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A Successful Defense by Gary M. Burt & Adam R. Mordecai

June, 2018
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DRI members, Gary M. Burt and Adam R. Mordecai, successfully defended on appeal a decision granting their clients summary judgment in a lead paint poisoning case involving claims by 21 Somali refugee children relocated to New Hampshire from Kenyan refugee camps. The matter, Osman et al v. Wen Lin, et al, has previously been reported in “And the Defense Wins” as Burt and Mordecai had successfully moved to exclude plaintiffs primary expert witness, a neuropsychologist, because the methodology employed to assess the minor plaintiffs fell short of that required for cross-cultural neuropsychological assessment. On interlocutory appeal, the New Hampshire Supreme Court upheld that determination in Osman v. Lin, 169 N.H. 329 (2016).

Subsequent to that decision, plaintiffs claimed to the trial court on remand that they were not foreclosed from conducting a second round of assessments and disclosing new experts. The defendants objected, noting that the prior court orders all indicated that a determination of admissibility of the prior expert’s decision would be control the matter going forward. Plaintiffs also claimed that the expert was really a damages expert not a liability expert, and thus theyG should be able to proceed forward with new testing and disclosure.

The trial court rejected the contention, and ruled that no new neuropsychological assessment or expert would be allowed. With that ruling in hand, the defendants moved for summary judgment, noting that the plaintiffs could not establish that the elevated lead levels experienced caused harm. The plaintiffs did not strongly contest the issue, and the court granted summary judgment.

On the second appeal, the plaintiffs claimed that the NH Supreme Court should revisit its prior decision, and permit the prior expert to testify. The plaintiffs also maintained that the prior court orders did not foreclose them from doing a new neuropsychological assessment. The NH Supreme Court, by memorandum order, concluded that oral argument was unnecessary and upheld the trial court’s ruling as to all issues. This brought to an end litigation that had commenced in October 2006.

This content can also be found on the DRI website. DRI is an international membership organization of attorneys defending the interests of business and individuals in civil litigation, for more information please visit dri.org