Opinion
Index 2015EF2865
06-09-2021
ERIC BARKER, Plaintiff, v. UNION CORRUGATING COMPANY and LOWE'S HOME CENTERS, LLC, Defendants.
Unpublished Opinion
Present: Hon. Gerard J. Neri, J.S.C.
DECISION AND ORDER
HON. GERARD J. NERI, J.S.C.
On May 27, 2021, Defendants Union Corrugating Company ("Union") and Lowe's Home Centers, LLC ("Lowes" and collectively "Defendants") filed a motion in limine seeking to preclude the introduction of certain evidence and/or witnesses. On June 1, 2021, Plaintiff filed his papers opposing the relief sought.
Defendants seek to preclude Plaintiff from introducing lay witnesses which they claim are improper, cumulative, and bolstering. Defendant states that Plaintiff disclosed on May 6, 2021 his intention to call Plaintiffs daughter, Plaintiffs ex-wife, Plaintiffs fiance, and "possibly a guy [Plaintiff] used to walk the golf course [and] fish" with (see Affirmation in Support, NYSCEF Doc. No. 274, ¶6). Defendants allege that as Plaintiff suffers no memory loss or cognitive deficits, the admission of such testimony would be cumulative (see Cor Can. Rd. Co., LLC v. Dunn & Sgromo Engrs. PLLC, 34 A.D.3d 1364, 1365 [Fourth Dept. 2006]). Defendants further proffer that admission of the Plaintiffs daughter's testimony would "appeal to the passion and sympathy of the jury" (see People v. Gutierrez, 172 A.D.3d 1094, 1095 [Second Dept 2019]). Defendants argue that "Plaintiff has never alleged his daughter provided care or support in his activities of daily life" (see Affirmation in Support, NYSCEF Doc. No. 274, ¶8). Defendants seek an order precluding the lay witness testimony.
Defendants seek to preclude the testimony of Plaintiff s non-treating orthopedic expert. Defendants note that Plaintiff has not indicated he would call any treating physicians, including Dr. Dome, a treating physician in Kentucky. Defendants oppose the admission of Plaintiff s non-treating expert testimony.
Defendant alleges that Plaintiff has breached CPLR §4532-a and the evidence sought to be introduced must be precluded (see Dwight v. New York City Tr. Auth., 30 A.D.3d 270, 271 [First Dept. 2006]). Defendants note that Plaintiff could have disclosed the subject films, but did not do so. Alternatively, Plaintiff could have "served a notice of intention to offer the imaging along with an affidavit from the physician who took the images", but did not do so (see Affirmation in Support, NYSCEF Doc. No. 274, ¶16). Defendant asserts that Plaintiffs CPLR §4532-a notice is defective and the proffered radiographs should be precluded, along with any testimony Plaintiffs Expert Dr. DiChristina would offer based on those radiographs.
Defendants further seek a conditional order precluding Dr. DiChristina from referencing or otherwise offering testimony regarding the radiographs unless Dr. Dome, the physician who purportedly took the radiographs, properly authenticates them and enters them into evidence. "Plainly, it is reversible error to permit an expert witness to offer testimony interpreting diagnostic films such as X-rays, CAT scans, PET scans, or MRIs, without the production and receipt in evidence of the original films thereof or properly authenticated counterparts" (Wagman v. Bradshaw, 292 A.D.2d 84, 87 [Second Dept. 2002]). Defendants argue they are entitled to the requested conditional order.
Defendants further contend that Plaintiffs Expert Dr. DiChristina cannot offer medical opinions using the hearsay interpretations of non-testifying medical providers. "Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation ... the opinion should be given no probative force and is insufficient to withstand summary judgment" (Bush v. Ind. Food Equip.. Inc., 158 A.D.3d 1129, 1130 [4th Dept 2018], citing Diaz v. New York Downtown Hosp.. 99 N.Y.2d 542, 544 [2002]). Defendants note that DiChristina never physically examined Plaintiff (see Affirmation in Support, NYSCEF Doc. No. 274, ¶25). DiChristina bases his conclusions on the review of radiographs from December 10, 2013, post-accident, and from August 21, 202 of Plaintiffs ancle (ibid, ¶26, see also Plaintiffs Expert Disclosure, NYSCEF Doc. No. 278, p. 5). Plaintiff seeks to preclude DiChristina from testifying on Plaintiffs alleged arthritis or any need for surgery arising from the alleged arthritis.
Defendants seek to preclude the opinions of Plaintiff s expert Dr. Spizman. "Plaintiffs past and future earnings were not established with reasonable certainty" (Jeffries v. 3520 Broadway Met. Co.. 36 A.D.3d 421, 423 [First Dept. 2007]). Defendants argue Plaintiff abandoned his welding career ten years before the accident to be a "full-time parent" (see Affirmation in Support, NYSCEF Doc. No. 274, ¶31). Defendants argue Plaintiffs tax records are of no use in establishing alleged future lost wages in the field of welding. Defendants argue that Plaintiff would need two experts, a vocational rehabilitationist and an economist, to establish lost wages for a job Plaintiff is qualified for but physically precluded from working (see Behv. Jim Willis & Sons Bldrs., Inc., 28 A.D.3d 1227, 1228 [Fourth Dept. 2006]). Defendant then repeats for emphasis that Spizman's conclusions are speculative. Defendants ask for an order precluding from testifying.
Plaintiff opposes Defendants' motion in limine. Plaintiff asserts that Defendants never demanded identification of damages witnesses, thus cannot now seek to preclude them. Plaintiff states that Defendants' argument that lay witness testimony would be cumulative is speculation. Further, Plaintiff states that the testimony of Plaintiff s daughter will concern Plaintiffs daily activities before and after the accident from a third-person perspective and will be more compelling than if Plaintiff testified himself. Plaintiff urges the Court to deny Defendants' motion in this part as Defendants have offered no legal support.
Plaintiff argues Defendants' argument concerning CPLR §4532-a is unclear. Plaintiff believes the crux of Defendants' argument is that Plaintiffs CPLR §4532-a notice is defective because Plaintiff allegedly did not supply the corresponding imaging. Plaintiff affirmatively states it did provide the imaging on a disc and that it was only in the instant motion that Defendants advised the disc was defective (see Affirmation in Opposition, NYSCEF Doc. No. 292, ¶10). Thereupon, Plaintiff immediately supplied the imaging (ibid, ¶14). Further, prior to the May 28, 2021 conference, Plaintiffs counsel hand-delivered a copy of the medical imaging on a usb drive with a request to advise if any of the filed were compromised (ibdi, ¶15). Plaintiff states that the issue is moot, but in any event, the issue was created by the Defendants' failure to advise that the tendered material was corrupted.
Plaintiff opposes Defendants' motion seeking to precluded Dr. DiChristina's testimony. Plaintiff notes that DiChristina relied on more than "singular", "cherry-picked" x-ray (see Affirmation in Opposition, NYSCEF Doc. No. 292, ¶23). Plaintiff notes that Dr. Parker also found arthritis in Plaintiff (ibid, ¶24, see also Parker Report, NYSCEF Doc. No. 296). Further, DiChristina relied on the CT scan and Dr. Parker's x-rays (see Affirmation in Opposition, NYSCEF Doc. No. 292, ¶27).
Even in the absence of the imaging, Plaintiff asserts DiChristina can opine as an expert on Plaintiffs condition. Plaintiff asserts Defendants' position is without legal support.
Plaintiff also notes that Defendants object to Plaintiffs CPLR 3122-a disclosure. Plaintiff notes that Defendants set an "arbitrary" deadline for inspection. Plaintiff argues Defendants time to object to this material is at the time of trial.
Plaintiff argues Defendant's motion seeking to preclude Plaintiffs economic damages, and specifically Plaintiffs economic expert, lacks merit and was otherwise waived. Plaintiff notes that Plaintiff did not abandon welding and that the issue resulted in additional depositions (see Barker Transcripts dated 1/8/2021, 1/15/2021, and 5/21/2021, NYSCEF Doc. Nos. 283-285). Plaintiff also refers to the Court's rules in that Defendants were required to object within twenty days of receipt of the disclosure and state in writing how the disclosure is inadequate or incomplete (see Affirmation in Opposition, NYSCEF Doc. No. 292, ¶35). Plaintiff notes that Spitzman's report was served on the Defendants in October 2020, and only now are objecting. Plaintiff further argues that Defendants' claim that Plaintiff must have a vocational rehabilitation expert is incorrect as a matter of law, and that the evidence of Plaintiff s inability to stand on the injured leg for prolonged times will come from Plaintiff and Plaintiffs expert Dr. DiChristina. Plaintiff further argues ranges proffered by Spizman are legally sufficient. Plaintiff states that preclusion of Spizman from offering an opinion on future medical costs is premature. Plaintiff opposes Defendants' motion in limine.
Defendants replied and reiterated their arguments (NYSCEF Doc. No. 308). Defendants urge the Court to preclude the purported cumulative testimony of Plaintiff s lay witnesses. "Courts are obligated to 'keep the respective parties focused upon a succinct presentation of evidence relevant to the issues to be decided [and to]... insure an orderly and expeditious trial' (London v. London, 21 A.D.3d 602, 602 [Third Dept. 2005], citing Douglas v. Douglas, 281 A.D.2d 709, 710-711 [Third Dept. 2001]). "It is not an abuse of discretion for a trial court to exclude evidence that is cumulative" (People v. Carrillo, 257 A.D.2d 780, 783 [Third Dept. 1999]). "For those reasons, Plaintiffs recently disclosed lay witnesses should be precluded from testifying at trial" (see Reply, NYSCEF Doc. No. 308, ¶8). Defendants request this Court grant the relief requested.
Discussion:
Defendants first seek an order precluding the testimony of Plaintiff s four lay witnesses. The Court noted that pursuant to the Honorable James P. Murphy's Preliminary Conference Stipulation and Order: "All parties shall exchange names and addresses of all eyewitnesses and notice witnesses, statements of opposing parties and photographs, or if none, provide an affirmation to the effect, by May 31, 2017" (NYSCEF Doc. No. 78, ¶8). During a June 3, 2021, the Court advised the Parties that the four potential witnesses should be deposed so as to address the issue of the untimely disclosure. Plaintiffs counsel advised that a single witness will be deposed and subsequently called to testify at trial. The relief sought in this portion of the motion is moot and is therefore denied without prejudice.
Defendants further move for an order precluding Plaintiffs expert from offering testimony based upon evidence they allege will lack a proper foundation upon which said evidence can be entered. As noted above, the radiographs were sent by Plaintiffs counsel via a disc and upon learning that the files were damaged, Plaintiffs counsel immediately sent the files via an online sharing platform and subsequently supplied a usb drive with the files (see Affirmation in Opposition, NYSCEF Doc. No. 292, ¶10). Further, at the June 3, 2021 conference to address concerns raised by Defendants concerning Plaintiffs medical expert, the Court advised Plaintiff to either provide a video upon which the Plaintiffs expert based his opinion on, or and to further set up a deposition of Dr. DiChristina to determine the methodology of his exam for the purposes of a hearing pursuant to Frye v. United States (293 F. 1013 [D.C. Cir. 1923]) to be conducted on June 9, 2021 at 2:00 pm before the Court. The Court conducted the hearing and found that the purported exam was not properly noticed pursuant to Court Rule §202.17, and in any event, the purported exam was not generally accepted. The Court finds that Dr. DiChristina may testify and offer opinions based upon Plaintiffs medical records, consistent with the Court's prior ruling of June 9, 2021.
Defendants seek to preclude Plaintiffs economic expert from rendering an opinion as to Plaintiffs future lost wages and medical expenses. Defendants contend that only a "vocational rehabilitationist" can determine the extent to which Plaintiff is precluded from performing his occupation. Plaintiff has countered that his medical expert will be able to explain and define Plaintiffs limitations. Defendants rely on an overly restrictive view of Beh, in that the Fourth Department merely commented on the evidence presented by Beh, not that it was required. Beh relied upon Hoerner v. Chrysler Fin. Co., LLC, and in Hoerner, the Fourth Department condoned the use of only an economist (see Hoerner, 21 A.D.3d 1254, 1256 [Fourth Dept. 2005], "Plaintiffs' expert economist testified that plaintiffs future loss of earnings was $1,253,615. Defendants challenged plaintiffs' expert, but failed to present expert testimony of their own, and the jury could therefore have properly relied upon the testimony of plaintiffs' expert"). Defendants' motion to preclude the Plaintiffs expert from offering an opinion on Plaintiffs future lost wages and medical expenses is denied without prejudice.
NOW, THEREFORE, upon reading and filing the papers with respect to the Motion, and due deliberation having been had thereon, it is hereby
ORDERED, that the relief sought by Defendant for preclusion of the lay witnesses is moot as the Plaintiff has limited his proposed witnesses to one who was deposed, therefore the relief sought is denied without prejudice; and it is further
ORDERED, that consistent with other determinations made by the Court regarding the testimony of Plaintiff s Expert Dr. DiChristina, Plaintiffs expert shall be permitted to testify and opine on Plaintiffs medical records and other expert opinions, but is precluded from testifying on any purported examination of Plaintiff Dr. DiChristina purports to have completed by a recorded video as Defendants' counsel was neither notified of the examination, nor was the recorded video preserved in sufficient part, therefore Defendant's motion is granted in part and denied without prejudice in part; and it is further
ORDERED, that Defendants' motion to preclude the Plaintiffs expert from offering an opinion on Plaintiffs future lost wages and medical expenses is denied without prejudice; and it is further
ORDERED, that any portion of Defendant's motion not specifically granted is denied without prejudice.