Strict Enforcement of DeBenedetto Disclosure Deadlines: Medical Malpractice Defendants in New Hampshire Can’t Always Have Their Cake and Eat it Too

By Mark A. Abramson and Kevin F. Dugan


Civil defendants in New Hampshire were given an enormous gift in 2003 when our Supreme Court ruled that the jury can apportion fault to a nonparty tortfeasor.  However, that gift comes with certain responsibilities.  The following article discusses a situation where the failure to meet one of those responsibilities resulted in a defendant being barred from pointing the finger at anyone else at trial.


We represent a woman who suffered a stroke shortly after giving birth to her first child.  Although the child was born healthy, and remains healthy, our client now has virtually no use of her legs and is likely permanently wheelchair-bound with no bladder or bowel control.

We filed suit against several different medical care providers including her obstetrician and an anesthesiologist.  At the structuring conference, we requested that the Court set a deadline for all defendants to disclose the identity of every person or party to whom they intended to seek to apportion fault under Nilsson v. Bierman  and DeBenedetto v. CLD Consulting Engineers, Inc.   None of the defendants made such a disclosure.  

Relying on the absence of a DeBenedetto disclosure, we agreed to settle with the obstetrician and proceeded with the case against the anesthesiologist.  We then withdrew our three disclosed obstetrical experts, all of whom were from out-of-state, and notified the anesthesiologist’s counsel that we would not be calling them at trial.  Despite this, counsel for the anesthesiologist requested dates to take the videotaped testimony of the withdrawn obstetrical experts so he could use their testimony at trial to seek an apportionment of fault against the obstetrician, who had now been dismissed from the case.  

We refused to produce our withdrawn obstetrical experts so counsel for the anesthesiologist filed a motion asking the presiding justice, Judge Mangones, to appoint a commissioner so he could subpoena them to testify by videotape.  We objected, informing the court that we had settled with the obstetrician in reliance upon the fact that the anesthesiologist had not made a timely DeBenedetto disclosure.  Counsel for the anesthesiologist conceded the fact that he did not make a timely DeBenedetto disclosure but raised several other arguments.

First, he implied that he effectively made a DeBenedetto disclosure by stating in his expert disclosure that he reserved the right to elicit expert testimony from the plaintiffs’ disclosed experts.  However, the anesthesiologist’s expert disclosure came more than six months after the court’s DeBenedetto disclosure deadline.  Moreover, the relevant portion of the anesthesiologist’s expert disclosure simply stated: “Without conceding accuracy, validity, correctness, truthfulness, or admissibility, defendants reserve the right to elicit expert testimony from all of the plaintiffs’ experts.”

Counsel for the anesthesiologist also argued that the plaintiffs had not been prejudiced by his failure to make a timely DeBenedetto disclosure because trial was still several months away. We replied that prejudice was not a relevant consideration for the court.  In Figlioli v. R.J. Moreau Companies, Inc. , our Supreme Court held that it was an unsustainable exercise of discretion for the trial judge to overlook a party’s failure to meet a court-ordered discovery deadline unless the offending party established “good cause” for doing so.   The court did not consider whether the opposing party had been prejudiced by the offending party’s failure to comply with the discovery deadline.

Even if prejudice was a relevant factor, we pointed out that our clients had actually suffered irreparable harm.  We settled with the obstetrician in reliance on the fact that no other party had expressed an intent to point the finger at him.  We informed the court that we would not have settled with the obstetrician if we thought he might end up on the jury verdict form.  Thus, the fact that the trial was still several months away was meaningless because we could not undo our settlement agreement with the obstetrician.  The prejudice of having to defend the obstetrician while prosecuting our claim against the anesthesiologist would not have been ameliorated by postponing the trial.

Lastly, the anesthesiologist cited Judge Magnones’s order in an earlier medical negligence case, Boisvert v. Sluyters, in which he allowed a defendant to call the plaintiff’s withdrawn orthopedic expert at trial to point the finger at a settling party.   We countered that the Boisvert decision was based on several considerations which distinguished it from this case.  

First and foremost, there was no indication in the Boisvert decision that the defendants had ignored a court-ordered deadline to identify all persons and parties alleged to be at fault and the bases for those allegations.  In fact, we obtained a copy of the structuring conference order in that case and confirmed that it did not include a DeBenedetto disclosure deadline at all.  Thus, the court in Boisvert was not faced with a situation in which a party sought to introduce evidence that was not timely disclosed in accordance with a court-imposed deadline.

In our view, the second thing that distinguished this case from Boisvert is that the plaintiff in that case did not rely on the passage of a court-imposed deadline in deciding to settle with some but not all of the defendants.  Thus, the plaintiffs in Boisvert were not prejudiced like our clients were.

Thirdly, we pointed out that in Boisvert the court concluded that the defendants’ claim of nonparty fault under DeBenedetto was not an affirmative defense but rather a denial of negligence.   However, more recently, in Goudreault v. Kleeman , our Supreme Court clarified that “a civil defendant who seeks to deflect fault by apportionment to non-litigants is raising something in the nature of an affirmative defense.”   According to Goudreault, this means that a defendant making a DeBenedetto claim “carries the burdens of production and persuasion.”   We noted that this clarification of the law calls into question whether the court would have reached the same conclusion in Boisvert.  

Finally, the court in Boisvert found it significant that the plaintiffs “have been on notice of the issue of [the settling defendant’s] negligence, as he was a previously named defendant.”   We argued that, while the same is true in our case, the issue of the obstetrician’s negligence was removed from the case in the plaintiffs’ minds when the anesthesiologist failed to make a timely DeBenedetto disclosure in the face of a court-imposed deadline for doing so.     

In contrast to Boisvert, we pointed out that Judge Mangones had recently issued an order in a case virtually identical to ours barring the defendant in another medical negligence case from seeking to apportion fault to former defendants because the remaining defendant did not make a timely DeBenedetto disclosure as required by the structuring conference order.  

In Doyle v. Landis , the plaintiffs sued a number of medical care providers including Dr. Landis for damages related to the diagnosis and treatment of Mrs. Doyle’s lung cancer.  The court granted the plaintiffs’ motion to amend the structuring conference order to include a DeBenedetto disclosure deadline and counsel for Dr. Landis failed to disclose his intention to point the finger at any of his co-defendants.

After the passing of the court’s DeBenedetto disclosure deadline, the plaintiffs moved to voluntarily dismiss several of the defendants conditioned on the fact that no other party could try to apportion fault to them at trial.  Counsel for Dr. Landis did not object to the plaintiffs’ motions for voluntary nonsuit and they were granted.  The plaintiffs also settled with two defendants and filed standard “neither party” docket markings.  At that point, Dr. Landis was the only remaining defendant.

As trial approached, the plaintiffs moved in limine to bar Dr. Landis from attempting to apportion fault to any of his former co-defendants since he did not make a DeBenedetto disclosure.  Dr. Landis objected to the plaintiffs’ motion.  Like the anesthesiologist in this case, he did not assert good cause for his failure to make a DeBenedetto disclosure.  Instead, he argued that the plaintiffs were not prejudiced.  

On March 3, 2009, the court entered an order granting the plaintiffs’ motion in limine.  Although the order simply said, “Granted,” the court obviously rejected Dr. Landis’ assertion that he need not comply with the structuring conference order because the plaintiffs already knew that the prior defendants may have been at fault.

We argued that, unlike Boisvert, there was no meaningful distinction between Doyle and this case.  We contended that, like Dr. Landis, the anesthesiologist in our case should be barred from asserting fault on the part of former defendants since he flatly ignored the court’s DeBenedetto disclosure deadline.
After all, the whole purpose of the DeBenedetto disclosure deadline is to require the defendants to take a formal position that can be used to guide further discovery and settlement decisions.  As these cases demonstrate, defendants will go to great lengths to avoid formally blaming other defendants because it can be used against them at trial and because it will likely lead the others to return the favor.

After receiving numerous pleadings from both sides, Judge Mangones heard oral argument from counsel.  His order denied the anesthesiologist’s motion and ruled that the anesthesiologist “cannot present evidence of fault relative to any other ‘person or party’ at trial.”

In his order, Judge Mangones began by explaining that the Superior Courts have begun imposing DeBenedetto disclosure deadlines because “defendants alleging the liability of others as a means of reducing their own liability carry the burden of proving what is, essentially, an affirmative defense . . .”   He added that, under Figlioli, “where a party fails, without good cause, to comply with the deadlines set forth in a Structuring Conference Order, evidence related to that missed deadline is inadmissible.”   Based on these rules, Judge Mangones concluded that, “by failing to list any persons or parties alleged to be at fault for the plaintiffs’ injuries by the . . . deadline contained in the Court’s . . . Structuring Conference Order, [the anesthesiologist and his employer] have foregone their right to present evidence to the jury relative to any other party’s liability in this case.”

Judge Mangones rejected the anesthesiologist’s argument that his expert disclosure was sufficient to meet his DeBenedetto disclosure obligation.  He found that counsel’s reservation of the right to elicit testimony from the plaintiffs’ disclosed experts “did not sufficiently identify any persons or parties alleged to be at fault for the plaintiffs’ injuries” since the Structuring Conference Order provided for a specific identification of any such individuals.

Judge Mangones also agreed that forgiving the anesthesiologist’s failure to make a timely DeBendedetto disclosure would result in actual prejudice to the plaintiffs since they relied on the lack of such a disclosure in deciding to settle with the anesthesiologist.


We feel that Judge Mangones’s strict enforcement of the DeBenedetto disclosure deadline in our case is important because medical negligence defendants will not formally point the finger at their co-defendants or at other potentially liable parties in the absence of a court-imposed deadline.  Since our Supreme Court has recognized that defendants seeking to apportion fault to others essentially stand in the shoes of the plaintiff and bear the burdens of proof and persuasion, it would be tremendously unfair to let them hide their intentions.  After all, a plaintiff in a civil suit would not be allowed to formally blame someone for the first time on the eve of trial after the other parties had relied to their detriment on the absence of such a claim.
Had the defendant anesthesiologist’s motion been granted, allowing him to subpoena the plaintiffs’ withdrawn experts in the hopes of allocating fault to the former defendant obstetrician at trial, it would have had the effect of condoning the “gotcha” school of litigation whereby defendants refuse to point the finger at co-defendants until after they settle out of the case.  If defendants wish to take advantage of the unfairness created by Nilsson and DeBenedetto they should at least be required to plead that intention in accordance with scheduling orders.

 .  150 N.H. 393 (2003).
 .  153 N.H. 793 (2006).
 .  151 N.H. 618 (2005).
 .   Id., 151 N.H. at 627.
 .  Hillsborough North Docket No. 04-C-0421, Order dated September 22, 2006.
 .  Id., Order at 16.
 .  158 N.H. 236 (2009).
 .  Id., 158 NH at 256 (emphasis in original).
 .  Id.
 .   See Note 5, infra, Order at 16.
 .   Hillsborough North Docket No. 06-C-249, Order dated March 3, 2009.
 .  Sevigny v. Goldner, Docket No. 07-C-422 (Hillsborough North), Order dated August 26, 2009 at 7-8.
 .  Id., Order at 4.
 .  Id.
 .  Id., Order at 6.
 .  Id., Order at 7.
 .  Id.