Bartlett v . Mutual Pharmaceutical CV-08-358-JL 7/26/10
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karen L . Bartlett
v. Civil N o . 08-cv-358-JL
Opinion N o . 2010 DNH 125
Mutual Pharmaceutical
Company, Inc.
SUMMARY ORDER
Bartlett has moved in limine to exclude various types of
evidence from the upcoming trial. See L.R. 16.2(b)(3). This
court will address each of her motions in turn.
Motion # 1 : Generic drug pricing (doc. 185)
(a)-(b) Bartlett seeks to exclude evidence that generic
drugs cost less than brand-name drugs. But such evidence is
relevant background information, see Faigin v . Kelly, 184 F.3d
6 7 , 81 (1st Cir. 1999) (calling it “well-settled that ‘context’
evidence generally is admissible”), and is not unfairly
prejudicial to Bartlett. Her request is therefore denied. See
Fed. R. Evid. 401-403.
(c)-(d) Bartlett seeks to exclude any suggestion by Mutual
that a verdict against it in this case would result in higher
drug prices. Mutual states that it has no intent to make any
such suggestion. Bartlett’s request is therefore granted. See
Fed. R. Evid. 403.
(e)-(i) Bartlett seeks to exclude evidence that her doctor,
instead of prescribing a particular manufacturer’s version of
Sulindac, allowed the pharmacy to decide which version to use,
and that the pharmacy chose Mutual’s because of its lower cost.
Evidence about the doctor’s prescription decision is relevant
background information, see Faigin, 184 F.3d at 8 1 , and is not
unfairly prejudicial to Bartlett, so her request to exclude it is
denied. See Fed. R. Evid. 401-403. But evidence about the
pharmacy’s reason for choosing Mutual’s version appears to be
speculative, see Bartlett v . Mut. Pharm. Co., 2010 DNH 123, 1 2 ,
see also Fed. R. Evid. 602 (permissible basis for fact witness
testimony), 701 (permissible basis for lay opinion testimony) 703
(permissible basis for expert opinion testimony), and Mutual has
not explained how it is relevant, see Fed. R. Evid. 4 0 1 , 402.
Bartlett’s request to exclude it is therefore granted.
Motion # 2 : Bartlett’s husband (doc. 186)
Bartlett seeks to exclude evidence of various facts
regarding her husband and former co-plaintiff Greg Bartlett,
including his problems with alcohol, his prior arrests and
misdemeanor convictions, his incarceration and house arrest, his
resulting resignation from work and continued unemployment, and
his inability to care for his wife. The motion is granted in
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part. Such evidence is not admissible to impeach Bartlett or her
husband. See Fed. R. Evid. 6 0 8 , 609.
The evidence may, however, have some bearing on the amount
of Bartlett’s damages, in that her husband’s legal troubles and
job loss could be the source of some of her claimed emotional
distress. See Fed. R. Evid. 4 0 1 , 402. This court will determine
at trial whether to allow some cross-examination in that regard
and, if s o , what limits are necessary to prevent unfair prejudice
to Bartlett. See Fed. R. Evid. 403.
Motion # 3 : Collateral sources (doc. 188)
(a) Bartlett seeks to exclude evidence of any life or
disability insurance, free or discounted transportation, or other
government or charitable benefits that she has received as a
result of her injuries. Her request is granted. All of the
benefits at issue fall within the collateral source rule, which
provides that “if a plaintiff is compensated in whole or part for
his damages by some source independent of the tort-feasor, he is
still permitted to make full recovery against [the tort-feasor].”
Aumand v . Dartmouth Hitchcock Med. Ctr., 611 F. Supp. 2d 7 8 , 90
(D.N.H. 2009) (quoting Moulton v . Groveton Papers Co.,
114 N.H.
505, 509 (1974)). Thus, the probative value of such evidence is
3
substantially outweighed by the risk of unfair prejudice. See
Fed. R. Evid. 403.
(b) Bartlett asks this court to compel one of Mutual’s
experts, Jane Mattson, to acknowledge at trial that her life care
plan for Bartlett omitted certain costs paid or provided by
collateral sources. The request is denied. Bartlett is free to
cross-examine Mattson about whether she omitted certain costs,
and Mattson must answer without reference to collateral sources
potentially available to pay those costs. But this court will
not compel particular testimony. See id.
(c) Bartlett seeks to exclude evidence that her healthcare
providers accepted less than face value in settlement of her
medical bills. The request is granted. Such write-offs are also
covered by the collateral source rule. See Reed v . Nat’l Council
of Boy Scouts of Am., Inc., 2010 DNH 1 8 , 18-28; Aumand,
611 F.
Supp. 2d at 90-92. Thus, the probative value of such evidence is
substantially outweighed by the risk of unfair prejudice. See
Fed. R. Evid. 403.
(d) Although a defendant is normally allowed to challenge
the reasonableness of medical bills, see Reed, 2010 DNH 1 8 , at
2 8 , Bartlett argues that Mutual should be prohibited from doing
so because it failed to designate an expert on that issue. This
request is denied. It is Bartlett’s burden to prove damages,
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including that her medical expenses were reasonable. Mutual may,
at the very least, use cross-examination to challenge the
evidence that Bartlett presents (though it may not use evidence
of the write-offs to do s o , see Aumand, 611 F. Supp. 2d at 91-
92). If Mutual attempts to introduce its own evidence of
unreasonableness, this court will consider any objections
Bartlett may have at that time.
(e) Bartlett also seeks to exclude evidence of her husband’s
past or future income. This request is subject to the same
analysis as limine motion # 2 , supra.
(f) Finally, Bartlett seeks to exclude evidence that her
disability insurer concluded, as of January 2008, that she was
not totally disabled. Her request is granted, as that conclusion
is hearsay, see Fed. R. Evid. 801(c), and Mutual has not argued
that it is not hearsay, or for any hearsay exception. Moreover,
the evidence is unfairly prejudicial to Bartlett, see Fed. R.
Evid. 403, because it would reveal a collateral source of
benefits and also could cause “the trial [to] deteriorate into a
protracted and unproductive struggle” over the validity and
significance of the disability insurer’s decision. L’Etoile v .
New Eng. Finish Sys., Inc., 575 F. Supp. 2d 3 3 1 , 334 (D.N.H.
2008) (quoting Paolitto v . John Brown E . & C., Inc.,
151 F.3d 6 0 ,
65 (2d Cir. 1998)).
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Motion # 4 : Jury instructions (doc. 189)
This motion, which proposes two jury instructions, is taken
under advisement and will be considered in connection with the
parties’ recent submissions of proposed jury instructions (see
docs. 258 and 2 6 4 ) .
Motion # 5 : Expert motion redux (doc. 190)
This motion simply reproduces Bartlett’s motion to exclude
or limit expert testimony (doc. 1 2 8 ) , on which this court
recently ruled. See Bartlett, 2010 DNH 123. It is therefore
denied as moot.
Motion # 6 : Bartlett’s doctor (doc. 191)
(a) Bartlett seeks to exclude any reference to certain
comments that her treating physician, D r . Tahsin Ergin, made to
her counsel regarding an unsigned draft of his written
declaration. The comments were somewhat critical of language
drafted by Bartlett’s counsel, calling a comparison of Sulindac
to other NSAIDs “fairly selective” and requesting its removal.
Bartlett’s request is granted. The comments have little to no
bearing on D r . Ergin’s credibility, which is Mutual’s stated
reason for using them. They have more to do with Bartlett’s
counsel’s credibility, which of course is not relevant, see Fed.
6
R. Evid. 4 0 1 , 4 0 2 , and renders the comments unfairly prejudicial
to Bartlett, see Fed. R. Evid. 403, to an extent that outweighs
any other probative value they may have.1
(b) Bartlett seeks to exclude any references to D r . Ergin’s
testimony about medical literature and data that post-date his
treatment of Bartlett. Her request is granted. Such testimony
cannot be presented as expert opinion, because D r . Ergin did not
produce an expert report, see Fed. R. Civ. P. 26(a)(2)(A), and
thus may not answer “hypothetical questions” that require
specialized knowledge and “include information not learned during
the course of treatment.” Bartlett, 2010 DNH 123, at 37
(quotation omitted). Nor can such testimony be presented as lay
opinion, because post-treatment literature and data could not
possibly have affected D r . Ergin’s decision to prescribe Sulindac
to Bartlett and thus is not relevant for reasons independent of
his expertise. See Fed. R. Evid. 701 (requiring lay opinion
testimony to be “helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue” and “not based
on ... specialized knowledge”).
1
In the highly unlikely event that D r . Ergin’s trial
testimony creates the possibility that the comments become a
vehicle for permissible impeachment, see Fed. R. Evid. 608(b),
613, Mutual’s counsel shall request a sidebar or similar
conference to proffer the statements before impeaching with or
offering them.
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Motion # 7 : FDA’s wishes (doc. 192)
This motion seeks to exclude any references to what the FDA
or its personnel “want” from generic drug manufacturers, or what
they “would or would not have approved, considered, or rejected.”
The motion is granted, as any such testimony would be speculative
and unfairly prejudicial. See Bartlett, 2010 DNH 123, at 6-7, 34
(granting both parties’ motions to exclude expert testimony of
this sort); see also Fed. R. Evid. 602 (permissible basis for
fact witness testimony), 701 (permissible basis for lay opinion
testimony).
Motion # 8 : Bad luck (doc. 193)
(a) Bartlett seeks to exclude lay witnesses from attributing
her injuries to “bad luck,” “luck of the draw,” or similar
phrases. It is difficult to envision how or why this issue would
arise at trial, as lay opinion of that sort obviously is not
“helpful to a clear understanding of the witness’ testimony or
the determination of a fact in issue.” Fed. R. Evid. 701.
Still, even if it does arise, any prejudice to Bartlett is likely
to be minimal, since a lay witness has no authority on such
matters. C f . Bartlett, 2010 DNH 123, at 11 n.2. Bartlett’s
request is nonetheless granted under Rule 701.
8
(b) Bartlett also seeks to preclude lay witnesses from
opining that they have no criticism of Mutual’s actions. Her
request is granted. Such testimony would not be “helpful to a
clear understanding of the witness’ testimony or the
determination of a fact in issue” and thus is not permissible lay
opinion. See Fed. R. Evid. 701.
Motion # 9 : Litigation history (doc. 194)
Bartlett seeks to exclude any references to her prior
complaint in this case, prior parties that have been dismissed,
or prior claims that have been dismissed. Since Mutual has no
objection to this motion, it is granted. See Fed. R. Evid. 401-
403; L’Etoile, 575 F. Supp. 2d at 339-40.
Motion #10: Bartlett’s counsel (doc. 195)
Bartlett seeks to exclude various facts about her counsel
and about other SJS/TEN litigation. Since Mutual has no
objection to this motion, it is granted. See Fed. R. Evid. 401-
403.
Motion #11: Good character (doc. 196)
(a)-(c) Bartlett seeks to exclude any testimony or argument
that vouches for the good character of the FDA, Mutual, or their
9
employees, and how hard-working they are. Mutual objects that
such testimony is merely background information that should be
permitted to help the jury put this case in context. But Mutual
can provide an adequate background without introducing
impermissible character evidence of that sort. Bartlett’s
request is therefore granted. See Fed. R. Evid. 404(a), 608.
This ruling is without prejudice, however, to being revisited
should Bartlett “open the door” with evidence of the FDA’s
alleged lack of resources or capability. C f . United States v .
Fowler, 620 F. Supp. 2d 229, 233 (D.N.H. 2009) (noting that a
party can “open[] the door to cross-examination on [otherwise
inadmissible character] evidence by testifying about the subject
on direct”) (citing United States v . Balthazard,
360 F.3d 309,
317 (1st Cir. 2004)).
(d) Bartlett also seeks to exclude any references, first, to
drugs other than Sulindac that Mutual manufactures, and second,
to any good acts done by Mutual that are unrelated to the issues
in this case (such as charitable donations or discounted drugs
for the needy). The first request is denied, as the number and
nature of the drugs that Mutual manufactures is relevant
contextual information, at least within limits. But the second
request is granted, as such “unrelated good acts” evidence, not
justified by Mutual for any permissible reason under Rule of
Evidence 404(b), is impermissible character evidence, see Fed. R.
10
Evid. 404(a), 6 0 8 , and otherwise is not relevant, see Fed. R.
Evid. 4 0 1 , 402.
Motion #12: Verdict’s impact (doc. 197)
Bartlett seeks to exclude any references to how a verdict in
her favor might impact the community, insurance costs, or the
drug industry. Since Mutual has no objection to this motion, it
is granted. See Fed. R. Evid. 403.
Motion #13: Others’ health (doc. 198)
Bartlett seeks to exclude any references to the health of
other persons, including the fact that one of Mutual’s experts
has suffered from cancer. Since Mutual has no objection to this
motion, it is granted. See Fed. R. Evid. 4 0 1 , 402. It should go
without saying, of course, that this ruling does not limit either
party from presenting evidence about the connection between
Sulindac and SJS/TEN, notwithstanding the fact that such evidence
may implicate SJS/TEN cases involving persons other than
Bartlett.
Motion #14: Bartlett’s history (doc. 200)
(a)-(b) Bartlett seeks to exclude evidence that she did not
read Sulindac’s label. Mutual argues that such evidence is
11
relevant to show that the label is intended for the doctor, not
the patient. But that is a point of law (known as the “learned
intermediary” rule) on which both parties agree, not a disputed
fact that Mutual needs to prove at trial. See Bartlett v . Mut.
Pharm. Co., 2010 DNH 1 1 2 , 12 n.5. Moreover, the use of such
evidence would be just as likely to suggest to the jury that
Bartlett should have read the label, which is contrary to the
law. Bartlett’s request is therefore granted, see Fed. R. Evid.
401, 4 0 2 , without prejudice to a showing by Mutual that the
evidence is relevant for some other purpose.
(c) Bartlett seeks to prohibit any reference to her
statement, made at her deposition, that doctors should be aware
of Sulindac’s link to SJS/TEN. She argues that such an opinion
requires specialized knowledge, which she lacks. See Fed. R.
Evid. 7 0 1 , 702. Mutual argues, in response, that the statement
is admissible as a party admission, notwithstanding Bartlett’s
lack of expertise. See Fed. R. Evid. 801(d)(2), advisory
committee notes (1972) (noting the “freedom which admissions have
enjoyed ... from the restrictive influences of the opinion rule
and the rule requiring firsthand knowledge”); but see 5
Weinstein’s Federal Evidence § 801.30[4], at 801-55 (2d ed. 1997)
(stating that party admissions “still must comply with other
evidence rules”).
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Even assuming arguendo, however, that Bartlett’s statement
would be admissible as an admission, it is still “subject to
exclusion under Rule 403 if its potential for unfair prejudice
overwhelms its probative worth.” Williams v . Drake, 146 F.3d 4 4 ,
48 (1st Cir. 1998) (citing 5 Weinstein, supra, 801.20[3], at 801-
44). That is the case here. Bartlett’s statement has little
probative value, not only because of her lack of expertise, but
also because a witness who actually has such expertise (Mutual’s
expert D r . Robert Stern) will testify that reasonable doctors
should be aware of the link between Sulindac and SJS/TEN, see
Bartlett,
2010 DNH 123, at 2 4 , and because Bartlett’s prescribing
physician has testified that he did, in fact, know of that link,
see Bartlett,
2010 DNH 1 1 2 , at 6. Given the statement’s
potential for unfair prejudice to Bartlett, her request to
exclude it is granted. See Fed. R. Evid. 403.
(d)-(f) Bartlett seeks to exclude evidence that, in addition
to the skin reactions and swallowing problems that she allegedly
suffered as a result of taking Sulindac, she has suffered other,
less serious skin reactions and swallowing problems at other
times in her life. Mutual argues that such evidence is relevant
because it suggests pre-existing conditions and hypersensitivity.
Mutual has no expert testimony to support those theories. See
Stevens v . Bangor & Aroostook R.R. Co., 97 F.3d 5 9 4 , 601 & n.7
(1st Cir. 1996) (emphasizing that “there is adequate expert
13
testimony that an accident aggravated a pre-existing condition”
and noting “the problem of ... admissibility” in the absence of
such testimony). Without expert testimony, the evidence may have
limited probative value. This court is not prepared to
categorically exclude all such evidence at this point, but limits
may be imposed at trial to prevent unfair prejudice to Bartlett.
See Fed. R. Evid. 403.
(g) Bartlett seeks to exclude evidence that she previously
took antibiotics for a dog bite. Mutual argues such evidence is
relevant because the antibiotics carried a risk of SJS/TEN, as
reflected on their warning label. Mutual will certainly be
permitted to present evidence at trial that there are other drugs
that cause SJS/TEN. Whatever limited relevance, if any, that
Bartlett’s personal consent to use of such drugs might have,
however, is limited to instances where she was made aware of the
SJS/TEN risk involved. Nothing in the record suggests, however,
that Bartlett read that label or was aware of the SJS/TEN risk.
The evidence thus has no little to no probative value and creates
a risk of unfair prejudice to Bartlett. Her request is granted.
See Fed. R. Evid. 403.
(h) Bartlett seeks to exclude evidence that her friend Linda
Mailhot, or any other lay witness without medical training, knew
that SJS/TEN were possible side effects of Sulindac. Her request
is granted. Such evidence is purely anecdotal and, contrary to
14
what Mutual argues, is not probative of what members in the
medical community generally knew or should have known. See Fed.
R. Evid. 4 0 1 , 402. This ruling, of course, does not limit either
party from presenting evidence about whether Mutual or the FDA
knew about Sulindac’s link to SJS/TEN, regardless of whether
their officials had medical training.
(i) Bartlett seeks to prevent Mutual from eliciting that
some of her treating physicians formed no opinion about whether
Sulindac caused her injuries, as established at their
depositions. The request is denied. As this court previously
explained, “Bartlett’s treating physicians may testify about
whether Sulindac caused Bartlett’s injuries, provided that they
reached that conclusion in a reliable manner while examining and
treating Bartlett.” Bartlett, 2010 DNH 123, at 36-37. Bartlett
will not be unfairly prejudiced if some of her physicians testify
that they never reached any conclusion on that subject. See Fed.
R. Evid. 403.
Bartlett also seeks to exclude any undisclosed expert
opinions about causation. That request is covered by this
court’s previous ruling on undisclosed expert opinions. See
Bartlett, 2010 DNH 123, at 15-16.
(j) Finally, Bartlett seeks to exclude evidence that her
husband’s first son was born out of wedlock. Since Mutual
15
concedes that such evidence is inadmissible, Bartlett’s request
is granted. See Fed. R. Evid. 401-403.
Motion #15: Uncalled witnesses (doc. 201)
Bartlett seeks to exclude any references by Mutual to
witnesses not called by her to testify at trial, and any
commentary on what their testimony might have been. “Under
certain conditions, a party may argue that the jury should draw
an adverse inference against the opposing party because of its
failure to call a witness.” Colon-Millin v . Sears Roebuck de
P.R., Inc., 455 F.3d 3 0 , 34 n.2 (1st Cir. 2006). Such an
inference may not be drawn, however, “unless the evidence shows
that the witness is available to testify on behalf of the party,
that the testimony of the witness would be relevant and
noncumulative, and that the witness is not prejudiced against the
nonproducing party.”
Id. (quoting United States v . Ariza-Ibarra,
651 F.2d 2 , 15-16 (1st Cir. 1981)). Bartlett’s motion is thus
granted in part. Mutual may not comment on Bartlett’s uncalled
witnesses unless and until it lays a proper “missing witness”
foundation and obtains this court’s permission to do s o . Any
such request shall be made outside the presence of the jury.
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Conclusion
As set forth above, this court GRANTS in part and DENIES in
part some of Bartlett’s motions in limine (docs. 185, 186, 1 8 8 ,
196, 2 0 0 , and 2 0 1 ) , GRANTS some of them (docs. 1 9 1 , 1 9 2 , 193,
194, 195, 1 9 7 , 1 9 8 ) , DENIES one of them as moot (doc. 1 9 0 ) , and
takes one under advisement (doc. 1 8 9 ) .
SO ORDERED.
Joseph N . Laplante
r
^ited States District Judge
Dated: July 2 6 , 2010
cc: Keith M . Jensen, Esq.
Bryan Ballew, Esq.
Patrick J. O’Neal, Esq.
Eric Roberson, Esq.
Christine M . Craig, Esq.
Timothy P. Beaupre, Esq.
Joseph P. Thomas, Esq.
Paul J. Cosgrove, Esq.
Jeffrey D. Geoppinger, Esq.
Linda E . Maichl, Esq.
Stephen J. Judge, Esq.
17
