Osman v. Wen Lin

169 N.H. 329

147 A.3d 864

Arbay M. OSMAN & a.

v.WEN LIN & a.

No. 2015-0561

Supreme Court of New Hampshire.

Argued: June 22, 2016

Opinion Issued: August 23, 2016

Shaheen & Gordon, P.A., of Manchester (Francis G. Murphy on the brief and orally), and Seufert Law, PA, of Franklin (Christopher J. Seufert on the brief), for the plaintiffs.

Primmer Piper Eggleston & Cramer, PC, of Manchester (Gary M. Burt and Adam R. Mordecai on the brief, and Mr. Burt orally), for defendants Wen Lin, Lepa Lin, and Property Services Company, LLC.

Sulloway & Hollis, P.L.L.C., of Concord, filed no brief for defendant Frederick Keefe, individually and as trustee of KC Realty Trust.

Getman, Schulthess, Steere & Poulin, P.A., of Manchester, filed no brief for defendants Rene Denis and Carmen Denis.

Kazan Shaughnessy McDonald, PLLC, of Manchester, filed no brief for defendant William Stergios.

BASSETT, J.

In this interlocutory appeal, the plaintiffs, children who are Somali Bantu refugees or whose parents are Somali Bantu refugees, challenge an order of the Superior Court (Nicolosi, J.), granting the motion to exclude the expert testimony of Peter Isquith, Ph.D., filed by the defendants in whose Manchester apartments the plaintiffs once lived. See Sup. Ct. R. 8. After evaluating the 20 plaintiffs, Isquith, a clinical neuropsychologist, determined that 17 of them suffer from neurological deficits and opined that lead exposure was, more likely than not, a substantial factor in causing those deficits. The superior court excluded Isquith's testimony based upon its determination that his testimony was not "the product of reliable principles and methods," RSA 516:29–a, I(b) (2007), and its finding that he did not apply "the principles and methods reliably to the facts" of this case, RSA 516:29–a, I(c) (2007). The superior court has transferred the following question for our consideration:

Did the trial court commit an unsustainable exercise of discretion in excluding the testimony of Peter Isquith, Ph.D., based on its finding that Dr. Isquith's methodology fails to meet the threshold level of reliability required of an expert witness, per RSA 516:29–a and New Hampshire law?

We answer the transferred question in the negative.

I. Background

We accept the statement of the case and facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See State v. Hess Corp., 159 N.H. 256, 258, 982 A.2d 388 (2009). Seventeen of the 20 plaintiffs are Somali Bantu refugees who were resettled to the United States in 2004. Three of the plaintiffs were born in the United States to Somali Bantu refugees. All of the plaintiffs learned English as a second language; their first language was either Maay Maay or a tribal language.

According to the plaintiffs, and not disputed by the defendants, the plaintiffs lived in the defendants' apartments during 2005-2006, and those apartments were contaminated by lead paint, a known health hazard. The plaintiffs have elevated levels of lead in their blood. In their complaints, which were consolidated for discovery and trial, the plaintiffs, through their parents, allege that they were injured by their exposure to lead paint while living in the defendants' apartments.

The plaintiffs' counsel hired Isquith to assess whether the plaintiffs had neurological deficits that were more likely than not caused by lead paint exposure. Isquith did so primarily using two measures: (1) the Reynolds Intellectual Assessment Scales (RIAS); and (2) the Developmental Neuropsychological Assessment, Second Edition (NEPSY-II). The RIAS measures verbal and nonverbal intelligence and general intelligence. The NEPSY-II neuropsychological test is "specifically designed for children." Baxter v. Temple, 157 N.H. 280, 307, 949 A.2d 167 (2008) (describing the predecessor to the NEPSY-II). It consists of a flexible battery of 32 subtests, which are divided into six domains of cognitive functioning: attention and executive functioning; language; memory and learning; sensorimotor; social perception; and visuospatial processing. See id. "Each subtest has been individually standardized and ... scored." Id.

According to one of the defendants' experts, standardization refers to the process by which raw scores on a test are converted to standard scores, meaning "a metric that has a uniform meaning." According to that expert, one way to standardize scores "is to test a substantial number of individuals, line up the[ir] scores from lowest to highest, and then determine, for each score or person, the percentage of individuals whose scores that person surpasses." "The result is referred to as a percentile score, which reflects [an individual's] relative standing [when] compared to others." Thus, "if one's ... score falls at the 25th percentile," then that score is equal to, or exceeds, the scores of 25 out of 100 individuals. According to this defense expert, "[f]or information about relative standing to be of value, an individual needs to be compared to a suitable group." The expert explained that for many test applications, one seeks a "normative" group, which is a representative group of so-called "normal" individuals.

One of the challenges Isquith faced in using the RIAS and the NEPSY-II to evaluate the plaintiffs was the fact that most neuropsychological instruments, including the RIAS and NEPSY-II, were not developed and have not been validated for use with the plaintiff population. The normative sample for the RIAS did not include any recent immigrants to the United States from sub-Saharan Africa. The normative sample for the NEPSY-II expressly excluded children for whom English is a second language.^*

To address that challenge, Isquith interpreted the plaintiffs' test scores "cautiously." Isquith explained that, to identify whether a plaintiff had a neurological deficit, he did not rely upon a single subtest score, but rather relied upon "patterns of poor scores on similar tests," meaning two or more in a single domain. (Quotation omitted.) He also relied upon only scores that were defined as "falling below or well below" expected levels of performance. (Quotation omitted.) Isquith's intent in so doing was to err on the side of not identifying a deficit, thus, making it more likely that the identification of any deficit was accurate.

The defendants moved to exclude Isquith's testimony on the ground that it is inadmissible under New Hampshire Rule of Evidence 702 and RSA 516:29–a (2007).

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The defendants argued that the tests that Isquith used are not suitable for evaluating Somali Bantu refugees or their children because the tests were not "normed" for that population, and that the manner in which Isquith administered the tests and interpreted their results rendered his testimony unreliable.

Following a six-day evidentiary hearing, the trial court granted the defendants' motion in a well-reasoned 19-page order, concluding that the plaintiffs had failed to demonstrate: (1) that Isquith's testimony was "the product" of reliable methodology, RSA 516:29–a, I(b); and (2) that Isquith had applied the methodology "reliably to the facts" of this case, RSA 516:29–a, I(c).

The trial court found that the "most significant" problem with Isquith's methodology was that he evaluated the plaintiffs using tests that were neither developed nor validated for use with the plaintiff population. The tests were normed for a United-States born, English-speaking population and not for children, like the plaintiffs, for whom English is a second language. The court explained that, although "the tests ... Isquith employed in this case may have reliability and validity with respect to their normative samples and other groups for which there is available data," they have no known reliability or validity for Somali Bantu refugees and their children. The court noted that "[w]hile the published tests have a known error rate, the error rate is for a very different normative sample, not for Somali Bantu refugees."

The court observed that, because neither the RIAS nor the NEPSY-II was normed for the plaintiff population, Isquith did not know "how a normal, healthy Somali Bantu [refugee] would perform on any of the tests administered." Without that information, the court questioned whether there was any "way of knowing whether the plaintiffs' performance on the tests indicates a real deficit."

The court also observed that Isquith's specific methodology in this case "has not been subject to publication" or otherwise subject to the "rigors of meaningful peer review." The court further found that Isquith did not "attempt to account for a host of other risk factors" that many of the plaintiffs may have faced, such as lack of preventative health care, exposure to war, and "low socioeconomic status."

The court determined that these deficiencies were "further compounded by the uncertainty surrounding the cutoff[ ] scores [Isquith] employed" when determining whether the plaintiffs had neurological deficits. The court observed that Isquith gave conflicting testimony about the "cutoff scores" that he used, at times testifying that he identified a deficit by using scores that fell below the 15th percentile, and at other times testifying that he identified a deficit by using scores that fell below the 10th percentile. Regardless of the percentile used, the court found that Isquith "had no scientific basis to believe scores falling below the 10th or 15th percentiles would accurately identify deficits in Somali Bantu refugees." The court concluded that Isquith's "cautious" approach "largely amounted to guesswork, albeit well-educated guesswork," and, as such, "would not assist the jury in arriving at a fair and just verdict." (Quotation omitted.) This interlocutory appeal followed.

II. Analysis

Before addressing the merits of the plaintiffs' interlocutory appeal, we...