129 N.H. 591 (1987)
LOUKIA PANAS AND NICHOLAS PANAS
v.
JOHN HARAKIS AND K-MART CORPORATION
No. 86-202
Supreme Court of New Hampshire
August 6, 1987
Law Offices of Edward W. Richards, of Nashua (Edward W. Richards and Janine
Gawryl on the brief, and Mr. Richards orally), for
the plaintiffs.
McLane, Graf, Raulerson & Middleton P.A., of Manchester (Arthur
G. Greene and Jane E. Cetlin on the brief, and Mr.
Greene orally), for the defendants.
THAYER, J.
In this case, both the plaintiffs and the defendants appeal various findings
and rulings of the Superior Court (Pappagianis and Dalianis, JJ.)
made during the course of the plaintiffs' suit for false imprisonment;
malicious prosecution; slander; invasion of privacy; negligent hiring,
training, supervision, and failure to terminate; negligent performance
of duties; and loss of consortium for the above causes of action. The
plaintiffs assign error to the court's (1) setting aside of the jury
verdict as "manifestly exorbitant" and ordering a new trial
on damages only; (2) refusal to admit into evidence the defendant John
Harakis' criminal convictions; and (3) alleged refusal to give jury instructions
on additional compensatory damages. The defendants, in turn, assign error
to the court's (1) admission into evidence of the facts and circumstances
underlying the defendant Harakis' criminal convictions; (2) refusal to
declare a mistrial after plaintiffs' counsel had elicited testimony from
Harakis regarding his criminal record; (3) failure to instruct the jury
that the merchant's privilege statute, RSA 627:8-a, was a complete defense
to all of the plaintiffs' counts; and (4) allowing the plaintiffs to
amend their writs to add alleged counts for negligent infliction of emotional
distress. We affirm.
On January 30, 1983, sometime after 1:00 p.m., Loukia and Nicholas Panas
ventured into the K-Mart department store on South Willow Street in Manchester.
The couple purchased Valentine's Day cards for their two boys, and a
baking tin. The Panases then left the store and returned to their car,
where they deposited their purchases. They crossed the mall parking lot
and were about to enter Chuck E. Cheese's Pizza Time Restaurant, where
their two boys were waiting for them. Before they entered the restaurant,
however, John Harakis, who was employed as a K-Mart security guard, stopped
the Panases and accused them of shoplifting.
At trial, Harakis testified that while the Panases were in the K-Mart
store, he had seen Loukia Panas break into a package of spark plugs and
place one of them in her coat pocket. Harakis stated that he followed
the Panases into the parking lot, where he observed Loukia Panas take
an object from her right coat pocket and put it into the front of the
car. After the Panases left their car to proceed toward the restaurant,
Harakis walked to the car, peered into it, and noticed spark plugs on
the dashboard. After viewing the spark plugs, Harakis motioned to a K-Mart
employee to act as a witness and proceeded to apprehend the couple at
the restaurant entrance. Harakis claimed that he then asked Loukia Panas
to return to K-Mart "to talk about the merchandise that she took
from the store." The Panases testified that Harakis said, "You're
under arrest," loudly accused Loukia Panas of shoplifting, and ordered
her to return to the K-Mart store with her arms raised above her head.
Harakis denied that Loukia Panas had returned to the store with her hands
raised; and store employees corroborated his testimony, although one
employee admitted he could not hear exactly what Harakis said to the
Panases.
The Panases were taken into the K-Mart security office. Harakis emptied
the contents of Loukia Panas' pocketbook onto a table, and searched the
pockets of her coat. He then asked the Panases to sign a release form
admitting that they had shoplifted in return for a promise from K-Mart
not to press charges. Loukia Panas declined the offer. At approximately
4:20 p.m., Officer Jeffrey Czarnec, of the Manchester Police Department,
arrived at K-Mart in response to a shoplifting call. Harakis informed
Czarnec of his apprehension of Panas. Panas offered to take Harakis and
Czarnec to her car in order to show them the items she had purchased.
Czarnec and Harakis saw the spark plugs in the car. Panas gave them to
Harakis who handed them to Czarnec. Panas told Czarnec they had been
there for several days. Nicholas Panas testified that he had purchased
the spark plugs approximately a month before at a Bradlee's department
store in Chelmsford, Massachusetts. Czarnec testified that Loukia Panas
volunteered to pay K-Mart for the spark plugs. At trial, Panas denied
she had ever offered to pay for the spark plugs.
Based on information he received from Harakis, and that Loukia Panas had
allegedly offered to pay for the spark plugs, Officer Czarnec placed
Loukia Panas under arrest. She was handcuffed and placed in the rear
of a paddy wagon while her children watched. Once at the police station,
she was fingerprinted and photographed, her coat was removed, and she
was placed in a jail cell. While in the cell, she vomited. Panas stayed
in the jail cell for several hours until her husband could go home and
obtain bail money. A trial date for the shoplifting of the spark plugs
was set for April 8, 1983. Harakis was subpoenaed to appear as a witness,
but did not do so. No other K-Mart representative appeared, and the case
was dismissed for lack of prosecution.
Loukia Panas brought suit against John Harakis and K-Mart for false imprisonment;
malicious prosecution; invasion of privacy; slander; negligent hiring,
training, supervision, and failure to terminate John Harakis; negligent
infliction of emotional distress and intentional infliction of emotional
distress. Nicholas Panas brought suit for loss of consortium under the
above theories. The defendants filed a motion to dismiss the counts of
negligent and intentional infliction of emotional distress, alleging
that no such causes of action are recognized in New Hampshire. The Superior
Court (Dalianis, J.) granted the motion. The plaintiffs then
filed a motion to amend the writ by adding counts against K-Mart and
Harakis alleging negligent performance of Harakis' duties that caused, inter
alia, mental and emotional distress to Loukia Panas. The Superior
Court (Dalianis, J.) granted the motion to amend. The defendants
then argued a motion to dismiss those counts on the basis that they were
restatements of the negligent infliction of emotional distress counts.
The Superior Court (Pappagianis, J.) denied the defendants'
motion to dismiss the additional counts.
In February, 1986, the plaintiffs filed a motion in limine to admit criminal
records of John Harakis that had been annulled. The Superior Court (Dalianis, J.)
ruled that evidence of the annulled convictions could not be offered.
The court did, however, rule that the underlying facts and circumstances
giving rise to a 1980 conviction for impersonation of a police officer
could be admitted into evidence, provided that such evidence could be
introduced without reference to the actual criminal proceedings. The
court also ruled that the underlying facts and circumstances of a 1976
conviction for attempted theft could not be admitted because any probative
value was outweighed by the danger of undue prejudice.
The trial below commenced on March 24, 1986, and lasted for ten days.
Loukia Panas testified that when she was apprehended by John Harakis
she felt "embarrassed," "terrible," and that her
legs shook. She stated that, after January 30, 1983, the date of the
incident, she ceased to attend church services, or go shopping in malls
or stores, and experienced difficulty in getting to sleep. She stated
at one point that she had lost the ability to function as a "good
mother and wife." Nicholas Panas also testified to his wife's inward
withdrawal, and remarked that her weight had gone from 130 pounds at
the time of the incident to 197 pounds.
The plaintiffs produced several expert psychiatric witnesses. Dr. Harold
Bursztajn, a clinical professor of psychiatry at the Harvard Medical
School, testified that Loukia Panas was a person from a conservative,
family-oriented background whose "mission in life was basically
to go ahead and teach her children to be just like their father, to be
honest, law-abiding, upstanding people. She really has devoted her whole
life to that, and this is something which all of a sudden went to pieces." Dr.
Bursztajn proceeded to state that the event of Loukia Panas' apprehension
and imprisonment caused her to suffer a post-traumatic stress disorder
that manifests itself in the following respects: (1) Panas experiences
recurrent and intrusive recollections of the event, (2) she has recurrent
dreams of the event that awaken her, (3) whenever she attempts to describe
the event she becomes frightened and overwhelmed, and (4) she has withdrawn
from participating in her children's school activities, and has grown
detached from her husband in terms of sexual intimacy.
Dr. Paul Menitoff, a psychiatrist in private practice in the Lowell, Massachusetts
area, also testified on behalf of Loukia Panas. Dr. Menitoff stated that,
after examining Panas, and talking to several of her friends, he diagnosed
her as suffering from post-traumatic stress disorder with anxiety and
depression. Dr. Menitoff said that the incident was the "stressor," or
precipitating factor, in the psychological illnesses. Dr. Menitoff suggested
that Loukia Panas' conservative, religious upbringing in a small city
in Greece rendered her particularly sensitive to being arrested.
On cross-examination, Loukia Panas testified that she does cook meals,
make beds, clean and do laundry. Loukia Panas' psychiatric nurse testified
that her condition improved when taking prescription medication. Panas,
however, discontinued the medication, and six months later her condition
deteriorated. The defendants' expert psychiatric witness, Dr. George
Shaka, a private practitioner, testified that he did not think Loukia
Panas suffered from post-traumatic stress disorder, but rather from "a
major depression." Dr. Shaka testified that several events dating
from the late 1970's had caused Panas' depression. These events were:
two miscarriages, two check-ups for cervical cancer in 1978 and 1980
due to a family history of cervical cancer, two bouts with inflammation
of the pelvis, and a stroke suffered by her mother in 1980. Dr. Shaka
also testified that, although Panas claimed the incident had caused her
weight to increase from 135 to 180 pounds, her medical records revealed
that she had weighed 161 pounds in 1976 and 168 pounds in 1980. He concluded
by stating that Panas requires more intensive treatment, and that with
such treatment he would expect her to recover.
After the trial, the jury deliberated for three days and, in response
to special jury questions from the Court (Pappagianis, J.),
returned findings for Loukia Panas against John Harakis on her counts
of malicious prosecution, slander, and negligent performance of Harakis'
duties as security officer. The jury also returned findings for Panas
against K-Mart for negligent hiring, negligent training and instruction,
negligent supervision, negligent failure to fire Harakis, and for Harakis'
negligent performance of his duties as security manager. The jury returned
findings for Harakis and K-Mart on Loukia Panas' counts of false imprisonment
and invasion of privacy. On the false imprisonment count, the jury found
that from a subjective standpoint, Harakis thought he had reasonable
grounds to detain Loukia Panas, but that from the objective standpoint
of a reasonable person, he did not have grounds to detain her. The jury
awarded Loukia Panas $1,000,000 and Nicholas Panas $100,000 as compensatory
damages against Harakis and K-Mart. The jury declined to award liberal
damages.
After the trial the defendants moved for judgment notwithstanding the
verdict, which the court denied. The defendants also moved for a remittitur,
or reduction in damages. The court took the motion for remittitur under
advisement.
In an order dated April 15, 1986, the Trial Court (Pappagianis, J.)
noted that no evidence had been presented of lost wages, or doctors',
hospital, or medicine bills. The court then computed the cost of the
psychiatric treatment undergone by Loukia Panas, by multiplying the hours
of treatment by the stated hourly rate of Panas' psychiatrists. The court
determined that the cost of the psychiatric care amounted to $5,160.
After pointing out that the plaintiffs' attorney had argued in his opening
statement that Loukia Panas had suffered serious psychological injuries,
the court stated that the jury had awarded Loukia Panas $994,840 for
her psychological injuries. The court then found that this award and
the award of $100,000 to Nicholas Panas for loss of consortium were "manifestly
exorbitant and unreasonable, and [warranted] the belief that the jury
had a mistaken view of the plaintiffs' case for damages." The court
set aside the damages verdict and concluded by ordering a new trial limited
to the issue of damages. This appeal and cross-appeal ensued.
I. The Trial Court's Setting Aside of Jury Verdicts on Damages
The first issue we consider is whether the trial court abused its discretion
in deciding to set aside the jury verdicts on the plaintiffs' damages.
Two apparently distinct standards exist in New Hampshire on the trial
court's setting aside of a jury verdict. The first standard was enunciated,
albeit in embryonic form, in Wendell v. Safford, 12 N.H. 171
(1841). Wendell held that
"Where the verdict is decidedly against the weight of the
evidence, so that it is apparent that the jury must have misunderstood
or totally disregarded the instructions of the court thereon, or must
have neglected to consider the facts, and overlooked prominent and essential
points in the evidence, where it is such a verdict that twelve honest
and intelligent men would not have returned it, it is the duty of the
court to set it aside."
Id. at 178. Wendell thus appeared to establish inquiry
into the weight of the evidence as of paramount importance. Aspects of
jury error were not so much independent grounds for setting aside a verdict,
as they were illustrative of the magnitude of the jury's unreasonable
evaluation of where the evidence preponderated. Several subsequent cases,
however, focused much more attention on the jury error element of the Wendell formulation,
even to the virtual exclusion of evidentiary weight considerations. See
Lisbon v. Bath, 21 N.H. 319, 335 (1850) ("We do not interfere
with the verdict of a jury to set it aside as against evidence, unless
we are well satisfied that it has been procured through corruption, or
manifest mistake in the consideration and application of the evidence,
and that substantial justice has not been done."); and Gould
v. White, 26 N.H. 178, 188 (1852). This emphasis on jury error was
corrected in a line of cases beginning with Clark v. Society, 45
N.H. 331, 334 (1864), wherein this court again emphasized the consideration
of verdicts as "decidedly against the weight of the evidence." Id.
In Belknap v. Railroad, 49 N.H. 358 (1870), however, this court
turned once again to an analysis based primarily on jury error, this
time without even mentioning an evidentiary inquiry. Belknap held
that "[t]o justify the interference of the court, the damages must
be manifestly exorbitant; and so excessive as to warrant the belief that
the jury must have been influenced by partiality or prejudice, or have
been misled by some mistaken views of the merits of the case" (citations
omitted). Id. at 371. As might be expected from the prior development
of the law, the Belknap rule did not last long in an unaltered
state. In Lucier v. Larose, 66 N.H. 141 (1889), the court returned
to an analysis based, at least in part, on examination of the weight
of the evidence: "a verdict will not be set aside unless it is so
decidedly against the weight of evidence as to make it apparent that
the jury must have been misled or were guilty of misconduct." Id. at
142. This variant of the Belknap standard was cited in a line
of cases including Bennett v. Larose, 82 N.H. 443, 447, 136
A. 254, 256 (1926) (in motions to set aside the verdict as against the
weight of the evidence, the applicable standard is "whether there
was such a preponderance of evidence in favor of the moving party as
to justify a finding of passion, prejudice, partiality, corruption or
plain mistake") (citations omitted). Thus stood the status of the
first standard to set aside verdicts as against the weight of the evidence,
before the onset of the second standard.
In Wisutskie v. Malouin, 88 N.H. 242, 245-46, 186 A. 769, 771
(1936), this court performed an important gloss on the Belknap-Bennett standard,
calling into question the previous focus on the elements of mistake,
partiality, and corruption:
"It seems confusing that the idea of mistake, partiality
or corruption should be made an element for the court's consideration.
It is advanced, however, in a majority of cases in which the trial court's
authority and duty has called for statement. These reasons, of mistake,
partiality, and corruption, for setting aside a verdict are distinct
from the ground that the verdict is against the weight of the evidence.
It may be said that if the verdict is not supported by the weight of
the evidence, a mistake has been made. But that is no more than saying
that error exists. If the evidence contrary to the verdict is so weighty
that the verdict should be vacated, that is the reason for vacating it.
Why the evidence was not properly treated, may be a collateral inquiry,
but it is not the immediate one. Whether it was, is. The mistake may
be explanatory or descriptive of the erroneous verdict, but it is not
directly probative of it. The inquiry is of relation between the evidence
and the verdict. Except in cases where mistake is alleged as the ground
of the motion, it is arguing backwards to say that mistake shows the
error. Mistake vitiates a verdict, and so also does a contrary weight
of evidence. Each is a separate ground. Where the weight of evidence
lies is not shown by reasons disregarding it. To introduce the subject
of mistake, or partiality or corruption, in helping to show the conflict
between the evidence and the verdict is to cloud the issue."
We believe the Wisutskie court was eminently correct in shifting
the analysis to the evidentiary weight issue, and away from the "collateral" matters
of mistake, partiality, and corruption. As Wisutskie states,
the arrival at a verdict conclusively against the weight of the evidence
necessarily entails the commission of a mistake on the part of the jury.
To speak in terms of mistake, partiality or corruption thus begs the
prior dispositive question of the verdict's relationship to the evidence
at hand.
The Wisutskie opinion culminated its otherwise well-reasoned
theoretical discussion with an ambiguous conclusion. The opinion appears
to state the relevant standard as follows:
"In Lawrence v. Towle, 59 N.H. 28, 30, the court
announced the rule thus: `A verdict will not be set aside as being against
the weight of evidence, unless the preponderance was so great as to make
it apparent that the jury were misled, or failed to consider
intelligently the evidence laid before them.' With the
qualification that it must appear clearly and definitely that the jury
did not act properly in its consideration of the evidence, this statement
is regarded as accurately marking out the trial court's duty in passing
upon the issue."
Wisutskie, 88 N.H. at 246, 186 A. at 771 (emphasis added). The
question raised by this quotation lies in the mention of a jury "misled" or
not considering "intelligently the evidence laid before them." This
language appears to reinstate mistake and jury error as a proper line
of inquiry, despite the opinion's earlier decisive rejection of such
an analysis. Two paragraphs later, however, the court enunciates a standard
far more consistent with its prior discussion:
"From the foregoing discussion it follows that the two questions
to be answered in the case here are (1) whether the evidence for the
[party against whom the jury decides] is conclusive in his favor, and
(2) whether the verdict was conclusively against the weight of the
evidence. If the second question is answered in the negative, the
first one must be answered in like manner. If, in respect to the second
question, the trial court's finding was a reasonable one, it may not
be disturbed."
Wisutskie, 88 N.H. at 246, 186 A. at 771 (emphasis added).
Considering the court's thorough invalidation of jury mistake as a legitimate
line of inquiry, we believe the quote from Lawrence represented
an effort to support Wisutskie's analysis with authority that
unfortunately did not state quite what the court wished. When the Wisutskie court
spoke directly on the issue, however, such as in the quotation immediately
above, it spoke unambiguously and restricted itself to consideration
only of the weight of the evidence. Therefore, the final conclusion we
draw is that Wisutskie intended that the test for a trial court's
setting aside of a verdict be "whether the verdict was conclusively
against the weight of the evidence."
Unfortunately, over the ensuing years, this court appeared to stray from
the standard enunciated in Wisutskie. Consequently, issues involving
the setting aside of jury verdicts as against the weight of the evidence
were decided at various times under both the questionable Belknap-Bennett standard
of mistake, partiality or prejudice, see, e.g., Bothwick v. LaBelle, 115
N.H. 279, 280, 339 A.2d 29, 31 (1975); State v. Charpentier, 126
N.H. 56, 63, 489 A.2d 594, 599-600 (1985), and the Wisutskie rule
of conclusively against the weight of the evidence, see, e.g., Lavoie
v. Blake, 106 N.H. 347, 349, 211 A.2d 414, 415 (1965); Guptill
v. Bergman, 108 N.H. 507, 512, 240 A.2d 55, 59 (1968).
[1, 2] Wisutskie stands out, however, as the only case that has
considered the merits of both the "conclusively against the weight
of the evidence" and the Belknap-Bennett standards. Since Wisutskie favored
the former standard, and since we find Wisutskie's reasoning
persuasive, we consider Wisutskie the appropriate standard to
employ in setting aside a verdict as against the weight of the evidence.
Furthermore, if the trial court's finding that the verdict was conclusively
against the weight of the evidence was a reasonable one, we will not
disturb it on review. Wisutskie, 88 N.H. at 246, 186 A. at 771.
[3] Before leaving our discussion of the law of setting aside verdicts
as against the weight of the evidence, we wish to make two observations.
First, the term "conclusively against the weight of the evidence" is
hardly a self-explanatory one, and it is worth elaborating upon. The Wisutskie opinion,
in enunciating its standard, did not mention the issue of a verdict's
reasonableness. We think, however, that the guiding principle behind
all cases on setting aside verdicts, regardless of the specific language
any individual case might employ, is that the jury verdict must be an
unreasonable one before the judge may set it aside. See, e.g., Gilbert
v. Desmarais, 87 N.H. 150, 151-52, 175 A. 247, 248 (1934). Consequently,
we believe the phrase "conclusively against the weight of the evidence" should
be interpreted to mean that the verdict was one no reasonable jury could
return.
[4, 5] Second, our rejection of elements such as mistake, partiality or
corruption does not mean that those elements cannot form the basis of
a motion to aside a verdict. Wisutskie itself stated that mistake
can provide the grounds for setting aside a verdict. Wisutskie, 88
N.H. at 246, 186 A. at 771. Undoubtedly, it is possible to demonstrate
that the jury made an affirmative mistake, as for example, by rendering
internally inconsistent findings that manifest legal error. Similarly,
the fact that the jury had been bribed would warrant setting aside a
verdict on the basis of corruption. The crucial distinction is that in
a motion to set aside a verdict because of mistake, partiality or corruption,
the moving party must demonstrate the mistake, partiality or corruption
as grounds independent of a verdict conclusively against the weight of
the evidence. As a practical matter, it will often be easier to demonstrate
that the verdict was conclusively against the weight of the evidence
than it will be to demonstrate jury mistake. Nonetheless, we wish to
make it clear that we are not precluding inquiry into mistake, partiality
or corruption as long as that inquiry is separate and apart from the
question of evidentiary weight. Nor do we wish to preclude motions to
set aside on the bases both that the jury erred, and that the verdict
was conclusively against the weight of the evidence. Once again, as long
as the jury error is considered as an independent ground, and not merely
as descriptive of just how much the jury's determination was against
the weight of the evidence, a dual inquiry into whether the jury was
mistaken and whether the verdict was conclusively against the weight
of the evidence is permissible.
Now that we have established the framework of analysis for this case,
we proceed to review the trial court's decision to set aside the plaintiffs'
verdicts. The court's order of April 15, 1986, stated that "[n]o
evidence or exhibit was presented of lost wages, of doctor bills, of
hospital bills, and of medicine bills." The court then noted that
Loukia Panas' psychiatrists had testified to the quantity of time spent
with Loukia Panas and their hourly rate for psychiatric care. Based on
this testimony, the trial court concluded that the cost of the psychiatric
services amounted to $5,160. The court consequently found that the jury
awarded $994,840 to Loukia Panas for her psychological injuries and $100,000
to Nicholas Panas for his loss of consortium. The trial court concluded
that these verdicts were "manifestly exorbitant and unreasonable,
and [warranted] the belief that the jury had a mistaken view of the merits
of the plaintiffs' case for damages."
The trial court did not refer to the weight of the evidence, essentially
employing the language of Belknap. Wisutskie itself stated,
however, that the Belknap-Bennett standard is not inconsistent
with the "conclusively against the weight of the evidence" rule.
Elements such as mistake, partiality, or corruption are merely illustrative
of the underlying fact that the verdict was against the weight of the
evidence. Wisutskie, 88 N.H. at 245-46, 186 A. at 771. From
a theoretical standpoint, then, the trial court's application of Belknap does
not necessarily render the court's decision fatal. If the trial court's
analysis is consistent with Wisutskie, and that analysis arrived
at a reasonable finding, then the trial court's finding will be upheld.
[6] Although the trial court did not expressly find that the jury verdicts
on damages were conclusively against the weight of the evidence, the
court's decision was premised on an implicit finding that the jury's
awards were indeed conclusively against the weight of the evidence. In
particular, the trial court's determination that the damages were excessive
and exorbitant necessarily entails a finding that the evidence was insufficient
to support rationally the full amount of damages awarded. Likewise, the
court's determination that the jury had a mistaken view of the case rests
on the unstated finding that the jury's verdicts conflicted with a reasonable
construction of the weight of the evidence on the damages issue. The
trial court thus succeeded in employing the proper analysis. We now turn
to consideration of whether the court's analysis arrived at a reasonable
conclusion.
An examination of the record reveals a substantial body of evidence in
favor of the award of a certain level of compensation to Loukia Panas
for her psychological trauma. The trial court admitted as much in a colloquy
with counsel before disposing of the motion to set aside the verdicts.
The question is whether the trial court acted reasonably in finding that
the evidence produced could not reasonably support the full extent of
the damages awarded. Loukia Panas testified that her apprehension by
Harakis made her feel "lost," "embarrassed," as if
she were "nothing," and that she had never felt worse. She
also stated that even after the incident and her subsequent arrest, she
felt upset, angry, and embarrassed that her children had seen her hauled
off in a paddy wagon; that she wished she were dead, suffers from insomnia,
has curtailed her activities outside of her home, and has ceased attending
church services. The plaintiffs' medical experts testified that Loukia
Panas suffered from post-traumatic stress syndrome, directly attributable
to the K-Mart incident.
[7] Although these psychological injuries and trauma should not be discounted,
the trial court did not determine that Loukia Panas should not receive
any compensation, only that her disagreeable experience and its after-effects
did not warrant the award of a sum as great as $994,840. Significantly,
Loukia Panas herself testified that she had returned to performing routine
household chores, and her psychiatrists testified that her condition
had improved upon taking medication which she later discontinued. In
addition, the defendants' medical expert believed that her depression
was caused by several serious personal events; e.g., two check-ups
for cervical cancer, two miscarriages and a stroke suffered by her mother,
that preceded the incident at K-Mart. In light of this countervailing
testimony, we cannot say that the trial court's rejection of the jury's
award was clearly erroneous.
[8, 9] In support of the plaintiffs' argument that the trial court abused
its discretion in setting aside the jury verdicts, the plaintiffs proffer
a variety of arguments in addition to the main argument that the evidentiary
weight favored the plaintiffs. First, the plaintiffs assert that the
judge's intervention deprived the plaintiffs of their right to a jury
trial under the Federal and New Hampshire Constitutions. The plaintiffs'
argument at this point mischaracterizes the actual situation. The plaintiffs
did receive a jury trial. The trial court, however, determined that the
jury had arrived at an unreasonable result. Although jury trials are
an all-important, constitutional, feature of our judicial system, the
ability of the trial court to set aside unreasonable verdicts is also
a well-recognized aspect of the administration of justice. See, e.g.,
Gilbert, 87 N.H. at 151-52, 175 A. at 248. In effect, the plaintiffs
wish us to adopt a constitutional right to trial by an unreasonable jury.
This is something we are unwilling to do.
[10] In addition, the plaintiffs assert that the trial court erred in
setting aside the jury verdicts without properly considering the economic
value of Loukia Panas' lost earning capacity or lost homemaker services.
It is true that the trial court did not consider, and properly so, the
value of these services because the plaintiffs made no attempt to produce
any evidence upon which the trier of fact could value compensation for
Panas' lost earning capacity and homemaker services.
[11] The plaintiffs also refer us to cases decided in the Federal District
Court for the District of New Hampshire, in which jury verdicts have
either equaled or exceeded one million dollars, to support a conclusion
that the trial court in the instant case acted unreasonably when it set
aside Loukia Panas' award. Our primary task on review, however, is to
assess the reasonableness of the trial court's decision in light of the
evidence presented below in this particular case. We have already found
that the trial court could have reasonably decided to set aside the verdict
for Loukia Panas, and we are not persuaded that different verdicts on
the basis of different factual situations in other courts demonstrate
that the trial court's determination here was unreasonable.
[12] Continuing with our analysis of the plaintiffs' arguments on appeal,
the plaintiffs assert that the trial court had no authority to set aside
damages on a motion for remittitur. Our review of cases involving remittitur
leads us to the conclusion that the plaintiffs' understanding of the
law on this point is incorrect. In Reid v. Spadone Machine Company, 119
N.H. 457, 466, 404 A.2d 1094, 1100 (1979), this court stated that it
is the duty of the trial court "to correct or vacate what turns
out to be an unfair result" (quoting Wisutskie, 88 N.H.
at 245, 186 A. at 770). The trial court decided to vacate the result
by setting aside the verdict, and clearly possessed the authority to
do so under Reid.
[13, 14] Finally, we consider the plaintiffs' contention that the court
abused its discretion in setting aside Nicholas Panas' $100,000 award
for loss of consortium. A spouse's claim for damages based upon a loss
of consortium is related to the injured spouse's claim, in that the nature
and extent of the injured spouse's injuries are the material element
in the disruption of the marital relationship. See Seaman v. Berry, 114
N.H. 474, 477, 322 A.2d 922, 923 (1974). We have already discussed the
trial court's setting aside of the verdict as to Loukia Panas' award,
and have determined that the decision to set aside that award was reasonable.
Since the trial court could reasonably have concluded that Loukia Panas'
psychological injuries were not of the nature to warrant the verdict,
the court could also have reasonably concluded that the disruption to
the marital relationship occasioned by Loukia Panas' psychological injuries
was also insufficient to support Nicholas Panas' award of $100,000 for
loss of consortium.
II. Liability and Damages Evidence in the New Trial
The second general issue of this appeal pertains to the trial court's
decision to grant a new trial on damages only. The plaintiffs assert
that liability and damage issues are inextricably linked in intentional
tort cases, and that removal of liability issues will undermine the force
of any damage testimony offered in a future trial. The plaintiffs argue,
consequently, that the trial court's decision denies them their right
to a full and fair recovery under the New Hampshire Constitution, part
I, article 14. Lastly, the plaintiffs argue that if a new trial on damages
must be held, this court should determine what facts the plaintiffs will
be able to present at a future trial.
[15, 16] We respond by first noting that there is no State constitutional
guarantee to a non-bifurcated trial. The trial court has the ability
to order a new, partial trial "in order to fairly correct the errors
[of the previous trial]," Lisbon v. Lyman, 49 N.H. 553,
604 (1870), and this decision to separate issues in a proceeding is within
the sound discretion of the trial court. See Jamestown Mut. Ins.
Co. v. Meehan, 113 N.H. 639, 641, 312 A.2d 689, 691 (1973). The
plaintiffs' concerns that removal of liability issues will weaken the
testimony about damages are understandable, but exaggerated. We think
a fairly clear distinction can be made between the responsibility of
K-Mart and Harakis for Panas' injuries and the compensability of those
injuries. This distinction does not unfairly prejudice the plaintiffs'
case.
[17, 18] Given the trial court's implicit determination that the jury's
verdict on liability was reasonable, a determination the plaintiffs do
not challenge on appeal, a new trial on liability and damages would only
waste judicial resources and unnecessarily burden the parties. Accordingly,
the trial court did not abuse its discretion in ordering a new trial
solely on the issue of damages. Lastly, we refuse to determine what facts
the plaintiffs will be allowed to introduce at the damages trial. The
decision as to the admissibility of particular evidence, which necessarily
will include some of the evidence that is ordinarily admitted on the
issue of liability, in the future trial must be left to the sound discretion
of the trial court.
III. Enhanced Compensatory Damages
[19-21] The next issue we address relates to the plaintiffs' assertion
that the trial court erred in not properly instructing the jury on enhanced
compensatory damages. This jurisdiction forbids the award of punitive
damages. Fay v. Parker, 53 N.H. 342, 382, 397 (1872). "However,
when the act involved is wanton, malicious, or oppressive, the compensatory
damages awarded may reflect the aggravating circumstances." Vratsenes
v. N.H. Auto, Inc., 112 N.H. 71, 73, 289 A.2d 66, 68 (1972). Even
if the trial court's instructions on enhanced damages were deficient,
the deficiency was irrelevant given the trial court's setting aside of
the verdict on damages, a decision we have already upheld as reasonable.
Since we are affirming the order of a new trial on damages, the plaintiffs
will have the opportunity to seek appropriate jury instructions under Vratsenes
supra on the counts of malicious prosecution and slander, if the
trial court deems appropriate.
IV. Admissibility of Harakis' Criminal Convictions
John Harakis was convicted in 1976 for attempted theft by deception, and
in 1980 for impersonation of a police officer. The 1980 conviction arose
from an incident at K-Mart when Harakis, while accusing a customer of
shoplifting, falsely identified himself as a City of Manchester police
officer. Harakis subsequently had the convictions annulled pursuant to
RSA 651:5.
In a motion in limine, the plaintiffs sought to admit Harakis' criminal
convictions in order to demonstrate: (1) that if K-Mart had investigated
Harakis at the time of his application in 1978, K-Mart would have discovered
his criminal record and should not have hired him; (2) that K-Mart was
aware of Harakis' 1980 conviction and should have terminated him at that
time; (3) negligence on the part of Harakis and K-Mart; and (4) Harakis'
dishonesty, and to rebut his claims of honesty and integrity. In addition,
the plaintiffs asserted that Harakis' criminal record was annulled either
in whole or in part after the plaintiffs had placed the defendants on
notice of their claims, and that the plaintiffs were entitled to introduce
any evidence of criminal convictions that had not been annulled as of
the date of the incident. The plaintiffs also filed a subsequent memorandum
of law which elaborated on the motion in limine by stating that the criminal
convictions should be admitted in order to verify whether K-Mart was
aware, or should have been aware, of any unannulled convictions when
Harakis was hired. The Trial Court (Dalianis, J.) ruled that
RSA 651:5, V, VIII and X, pertaining to the annulment of criminal convictions,
prohibited any disclosure of annulled criminal convictions.
On appeal, the plaintiffs assert that the trial court should have performed
an in camera review of the dates of annulment for reasons similar
to those advanced below: to elucidate K-Mart's negligence in hiring Harakis
in the event that the 1976 conviction had not been annulled when K-Mart
hired Harakis in 1978, and to ascertain whether any convictions had been
annulled after the plaintiffs had placed the defendants on notice of
their claims. Lastly, irrespective of the convictions' annulment dates,
the plaintiffs assert that K-Mart was aware of the 1980 conviction, and
it should have been admitted into evidence to demonstrate K-Mart's negligence.
RSA 651:5, V (effective until January 7, 1987) permits the annulment of
a criminal conviction if the court determines that the annulment
"will assist in the applicant's rehabilitation and will
be consistent with the public welfare. Upon entry of the order, the applicant
shall be treated in all respects as if he had never been convicted and
sentenced, except that, upon conviction of any crime committed after
the order of annulment has been entered, the prior conviction may be
considered by the court in determining the sentence to be imposed."
RSA 651:5, VIII then provides that:
"In any application for employment, license, or other civil
right or privilege, or in any appearance as a witness in any proceeding
or hearing, a person may be questioned about a previous criminal record
only in terms such as `Have you ever been arrested for or convicted of
a crime that has not been annulled by a court?'"
[22, 23] When a statute is involved, our initial inquiry must address
whether the statutory language covers the issue in question. In this
instance, the breadth of the statutory language gives us little choice
but to hold that the plaintiffs cannot insist on an in camera review
of annulment dates in order to admit evidence of the convictions against
Harakis. RSA 651:5, V states that "[u]pon entry of the order, the
applicant shall be treated in all respects as if he had never
been convicted and sentenced, except that, upon conviction of any crime
committed after the order of annulment has been entered, the prior conviction
may be considered by the court in determining the sentence to be imposed." (Emphasis
supplied.) If the court is allowed to review dates of annulment of convictions,
the applicant is no longer treated "in all respects" as if
he had never been convicted, because the fact of an annulment also necessarily
discloses the fact of a conviction.
The following illustration may serve as a good explanation of why we are
reluctant to permit investigations into annulled convictions, given the
statutory language in effect during the course of the instant case. RSA
651:5 only allows disclosure of convictions when a court is considering
the sentence to be imposed. This means that law enforcement authorities
cannot examine records of annulled convictions in investigations of criminal
suspects. The only time such information becomes disclosable is after
the suspect has been apprehended, tried and convicted. Considering the
virtually absolute restrictions placed on disseminating information in
criminal matters, where public policy considerations would militate in
favor of limited disclosure of annulled convictions, it is an a fortiori proposition
that the blanket restrictions on disclosure of convictions of RSA 651:5
should be applied rigorously in the context of civil suits.
In addition to seeking to admit Harakis' convictions against Harakis himself,
the plaintiffs also sought to admit those convictions against K-Mart
in order to demonstrate K-Mart's negligence in hiring, training, and
retaining Harakis. It is not necessary for us to address the plaintiffs'
arguments regarding this issue. To the extent that the plaintiffs claim
error below, this argument is inapposite because the jury found negligence
on the part of K-Mart, and any error was harmless on the liability issue.
The only possible manner in which admission of Harakis' criminal convictions
might have changed the result below is if the jury had decided the existence
of the convictions warranted an award of enhanced damages. The phrasing
of the trial court's special questions, however, only allowed the jury
to award liberal damages on the malicious prosecution and slander claims,
and not on the negligence claims against K-Mart. No evidence exists in
the record before us that the plaintiffs objected to the wording of the
special questions. Consequently, we decline to reach the merits of the
plaintiffs' assignment of error on the issue of the admissibility of
Harakis' convictions against K-Mart.
V. Admissibility of Facts and Circumstances Occasioning Harakis'
Criminal Convictions
Although the Trial Court (Dalianis, J.) did not admit Harakis'
criminal convictions into evidence, it did allow introduction into evidence
of underlying facts and circumstances that gave rise to Harakis' 1980
conviction for impersonation of a police officer. On this issue, it is
the defendants who claim error for the following four reasons: (1) the
underlying facts and circumstances are part of the annulled record; (2)
the plaintiffs sought to admit the evidence for purposes of demonstrating
Harakis' propensity to accuse unreasonably K-Mart customers, an impermissible
purpose under New Hampshire Rule of Evidence 404; (3) evidence of other
crimes is inadmissible for impeachment purposes under Rule 608, governing
admissibility of evidence of specific acts of conduct, because Rule 608
expressly incorporates Rule 609(c), which prohibits use of evidence of
an annulled conviction; and (4) the underlying facts of the conviction
cannot be the subject of inquiry for impeachment purposes because the
scope of questioning cannot extend beyond the extent of the actual conviction.
[24] The determination of whether RSA 651:5 bars admission of the underlying
facts and circumstances that gave rise to the conviction depends, once
again, upon the statutory language. RSA 651:5, V only extends as far
as evidence of the conviction itself: the applicant is to be treated
as if the conviction had never occurred. Though the statute effectively
erases the conviction, no such similar erasure is effected against the
facts giving rise to the conviction. If, for example, Harakis had never
been tried or convicted, the earlier incident itself would still be admissible
against him under New Hampshire Rule of Evidence 405(b). It would be
highly anomalous for us to allow RSA 651:5 to erase all evidence of an
incident that ultimately ended in a criminal conviction, and yet permit
introduction of evidence of an incident that fortuitously did not culminate
in a criminal conviction.
The defendants also refer us to RSA 651:5, VIII, which states:
"In any application for employment, license or other civil
right or privilege, or in any appearance as a witness in any proceeding
or hearing, a person may be questioned about a previous criminal record
only in terms such as: `Have you ever been arrested or convicted of a
crime that has not been annulled by a court?'"
The defendants link this paragraph with the following definition of "record": "[A]
written memorial of all the acts and proceedings in an action or suit,
in a court of record. The official and authentic history of the cause
consisting in entries of each successive step in the proceedings, chronicling
the various acts of the parties and of the court . . . intended to remain
as a perpetual and unimpeachable memorial of the proceedings and judgment." BLACK'S
LAW DICTIONARY 1438 (rev. 4th ed. 1968). In the defendants' view, then, "criminal
record" under RSA 651:5, VIII includes the underlying facts and
circumstances of a criminal proceeding. Even assuming, however, that
Black's Law Dictionary is the proper authority under which to decide
this issue, the definition of "record" from Black's does not
encompass the underlying facts and circumstances of a criminal proceeding. "Record," according
to Black's, is a "chronicl[e]" and "memorial" of
the judicial proceedings, not of the incidents occasioning the proceedings.
Consequently, we reject the defendants' first argument that RSA 651:5
prevents introduction of evidence of the incident that underlies the
criminal conviction.
The defendants' second argument regarding the admissibility of the incidents
underlying Harakis' convictions is that such evidence is excluded by
New Hampshire Rule of Evidence 404 as evidence introduced for the impermissible
purpose of showing Harakis' character or propensity to harass K-Mart
customers. Scrutiny of Rule 404 is not necessary in the instant case,
however, because the relevant line of inquiry at this point is not into
the applicability of Rule 404, but rather into the applicability of New
Hampshire Rule of Evidence 405. Rule 405(b) states:
"Specific Instances of Conduct—In cases in which
character or a trait of character of a person is an essential element
of a charge, claim, or defense, proof may also be made of specific instances
of his conduct."
[25] In the proceedings below, the plaintiffs alleged that K-Mart had
been negligent in hiring and supervising an employee who was untrustworthy
and who displayed a negative characteristic of unjustifiably accusing
K-Mart customers of shoplifting. Once Harakis' character had been called
into question, Rule 405(b) enabled the plaintiffs to admit evidence of
specific instances of conduct in which Harakis acted improperly. Certainly
the 1980 incident, in which Harakis falsely represented himself as a
police officer to a K-Mart customer, reflects on Harakis' character and
improper job performance and was properly admissible into evidence. See
American Airlines, Inc. v. United States, 418 F.2d 180, 197 (5th
Cir. 1969) (prior inadequate performance in landing airplane under adverse
conditions admissible to show employer's negligence in allowing this
pilot to land aircraft).
Since we have determined that Rule 405 afforded a proper basis for admission
of Harakis' relevant acts of misconduct as part of the plaintiffs' case-in-chief, it
is not necessary to decide whether Rule 608 also affords a satisfactory
basis to admit the evidence for impeachment purposes.
[26] The last argument regarding the admissibility of the underlying facts
and circumstances of Harakis' criminal convictions is made by the plaintiffs,
who claim that the Trial Court (Dalianis, J.) erred in not admitting
the underlying facts and circumstances of Harakis' 1976 conviction of
attempted theft by deception. We agree with the trial court that the
1976 incident is clearly less probative on the issue of Harakis' improper
job performance than the 1980 incident, in which Harakis accused a K-Mart
customer of shoplifting: Harakis was a K-Mart employee in 1980, but not
yet in 1976. Consequently, we do not believe the trial court abused its
discretion in refusing to admit the facts and circumstances that gave
rise to Harakis' 1976 conviction.
VI. Declaration of Mistrial After Harakis Revealed his Criminal Convictions
John Harakis was called as a plaintiffs' witness in the trial. At one
stage in his testimony, the following colloquy by plaintiffs' counsel
occurred:
"Q. Okay. Did you ever falsify any records in your employment
as a security officer other than your applications that have been testified
to here today, application for your license and application for your
job at K-Mart?
A. No, sir.
Q. Never falsified any records while you worked for Filene's?
A. Oh, yes, sir.
Q. You falsified records at Filene's?
A. Yes, I did.
Q. What specifically did you do? What kind of misinformation
did you put on your records?
A. As far as my arrest records was concerned from the Manchester
Police Department and my diploma from high school.
Q. Specifically tell us about this record.
A. There was an incident that I impersonated a police officer,
and there was an attempt of theft by deception on there.
Q. That's a theft by deception also?
A. Right.
Q. Did they find out about that?
A. I have no idea.
Q. But you falsified that information on Filene's application?
A. I placed that I didn't have a police record.
Q. And in fact you had a record on two offenses?
A. That's correct.
[defense attorney]: Objection, your Honor. May I approach the bench? THE
COURT: Yes. Why don't you take another five minutes or so recess. (The jury
takes a recess.)"
As can be seen from the above discussion, defense counsel was late in
objecting to the line of questioning, even after it was clear that Harakis
was disclosing information regarding his criminal background. Defense
counsel had obtained a pre-trial ruling excluding evidence of Harakis'
criminal record. Yet the record reveals, in a section other than that
quoted above, that while defense counsel told Harakis that questions
regarding his criminal convictions would not be raised, defense counsel
did not explain why the court had made that determination. In effect,
defense counsel had not fully apprised Harakis of his rights under the
annulment statute.
[27, 28] It is within the discretion of a trial court to declare a mistrial
if "some circumstance [exists] which indicates that justice may
not be done if the trial continues to a verdict." Mitchel v.
Dover, 98 N.H. 285, 286, 99 A.2d 409, 410 (1953). If, however, the
error can be cured, no mistrial will be declared. See Blais v. Town
of Goffstown, 119 N.H. 613, 619-20, 406 A.2d 295, 299-300 (1979)
(reference to prior criminal proceedings involving plaintiff's husband
cured by instructions to disregard). In the instant case, the court eventually
instructed the jury to focus only on whether Harakis had committed any
wrong while employed by K-Mart. This instruction, given the circumstances
under which Harakis revealed his criminal record, effectively cured the
prejudicial impact, and the trial court did not abuse its discretion
in declining to declare a mistrial.
VII. The Merchant's Privilege Statute
The defendants asked the court to give a jury instruction to the effect
that RSA 627:8-a, if complied with by the defendants, would constitute
a defense to all the plaintiffs' counts. The trial court declined to
do so, instead instructing the jury that RSA 627:8-a would provide a
defense only to the count of false imprisonment. The following three
statutory provisions are relevant to this issue:
"Use of Force by Merchants. A merchant, or his
agent, is justified in detaining any person who he has reasonable grounds
to believe has committed the offense of willful concealment or shoplifting,
as defined by RSA 644:17, on his premises as long as necessary to surrender
the person to a peace officer, provided such detention is conducted in
a reasonable manner."
RSA 627:8-a.
"General Rule. Conduct which is justifiable under
this chapter constitutes a defense to any offense. The fact that such
conduct is justifiable shall constitute a complete defense to any civil
action based on such conduct."
RSA 627:1.
"Liability Limited. No person shall incur any civil
liability to another person by taking any action against such person
which would constitute justification pursuant to RSA 627."
RSA 507:8-d.
The defendants assert that if the requirements of RSA 627:8-a are satisfied,
the above statutory provisions constitute a complete defense to all civil
causes of action, not just false imprisonment. Consequently, the trial
court erred in not giving instructions to that effect regarding all of
the plaintiffs' counts.
[29] The weakness in the defendants' argument, for purposes of this case,
is that RSA 627:8-a requires that the merchant, or his agent, have reasonable
grounds to detain. The jury found that Harakis did not have reasonable
grounds to detain Loukia Panas. Thus, even if the jury had been instructed
on the operation of RSA 627:8-a as a defense to all counts, a reasonable
jury could only have found that RSA 627:8-a was inapplicable. Consequently,
the failure of the trial court to instruct the jury that RSA 627:8-a
applied to all counts was harmless error, if error at all.
VIII. Failure of the Trial Court to Strike Additional Negligence
Counts
The penultimate issue we dispose of requires a brief explication of some
of the procedure below. The plaintiffs' original writs alleged, inter
alia, intentional infliction of emotional distress. Additional counts
were added, including counts of negligent infliction of emotional distress.
The defendants filed a motion to dismiss these counts on the basis that
New Hampshire does not recognize these causes of action. This motion
was granted by the Trial Court (Dalianis, J.). At a later stage
in the proceedings, the plaintiffs were allowed to add four additional
negligence counts. Two of these were counts filed on behalf of Loukia
Panas against Harakis and K-Mart. The count against Harakis alleged negligent
performance of his security guard duties that caused the plaintiff "to
be injured, to suffer mental and emotional distress, mental harm, and
other damages all to the damage of the Plaintiff." The count against
K-Mart alleged K-Mart's vicarious liability for Harakis' tortious conduct.
Nicholas Panas also filed two counts, one against each defendant, alleging
loss of consortium based on the detrimental impact on the Panas' marital
relationship occasioned by Harakis' negligent performance of his duties
and K-Mart's vicarious liability therefor.
[30] On appeal, the defendants argue that the Trial Court (Pappagianis, J.)
erred in not granting defendants' motion to dismiss on the basis that
the additional negligence counts were restatements of the previous negligent
infliction of emotional distress counts. It is not necessary for us to
reach the merits of this issue. Liability in the instant case was found
against Harakis and K-Mart on the basis of counts other than the negligent
performance claims in question here. In addition, the plaintiffs' attorney's
opening remarks and the testimony elicited during the trial make it clear
that the only injuries for which the plaintiffs sought compensation were
emotional and psychological injuries. The plaintiffs made no attempt
to apportion their request for damages for emotional distress according
to the individual counts in question. Since liability has already been
found on all counts for which emotional distress recovery is allowed
to the extent proven, and since there can be no double recovery for damages,
we hold that in the new trial on damages the jury should not be instructed
on the count of negligent performance.
[31] Although our holding does not require us to do so, we wish to make
the observation that any future appeals on negligent infliction of emotional
distress will have to address the issues of physical impact for liability
purposes, and physical manifestation of emotional injuries for recovery
purposes, if appropriate, as discussed in the following two cases: Corso
v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979) and Chiuchiolo
v. New England &c. Tailors, 84 N.H. 329, 150 A. 540 (1930).
IX. Jury Verdict on False Imprisonment Count
The jury returned a verdict for the defendants on the plaintiffs' false
imprisonment count. In particular, the jury found that, although Harakis
did not have grounds to detain Loukia Panas from the objective standpoint
of a reasonable person, he believed subjectively that he had grounds
to detain under RSA 627:8-a, the merchant's privilege statute. Although
their argument is opaque, the plaintiffs appear to assert that because
RSA 627:8-a requires an objective standard, the jury misapplied the provision
and the plaintiffs are entitled to judgments notwithstanding the verdicts
on the false imprisonment counts.
[32] The plaintiffs preserved this issue for appeal by filing a motion
for judgment notwithstanding the verdict with the trial court, and the
trial court denied the motion. The issue is raised for the first time
on appeal in the plaintiffs' reply brief. We think it only reasonable
to require that a reply brief may only be employed to reply to the opposing
party's brief, and not to raise entirely new issues. If we held otherwise,
we would be faced with either of two equally unacceptable results: the
opposing party's inability to respond in writing to the new issues raised
by the reply brief, or the submission of a series of reply briefs until
oral argument date as the parties scramble to respond to a sequence of de
novo arguments and issues. In addition, a response to a new issue
in a reply brief renders the original brief's filing deadline meaningless.
In light of the above considerations, we will not reach the merits of
this last issue.
Affirmed.
SOUTER, J., did not sit; the others concurred.