UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen L. Bartlett

v. Civil No. 08-cv-358-JL

Mutual Pharmaceutical

Company, Inc.

SUMMARY ORDER

 The court GRANTS Bartlett’s motion for a finding that

certain of her potential witnesses, i.e., Drs. Claes Dohlman, Nam

Heui Kim, and Joel Stein, and Ms. Rebecca Padulo, would be

“unavailable” at trial under Rule 32(a)(4) of the Federal Rules

of Civil Procedure (document no. 240). Bartlett’s filing makes a

sufficient demonstration of that fact as to each witness, and

Mutual does not contest those showings.

Mutual does object, however, to much of the deposition

testimony itself. Those objections--which, Mutual tellingly

says, cover “virtually all the testimony elicited by plaintiff in

this case”--will be resolved by the court if and when necessary. 

But Bartlett asks the court to rule on certain challenged

portions of Dr. Kim’s testimony sufficiently in advance of trial

so that, if it is deemed inadmissible, the court can “enter an

order compelling Dr. Kim to appear at trial.”

Case 1:08-cv-00358-JL Document 275 Filed 07/26/10 Page 1 of 6
The court sees no problem with resolving the admissibility

of this testimony at this time (and, while Bartlett’s motion

seems to anticipate that Mutual would object to that process, it

does not). Indeed, that is the whole point of pre-trial motions

in limine. The court does see a problem, though, with compelling

the testimony of a witness who, so far as the record indicates,

has not been subpoenaed for trial, see Fed. R. Civ. P.

45(a)(2)(A), let alone indicated that she would not comply with

such a subpoena if it issues. Dr. Kim is located in or near

Worcester, Massachusetts, within this court’s subpoena power. 

See Fed. R. Civ. P. 45(b)(2)(B). If Bartlett decides that she

wants Dr. Kim to appear at trial (whether because the court

sustains certain objections to her deposition testimony or

otherwise), then Bartlett can seek the issuance of a subpoena to

that end, and the court can then resolve whatever request for

relief Dr. Kim makes in response. See Fed. R. Civ. P. 45(c)(3). 

The fact that Dr. Kim is expected to be out of the country for

most if not all of the trial period does not empower this court

to compel her to testify in the absence of a valid subpoena and a

request for relief therefrom. Cf. Fed. R. Civ. P. 45(e). 

To assist Bartlett in deciding whether to subpoena Dr. Kim,

the court makes the following rulings on Mutual’s objections to

Dr. Kim’s testimony, insofar as that testimony is reproduced in

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Bartlett’s motion (document no. 240) at pages 5-9, Mutual’s

objection thereto (document no. 270), its motion in limine

(document no. 205), and its objections to Bartlett’s deposition

designations (document no. 206) and her witness list (document

no. 210). The court does not resolve here the admissibility of

any other portions of Dr. Kim’s deposition testimony, or the

admissibility of portions of the deposition testimony of any

other witness.

General objections

Mutual objects to much of Dr. Kim’s testimony as “improper

opinion from a non-retained expert,” since she was one of

Bartlett’s treating physicians. As this court recently

explained, Dr. Kim (like all of Bartlett’s treating physicians

whom she seeks to call as witnesses) was disclosed as a nonretained expert in accordance with Rule 26(a)(2)(A) of the

Federal Rules of Civil Procedure, and therefore may offer expert

testimony “about whether Sulindac caused Bartlett’s injuries,

provided [she] reached that conclusion in a reliable manner while

examining and treating Bartlett.” Bartlett v. Mut. Pharm. Co.,

2010 DNH 123, 37 (document no. 269) (citing Sprague v. Liberty

Mut. Ins. Co., 177 F.R.D. 78, 81 (D.N.H. 1998)).

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While a number of Dr. Kim’s challenged statements express

opinions as to the cause of Bartlett’s injuries or the need for

particular treatments in response, nearly all of those statements

or their prefatory questions make clear that Dr. Kim formed those

opinions during her treatment of Bartlett. Moreover, the

opinions appear reliable, based on Dr. Kim’s training and

experience. Such opinions are therefore admissible. See id. 

Insofar as any of Dr. Kim’s challenged opinions do not meet these

criteria, Mutual’s objection is sustained as noted below.

Mutual also objects to all of the testimony at issue as the

product of leading questions in violation of Rule 611(c) of the

Federal Rules of Evidence, which provides that, with exceptions

not relevant here, “[l]eading questions should not be used on

direct examination except as may be necessary to develop the

witness’ testimony.” Because dealing with such questions

“clearly falls within the area of control by the judge over the

mode and order of interrogation and presentation,” this rule

(stating “should” as opposed to “shall”) “is phrased in words of

suggestion rather than command.” Fed. R. Evid. 611(c) advisory

committee’s note (1972). Exercising this discretion, the court

overrules Mutual’s objections to the questions as leading. As

Bartlett points out, Dr. Kim’s expertise creates very little if

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any risk that she succumbed to the “suggestive powers” of any

leading questions posed by Bartlett’s counsel. See id.

Finally, Mutual objects to all of Dr. Kim’s testimony as

both irrelevant and cumulative, as well as unfairly prejudicial. 

Those first two objections would appear inconsistent with each

other, but all of these objections are overruled in any event. 

Specific objections

Page and line number Ruling 

19:3-20 Sustained. While Dr. Kim may have been

able to testify to how she interpreted

Dr. Schultz’s note while treating

Bartlett, she was asked how she 

interprets it now, making her answer 

either undisclosed expert opinion under

Rule 702 or speculation under Rules 602

or 703.

20:17-21:12 Overruled.

22:1-25 Overruled.

24:2-9 Sustained, insofar as the question 

asserts what Dr. Ryan’s conclusion was,

but overruled as to the state of Dr. 

Kim’s own knowledge.

24:12-19 Sustained, for the same reason as the

objection to page 19, lines 3-20.

40:24-41:8 Overruled.

41:9-41:25 Sustained, insofar as the question 

asserts what Dr. Ryan’s conclusion was,

but overruled as to the state of Dr. 

Kim’s own knowledge.

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Case 1:08-cv-00358-JL Document 275 Filed 07/26/10 Page 5 of 6
81:5-13 Sustained. While Dr. Kim may have been

able to testify to how she interpreted

Dr. Sheridan’s note while treating

Bartlett, she was asked how she 

interprets it now, making her answer 

either undisclosed expert opinion under

Rule 702 or speculation under Rules 602

or 703.

85:5-86:1 Overruled.

124:7-18 Overruled. Dr. Kim was asked what her 

opinion “was” as to the care Bartlett 

needed. 

129:10-130:16 Overruled. The context fairly indicates

that these statements as to the 

treatment Bartlett received are based on

Dr. Kim’s own treatment of her.

150:7-151:1 Overruled.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 26, 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.

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