UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. Civil No. 05-cv-365-JD

Opinion No. 2007 DNH 065

Town of Madison et al.

O R D E R

At the center of this lawsuit is an access road, the

“Solomon Harmon Road,” that connects Samuel J. Bourne’s property

to a public road in the town of Madison, New Hampshire. Bourne

alleges that, in the course of disputing Bourne’s and the town’s

respective rights and obligations with respect to the access

road, the town, its board of selectmen, and another individual,

violated state law and Bourne’s state and federal constitutional

rights. Pending before the court are three motions in limine

filed by the defendants and one motion in limine filed by the

plaintiff.

Bourne’s Motion

Bourne moves to exclude any evidence relating to a domestic

dispute that required his appearance before a Massachusetts

probate court in 1994. The defendants have not filed an

objection to this motion. According to Bourne, counsel for the

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defendants stated that he does not intend to introduce any

evidence of the domestic dispute, “but [he] objects to this

motion to the extent it would foreclose the possibility of him

doing so, should Mr. Bourne somehow ‘open the door’ regarding

this issue.” Pltff’s Mot. at 2-3. The court grants Bourne’s

motion to exclude subject to any development at trial that may

warrant reconsideration of this ruling.

Defendants’ Motions

The defendants have filed three motions in limine. First,

the defendants seek to exclude all evidence relating to the

town’s initial denial to issue and later revocation of Bourne’s

building permit, its denial of Bourne’s subdivision application,

and the removal of two gates Bourne erected across the Solomon

Harmon Road. Second, the defendants move to exclude any evidence

relating to the town’s interference with Bourne’s attempts to

make improvements on the Solomon Harmon Road. Third, the

defendants move to exclude expert testimony.

The defendants’ first motion merely reiterates the same

arguments already advanced in the defendants’ motion for summary

judgment. Arguing that Bourne cannot succeed on his federal

constitutional claims, the defendants argue that the court should

exclude the evidence outlined above because it is not relevant

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1Under Rule 401, evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401. The

threshold for relevance under Rule 401 is “very low.” United

States v. Ford, 22 F.3d 374, 381 (1st Cir. 1994).

2Bourne alleges violations of his rights to due process and

equal protection under Part I, Articles 1 and 14 of the New

Hampshire constitution. The court has directed the defendants to

brief more fully their summary judgment argument as to these

claims.

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under Rule 401 of the Federal Rules of Evidence.1 The

defendants’ arguments, which attack Bourne’s allegations

piecemeal, overlook that Bourne has alleged a pattern of

misconduct by the defendants. His federal and state

constitutional claims are not based on discrete actions by town

officials but on his allegations of a larger conspiratorial

scheme by the defendants to drive him off of his property. The

defendants do not explain why evidence pertaining to permit

denials, subdivision denials, and the removal of Bourne’s gates,

is irrelevant to this theory. 

As of the present time, the defendants have not articulated

any argument for dismissing Bourne’s state constitutional

claims.2 Thus, even assuming the court dismisses the federal

constitutional claims, the defendants have presented no argument

for why the evidence they seek to exclude would not be relevant

to the state claims if they remain pending. The court

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accordingly denies the defendants’ motion to exclude evidence

relating to the town’s denial and revocation of Bourne’s building

permits, its denial of his subdivision application, and its

removal of his gates.

The defendants’ second motion seeks to exclude evidence

concerning Bourne’s disputes with the town over maintenance of

the Solomon Harmon Road. The defendants contend that the

maintenance of the road has been subject to ongoing oversight by

the Carroll County Superior Court and that the superior court

issued a definitive ruling on the matter on January 15, 2004. 

The defendants’ argue that collateral estoppel and the RookerFeldman doctrine, see Rooker v. Fid. Trust Co., 263 U.S. 413

(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983),

preclude consideration of this issue here.

Under New Hampshire law, a party seeking to invoke

collateral estoppel must satisfy three conditions: “(1) the

issue subject to estoppel must be identical in each action; (2)

the first action must have resolved the issue finally on the

merits; and (3) the party to be estopped must have appeared as a

party in the first action, or have been in privity with someone

who did so.” Stewart v. Bader, 907 A.2d 931, 937 (N.H. 2006). 

Consideration of these factors aids in answering the overarching

question -- whether the party to be estopped “had a full and fair

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prior opportunity to litigate the issue or fact in question.” 

Id.

Here, it is immediately apparent that the second factor has

not been satisfied. In the superior court’s January 15 order, it

considered motions by both Bourne and the town concerning

maintenance of the Solomon Harmon Road. The superior court

denied Bourne’s motions for injunctive relief and for contempt,

and granted the town’s motion for a preliminary injunction. 

Bourne was “enjoined from making any improvements in the Solomon

Harmon Road except in accordance with the provisions” set forth

in an earlier letter from Madison’s town counsel to Bourne’s

former attorney. Bedrock Realty Trust v. Town of Madison, Nos.

03-E-061, 114, 144 (O’Neill, J.) (Carroll County Sup. Ct. Jan.

15, 2004). 

The superior court’s January 15 order does not purport to

enter a final judgment in the case. Both parties have

represented in filings to this court that a trial was held in

March of 2007, and that a ruling from the superior court is still

pending. Thus, the superior court has not yet “resolved the

issue finally on the merits.” Putnam Lumber Co. v. Eddie Nash &

Sons, Inc., 690 A.2d 570, 571 (N.H. 1997) (holding that

collateral estoppel did not apply where the “court order in

question decided some, but not all, of the issues in the

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proceeding before it”). The defendants’ Rooker-Feldman argument

cannot succeed for similar reasons. When a federal case “is

initiated before state proceedings have ended, then--even if the

federal plaintiff expects to lose in state court and hopes to win

in federal court--the litigation is parallel, and the RookerFeldman doctrine does not deprive the court of jurisdiction.” 

Federacion de Maestros de Puerto Rico v. Junta de Relaciones del

Trabajo de Puerto Rico, 410 F.3d 17, 24-27 (1st Cir. 2005)

(discussing the tightening of Rooker-Feldman’s finality

requirement following the Supreme Court’s ruling in Exxon Mobil

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)). 

The defendants’ third motion seeks to exclude the testimony

of Bourne’s handwriting expert. As explained above, the town’s

handling of Bourne’s request for a building permit is relevant to

Bourne’s state and federal constitutional claims. One allegation 

in support of these claims is that the town forged Bourne’s

signature on a document and then submitted that falsified

document to a state trial court. Resolution of this motion

requires a brief synopsis of the relevant factual background. 

While Bourne was negotiating the purchase of his property in

Madison, he was informed by the town that to obtain a building

permit he would need to execute a waiver agreement relieving the

town from maintenance responsibility and from liability arising

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from the Solomon Harmon Road. After receiving the town’s

standard form waiver agreement, Bourne’s attorney revised it to

add terms favorable to Bourne. In particular, a term was added

declaring that Bourne could exclude public access to the Solomon

Harmon Road. Bourne mailed the revised waiver agreement back to

the selectmen with a signed cover letter. The parties dispute

the substance of the cover letter and have each submitted what

they claim to be the genuine cover letter received by the

selectmen. Bourne’s version of the cover letter draws attention

to the revisions in the waiver agreement, while the defendants’

version does not. The defendants contend that they assumed that

Bourne had simply signed the standard form waiver agreement,

without change, and they therefore unwittingly signed and

notarized it on August 28, 2002. 

After the selectmen became aware of the terms added by

Bourne, they wrote a letter to Bourne calling the agreement

“void.” Bourne’s building permit request was denied because,

among other things, the waiver agreement was void. The town

subsequently filed suit in the Carroll County Superior Court

seeking rescission of the revised waiver agreement and offered,

as evidence, its version of the Bourne cover letter with what

purports to be Bourne’s signature. Although that lawsuit was

ultimately settled, Bourne alleges that the town’s creation of a

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forged cover letter and its submission of that letter to the

superior court is evidence of the defendants’ conspiratorial

scheme.

Bourne’s proposed expert witness, Ronald Rice, intends to

testify on two separate topics. First, he will testify that the

town’s version of the cover letter contains a forgery of Bourne’s

signature. Second, he will testify that the computer generated

characters on the town’s version of the cover letter are

consistent with the computer generated letters on other documents

that are known to have been created by the town. The defendants

argue that the court should exclude Rice’s testimony because he

is not qualified as an expert on the relevant subjects and

because his methodology is unreliable.

Under Rule 702 of the Federal Rules of Evidence, the court

serves as a gatekeeper, “ensuring that an expert’s testimony both

rests on a reliable foundation and is relevant to the task at

hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597

(1993); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.

137, 147 (1999). The proponent of an expert witness bears the

burden of laying a foundation establishing that the witness is

qualified to give an expert opinion on the subject in question,

see 29 Charles A. Wright & Victor J. Gold, Federal Practice &

Procedure § 6265 & n.42 (1997) (citing Apostol v. United States,

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838 F.2d 595, 599 (1st Cir. 1988)), and that the expert’s

proposed testimony is relevant and reliable, see Ruiz-Troche v.

Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 85 (1st Cir.

1998). That said, so long as “an expert’s scientific testimony

rests upon ‘good grounds, based on what is known,’” Rule 702 does

“not require that [the proponent] carry the burden of proving to

the judge that the expert’s assessment of the situation is

correct.” Id. (quoting Daubert, 509 U.S. at 590). 

Expert testimony must be relevant “not only in the sense

that all evidence must be relevant, see Fed. R. Evid. 402, but

also in the incremental sense that the expert’s proposed opinion

. . . likely would assist the trier of fact to understand or

determine a fact in issue.” Ruiz-Troche, 161 F.3d at 81. Expert

testimony will be deemed reliable so long as “(1) the testimony

is based upon sufficient facts or data, (2) the testimony is the

product of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the facts of

the case.” Fed. R. Evid. 702. The Supreme Court has recognized

four indicia of reliability: (1) whether the expert’s theory can

or has been tested; (2) whether the theory has been the subject

of peer review; (3) whether the theory has been generally

accepted in the relevant scientific community or industry; and

(4) with respect to a particular technique, whether and to what

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extent there is a known or potential rate of error, and whether

there are standards controlling the operation of the technique. 

Daubert, 509 U.S. at 592-94. These non-exclusive factors “form

the basis for a flexible inquiry into the overall reliability of

a proffered expert’s methodology.” Ruiz-Troche, 161 F.3d at 81. 

It is the expert’s methodology, as opposed to his conclusions,

which “remains the central focus of a Daubert inquiry.” Id.

The defendants’ challenge to Rice’s qualifications are wellfounded. While Rice maintains that he is a qualified handwriting

expert, he has repeatedly conceded that he is not a document

examiner. See Rice Aff. ¶ 24; Rice Dep. 13:3-18, 45:14-46:5,

102:18-20, 104:2-8. An expert’s specialized knowledge on one

subject does not qualify him to testify on a different subject. 

See Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 18 (1st

Cir. 2001) (upholding the district court’s decision to limit an

expert to testifying only as to subjects within his knowledge and

experience). Bourne’s objection and surreply in opposition to

the defendants’ motion in limine does not provide any argument

concerning Rice’s qualifications to testify as to the origin of

the document containing the alleged forgery. The court therefore

finds that Rice is not qualified to testify on that topic. 

Although the court also has misgivings concerning Rice’s

qualifications as a handwriting expert, that question is closer. 

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The court will assume arguendo that Rice is qualified to testify

as to the authenticity of the signature on the town’s version of

the cover letter and proceed to consider Rice’s methodology.

Rice examined the questioned signature and the comparison

signatures (i.e., samples of “known” Bourne signatures) by

photocopying the original documents and enlarging them at

increments of 200 percent. He recopied and enlarged each

specimen until he arrived at a size suitable for examination. 

The defendants, through their own expert, Alan Robillard,

criticize this enlargement technique. Robillard states that

Rice’s method is flawed because it distorts the image by adding

photocopy toner to the resulting image and may change “the

spatial relationships within the image.” Robillard Aff. ¶ 9. 

Robillard further states that Rice’s methodology of enlargement

is “inconsistent with the accepted methodology among forensic

document examiners,” which is to view the original document

through the use of a microscope. Id. ¶¶ 7-9. According to

Robillard, one key aspect of handwriting comparison is to compare

the areas at which pen pressure is placed on a given letter. A

forensic document examiner determines where the pressure was

placed by examining which points of the letter are bolder or

fainter. The addition of photocopy toner can distort the

relative boldness and faintness in a handwriting specimen,

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3Bourne cites the 2005 printing of the handbook, but the

court was unable to locate that version. The court refers

instead to the 2006 printing.

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particularly when there have been multiple iterations of copying. 

Id. ¶¶ 12-13. 

 Bourne’s response to the defendants’ argument for exclusion

is not creditworthy. First, Bourne quotes a practitioners’

handbook for the proposition that it “is within the discretion of

the court to require a witness to point out upon enlarged

photographs the difference between the signatures in dispute and

those admitted to be genuine.” Pltf’s Obj. at 7 (quoting Robert

S. Hunter, Federal Trial Handbook: Civil § 50:3 (4th ed. 2006)

(emphasis added by plaintiff)).3 The above-quoted discussion,

however, appears to be directed at the permissible use of a

photocopy enlargement of a signature for demonstrative purposes

at trial; it says nothing about the permissible use of photocopy

enlargement for expert analysis of a signature. Further on, the

handbook states, “enlarged photographic copies . . . of a

signature in issue, are admissible in evidence for purposes of

comparison [only] when accompanied by competent preliminary proof

as to their accuracy and the circumstances under which they were

made.” Id. § 50:5 (emphasis added). Bourne has not established

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4Plaintiff’s counsel is cautioned that he has an obligation

to the court to characterize accurately any evidence he refers

to.

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that Rice’s photocopies are an “accurate, and truthful

representation of the writing in question.” Id. 

Second, Bourne misrepresents a passage in a manual

concerning forensic investigation published by the Federal Bureau

of Investigation. Bourne claims that “the F.B.I. itself

sanctions the use and analysis of photocopies in the examination

of questioned documents.” Pltf’s Obj. at 7 (quoting Colleen Wade

and Yvette E. Trozzi, Federal Bureau of Investigation, Handbook

of Forensic Services at 100 (2003)). But upon review of that

excerpt, it is plain that it concerns the extent to which a

particular photocopy can be traced to a particular photocopy

machine. The handbook says nothing about the use of photocopy

enlargements for handwriting comparison.4

Finally, Rice himself states that the “use of enlargements

by using a photocopier is a standard and acceptable procedure

within the profession.” Rice Aff. ¶ 42. The court finds Rice’s

testimony on this point not credible, and, in any event, Rice’s

“unadorned assertions” are insufficient to rebut the defendants’

challenge. Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311,

1319 (9th Cir. 1995). In sum, Bourne has not made a sufficient

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showing that Rice’s methodology for determining the authenticity

of the signature is reliable. Cf. United States v. Brien, 59

F.3d 274, 277 (1st Cir. 1995) (upholding district court’s

exclusion of expert testimony where the proponent of the

testimony failed to present underlying data in support of the

expert’s opinion); Daubert, 43 F.3d at 1316 (“[T]he party

presenting the expert must show that the expert’s findings are

based on sound science, and this will require some objective,

independent validation of the expert’s methodology.”).

Conclusion

The plaintiff’s motion to exclude evidence relating to a

domestic dispute (document no. 35) is granted. The defendants’

motions to exclude evidence relating to the town’s denial and

revocation of Bourne’s building permits, its denial of his

subdivision application, and its removal of his gates (document

no. 40), and to exclude evidence concerning disputes over the

maintenance of the Solomon Harmon Road (document no. 41) are

denied. The defendants’ motion to exclude the expert testimony

of Ronald Rice (document no. 42) is granted.

The parties have been involved in litigation over a

prolonged period of time and have consumed their own resources as

well as those of the state and federal courts. Once the state

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court has decided the recently tried case, the parties would be

well-advised to step back, reassess their relative situations,

and then make good faith efforts to resolve their disputes once

and for all. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 9, 2007

cc: Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

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