UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen L. Bartlett

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

Opinion No. 2010 DNH ____

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

67, 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.

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(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 81, 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, 12,

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. 401, 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

part. Such evidence is not admissible to impeach Bartlett or her

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husband. See Fed. R. Evid. 608, 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. 401, 402. This court will determine

at trial whether to allow some cross-examination in that regard

and, if so, 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 78, 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

substantially outweighed by the risk of unfair prejudice. See

Fed. R. Evid. 403. 

(b) Bartlett asks this court to compel one of Mutual’s

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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 18, 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 18, at

28, 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,

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 so, see Aumand, 611 F. Supp. 2d at 91-

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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 331, 334 (D.N.H.

2008) (quoting Paolitto v. John Brown E. & C., Inc., 151 F.3d 60,

65 (2d Cir. 1998)).

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

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docs. 258 and 264).

Motion #5: Expert motion redux (doc. 190)

This motion simply reproduces Bartlett’s motion to exclude

or limit expert testimony (doc. 128), 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, Dr. 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 Dr. Ergin’s credibility, which is Mutual’s stated

reason for using them. They have more to do with Mutual’s

counsel’s credibility, which of course is not relevant, see Fed.

R. Evid. 401, 402, 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

1 In the highly unlikely event that Dr. Ergin’s trial

testimony creates the possibility that the comments become a

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(b) Bartlett seeks to exclude any references to Dr. 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 Dr. 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 Dr. 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”).

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.” 

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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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. Cf. Bartlett, 2010 DNH 123, at 11 n.2. Bartlett’s

request is nonetheless granted under Rule 701.

(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.

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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

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

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alleged lack of resources or capability. Cf. 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.

Evid. 404(a), 608, and otherwise is not relevant, see Fed. R.

Evid. 401, 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.

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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. 401, 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

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 112, 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, 402, without prejudice to a showing by Mutual that the

evidence is relevant for some other purpose. 

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(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. 701, 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”).

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 44,

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 Dr. Robert Stern) will testify that reasonable doctors

should be aware of the link between Sulindac and SJS/TEN, see

Bartlett, 2010 DNH 123, at 24, and because Bartlett’s prescribing

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physician has testified that he did, in fact, know of that link,

see Bartlett, 2010 DNH 112, 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 594, 601 & n.7

(1st Cir. 1996) (emphasizing that “there is adequate expert

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

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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

what Mutual argues, is not probative of what members in the

medical community generally knew or should have known. See Fed.

R. Evid. 401, 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

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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

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 30, 34 n.2 (1st Cir. 2006). Such an

inference may not be drawn, however, “unless the evidence shows

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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 so. Any

such request shall be made outside the presence of the jury.

Conclusion

As set forth above, this court GRANTS in part and DENIES in

part some of Bartlett’s motions in limine (docs. 185, 186, 188,

196, 200, and 201), GRANTS some of them (docs. 191, 192, 193,

194, 195, 197, 198), DENIES one of them as moot (doc. 190), and

takes one under advisement (doc. 189).

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Dated: July 23, 2010

cc: Keith M. Jensen, Esq.

Bryan Ballew, Esq.

Patrick J. O’Neal, Esq.

Christine M. Craig, Esq.

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Eric Roberson, Esq.

Timothy P. Beaupre, Esq.

Jeffrey D. Geoppinger, Esq.

Joseph P. Thomas, Esq.

Linda E. Maichl, Esq.

Paul J. Cosgrove, Esq.

Stephen J. Judge, Esq.

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