Colligan v. Mary Hitchcock Memorial Hospital et al

Filing 88

ORDER granting in part and denying in part 70 Motion in Limine to Preclude Plaintiff's Medical Expert from Testifying About Human Resources' Standards and Practices. The motion is granted only as to Dr. Pitman's characterization of Dartmouth-Hitchcock's practices as "deplorable". The motion is otherwise denied. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
R. Lacey Colligan
v.

Civil No. 16-cv-513-JD
Opinion No. 2019 DNH 180

Mary Hitchcock Memorial
Hospital and Dartmouth Hitchcock Clinic

O R D E R
Defendants Mary Hitchcock Memorial Hospital and Dartmouth
Hitchcock Clinic (“Dartmouth-Hitchcock”) move in limine to
preclude Roger Pitman, M.D., a medical expert offered by
Plaintiff R. Lacey Colligan, from “offering any opinions or
testimony concerning human resources’ standards or practices.”
Doc. no. 70-1 at 1.

Colligan objects, contending that

Dartmouth-Hitchcock’s motion is untimely and fails on its
merits.
Standard of Review
“Federal Rule of Evidence 702 provides that ‘[a] witness
who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion’ if
his ‘scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to
determine a fact in issue.’”

United States v. Tetioukhine, 725

F.3d 1, 6 (1st Cir. 2013) (quoting Fed. R. Evid. 702).

In

addition, an expert witness’s testimony must be based “on
sufficient facts or data” and must be “the product of reliable
principles and methods” that the expert has reliably applied to
the facts of the case.

Fed. R. Evid. 702.

If an expert is

found to be qualified, his opinion testimony must then be
evaluated under the balancing test of Federal Rule of Evidence
403.

Tetioukhine, 725 F.3d at 6.

“The proponent of the

evidence bears the burden of demonstrating its admissibility.”
Id.
Discussion
This case revolves around the sequence of events
surrounding Colligan’s dismissal from a research position with
Dartmouth-Hitchcock and Dartmouth-Hitchcock’s restriction on her
access to its public medical facility.

Colligan retained Roger

Pitman, M.D., to serve as an expert witness about how these
events affected her mental health.

In his expert report, after

a thorough review of Colligan’s background, medical history, and
perspective of the events, Dr. Pitman stated the following: “In
the wake of the incident at the Birkmeyer residence, there
followed what can only be regarded, at least based upon Dr.
Colligan’s report, as deplorable practices on the part of DHMHC
Human Relations.”

Doc. no. 86-1 at 36.

Dr. Pitman then listed

six specific actions by Dartmouth-Hitchcock that, he concluded,
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led to a “severe decline” in Colligan’s mental health.

Doc. 86-

1 at 36-37.
Given Dr. Pitman’s report and deposition testimony,
Dartmouth-Hitchcock argues that Dr. Pitman should be precluded
from testifying about human resources standards and about
Dartmouth-Hitchcock’s human resources actions and practices.
Colligan responds that Dartmouth-Hitchcock’s motion is untimely.
Colligan also argues that Dartmouth-Hitchcock mischaracterizes
the nature of Dr. Pitman’s testimony and that Dr. Pitman is
qualified to opine about the mental health consequences of
Dartmouth-Hitchcock’s alleged conduct.
A.

Timeliness

Colligan contends that Dartmouth-Hitchcock’s motion is
untimely because the time to challenge expert witnesses expired
on December 1, 2018.

On February 14, 2019, however, the court

granted Dartmouth-Hitchcock’s motion to continue the trial (doc.
no. 61), which incorporated an addendum (doc. no. 62) that
stated the deadline to challenge experts would be moved to 45
days from the trial date.1
November 5, 2019.

The trial date was eventually set as

Dartmouth-Hitchcock filed its motion to

Colligan objected to the modification to the deadline for
challenging expert witnesses, but the court granted DartmouthHitchcock’s motion in its entirety. CM/ECF Dkt. Entry dated
February 14, 2019.
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exclude Dr. Pitman on September 20, 2019, which is within 45
days from November 5, 2019.
B.

Therefore, the motion is timely.

Merits

Dartmouth-Hitchcock argues that Dr. Pitman cannot testify
about human resources standards and practices because he is not
qualified in that field; that Dr. Pitman’s opinions about
Dartmouth-Hitchcock’s human resources actions and practices are
not based on sufficient data or reliable principles and methods;
and that Dr. Pitman makes impermissible credibility determinations.

Colligan responds that Dr. Pitman was not asked to and

did not opine about human resources standards of care and that
Dr. Pitman is qualified to testify about the medical issues in
this case on the basis of his understanding of the events as
relayed to him by Colligan.
1.

Qualifications for Opinion on Human Resources
Standards

Dartmouth-Hitchcock argues that that Dr. Pitman has no
specialized knowledge, skills, experience, training, or
education to qualify him as an expert on human resources
standards.

Colligan does not contest that Dr. Pitman is

unqualified to opine about human resources standards, but
instead contends that Dr. Pitman did not hold himself out as an
expert on human resources standards.

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The court agrees.

Dr.

Pitman’s opinion relates to how the actions of DartmouthHitchcock’s human resources personnel affected Colligan’s mental
health.

Dr. Pitman does not profess to opine about whether

those actions were proper or improper under any standard of care
for human resources.
At bottom, Dartmouth-Hitchcock takes issue with Dr.
Pitman’s characterization of its actions as “deplorable
practices.”

While Dr. Pitman’s characterization of Dartmouth-

Hitchcock’s actions does not necessarily transform his medical
opinion into an expert opinion about human resources standards,
to the extent it can be interpreted as doing so, the court will
preclude Dr. Pitman from characterizing Dartmouth-Hitchcock’s
actions in this way at trial.

However, Dr. Pitman may testify

about his understanding of the actions taken by DartmouthHitchcock and the effects that those actions had, in Dr.
Pitman’s opinion, on Colligan’s mental health.
2.

Reliability of Data and Methods

Next, Dartmouth-Hitchcock contends that “[t]he conclusory
opinions about D-H’s actions and HR practices in general are not
based on sufficient facts.”

Doc. no. 70-1 at 8.

Dartmouth-

Hitchcock also contends that there is no methodology behind Dr.
Pitman’s opinion about Dartmouth-Hitchcock’s human resources
practices.

As noted, Dr. Pitman did not provide an opinion
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about human resources standards or about Dartmouth-Hitchcock’s
actions and practices.

Nevertheless, Dartmouth-Hitchcock argues

that Dr. Pitman cannot testify about Dartmouth-Hitchcock’s
actions and practices because he “relied solely on Dr.
Colligan’s perspective and retelling of events.”

Id.

In other

words, Dartmouth-Hitchcock seeks to exclude Dr. Pitman’s opinion
or to prevent Dr. Pitman from testifying about the basis for his
opinion because, according to Dartmouth-Hitchcock, he was not
fully informed of the facts relevant to Dartmouth-Hitchcock’s
actions in this case.
Expert testimony must be “based on sufficient facts or
data[.]”

Fed. R. Evid. 702(b).

Dr. Pitman’s opinion, however,

is not based on insufficient facts merely because he relied on
Colligan’s perspective alone.

See Packgen v. Berry Plastics

Corp., 847 F.3d 80, 86 (1st Cir. 2017) (stating that the
expert’s testimony did not need to establish the validity of a
disputed factual claim to have a factual basis and be
admissible); Cummings v. Standard Register Co., 265 F.3d 56, 65
(1st Cir. 2001).

As Colligan observes in her response, “to the

extent that [Dartmouth-Hitchcock] intend[s] to introduce
evidence at trial that they believe will contradict the basis of
Dr. Pitman’s opinions, such evidence would rebut the weight of
his testimony on cross-examination but would not change its

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admissibility on direct examination.”

Doc. no. 86 at 9; Crowe

v. Marchand, 506 F.3d 13, 18 (1st Cir. 2007) (“[T]he district
court’s gatekeeping function ought not to be confused with the
jury’s responsibility to separate wheat from chaff.”).

While

Dartmouth-Hitchcock attempts to reframe Dr. Pitman’s explanation
of the factual basis for his medical opinion as an opinion about
human resources practices or standards, Dr. Pitman is clear in
his report and deposition that his intent is to opine about the
psychiatric effects of Dartmouth-Hitchcock’s actions on
Colligan, not on applicable or inapplicable human resources
standards and whether they were violated.
3.

Credibility Determinations

Lastly, Dartmouth-Hitchcock asserts that, by relying solely
on Colligan’s point of view to form his opinions, Dr. Pitman
makes inappropriate credibility determinations.
lacks merit.

This argument

Dr. Pitman did not make any credibility

determinations in his report, and he did not indicate that he
intends to testify about the credibility of any fact witnesses.
Furthermore, in his deposition and in his report, Dr. Pitman
suggested that his opinion could be contingent on the accuracy
of the relevant facts.

See doc. no. 86-3 at 18, 20-21; doc. no.

86-1 at 38-39 (“I reserve the right to revise or update the
contents of this report, including the diagnoses and opinions,
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upon the receipt of additional information that I had not
received at the time of its writing.”).

Therefore, there is no

issue as to improper credibility determinations.
Conclusion
For the foregoing reasons, Dartmouth-Hitchcock’s motion in
limine (doc. no. 70) is granted only as to Dr. Pitman’s
characterization of Dartmouth-Hitchcock’s practices as
“deplorable”.2

The motion is otherwise denied.

SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

October 10, 2019
cc:

Counsel of Record

Dr. Pitman is to be instructed to avoid this
characterization during his testimony.
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