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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2008-790 JOSEPH LARAMIE & a. v. SHAWN STONE & a. Argued: January 13, 2010 Opinion Issued: June 30, 2010 Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and C. Kevin Leonard on the brief, and Mr. Douglas orally), for the plaintiffs. Orville B. Fitch II, acting attorney general (Richard W. Head, associate attorney general, and Laura E. B. Lombardi, assistant attorney general, on the brief, and Mr. Head orally), for the defendants. DALIANIS, J. The defendants, Shawn Stone and Todd Connor, appeal a jury verdict awarding the plaintiffs, Joseph Laramie and Timothy Hallam, $650,000 and $1.3 million, respectively, in compensatory damages. We affirm in part, reverse in part and remand. The record supports the following relevant facts. The parties worked together for the department of corrections (DOC) at the New Hampshire State

Prison in Concord. Laramie and Hallam were dismissed from their employment as a result of an incident on April 12, 2005, involving an inmate who had to be physically "extract[ed]" from his cell. The inmate claimed he was injured by a DOC employee who used excessive force during the extraction, and his accusations implicated the defendants. On the day of the incident, the defendants filed written incident reports, but neither report mentioned the inmate's assault claim. Hallam also filed a report, which mentioned the alleged assault but did not state that the inmate had specifically accused the defendants. One week after the incident, each defendant filed a second report, stating that he saw Laramie assaulting the inmate during the extraction. Defendant Connor's report also stated that he told Hallam on April 12 that he saw Laramie punching the inmate. These reports led to an investigation, and Laramie and Hallam lost their jobs in July 2005. They appealed their employment terminations to the personnel appeals board (PAB). After an evidentiary hearing, the PAB concluded that the terminations were unjust, and it reinstated Laramie and Hallam with back pay, benefits and seniority. Laramie returned to the DOC, but Hallam remained out of work on medical leave. An independent psychiatric evaluation concluded that he was permanently unable to return to work at the DOC, and he retired on medical disability. Laramie and Hallam filed separate multi-count writs against their supervisors, the DOC, and the defendants, alleging, among other claims, intentional interference with contractual relations and invasion of privacy (false light). The suits were consolidated, and the Trial Court (Lynn, C.J.) granted summary judgment in favor of all parties except the defendants. Following trial, a jury returned verdicts for Laramie and Hallam, awarding them compensatory damages. On appeal, the defendants argue that the Trial Court (Sullivan, J.) erred by: (1) permitting Robert W. Sturke, Ph.D, Hallam's treating psychologist, to testify as an expert witness; (2) admitting the expert testimony of Arthur Kenison, Ph.D; (3) admitting evidence of the plaintiffs' reinstatement by the PAB; (4) failing to set aside the verdict based upon statements made by counsel during closing argument; and (5) failing to apply the statutory cap in RSA 541-B:14, I (Supp. 2009), which limits recovery in certain claims filed against the State or its employees to $475,000 per claimant. I. Expert Testimony

The defendants raise several arguments pertaining to the trial court's management of discovery and its decisions regarding the admissibility of expert testimony. Specifically, they argue that Hallam failed to disclose Sturke as an expert properly by providing "a summary of facts and opinions to which [he]

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[wa]s expected to testify and a summary of the grounds for each opinion," as required by discovery rules. Super. Ct. R. 35(f)(4). Even if Sturke was disclosed properly, they argue, he was not qualified to testify about Hallam's current or future ability to return to work. See N.H. R. Ev. 702. Finally, they contend that the testimony of Arthur Kenison, Ph.D, involving formulae for how to calculate Hallam's loss of earning capacity, was inadmissible. A. Disclosure of Sturke At a hearing on the defendants' motion in limine to exclude Sturke's testimony, the trial court noted that on the plaintiffs' expert disclosure deadline, Hallam's attorney sent a letter to the defendants' attorneys which provided: Under separate cover, I sent you office notes from Robert W. Sturke, Ph.D., Mr. Hallam's treating counselor. Upon my receipt, I will forward you Dr. Sturke's more recent office notes. The Plaintiff may call Dr. Sturke, Ph.D., as a witness in the trial in this case. I am enclosing a copy of his curriculum vitae. It is anticipated that Dr. Sturke will testify at trial on his treatment, clinical diagnosis, ongoing treatment routine, Mr. Hallam's inability to return to employment at the Department of Corrections, as well as his ability or inability for Mr. Hallam to return to employment given his current condition, medications and assessment. The trial court found that this letter, coupled with Sturke's records and the defendants' opportunity to depose was "sufficient" and that the disclosure was "adequate." When the defendants' counsel deposed Sturke, the following colloquy took place: Q. What do you understand your role at trial to be in this case? A. Just to report what we've talked about. That's all you can talk about. Q. Okay. It's my understanding you haven't been retained as an expert, correct? A. No, I'm a fact witness. Hallam's counsel did not interject or otherwise immediately clarify that Sturke would be presenting expert testimony at trial. In addition, although a complete transcript of Sturke's deposition is not in the record, an excerpt quoted in Hallam's objection to the defendants' motion in limine shows that the defendants' counsel asked Sturke about the cause of Hallam's psychological problems. Specifically, he was asked:

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Q. What do you believe is the cause of Mr. Hallam's psychological problem? A. Right now? Q. Yes. A. Well, certainly a portion of it is related to the abuse he's experienced from his workplace. You know, being fired for

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