UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually
and as Guardian and Next
Friend of Roderick Jenks
v. Civil N o . 09-cv-205-JD
Opinion N o . 2012 DNH 120
Textron, Inc.
O R D E R
Melissa Jenks alleges a product liability warning claim on
behalf of her husband, Roderick Jenks,1 and a loss of consortium
claim on her own behalf against Textron, Inc. arising out of an
accident involving a golf car manufactured and sold by Textron.2
Textron filed a motion in limine to preclude any testimony
concerning Melissa’s alleged emotional injuries stemming from
caring for Rod after the accident. Textron further moves to
exclude Melissa’s expert, D r . Carlyle Voss, who offered an
opinion on her emotional state. The plaintiffs object to the
motion.
1
For purposes of this order, Melissa Jenks will be referred
to as “Melissa” and Roderick Jenks with be referred to as “Rod.”
2
Most of the other claims, cross claims, and counterclaims
in this case have been resolved either by the court or by the
parties.
Background3
Rod was seriously injured in July of 2006 when he fell from
the back of an E-Z-Go golf car that was manufactured and sold by
Textron. At the time of the accident, the golf car had a label
on the dashboard instructing the driver that all occupants must
be seated and may have had a sticker on the steering wheel,
advising the driver to carry only the number of passengers for
whom there were seats. There was no warning on the back of the
golf car.
Discussion
Textron moves to preclude any testimony concerning “the
alleged burden imposed on Melissa Jenks as a result of caring for
Roderick Jenks,” including any resulting emotional distress, on
the ground that such testimony is irrelevant to her claim for
loss of consortium. Textron further moves to preclude the
opinion and anticipated testimony of the plaintiffs’ expert, D r .
Carlyle Voss, on the grounds that his opinion is similarly
irrelevant, unfairly prejudicial, and addresses matters not fit
for expert testimony.
3
The background information is taken from the parties’
pretrial statements, motions, and objections.
2
A. Emotional Distress as Part of Loss of Consortium
RSA 507:8-a provides that “either a wife or husband is
entitled to recover damages for loss or impairment of right of
consortium whether caused intentionally or by negligent
interference.” A loss of consortium claim “include[s] three
elements - service, society and sexual intercourse.” Brann v .
Exeter Clinic, Inc., 127 N.H. 155, 161 (1985); see also LaBonte
v . Nat’l Gypsum Co.,
113 N.H. 6 7 8 , 682 (1973). The right to
society “includ[es] love, companionship, comfort, affection,
solace, or moral support.” Guilfoy v . United Servs. Auto. Ass’n,
153 N.H. 4 6 1 , 463 (2006). “The right to services includes
physical assistance in the operation and maintenance of the
home.” N.H. Civil Jury Instructions 4D § 9.10 (2005).
A plaintiff may recover for emotional distress under a loss
of consortium theory. See Aumand v . Dartmouth Hitchcock Medical
Center, 611 F. Supp. 2d 7 8 , 96 (D.N.H. 2009). “[B]ut the
emotional distress recoverable under a loss of consortium theory
is of a different kind” than that which is recoverable under a
negligent infliction of emotional distress theory.
Id. Under a
loss of consortium theory, a plaintiff can recover for “the
emotional distress resulting from the effect of [her husband’s]
injuries . . . on . . . ‘the care, comfort and society’ [he] was
able to give [her].”
Id. (quoting LaBonte, 113 N.H. at 6 8 3 ) .
3
Textron argues that Melissa’s emotional distress arises from
the burden of constantly caring for Rod and therefore is
irrelevant to her claim for loss of consortium.4 Textron is
correct that emotional distress which does not arise out of the
loss of a spouse’s comfort, care, or society is irrelevant to a
loss of consortium claim. The relevance of Melissa’s emotional
distress, however, is not as limited as Textron suggests.
As both Melissa and Voss note, at least part of her
emotional distress results from the fact that “she has lost the
person with whom she fell in love and married.” In addition,
because of Rod’s impairment, Melissa has lost her support during
stressful times, including the current situation in which she
provides constant care for him. Therefore, the stress Melissa
feels in caring for Rod may be relevant to her claim for loss of
consortium to the extent it is caused by her loss of Rod’s
comfort or society. In addition, as discussed further below,
Melissa’s emotional distress, regardless of its cause, is
relevant to Rod’s claim for damages because it may bear on the
type of care Rod receives in the future and her ability to
continue to take care of him in their home.
4
Textron focuses on Melissa’s emotional distress as
discussed in Voss’s “Independent Psychiatric Evaluation.”
4
Accordingly, Melissa’s emotional distress, as discussed in
Voss’s Independent Psychiatric Evaluation, is relevant to both
her loss of consortium claim and Rod’s claim. The jury will be
instructed as to the elements of a loss of consortium claim and
the type of injuries it may consider. Textron can request a
limiting instruction during the course of trial if that becomes
necessary and appropriate and shall be prepared to submit one to
the court in writing if it intends to make such a request.
B. Expert Testimony in Loss of Consortium Claim
Textron moves to exclude the opinion and testimony of D r .
Carlyle Voss on the ground that such testimony is irrelevant,
unnecessary, and unfairly prejudicial. The plaintiffs argue that
Voss has specialized knowledge that will assist the jury with
understanding Melissa’s emotional distress as it relates to her
claim for loss of consortium. They further contend that Voss’s
testimony is necessary to rebut the opinion of Textron’s expert
witness who will testify about Rod’s life care plan.
As with all evidence, expert testimony must be relevant to
an issue in the case. See, e.g., United States v . Pena, 586 F.3d
105, 110 (1st Cir. 2009). Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
5
than it would be without the evidence.” Fed. R. Evid. 401.
Expert testimony must be relevant “not only in the sense that all
evidence must be relevant, see Fed. R. Evid. 4 0 2 , but also in the
incremental sense that the expert’s proposed opinion, if
admitted, likely would assist the trier of fact to understand or
determine a fact in issue.” Ruiz-Troche, 161 F.3d at 8 1 ; see
also Fed. R. Evid. 702. Relevance for purposes of Rule 702 is
interpreted liberally. See, e.g., Mitchell v . United States, 141
F.3d 8 , 14 (1st Cir. 1998).
Voss’s Independent Psychiatric Evaluation recounts his
discussion with Melissa about her life with Rod since the
accident, including her relationship with Rod and the toll his
injuries have taken on her emotional well-being. In Voss’s
opinion, Melissa is dealing with an extraordinarily stressful
situation and is at great risk to become overwhelmed
psychologically.
Voss’s opinion is likely to be helpful to the jury in
understanding Jenks’s emotional distress as it relates to her
loss of consortium claim. Voss’s opinion, that Jenks is in
danger of having a psychological breakdown, is evidence that
would assist the jury in determining the degree of Melissa’s
emotional distress. See, e.g., Koster v . Trans World Airlines,
6
Inc., 181 F.3d 2 4 , 35 (1st Cir. 1999) (testimony from a mental
health expert relevant to consideration of emotional distress).
In addition, Voss’s opinion is admissible because it is
relevant to Rod’s claim for damages. In considering the measure
of damages for Rod’s claim, the jury may consider the reasonable
value of medical care, services, and supplies that will probably
be required and given in the future treatment of Rod. Melissa’s
ability to keep Rod in their home or her need to place him in a
supervised living situation is relevant to the reasonable value
of Rod’s future care.
Accordingly, Voss’s opinion and testimony are relevant to
both Melissa’s loss of consortium claim and Rod’s claim, and
would be helpful to the jury in determining a fact at issue.
Therefore, it is admissible.
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Conclusion
For the foregoing reasons, Textron’s motion to preclude
testimony concerning Melissa Jenks’s emotional distress (document
n o . 179) is denied.
SO ORDERED.
VJoseph
JJoseph A. DiClerico, Jr.
United States District Judge
July 6, 2012
cc: R. Matthew Cairns, Esquire
James M . Campbell, Esquire
R. Peter Decato, Esquire
Samantha Dowd Elliott, Esquire
Mark V . Franco, Esquire
Neil A . Goldberg, Esquire
Kathleen M . Guilfoyle, Esquire
Daniel R. Mawhinney, Esquire
David S . Osterman, Esquire
Christopher B . Parkerson, Esquire
Elizabeth K. Peck, Esquire
Michael D. Shalhoub, Esquire
William A . Whitten, Esquire
8
