Surveillance May Be Discoverable In New Hampshire, Part II: Workers Compensation

It is not uncommon for insurers to conduct surveillance of a workers compensation claimant.  The New Hampshire Department of Labor [“DOL”] does not have any rules or written procedures expressly requiring the disclosure of all surveillance video and related information prior to a hearing.  The workers compensation hearings at the DOL are administrative and quasi-judicial in nature.  They are not strictly bound by the rules of evidence followed by courts, but they are still required to be fundamentally fair to both the claimants and insurers/employers.  See Ohio Bell Tel. Co. v. P.U.C. of Ohio, 301 U.S. 292, 302-303 (1937) (state administrative hearings must provide minimal constitutional due process).

The DOL rules do require notice, prior to a hearing, of the evidence and witnesses the parties intend to present.  Counsel for insurers/employers interpret this requirement as mandating nothing more than saying in writing that they have surveillance information that may be used during a hearing.  However, such minimal notice of something that may have a big impact on the hearing is fundamentally unfair.

As far back as 1951, courts recognized that video surveillance could be presented in a manner that provided a “deceptive impression” in a workers compensation case.  Ferraro v. Zurcher, 79 A.2d 473, 479 (N.J. 1951).  As a result some states have rules in place for workers compensation hearings that require the full disclosure of all video surveillance and related information prior to a hearing out of “a decent respect for the notice requirement of due process and fundamental fairness.”  Gross v. Borough of Neptune City, 875 A.2d 251, 253-254 (N.J. Super. 2005); see Kuykendall v. W.C.A.B., 79 Cal.App.4th 369, 405 (2000) (violation of due process not to have video available to both parties’ experts prior to testimony); M/A Com-Phi v. W.C.A.B., 65 Call.App.4th 1020, 1025 (1998) (due process requires review of surveillance video by all medical experts).

Without prior disclosure of all of surveillance video and related reports an insurer can: present selected portions of video that may be out of context; decide to not reveal claimant favorable portions of video or reports; limit the ability of a claimant to prepare for any cross-examination of the investigator who took the video; limit the ability of a claimant to present witnesses to rebut or explain what is seen on the video; and undermines the ability of a claimant to challenge the reliability of the surveillance.  A claimant can bring these concerns to the DOL by way of a motion to compel.  Such a motion can be based on both the common law rule of completeness, see State v. Keith, 136 N.H. 572, 574 (1992), and fundamental fairness as required by constitutional due process, see In re Stapleford, 156 N.H. 260, 264 (2007).  Both of these legal concepts would support an argument that the claimant must have access to all of the surveillance video and related materials prior to a hearing on the merits in order to receive a fair hearing.


Surveillance May Be Discoverable In New Hampshire, Part I: Personal Injury Claims

It is not uncommon in personal injury claims for a defendant to put a plaintiff under surveillance.  The defendant may want to try to keep the surveillance secret to use as an impeachment surprise at trial.  However, such surveillance may not be protected as work product and defendants may be required to disclose the surveillance in discovery.

In the case of Gutshall v. New Prime, Inc., 196 F.R.D. 43 (W.D. Vir. 2000), the plaintiff was hurt in a tractor-trailer accident and sent discovery requests to the defendant that sought the disclosure of all surveillance of the plaintiff.  The plaintiff spotted ongoing surveillance and reported it to his lawyer.  The lawyer sought to enforce his discovery request by filing a motion to compel with the court.

The defendant claimed the surveillance was attorney work-product that would only be used if appropriate for impeachment at trial.  As such, the defendant argued the surveillance was protected from discovery.  The Court disagreed and ordered the defendant to hand over all of the surveillance to the plaintiff during pre-trial discovery.  The reasoning was that the surveillance may show admissible evidence that is relevant to the plaintiff’s claim of injury.  The Court also held that such material was not protected as work-product.  In doing so, the Court relied on what it described as the majority of federal district court decisions on both the nature of surveillance and whether surveillance was work product.

Even if the surveillance could be considered work-product, the Court also found sufficient need for disclosure to overcome that claim of privilege.  The Court reasoned there was substantial need for the plaintiff to have access to such surveillance prior to trial because of the weight the jury may give the evidence, the need to check the reliability of the evidence and the fact that the circumstances captured by any surveillance cannot be duplicated.

On the issue of what is discoverable prior to trial and the scope of the work product doctrine, New Hampshire law is similar to federal law.  As such, consideration should be given in every personal injury case about whether or not the plaintiff should request all surveillance in discovery prior to trial.


Vaccine Injury

Most of the time, vaccines are a routine, uneventful part of healthcare.  For certain individuals, however, reactions to the inoculations can cause severe injuries and health conditions.  Adults and children alike can find their lives permanently changed by these serious vaccine injuries.

The National Vaccine Injury Compensation Program (VICP) is a no fault system providing compensation to people injured by vaccines.  The system recognizes that vaccines can lead to serious injuries, and provides monetary compensation for victims.

The vaccine compensation fund is governed by a set of regulations that includes a description of symptoms that occur within a set period of time following different vaccinations.  It is presumed that the adverse symptoms are caused by the vaccination if the symptoms documented in a victim’s medical records meet the stated timeline for the vaccine in question.  Compensation may then be available for all medical treatment, including future medical treatment, pain and suffering and any future loss of earning capacity.  The fund also pays for the victim’s attorney fees.  Compensation is only available if symptoms persist for more than 6 months and the symptoms require medical treatment for the victim.

McDowell & Osburn, PA, has successfully litigated vaccine injuries at the U.S. Court of Federal Claims.  A review of a child’s medical records from before and after a vaccination will likely indicate whether a child or adult may be eligible for compensation for a vaccine injury.  Any claim must be filed within 36 months of the onset of the injurious symptoms.  Attorney Joseph McDowell of our firm is admitted to practice before the Court of Federal Claims.

Surplus Lines Umbrella Insurance May Be Required to Provide Uninsured Motorist Coverage in New Hampshire

McDowell & Osburn recently settled a case against a surplus lines insurer that did not want to provide uninsured motorist coverage for a 12 year-old girl who was hit by a car while walking across a street.   The young girl suffered a brain injury in addition to broken bones and internal injuries.  The young girl’s parents had an umbrella policy purchased through an independent agent and placed with United States Liability Insurance Company [“USLIC”].  USLIC claimed that it was a surplus lines insurer and pursuant to RSA 405:24 it did not have to comply with the RSA 264:15 mandate that UM coverage equal the liability coverage amount and offered its claimed UM coverage limit of $25,000.

Our office brought a declaratory judgment court action against the insurer seeking the full amount of the coverage purchased by the parents.  We argued that the USLIC policy was essentially the same type of insurance regularly available from any number of admitted insurance companies and the plaintiff’s family presented no unusual risk relative to obtaining coverage.  Therefore, the USLIC policy was not a ‘surplus lines’ policy and the RSA 264:15 mandate that all umbrella policies provide UM coverage in the same amount as liability coverage applied.

The New Hampshire Superior Court agreed that RSA 264:15 applied to the USLIC policy and stated in an order that “[g]enerally, surplus lines insurance insures against liability for unusual risks that fall outside traditional markets and are typically unavailable through state-authorized carriers.”  The Court ordered UM coverage up to the $1,000,000 liability limit of the umbrella policy.  Order of 11.30.11.

After USLIC appealed to the New Hampshire Supreme Court the case settled in February of 2013 for the payment of a confidential amount by USLIC.

Child with Severe Burns to Both Feet

McDowell & Osburn recently settled a case involving a two-year old child with severe burns to both feet.  The two-year old was playing in the back yard of the duplex where his family rented an apartment.  His mother’s boyfriend was watching him and his baby brother.  When the boyfriend checked on the baby, the two-year old toddler ran over to investigate the remains of a bonfire in the back yard.  The fire looked like it was fully extinguished and was not apparently hot.  The toddler walked into the ashes and was seen by the neighbor’s relative and pulled out.  Unfortunately, there were hot coals under the ashes and the toddler suffered severe burns to the bottoms of both feet.  The toddler had toes amputated, skin graft surgeries and remains at risk of needing one or both feet amputated.  Because of the burns, the toddler (now in elementary school) must wear special footwear and has trouble walking.

The neighbor had held a large party in the back yard of the duplex the night before the toddler was burned.  He was also the manager/owner of a nearby bar.  He advertised the party at his bar and had entertainment at the party that would normally have taken place at the bar.  Over 100 people, many of whom were regular bar patrons, attended the cook-out/party.  The neighbor/bar-manager referred to the party as his annual thank you to his bar customers and the local community.  The bonfire burned until after midnight.  Obviously, the host of the party never fully extinguished the fire as required by law.

The owner of the duplex who rented the apartments to the bar manager and the toddler’s family knew about the annual parties and bonfires.  The owner did nothing to check on the party or the fire arrangements.

Suit was brought on behalf of the child against the neighbor, the bar and the owner.  The case settled on a confidential basis favorably for the child that included the creation of a trust to help fund future medical needs for the child.

Immunity for N.H. Public Entities Does Not Extend to Motor Vehicles

New Hampshire public entities, such as towns, cities, counties and school disctricts, are protected by various statutory immunities that limit when they can be sued for injuring someone.  There are exceptions to these immunity statutes.  RSA 507-B:2 allows claims against municipal entities for harms arising from the operation of “all motor vehicles”.  The municipal entity must be at fault for the operation of the vehicle or “by fault attributable to” the municipal entity.  New Hampshire public entities like to claim that the RSA 507-B:2 exception to immunity is limited to motor vehicles owned and operated by the public entity.  This narrow reading of the statute, however, unfairly attempts to avoid claims which are allowed by the law.

In the case of Chatman v. Strafford County, 163 N.H. 320 (2012), the New Hampshire Supreme Court held that RSA 507-B:2 permitted recovery against a county for negligently supervising the loading of a trailer.  The trailer and vehicle it was being attached to were not owned by the county.  The victim claimed that a county supervisor was negligent in directing the work, resulting in serious injuries.  The trial court dismissed the case based on the assumption that the harm did not fall under RSA 507-B:2.  The New Hampshire Supreme Court reversed and specifically stated:  “we hold that the plaintiff’s claims ‘arise out of the County’s … operation of a motor vehicle’”.  Chatman, 163 N.H. at 326.  While the court did not specifically address the importance of the fact that the vehicle at issue was not owned by the county, it implied that liability is proper under RSA 507-B:2 when the a government entity does not own the vehicle in question but does have control over it.

Given the context of the Chatman decision, liability for negligently entrusting an automobile under the control of a government/public entity along with other negligent acts might be the basis for a legal claim under RSA 507-B:2 even when the public entity does not own or operate the vehicle.

Enhanced Damages for Cell Phone Use

In New Hampshire it is possible for an injured victim to seek enhanced damages from the person who caused the accident.  Enhanced damages are also called liberal compensatory damages and allow for compensation for any aggravating circumstances or conduct that caused the accident.  Such damages are in addition to traditional pain and suffering damages and are sometimes sought when an accident is caused by a drunk driver.  In order to be allowed to ask a jury to award enhanced damages there must be evidence that the person who caused the accident acted in a wanton, malicious or oppressive manner such that the accident was the result of a reckless indifference or disregard for the safety of the victim.  Recently, the New Hampshire Supreme Court upheld criminal penalties when there was evidence the defendant was using her cell phone (including carrying on more than one conversation at a time with call waiting) so extensively while driving she did not see two elderly people in a cross walk even though they were clearly visible for about 300 feet.  One of the victims died.  In order to find the defendant driver guilty of the criminal charge, the jury had to believe that the defendant’s cell phone use while driving was evidence of a reckless indifference to the safety of the victims.  As such, this case would support a claim for enhanced damages in civil cases when similar cell phone use (including texting) contributes to cause any automobile accident.  The case also raises the possibility that enhanced damages may be sought when a driver is substantially impaired or distracted for any reason and causes a similar accident.  The case is State v. Dion, N.H. Supr. Ct. Slip Op. 2011-786 (Feb. 8, 2013).  For more information about enhanced damages when drunk drivers cause accident read this article: Using Rule 404(b) to prove enhanced damages in drunk driving cases which was published in the New Hampshire Trial Bar News, vol. 32 (Winter 2010).