Aumand et a l . v . DHMC CV-06-434-JL 05/01/09 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Deborah C . Aumand and Francis Coffey
v. Civil N o . 06-cv-434-JL Opinion N o . 2009 DNH 061 Dartmouth Hitchcock Medical Center
O R D E R
The plaintiffs, who are the executor of the estate of
Katherine Coffey and Coffey’s widower, Francis Coffey, have sued
Dartmouth Hitchcock Medical Center, alleging that it provided
negligent medical care to Coffey during her hospitalization
there, leading to an infection, the amputation of parts of her
hand, and ultimately her death.1 This court has jurisdiction
under 28 U.S.C. § 1332(a)(1) (diversity). Each side has filed a
number of motions in limine seeking to exclude certain evidence
from the upcoming trial. After oral argument, and for the
foregoing reasons, the court makes the following rulings on the
motions in limine.
1 The court will refer to Katherine Coffey as “Coffey,” and Francis Coffey as “Francis Coffey.” I. Background
The following facts are drawn from the allegations of the
plaintiffs’ third amended complaint and their representations in
the motions themselves. Coffey, who was seventy-eight years old
at the time, was discharged from Dartmouth Hitchcock following
successful coronary bypass surgery, but was readmitted two days
later complaining of shortness of breath. Detecting low blood
sugar, hospital personnel proceeded to administer several doses
of glucose, or “D-50,” to Coffey over a period of roughly six
hours, by way of a catheter inserted into her left hand. After
the last of these administrations, however, hospital personnel
noted that her left hand appeared blue and swollen, so the
catheter was removed and replaced with one in her left elbow.
Coffey soon began complaining of numbness in her hand,
leading hospital personnel to believe that the glucose had
“infiltrated” or “extravasated,” i.e., penetrated the tissue
outside of her veins. Though Coffey was discharged from
Dartmouth Hitchcock approximately two weeks later, transferring
to Springfield Rehabilitation Center in Springfield, Vermont,
the condition of her left hand continued to deteriorate. She was
readmitted to Dartmouth Hitchcock roughly one week later, when
two of her fingers and part of another on her left hand--which
had undergone mummification--were amputated.
2 After the surgery, Coffey reentered Springfield
Rehabilitation for about two weeks, during which both pus and
blood were observed draining from her wounds. She also saw her
surgeon, who concluded that Coffey would need a skin graft to her
left hand. That procedure, performed during a one-day visit to
Dartmouth Hitchcock, used skin harvested from Coffey’s abdomen.
In two weeks, Coffey returned to Springfield Rehabilitation,
complaining of shortness of breath and dry heaves, followed by a
high fever, low blood pressure, and respiratory distress which
appeared after her admission. Testing indicated a serious
infection, specifically methicillin-resistant staphylcoccus
areus, or MRSA, which the plaintiffs characterize as a bacterial
strain often contracted during hospital stays. The next day,
Coffey died from a heart attack brought on by the infection.
Both the doctor who performed an autopsy, and another whom
the plaintiffs retained as an expert witness for this litigation,
identified the wounds from the amputation as the probable portal
of entry for the MSRA. The plaintiffs claim that the amputation,
in turn, came about only as a result of Dartmouth Hitchcock’s
alleged negligence during its treatment of Coffey’s low blood
sugar during her first readmission to that hospital.
Specifically, the plaintiffs claim that Dartmouth Hitchcock
violated the standard of care by (1) failing to provide Coffey
3 with “appropriate nutrition,” (2) “failing to fully inform the
attending physician,” (3) improperly administering glucose,
particularly by (4) “pushing” it through the catheter into her
hand, and (5) not recognizing promptly that the glucose had
infiltrated and caused extravasation. The third amended
complaint asserts a medical malpractice claim on behalf of
Coffey’s estate, as well as loss of consortium claim on behalf of
Francis Coffey; a third claim, for negligent infliction of
emotional distress on behalf of Francis Coffey, has been
voluntarily dismissed. Dartmouth Hitchcock denies any deviation
from the standard of care, or any link between its actions and
Coffey’s injuries, up to and including her death.
II. Analysis
A. Plaintiffs’ motion “regarding infiltration/extravasation”
The plaintiffs seek to prevent Dartmouth Hitchcock from
asserting at trial that Coffey did not, in fact, experience
infiltration of the glucose, arguing that the hospital has not
disclosed any expert testimony to that effect. In response,
Dartmouth Hitchcock explains that, while it does not intend to
proffer such expert testimony, it nevertheless remains free to
present other kinds of evidence tending to suggest than no
4 infiltration occurred, as well as to question whether the
plaintiffs have carried their burden to prove otherwise.
Dartmouth Hitchcock has the better of this argument. While
New Hampshire law requires expert testimony to prove the
essential elements of a medical malpractice case, i.e., the
standard of care, a breach of that standard, and causation, N.H.
Rev. Stat. Ann. (“RSA”) § 507-E:2, it does not follow that a
party to such a case cannot take a position on what did or did
not occur as a factual matter without expert testimony
affirmatively supporting that position.2 The only limit on the
positions a party can take--as distinguished from the evidence a
party can introduce--would seem to be the general rule against
“arguments prejudicial to the opposing party which are not
supported by facts in evidence, or which are beyond the limits of
fair or sound argument, unduly influencing or distracting the
2 The plaintiffs cite the New Hampshire Supreme Court’s recent decision in Goudreault v . Kleeman, 965 A.2d 1040 (N.H. 2009), but it is not to the contrary. In relevant part, Goudreault holds only that, in order for the jury in a medical malpractice case to consider “apportioning professional liability” to non-parties, a defendant must affirmatively show the negligence of those non-parties by expert testimony in accordance with RSA 507-E:2. Id. at 1057. It does not hold that a medical malpractice defendant must adduce expert testimony to support any position it takes at trial.
5 jury.”3 75 Am. Jur. 2d Trial § 4 1 4 , at 632 (2007) (footnote
omitted).
Dartmouth Hitchcock’s anticipated arguments do not fit that
description. Based on the evidence cited in its objection to
this motion, Dartmouth Hitchcock has a factual basis to argue
that no infiltration occurred. And, even without that evidence,
Dartmouth Hitchcock remains free to argue that the plaintiffs
have not carried their burden to show that infiltration did
occur. Indeed, at oral argument, the plaintiffs more or less
withdrew this motion, characterizing it as simply an attempt to
prevent Dartmouth Hitchcock from offering undisclosed expert
testimony that Coffey did not experience infiltration or
extravasation of the glucose, which is a different matter treated
by a different motion in limine. See infra Part II.E. On its
face, this motion requests much broader relief, but in any event
it is denied.
3 There is a similar prohibition, of course, on asking a question on cross-examination without “a good-faith basis in fact for the inquiry,” because “[t]he asking of the leading question and the denial carry a harmful innuendo which is unsupported by any evidence.” 1 McCormick on Evidence § 3 9 , at 171 & n.6 (Kenneth S . Broun, et a l . , eds., 6th ed. 2006). This rule is implicated by the plaintiffs’ third motion in limine. See infra Part II.C.
6 B. Plaintiffs’ motion to exclude references to their amending their complaint
The plaintiffs seek to prevent Dartmouth Hitchcock “from
making any reference to the fact that [their] Complaint in this
case was amended” to allege additional theories of negligence not
set forth in prior versions of the complaint. Though statements
in a pleading are admissible against the pleader as admissions by
a party-opponent, see Fed. R. Evid. 801(d)(2), even if the
pleading has since been amended to delete them, this court has in
a prior case disallowed their use to impeach the pleader’s
credibility on the theory that his or her allegations have
changed over time. See L’Etoile v . New Eng. Finish Sys., Inc.,
575 F. Supp. 2d 3 3 1 , 339-40 (D.N.H. 2008).
As this court reasoned, because pleadings are often amended
for reasons unrelated to the accuracy or completeness of the
prior allegations, the fact of amendment is usually not probative
of the pleader’s credibility, but the introduction of that fact
“carries significant risk of undue delay and waste of time as the
jury hears rebuttal evidence” explaining the reason for the
amendment. Id. So evidence that a pleading was amended should
generally be excluded under Rule 403, at least if offered to
impeach the pleader’s credibility. See id.; see also Mason v .
Texaco, Inc., 741 F. Supp. 1472, 1498 (D. Kan. 1990) (disallowing
7 the use of prior pleadings to cross-examine plaintiff because
“clients will rarely, if ever, be in a position to explain the
legal theories and strategies chosen by their lawyers”), aff’d,
948 F.2d 1546 (10th Cir. 1991).
Dartmouth Hitchcock, however, has disclaimed any intent to
use the fact of amendment for that purpose. Instead, Dartmouth
Hitchcock suggested that it may use prior versions of the
complaint in cross-examining witnesses who relied on prior
versions of the complaint in giving prior testimony in this
matter, including by referring to the complaint in an
interrogatory answer. Those strike the court as uses of the
prior pleading, rather than the fact of amendment, which in any
event do not appear to implicate the witness’s credibility. At
this point, then, the court cannot prohibit the use of prior
versions of the complaint for all purposes. Accordingly, this
motion is granted insofar as Dartmouth Hitchcock must approach
the bench with an appropriate proffer before referring to earlier
versions of the complaint or the fact they were amended.
C. Plaintiffs’ motion to exclude the conclusion of one of Coffey’s treating physicians
The plaintiffs seek to exclude any reference to the
conclusion, set forth in a note authored by D r . Susan Lemei, a
8 physician who saw Coffey at Springfield Hospital the day before
she died, that “[h]er wounds do not appear to be the origin of
her infection.” The plaintiffs say that, because Lemei “was
wrong in assuming that Mrs. Coffey’s hand was not infected”--at
least according to their view of the case--the conclusion should
be excluded under Federal Rules of Evidence 4 0 1 , 403, and 702.
But the plaintiffs have already agreed to the admissibility of
this note (as well as all Coffey’s medical records from the
relevant period), so any such objections are waived. Having made
such an agreement, the plaintiffs cannot prevent Dartmouth
Hitchcock from “referring” to the note, because a party’s trial
presentation may incorporate any evidence in the record. See,
e.g., United States v . Ortiz, 447 F.3d 2 8 , 35 (1st Cir. 2006).
Moreover, the plaintiffs’ objections are misplaced anyway.
The conclusion of a doctor who examined Coffey the day before she
died is plainly relevant under Rule 401. And, whether the
infection entered through Coffey’s hand or some other portal is a
crucial issue in the case, so the conclusion has significant
probative value that outweighs any countervailing concerns under
Rule 403; though the plaintiffs complain that the conclusion is
“wrong” or “misleading,” they can make those points to the jury,
including through the testimony of their own expert, who believes
9 the infection entered through the hand and will presumably
explain why he holds that belief despite Lemei’s observation.
As to the plaintiffs’ Rule 702 objection, most authorities
take the view that a party offering a document admissible as a
“report of regularly conducted activity” under Rule 803(6)
(covering a “memorandum, report, record . . . of acts, events,
conditions, opinions, or diagnoses”)--as medical records
generally are, see Fed. R. Evid. 803(6) advisory committee’s note
(1972)--need not also show, under Rule 7 0 2 , the qualifications of
the document’s author to render any opinions in the report. See,
e.g., Forward Commc’ns Corp. v . United States, 608 F.2d 485, 510
(Ct. C l . 1979); United States v . Licavoli, 604 F.2d 613, 622-23
(9th Cir. 1979); 2 McCormick on Evidence, supra, § 2 8 7 , at 307
n.10; but see 5 Jack B . Weinstein & Margaret A . Berger,
Weinstein’s Federal Evidence § 803.08[6][c], at 803-70 (Joseph G.
McLaughlin, ed., 2d ed. 1999 & 2004 supp.) (noting that a
conclusion in a report admissible under Rule 803(6) may be
excluded under Rule 7 0 2 ) . Instead, to exclude the opinion, the
adverse party bears the burden to show that “the source of
information or the method or circumstances of preparation lack
trustworthiness,” as provided by Rule 803(6) itself. See
Licavoli, 604 F.2d 622-23.
10 The plaintiffs have not done that; nor have they shown, for
that matter, that Lemei was unqualified under Rule 702 to give an
opinion as to whether Coffey’s hand appeared infected. Cf.
Ricciardi v . Children’s Hosp. Med. Ctr., 811 F.2d 1 8 , 23 (1st
Cir. 1987) (upholding exclusion of doctor’s note describing
incident during surgery where doctor’s basis for knowing about
the incident was unknown, despite Rule 803(6), because “[a]n
unknown source is hardly trustworthy”). So far as the report
itself indicates, Lemei is a hospitalist, i.e., a physician who
treats hospitalized patients, who based her assessment of Coffey
on the results of a physical examination and laboratory work.
This motion is denied.4
D. Plaintiffs’ motion to exclude reference to the hypoglycemia policy of Mercy Hospital
referring to the written policy of Mercy Hospital (located in
Portland, Maine, and not the site of any of the treatment at
issue in this case) for treating patients with hypoglycemia.
4 At oral argument, the plaintiffs pointed out that Dartmouth Hitchcock cannot call Lemei to testify to her conclusion because she was not disclosed as an expert witness under Fed. R. Civ. P. 26(a)(2)(A). That is correct, see infra Part II.E, but Dartmouth Hitchcock disclaimed any intention to call Lemei in any event.
11 When the plaintiffs’ claims in this case were heard before a
medical malpractice screening panel as required by New Hampshire
law, RSA 519-B, counsel for Dartmouth Hitchcock referred to the
policy in cross-examining one of the plaintiffs’ expert
witnesses, making a representation as to the dictates of the
policy in a particular situation. The plaintiffs object to use
of the same tactic at trial because Dartmouth Hitchcock has never
given them a copy of the policy--though they asked to see it
during the proceedings before the panel--leaving them in the dark
as to what the policy actually provides.
“In the interests of justice and fairness, counsel may be
required to produce for examination by opposing counsel writings
used to cross-examine a witness.”5 98 C.J.S. Witnesses § 4 9 1 , at
462 (2002). Those sorts of interests require Dartmouth Hitchcock
to produce a copy of Mercy Hospital’s hypoglycemia policy to the
plaintiffs before using it for cross-examination or otherwise
referring to it at trial. At oral argument, counsel for
Dartmouth Hitchcock suggested that, because he obtained a copy of
5 Similar interests are served by the rule, codified as Rule 613(a) of the Federal Rules of Evidence, that “[i]n examining a witness concerning a prior statement made by the witness . . . the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.” See 1 McCormick on Evidence, supra, § 2 8 , at 130-31.
12 the policy through his own efforts, it was protected by the work
product doctrine, but that notion is incorrect. First, as the
language of Rule 26(b)(3)(A) of the Federal Rules of Civil
Procedure indicates, “[m]aterials assembled during routine
investigation by counsel do not receive the qualified immunity
afforded an attorney’s work product.” 10 Federal Procedure:
Lawyers Edition § 26:184, at 573 (2007); see also United States
v . Fort, 472 F.3d 1106, 1118 n.13 (9th C i r . ) , cert. denied, 128
S . C t . 375 (2007); In re Grand Jury Subpoenas, 318 F.3d 379, 384-
85 (2d Cir. 2003).
Second, even if the policy had been privileged, counsel
waived it by disclosing the contents of the document to the
plaintiffs’ witness during the panel proceeding. See United
States v . Nobles, 422 U.S. 225, 239-40 (1975); 10 Federal
Procedure: Lawyers Edition, supra, § 26:232, at 615. To allow
Dartmouth Hitchcock to question the plaintiffs’ witnesses about
the policy without disclosing i t , then, would “sustain a
unilateral testimonial use of work-product materials” as a sword,
rather than a shield (assuming, dubitante, that the policy is
“work product” in the first place). Nobles, 422 U.S. at 240.
This motion is granted: Dartmouth Hitchcock shall not refer to
13 the Mercy Hospital hypoglycemia policy without first producing it to the plaintiffs.6
E. Plaintiffs’ motion to exclude expert testimony from physicians not disclosed as experts
The plaintiffs move to preclude any expert testimony from a
number of physicians who treated Coffey, arguing that Dartmouth
Hitchcock failed to disclose them as expert witnesses in a timely
fashion. In their proposed discovery plan, submitted under Rule
26(f) of the Federal Rules of Civil Procedure and later approved
by the court, the parties agreed to
make a good faith disclosure of expert opinions and the basis thereof . . . . The parties opt out of the formal requirements of Fed. R. Civ. P. 26(a)(2). Expert witness designations need not be authored and signed by the experts but need only contain the identity of the expert, his qualifications, opinions, and the basis and reasons for those opinions.7
The parties ultimately agreed to a deadline of June 1 , 2008, for
Dartmouth Hitchcock to provide this information.
As contemplated by the discovery plan, Dartmouth Hitchcock
provided the plaintiffs with individual expert disclosures as to
6 The plaintiffs also argue that the policy is irrelevant because, if it says what Dartmouth Hitchcock’s counsel represented it to say, it would not have applied to Coffey’s situation anyway. The court cannot resolve that objection before receiving evidence on Coffey’s situation and seeing the policy. 7 See document n o . 6.
14 its retained experts on nursing standards of care and infectious
diseases, and a “reservation . . . with respect to potential
expert witnesses,” in June 2008. The “reservation” listed a
number of nurses who had not been retained as experts, but “whose
testimony as percipient witnesses also reveals expertise that may
be germane to the issues in the case and may be helpful to the
jury” by virtue of having cared for Coffey during her treatment
at Dartmouth Hitchcock.
But it was not until April 2 , 2009, when Dartmouth Hitchcock
filed its final pre-trial statement under Rule 26(a)(3) and Local
Rule 16.2, that it disclosed a number of physicians who also
treated Coffey during her hospitalization. The plaintiffs argue
that, given this untimely disclosure, these physicians cannot
offer any expert testimony at trial. There is no question that,
because these physicians were neither “retained or specially
employed to provide expert testimony in the case” nor have
“duties as [Dartmouth Hitchcock’s] employee[s] [that] regularly
involve giving expert testimony,” they are not subject to Rule
26(a)(2)(B), which by its terms requires an expert report (but in
this case, due to the provision in the discovery plan, required
only the specified “expert witness designation”). See Fed. R.
Civ. P. 26(a)(2) advisory committee’s note (1993); Sprague v .
Liberty Mut. Ins. Co., 177 F.R.D. 7 8 , 81 (D.N.H. 1998).
15 The plaintiffs maintain, however, that Dartmouth Hitchcock
was required to disclose these treating physicians as expert
witnesses under Rule 26(a)(2)(A). That is correct, as this court
has previously observed. “While all experts must be disclosed
under Rule 26(a)(2)(A), only ‘retained’ experts must provide Rule
26(a)(2)(B) reports.” Sprague, 177 F.R.D. at 8 1 . In response,
Dartmouth Hitchcock argues (aside from a generalized, and
inadequate, plea that it “should be able to defend itself through
the testimony of its employees”) that testimony from treating
physicians is not expert testimony unless it is “hypothetical,”
e.g., their opinions on whether other professionals met the
standard of care. The court disagrees.
Rule 26(a)(2)(A) is clear: its disclosure requirement
applies to “any witness [a party] may use at trial to present
evidence under Federal Rule of Evidence 7 0 2 , 703, or 705.” Rule
702, in turn, provides in relevant part that “[i]f scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an
opinion or otherwise.” This encompasses a treating physician’s
diagnoses, prognoses, or other conclusions as to the patient’s
condition, because those are examples of the physician’s
16 “specialized knowledge”--indeed, it is to take advantage of that
specialized knowledge that laypeople ordinarily seek the advice
of physicians and other medical professionals. So this court
takes the view that, when the parties have not agreed otherwise,
a treating physician may not testify to such matters unless he or
she has been disclosed under Rule 26(a)(2)(A).8 See Musser v .
Gentiva Health Servs., 356 F.3d 7 5 1 , 758 (7th Cir. 2004); Redfoot
v . B.F. Ascher & Co., N o . 05-2045, 2007 WL 1593239, at *13 (N.D.
Cal. June 1 , 2007); Mealing v . City of Ridgefield, Wash., N o . 05-
5778, 2007 WL 1367603, at *1 (W.D. Wash. May 8 , 2007); Garza v .
Roger Henson Trucking L.L.C., N o . 05-5001, 2006 WL 1134911, at *3
(D. Neb. Apr. 2 6 , 2006); see also Vigilant Ins. C o . v . E .
Greenwich Oil Co., 234 F.R.D. 2 0 , 22-23 (D.R.I. 2006) (rejecting
the view that “non-retained testifying experts” need not be
disclosed under Rule 26(a)(2)(A)).
At oral argument, Dartmouth Hitchcock sought to characterize
a treating physician’s testimony as to diagnoses and the like as
lay opinion testimony admissible under Rule 7 0 1 , instead of
expert opinion testimony admissible under Rule 702. Rule 7 0 1 ,
8 Again, this is to be distinguished from the issue of whether a treating physician can testify to such matters without timely submitting an expert report under Rule 26(a)(2)(B), see, e.g., Vosburgh v . Bourassa, 2008 DNH 133, 5-8, because the plaintiffs do not argue that Rule 26(a)(2)(B) applies to any of the treating physicians at issue.
17 however, allows lay testimony as to “opinions and inferences”
only i f , among other restrictions, they are “not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701(c). This limitation,
added to the rules in 2000, “makes clear that any part of a
witness’ testimony that is based upon scientific, technical, or
other specialized knowledge within the scope of Rule 702 is
governed by the standards of Rule 702 and the corresponding
disclosure requirements of the Civil and Criminal Rules.” Id.
advisory committee’s note (2000).
Again, it cannot be seriously disputed that a treating
physician’s diagnoses, prognoses, or similar conclusions as to
the patient’s condition are “based upon scientific, technical, or
other specialized knowledge,” and, as such, are outside the scope
of Rule 701--and inside the scope of Rule 26(a)(2)(A). As one
court has observed, the view “that a treating physician is not
even an expert witness subject to disclosure under Rule
26(a)(2)(A) to the extent his testimony relates to his personal
observations with a plaintiff/patient prior to the litigation
. . . has been superseded by the 2000 amendments to Fed. R. Evid.
701 and the advisory committee notes.”9 Kirkham v . Societe Air
9 The one case on which Dartmouth Hitchcock relies, United s v . Henderson, 409 F.3d 1293 (11th Cir. 2005), acknowledges
18 Fr., 236 F.R.D. 9, 11 n.2 (D.D.C. 2006). This is not to say, of
course, that, in the absence of a Rule 26(a)(2)(A) disclosure,
treating physicians cannot testify as t o , as Dartmouth Hitchcock
puts i t , “what they saw and what they did” in the course of
caring for a patient; that would be fact testimony, rather than
opinion testimony under Rule 702. But going beyond those facts
triggers the disclosure requirement, which Dartmouth Hitchcock
disregarded when it failed to designate the treating physicians
as expert witnesses by the agreed-upon deadline.
Having failed “to identify [ ] witness[es] as required by
Rule 26(e)(2),” Dartmouth Hitchcock is “not permitted to use that
. . . witness . . . at a trial, unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). But “it is the obligation of the party facing
the 2000 amendment to Rule 7 0 1 , but goes on to cite pre-amendment authority to support its view that a treating physician’s testimony as to her diagnosis of the patient as having a broken jaw “would be permissible lay testimony” under the rule, while concluding that her testimony as to the likely cause of that injury would not b e . Id. at 1300. The Henderson court’s view as to the admissibility of the diagnosis was dicta, because there was no objection to that part of the testimony, but this court disagrees with that view insofar as it suggests that a physician’s diagnosis of a patient ordinarily qualifies as a lay opinion under Rule 701. That said, there may be some diagnoses so obvious that a physician can make without resorting to his or her specialized knowledge--a common cold might be one example, and perhaps a broken jaw is another--but the court need not resolve that issue here because Coffey’s condition was not of that nature.
19 sanctions for belated disclosure to show that its failure to
comply with the Rule was either justified or harmless.” Wilson
v . Bradlees of New Eng., Inc., 250 F.3d 1 0 , 21 (1st Cir. 2001).
Here, Dartmouth Hitchcock has not even ventured an argument
that its non-disclosure of the treating physicians as experts was
either substantially justified or harmless. A substantial
justification argument would not work, anyway, because Dartmouth
Hitchcock’s careful “reservation” of its rights to call any of
the nurses who treated Coffey as “potential expert witnesses”
demonstrates that it fully appreciated its obligation to disclose
under Rule 26(a)(2)(A) those “whose testimony as percipient
witnesses also reveals expertise that may be germane to the
issues in the case.”
A colorable harmlessness argument is easier to envision, on
the theory that the plaintiffs and their counsel have long known
the identity of the treating physicians and their opinions
through access to Coffey’s medical records, making a Rule
26(a)(2)(A) disclosure a mere formality. C f . Sprague, 177 F.R.D.
at 81 (noting that “unretained experts, who formed opinions from
pre-litigation observation, invariably have files from which any
competent trial attorney can effectively cross-examine” them).
Again, though, it is Dartmouth Hitchcock’s burden to present such
an argument, and it has not. So the court takes at face value
20 the plaintiffs’ complaint that, had they known Dartmouth
Hitchcock intended to elicit opinion testimony from the treating
physicians, their depositions would have been sought but now, on
the eve of trial, it is too late.
Finally, though Rule 37(c)(1) authorizes other sanctions
“instead of” excluding undisclosed witnesses, it nevertheless
“requires the near automatic exclusion of Rule 26 information
that is not timely disclosed,” placing the burden on the non-
disclosing party to show that some lesser sanction is
appropriate. Wilson, 250 F.3d at 20-21. Dartmouth Hitchcock,
again, has not taken on that burden here, but in any event none
of the other sanctions (e.g., ordering the payment of attorneys’
fees caused by the nondisclosure, or informing the jury of it) is
appropriate. Accordingly, the motion is granted insofar as it
seeks to preclude the treating physicians from offering any
opinion testimony, as defined by Rule 702.
F. Dartmouth Hitchcock’s motion for a ruling on the value of medical services
Dartmouth Hitchcock asks the court to rule that the
reasonable value of medical services in this case, as an element
of the damages to Coffey’s estate, is the amount paid in full
satisfaction of her medical bills, rather than the face amount of
21 the bills themselves. Dartmouth Hitchcock represents that, while
it billed Coffey more than $73,000 for its services, it accepted
only about $28,500 in full satisfaction of those charges from
Medicare and Coffey’s supplemental insurer. Dartmouth Hitchcock
argues that allowing Coffey’s estate to recover more than the
approximately $28,500 actually paid would bestow a windfall in
contravention of “first principles” that a damage award put the
plaintiff in the same, not a better, position that it would have
been but for the defendant’s allegedly tortious conduct.
As the parties recognize, this court rejected essentially
the same argument in Williamson v . Odyssey House, Inc., 2000 DNH
238 (DiClerico, J . ) , denying a motion in limine “to exclude
evidence of the billed cost of medical services . . . and to
limit the evidence of damages for medical expenses to the amounts
actually paid by Medicaid.” Id. at 1 . Judge DiClerico ruled
that “[i]n light of New Hampshire’s collateral source rule and
the standard for the measure of damages for medical costs . . .
the reasonable value of medical services . . . is the proper
measure of damages, regardless of the amount paid for those
services by Medicaid.” Id. at 3 . This court sees no reason to
reach a different conclusion here.
As this court explained in Williamson, New Hampshire’s
collateral source rule provides that, “‘if a plaintiff is
22 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].’” Id. at 2 (quoting
Moulton v . Groveton Papers Co., 114 N.H. 505, 509 (1974)). One
purpose of this rule, as Williamson recognized, is “to prevent a
windfall to the defendant tortfeasor, who would otherwise profit
from benefits provided by a third party to the injured party.”
Id. (citing Carson v . Maurer, 120 N.H. 925, 940 (1980)).
Dartmouth Hitchcock argues that the rule nevertheless produces a
windfall--to the injured party, who usually pays little if
anything out-of-pocket toward his or her medical bills because
they have been paid by government or private insurance.10
The collateral source rule, however, dictates that this
windfall should go to the injured plaintiff, rather than the
tortfeasor defendant. Indeed, where third-party payments have
reduced the plaintiff’s net loss, “to the extent the defendant is
10 The insurer who pays the bills, of course, generally has a lien against any recovery for the related injuries from the third party who caused them. See, e.g., Ark. Dep’t of Health & Human Servs. v . Ahlborn, 547 U.S. 2 6 8 , 280-92 (2006) (discussing states’ ability to recover Medicaid payments occasioned by third- party torts). So the unstated premise of Dartmouth Hitchcock’s argument is that, because Coffey’s insurers cannot recover any more than what they actually paid from her estate--and it was only her insurers, rather than her estate, who paid anything--her estate should be able to recover no more than what the insurers actually paid.
23 required to pay the total amount there may be double compensation
. . . . But it is the position of the law that a benefit that is
directed to the injured party should not be shifted so as to
become a windfall for the tortfeasor.” Restatement (Second) of
Torts § 920 cmt. b , at 514 (1977). New Hampshire, like the
majority of jurisdictions, adheres to this policy choice. This
court, in applying New Hampshire law, is obviously not free to
choose differently.
Dartmouth Hitchcock protests that “because the billed amount
is an illusory charge with no relationship to the cost or value
of medical services,” a damages award based on the sum of the
plaintiffs’ bills, rather than the sum paid in satisfaction of
them, does not reflect “‘the reasonable value of past and future
medical care,’” which, as Williamson observed, is the proper
measure of that element of damages in a tort case. 2000 DNH 2 3 8 ,
at 2 (quoting and adding emphasis to Johnston v . Lynch, 133 N.H.
7 9 , 92 (1990)). As an alternative to simply ruling that the
medical expenses equal the payment, then, Dartmouth Hitchcock
proposes that, in order to rectify this problem, it should be
allowed to introduce the evidence of what it was paid in
satisfaction of Coffey’s bills as “the value of the services as
represented by the market.”
24 That strikes the court as an end-run around the collateral
source rule, as a number of courts have concluded in upholding
the exclusion of what a third party paid toward medical expenses
as evidence of their value. See Goble v . Frohman, 848 S o . 2d
406, 410 (Fla. Dist. C t . App. 2003), aff’d, 901 S o . 2d 830 (Fla.
2005); Wills v . Foster, 892 N.E.2d 1018, 1033 (Ill. 2008);
Covington v . George, 597 S.E.2d 1 4 2 , 144 (S.C. 2004); Papke v .
Harbert, 738 N.W.2d 5 1 0 , 536 (S.D. 2007); Radvany v . Davis, 551
S.E.2d 3 4 7 , 348 (Va. 2001); Leitinger v . DBart, Inc., 736 N.W.2d
1 , 13-14 (Wis. 2007); but see Robinson v . Bates, 857 N.E.2d 1195,
1200 (Ohio 2006). These courts have generally reasoned that,
while evidence of what was actually paid in satisfaction of the
bills has some probative force as to the value of the plaintiff’s
medical expenses, the risk is simply too great that the jury will
improperly subtract those payments from the plaintiff’s recovery
in violation of the collateral source rule.11 See Goble, 848 S o .
11 In a similar vein, a number of courts have ruled that evidence of the fact of payments from a third-party is inadmissible to show that the plaintiff was “malingering,” i.e., putting off returning to work following the injury at issue, based on the risk that the jury will misuse the evidence to reduce the plaintiffs’ damages in violation of the collateral source rule. See, e.g., Eichel v . N.Y. Cent. R.R. Co., 375 U.S. 253, 254-55 (1963); Proctor v . Castelletti, 911 P.2d 853, (Nev. 1996); Reinan v . Pac. Motor Trucking Co., 527 P.2d 256, 258-59 (Or. 1974) (citing cases).
25 2d at 410; Wills, 892 N.E.2d at 1033; Covington, 597 S.E.2d at
144; Leitinger, 736 N.W.2d at 1 3 .
That mode of analysis comports with the view of the court of
appeals that the collateral source rule has an evidentiary
component, i.e., proof of third-party payments to the plaintiff
as compensation for his or her injuries is generally
inadmissible, and a substantive component, i.e., such payments
have no effect on the defendant’s liability. See Fitzgerald v .
Expressway Sewerage Constr., Inc., 177 F.3d 7 1 , 73 (1st Cir.
1999). S o , under the Erie doctrine, Erie R.R. C o . v . Tompkins,
304 U.S. 6 4 , 78 (1938), a federal court exercising its diversity
jurisdiction is bound to apply the rule’s substantive component,
but effects the rule’s evidentiary component by applying the
Federal Rules of Evidence, particularly Rule 403. See
Fitzgerald, 177 F.3d at 7 4 . In this regard, the court of appeals
has recognized that, while collateral source evidence may have
some probative worth in particular circumstances, it “almost
inevitably creates a risk that a jury, informed, say that a
plaintiff has recourse to first-party insurance proceeds, may be
unduly inclined to return either a defendant’s verdict or an
artificially low damage award.” Id. at 75. 12
12 The court in Fitzgerald in fact upheld the admission of proof of health insurance payments to the plaintiffs, but only
26 In accord with that observation, and the many state court
decisions just discussed, this court concludes that the
significant risk of unfair prejudice to Coffey’s estate from
proof of what her insurers actually paid to settle her medical
bills--that i s , that the jury may improperly reduce any award to
the estate--substantially outweighs any probative value of that
proof to the value of the care she received. See Fed. R. Evid.
403. Dartmouth Hitchcock’s motion is denied, and it shall not
offer evidence of what i t , or any other provider, accepted as
payment in full for its charges to Coffey.13
after one of them testified that the medical expenses resulting from the injuries at issue had exerted a financial strain. 177 F.3d at 7 5 . The court ruled that the district court had not abused its discretion by allowing proof of the payments for the limited purpose of rebutting that testimony, on the theory that the plaintiffs had opened the door. Id. at 75-76. Subject to potential developments at trial, however, that aspect of Fitzgerald is inapplicable here. See England v . Reinauer Transp. Cos., 194 F.3d 265, 274 (1st Cir. 1999) (distinguishing Fitzgerald, and upholding the exclusion of evidence of insurance payments, where plaintiff’s testimony “was not sufficient to imply that he was suffering such financial difficulties as to negate impliedly the receipt of any additional benefits”). 13 Disallowing evidence of third-party payments for this purpose does not prevent Dartmouth Hitchcock from using other methods of questioning the face amounts of the medical bills as equivalent to the reasonable value of Coffey’s medical expenses. See, e.g., Covington, 597 S.E.2d at 145. Of course, that puts Dartmouth Hitchcock in the somewhat delicate position of arguing to the jury--as it did in support of this motion--that its own bills have “no relationship to the cost or value of medical services.”
27 G. Dartmouth Hitchcock’s motion to exclude hearsay statements
Finally, Dartmouth Hitchcock seeks to preclude evidence of
two statements allegedly made to members of Coffey’s family by
its employees. Dartmouth Hitchcock argues that these statements
are hearsay because the plaintiffs cannot show the predicate for
introducing them as admissions under Rule 801(d)(2). The
plaintiffs respond that they have done just that, at least as to
one of the statements, and that they are offering the other
statement not for its truth, but for the emotional distress it
caused Coffey and her husband upon hearing i t .
A. The statement to James Coffey
The first statement was allegedly made to Coffey’s son,
James, by a man he encountered upon leaving his mother’s hospital
room at Dartmouth Hitchcock after she had received the injections
of glucose, or “D-50.” James, who was concerned about the
appearance of his mother’s hand, asked this “fellow,” whom he met
in the corridor near the nurse’s station, whether he had seen or
touched the hand. According to James’s deposition testimony, the
man told him “it was an injection of D-50 into the tissue of her
hand. Someone had made a mistake. He had never seen anything
like it.” But, save for a less-than-certain memory that the man
was about the same height as him, James could not recall anything
28 about the man’s appearance, such as his hair color, clothing, the
characteristics of his voice, or what he was holding or doing at
the time. James “just thought he was a nurse, or a physician’s
assistant, or something because he was the one I met.”
The plaintiffs say that the man’s statement to James is
admissible as an admission by a party-opponent under Rule
801(d)(2), sections ( A ) , ( C ) , and ( D ) . They do not explain,
however, how the comment is “the party’s own statement, in either
an individual or a representative capacity” under section (A) or
“a statement by a person authorized by the party to make a
statement concerning the subject” under section ( C ) , and neither
of those provisions seems to apply, so the court will not
consider them. See United States v . Gaines, 170 F.3d 7 2 , 79 (1st
Cir. 1999). The plaintiffs’ real argument is that the man’s
comment to James is “a statement by the party’s agent or servant
concerning a matter within the scope of the agency or employment,
made during the existence of the relationship” under Rule
801(d)(2)(D). Dartmouth Hitchcock objects that, in light of
James’s inability to recall anything about the man who made the
statement, the plaintiffs cannot show that he even was the
hospital’s employee, let alone that the subject of the statement,
Coffey’s condition, was within the scope of any such employment.
29 The proponent of a statement as an admission by an agent
within the scope of his employment bears the burden of showing
both the existence and scope of the relationship. See Bacou
Dalloz USA, Inc. v . Cont’l Polymers, Inc., 344 F.3d 2 2 , 29 n.4
(1st Cir. 2003). These predicates may be shown by circumstantial
evidence, so long as the evidence is more than simply the
statement itself. See, e.g., Pappas v . Middle Earth Condo.
Ass’n, 963 F.2d 5 3 4 , 538 (2d Cir. 1992); 4 Stephen A . Salzburg et
a l . , Federal Rules of Evidence Manual § 801.02[6][f][iv], at 801-
48--801-49 (9th ed. 2006); accord Woodman v . Haemonetics Corp.,
51 F.3d 1087, 1094 (1st Cir. 1995) (ruling that statement
proffered under Rule 801(d)(2)(D) was erroneously excluded given
circumstantial evidence that it concerned matters within the
scope of the declarant’s employment). Furthermore, this evidence
need not include proof positive of the declarant’s identity; as
one court has put i t , “a name is not in all cases required.”
Davis v . Mobil Oil Exploration & Producing S e . , Inc., 864 F.2d
1171, 1174 (5th Cir. 1989); see also Pappas, 963 F.2d at 538.
Here, as the plaintiffs suggest, James’s testimony provides
adequate circumstantial evidence that the declarant, first, was
an employee of Dartmouth Hitchcock and, second, that the
statement concerned a matter within the scope of his employment.
James recalled that the man was standing in the corridor near the
30 nurse’s station and, when asked whether he knew about Coffey’s
hand, gave a response that indicated not only some specific
knowledge of that subject, i.e., that she had received an
injection of a particular substance, but also the basis of that
knowledge, i.e., that he had actually seen the hand, because he
had “never seen anything like it.” It is difficult to imagine
that such things would be known or seen by a person whose job did
not include knowing or seeing them, let alone a person who was
not even employed by the hospital. See Pappas, 963 F.2d at 538
(rejecting as “fanciful and unpersuasive” the notion that a
declarant who had “arrived carrying appropriate implements for
ice removal” following a call to defendant complaining about an
icy sidewalk was not authorized to maintain the sidewalk).
A number of courts have found similar circumstantial
evidence of an employment relationship and its scope sufficient
to allow the admissibility of an otherwise unidentified
declarant’s statement under Rule 801(d)(2)(D). See Pappas, 963
F.2d at 538; Fitzpatrick v . Home Depot U.S.A., Inc., N o . 06-3624,
2007 WL 2071894, at *1 (E.D. P a . July 1 8 , 2007) (ruling that
plaintiff’s identification of the declarant as “standing among a
group of five to seven employees” near the checkout corner and
wearing the color of the store’s typical uniform sufficed to
admit his statement acknowledging a dangerous condition there);
31 Becton v . Starbucks Corp., 491 F. Supp. 2d 7 3 7 , 740-41 (S.D. Ohio
2007) (allowing an apologetic statement from a woman who
identified herself as a manager where her conduct in attending to
plaintiff’s mishap “clearly supports a finding that she worked
for [defendant] and was acting in the scope of her employment
when she made the statement”); Miller v . TGI Friday’s, Inc., N o .
05-6445, 2007 WL 723426, at *4 (C.D. Ill. Mar. 5 , 2007)
(admitting plaintiff’s testimony that she overheard a
restaurant’s hostess saying “they should have cleaned up the
stair” where the fact that the hostess had seated the plaintiff
provided circumstantial evidence of her duty to help keep the
floor clean); Bibbs v . Newman, 997 F. Supp. 1174, 1181-82 (S.D.
Ind. 1998) (admitting statement from unidentified subordinates in
an employment discrimination case because “the subject matter of
the statements is sufficient to show they would have been made
within the scope of [their] employment”). In line with these and
like authorities, the court concludes that the plaintiffs have
proffered adequate evidence to submit the statement to James
Coffey as an admission by an employee within the scope of his
employment, notwithstanding their inability to identify the declarant more specifically.14
14 This is not to say that, at trial, Dartmouth Hitchcock may make an issue of the lack of specificity, whether through its
32 Dartmouth Hitchcock further argues that the comment to James
Coffey is inadmissible because the declarant “must have gotten
the information--even if true--from some source other than their
personal knowledge of [Coffey’s] care.” As just discussed,
however, the declarant appeared to profess personal knowledge of
Coffey’s condition, saying “he had never seen anything like it.”
Regardless, as the plaintiffs point out, the declarant’s personal
knowledge of what he speaks is not essential to treating the
statement as an admission. Fed. R. Evid. 801(d)(2) advisory
committee’s note (1972); see also Brookover v . Mary Hitchcock
Mem’l Hosp., 893 F.2d 4 1 1 , 415-18 (1st Cir. 1990).
Finally, Dartmouth Hitchcock objects that, even if the
statement is admissible under Rule 801(d)(2)(D), it is “unduly
prejudicial” and should therefore be excluded under Rule 403.
The court disagrees. As discussed supra, Dartmouth Hitchcock
cross-examination of James or otherwise. Indeed, the plaintiffs had recourse to discovery mechanisms that presumably would have identified the declarant, e.g., asking Dartmouth Hitchcock to list and provide a photograph of all employees working in that area of the hospital at that time. While James’s inability to remember much about the declarant is understandable, plaintiffs’ counsel’s failure to employ these discovery measures is less s o ; indeed, they conceded at oral argument that they essentially made no effort in that regard. Nevertheless, as one court has remarked in admitting a statement under similar circumstances, “[w]hile these deficiencies may very well make it more difficult for [the plaintiffs] to succeed at trial, they are not necessarily relevant to the question of whether the statements themselves are admissible.” Becton, 491 F. Supp. 2d at 742.
33 intends to take the positions at trial that the glucose never
infiltrated Coffey’s tissue, and, moreover, that the hospital
acted within the standard of care in administering the glucose.
That gives the declarant’s comment to Coffey that “it was an
injection of D-50 into the tissue of her hand. Someone had made
a mistake” probative force as a “prior factual claim
contradictory to a factual position taken in this case by the
same party.” Trull v . Volkswagen of Am., Inc., 187 F.3d 8 8 , 99
(1st Cir. 1999). Furthermore, Dartmouth Hitchcock has the
opportunity to staunch any prejudice by cross-examining James
Coffey as to his hazy recollection, or through other methods, see
note 1 3 , supra. Dartmouth Hitchcock’s motion is denied as to
this statement.
B. The statement to Mary Worley
Dartmouth Hitchcock also challenges a statement allegedly
made to Coffey’s daughter, Mary Worley, while she and other
members of the family, including Coffey’s husband, were in
Coffey’s hospital room after the injections had been given. At
her deposition, Worley testified that “a person--I don’t know
whether she was a nurse or a nurse’s aide--went and looked out
the door to see if anyone was looking around and then came back
in and said, [‘]We’re really concerned--they are really concerned
34 that your mother is going to lose her hand.[’]” While Worley
recalled that the person was wearing a uniform--“loose-fitting
pants with an overblouse”--Worley could not recall anything else
about her appearance, including her height, facial features, or
voice or the color of her uniform, her hair, or her skin.
Unlike the statement to James Coffey, the plaintiffs do not
seek to admit the statement to Worley for its truth, i.e., that
“they,” presumably the responsible Dartmouth Hitchcock staff,
were concerned that Coffey would lose her hand.15 Instead, they
offer the statement for the emotional distress they say it
engendered in the plaintiffs who heard i t , namely, Coffey and her
husband. That resolves the hearsay problem, see Fed. R. Evid.
801(c), but potentially creates another difficulty: whether the
plaintiffs can recover for the distress caused by a statement
attributed to a Dartmouth Hitchcock employee, as opposed to the
consequences of Dartmouth Hitchcock’s alleged malpractice.
15 While the plaintiffs’ objection is somewhat ambiguous on this point, they clarified it at oral argument. In any event, courts have generally upheld the exclusion of an employee’s statements about what “they”--presumably fellow employees possessed of greater authority but otherwise unidentified--want or believe as presenting an unresolved hearsay-within-hearsay problem under Rule 805. See, e.g., Zaben v . Air Prods. & Chems., Inc., 129 F.3d 1453, 1456-57 (11th Cir. 1997); Carden v . Westinghouse Elec. Corp., 850 F.2d 996, 1002 (3d Cir. 1988); Cedeck v . Hamiltonian Fed. Sav. & Loan Ass’n, 551 F.2d 1136, 1138 (8th Cir. 1977).
35 In the court’s view, the answer to this question depends on
the identity of the particular plaintiff. New Hampshire law
allows recovery under the wrongful death statute, RSA 556:12, I ,
“for any conscious pain and suffering endured by the decedent in
anticipation of the fatal accident,” including “pre-accident
fright.” Thibeault v . Campbell, 136 N.H. 6 9 8 , 702 (1993). It
seems obvious that the alleged comment to Worley would have
contributed to Coffey’s consciousness of her plight, and is
therefore admissible on that point--assuming, of course, that
Coffey heard the comment. The materials presently before the
court give no indication that she did; the excerpt of Worley’s
deposition transcript submitted to the court suggests only that
the comment was made in Coffey’s hospital room. Without filling
this gap in the foundation--which they may be able to do at
trial--the plaintiffs cannot offer the statement to Worley for
the emotional distress it caused Coffey.
The emotional distress of Coffey’s husband, however, is a
different matter. As referenced supra, the third amended
complaint had asserted two claims on his behalf, loss of
consortium and negligent infliction of emotional distress. The
loss of consortium count alleged that, “[a]s a result of the
injuries suffered by his wife, M r . Coffey has been deprived of
the care, comfort and society of his wife for which he is
36 entitled to be fairly compensated.” The negligent infliction of
emotional distress count, in contrast, alleged that Coffey was
aware that his wife had been injured and, indeed, observed her
“deteriorate physically and emotionally” while she received
treatment for her injuries. “As such,” that count concludes,
“Mr. Coffey suffered the sensory and contemporaneous experience
of his wife being injured by [Dartmouth Hitchcock’s] conduct,”
causing him emotional trauma and distress.
If Francis Coffey overheard the comment to Worley, as the
plaintiffs have represented he did, it certainly would have
contributed to the emotional distress of his ordeal in watching
his wife suffer. But Francis Coffey has voluntarily dismissed
the vehicle for recovering that emotional distress, namely, his
claim for negligent infliction of emotional distress. See Graves
v . Estabrook, 149 N.H. 2 0 2 , 203 (2003). So the statement is not
admissible on that theory.
The plaintiffs have maintained, both at oral argument and in
a supplemental brief filed afterwards, that Francis Coffey may
recover for emotional distress under his loss of consortium
theory. That is correct, but the emotional distress recoverable
under a loss of consortium theory is of a different kind, namely,
the emotional distress resulting from the effect of his wife’s
injuries and ultimately her death o n , as the third amended
37 complaint asserts, “the care, comfort and society” she was able
to give him. See LaBonte v . Nat’l Gypsum Co., 113 N.H. 6 7 8 , 683
(1973); see also RSA 556:12, II (recognizing loss of consortium
claim for death of one’s spouse). The comment to Worley that
(presumably) hospital staff were “really concerned that [Coffey]
[was] going to lose her hand” did not cause Coffey’s injuries and
therefore had no effect on the consortium she could provide her
husband. It is therefore irrelevant to the loss of consortium
claim because it does not have “any tendency to make the
existence of any fact that is of consequence to the determination
of the action”--here, the emotional distress Francis Coffey
suffered from losing the care, comfort, and society of his wife
through her injuries and death--“more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401.
Again, the emotional distress Francis Coffey suffered from
watching his wife’s own suffering is recoverable only under a
negligent infliction of emotional distress theory.
The plaintiffs have provided no authority for their view
that the emotional distress recoverable under a loss of
consortium theory embraces the effect of the defendant’s
statements on the claimant spouse. Dartmouth Hitchcock’s motion
to exclude the statement to Worley, then, is granted without
38 prejudice to the plaintiffs’ ability to show at trial that Coffey
in fact overheard i t .
III. Conclusion
For the foregoing reasons, the plaintiffs’ second, fourth,
and fifth motions in limine16 are GRANTED; the plaintiffs first
and third motions in limine17 are DENIED; Dartmouth Hitchcock’s
first motion in limine18 is DENIED; and Dartmouth Hitchcock’s
second motion in limine19 is DENIED IN PART AND GRANTED IN PART,
all as more fully set forth supra.
SO ORDERED.
________ Joseph N . Laplante United States District Judge
Dated: May 1 , 2009 c c : Gary B . Richardson, Esq. Heather M . Burns, Esq. Philip M . Coffin, I I I , Esq. Thomas V . Laprade, Esq. Charlene Desrochers Erland C.L. McLetchie, Esq. The Honorable Robert E.K. Morrill Joseph Pepe, M.D.
16 Document nos. 5 5 , 5 7 , and 6 6 . 17 Document nos. 54 and 5 6 . 18 Document n o . 6 1 . 19 Document n o . 6 2 .