UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Karen S. Bartlett

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

Mutual Pharmaceutical

Company, Inc.

ORDER

This court accepts Mutual’s sur-reply (doc. 267) to

Bartlett’s motion to strike Dr. Stern (doc. 230) and grants the

request for leave to exceed the page limits.

 Having considered the sur-reply, however, this court stands

by its earlier ruling (doc. 251). Mutual still has not provided

a satisfactory explanation, much less a substantial

justification, see Fed. R. Civ. P. 37(c)(1), for failing to

produce Dr. Stern’s manuscript.1 The fact that the manuscript

was kept at the hospital where Dr. Stern works, rather than being

“independently retained” in his “separate medico-legal files” or

“in any of the places where [he] searched,” does not mean that it

was outside of his control for purposes of Fed. R. Civ. P. 45(a). 

Control is a broad concept and encompasses more than mere

1Mutual claims that Dr. Stern simply “forgot about the

document’s existence.” But this is the second time in less than

two years that Dr. Stern has allegedly forgotten about it. The

very same document was brought to his attention during an April

2008 deposition in Lofton v. McNeil Consumer & Specialty Pharms.,

No. 05-cv-1531-L (N.D. Tex.), another case involving an NSAID

that allegedly caused SJS/TEN. Mutual claims that Dr. Stern

“forgot the document existed in Lofton too.” But that excuse

becomes less compelling each time it is used.

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possession. See, e.g., 7 Moore’s Federal Practice § 34.14[2][b],

at 34-73 (3d. ed. 2010). Here, the fact that Dr. Stern created

the manuscript, the circumstances under which he created it, and

the nature of his relationship with the hospital, establish

sufficient control. See id. at 34-76 (listing those as relevant

factors in analyzing issues of control).

Mutual argues that the manuscript actually has no

significance to this case and that Bartlett “continually has

attempted to place blinders on the Court to distract it and

mislead it into believing the facts are whatever plaintiff

purports them to be.” But it is hard to learn the facts when a

party fails to produce them. “Placing blinders” is a strong

accusation for Mutual to make, since it is Mutual that has failed

on more than one occasion to produce relevant documents. See

Bartlett v. Mut. Pharm. Co., 2009 DNH 166 (imposing sanctions

against Mutual for the late production of certain FDA filings). 

As for the significance of the manuscript, that is yet to be

determined, and of course is not entirely for Mutual to say,

which is why this court ordered supplemental depositions.

It is especially hard to swallow Mutual’s argument that the

failure to produce Dr. Stern’s manuscript was harmless. See Fed.

R. Civ. P. 37(c). As Mutual is well aware, the final version of

that article has been a centerpiece of Bartlett’s case from the

beginning. All along, Mutual has insisted that the article is

insignificant, in part because it lacks certain data about the

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number of Sulindac prescriptions against which to compare the

number of reported SJS/TEN cases. Now, on the eve of trial,

Bartlett has discovered that the earlier draft actually contained

such data. There is no question that Bartlett has and will

expend “real resources” evaluating that draft and incorporating

it into her case. Primus v. United States, 389 F.3d 231, 236

(1st Cir. 2004) (noting that “evidentiary changes on the eve of

trial are much more problematic and disruptive of trial

preparation”). 

For all of these reasons, the court’s earlier ruling (doc.

251) remains in effect.

SO ORDERED.

/s/Joseph N. Laplante

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.

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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