Stepping Beyond the Smith Plaintiffs‘ Reliance on Corso: An Alternative Approach to Recovering Emotional-Distress Damages in Wrongful-Birth Cases in New Hampshire

[Excerpt] “More than twenty years ago, in Smith v. Cote, the New Hampshire Supreme Court held “that New Hampshire recognizes a cause of action for wrongful birth.” After so holding, the court then discussed the damages available to a prevailing wrongful-birth plaintiff. Among other things, the court held that when parental emotional distress associated with raising a disabled child, born after the mother had received negligent pre-natal assurance of the baby‘s normal health, “results in tangible pecuniary losses, such as medical expenses or counseling fees, such losses are recoverable.” The court further held that a wrongful-birth plaintiff may not recover intangible damages for the ongoing emotional distress associated with raising a disabled child who was carried to term as a result of negligent prenatal care. However, because it was not raised on appeal, the Smith opinion did not address an alternative basis for recovering emotional-distress damages—Linda Smith‘s claim under Corso v. Merrill for the emotional distress associated with witnessing the birth of her disabled daughter after she had been assured that her daughter would be born healthy. I argue that while it seems unlikely that the New Hampshire Supreme Court would give wrongful-birth plaintiffs a Corso claim, the court, if presented with the correct legal question, could well rule that wrongful-birth plaintiffs may recover for the emotional distress they suffer as a result of witnessing the birth of an unexpectedly disabled child. I begin with a brief discussion of the facts of Smith and the nature of a cause of action for wrongful birth. Next I examine the salient points of Corso and describe the parental-bystander doctrine the New Hampshire Supreme Court adopted in that case. In the following section, I assay the application of Corso to Smith, both as a logical matter and in terms of case law from other jurisdictions. Finally, I reframe the question from the one posed by the pleadings in Smith, i.e., whether a wrongful-birth plaintiff also has a Corso claim, and address the question that really matters: whether a wrongful-birth plaintiff in New Hampshire can recover for the emotional distress associated with witnessing the birth of an unexpectedly disabled child. Based upon both out-of-state authority and New Hampshire precedent, I conclude that a wrongful-birth plaintiff in New Hampshire should be able recover such damages even without a Corso claim.

Law Clerks Out of Context

[Excerpt] “In a previous article, I examined judicial opinions in cases in which law clerks have gone wild, principally by doing things that law clerks just aren‘t supposed to do, such as convening court, conducting independent factual investigations into matters before their judges, or leaking drafts of opinions to the press. Here, I focus on opinions in federal cases that discuss two other categories of unusual law-clerk activity, serving as a source of evidence, and going to court, as a litigant. The article is informed by my ten years of experience as a trial court law clerk in the state and federal courts of New Hampshire. Things that caught my eye, and made it into the article, are incidents I read about in judicial opinions that struck me as very different from anything I had ever seen or heard about through the law-clerk grapevine. My purpose is two-fold. First, many of the opinions I discuss are downright entertaining. But beyond that, the unusual fact patterns that make those opinions entertaining also serve to point out things that might happen to a law clerk that are not covered in law school or the typical law-clerk training program. Accordingly, I intend for the article to have a practical dimension that underpins its entertainment value. In Part II, I explore opinions in which law clerks have become sources of evidence in cases they were working on, as producers of exhibits, as affiants, or as witnesses. In discussing those opinions, I focus on both the process by which law clerks have become sources of evidence and the topics on which they have been asked to give evidence. Part III is devoted to cases in which law clerks have been litigants, and it serves as a guide to situations in which litigation is, and is not, a productive option for a law clerk who believes that he or she has been wronged.

Revisiting the Scrap Heap: The Decline and Fall of Smith v. F.W. Morse & Co.

[Excerpt] One of the more difficult tasks facing a federal court is trying to predict how a state’s highest court would rule on a question of law it has not yet addressed. That difficulty is well illustrated by the history of Wenners v. Great State Beverages, Inc., and in particular, the interpretation of that opinion contained in Smith v. F.W. Morse & Co. [ . . . ] This article begins with a close examination of Wenners and the two opinions on which Wenners relied for its now-canonical statement of the relationship between statutory and common law remedies. I continue with a discussion of Smith and the two opinions that Wenners purportedly consigned to the scrap heap. The next section explores the two distinctly different shadows cast by Wenners, one in the United States District Court for the District of New Hampshire, the other in the New Hampshire Supreme Court. I conclude by suggesting that, in light of Bliss v. Stow Mills, Inc., the scrap heap may be due for a changing of the guard, with Smith replacing Godfrey.

Take Me Out to the Metaphor

[Excerpt] “In the fall of 2003, Judge Smith of the United States District Court for the District of Rhode Island wrote that “[c]ases examining the issue of workplace sexual harassment by women against women are about as common as a baseball post-season that includes the Cubs and the Red Sox . . . . Judge Smith’s observation was, of course, rooted in the perception among baseball fans, and in the popular culture, that nothing says “futility” quite like a reference to the Chicago Cubs or the Boston Red Sox. Conversely, there can be little doubt that for one in search of a baseball metaphor for success, all roads lead to the Bronx, home of the New York Yankees. This article examines judicial references to the Cubs, Red Sox, and Yankees that are based on the ongoing ninety-eight-year wait for a World Series championship on the North Side of Chicago, the recently ended eighty-six-year drought between titles in Beantown, and the twenty-six World Series trophies won so far by the men in pinstripes.

Protection Against Hearing Loss in General Aviation Operations, Phase II

An inflight evaluation of four aural protectors is presented. The hearing protection devices studied were ear muffs, plastic ear plugs, rubber ear plugs, and wax ear plugs. It is concluded that ear plugs are satisfactory for providing adequate sound attenuation in general aviation aircraft. However, two problems were found in the use of ear plugs; comfort and interference with cabin communications

Honeycomb-laminate composite structure

A honeycomb-laminate composite structure was comprised of: (1) a cellular core of a polyquinoxaline foam in a honeycomb structure, and (2) a layer of a noncombustible fibrous material impregnated with a polyimide resin laminated on the cellular core. A process for producing the honeycomb-laminate composite structure and articles containing the honeycomb-laminate composite structure is described

Photoacoustic detection of stimulated emission pumping in p-difluorobenzene

Photoacoustic detection has been used to monitor a stimulated emission pumping process in p‐difluorobenzene. Using the Ã^(1)B_(2u)5^1 state as an intermediate, several vibrational levels of the ground electronic state were populated. The photoacoustic method is an attractive alternative to other detection techniques because of its sensitivity, simplicity, and its ability to differentiate between stimulated emission pumping and excited state absorption. An example of excited state absorption in aniline is given

A flight investigation of simulated data-link communications during single-pilot IFR flight. Volume 2: Flight evaluations

Key problems in single pilot instrument flight operations are in the management of flight data and the processing of cockpit information during conditions of heavy workload. A flight data console was developed to allow simulation of a digital data link to replace the current voice communications stem used in air traffic control. This is a human factors evaluation of a data link communications system to determine how such a system might reduce cockpit workload, improve flight proficiency, and be accepted by general aviation pilots. The need for a voice channel as backup to a digital link is examined. The evaluations cover both airport terminal area operations and full mission instrument flight. Results show that general aviation pilots operate well with a digital data link communications system. The findings indicate that a data link system for pilot/ATC communications, with a backup voice channel, is well accepted by general aviation pilots and is considered to be safer, more efficient, and result in less workload than the current voice system

Characterization of wear debris generated in accelerated rolling-element fatigue tests

A ferrographic analysis was used to determine the types and quantities of wear debris generated during accelerated rolling contact fatigue tests. The five-ball rolling contact fatigue tester was used. Ball specimens were made of a corrosion resistant, high-temperature bearing steel. The lubricant was a superrefined naphthenic mineral oil. Conditions included a maximum Hertz stress of 5.52 10 to the 9th power Pa and a shaft speed of 10,000 rpm. Four types of wear debris were observed: (1) normal rubbing wear particles, (2) fatigue microspall particles, (3) spheres, and (4) friction polymer deposits. The characterization of wear debris as a function of time was of limited use in predicting fatigue failures in these accelerated tests

Ferrographic analysis of wear debris generated in accelerated rolling element fatigue tests

The types and quantities of wear particles generated during accelerated ball rolling contact fatigue tests were determined. Ball specimens were made of AMS 5749, a corrosion resistant, high-temperature bearing steel. The lubricant was a super-refined naphthenic mineral oil. Conditions included a maximum Hertz stress of 5.215 times 10 to the 9th power Pa and a shaft speed of 10,000 rpm. Four types of wear particles were observed; normal rubbing wear particles, fatigue spall particles, spheres, and friction polymer