Under current New Hampshire law, it is possible for a defendant in a personal injury case to request that a jury consider the fault of someone else for causing the injury to the plaintiff. This includes considering the fault of someone who is not involved in the litigation, is not represented by a lawyer and is not present for the trial. Defendants often seek to apportion fault to as many other people as possible in order to minimize the amount of fault a jury might assign to the defendant for causing the injuries. Since a defendant only pays that portion of a judgment for which he or she is at fault (unless the defendant is 50% or more at fault), there is a monetary incentive for defendants to point the finger at as many other potentially liable people as possible. However, a defendant cannot claim another is at fault without the trial court’s permission. In the case of Debenedetto v. C.L.D. Consulting Engineers, Inc., 153 N.H. 793 (2006), the New Hampshire Supreme Court held that any request by a defendant to hold someone else at fault must be preceded by written notice that describes the theory of liability to be used at trial. The Court described how a defendant has the same burden a plaintiff would have to request that a jury find fault with another person. As a result, defendants must provide a Debenedetto disclosure during pre-trial discovery. In a January 2013 Trial Order, the Trial Court held a defendant’s Debenedetto disclosure inadequate. Normally such a decision would prohibit the jury from considering the fault of anyone not present for trial. However, the Trial Court also permitted the defendant to make a new Debenedetto disclosure because there was time for additional discovery prior to trial and, in the Trial Court’s view, allowing a new disclosure was fair. The Trial Court stressed in its Order that the defendant had the burden to plead facts to support a claim of fault or risk having any new disclosure be ruled inadequate. See DeBenedetto Disclosure Order – Jan. 2013.
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