Justia Professional Malpractice & Ethics Opinion Summaries

The defendant, Otto Keller, was involved in a car accident after falling asleep while driving, resulting in a collision with an unoccupied car and a house. He admitted to using heroin and being involved in a methadone clinic. A blood test revealed multiple drugs in his system. Keller was charged with aggravated driving while intoxicated (ADWI) for causing a collision resulting in serious bodily injury, specifically a broken right humerus.The Superior Court denied Keller's motion in limine to exclude the testimony of Colleen Scarneo, the State’s expert in human performance forensic toxicology, and his motion to dismiss the ADWI charge for insufficient evidence of serious bodily injury. The court found Scarneo’s methodology reliable under RSA 516:29-a and Daubert standards. At trial, Scarneo testified that Keller exhibited signs of impairment consistent with the drugs found in his system. The jury found Keller guilty of ADWI.The Supreme Court of New Hampshire reviewed the case and concluded that the trial court erred in admitting Scarneo’s testimony because her methodology was not sufficiently reliable. The court found that her methodology had not been tested, subjected to peer review, had no known error rate, and was not generally accepted in the scientific community. Additionally, the court determined that the evidence was insufficient to prove that Keller’s broken arm constituted a serious bodily injury as defined by RSA 625:11, VI.The Supreme Court reversed Keller’s ADWI conviction due to insufficient evidence of serious bodily injury and the prejudicial admission of unreliable expert testimony. The case was remanded for proceedings consistent with the opinion, specifically for a new trial on the lesser-included charge of driving under the influence of drugs or alcohol (DWI). View "State v. Keller" on Justia Law

The Supreme Court of New Hampshire ruled in a case where the defendant, Jean M. Maxi Jr., was convicted and sentenced for two crimes: attempted felonious sexual assault (FSA) and certain uses of computer services prohibited. Maxi appealed, arguing that the two charges constituted the same offense for double jeopardy purposes, thereby violating his constitutional rights. The defendant also argued pro se that he received ineffective assistance of counsel because the appellate defender failed to consider his research or argue a double jeopardy violation under the U.S. Constitution.The court found that, as charged, the two offenses required different evidence to prove different elements and did not constitute the same offense for double jeopardy purposes. The court also dismissed the defendant's pro se arguments as insufficiently developed for review. Therefore, the court upheld the lower court's decision and affirmed the defendant's conviction and sentence for both charges. View "State v. Maxi" on Justia Law

The Supreme Court of New Hampshire affirmed the conviction of Gregory M. Collins for selling a controlled drug resulting in death. Collins had appealed the conviction, arguing that the Superior Court erred by not recusing the Strafford County Attorney’s Office due to a conflict of interest and by denying his motions to dismiss the charge based on insufficient evidence. The conflict of interest arose from Collins' prior romantic relationship with a legal assistant in the Strafford County Attorney’s Office. The Supreme Court ruled that any conflict of interest from this relationship could not be attributed to the entire county attorney’s office, and the measures taken by the office were sufficient to avoid any appearance of conflict. Regarding the sufficiency of evidence, the court found that Collins had not met his burden of demonstrating that the evidence was insufficient to prove his guilt. The court held that there was enough evidence to support the finding that the decedent died of acute fentanyl toxicity and that Collins was the source of the lethal dose. View "State v. Collins" on Justia Law

Plaintiffs New England Backflow, Inc. (NEB) and Paul Whittemore, appealed a superior court order dismissing several of their claims against defendants the New Hampshire Office of the Fire Marshall (OFM) and Jeremy Cyr, in his official capacity as chief inspector of OFM, for failure to state a claim upon which relief may be granted. Specifically, plaintiffs challenged the trial court’s dismissal of their declaratory judgment requests and their claims of unconstitutional taking, malicious prosecution, and abuse of process. Whittemore started NEB, which installed, repaired, tested, and replaced backflow prevention devices, also known as backflow preventers, for private and public entities. OFM was tipped off by a licensed plumber NEB might be plumbing without a license, which lead to this suit against NEB and Whittemore. Plaintiffs argued to the New Hampshire Supreme Court the trial court erred by: (1) concluding plaintiffs’ declaratory judgment requests were inconsistent with the applicable statutory language without holding an evidentiary hearing; (2) ruling plaintiffs’ request for declaratory judgment relating to a cease and desist order issued by OFM was moot; (3) concluding that Whittemore did not have a vested right to perform his professional work necessary to support plaintiffs’ takings claims; and (4) ruling that plaintiffs failed to state a claim for malicious prosecution and abuse of process. The Supreme Court affirmed the trial court’s order because the declarations plaintiffs sought were inconsistent with the plain and ordinary meaning of the relevant statutory language, their request for the cease and desist declaration was moot, and plaintiffs’ remaining claims failed to state a claim upon which relief may be granted. View "New England Backflow, Inc. v Gagne" on Justia Law

Plaintiff Ron L. Beaulieu & Company appealed a superior court order affirming the New Hampshire Board of Accountancy. The Board suspended plaintiff’s license to do business in New Hampshire for three years and imposed a $5,000 fine after concluding plaintiff committed professional misconduct by failing to retain work papers and records for five years and by failing to properly conduct auditing services for Tri-County Community Action Program (TCCAP) from 2008-2011. Finding no reversible error in the superior court’s judgment, the New Hampshire Supreme Court affirmed. View "Ron L. Beaulieu & Company v. New Hampshire Board of Accountancy" on Justia Law

Petitioner Sandra Brown, DVM, appealed an October 2017 decision by the New Hampshire Board of Veterinary Medicine (Board) suspending her license to practice veterinary medicine for six months and further prohibiting her, following the six-month suspension and until December 31, 2021, from dispensing, possessing, or administering controlled substances (other than euthanasia solution) in her practice. On appeal, she argued the Board lacked subject matter jurisdiction to discipline her for violating the Controlled Drug Act because the Board was not one of the agencies statutorily authorized to enforce that act. She also argued that the Board lacked jurisdiction to subject her practice to post-hearing inspections. "Although we need not decide the full scope of the Board’s jurisdiction to discipline a veterinarian for the violation of 'all laws,'" the New Hampshire Supreme Court concluded the Board had subject matter jurisdiction to discipline petitioner for violating the Controlled Drug Act. Furthermore, the Court found documents in the certified record suggested that petitioner agreed, at the very least implicitly, to the inspections as part of a settlement agreement with the Board. Therefore, the Board had jurisdiction to subject her practice to post-hearing inspections. View "Appeal of Sandra Brown, DVM" on Justia Law

Appellants N.C. and Alethea Young, Ph.D., appealed superior court orders denying Dr. Young’s motion to quash a subpoena for N.C.’s psychological records issued by appellee, the New Hampshire Board of Psychologists (Board), and dismissing N.C.’s petition for a declaratory judgment to prevent the Board from obtaining the records. N.C. has been a patient of Young for many years, attending at least two therapy sessions per week since the age of two. In August 2013, when N.C. was still a minor, she informed Young that her father, S.C., had physically and emotionally abused her. According to Young, throughout her treatment of N.C., she witnessed what she described as S.C.’s aggressive and humiliating treatment of his daughter, both in public as well as in therapy sessions. In September, S.C. filed a written complaint against Young with the Board. The complaint alleged that Young had breached her professional obligations by: (1) becoming personally over-involved with N.C., thus sacrificing her objectivity; (2) providing counseling to both S.C. and his daughter, thus creating an insurmountable conflict of interest; (3) violating RSA 169-C:29 (2014) by failing to timely report suspected abuse of a child to DCYF; (4) violating RSA 633:1, I-a (2007) and 18 U.S.C. § 1201(a) (2012) by detaining and concealing N.C., who was a minor at the time, from S.C. when she drove N.C. to Vermont without S.C.’s knowledge or consent; and (5) failing to respect S.C.’s wishes that she no longer treat his daughter. On appeal, appellants argued that the trial court erred in enforcing the subpoena because the Board failed to establish that it had just cause to issue the subpoena. Appellants also contended that, even if just cause existed to issue the subpoena, once they objected, the subpoena could not be enforced by the court because the Board failed to sustain what, in their view, was the additional burden necessary to pierce the patient’s privilege by showing that there was a reasonable probability the records were relevant and material and that the Board had an essential need for them. Furthermore, appellants argued that, even if the Board met the burden necessary to pierce the privilege, the court erred in not conducting an in camera review of the records before ordering compliance with the subpoena in order to limit the scope of disclosure. After review, the New Hampshire Supreme Court agreed with appellants that the statute required a court order to obtain a patient’s records when there was an objection to compliance with a subpoena based upon a claim of privilege. However, the Court concluded that the trial court did not err in finding that, under the circumstances of this case, the privilege must yield to the Board’s proper exercise of its regulatory responsibilities with regard to its licensee, Dr. Young. View "N.C. v. New Hampshire Board of Psychologists" on Justia Law

Plaintiff-client James Yager appealed a superior court order granting summary judgment to defendant-attorney K. William Clauson on the client’s legal malpractice claim and dismissing that claim as to defendant-law firm Clauson, Atwood & Spaneas. The client’s legal malpractice claim stems from the defendants’ representation of him in two timber trespass actions. In the first action, summary judgment was granted to Mighty Oaks, in part, because the client failed to prove that Mighty Oaks was the entity that cut the timber. In the second action, summary judgment was granted to D.H. Hardwick & Sons, Inc. because the action had been filed more than three years after the timber cutting had ceased and, thus, was barred by the applicable statute of limitations. The client filed the instant malpractice action against the defendants alleging that the applicable standard of care was breached because the Hardwick action was not timely filed. In this case, the trial court concluded that a legal expert was necessary for the plaintiff to prove “what result should have occurred” had the Hardwick action been timely filed. The client argues that this was error because he could have used the “trial-within-a-trial” method to prove this. After review, the Supreme Court held that, to the extent that the trial court determined that the trial-within-a-trial method was unavailable to the client, as a matter of law, the trial court erred. The Court found no error with regard to dismissal of claims against the defendant law firm. The case was remanded for further proceedings. View "Yager v. Clauson" on Justia Law

Petitioner David Stacy appealed a decision of the New Hampshire Bar Association Public Protection Fund Committee (PPFC) denying his claim for reimbursement for the fees and costs that he and his conservatorship estate paid to attorney Donald Wyatt. The PPFC found that the petitioner failed to demonstrate that the funds at issue were lost as a result of Wyatt’s embezzlement, conversion, or theft. Upon review, the Supreme Court found that the PPFC sustainably exercised its discretion when it denied petitioner's claims. View "Appeal of Stacy" on Justia Law

Defendants Robert Christy, Christy & Tessier, P.A., Debra Johnson, and Kathy Tremblay, appealed a superior court decision that rescinded a professional liability policy issued by Plaintiff Great American Insurance Company (GAIC), to the law firm of Christy & Tessier, P.A. Robert Christy (Christy) and Thomas Tessier (Tessier) were partners in the firm, practicing together for over forty-five years. In 1987, Frederick Jakobiec, M.D. (Jakobiec) retained Tessier to draft a will for him. In 2001, Jakobiec's mother, Beatrice Jakobiec (Beatrice), died intestate. Her two heirs were Jakobiec and his brother, Thaddeus Jakobiec (Thaddeus). Jakobiec asked Tessier, who was Beatrice's nephew, to handle the probate administration for his mother's estate. From 2002 through 2005, Tessier created false affidavits and powers of attorney, which he used to gain unauthorized access to estate accounts and assets belonging to Jakobiec and Thaddeus. Litigation ensued; two months after Tessier and Jakobiec entered into the settlement agreement, Christy executed a renewal application for professional liability coverage on behalf of the law firm. Question 6(a) on the renewal application asked: "After inquiry, is any lawyer aware of any claim, incident, act, error or omission in the last year that could result in a professional liability claim against any attorney of the Firm or a predecessor firm?" Christy's answer on behalf of the firm was "No." The trial court found that Christy's negative answer to the question in the renewal application was false "since Tessier at least knew of Dr. Jakobiec's claim against him in 2006." On appeal, the defendants argued that rescission was improper because: (1) Christy's answer to question 6(a) on the renewal application was objectively true; (2) rescission of the policy or denial of coverage would be substantially unfair to Christy and the other innocent insureds who neither knew nor could have known of Tessier's fraud; and (3) the alleged misrepresentation was made on a renewal application as opposed to an initial policy application. GAIC argued that rescission as to all insureds is the sole appropriate remedy given the material misrepresentations in the law firm's renewal application. Upon review, the Supreme Court held that the trial court erred as a matter of law in ruling that Tessier's knowledge is imputed to Christy and the other defendants thereby voiding the policy ab initio. The Court made no ruling, however, as to whether any of the defendants' conduct would result in non-coverage under the policy and remanded for further proceedings. View "Great American Insurance Company v. Christy" on Justia Law