Alaska

New Hampshire

Expert Testimony Admissibility

Spoliation Cause of Action

SOL

Statute of Limitations (NEW HAMPSHIRE)

Personal Injury - 3 yrs.* [N.H. Rev. Stat. § 508:4]

Wrongful Death - 3 yrs.* [N.H. Rev. Stat. § 508:4](a separate 6-yr. statute exists in § 556:11, but it is “subject to the provisions of § 508”]

Property Damage - 3 yrs.* [N.H. Rev. Stat. § 508:4]

Contracts (Written and Oral) - 3 yrs. [N.H. Rev. Stat. § 508:4]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. [N.H. Rev. Stat. § 382-A:2-725]

*When the injury and its causal relationship to the act/omission were not discovered and could not reasonably have been discovered, the statute of limitations begins to run from the time of discovery [N.H. Rev. Stat. § 508:4]

Statute of Repose (Products) (NEW HAMPSHIRE)

None (declared unconstitutional).

Admissibility of Expert Testimony (NEW HAMPSHIRE)

The Daubert standard is used to interpret NH Rules of Evidence. Emphasis placed on four factors: (1) whether a theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular technique; and (4) the Frye “general acceptance” test [Baker Valley Lumber v. Ingersoll-Rand Co., 813 A.2d 409 (N.H. 2002)].

Causes of Action (NEW HAMPSHIRE)

Strict Liability – New Hampshire has adopted Rest. (2nd) of Torts, 402A. One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm thereby caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user without substantial change in the condition in which it is sold [Buttrick v. Arthur Lessard & Sons, 260 A.2d 111 (N.H. 1969)].

Negligence – Basic negligence principles of foreseeability and fault in the supplier context apply [Buckingham v. R. J. Reynolds Tobacco Co., 713 A.2d 381 (N.H. 1998)]. For a plaintiff to successfully maintain a products liability claim, based upon the negligent actions of the defendant, the plaintiff must demonstrate all that is required to prove the underlying negligence action [Palmer v. Nan King Rest., 798 A.2d 583, 585 (N.H. 2002)].

Breach of Warranty – New Hampshire has adopted the standard UCC express warranty [N.H. Rev. Stat. § 382-A:2-313]; implied warranty of merchantability [N.H. Rev. Stat. § 382-A:2-314]; implied warranty of fitness for particular purpose [N.H. Rev. Stat. § 382-A:2-315]. Lack of privity is not a defense in any action brought against the manufacturer, seller or supplier of goods to recover damages for breach of warranty, express or implied, or for negligence, even though the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods [N.H. Rev. Stat. § 382-A:2-318].

Definition of “Defect” (NEW HAMPSHIRE)

To determine whether a product is unreasonably dangerous, a product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Whether a product is unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer is determined by the jury using a risk-utility balancing test [Vautour v. Body Masters Sports Indus., 784 A.2d 1178 (N.H. 2001)].

A product is defectively designed when it is manufactured in conformity with the intended design but the design itself poses unreasonable dangers to consumers [Vautour v. Body Masters Sports Indus., 784 A.2d 1178 (N.H. 2001)]

Liability of Sellers (NEW HAMPSHIRE)

Sellers are strictly liable [McLaughlin v. Sears, Roebuck & Co., 281 A.2d 587 (N.H. 1971)]. Lessors are most likely liable as well [Brescia v. Great Rd. Realty Tr., 373 A.2d 1310 (N.H. 1977)]. For liability to apply, said persons must be engaged in the business of selling such product.

Defenses (NEW HAMPSHIRE)

Comparative Negligence – New Hampshire follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [N.H. Rev. Stat. § 507:7-d]. Applies to cases based on strict liability and implied warranty of merchantability [Union Mut. Fire Ins. v. Hamilton Beach/Proctor-Silex, Inc., 2006 U.S. Dist. LEXIS 92829 (D.N.H. 2006)]. However, in strict liability cases, the focus is on comparative causation (as opposed to comparative fault) [Id.; Thibault v. Sears, Roebuck & Co., 395 A.2d 843 (N.H. 1978)].

Assumption of Risk – Supplanted by the doctrine of comparative fault [Bazazi v. Michaud, 856 F. Supp. 33 (D.N.H. 1994)].

Product Misuse – Product misuse is included in the “plaintiff's misconduct” classification and relates to the comparative fault analysis [Reid v. Spadone Mach. Co., 404 A.2d 1094 (N.H. 1979)].

Product Alteration/Modification – A product may be altered from its foreseeable use to such a degree as to absolve the manufacturer of liability. But these are questions of fact [Heath v. Sears, Roebuck & Co., 464 A.2d 288 (N.H. 1983)].

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEW HAMPSHIRE)

There is virtually no case law addressing ELD.

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEW HAMPSHIRE)

A plaintiff may adduce proof of facts and circumstances warranting the conclusion that the product was defective. While mere injury is insufficient to prove liability, when a plaintiff cannot identify the specific defect, product defect may be proven through circumstantial evidence of malfunction and a lack of evidence of other causes [McConchie v. Samsung Elecs. Am., 2000 U.S. Dist. LEXIS 12171 (D.N.H. 2000)].

Design Defects (NEW HAMPSHIRE)

To prevail on a defective design products liability claim, a plaintiff must prove the following four elements: (1) the design of the product created a defective condition unreasonably dangerous to the user; (2) the condition existed when the product was sold by a seller in the business of selling such products; (3) the use of the product was reasonably foreseeable by the manufacturer; and (4) the condition caused injury to the user or the user's property [Vautour v. Body Masters Sports Indus., 784 A.2d 1178 (N.H. 2001)].

Under a risk-utility approach, a product is defective as designed if the magnitude of the danger outweighs the utility of the product. The risk-utility test requires a multifaceted balancing process involving evaluation of many conflicting factors. In order to determine whether the risks outweigh the benefits of the product design, a jury must evaluate many possible factors including: (1) the usefulness and desirability of the product to the public as a whole; (2) whether the risk of danger could have been reduced without significantly affecting either the product's effectiveness or manufacturing cost; and (3) the presence and efficacy of a warning to avoid an unreasonable risk of harm from hidden dangers or from foreseeable uses. Reasonableness, foreseeability, utility, and similar factors are questions of fact for the jury [Vautour v. Body Masters Sports Indus., 784 A.2d 1178 (N.H. 2001)].

In the context of a products liability claim, the plaintiffs’ burden is to present evidence regarding the risk-utility factors; they do not have the duty of proving a safer, alternative design [Vautour v. Body Masters Sports Indus., 784 A.2d 1178 (N.H. 2001)].

Failure to Warn (NEW HAMPSHIRE)

When an inherent risk in a product is not apparent, the user must be adequately and understandably warned of concealed dangers. However, manufacturers cannot foresee and warn of all absurd and dangerous uses of their product. The duty to warn is concomitant with the general duty of the manufacturer, which is limited to foreseeing the probable results of the normal use of a product or a use that can reasonably be anticipated. At the same time, when an unreasonable danger could have been eliminated without excessive cost or loss of product efficiency, liability may attach even though the danger was obvious or there was adequate warning [Thibault v. Sears, Roebuck & Co., 395 A.2d 843 (N.H. 1978)].

New Hampshire has not adopted the “read and heed” presumption (under such presumption, where warning is given, the seller may reasonably assume that it will be read and heeded) [Wilson v. Bradlees of New Eng., Inc., 250 F.3d 10 (1st Cir. 2001)].

Independent Cause of Action for Evidence Spoliation (NEW HAMPSHIRE)

New Hampshire has not yet decided whether it is willing to recognize a separate tort for evidence spoliation [Rodriguez v. Webb, 680 A.2d 604 (N.H. 1996)]

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