
USCA1 Opinion

	




          December 3, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1438                               KIMBERLY F. AND JOHN F.,                                Plaintiffs, Appellees,                                          v.                         MARY HITCHCOCK MEMORIAL HOSPITAL AND                               HITCHCOCK CLINICS, INC.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE               [Hon. Clarence C. Newcomer, Senior U.S. District Judge]*                                           __________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________               Bradford W. Kuster,  with whom Cordell A. Johnston,  and Orr               __________________             ___________________       ___          and Reno, P.A. were on brief for appellants.          ______________               Francis G. Murphy,  Jr., with whom Nixon, Hall  & Hess, P.A.               _______________________            _________________________          were on brief for appellees.                                 ____________________                                 ____________________          ____________________          *of the Eastern District of Pennsylvania, sitting by designation.                      BOWNES, Senior Circuit Judge.  This is an appeal by                      BOWNES, Senior Circuit Judge.                              ____________________            defendants-appellants, the  Mary Hitchcock  Memorial Hospital            and the  Hitchcock Clinic, Inc., from a  jury verdict finding            them  liable to  plaintiffs-appellees,  Kimberly F.  and  her            husband, John F., because of negligent care given Kimberly F.            while she  was  a  patient at  the  Mary  Hitchcock  Memorial            Hospital.   John F.'s suit was  for loss of  consortium.  We,            therefore,  treat the  plaintiffs  as  one.    The  Hitchcock            Clinic, Inc. is an incorporated association of physicians and            surgeons, some of  whom treated Kimberly F. while  she was at            the hospital.  Because of the nature of Kimberly F.'s injury,            it was agreed  that she and her husband  could use pseudonyms            to keep some degree of anonymity.                      Kimberly F. was admitted to the obstetrical unit of            the hospital on August  2, 1986.  She gave birth  to a son on            August 3.   The  child was full  term.   There were  no birth            complications, and she was discharged  on August 5.  One week            later, on August  13, Kimberly F. was diagnosed  as having an            outbreak  of genital  herpes.    She  subsequently  sued  the            defendants alleging that  she was infected with  herpes while            at the  hospital and  that defendants  negligently failed  to            protect her  from such infection.   Plaintiff also  brought a            count  for failure  to  obtain informed  consent.1   The jury                                            ____________________            1.  Plaintiff and her husband had moved from New Hampshire to            another   state  before  this   action,  based  on  diversity            jurisdiction, was brought.                                         -2-                                          2            found defendants not liable on  this count and there has been            no appeal from this finding.                      Defendants  raise three issues before us:  that, as            a  matter of  law, there  was insufficient  evidence for  the            jury's finding of  negligence; that testimony  was improperly            admitted;  and  that  the  closing  argument  of  plaintiff's            counsel on pain  and suffering was improper.   We discuss the            issues seriatim.                                          I.                                          I.                             SUFFICIENCY OF THE EVIDENCE                             SUFFICIENCY OF THE EVIDENCE                             ___________________________                      In ruling on an appeal  from the denial of a motion            for a  directed verdict, we  conduct a plenary review  of the            evidence.   Our  review of  the evidence  and all  reasonable            inferences  therefrom is made in the  light most favorable to            the non-moving party.   American Private Line  Services, Inc.                                    _____________________________________            v. Eastern Microwave, Inc., et al., 980 F.2d 33, 35 (1st Cir.               _______________________________            1992); Gallagher v.  Wilton Enterprises, Inc., 962  F.2d 120,                   _________     ________________________            124  (1st Cir.  1992).  The  denial of a  motion for judgment            n.o.v. is  also subject to  plenary review.  The  standard of            review  is whether the evidence and all reasonable inferences            therefrom  could  lead   a  reasonable  person  to   but  one            conclusion:  that the moving  party was entitled to judgment.            Pontarelli  v. Stone,  930  F.2d 104,  113  (1st Cir.  1991);            __________     _____            Hendricks  & Associates, Inc. v.  Daewoo Corp., 923 F.2d 209,            _____________________________     ____________            214 (1st Cir. 1991).   We have conducted the requisite review                                         -3-                                          3            and find that  the district court was correct  in denying the            motions for a directed verdict and judgment n.o.v.            A.  The Evidence            A.  The Evidence                ____________                      The  evidence viewed in the light most favorable to            plaintiff  was as  follows.   When  she was  admitted to  the            hospital on August 2, 1986, plaintiff had no prior history of            herpes.  When plaintiff was examined by  defendants on August            13,  she  was  diagnosed as  having  an  outbreak  of genital            herpes.  Such an outbreak  is characterized by lesions in the            infected  area.  The incubation period for a herpes infection            is two to twenty-six days.  Plaintiff entered the hospital on            August  2,  was  discharged  on  August  5,  and  the medical            diagnosis  of genital herpes was made on  August 13.  She was            well within the herpes incubation period.                      Genital herpes is a life-long affliction and, as is            true of  other types of  herpes, is incurable.   Outbreaks of            herpes, manifested by lesions and cold sores, occur from time            to  time during  the  victim's  life.   The  first attack  is            usually  the  most  severe.    The  genital  herpes  outbreak            diagnosed on August  13 was a primary  (first-ever) outbreak,            i.e.,  plaintiff never  had a herpes  outbreak prior  to this            ____            time.   Plaintiff's sexual history  was as follows.   She had            sexual  intercourse  twice  in high  school;  both  times her            partners used  condoms.   She married for  the first  time in            1981.  After her first child was born she was divorced.   The                                         -4-                                          4            divorce became final in  1982 or 1983.   She met her  present            husband in 1984.   She had no sexual relations with other men            between separating  from her  first husband  and meeting  her            present one.  Neither she nor her husband had ever engaged in            oral sex at any time.   Plaintiff's husband has never had any            herpes symptoms.                      When plaintiff  was first admitted to  the hospital            she was  put in a birthing  room that shared a  bathroom with            another  patient.   Plaintiff went  into  the bathroom  alone            because  no one  had  come  in response  to  her pushing  the            nurses' call button.  She felt dizzy and sat on the toilet to            avoid falling.  In  so doing, she sat on a  urine catch basin            that was in the  toilet bowl.  The basin contained urine from            the  other  patient.    As  her  labor  pains   increased  in            frequency, a nurse suggested a warm bath might help.  She was            taken  to a room  with a bathtub.   Both she  and her husband            noted that  the tub contained  some dead bugs.   There was an            open window with no screen.   Plaintiff's husband cleaned out            the tub and she took a bath.  During the birthing process, an            episiotomy  was done.   This  consists of  making a  surgical            incision  into the  perineum  and  vagina  so as  to  prevent            tearing  during delivery.  Prior to delivery, nurses examined            plaintiff internally to  see whether her cervix  had dilated.            Some of the  nurses did not wash  their hands in the  sink in            plaintiff's room before examining her.                                         -5-                                          5                      After  delivery,  plaintiff  experienced  pain  and            discomfort at the  site of the episiotomy.   Reusable plastic            ice packs were applied to ease her discomfort.  The ice packs            were wrapped in sterile green  surgical cloth.  At times, the            pack was placed  over plaintiff's vaginal area in  such a way            that the surgical  cloth did not completely cover the plastic            bag.  This resulted in direct contact between the site of the            episiotomy and  the plastic bag.   On the day  of plaintiff's            discharge  a nurse came  in and checked  plaintiff's perineal            area and  touched the  episiotomy site with  her hands.   The            nurse had not washed her hands, nor was she wearing gloves.                      On  July  31,   a  patient  was  admitted   to  the            obstetrics unit of  the hospital with a  herpes lesion behind            her right knee.   The patient was placed  on herpes isolation            precautions during all  of the time she was  at the hospital.            This  entailed  strict procedures  to  prevent  the patient's            herpes  infection from  spreading to  other  patients.   This            patient was discharged on the morning  of August 2; plaintiff            was admitted at 11:30 p.m. on August 2.                      A second patient  with herpes was in  the maternity            ward at the  same time as plaintiff.   This patient, "J.D.,"2            occupied the same room as  did plaintiff immediately prior to            plaintiff being put in  the room.   The records of J.D.  show                                            ____________________            2.  This  is the  case name  of the  patient, not  her actual            name.                                         -6-                                          6            that because she had had monthly episodes of herpes outbreaks            during her  pregnancy, she  was admitted  "at risk,"  and was            placed on herpes infection precautions.  A herpes culture was            taken from  J.D.'s right labial  lesion on July  28.  It  was            noted in  her records that  she was  at high risk  and herpes            infection precautions were  continued.  J.D. gave birth via a            Caesarean  section on  July 29.   Her  records show  that the            reasons for  the Caesarean  section were  that  the baby  was            breached and that J.D. was at risk  with herpes.  On July 30,            a  nurse's note  in J.D.'s  records stated  that she  had two            lesions on the left outer lower labia.   A subsequent note on            the same  day states that  J.D. continued to have  lesions on            the  left  lower labia.    There  is  nothing in  the  record            indicating that any culture was taken from the lesions on her            left lower labia.  The only culture taken was from the lesion            on  the right  labia.   The lab  report on  this culture  was            necessarily a preliminary one; it was negative for herpes.  A            negative  culture  report  on  herpes  normally  includes the            statement, "these  results  do  not  exclude  infection  with            herpes simplex virus."  This report did not so state.  On the            evening of August  2, the day that plaintiff  was admitted to            the  hospital,  J.D.  was transferred  to  the  second floor.            Later that  evening she told  a nurse that she  was concerned            about  the  fact that  she  was  still  on  herpes  infection            precautions.  The nurse, Linda Morgan, recorded  in her chart                                         -7-                                          7            that J.D. wanted to be taken off herpes infection precautions            and  that  she had  shown no  lesions  since July  29.   This            information was given  by telephone to  Dr. Ketterer and  the            same night, August 2,  he gave a verbal order  to remove J.D.            from herpes precautions.                        Nurse Morgan admitted during her testimony that she            did not  tell Dr. Ketterer  about the lesions on  J.D.'s left            labial area.  Dr. Ketterer admitted that his decision to take            J.D. off herpes infection precautions was based on incomplete            information.    About two  hours  after  J.D.  was taken  off            precautions, plaintiff  was admitted  to the  hospital.   She            spent  the next  eight hours  in  labor and  delivery on  the            second floor,  where J.D. was  also located.   Both plaintiff            and J.D. were  discharged from the hospital on  the same day,            August 5.                      Two nurses, J.W. and M.W., had herpes and worked in            the maternity  ward of  the hospital  while  plaintiff was  a            patient there.   J.W. had a  history of genital  herpes.  She            gave direct patient care to plaintiff, which included placing            ice  packs  on  her perineum  and  physically  examining her.            There  was no  direct  evidence  that  the other  nurse  with            herpes, M.W., had patient contact with plaintiff, but she was            present on the  maternity ward and available to  give care to            all of the patients in the ward.                                         -8-                                          8                      All of the doctors who testified agreed, in effect,            that it would be a violation of acceptable hospital infection            precautions for  a patient to  be infected by herpes  while a            hospital patient.                                         -9-                                          9            B.  Testimony of Plaintiff's Expert Witness            B.  Testimony of Plaintiff's Expert Witness                _______________________________________                      Appellants'  attack  on  the  sufficiency  of   the            evidence  focuses  on  the  testimony  of plaintiff's  expert            witness,  Dr. James  Kahn.   Their claim  is that  "no expert            witness identified any  act of negligence that  more probably            than  not caused  the infection."   Appellants'  Brief  at 9.            Both sides agree that New Hampshire law  controls this issue.            We   will  therefore  examine  New  Hampshire  law  and  rule            accordingly.                      In   Thorpe   v.   New  Hampshire   Department   of                           ______        ________________________________            Corrections, 575 A.2d 351, 353 (N.H. 1990), the court stated:            ___________            "The general rule  in medical malpractice  cases is that  the            proximate cause between the negligence and the injury must be            established  through   expert  testimony."    In   Martin  v.                                                               ______            Wentworth-Douglass Hospital,  536 A.2d 174, 176  (N.H. 1987),            ___________________________            the  court  held  that  expert  testimony  was  necessary  to            establish  the causal link  between the injury  complained of            and the health care  provider sought to be  held accountable,            and  "[t]he quantum of  such evidence necessary  to survive a            motion for nonsuit had to be enough to warrant the conclusion            of a reasonable juror that the causal link probably existed."            See  also Wilder  v. Eberhart,  977 F.2d  673, 676  (1st Cir.            ___  ____ ______     ________            1992).  In  Pillsbury-Flood v. Portsmouth Hospital,  512 A.2d                        _______________    ___________________            1126       (N.H.      1986),       the      court       held:                         In New  Hampshire, the plaintiff  in a                      medical  malpractice  action  must  prove                      that  the  defendant's  negligence caused                                         -10-                                          10                      the  patient's  injury   or  loss.    See                                                            ___                      Carrigan  v. Sacred  Heart Hospital,  104                      ___________________________________                      N.H. 73, 80, 178 A.2d 502, 506-07 (1962).                      "[N]egligent  conduct is  a proximate  or                      legal  cause  of  harm,  if  the  actor's                      conduct  is  a   'substantial  factor  in                      bringing about  the harm.'"   Maxfield v.                                                    ________                      Maxfield,  102  N.H. 101,  105,  151 A.2d                      ________                      226, 230  (1959) (quoting  Restatement of                      Torts   431(a)  (1934)).   This issue  is                      normally one for the trier of fact once a                      prima  facie case  is  established.   See                                                            ___                      id.;  W. Keeton, D. Dobbs, R. Keeton & D.                      ___                      Owen, Prosser  and Keeton on  the Law  of                      Torts     41,  at   269  (5th  ed.  1984)                      (hereinafter cited as Prosser & Keeton).            Id. at 1129.            ___                      We now turn to Dr.  Kahn's testimony.  There was no            objection to Dr. Kahn's expert qualifications in the field of            infectious diseases.   The crux of his testimony  came in the            answers  to a  series  of  questions.   Dr.  Kahn was  asked:            "Based on your review of all the information, do you  have an            opinion, based  on reasonable  medical  probabilities, as  to            whether  or not  Mrs. F.'s infection,  outbreak of  herpes in            August of 1986 was a primary infection?"  He answered:  "Yes,            I continue  to feel very  emphatically that it was  a primary            infection."   In prior testimony  Dr. Kahn had explained that            the  term  "primary  infection"  meant  a  first-ever  herpes            infection.   Dr.  Kahn  had explained  the  nature of  herpes            infections and how outbreaks of the disease are manifested.                      The  next question bearing  on the issue  was:  "Do            you   have   an   opinion,  based   on   reasonable   medical            probabilities, as  to whether  or  not the  hospital was  the                                         -11-                                          11            probable  source  of  --  general  source  of  Kimberly  F.'s            infection in  August of  1986?"  Dr.  Kahn answered  that the            infection  was  clearly   associated  with  the   plaintiff's            hospitalization.   The  following  question was  then  asked:            "What  were the  possible means  of  transmission within  the            hospital  that could have resulted  in her infection?"  There            was an  objection based  on the use  of the  word "possible;"            that "the plaintiffs' burden of proof is probabilities."  The            court  denied the  objection,  pointing  out  that  the  main            question  was premised  on reasonable  medical probabilities,            and these were the factors  the expert considered in arriving            at his  opinion.   Dr.  Kahn  was asked  again  to state  the            possible  sources  of  plaintiff's infection.    He answered:            "The likeliest, I  think, is another patient who  at the time            of your client's  hospitalization had what to all intents and            purposes sounded like a recurrent genital herpes outbreak and            in at  least one instance  shared a care  giver over  a short            period  of time."   This answer  was followed by  a series of            questions and answers:                      What is your understanding as to  whether                      or  not there  was any  potential patient                      source at the hospital?                      A.   My  understanding  from reading  the                      record is  that there  were two  patients                      that I'm aware of who had what was either                      diagnosed by  somebody else as  an active                      herpes   infection  or   to  my   reading                      certainly  compatible   with  an   active                      herpes infection.                                         -12-                                          12                      Q.   Were  both  those patients  possible                      sources?                      A.   Yes, I  think they're both  possible                      sources.                      Q.    Would   you  consider  health  care                      workers as possible sources?                      A.   Yes,  they're possible  sources too,                      yes.                      In  his  prior  testimony Dr.  Kahn  had  discussed            inanimate objects    called fomites    such as  toilet seats,            flat  surfaces  and  ice  packs,  as  potential  transmission            sources of herpes.   He was asked if he considered fomites as            a possible infection source.                         I  did.  I considered them, but my own                      judgment is that that's considerably less                      likely.  I know there was one instance in                      particular  -- I don't  know if it's been                      raised before so I don't know if I should                      mention  it -- well, I read it so I guess                      I can  mention there was some  talk about                      an ice pack applied to the perineum.                         My sense  of that was that even though                      the  ice pack could  have been wrapped in                      gauze and therefore,  could have held the                      virus in it, it was more consistent  with                      what we  know about  herpes transmission,                      that   it  was  the  hand  of  the  nurse                      applying the ice pack rather than the ice                      pack that  would have  been the  likelier                      source of transmission.                      Dr. Kahn was then asked:                           Having considered all of the potential                      sources of  infection, did you  arrive at                      one that was most likely in your mind?                      His answer was:                                         -13-                                          13                         I think  the likeliest  explanation is                      the patient who had  vaginal lesions with                      a  second  crop  on  the  left  labia,  I                      believe,  and was  taken care  of  at one                      point by  a  health care  giver who  very                      shortly  thereafter  took   care  of  Kim                      [plaintiff].                      Dr. Kahn  identified the patient  as J.D.   He then            testified that,  in  light  of the  fact  that  the  hospital            records showed that J.D. had left labial lesions that had not            been  cultured it  was  imprudent  to  take  her  off  herpes            infection precautions.  He testified:                         The probability or  the possibility of                      her having transmission  -- transmissible                      viruses  was  very  high  based  on   her                      history and her presentation.                      On cross-examination Dr.  Kahn was  asked, "Is  the            best you can  say is that  J.D. is a  possible source of  the            herpes  infection in  this case?"    Then came  the following            exchange:                      A.  Comparing her  to the other  patient,                      I'd say  very  possible.   But  again,  I                      can't  say  probable   or  with  definite                      certainty.      But   a   very   credible                      likelihood.                      Q.  So  the best you can say is possible,                      but you cannot say probable, correct?                      A.  Slightly high on the possible but not                      probable.  "Probable"  meaning certainty,                      high possible meaning that's my choice.                      To our knowledge,  no New  Hampshire case  requires            the  incantation of the word "probable" to establish probable                                         -14-                                          14            causation.   In  a case  involving  expert testimony  the New            Hampshire Supreme Court held:                      The possibility that  the blasting caused                      the damage could reasonably be found "the                      most  probable  possibility  disclosed by                      the  evidence,"  and  blasting  the  most                      probable cause.   Emery  v. Tilo  Roofing                                        _____     _____________                      Company, 89 N.H.  165, 167,  195 A.  409,                      _______                      and cases cited.            Crocker v. W.W.  Wyman, Inc., 110 A.2d 271,  274 (N.H. 1954).            _______    _________________            In Emery  v. Tilo Roofing  Company, 89  N.H. 165, 195  A. 409               _____     _____________________            (N.H. 1937), the issue was the cause of a fire to the roof of            a building.   Defendant  was hired to  re-roof the  building.            There  was  evidence  that  defendant's  employees  were seen            smoking  cigarettes  on  the roof  before  the  fire started.            There was no direct evidence that the fire had been caused by            a cigarette stub.   In upholding a verdict  for plaintiff the            court stated:                      That the fire  was caused by a  cigarette                      stub  was the  most probable  possibility                      disclosed by  the evidence  and we  think                      that the  jury were justified  in finding                      it  to  be more  probable  than otherwise                      that the  fire resulted from  this cause.                      Staples v. Railroad, 74 N.H. 499.  "It is                      _______    ________                      not a  case of  conjecture between  equal                      possibilities,    but     the    ordinary                      determination   of   a   conclusion  from                      inferences  supported  by  a  balance  of                      probabilities."   Saad v.  Papageorge, 82                                        ____     __________                      N.H. 294.  Not only was the conclusion of                      the  jury as  to the  cause  of the  fire                      proper  as a  direct  inference from  the                      testimony  but the  improbability of  any                      other  explanation  "as  an  exclusionary                      premise may serve to strengthen the force                      of the deduction."                                           -15-                                          15            Id. at 167.            ___                      In the  case before  us the  main defense  was that            plaintiff was infected with herpes before she was admitted to            the  hospital.   There  was  no direct  evidence  of such  an            infection.  As with the plaintiff's evidence, it  depended on            expert testimony.                      We  read Dr.  Kahn's  testimony  to  say  that  the            probable  cause of  the infection  was  one or  more acts  of            negligence  by the hospital,  and find that  this conclusion,            which  was rationally supported  and explained, is sufficient            to  establish  causation  even though  the  doctor  could not            identify  a single cause as the more-likely-than-not cause of            this infection.  It follows, therefore, that the jury verdict            that  the plaintiff was infected with  herpes while a patient            at  the Mary Hitchcock  Memorial Hospital is  unassailable on            causation grounds.                                         II.                                         II.                              THE ADMISSION OF TESTIMONY                              THE ADMISSION OF TESTIMONY                              __________________________                      Defendant's argument  on this  issue  is stated  as            follows:                      The Trial Court Abused Its Discretion By                      Allowing The Plaintiffs To Ask Nurse Watkins                      Whether She Had Investigated The Source Of                      Kimberly F.'s Infection                      A.   Mrs. Watkins's Testimony About Her                           Investigation on Behalf of the Infections                           Committee Was Precluded by the Express                           Terms of the Statute                                         -16-                                          16            Appellants' Brief at -i-.                      We have scoured the record and can find no question            by plaintiff's counsel on direct examination of Nurse Watkins            asking "whether she  had investigated the source  of Kimberly            F.'s [plaintiff's] infection."  Nor have we been able to find            any testimony  by Nurse  Watkins about  her investigation  on            behalf of the Infections Committee.                      Nurse  Watkins testified  that plaintiff's  husband            spoke  to  her  in  1986  about  the  source  of  plaintiff's            infection.    At  that  time  he was  employed  by  the  Mary            Hitchcock   Memorial   Hospital    as   an   echocardiography            technologist   and  knew   Nurse  Watkins  as   a  co-worker.            Plaintiff's   husband  knew   that  Nurse   Watkins'  special            responsibility was  infection  control  and  transmission  of            infectious  diseases.    According  to  Nurse  Watkins,  when            plaintiff's  husband spoke  to  her  he  had  three  specific            concerns:    the  use  of  ice  packs,  lack  of  cleanliness            generally  in  the hospital,  and the  dirty bathtub.   Nurse            Watkins said  she would look  into it.   She denied  that the            husband asked her "to inquire into a few things."   She never            informed the husband about anything bearing on the source  of            plaintiff's infection.   Nor did she tell him  that she would            make an investigation  for the hospital.  Most  of the direct            examination of Nurse Watkins by plaintiff's  counsel focussed            on the  infection control  procedures used  at the  hospital.                                         -17-                                          17            Nurse Watkins was  also asked questions about entries  in the            plaintiff's  hospital records by  the doctors and  nurses who            treated her.                      On   cross-examination  Nurse   Watkins  gave   the            following testimony:                       Q.   Given   your   job  as   [sic]   the                      hospital, as  nurse epidemiologist,  what                      do you generally do when a, a question of                      a hospital-acquired infection  is brought                      to you?                      A.   Well, it's my  job to look into  the                      circumstances of the  infection, with the                      primary   being  a   focus  to   identify                      practices  which  could  be  improved  to                      decrease the  risk of  similar infections                      in the future.                         I  also  had  the  responsibility  for                      educating   hospital    personnel   about                      infection risk and  transmission again so                      that  their  practice will  decrease  the                      risk of transmission.                      Q.   Now, did  you take those  steps when                      Mr.  F.  came to  you  and  suggested the                      problems he did?                      A.   Certainly   I   looked    into   the                      situation, yes.                      Q.   What did you conclude?            There was  an objection  by plaintiff's  counsel to  the last            question which was upheld on the ground that it was precluded            by N.H. Rev. Stat. Ann. ch. 151:13-a (1981).                      Before  we discuss the  scope of the  New Hampshire            statute we also  must point out  another serious omission  in            the record.  Defense counsel made no objection  to any of the                                         -18-                                          18            questions  pertinent  to  this  issue  asked  by  plaintiff's            counsel.  This  was a waiver of the issue under Fed. R. Evid.            103(a)(1).3   Nor is  this omission cured  because defendants            had  filed  a  motion  in  limine  at  the  start  of  trial.                                   __  ______            Objections  to questions must be made  when the questions are            asked.  We also  point out that there was not  even a general            objection to  the  line of  questioning, although  we do  not            suggest  that this  would have  been  sufficient to  preserve            defendants' rights.                      The  pertinent  provision   of  the  New  Hampshire            statute provides:                         II.  Records  of a hospital  committee                      organized to evaluate matters relating to                      the care  and treatment of patients or to                      reduce   morbidity   and   mortality  and                      testimony by  hospital trustees,  medical                      staff,  employees,  or   other  committee                      attendees relating  to activities  of the                      quality  assurance  committee   shall  be                      confidential and privileged  and shall be                      protected from  direct or  indirect means                      of discovery, subpoena, or admission into                                            ____________________            3.  Rule 103.  Rulings on Evidence                Rule 103.  Rulings on Evidence                        (a) Effect of  erroneous ruling.  Error                            Effect of  erroneous ruling.                      may not be predicated upon a ruling which                      admits  or  excludes  evidence  unless  a                      substantial   right  of   the  party   is                      affected, and                        (1)   Objection.  In case the ruling is                              Objection.                      one   admitting   evidence,    a   timely                      objection or motion to  strike appears of                      record,  stating the  specific ground  of                      objection, if the specific ground was not                      apparent from the context;                                         -19-                                          19                      evidence    in     any    judicial     or                      administrative proceeding, except that in                      the case of  a legal action brought  by a                      quality assurance committee  to revoke or                      restrict   a   physician's   license   or                      hospital  staff   privileges,  or   in  a                      proceeding alleging  repetitive malicious                      action   and   personal   injury  brought                      against   a   physician,   a  committee's                      records shall be discoverable.            N.H.  Rev. Stat.  Ann. ch.  151:13-a II.   The  New Hampshire            Supreme Court carefully  delineated the scope of  the statute            in a case that was the opening chapter to the case before us.            The parties were the same; the issue concerned only the scope            of the statute.  Justice Souter, then an associate justice of            the  New Hampshire Supreme  Court, wrote  the opinion,  In re                                                                    _____            "K", 561  A.2d 1063  (N.H.  1989).   In  the state  case  the            ___            evidence was clear  that Nurse Watkins made  an investigation            as to the source of plaintiff's infection, then made a report            to the  Infections Committee  and prepared  a written  report            which  was kept  in files  in  her own  office.   Plaintiff's            lawyer  requested the  hospital,  through  Nurse Watkins,  to            release  the  results  of the  investigation.    The hospital            refused,  claiming a  privilege under  N.H.  Rev. Stat.  Ann.            151:13-a.   Plaintiff  then brought  a  petition in  the  New            Hampshire Superior  Court seeking  a disclosure  order.   The            superior  court held  the privilege inapplicable  and ordered            disclosure  of Nurse Watkins' written report and the relevant            portion  of the  minutes  of the  meeting  of the  Infections            Committee  at which  Nurse  Watkins  made  her report.    The                                         -20-                                          20            hospital appealed.  Id. at 1065.  After a lengthy explanation                                ___            and  discussion of the legislation, the New Hampshire Supreme            Court  held that  the  minutes  of  the  Infection  Committee            meeting and Nurse Watkins' written report were insulated from            disclosure by the  New Hampshire statute.  Id. at  1065.  The                                                       ___            court also held:                         Once, however,  it is  understood that                      the  requisite  committee  structure  and                      quality review function  are present, our                      traditionally   limiting    approach   to                      privilege  claims  must   be  honored  by                      recognizing that  the privilege  does not                      go  beyond the  records of  testimony, as                      such, to which the statute refers.  As we                      observed  before,  a   quality  assurance                      committee's attention does  not place its                      subject  matter  beyond   the  bounds  of                      discovery  or  disclosure in  the  normal                      course; the privilege  is confined to the                      records  and testimony  described in  the                      statute.     See  N.H.S.   Jour.  1410-14                                   ___  ______________                      (1981).   Thus, the ordinary  record of a                      patient's treatment remains admissible as                      it always has been, even though a quality                      assurance committee may have studied that                      record and  issued a report based on data                      culled from  it.   And  a  physician  may                      still be  obligated to testify  about the                      course of a patient's case, and to render                      a   professional   evaluation    of   the                      treatment,   even   though    a   quality                      assurance  committee  may   already  have                      elicited the  same testimony on  the same                      subject   in  the   course  of   its  own                      proceedings.            Id. at 1070.            ___                      We  have  no   difficulty  finding  that  the   New            Hampshire  statute   was   not  implicated   by  the   direct            examination  of Nurse Watkins  in the  case at  bar.   It was                                         -21-                                          21            arguably  implicated  by defendants'  cross-examination,  but            that is not an issue before us.   It is incredible to us that            defendants would  misstate  in their  argument the  questions            asked and  the testimony  given, fail to  object at  trial to            questions and answers which they now claim led to a violation            of  the statute, deliberately implicate the statute on cross-            examination, and  still  appeal the  issue.   This  not  only            transcends  the  proper  limit   of  appellate  argument,  it            requires a good measure of "chutzpa."                                         -22-                                          22                                         III.                                         III.                                 THE CLOSING ARGUMENT                                 THE CLOSING ARGUMENT                                 ____________________                      At  the close of  his argument, plaintiff's counsel            stated:                         I gave a figure to you in the opening,                      that I  would suggest that  you seriously                      consider as  a full,  fair, adequate  and                      reasonable  compensation  for  what  they                      have  suffered, what  they are  suffering                      and  what they  will suffer.    And as  I                      promised you  then, I  will say  it again                      now.                         I  think I would suggest to you -- not                      I  think.  What I think doesn't count.  I                      would  suggest   to  you   that  on   the                      evidence,   one   million   five  hundred                      thousand  dollars  for Kimberly  and  one                      million five hundred thousand dollars for                      John is adequate, fair, full and complete                      compensation for their interests.                      In Davis  v. Browning-Ferris Industries,  Inc., 898                         _____     _________________________________            F.2d 836 (1st Cir.  1990), we held that, even  in a diversity            case, the question of whether the amount of the ad damnum can                                                            __ ______            be  disclosed  to the  jury  is  a  matter of  procedure  and            therefore federal law  applies.  Id. at  837.  We went  on to                                             ___            hold that such disclosure was improper.  Id. at 837-38.                                                     ___                      Inexplicably, both  parties addressed  the question            below   as  exclusively  one   of  New  Hampshire   law  and,            unfortunately, persuaded the district judge, a visiting judge            from Pennsylvania, that  New Hampshire law controlled.   Just            prior to final  argument defense counsel asked the court that            it preclude  plaintiff's counsel from  expressing his opinion                                         -23-                                          23            about  the dollar value  of the case  or referring to  the ad                                                                       __            damnum in  his argument.   Plaintiff's  counsel had,  without            ______            objection, stated the amount of the ad damnum in his opening.                                                __ ______            The  court therefore  asked:   "You  mean it's  all right  on            opening  statement  but  not on  closing?"    Defense counsel            stated:  "If  I knew  he was going  to say it  on opening,  I            would  have objected but  rather than my  saying anything and            object and make  a bigger deal about it, I  made the judgment            not to."  The judge stated,  after plaintiff's counsel argued            that under New  Hampshire law reference to the  ad damnum was                                                            __ ______            allowed:                           THE COURT:   Coming  from the  Common-                      wealth  of  Pennsylvania  my  ears  stood                      straight up  when I heard you mention the                      figures  in your  opening statement,  but                      hearing  no  objection   I  assumed  that                      probably   was  the   practice  in   this                      jurisdiction.            The court then asked plaintiff's  counsel to supply him  with            authority for his position.                      The  court's  observation illustrates  why  counsel            should object at  the time an incorrect statement  is made by            opposing counsel.   If an objection  had been made to  the ad                                                                       __            damnum disclosure in the opening, there would have been  time            ______            for some research  by the court and counsel  prior to closing            argument,  and it probably  would have been  ascertained that            there was a  First Circuit case that clearly  controlled.  As            it  was,  the  court  did  not  make  a  ruling  until  after                                         -24-                                          24            defendants'  argument.  It ruled that under New Hampshire law            the  ad  damnum could  be  disclosed  to  the jury  in  final                 __  ______            argument.                      We are faced, therefore, with a ruling based on the            wrong law.   This was  due primarily  to the neglect  of both            counsel.   We would think that  counsel would be aware of the            controlling First Circuit  cases by the time of  trial.  That            plain error was committed is clear, but it is also clear that            the error was harmless.   The ad damnum was in  the amount of                                          __ ______            one million  five hundred  dollars for each  plaintiff.   The            jury awarded  plaintiff one hundred  and twenty-five thousand            dollars  and  her   husband  twenty-five  thousand   dollars.            Clearly, the jury  paid scant attention to the  amount of the            ad damnum.   Under  the circumstances, there  is no  point in            __ ______            sending the case back for a new trial.                                      CONCLUSION                                      CONCLUSION                                      __________                      The judgment  below  is affirmed.    Appellees  are                      The judgment  below  is affirmed.    Appellees  are                      ___________________________________________________            awarded costs of appeal.              awarded costs of appeal.            ________________________                                         -25-                                          25
