Kimberly F. v. Mary Hitchcock

December 3, 1993 [NOT FOR PUBLICATION]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.

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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.

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

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and find that the district court was correct in denying the

motions for a directed verdict and judgment n.o.v.

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

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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.

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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.

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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

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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.

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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.

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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

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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

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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.

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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:

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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

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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."

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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.

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

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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.

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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

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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;

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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

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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

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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."

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III.

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

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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

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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

The judgment below is affirmed. Appellees are

awarded costs of appeal.
awarded costs of appeal.

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