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.

Development of an all-metal thick film cost effective metallization system for solar cells

Electrodes made with pastes produced under the previous contract were analyzed and compared with raw materials. A needle-like structure observed on the electroded solar cell was identified as eutectic copper-silicon, a phase considered to benefit the electrical and metallurgical properties of the contact. Electrodes made from copper fluorocarbon and copper silver fluoride also contained this phase but had poor adhesion. A liquid medium, intended to provide transport during carbon fluoride decomposition was incorporated into the paste resulting in better adhesion. The product survived preliminary environmental tests. A 2 cm by 2 cm solar cell made with fluorocarbon activated copper electrodes and gave 7% AMI efficiency (without AR coating). Both silver fluoride and fluorocarbon screened paste electrodes can be produced for approximately $0.04 per watt