

determined that Isquith’s application of the methodology rendered his 
10

testimony so unreliable as to negate the generally accepted reliability of the 

RIAS and NEPSY-II for other purposes. See Langill, 157 N.H. at 87.

Although the evidence before the trial court was conflicting, we defer to 

the trial court’s judgment on such issues as resolving conflicts in the 

testimony, measuring the credibility of witnesses, and determining the weight 

to be given evidence. Cook v. Sullivan, 149 N.H. 774, 780 (2003). Under our 

unsustainable exercise of discretion standard of review, “[o]ur only function . . . 

is to determine whether a reasonable person could have reached the same 

decision as the trial court on the basis of the evidence before it.” Benoit, 169

N.H. at ___. Based upon the record submitted on appeal, we hold that a 

reasonable person could have ruled, as the trial court did in this case, that 

excluding Isquith’s testimony was warranted because the methodology that he 

used — even if reliable in other contexts — was “so altered by a deficient 

application as to skew the methodology itself.” Langill, 157 N.H. at 88 

(quotation omitted).

Because we have upheld the trial court’s finding that Isquith failed to 

apply the methodology “reliably to the facts of the case,” we need not address 

its determination that his testimony is not “the product of reliable principles 

and methods.” RSA 516:29-a, I(b), (c). We have reviewed the plaintiffs’

remaining arguments and conclude that they warrant no further discussion. 

See Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

DALIANIS, C.J., and CONBOY, J., concurred.