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 .

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

(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,

(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.

. 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.,

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.

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.,

(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,

(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,

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,

(Ct. C l . 1979); United States v . Licavoli,

(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,

-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.,

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

The plaintiffs seek to prevent Dartmouth Hitchcock from

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,

, 1118 n.13 (9th C i r . ) , cert. denied, 128

S . C t . 375 (2007); In re Grand Jury Subpoenas,

, 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,

(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,

.

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.,

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,

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.,

5 1 , 758 (7th Cir. 2004); Redfoot

v . B.F. Ascher & Co., N o . 05-2045,

, at *13 (N.D.

Cal. June 1 , 2007); Mealing v . City of Ridgefield, Wash., N o . 05-

5778,

, at *1 (W.D. Wash. May 8 , 2007); Garza v .

Roger Henson Trucking L.L.C., N o . 05-5001,

, at *3

(D. Neb. Apr. 2 6 , 2006); see also Vigilant Ins. C o . v . E .

Greenwich Oil Co.,

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,

, 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.”

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,

(11th Cir. 2005), acknowledges

18 Fr.,

, 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.,

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,

(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,

. 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.,

(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.”

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.”

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].’”

at 2 (quoting

Moulton v . Groveton Papers Co.,

(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.”

(citing Carson v . Maurer,

(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,

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.

3 8 ,

at 2 (quoting and adding emphasis to Johnston v . Lynch,

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,

(Ill. 2008);

Covington v . George,

4 2 , 144 (S.C. 2004); Papke v .

Harbert,

1 0 , 536 (S.D. 2007); Radvany v . Davis,

4 7 , 348 (Va. 2001); Leitinger v . DBart, Inc.,

, 13-14 (Wis. 2007); but see Robinson v . Bates,

(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.,

(1963); Proctor v . Castelletti,

, (Nev. 1996); Reinan v . Pac. Motor Trucking Co.,

(Or. 1974) (citing cases).

25 2d at 410; Wills,

; Covington,

; Leitinger,

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.,

1 , 73 (1st Cir.

1999). S o , under the Erie doctrine, Erie R.R. C o . v . Tompkins,

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,

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.”

. 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.

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.

. Subject to potential developments at trial, however, that aspect of Fitzgerald is inapplicable here. See England v . Reinauer Transp. Cos.,

(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,

. 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,

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.,

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,

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.,

(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.,

(5th Cir. 1989); see also Pappas,

.

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,

(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,

; Fitzpatrick v . Home Depot U.S.A., Inc., N o . 06-3624,

, 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.,

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,

, 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,

(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.,

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,

.

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.,

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

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.,

, 1456-57 (11th Cir. 1997); Carden v . Westinghouse Elec. Corp.,

(3d Cir. 1988); Cedeck v . Hamiltonian Fed. Sav. & Loan Ass’n,

(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,

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,

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.,

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 .

39