UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

KAREN L. BARTLETT and GREGORY 

S. BARTLETT, 

 Plaintiffs, 

vs. 

MUTUAL PHARMACUETICAL 

COMPANY, INC., et al., 

 Defendants. 

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CASE NO.: 08-cv-358-JL 

Judge Joseph N. Laplante 

DEFENDANT’S REQUESTED JURY INSTRUCTIONS

Defendant Mutual Pharmaceutical Company, Inc., by and through its undersigned 

counsel hereby submits its requested jury instructions and verdict form. Defendant 

reserves the right to amend and/or supplement its proposed instructions and verdict form 

following the Court’s rulings on pending motions and rulings made by the Court during 

the trial. In addition, Mutual expressly reserves its right to file supplemental requests for 

jury instruction at the close of the evidence or at such earlier time during trial as the 

Court reasonably directs, as expressly provided by L.R. 16.2(b)(1). 

Respectfully submitted, 

/s/ Paul J. Cosgrove ____ 

Paul J. Cosgrove 

(OH Bar No. 0073160) 

Pro hac vice 

Joseph P. Thomas 

(OH Bar No. 0040379) 

Pro hac vice 

Linda E. Maichl 

(OH Bar No. 0042042) 

Pro hac vice

ULMER & BERNE LLP 

600 Vine Street, Suite 2800 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 1 of 35
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Cincinnati, Ohio 45202-2409 

(513) 698-5000 

(513) 698-5001 FAX 

pcosgrove@ulmer.com

jthomas@ulmer.com

lmaichl@ulmer.com 

Stephen Judge 

(NH Bar No. 1292) 

WADLEIGH, STARR & PETERS, P.L.L.C. 

95 Market Street 

Manchester, NH 03101 

(603) 669-4140 

Attorneys for Defendant 

Mutual Pharmaceutical Company, Inc. 

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PRELIMINARY STATEMENT REGARDING REQUESTED JURY 

INSTRUCTIONS 

Pursuant to Local Rule 16.2(b)(1), Mutual acknowledges the directive that jury 

instructions such as “the role of the jury, evaluating witness credibility, burden of proof, 

and other instructions routinely given by the court are not to be included in the proposed 

jury instructions.” For the record, Mutual requests the Court provide instructions on the 

following topics1

: 

Preamble to Instructions 

Equality of the Parties – Individuals and Corporations 

Sympathy, Prejudice, Fear, or Favor to Be Avoided 

Evidence Defined 

Jury to Consider All the Evidence 

Law From the Court 

Inadmissible and Stricken Evidence 

Credibility of Witnesses 

Expert Witnesses 

Preponderance of Evidence 

Fact of Incident Not Evidence of Liability 

Legal Fault 

Damages – Closing Argument 

Loss of Earning Capacity 

 1

 Mutual will submit proposed jury instructions on these issues should the Court request same. 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 1 

Strict liability - Defective Design 

In order for Ms. Bartlett to recover for her injury for a defect in the design of 

Mutual’s sulindac under a strict liability theory, she must prove by the greater weight of 

the evidence all the following: 

1. Ms. Bartlett took a generic pharmaceutical product manufactured by 

Mutual containing the active ingredient sulindac and normal binders and fillers; and 

2. The generic pharmaceutical product Ms. Bartlett took had a defect because 

the product contained an additional ingredient, other than sulindac and the normal binders 

and fillers in the product, that the ordinary consumer would not have expected to be in 

the product; and 

3. The additional ingredient, and not the sulindac or normal binders and 

fillers in the product, made the product defective; and 

4. The defective condition of Mutual’s pharmaceutical product rendered it 

unreasonably dangerous; and 

5. The use of the product was reasonably foreseeable by Mutual; and 

6. Dr. Ergin was unaware of the dangers and risks associated with Mutual’s 

pharmaceutical product; and 

7. The defective condition of Mutual’s pharmaceutical product was a legal 

cause of the injury to Ms. Bartlett. 

 

(See Restatement (Second) of Torts, § 402A Cmt i (1969); Buckingham v. R.J. Reynolds 

Tobacco Co., 142 N.H. 822, 713 A.2d 381 (1998).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 2 

Negligence - Defective Design 

In order for Ms. Bartlett to recover for her injury for a defect in the design of 

Mutual’s sulindac under a negligence theory, the greater weight of the evidence must 

show the following: 

1. That Mutual designed sulindac; and 

2. That Mutual did not act as a reasonably prudent manufacturer in designing 

sulindac; and 

3. Ms. Bartlett took a generic pharmaceutical product manufactured by 

Mutual containing the active ingredient sulindac and the normal binders and fillers; and 

4. The generic pharmaceutical product Ms. Bartlett took had a defect because 

the product contained an additional ingredient, other than sulindac and the normal binders 

and fillers, that the ordinary consumer would not have expected to be in the product; and 

5. The additional ingredient, and not the sulindac or the normal binders and 

fillers, made the product defective; and 

6. The defective condition of Mutual’s pharmaceutical product rendered it 

unreasonably dangerous; and 

7. The use of the product was reasonably foreseeable by Mutual; and 

8. Dr. Ergin was unaware of the dangers and risks associated with Mutual’s 

pharmaceutical product; and 

9. The defective condition of Mutual’s pharmaceutical product was a legal 

cause of the injury to Ms. Bartlett. 

 

(New Hampshire Civil Jury Instruction 6.1, as modified.) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 3 

Negligence Defined – Design Defect 

 Negligence is the failure to use reasonable care. Reasonable care is the degree of 

care which an ordinary, prudent generic drug manufacturer would exercise under the 

same or similar circumstances in the design of a generic pharmaceutical product. The 

failure to exercise reasonable care may take the form of action or inaction. That is, 

negligence may consist of either: doing something that an ordinary, prudent generic drug 

manufacturer would do under the same or similar circumstances; or, failing to do 

something that an ordinary, prudent generic drug manufacturer would do under the same 

or similar circumstances. 

The duty to use reasonable care arises from the risk to others which could be 

reasonably foreseen. Thus, Mutual may not be found negligent in the design of sulindac if 

it could not reasonably foresee that its conduct would result in an injury to another, or if 

its conduct was reasonable in light of the anticipated risks. Also bear in mind that a 

person or entity has no duty to anticipate the careless conduct of another. 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 4 

Design Defect – Defect Defined 

A defect in design occurs when the product sold has been manufactured in 

conformity with the manufacturer’s design, but the design itself presents unreasonable 

dangers to users. 

A defect in the design of a pharmaceutical product requires that the product 

contain an additional ingredient which the ordinary consumer would not expect to be 

present in the product. Pharmaceutical products that do not contain an additional 

ingredient the ordinary consumer would not expect are not defective as a matter of law. 

If you cannot find such an additional ingredient in this case – in other words, if Mutual’s 

pharmaceutical product contained only sulindac and the necessary binders and fillers 

found in a prescription drug tablet, you must find for the defendant. 

(New Hampshire Civil Jury Instruction 23.3, as modified; Restatement (Second) of Torts, 

§ 402A Cmt i (1969).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 5 

Design Defect – Manufacturer Does Not Have a Duty to Design the Safest Product 

A manufacturer is not obliged to design the safest possible product, or a safer 

product, or one as safe as others make, so long as the design does not contain a defect that 

makes it unreasonably dangerous. 

(Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 6 

Unreasonably Dangerous – Factors to Consider 

It is not sufficient for Ms. Bartlett to prove that a product is unreasonably 

dangerous. She must prove that the product contained a defect in its design and that the 

defect caused the product to be unreasonably dangerous. Accordingly, you will not 

decide whether Mutual’s sulindac is unreasonably dangerous unless you first have 

decided that it is defective in design. 

In order to prove that a defective design presents an unreasonable danger, 

Ms. Bartlett must present evidence from which you can assess the desirability and 

usefulness of the product to the public as a whole. In weighing utility and desirability 

against danger, you should consider whether the risk of danger could have been reduced 

without a significant impact on product effectiveness and manufacturing cost. 

(Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 713 A.2d 381 (1998);

Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978 ).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 7 

Unavoidably Unsafe 

Only if you determine Mutual’s sulindac was defective and that it was 

unreasonably dangerous, will you consider whether it was unavoidably unsafe. 

Some products are so important that a manufacturer may avoid liability as a 

matter of law if the manufacturer has given proper warnings. In order to avail itself of 

this defense, ordinarily, Mutual must prove by the weight of the evidence that the 

warning it provided to Dr. Ergin was proper. In deciding whether the warning was 

proper, you should assess whether, through its warning, Mutual took available and 

reasonable steps to advise physicians of the risks associated with the product. Mutual is 

not required to provide the best warning, or even a better warning than some other 

manufacturer. Rather, Mutual is required to provide only a warning that was reasonable 

under the circumstances. 

You may determine from the evidence that Dr. Ergin did not read the warning 

provided by Mutual. If you find that Mutual’s sulindac was unavoidably unsafe and that 

Dr. Ergin did not read the warning for Mutual’s sulindac, you must find for Mutual 

because a failure to provide a reasonable warning cannot be a cause of plaintiff’s injuries. 

Accordingly, if Mutual’s sulindac was unavoidably unsafe, Mutual may avoid liability as 

a matter of law if it has given reasonable warnings of dangers incident to use of sulindac, 

or regardless of whether the warnings were reasonable, if Dr. Ergin did not read the 

warnings. 

In considering any warning you believe Mutual should have provided, you must 

consider that Mutual need not warn of a one-in-a-million chance of injury. Nor is Mutual 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 10 of 35
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required to warn against dangerous uses which are not intended and not reasonably 

foreseeable by it. Individual users do have certain responsibilities. Mutual cannot 

reasonably foresee and warn of every conceivable danger of its product. 

If you find that Mutual’s product was unavoidably unsafe and that Mutual’s 

warning was adequate or that Dr. Ergin did not read it, you must find for Mutual, even if 

you determine that its sulindac was defective and unreasonably dangerous. 

(New Hampshire Civil Jury Instruction 23.4, in part; Thibault v. Sears, Roebuck & Co., 

118 N.H. 802 (1978 ); Restatement (Second) of Torts, § 402A Cmt k; Court’s ) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 8

Negligence of Dr. Ergin 

If you determine that a defect existed in Mutual’s sulindac and that defect caused 

it to be unreasonably dangerous, and you find Mutual liable, you also are to determine 

whether Dr. Ergin was negligent. 

Negligence

 

 Negligence is the failure to use reasonable care. Reasonable care is the degree of 

care which an ordinary, prudent doctor would exercise under the same or similar 

circumstances. The failure to exercise reasonable care may take the form of action or 

inaction. That is, negligence may consist of either: doing something that an ordinary, 

prudent doctor would do under the same or similar circumstances; or, failing to do 

something that an ordinary, prudent doctor would do under the same or similar 

circumstances. 

The duty to use reasonable care arises from the risk to others which could be 

reasonably foreseen. Thus, Dr. Ergin may not be found negligent if he could not 

reasonably foresee that his conduct would result in an injury to another, or if his conduct 

was reasonable in light of the anticipated risks. Also bear in mind that a person has no 

duty to anticipate the careless conduct of another. 

Legal Cause

 

Failure to exercise reasonable care amounts to legal fault if you find that such 

failure was a legal cause of the incident and injury. When is negligence a legal cause of 

harm? When the negligent conduct is a substantial factor in bringing about the harm, and 

if the harm would not have occurred without that conduct. 

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On the other hand, if negligent conduct is not a substantial factor in bringing 

about the harm, it cannot be the basis for a finding of legal harm. 

 In determining whether Dr. Ergin’s conduct was a legal cause of Ms. Bartlett’s 

injury, you need not find that Dr. Ergin’s conduct was the sole cause of the injury. You 

need only find that it was a substantial factor in bringing about the injury, even though 

other factors also may have contributed to cause the injury. 

Summary

 

To summarize – If you find Dr. Ergin was negligent, any recovery against Mutual 

will be reduced. Mutual must prove Dr. Ergin’s negligence and harm and that they have 

a direct, causal connection to plaintiff’s injury. Again, the negligence need not be the 

only cause of the injury, but it must be a substantial factor in bringing about the injury. 

In such a case, plaintiff’s recovery against Mutual, if any, will be reduced based upon 

Dr. Ergin’s negligence. 

New Hampshire Civil Jury Instructions 6.1 and 13.1, in part. 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: ________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 9 

Learned Intermediary 

Dr. Ergin was aware of the risk of SJS and TEN from sulindac at the time he 

prescribed it to plaintiff. As a result if you find that Mutual’s sulindac was unavoidably 

unsafe, you must find for Mutual because a failure to provide a reasonable warning 

cannot have been a cause of plaintiff’s injuries. Accordingly, if Mutual’s sulindac was 

unavoidably unsafe, Mutual may avoid liability as a matter of law if it has given 

reasonable warnings of dangers incident to use of sulindac, or regardless of whether the 

warnings were reasonable, if Dr. Ergin was aware of the risk of SJS and TEN at the time 

he prescribed it to plaintiff. 

If you find that Mutual’s product was unavoidably unsafe and that Mutual’s 

warning was adequate or that Dr. Ergin was aware of the risk of SJS and TEN at the time 

he prescribed it to plaintiff, you must find for Mutual, even if you determine that its 

sulindac was defective and unreasonably dangerous. 

See Brochu v. Ortho Pharm. Corp., 642 F.2d 652, 656 (1st Cir. 1981); McCue v. Norwich 

Pharmacal Co., 453 F.2d 1033, 1035 (1st Cir. 1972); Dupre v. G.D. Searle & Co., 1987 

U.S. Dist. LEXIS 16769 (D.N.H. Apr. 28, 1987). 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 10 

Plaintiff’s Failure to Follow Instructions 

If you determine that a defect existed in Mutual’s sulindac and that defect caused 

it to be unreasonably dangerous, and that Mutual is liable, you should then go on to 

determine if Ms. Bartlett committed misconduct that contributed to cause her injuries. 

With respect to her alleged misconduct, Mutual bears the burden to prove that it is more 

likely than not that she committed misconduct in the use of sulindac. 

 Misconduct includes, but is not necessarily limited to, abnormal use of the 

product, use of the product contrary to instructions, misuse of the product, failing to 

discover or foresee dangers which the ordinary person would have discovered or 

foreseen, and voluntarily and unreasonably proceeding to encounter a known danger. 

 If you find that the misconduct of Ms. Bartlett, if any, was not reasonably 

foreseeable by Mutual, Ms. Bartlett is not entitled to recover for her injuries. 

 Even in a case in which plaintiff’s misconduct was reasonably foreseeable by the 

defendant, the plaintiff is not entitled to recover if that misconduct was more than 50 

percent responsible for his/her own injuries. If such plaintiff’s misconduct contributed 50 

percent or less to cause his/her own injuries, you may still return a verdict in favor of the 

plaintiff, but the amount of the verdict will be reduced by the court by the percentage 

represented by the plaintiff’s misconduct. 

(See New Hampshire Civil Jury Instruction 23.6, in part; RSA 507:7-d) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 11 

“State of the Art” Defense 

 

 A manufacturer may defend against a claim of design defect by demonstrating 

that it has complied with the state of the art. The state-of-the-art test requires that the 

design be viewed in light of what was scientifically (and) technologically (and 

economically) feasible when the product was distributed/sold. The test is not what the 

industry was doing when the product was distributed/sold. The test is what the industry 

could feasibly have been doing scientifically (and) technologically (and economically) 

when the product was distributed/sold. 

New Hampshire Civil Jury Instruction 23.7, in part 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 12 

Superseding Cause 

 Mutual may avoid liability if it demonstrates that the conduct of someone other 

than Ms. Bartlett or Mutual caused plaintiff’s injuries. Remember that Ms. Bartlett must 

prove that the cause of her injuries was a defect in the product. If she has shown that a 

defect in the product was at least one of the causes of her injuries, the burden of proof is 

then on Mutual to prove that another person’s conduct was actually the sole cause of the 

plaintiff’s injuries. Mutual must show that the other person’s actions could not be 

reasonably foreseen by it. If you find that Mutual could reasonably foresee the other 

person’s conduct, then you should not consider the other person’s conduct in reaching 

your verdict. Under our law, unless someone other than Mutual was the sole cause of the 

plaintiff’s injuries, you may find Mutual liable for Ms. Bartlett’s injuries even though 

Mutual was only partly at fault. If someone other than Mutual was a cause, but not the 

sole cause, of plaintiff’s injuries, then you will apportion fault among the parties. 

New Hampshire Civil Jury Instruction 23.8 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 13 

Apportionment 

If the greater weight of the evidence does not support Mutual’s defenses, and the 

greater weight of the evidence does support one or more of the claims of Ms. Bartlett, 

then you should determine and write on the verdict form what percentage of the total 

responsibility is chargeable to Mutual . 

If, however, the greater weight of the evidence shows that generic sulindac was 

defective and unreasonably dangerous when sold by Mutual and the evidence also shows 

that Karen Bartlett or Dr. Ergin were negligent, and the negligence of either contributed 

as a legal cause of injury sustained by Ms. Bartlett, you should determine and write on 

the verdict form what percentage of the total negligence of all parties is chargeable to 

each. 

In both instances, you also should write on the verdict form what percentage of 

the total negligence or other fault is chargeable to Ms. Bartlett, and/or to Dr. Ergin. 

(See DiBenedetto v. CLD Consulting Engineers, Inc., 153 N.H. 493 (2006); Bohan v. 

Ritzo, 141 N.H. 210 (1996; RSA 507:7.) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 14 

Duty of Reasonable Care – No Duty to Anticipate Negligence 

The duty to use reasonable care arises from the risk to others which could be 

reasonably foreseen. Thus, a person may not be found negligent if he or she could not 

reasonably foresee that its conduct would result in an injury to another, or its conduct 

was reasonable in light of the risks. Also bear in mind that a person has no duty to 

anticipate the careless conduct of another. 

New Hampshire Civil Jury Instruction 6.16 and 6.3 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 15 

Industry Standards 

You have heard testimony that Mutual complied with certain industry standards 

with regard to generic sulindac. You may consider those standards and whether Mutual 

complied with them along with other evidence presented in determining whether 

Mutual used reasonable care with regard to generic sulindac. 

 (See Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 814 (1978)) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 16 

Legal Cause – Defined 

A defect in a product is a legal cause of injury if it directly and in natural and 

continuous sequence produces or contributes substantially to producing such injury so 

that it reasonably can be said that, but for the defect, the injury would not have occurred. 

(See LeFavor v. Ford, 135 N.H. 311, 313 (1992); Rawson v. Bradshaw, 125 N.H. 94, 101 

(1984); Trull v. Volkswagen of America, Inc., 145 N.H. 259, 266-67 (2000).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 17 

Legal Cause 

In order to be regarded as a legal cause of injury, a defect in a product need not be 

the only cause. A defect may be a legal cause of the injury even though it operates in 

combination with the act of another or some other cause if such other cause occurs at the 

same time as the defect has its effect, and if the defect contributes substantially to 

producing such injury. 

(See N.H. Civil Jury Instructions § 7.1, 6.1; LeFavor v. Ford, 135 N.H. 311, 313 (1992).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 18 

Comparative Fault 

 

This case has been tried under the law of comparative fault. Under this law, you 

may find that the plaintiff’s injuries were the result of the legal fault of the defendant, the 

legal fault of the plaintiff, the legal fault of Dr. Ergin, or to some degree, the legal fault of 

each of them. If the greater weight of the evidence does not support Ms. Bartlett’s design 

defect claim against Mutual, your verdict must be for Mutual. However, if the greater 

weight of the evidence does support Ms. Bartlett’s design defect claim against Mutual, 

then you shall consider the defenses raised by Mutual. 

With regard to comparative negligence, the issues for your determination are 

whether Karen Bartlett was negligent and, if so, whether her negligence was a 

contributing legal cause of her injuries. You also must determine whether Ms. Bartlett or 

Dr. Ergin were negligent or otherwise at fault for Ms. Bartlett‘s injuries, and if so, 

whether that negligence or fault was a contributing legal cause of Ms. Bartlett‘s injuries. 

Under this law, a plaintiff who is more than 50% legally at fault for the incident 

cannot recover damages arising out of the incident. If a plaintiff is 50% or less legally at 

fault, she can recover damages -- but only in proportion to the amount of the defendant’s 

legal harm. 

For example, suppose plaintiff was found to be 51% legally at fault for an 

incident. In that case, the plaintiff would recover nothing. On the other hand, suppose a 

plaintiff and a defendant were each found 50% legally at fault and the total of the 

plaintiff’s damages were found to be $1.00. In that case, the plaintiff would recover 50 

cents. Thus, even if you find that the plaintiff and the defendant are equally at fault, the 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 23 of 35
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plaintiff is still entitled to recover damages which you find were caused by the accident; 

such damages will, however, be reduced by half. Understand that you must determine the 

full amount of any damages suffered by the plaintiff; it will then be my responsibility to 

reduce those damages by any percentage of fault which you find attributable to the 

plaintiff. 

 As I have explained, in order for the plaintiff to recover, she must prove that the 

defendant is legally at fault for the accident and injuries. However, in connection with the 

defendant’s claim that the plaintiff is at fault, the defendant carries the burden of proof. 

This is, the defendant must prove, by a preponderance of the evidence, that the plaintiff 

was legally at fault. In deciding whether the defendant has met its burden of proof, you 

must apply the law which I have given you regarding legal fault. Thus, the defendant 

must prove that the plaintiff failed to exercise care and that such failure was a substantial 

factor in bringing about his/her injury. 

 At the conclusion of my instructions, I will provide you with a special verdict 

form which asks you several questions. These questions will help you properly analyze 

the comparative fault issues, and I will explain the form in detail then. 

New Hampshire Civil Jury Instruction 8.1 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 19 

Elements of Personal Injury Damages 

If your verdict is for Mutual, you will not consider the matter of damages. But if 

your verdict is for Ms. Bartlett, you should determine and write on the verdict form, in 

dollars, the total amount of damage which the greater weight of the evidence shows 

Ms. Bartlett sustained as a result of her injury, including any such damages that she is 

reasonably certain to incur or experience in the future. 

In determining the total amount of any damages sustained by Ms. Bartlett, you 

shall consider only the following elements: 

1. The reasonable value of medical (hospital, nursing) care, services, and 

supplies reasonably required and actually given in the treatment of plaintiff 

(and the reasonable value of similar items that will probably be required and 

given in the future). 

 

2. The present value of lost wages to date or wages plaintiff probably would 

have earned to date if he/she had not been injured. 

 

3. The present value of plaintiff’s loss of earning capacity, that is, any future 

wages that plaintiff probably would have earned if he/she had not been 

injured. 

 

4. Reasonable compensation for pain and suffering experienced to date and 

which will probably be experienced in the future. This includes 

compensation for physical pain, discomfort, fears, anxiety, mental and 

emotional distress, and loss of enjoyment of life--that is, the inability to carry 

on and enjoy life in a manner had the accident not occurred. 

 

No definite standard (or method of mathematical calculation) is prescribed by law 

by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any 

witness required as to the amount of such reasonable compensation. In making an award 

for pain and suffering you should exercise your reasonable judgment and the damages 

you determine have to be full, fair and adequate in light of the evidence. 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 25 of 35
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New Hampshire Civil Jury Instruction 9.6 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 20 

No Punitive Damages 

The purpose of an award of damages is to compensate the plaintiff for her 

injuries, not to punish the defendant. You are not permitted to award money damages for 

the purpose of punishing the defendant or of making an example of it for the public good 

or of preventing it and others from similar conduct, or to compensate the plaintiff beyond 

the instruction I have given you regarding compensatory damages.2

(See R.S.A. 507:16; Fay v. Parker, 53 N.H.342, 384, 1872 WL 4394 at *43 (1872) 

(going to great lengths to explain that so-called “enhanced” or “liberal” compensatory 

damages were merely an unfortunate linguistic relic of courts grappling with the notion 

of damages for mental suffering). Defendant maintains that the decisions which have 

followed have failed to grasp the import of Fay v. Parker. E.g., Munson v. Raudonis, 118 

N.H. 474, 479 (1978).) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

 

2

 Mutual maintains that “enhanced compensatory damages” are not legally tenable, but in the event that the 

Court holds otherwise, the following additional paragraph from the N.H. Civil Jury Instructions should be 

used: 

If you find that plaintiff suffered actual damages that were caused or substantially caused by the 

conduct of the defendant, there are certain circumstances under which the law permits you, but 

does not require you, to consider an award of additional damages to reflect aggravating 

circumstances. These damages are called “enhanced damages” or “liberal compensatory 

damages.” You may award these damages only if you find that the defendant’s conduct was more 

probably than not wanton, malicious, or oppressive. “Wanton” means reckless indifference or 

disregard of consequences. “Malicious” means ill-will, hatred, hostility, or bad motive. 

“Oppressive” means abuse of power. 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 21 

Duty to Mitigate 

A person who has been injured by the wrongful act of another is obligated to exercise 

reasonable care and effort to avoid loss and to minimize the damages. She may not recover for 

losses which could have been prevented by her making reasonable efforts without undue risk on 

her part. She may also recover expenditures reasonably incurred to avoid or minimize 

It is the duty of a person who has been injured to use reasonable effort without undue risk 

or expense in caring for her injuries and reasonable means to prevent their aggravation and to 

accomplish healing. 

When a person does not use reasonable efforts to care for her own injuries, and those 

injuries are aggravated as a result of such failure, the responsibility of another whose act or 

omission was a cause of the original injury, is limited to the amount of damage that would have 

been suffered had the injured person herself exercised the effort required of her. 

The fact that a competent physician advised an injured person to submit to a course of 

treatment or operation does not justify an inference that the injured person was unreasonable in 

declining such treatment or operation. Other factors as confronted the injured person must be 

considered in determining whether, although she refused or failed to follow the physician’s 

advice, she nevertheless exercised reasonable efforts in caring for herself and her injuries. 

You should not include in the verdict such damages, if any, that the plaintiff could have 

avoided by reasonable effort, without undue risk or expense. 

New Hampshire Civil Jury Instruction 9.15 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: _________ 

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DEFENDANT’S REQUESTED JURY INSTRUCTION NO. 22

Standard Final Instruction 

Members of the jury: 

 

The principles of law given to you in these instructions, as I said before, are intended to 

guide you in reaching a fair and just verdict in this case which is of utmost importance to the 

parties as well as the court. You should decide the facts of this case without passion, without 

sympathy, and without prejudice but with honesty and understanding. You should be 

conscientious of a just result in this case as that is your highest duty as officers of this court. 

You will render your verdict by filling out the jury verdict form provided. 

Your verdict must be unanimous, that is, you must all agree. In order to ensure that the 

verdict is in fact unanimous, the verdict of the jury as a whole must be the verdict of each of you 

individually. 

 The duty of the foreperson of the jury is to act very much like the chairperson of a 

committee, making certain that each and every member of the jury is given a full and fair 

opportunity to present his or her views and opinions on each of the issues presented to you for 

determination. You are each instructed to consider each other’s views and opinions and in the 

final instance reach your own conclusions. 

In the event you have some question relative to my instructions or the legal issues 

presented in this case, please put the question in writing, have the foreperson sign the question 

and, if you remember to do so, write down the time you presented the question to the court 

officer. He will then present the question to me for response which I will furnish you after I have 

had the opportunity to discuss the question and proposed answer with counsel. I cannot comment 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 29 of 35
30

on the evidence, as that is not my role. As I said previously, it is up to you to evaluate the 

evidence and you must use your own recollection of it. 

You may now retire and commence your deliberations, and I will see to it that the 

exhibits that have been entered in this case are delivered to you. 

New Hampshire Civil Jury Instruction 1.9 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

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DEFENDANT’S PROPOSED 

VERDICT FORM 

 We, the jury, return the following verdict: 

 1. Did you find by the greater weight of the evidence each of the following items? 

• Ms. Bartlett took a generic pharmaceutical product manufactured by Mutual 

containing the active ingredient sulindac and normal binders and fillers; and 

• The generic pharmaceutical product Ms. Bartlett took had a defect because the 

product contained an additional ingredient, other than sulindac and the normal 

binders and fillers in the product, that the ordinary consumer would not have 

expected to be in the product; and 

• The additional ingredient, and not the sulindac or normal binders and fillers in the 

product, made the product defective; and 

• The defective condition of Mutual’s pharmaceutical product rendered it 

unreasonably dangerous; and 

• The use of the product was reasonably foreseeable by Mutual; and 

• Mutual’s pharmaceutical product was not unavoidably unsafe; and 

• Dr. Ergin was unaware of the dangers and risks associated with Mutual’s 

pharmaceutical product; and 

• The defective condition of Mutual’s pharmaceutical product was a legal cause of 

the injury to Ms. Bartlett. 

 

 

YES__________ NO__________ 

If your answer to question 1 is YES, answer question 2. If your answer to question 1 is NO, 

sign the verdict form and return it to the courtroom. 

 2. Do you find by the greater weight of the evidence that Dr. Ergin was negligent 

and that his negligence was a legal cause of Ms. Bartlett’s injuries? 

YES__________ NO__________ 

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Proceed to question 3. 

 3. Do you find by the greater weight of the evidence that Ms. Bartlett was negligent 

and that her negligence was a legal cause of her injuries? 

YES_________ NO__________ 

If your answer to questions 2 and 3 were both “NO,” please skip question 4 and proceed directly 

to question 5. If your answer to either question 2 or question 3 or both was “YES,” please 

answer question 4. 

 4. State the percentage of any negligence or fault, which was a legal cause of loss, 

injury, or damage to Karen Bartlett that you charge to: 

Mutual _________% 

Dr. Ergin __________% 

Ms. Bartlett __________% 

 Total must be 100% 

 5. By answering the following questions you will determine the damages if any that 

Karen Bartlett sustained as a result of the incident in question. In determining the amount of 

damages, do not make any reduction because of the negligence, if any, of Dr. Ergin or 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 32 of 35
33

Ms. Bartlett. If you find that Dr. Ergin or Ms. Bartlett was to any extent negligent, the court in 

entering judgment will make an appropriate reduction in the damages awarded. 

 a. What is the amount of any medical or other expenses, including attendant care 

and treatment, resulting from Ms. Bartlett ‘s injury? 

 $ __________ 

 b. What is the amount of any medical expenses 

 paid by Ms. Bartlett? 

 $ __________ 

 c. What is the amount of any loss by Ms. Bartlett in pain 

 and suffering as a result of the injury. 

 $ __________ 

d. What is the amount of any loss by Ms. Bartlett in lost wages, including future 

earnings as a result of the injury. $ __________ 

 6. You also must determine whether the evidence shows that Mutual acted 

maliciously, oppressively or wantonly. If you so find, indicate the amount of enhanced 

compensatory damages as a result of the injury. $ _________

New Hampshire Civil Jury Instruction 8.2 Special Verdict Form (as modified) 

GIVEN: __________ 

REFUSED: __________ 

MODIFIED: __________ 

Case 1:08-cv-00358-JL Document 254 Filed 07/19/10 Page 33 of 35
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Respectfully submitted, 

/s/ Paul J. Cosgrove ____ 

Paul J. Cosgrove 

(OH Bar No. 0073160) 

Pro hac vice 

Joseph P. Thomas 

(OH Bar No. 0040379) 

Pro hac vice 

Linda E. Maichl 

(OH Bar No. 0042042) 

Pro hac vice

ULMER & BERNE LLP 

600 Vine Street, Suite 2800 

Cincinnati, Ohio 45202-2409 

(513) 698-5000 

(513) 698-5001 FAX 

pcosgrove@ulmer.com

jthomas@ulmer.com

lmaichl@ulmer.com 

Stephen Judge 

(NH Bar No. 1292) 

WADLEIGH, STARR & PETERS, P.L.L.C. 

95 Market Street 

Manchester, NH 03101 

(603) 669-4140 

Attorneys for Defendant 

Mutual Pharmaceutical Company, Inc., 

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CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of July, 2010, a true and correct copy of the 

foregoing document was electronically filed with the Clerk of Court using the ECF system, and 

notice of the filing was given via electronic notice to the following: 

Christine M. Craig 

P.O. Box 977 

140 Washington Street 

2nd Floor 

Dover, NH 03821-0977 

ccraig@shaheengordon.com 

Keith M. Jensen 

Bryan Ballew 

Eric Roberson 

JENSEN, BELEW & GONZALEZ, PLLC 

1024 N. Main Street 

Fort Worth, TX 76164 

kj@kjensenlaw.com 

Stephen Judge 

WADLEIGH, STARR & PETERS, P.L.L.C. 

95 Market Street 

Manchester, NH 03101 

sjudge@wadleighlaw.com

Eric Roberson 

Eric Roberson, of Counsel 

Jensen, Belew & Gonzalez, PLLC 

1024 North Main Street 

Fort Worth, Texas 76164

 /s/ Paul J. Cosgrove 

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