UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Daniel Mager

v. Civil No. 04-cv-302-JD

Mary Hitchcock Memorial Hospital

O R D E R

Daniel Mager has moved in limine to exclude two of the

defendant’s designated expert witnesses, Drs. Gerald Gordon and

Wayne Glazier, from testifying at the upcoming trial of his

medical malpractice claim. The defendant, Mary Hitchcock

Memorial Hospital, objects. The court notes at the outset that,

in violation of Local Rule 7.1(a)(2), Mager’s motion is

accompanied by neither a memorandum of law nor a statement

explaining why none is necessary. The court has nevertheless

considered the motion to the extent possible based on the limited

discussion set forth in the body of the document itself.

Mager alleges that, following his admission to the hospital

for back surgery in January 2004, he was subjected to “a number

of urinary catherizations or attempted catherizations” which

“were performed negligently and unskillfully, so as to cause

severe injury and damage to [his] urethra.” Am. Compl. ¶ 6. In

particular, Mager claims to have suffered “completely obliterated

urethral structure . . . .” Id. ¶ 9. According to Mager, the

hospital wants Jordan and Glazer to testify that he “had a

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2

preexisting wide caliber stricture of the urethra that was

somehow caused to develop into the obliterated urethra” and that

“because [he] had a possibility or suggestion of a bladder

infection in 1995 and epididymitis in 1999, this is scientific or

medical evidence of a pre-existing stricture in the urethra.” 

Mot. at [3]. Mager argues that these opinions lack support in

his medical records, which do not contain evidence of a

preexisting urethral stricture, and that the hospital “has not

identified any specific medical literature or study to support

these theories.” Id.

The hospital rejoins that Mager has misconstrued the

opinions of its experts, which it characterizes as follows: 

Mager’s “injuries are more probably than not the result of the

aggravation of a previously asymptomatic, pre-existing stricture

by the catherizations performed within the standard of care, and

not the result of medical negligence.” Mem. Law Obj. Mot. Limine

at 5. This characterization squares with the expert reports

submitted with the hospital’s objection (and omitted from Mager’s

motion itself). Essentially, then, the hospital intends to

present testimony from Jordan and Glazier that Mager’s injuries

did not result from the hospital’s negligence. Under New

Hampshire law, a defendant in a medical malpractice case may

present expert testimony that its alleged negligence did not

cause the plaintiff’s injuries in the form of opinions as to

other possible causes. Wilder v. Eberhart, 977 F.2d 673, 676-77

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1With its objection, the hospital has submitted medical

literature supporting an association between a bladder infection

or epididymitis and urethral stricture.

3

(1st Cir. 1992). “These other possible causes need not be proved

with certainty or more probably than not.” Id. at 676.

Even when taken at face value, then, Mager’s criticisms of

Jordan’s and Glazier’s opinions would not make those opinions

inadmissible as tending to show other possible causes of Mager’s

obliterated urethra.1 Mager will have the opportunity to explore

these criticisms through cross-examination of the hospital’s

experts. In any event, Mager’s motion is utterly unsupported by

reference to the experts’ disclosed opinions, their depositions,

or other evidentiary materials. The motion (document no. 19) is

therefore DENIED.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 20, 2006

cc: David P. Angueira, Esquire

Alan L. Cantor, Esquire

Charles A. Donahue, Esquire

David Miles Gould, Esquire

Emily G. Rice, Esquire

Edward M. Swartz, Esquire

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