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                   THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2016-0692


                              BRANDON STACHULSKI

                                         v.

                            APPLE NEW ENGLAND, LLC

                            Argued: November 14, 2017
                           Opinion Issued: July 18, 2018

      Backus, Meyer & Branch, LLP, of Manchester (BJ Branch on the brief
and orally), for the plaintiff.


      Bonner Kiernan Trebach & Crociata, LLP, of Boston, Massachusetts
(Kenneth H. Naide, John A. Kiernan, and Andrew Butz, on the brief, and Mr.
Kiernan orally), for the defendant.


      HANTZ MARCONI, J. The plaintiff, Brandon Stachulski, brought suit
against the defendant, Apple New England, LLC, under a theory of strict
products liability alleging that he contracted salmonella by eating a hamburger
at the defendant’s restaurant, Applebee’s Neighborhood Bar and Grill, where he
dined with his wife and brother-in-law in February 2014. The defendant
disputed the allegation that the hamburger was the source of the plaintiff’s
salmonella illness and asserted that the plaintiff’s pet lizard or other food
sources could just as likely be the cause of his illness. Following a three-day
trial in Superior Court (Schulman, J.), the jury returned a general verdict in
the plaintiff’s favor, awarding him $750,000 in damages.

      On appeal, the defendant argues that the trial court erred by: (1)
admitting unfairly prejudicial evidence; (2) admitting the plaintiff’s expert’s
testimony; (3) submitting the issue of causation to the jury; (4) instructing the
jury on awarding hedonic and future pain and suffering damages; (5)
permitting the plaintiff’s counsel to make certain statements during his
opening and closing arguments; and (6) denying its request for remittitur. We
affirm.

      The defendant first argues that the trial court erred in admitting unfairly
prejudicial testimony. Prior to trial, the defendant moved in limine to exclude
the plaintiff’s testimony about his belated offer to test the lizard for salmonella.
We construe the defendant’s argument as being a challenge to the trial court’s
denial of its motion in limine. “Because the trial court ruled upon the
admissibility of the challenged evidence before trial, we consider only the offers
of proof presented at the pretrial hearing.” State v. Gordon, 161 N.H. 410, 414
(2011).

       As the appealing party, the defendant has the burden of providing a
record sufficient to decide its issues on appeal. See Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004). Although the defendant provided its motion
in limine to exclude this testimony, it has failed to provide any evidence
regarding the basis for the trial court’s denial. Absent a complete record, we
must assume that the evidence was sufficient to support the result reached by
the trial court. See id. Thus, we cannot conclude that it was an unsustainable
exercise of discretion for the trial court to deny the defendant’s motion in
limine.

       The defendant next argues that the trial court committed an
unsustainable exercise of discretion in allowing the plaintiff’s expert, Seth D.
Rosenbaum, M.D., to testify. The defendant contends that Dr. Rosenbaum’s
testimony was not “based upon sufficient facts” or “the product of reliable
principles and methods,” and therefore “resulted from failure to apply accepted
principles and methods reliably to adequate facts.” Prior to trial, the defendant
moved in limine to exclude Rosenbaum’s testimony and the court held a
hearing to determine its admissibility. Because we construe the defendant’s
appellate argument regarding the admissibility of Rosenbaum’s testimony as a
challenge to the trial court’s denial of its motion in limine, “we consider only
the offers of proof presented at the pretrial hearing.” Gordon, 161 N.H. at 414.

      Rule 702 authorizes the trial court to admit expert witness testimony.
See N.H. R. Ev. 702. To be admissible, however, expert testimony must rise to
a threshold level of reliability. Osman v. Lin, 169 N.H. 329, 335 (2016). To
determine the reliability of expert testimony, the trial court must comply with


                                         2
RSA 516:29-a (2007). Id. Portions of RSA 516:29-a codify principles outlined
by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 592-95 (1993). Id.; see also Baker Valley
Lumber v. Ingersoll-Rand, 148 N.H. 609, 614 (2002) (applying the Daubert
framework to evaluate the reliability of expert testimony under Rule 702).

      RSA 516:29-a provides:

      I. A witness shall not be allowed to offer expert testimony unless
      the court finds:

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

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

          (c) The witness has applied the principles and methods reliably
      to the facts of the case.

      II. (a) In evaluating the basis for proffered expert testimony, the
      court shall consider, if appropriate to the circumstances, whether
      the expert’s opinions were supported by theories or techniques
      that:

            (1) Have been or can be tested;

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

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

             (4) Are generally accepted in the appropriate scientific
      literature.

         (b) In making its findings, the court may consider other factors
      specific to the proffered testimony.

“The trial court functions only as a gatekeeper, ensuring a methodology’s
reliability before permitting the fact-finder to determine the weight and
credibility to be afforded an expert’s testimony.” Baker Valley Lumber, 148
N.H. at 616. Although the proponent of an expert witness bears the burden of
proving the admissibility of the expert’s testimony, see State v. Newman, 148
N.H. 287, 291 (2002), the burden is not especially onerous because “Rule 702
has been interpreted liberally in favor of the admission of expert testimony.”
Levin v. Dalva Bros., Inc., 459 F.3d 68, 78 (1st Cir. 2006); see also Bartlett v.
Mutual Pharmaceutical Co., 742 F. Supp. 2d 182, 187 (D.N.H. 2010). “Thus,
as long as an expert’s scientific testimony rests upon good grounds, it should


                                        3
be tested by the adversary process — competing expert testimony and active
cross-examination — rather than excluded from juror’s scrutiny for fear that
they will not grasp its complexities or satisfactorily weigh its inadequacies.”
Osman, 169 N.H. at 335 (quotation omitted).

      On appeal, we review the trial court’s decision to admit Rosenbaum’s
testimony under our unsustainable exercise of discretion standard. See id. at
336. “In applying our unsustainable exercise of discretion standard of review,
we determine only whether the record establishes an objective basis sufficient
to sustain the discretionary judgment made.” Id. (quotation omitted). “Under
our unsustainable exercise of discretion standard, our task is not to determine
whether we would have found differently, but only to determine whether a
reasonable person could have reached the same decision as the trial court on
the basis of the evidence before it.” Id. (quotation and brackets omitted).

       We first review whether Rosenbaum’s testimony was “based upon
sufficient facts or data.” RSA 516:29-a, I(a). Rosenbaum relied upon the
following facts when formulating his opinion, to a reasonable degree of medical
certainty, that the plaintiff contracted salmonella from the defendant-
restaurant’s hamburger: (1) the plaintiff’s medical records recounted his
diagnosis of non-typhodial salmonella, which is typically food-borne; (2) the
plaintiff owned a pet lizard, with whom his wife and daughter also had contact,
yet neither became ill; (3) the plaintiff’s brother-in-law also ate a hamburger at
the defendant’s restaurant and suffered similar gastrointestinal symptoms; (4)
the plaintiff prepared the meals that he and his wife ate from home, yet his wife
did not become ill; (5) the plaintiff’s wife has celiac disease, making her more
prone to contract salmonella and other infections; and (6) the plaintiff
presented symptoms within the six to 72 hour incubation, or “look-back,”
period for salmonella following his meal at the defendant’s restaurant. Based
upon the pretrial record before us, including Rosenbaum’s deposition and
report and the pretrial hearing transcript, we cannot conclude that the court
unsustainably exercised its discretion in finding that Rosenbaum’s testimony
was based upon sufficient facts.

       We next review whether Rosenbaum’s testimony was the “product of
reliable principles and methods,” RSA 516:29-a, I(b), and whether he “applied
the principles and methods reliably to the facts,” RSA 516:29-a, I(c). On
appeal, the defendant argues, as it did at the motion in limine hearing, that
Rosenbaum failed to lay a proper foundation and exercise the appropriate
methodology, and therefore, his opinion was unscientific and should have been
excluded. The plaintiff counters that both Rosenbaum and the defendant’s
expert, Sigal Yawetz, M.D., considered the same facts, but reached different
conclusions, and thus Rosenbaum’s opinion was scientifically valid.

      Before his pretrial deposition, Rosenbaum reviewed the plaintiff’s medical
records and the depositions of the plaintiff, his wife, and his brother-in-law.


                                        4
During his deposition, Rosenbaum testified about his experience and
qualifications as an infectious disease physician and explained the typical
symptoms of salmonella. Using his expertise, Rosenbaum discussed and
considered the above mentioned facts, eliminated potential causes, and
concluded that the hamburger from the defendant’s restaurant was, more
likely than not, the cause of the plaintiff’s salmonella illness. See Westberry v.
Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999) (differential etiology
reached “by determining the possible causes for the patient’s symptoms and
then eliminating each of these potential causes until reaching one that cannot
be ruled out or determining which of those that cannot be excluded is the most
likely”); see also Goudreault v. Kleeman, 158 N.H. 236, 247-48 (2009)
(recognizing differential etiology as reliable methodology in medical diagnosis
and causation cases).

       Though the defendant contends, on appeal, that “the only principles and
methods that have previously been tested, subjected to peer review, with
known or potential error rates, and generally accepted in the scientific
literature are the methods used for public health purposes,” the defendant has
failed to demonstrate how Rosenbaum’s methodology “was so altered by a
deficient application as to skew the methodology itself,” Osman, 169 N.H. at
336. Moreover, the trial court found that Dr. Yawetz did not present a more
reliable or preferred methodology. The methodology now proposed by the
defendant does not render Rosenbaum’s methodology deficient, nor does it
demonstrate that Rosenbaum’s testimony does not rest upon good grounds.
See id. at 335-36. As the gatekeeper, the trial court has the discretion to admit
expert testimony that it finds reliable, which will then be tested by competing
expert testimony and cross-examination. See id. at 335. Therefore, because
the defendant has failed to demonstrate that Rosenbaum’s methodology is
unreliable, we cannot conclude that the trial court committed an
unsustainable exercise of discretion by admitting Rosenbaum’s expert
testimony.

       The defendant also argues that Rosenbaum lacked an adequate
foundation to testify that someone with celiac disease, like the plaintiff’s wife,
would be more susceptible to a salmonella illness than someone without such
condition, and therefore, such testimony was “highly prejudicial.” We disagree.
Rosenbaum’s testimony explained that he considered the fact that the
plaintiff’s wife did not contract salmonella, though she has celiac disease, to
decrease the likelihood that the salmonella originated from a source within the
home. Moreover, Rosenbaum’s deposition testimony recognized that he could
not quantify how much more likely someone with celiac disease would be to
contract salmonella than someone without such illness. The trial court found
that this admission reduced any unfair prejudice. See N.H. R. Ev. 403. We
agree. To the extent that there were gaps in Rosenbaum’s explanation
regarding celiac disease, these omissions “go to the weight to be accorded the
opinion evidence, and not to its admissibility.” Goudreault, 158 N.H. at 248


                                        5
(quotation omitted). Therefore, we cannot conclude that the trial court’s
admission of this testimony was an unsustainable exercise of discretion.

        Next, the defendant argues that there was insufficient causation evidence
to prove that: (1) the hamburger from the defendant’s restaurant caused the
plaintiff’s salmonella; (2) the salmonella would cause the plaintiff future pain
and suffering; and (3) the salmonella caused the plaintiff to suffer hedonic
damages. Under the doctrine of strict products liability, “[o]ne who sells any
product in a defective condition unreasonably dangerous to the user or
consumer . . . is subject to liability for physical harm thereby caused to the
ultimate user or consumer.” Kelleher v. Marvin Lumber & Cedar Co., 152 N.H.
813, 831 (2005) (quotation omitted). Causation is a necessary element in strict
liability actions. See Trull v. Volkswagen of America, 145 N.H. 259, 264 (2000).
A defective or unreasonably dangerous product is a “proximate cause if it is a
substantial factor in bringing about the harm, and if the harm would not have
occurred without that conduct.” Id. (quotation omitted). The plaintiff bears the
burden of proving that the defendant’s sale of the defective product was a
proximate cause of his injury, illness, or harm. See id. Proximate cause is a
question for the trier of fact. Carignan v. N.H. Int’l Speedway, 151 N.H. 409,
414 (2004).

      We first address the defendant’s argument that there was insufficient
evidence to prove that the hamburger caused the plaintiff’s salmonella illness.
The defendant asserts that the trial court erred when it submitted the case to
the jury and thereafter denied its motion for judgment notwithstanding the
verdict (JNOV). We disagree.

      “A party is entitled to JNOV only when the sole reasonable inference that
may be drawn from the evidence, which must be viewed in the light most
favorable to the non-moving party, is so overwhelmingly in favor of the moving
party that no contrary verdict could stand.” Halifax-American Energy Co. v.
Provider Power, LLC, 170 N.H. ___, ___ (decided Feb. 9, 2018) (slip op. at 4).
We review motions for JNOV de novo. Id.

       At trial, the plaintiff submitted sufficient evidence for a reasonable jury to
conclude that the defendant-restaurant’s hamburger was, more likely than not,
the proximate cause of the plaintiff’s salmonella illness. In addition to
Rosenbaum’s testimony detailed above, the jury heard the following evidence:
the plaintiff and his brother-in-law each ate a well-done hamburger at the
defendant’s restaurant around 8:00 p.m. on Monday, February 17, 2014; the
plaintiff became violently ill at approximately 2:45 a.m. on Tuesday morning,
within the six to 72-hour look-back period for salmonella; and on February 22,
2014, the plaintiff was diagnosed with salmonella. The defendant challenged
the plaintiff’s causation evidence with its own expert’s testimony.




                                         6
       Though the causation evidence adduced at trial was conflicting, several
reasonable inferences could be drawn from such evidence, including that the
defendant-restaurant’s hamburger was the cause of the plaintiff’s salmonella
illness. Thus, the trial court did not err by denying the defendant’s motion for
JNOV on the issue of liability.

       We now turn to the defendant’s argument that there was insufficient
evidence to prove that the plaintiff’s salmonella illness would cause him future
pain and suffering. The defendant contends that, in order to submit to the jury
the issue of future pain and suffering damages, the plaintiff needed to prove,
through expert testimony, that he would experience future pain and suffering as
a result of his salmonella illness. The defendant claims that, without such expert
testimony, the trial court erred when it denied its motion for directed verdict and
submitted the issue of future pain and suffering damages to the jury. The
plaintiff counters that the ample medical records submitted to the jury, in
conjunction with the plaintiff’s testimony and Rosenbaum’s expert opinion that
“up to one-third of individuals have prolonged gastrointestinal complaints after
salmonella,” were sufficient to prove the plaintiff’s future pain and suffering and
to allow jury instruction on such. We agree with the plaintiff.

       “A trial court may grant a motion for a directed verdict only if it
determines, after considering the evidence and construing all inferences
therefrom most favorably to the non-moving party, that no rational juror could
conclude that the non-moving party is entitled to any relief.” Conrad v. N.H.
Dep’t of Safety, 167 N.H. 59, 70 (2014) (quotation omitted). “The court may not
weigh the evidence or judge the credibility of witnesses and should deny the
motion for a directed verdict unless it can affirmatively determine that the
plaintiff is not entitled to any relief on the evidence presented.” Id. (quotation
omitted). Because motions for directed verdict relate to the sufficiency of the
evidence, they present questions of law which we review de novo. See Halifax,
170 N.H. at ___ (slip op. at 4).

       It is well settled in New Hampshire law that “there can be no recovery for
future damages unless there is evidence from which it can be found to be more
probable than not that they will occur.” Jolicoeur v. Conrad, 106 N.H. 496,
498 (1965). Future damages “are not to include any award for pain and
suffering the experiencing of which by the plaintiff is merely possible,
conjectural or speculative.” Dunham v. Stone, 96 N.H. 138, 140-41 (1950).

       To determine whether expert testimony is required, we must determine
whether this issue — whether the plaintiff’s pain and suffering from salmonella
“will continue into the future” — is “within the realm of common knowledge
and everyday experience” of the average layman, Laramie v. Stone, 160 N.H.
419, 427 (2010), or whether an expert opinion is needed to “preclude the jury
from engaging in idle speculation,” Estate of Joshua T. v. State, 150 N.H. 405,
408 (2003) (quotation omitted). “Lay testimony is probative on the issue of


                                        7
physical injury and the cause of that injury only if the cause and effect are so
immediate, direct and natural to common experience as to obviate any need for
an expert medical opinion.” Reed v. County of Hillsborough, 148 N.H. 590, 591
(2002) (quotation omitted). Expert testimony is required “if any inference of the
requisite causal link must depend on observation and analysis outside the
common experience of jurors.” Id. (quotation omitted).

       Here, the plaintiff submitted medical records to the jury. The defendant
did not object to the admission of more than 700 pages of medical records, nor
did it request a limiting instruction. The records characterize the plaintiff’s
ongoing gastrointestinal symptoms as “most likely post-infectious . . . due to
the salmonella.” See, e.g., Bailey v. Cataldo Ambulance Service, Inc., 832
N.E.2d 12, 18 (Mass. App. Ct. 2005) (holding medical records contain sufficient
expert opinion evidence on causation). Moreover, the jury heard the expert
testimony of Rosenbaum, who opined that “up to one-third of individuals have
prolonged gastrointestinal complaints after salmonella.” This expert testimony
assisted the jury in its decision regarding whether the plaintiff’s salmonella
illness would, more probably than not, cause him to suffer future pain. Reed,
148 N.H. at 591.

       The plaintiff also testified that, more than two years after his salmonella
illness, he continues to work with physicians and a nutritionist to treat and
manage his ongoing gastrointestinal symptoms, as evidenced by the medical
records. He explained that there are foods and beverages, including alcohol,
that he can no longer consume without a potential “flare up,” which prevents
him from enjoying time with friends. He ceased consumption of sugar, beef,
caffeine, and carbonated beverages and decreased his intake of fruits and
vegetables. He spoke about the prescriptions he takes on an ongoing basis to
control his symptoms and also explained some of the side effects of those
medications. The plaintiff’s lay testimony recounting his continuous
gastrointestinal symptoms since his salmonella diagnosis was “probative on the
issue of physical injury and the cause of that injury.” Id.

       To the extent that the defendant argues that there was insufficient
evidence that the salmonella caused the plaintiff’s delayed-onset patchy colitis,
we find such evidence to be unnecessary. The jury was not instructed that it
needed to find that the plaintiff suffered from patchy colitis, or that the patchy
colitis was caused by his salmonella illness. Moreover, the jury returned a
general verdict that did not specify the allocation of the damages award. The
jury had sufficient evidence, from testimony and medical records, to conclude
that the plaintiff suffered, and would continue to suffer, pain and residual
symptoms from his salmonella illness.

       Based upon our review of the record — including the expert testimony of
Rosenbaum, the medical records, and the plaintiff’s testimony — viewed in the
light most favorable to the plaintiff, we conclude that the plaintiff produced


                                        8
sufficient evidence from which reasonable jurors could find that the salmonella
was the cause of his ongoing gastrointestinal symptoms, and more likely than
not, they will continue in the future. We recognize that it would not have been
unreasonable for the jury to conclude otherwise. Under these circumstances,
however, the inferences that may be drawn from the evidence are not “so
overwhelmingly in favor of the [defendant] that no contrary verdict could
stand,” Halifax, 170 N.H. at ___ (slip op. at 4), and we will not endeavor “to
reweigh the evidence and set aside the jury verdict merely because the jury
could have drawn different inferences or conclusions or because we feel that
other results are more reasonable,” Bronson v. Hitchcock Clinic, 140 N.H. 798,
804 (1996) (quotation and brackets omitted). “Under our jury system,
reasonably disputable issues of fact are to be resolved by the jury.” Id.
(quotation omitted). We find no error in the trial court’s denial of the
defendant’s motion for directed verdict on the issue of whether the plaintiff
would likely sustain future pain and suffering and in the court’s submission of
that damages issue to the jury.

      The defendant also argues that the plaintiff failed to introduce expert
testimony regarding permanent impairment sufficient to submit the question of
hedonic damages to the jury, and thus the trial court erred in denying its
motion for directed verdict on that issue. Because we decline to condition
hedonic damages on proof of a permanent impairment, we need not consider
whether expert testimony is necessary to establish permanency.

       In Bennett v. Lembo, 145 N.H. 276 (2000), we left for another day the
question of whether hedonic damages are available for alleged non-permanent
impairments. Bennett, 145 N.H. at 281. We recognized that hedonic damages,
or loss of enjoyment of life damages, “compensate a plaintiff for the lost ability
to engage in activities that once brought pleasure.” Id. “The inability to engage
in certain activities is the natural result of the incapacity that an impairment
award is designed to compensate.” Id. Courts in other jurisdictions have
explained that hedonic damages are designed to include compensation for the
plaintiff’s inability to perform or engage in his or her “usual specific activities
which had given pleasure to this particular plaintiff, such as playing golf,
dancing, bowling, playing musical instruments, and engaging in specific
outdoor sports.” E.g., Ramos v. Kuzas, 600 N.E.2d 241, 243 (Ohio 1992). We
see nothing in the Bennett rationale that would require plaintiffs to suffer a
permanent loss of enjoyment of life in order to sustain an award of hedonic
damages. Accordingly, we hold that hedonic damages are available to
compensate plaintiffs for the temporary or permanent inability to engage in
such pleasurable aspects of life. See Smith v. City of Evanston, 631 N.E.2d
1269, 1279 (Ill. App. Ct. 1994) (instructing jury on loss of enjoyment of life
damages when plaintiff suffers “temporary or permanent inability to pursue the
pleasurable aspects of life”).




                                        9
        Here, the jury could reasonably have found that the plaintiff was limited
in his activities. At trial, the plaintiff testified that his gastrointestinal
symptoms continue to interrupt and restrict his life. The jury heard testimony
that the plaintiff can no longer eat food and drink beverages of his choice
without repercussions, hike at his leisure, or participate in other activities
without fearing embarrassing accidents in the absence of a nearby restroom.
The jury also received medical evidence linking the plaintiff’s ongoing
limitations to his salmonella illness. Viewing this evidence in the light most
favorable to the plaintiff, the jury could reasonably have found that the plaintiff
“lost [the] ability to engage in activities that once brought pleasure.” Bennett,
145 N.H. at 281. We hold that the trial court did not err in denying the
defendant’s motion for directed verdict on the issue of hedonic damages and
submitting that issue to the jury.

      Similarly, to the extent that the defendant argues that the trial court
erred in instructing the jury on hedonic and future pain and suffering
damages, we disagree. A trial court’s decision to give a particular jury
instruction must be based upon “some evidence to support a rational finding in
favor of that instruction.” N.H. Ball Bearings v. Jackson, 158 N.H. 421, 434
(2009) (quotation and brackets omitted). Because we find that there was “some
evidence” that would allow the jury to award the plaintiff hedonic and future
pain and suffering damages, we find no error in the trial court’s instruction on
these damages.

       Next, the defendant points to numerous statements made by the
plaintiff’s counsel during opening and closing statements and argues that the
trial court’s failure to sua sponte strike such statements deprived the
defendant of a fair trial and constituted plain error. The defendant asserts that
such error requires a new trial.

       The defendant acknowledges that these purported errors were not
brought to the attention of the trial court. Nevertheless, under the plain error
rule, we may consider claims of error not raised before the trial court. Halifax,
170 N.H. at ___ (slip op. at 9). “However, the rule should be used sparingly, its
use limited to those circumstances in which a miscarriage of justice would
otherwise result.” Id. To find plain error: “(1) there must be an error; (2) the
error must be plain; (3) the error must affect substantial rights; and (4) the
error must seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (quotation omitted).

        Statements and arguments that appeal to the emotions or prejudices of
jurors may be improper when “the statements or arguments take the form of
counsel’s presentation of facts which have not been introduced in, or are not
fairly inferable from, evidence at trial.” McLaughlin v. Fisher Eng’g, 150 N.H.
195, 204 (2003) (quotation omitted).



                                        10
       The defendant argues that the trial court erred in failing to sua sponte
strike the plaintiff’s counsel’s opening and closing statements referencing
Rosenbaum’s expert medical opinion, testimony about celiac disease, the
failure to test the lizard for salmonella, and the inferences from this evidence
that the plaintiff’s counsel suggested to the jury. The defendant argues that
these statements were improper and the trial court should have acted on its
own to strike them because they lacked sufficient scientific reliability or were
based upon facts not in evidence. The facts highlighted by the plaintiff’s
counsel, however, were introduced into evidence and questions of reliability
and credibility are to be resolved by the jury. See Osman, 169 N.H. at 339. We
hold that the drawing of favorable inferences from this evidence by the
plaintiff’s counsel in opening and closing statements was not improper.
Moreover, the trial court’s failure to sua sponte strike these statements was not
error, let alone plain error. See State v. Drown, 170 N.H. ___, ___ (decided June
5, 2018) (slip op. at 12) (declining to find error in trial court’s failure to sua
sponte interrupt counsel’s argument). Accordingly, we need not address the
remaining factors of the plain error analysis.

       Finally, independent of all previously addressed arguments, the
defendant contends that the trial court erroneously denied its motion for
remittitur, arguing that the jury’s damages award of $750,000, when the
plaintiff’s medical expenses totaled only $43,000, was manifestly exorbitant
and plainly excessive. We disagree.

        “Direct review of a damages award is the responsibility of the trial judge,
who may disturb a verdict as excessive (or inadequate) if its amount is
conclusively against the weight of the evidence and if the verdict is manifestly
exorbitant.” Kelleher, 152 N.H. at 838 (quotation omitted). “The proper
standard for the trial court’s review of a jury award is whether the verdict is
fair.” Id. (quotation omitted). “It is the trial judge’s responsibility to both
ensure that the trial is fairly conducted and correct or vacate what turns out to
be an unfair result.” Id. “Whether remittitur is appropriate rests with the trial
court’s sound discretion.” Id. (quotation omitted). “Absent an unsustainable
exercise of discretion, we will not reverse the trial court’s decision.” Id.
(quotation omitted). “On review, we will not attempt to ascertain or divine the
one and only correct verdict.” Id. (quotation omitted). “The party seeking to
modify the verdict’s amount bears a heavy burden.” Id. (quotation omitted). At
trial, extensive evidence was admitted regarding the condition of the plaintiff’s
health during and following his February 2014 salmonella illness. The plaintiff
testified that his inability to control his bowels embarrassed him and
interrupted his personal and professional life. He detailed the changes to his
diet, lifestyle, and habits in order to avoid and mitigate future discomfort and
“flare ups.” The jury heard testimony regarding salmonella’s symptoms,
complications, treatments, and side effects. The jury was also provided with
voluminous medical records demonstrating the extent of the plaintiff’s medical
history since February 2014.


                                        11
      Having previously determined that this evidence was properly admitted
and that it was proper for the jury to be instructed on hedonic and future pain
and suffering damages, we conclude there was sufficient evidence and
testimony to support the jury’s damages award. In light of the evidence
presented at trial, we cannot say that the damages were manifestly exorbitant.
Accordingly, we conclude that the trial judge did not commit an unsustainable
exercise of discretion in upholding the jury’s damages award.

                                                 Affirmed.

       LYNN, C.J., and HICKS and BASSETT, JJ., concurred; DALIANIS, C.J.,
retired, specially assigned under RSA 490:3, concurred.




                                      12
