UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen L. Bartlett

v. Civil No. 08-cv-00358-JL

Mutual Pharmaceutical

Company, Inc.

SUMMARY ORDER

Defendant Mutual Pharmaceutical Company has moved to

bifurcate the trial, which is scheduled to begin next week, into

separate liability and damage phases, see Fed. R. Civ. P. 42(b),

and also to exclude from trial photographs and other images taken

of plaintiff Karen Bartlett when she was suffering from StevensJohnson syndrome (“SJS”) and toxic epidermal necrolysis (“TEN”),

see Fed. R. Evid. 403; L.R. 16.2(b)(3). For the reasons

explained below, this court denies both requests, without

prejudice to any objections that Mutual may raise at trial to the

admissibility of specific images.

I. Timeliness

Both of Mutual’s requests could have and should have been

made much earlier. Mutual raised the bifurcation issue at the

summary judgment hearing on June 1, 2010, and the court

instructed it to file a motion. Mutual waited nearly two months

to do so, filing this motion only three weeks before trial (when

Bartlett’s efforts to line up witnesses for trial were already

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underway and frequently discussed during hearings and telephone

conferences). The challenge to SJS/TEN images, meanwhile, is

really a motion in limine. The deadline for such motions was May

24, 2010. Although Mutual has not shown good cause for delaying

either request, the court will consider them nonetheless.

II. Bifurcation

Mutual requests that this court bifurcate the trial into

separate liability and damage phases in order to avoid unfair

prejudice and to promote judicial economy. See Fed. R. Civ. P.

42(b) (“For convenience, to avoid prejudice, or to expedite or

economize, the court may order a separate trial of one or more

separate issues”). The party seeking bifurcation bears the

burden of proving that it will satisfy the objectives set forth

in the rule. See 8 Moore’s Federal Practice § 42.20[8], at 42-55

(3d ed. 2007). This court has broad discretion in determining

whether bifurcation is appropriate. See, e.g., Lisa v. Fournier

Marine Corp., 866 F.2d 530, 531 (1st Cir. 1989); 8 Moore’s,

supra, § 42.20[5], at 42-50. 

Mutual argues, first, that it would be unfairly prejudicial

for evidence of Bartlett’s severe injuries to be presented to the

jury before liability has been determined, because that could

result in a verdict based on “horror and sympathy.” But evidence

of SJS/TEN’s severity would be admissible at the liability phase

even if the trial were bifurcated, because such evidence is

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highly relevant to whether Sulindac is unreasonably dangerous. 

See Fed. R. Evid. 401, 402. So Mutual’s claim of unfair

prejudice is overstated.

While it is true that a product’s risks and benefits must be

evaluated with reference to “the public as a whole,” Vautour v.

Body Masters Sports Indus., Inc., 147 N.H. 150, 154 (2001), not

Bartlett in particular, some evidence of Bartlett’s injuries

would also be admissible at the liability phase to prove that

Sulindac’s defective condition caused those injuries. Mutual

indicated at the final pre-trial conference that it has no intent

to challenge Bartlett’s evidence on the issue of strict liability

causation, but that it will require her to come forward with

sufficient evidence, rather than stipulate to causation. And

even if causation were conceded, some evidence of Bartlett’s

ordeal would still be admissible to “paint[] the backdrop” of the

case. Faigin v. Kelly, 184 F.3d 67, 81 (1st Cir. 1999) (calling

it “well-settled that ‘context’ evidence generally is

admissible”).

Mutual also argues that bifurcation could save time and

resources (at least if Mutual prevails on liability) because the

trial is expected to last four weeks and “there is no overlap

between the evidence necessary to establish liability and the

evidence to establish damages.” Actually, there is significant

overlap. Many of the damages witnesses, including four treating

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physicians and two of Bartlett’s experts, are the same witnesses

who will testify on causation. See Bartlett v. Mut. Pharm. Co.,

2010 DNH 123, 36-37 (allowing treating physicians to express

causation opinions if they were formed reliably during the course

of Bartlett’s treatment) (citing Sprague v. Liberty Mut. Ins.

Co., 177 F.R.D. 78, 81 (D.N.H. 1998)). Thus, bifurcation would

likely result in duplication of evidence. Moreover, it would

force busy doctors from Boston hospitals to make two trips to New

Hampshire for this trial, which is not the most efficient

approach.

While bifurcation of liability and damages may be

appropriate in some cases, it is “not the normal course of

events, and a single trial will usually be more expedient and

efficient.” 8 Moore’s, supra, § 42.20[4][a], at 42-46; see also

Fed. R. Civ. P. 42(b), advisory committee notes (1966)

(“separation of issues for trial is not to be routinely

ordered”). After considering all of the factors set forth in

Rule 42(b), the court does not believe that this case warrants a

departure from the normal course. Mutual’s request for

bifurcation is denied.

III. Images of SJS/TEN

Mutual also requests that this court exclude from trial

photographs and other images of Bartlett (or anyone else)

suffering from SJS/TEN. Citing Federal Rule of Evidence 403,

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Mutual argues that the probative value of such images is

substantially outweighed by the risk of unfair prejudice. But

Mutual has not attached the relevant images to its motion. This

court cannot conduct the Rule 403 analysis in the abstract,

without seeing the images firsthand and without knowing whether

they are cumulative of other evidence. Some evidence of

SJS/TEN’s severity, including images, will certainly be

admissible. Mutual’s request to exclude all such evidence is

therefore denied, without prejudice to any objections that Mutual

may raise at trial to the admissibility of specific images. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: August 10, 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.

Pierre A. Chabot, Esq.

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