Opinion
Index No. 701154/2018 Motion Seq. No. 005 006 007
11-28-2023
SHIMONA SHRIKI, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, EMPIRE PARATRANSIT CORP., and KEITH PATTERSON, Defendants.
Unpublished Opinion
MOTION DATE 11/17/2023.
PRESENT: HON. PHILLIP HOM, Justice.
DECISION + ORDER ON MOTION
HON. PHILLIP HOM, Justice.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 241, 242, 243, 244, 245, 246, 247, 248, 249, 311, 312, 313, 314, 323, 324 were read on this motion in limine to/for PRECLUDE
The following e-filed documents, listed by NYSCEF document number (Motion 006) 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 315, 316, 317, 318, 319, 320, 321 were read on this motion in limine to/for JUDICIAL NOTICE &PRECLUDE
The following e-filed documents, listed by NYSCEF document number (Motion 007) 273, 274, 275, 276, 277, 278, 279, 280, 281,282, 283, 284, 285, 286, 287, 288, 289, 290, 291,292, 293, 294, 295, 296, 297, 298, 299, 300, 301,302, 303, 304, 305, 306, 307, 308, 309, 310, 322 were read on this motion in limine to/for _PRECLUDE
Upon the foregoing documents, it is ordered that these motions in limine by Plaintiff for, among other things, to preclude, and this motion in limine by Defendants to preclude, are determined as follows:
On January 24, 2018, Plaintiff Shimona Shriki ("Plaintiff') commenced this action against Defendants New York City Transit Authority, Empire Paratransit Corp., and Keith Patterson ("Patterson") (collectively "Defendants") to recover for personal injuries allegedly sustained on March 27, 2017, as the result of a motor vehicle collision. Plaintiff and Defendants made these motions in limine ahead of a bench trial scheduled to begin on November 30, 2023. On November 17, 2023, this Court heard oral arguments.
Seq. No. 5: Preclude or Limit Defendants' Expert Testimony
Plaintiff moves to preclude Defendants' proposed biomechanical and biomedical engineer expert, Ernest Chiodo, M.D., J.D., M.S., M.B.A., C.I.H. ("Dr. Chiodo") from testifying at trial, or alternatively, limiting Dr. Chiodo's testimony and precluding him from proffering any testimony regarding injury causation, including that the forces to which Plaintiff was exposed to in the subject collision were insufficient to cause her injuries (EF Doc 241).
In support, Plaintiff submits an attorney affirmation (EF Doc 242), the transcript of the examination before trial ("EBT") of Patterson (EF Doc 243), photos identified during Patterson's EBT (EF Doc 244), the EBT transcript of Denny Reyes ("Reyes"), Patterson's supervisor (EF Doc 245), Defendants' expert exchange of Dr. Chiodo, coupled with Dr. Chiodo's report, dated May 11, 2023 (EF Doc 246), reports of defense independent medical examinations ("IMEs") (EF Doc 247), reports of no-fault insurance carrier IMEs (EF Doc 248), and a copy of an abstract of the article referred to by Dr. Chiodo (EF Doc 249).
Plaintiff argues that Dr. Chiodo based his opinion solely upon review of photographs depicting the property damages to the vehicles involved in the accident. Plaintiff further argues that Dr. Chiodo's opinion is not based upon facts in the record, because he completely disregarded the EBT testimony of Patterson and Reyes. Plaintiff claims that Patterson and Reyes testified that there was structural damage to Defendants' front bumper as a result of the collision, and that Dr. Chiodo disregarded same. Plaintiff further argues that Dr. Chiodo's opinion should be precluded under Clemente v Blumenberg (183 Mise 2d 923 [Sup Ct, Richmond County 1999]).
In opposition, Defendants submit an attorney affirmation (EF Doc 311), and an affirmation of Dr. Chiodo (EF Doc 312), coupled with his Federal Rule 26 Testimony list (EF Doc 313) and a copy of a decision in the case Guthrie v Hochstetler, issued by the United States District Court, N.D., Indiana, South Bend Division, which denied a plaintiffs motion to preclude Dr. Chiodo's testimony (EF Doc 314).
Defendants argue that Patterson's EBT testimony did not establish that he inspected the front of his vehicle before the accident. Regardless, Defendants argue that Dr. Chiodo opined that the physical evidence shows that the damage to Defendants' bumper could not have been caused by the crash. Defendants also highlight that Patterson testified that, based upon the damage to the bumper, it was an "extremely minor collision." Defendants argue that Reyes' EBT testimony regarding any damage to Defendants' front bumper is insufficient to render Dr. Chiodo's opinion invalid, as Reyes did not witness the accident and there is no testimony that Reyes inspected Defendants' vehicle prior to the crash. Additionally, during Reyes' EBT, defense counsel objected to the questions related to the damage and causation of same, as a proper foundation was not laid as to his ability to make such determinations. Nevertheless, Reyes testified that the damage to the front bumper of Defendants' vehicle was minor. Defendants contend that, in essence, Dr. Chiodo is not bound by nonobjective testimony in forming his opinions when such testimony is inconsistent with the objective evidence. Defendants further argue that Plaintiff improperly relies upon Clemente for several reasons, and that this case is distinguishable from same.
In reply, Plaintiff submits an attorney affirmation (EF Doc 323) and a report prepared by Reyes (EF Doc 324).
Plaintiff argues that Dr. Chiodo's opinions are based upon a methodology that does not meet the Frye standard of admissibility; however, "[a]bsent a novel or experimental scientific theory, a Frye hearing is generally unwarranted" (People v Brooks, 31 N.Y.3d 939, 941 [2018]).
"General acceptance can be demonstrated through scientific or legal writing, judicial opinions, or expert opinions other than that of the proffered expert" (Dovberg vLaubach, 154 A.D.3d 810, 813 [2d Dept 2017]). In 2020, the Appellate Division, Second Department held "that biomechanical engineering is a scientific theory accepted in the field" (Guerra v Ditta, 185 A.D.3d 667, 668 [2d Dept 2020]). Thus, there is no need for a Frye hearing.
Nonetheless, while Plaintiff does not mention Parker v Mobil Oil Corp., it appears that he is arguing that Dr. Chiodo fails to lay a proper foundation for his findings under Parker (7 N.Y.3d 434 [2006]).
In Parker, the Court of Appeals held that "[t]he Frye inquiry is separate and distinct from the admissibility question applied to all evidence-whether there is a proper foundation-to determine whether the accepted methods were appropriately employed in a particular case" (Parker, 7 N.Y.3d at 447). "'The focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial'" (id., quoting People v Wesley, 83 N.Y.2d 417, 429 [1994]). This analysis is necessary because "[a]s with any other type of expert evidence, we recognize the danger in allowing unreliable or speculative information (or 'junk science') to go before the jury with the weight of an impressively credentialed expert behind it. But, it is similarly inappropriate to set an insurmountable standard that would effectively deprive [a party] of their day in court. It is necessary to find a balance between these two extremes" (Parker, 7 N.Y.3d at 447).
In his report, Dr. Chiodo affirmed that, in formulating his conclusions, he reviewed, among others, the following documents:
• Exhibit color photograph of Infinity Q50 AWD with New Jersey license plate number N49 GVW.
• PD photos (Geico).
• Color photographs of vehicles on scene.
• Plaintiffs Expert Exchange of Dr. Greenwald which states, inter alia, the following: "Upon impact, her head started to go toward the windshield but was then pulled back suddenly and hit her head on the seat rest. No loss of consciousness."
• Plaintiffs Expert Exchange of Dr. Lipton.
• Plaintiffs Life Care Plan dated April 26, 2021.
• Supplemental Verified Bill of Particulars.
• Expert Exchange of Harold Bialsky dated April 26, 2021.
• Notice of Motion Returnable December 3, 2019.
• Affirmation in Support with a claim of traumatic injuries to cervical spine as well as a concussion.
• Notice of Claim.
• Transcript of Plaintiff s 50-h hearing on December 6, 2017.
• Plaintiffs Verified Bill of Particulars.
• Transcript of Plaintiff s EBT on October 8, 2018.
• CPLR 3101(d) Response of Stuart Sproinger M.D.
• CPLR 3101(d) Response of Chandra M. SharmaM.D.
• CPLR 3101(d) Response of Scott B. Berger M.D.
• Affirmation by Brian D. Greenwald M.D.
• Report dated December 23, 2019 by Brian D. Greenwald M.D.
• Notice of Intention to Introduce Radiographic Images Pursuant to CPLR 4532-A.
• Plaintiff s Mount Sinai Hospital records.
• Plaintiff s Records from Armin M. Tehrany M.D. and Manhattan Orthopaedic Care
• MRI report from Mount Sinai.
• Plaintiff s Records from Catherine Watson D.O. and SUNY College of Optometry.
• Plaintiffs 2003 radiology records.
• Plaintiffs Dr. Gold medical records of 11-9-2016.
• GEICO IME reports.
• Records from Mount Sinai Medical Center.
• Medical records from Mount Sinai Hospital.
• Medical records from Herbert S. Lempel M.D. and Mount Sinai Medical Associates.
• Plaintiff s Records from Dr. Golden.
• Plaintiff s Records from Jesse Weinberger M.D.
• Plaintiff s Records from Brian D. Greenwald M.D. and JFK Johnson Rehabilitation Institute.
• Plaintiff s Records from Montefiore.
In his biomechanical analysis, Dr. Chiodo reviewed the transcript of Plaintiffs 50-h hearing (EF Doc 20), the transcript of Plaintiff s EBT (EF Doc 41), Bill of Particulars and medical records for her injuries and Doctors' assessment of various injuries. Using these reports of Plaintiff s injuries, Dr. Chiodo compares the inertial forces in the subject incident to the published literature referenced (EF Doc 246). Dr. Chiodo reviewed the color photographs of the motor vehicles after the collision, which he stated is the accepted method for determining velocity change and cited to a relevant peer review article.
Using his incident analysis and biomechanical injury analysis, Dr. Chiodo made several conclusions, including that the appearances of the respective vehicles involved after the collision are consistent with a barrier equivalent of collisions of five (5) miles per hour or less. Additionally, Dr. Chiodo opined that, given the shape and the location of the indentation in the front bumper of Defendants' Ford Econoline 450, said damage is consistent with an unrelated previous collision with a metal post or some other similar object. Dr. Chiodo found that such damage could not have been caused in the collision, given that "[t]here is minimal if any apparent damage to the rear of [...] Plaintiff s Infinity [Q50 AWD]Dr. Chiodo, who is medical doctor licensed in New York, further concludes that there was no causal or aggravation related link between Plaintiffs injuries and the subject crash.
Plaintiff argues that Clemente, a nonbinding decision from a trial court, precludes Dr. Chiodo's testimony. Defendants point out that Clemente was decided in 1999, when "[t]here were no reported court decisions on the use of biomechanical or biomedical engineers in New York courts" (Clemente, 183 Mise 2d at 934). In Clemente, the court (Maltese, J.) held that "[u]sing repair costs and photographs as a method for calculating the change in velocity of two vehicles at impact is not a generally accepted method in any relevant field of engineering or under the laws of physics. [...] The engineer acknowledged that this was a method that he developed which has not been scientifically tested. Indeed, the engineer, when questioned by this court whether there was any literature supporting this method of calculating change in velocity, claimed there was none" (id. at 934). The court also found several other problems with the expert's proposed testimony.
This Court notes that, while the court in Clemente mentioned photographs, the expert's proposed testimony relied heavily upon the repair bills of the vehicles, which were compared to "a chart entitled 'Bumper Performance Repair Costs, 5 mph Crash Tests'" (id. at 925). The biomechanical engineer in Clemente opined that the plaintiffs repair bill was "close enough to the $882 average cost of repair [...] when its rear is driven into a flat barrier at five miles per hour" (id. at 926). Furthermore, "[t]he engineer concluded that since the repair bill was almost identical to the chart (within 2.5%), therefore the change in velocity from the plaintiffs SUV, after being struck in the rear by the defendant's van, was five miles per hour" (id.). Unlike in Clemente, Dr. Chiodo did not compare repair costs to a chart to determine the change in velocity.
Notably, more recent caselaw suggests that a biomechanical engineer may form an opinion based upon photographs, provided same are in the record. In Pascocello v Jibone, the plaintiffs moved "to preclude the testimony of defendants' biomechanical engineer Dr. Kevin Toosi at trial to the extent that his opinion is based on certain photographic evidence" (161 A.D.3d 516, 516 [1stDept 2018]). The Appellate Division, First Department held that "[a]n expert's opinion 'must be based on facts in the record or personally known to the witness' [citations omitted], and in the absence of such record support, an expert's opinion is without probative force [citation omitted]. Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation has been established" (Pascocello, 161 A.D.3dat516). The holding in Pascocello suggests that the biomechanical engineer's opinion was precluded, as it was based upon certain photographs not in the record. While Pascocello is a First Department case, various Appellate Division, Second Department cases have quoted and cited to same when determining whether an expert's opinion sufficiently relates to existing facts or data.
Here, Dr. Chiodo forms his opinion on velocity change based upon photographs of the vehicles after the accident and at the scene of the accident. Here, unlike in Pascocello, the photographs relied upon by Dr. Chiodo are part of the record (EF Doc 23), as Patterson laid the proper foundation for same in an affidavit (EF Doc 21), and Plaintiff testified to same in her 50-h hearing (EF Doc 20). Notably, Plaintiff testified that her rear bumper had "[s]ome scratches" as a result of the crash. Moreover, the abstract of the article Dr. Chiodo cites to states that "[f]or everyday practice, photographs of the damage to cars involved in a rear-end impact are essential to determine this velocity change."
Balancing the danger of allowing unreliable or speculative information to go before the factfinder and not setting an insurmountable standard for Defendants, the Court finds that Dr. Chiodo's report, which describes the methods, data, and published authority used in formulating his conclusions, sets a proper foundation for his findings. Defendants provide sufficient evidence that Dr. Chiodo has testified in a similar manner with the same methodology in several other courts throughout the country. Furthermore, Defendants provide sufficient evidence that Dr. Chiodo's methodology is generally accepted among the scientific community.
The Court rejects Plaintiffs argument that Dr. Chiodo must accept testimony as fact, when objective evidence and scientific theories show that such testimony is incredible. The Court notes that in Clemente, the court found that the defendant's version of events incredible, as it was contrary to the Newtonian theory of physics testified to by the defendant's expert engineer (183 Mise 2d at 926).
As such, Plaintiffs motion in limine to preclude Dr. Chiodo from testifying at trial or limiting Dr. Chiodo's testimony is denied.
Seq. No. 6: Judicial Notice
Plaintiff moves for the Court, (1) to take judicial notice of the reliability and general acceptance of diffusion tensor imaging ("DTI") within both the medical and scientific communities; and (2) to preclude defense experts, including Scott Berger, M.D. ("Dr. Berger"), from proffering testimony during the trial regarding a lack of general acceptance of DTI and denying that the science of DTI is reliable and generally accepted within the medical and scientific communities. On June 28, 2021, Plaintiff moved for the same relief as the within motion (Seq. No. 4, EF Doc 155); however, Plaintiff s motion was withdrawn with leave to renew at time of trial (EF Doc 227).
In support, Plaintiff submits an attorney affirmation (EF Doc 251), a memorandum of law (EF Doc 252), letter to defense counsel regarding the within motion (EF Doc 254), a PRISMA checklist (EF Doc 256), and various decisions and orders, as well as Frye hearing transcripts in other cases from other courts.
Plaintiff argues that DTI is generally accepted for clinical use within the fields of neuroradiology and brain injury medicine; that there are guidelines for the clinical use of DTI; and that DTI is used clinically throughout the United States to assist patients with traumatic brain injury. Plaintiff also argues that the DTI is admissible pursuant to an Appellate Division, First Department case, LaMasa v Bachman (56 A.D.3d 340 [1st Dept 2008]). Plaintiff argues that LaMasa is the established law in New York, as there are no decisions to the contrary issued by another appellate department or the Court of Appeals.
In opposition, Defendants submit an attorney affirmation (EF Doc 315), and an affirmation of Dr. Berger (EF Doc 316), coupled with several peer-reviewed studies he refers to (EF Doc 317-321).
Defendants argue that Plaintiff is mischaracterizing DTI as being synonymous with the quantitative analysis of DTI images ("QDTI"). Additionally, Defendants argue that Plaintiff conflates DTI's acceptance as a tool for diagnosing moderate and major brain injuries, with its disputed acceptance as a tool for diagnosing mild brain injuries. Frye requires scientific evidence to be generally accepted within the scientific community in order to be admissible in court.
Defendants also argue that since LaMasa was decided, in 2014, the so-called "white paper" was written on behalf of the American College of Radiology Head Injury Institute, which was supported and endorsed by members of the scientific/clinical medical community. Defendants cite to a trial court case, i.e., Brouard v Convery, which precluded DTI based upon, in part, the "white paper" (59 Mise 3d 233, 236-37 [Sup Ct, Suffolk County 2018]). The "white paper" provided, in relevant part, the following: "Overall, at the time of writing this article, there is insufficient evidence supporting the routine clinical use of advanced neuroimaging [including, among others, DTI] for diagnosis and/or prognostication at the individual patient level" (EF Doc 205). The court (Hudson, J.) in Brouard held that, based upon the "white paper," "DTI [did] not (at the time of this writing) have a general acceptance to be used as the standard in clinical/medical treatment of individual patients who are being treated for TBIs" (59 Mise 3d at 237).
In reply, Plaintiff submits, among other things, an attorney affirmation (EF Doc 325), and Bon Secours Community Hospital MRI/DTI reports performed for clinical purposes (EF Doc 329).
Plaintiff argues that, among other things, while there is a quantitative analysis of the data, the science is referred to as QDTI. Additionally, Plaintiff argues that the "white paper" is not a peer-reviewed scientific study, and that Dr. Berger would not be addressing the "white paper." Plaintiff argues that LaMasa is still good law, despite Brouard.
With respect to expert testimony, the "'general acceptance' requirement, also known as the Frye test, governs the admissibility of expert testimony in New York. It asks 'whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally' [citation omitted]. Although unanimity is not required, the proponent must show 'consensus in the scientific community as to (the methodology's) reliability'" (Sean R. v BMW of N. Am., LLC, 26 N.Y.3d 801, 809 [2016]). As stated above, "[g]eneral acceptance can be demonstrated through scientific or legal writing judicial opinions, or expert opinions other than that of the proffered expert" (Dovberg, 154 A.D.3d at 813). The burden is on the proponent to demonstrate the generally accepted reliability of the proffered testimony (see Sean R., 26 N.Y.3d at 812).
While there is no Appellate Division, Second Department case regarding the admissibility of DTI, in LaMasa, the First Department affirmed a judgment in a matter in which DTI was admitted into evidence for ajury to consider(56 A.D.3d at 340-41). There the Court held, in relevant part, the following: "On the issue of foundational support for expert opinion, while some of plaintiffs' experts relied on new technology or methodologies, the same experts also opined based on well-established and recognized diagnostic tools, and we find that they provided reliable causation opinions" (LaMasa, 56 A.D.3d at 341).
Here, it is undisputed that the trial courts within the Second Department have been split regarding the admissibility of expert testimony about DTI. As mentioned above, in Brouard, the Supreme Court, Suffolk County precluded such testimony (59 Mise 3d at 237). However, in Zee v Troge, the Supreme Court, Dutchess County held that "diffusion tensor imaging is a reliable and accepted diagnostic tool within the scientific and medical communities. MRI with DTI is one appropriate test that can be used in identifying abnormality in the brain for the purpose of conducting a differential diagnosis of a traumatic brain injury" (74 Mise 3d 1213(A) [Sup Ct, Dutchess County 2022]).
The Court further notes the case that was decided in the United States District Court for the Southern District of New York, i.e., Tardif v City of New York, (2022 WL 2195332, *6, 2022 U.S. Dist LEXIS 108618, *18 [SDNY 2022]). There, the Court held that expert testimony based upon MRI with DTI is admissible (id). The Court noted that judges in at least 12 judicial districts have held that the use of MRI with DTI to diagnose brain injury to be reliable, helpful and admissible (id.). In reaching its finding, the Court referred to an article that reviewed 100 published articles on the use of DTI in relation to TBI (id.). The Court found that said article showed that DTI has been tested and subject to substantial amounts of peer review and publication (id.). The Court also noted the U.S. Food and Drug Administration has approved DTI (id.).
Regardless, this Court finds that, by submitting judicial opinions, Plaintiff demonstrated that MRI with DTI is generally accepted within the medical and scientific communities. Accordingly, the Court takes judicial notice that MRI with DTI is a reliable and generally accepted diagnostic tool within the scientific and medical communities. Plaintiffs motion in limine is granted, and defense experts, including Dr. Berger, are precluded from testifying regarding the lack of general acceptance of DTI or that DTI is unreliable and generally not accepted in the medical and scientific communities.
Seq. No. 7: Preclude Evidence of Lost Wages Related to Lost Opportunities
Defendants move for an order, (1) precluding Plaintiff from offering any evidence or testimony (lay or expert) regarding an alleged claim for lost earnings related to lost professional opportunities including Plaintiff s inability to take a position as a Vice Principal; (2) precluding Plaintiff from calling the following individuals as damages witnesses: Alan Plummer, Daniela Gonzalez, Lauren Scheff, Jennifer Sohnen, Ellen Grebstein, and Tamar Smith as Plaintiff failed to previously disclose these individuals as witnesses in accordance with the Preliminary Conference Order dated April 19, 2018; and (3) precluding Plaintiffs economic experts, Harold Bialsky, who is a vocational rehabilitation specialist, and Michael J. Vemarelli, who is a forensic economist, from testifying; or, in the alternative, (4) setting this matter down for a Frye hearing and permitting Defendants an opportunity to retain similar experts including an examination with a Vocational Rehabilitation expert to refute Plaintiff s expert witness opinions.
In support, Defendants submit, among other things, an attorney's affirmation (EF Doc 274), Plaintiff s bill of particulars (EF Doc 286), Plaintiffs supplemental bill of particulars dated August 10, 2020 (EF Doc 275), an e-mail with Plaintiffs counsel (EF Doc 277), and an entire copy of e-mail correspondence with Plaintiffs counsel (EF Doc 283).
Defendants argue that, while Plaintiff s bill of particulars asserts that she sustained a "loss of earnings: approximately $1,800.00," there is no claim that her loss of earnings is continuing nor is there a claim for loss of future earnings, loss of professional opportunity or diminished earning capacity. During her 50-h hearing, Plaintiff testified that she only missed one week of work as a result of the crash. Additionally, during Plaintiffs EBT, she testified that, after the accident, she continued to work the same hours and in the same position as a guidance counselor. Plaintiff further testified that she received a raise since her accident. Plaintiff testified to turning down a dance class that she had worked before, and a job as a part-time professor of one class; however, she did not testify that she was unable to take a position as a Vice Principal or that she had any related economic damages. Defendants further argue that Plaintiff never served a supplemental bill of particulars to itemize any of special damages related to the purported loss of the Vice Principal position, and those activities are not alleged or accounted for in Plaintiffs expert witness exchanges.
During oral arguments, Plaintiffs attorney clarified that Plaintiff told him that a retiring Vice Principal told Plaintiff that she would recommend her for the position; however, Plaintiff said something along the lines of the following: "No, thanks. I cannot handle it."
Defendants further argue that Plaintiff did not timely serve expert disclosures of Harold Bialsky and Michael J. Vernarelli or disclose the identities of six (6) damages witnesses who are friends, co-workers, and Plaintiffs mother.
In opposition, Plaintiff argues that Defendants knew that the expert disclosure of Harold Bialsky was exchanged, via e-mail, on April 26, 2021 (EF Doc 289). Moreover, Plaintiff refers to several documents prepared by Brian D. Greenwald, M.D. ("Dr. Greenwald") indicating that Plaintiff s "symptoms are likely to have a significant detrimental impact on her ability to engage in daily activities in the same manner that she was accustomed to prior to her accident" (EF Doc 64). Dr. Greenwald's notes also indicate that Plaintiff self-reported having difficulty reading and was unable to take an exam for work (EF Doc 64, 65).
Plaintiff further argues that the damages witnesses, which include co-workers and friends of Plaintiff, should not be precluded as disclosure typically includes just witnesses regarding liability. Additionally, Plaintiff argues that the lay witnesses would testify as to their personal observations of and interactions with Plaintiff and compare her current functioning with her abilities prior to the crash.
In reply, Defendants further argue that Plaintiff never mentioned the opportunity to apply as a Vice Principal and merely previously disclosed generalized conclusions that she will be limited in her opportunities for professional advancement (EF Doc 322).
During oral arguments, Defendants' counsel asserted that he never received the e-mail with Plaintiff s alleged previous disclosures. Defendants' counsel further asserted that even if he did receive the e-mail, such method of service was improper under CPLR 2103.
Lost Wages Potential
Plaintiff argues that she could have earned more money as a Vice Principal despite never applying for the job, never sitting for the certification examination for said job, and merely allegedly being told by the outgoing Vice Principal that she recommend her for the position.
"Claims for lost earnings 'must be ascertainable with a reasonable degree of certainty and may not be based on conjecture'" (Glaser v County of Orange, 54 A.D.3d 997, 998 [2d Dept 2008], quoting Bailey v Jamaica Buses Co., 210 A.D.3d 192, 192 [2d Dept 1994]; see Schiller v New York City Tr. Auth., 300 A.D.2d 296, 296-97 [2d Dept 2002]; Davis v City of New York, 264 A.D.2d 379, 379-80 [2d Dept 1999]). A lost earnings assessment is focused on, in part, "the plaintiffs earning capacity both before and after the accident" (Harris v City of New York, 2 A.D.3d 782, 784 [2d Dept 2003], quoting Clanton v Agoglitta, 206 A.D.2d 497, 499 [2d Dept 1994]). Similarly, claims for "loss of future earnings or earning capacity must be established with reasonable certainty" (Davis, 264 A.D.2dat 380).
"A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days' notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities." (CPLR 3043 [b]).
The Court finds that Plaintiffs alleged claim for lost earnings related to lost professional opportunities, including a Vice Principal position, is too speculative to be considered. According to her own EBT testimony, Plaintiff never took the certification exam for a Vice Principal position nor requested any accommodations to take said exam. Even if Plaintiff did take the exam, there is no guarantee that she would have passed the exam and/or obtained the position of Vice Principal. Any calculations regarding same would be based on the following assumptions: (1) that Plaintiff would have passed the certification exam; (2) that she would have applied for the position; (3) that she would have been offered an interview; and (4) that she would have been offered the position of Vice Principal. As such, Plaintiffs claims for lost earnings due to lost employment opportunities and/or loss of earning capacity are not ascertainable with a reasonable degree of certainty.
Furthermore, Plaintiff never amended nor supplemented her bill of particulars to add this category of special damages, i.e., loss earnings due to lost employment opportunities and/or loss of earning capacity. Moreover, Plaintiff is precluded from offering continuing and/or future loss of earnings, given her testimony and her failure to allege same in her bill of particulars.
Accordingly, Defendants' motion to is granted to the extent that Plaintiff is precluded from offering any testimony regarding claims of lost earnings and/or lost earning capacity related to lost professional opportunities from her alleged inability to take a position as a Vice Principal and is precluded from offering any testimony from her economic experts, Harold Bialsky and Michael J. Vernarelli regarding the alleged lost Vice Principal opportunity, and any loss earnings arising therefrom. Said experts are also precluded from testifying to any continuing and/or future loss of earnings.
The branch of Defendants' motion in limine to preclude Plaintiff from calling lay witnesses Alan Plummer, Daniela Gonzalez, Lauren Scheff, Jennifer Sohnen, Ellen Grebstein, and Tamar Smith as damages witnesses is granted to the extent that these lay witnesses are precluded from testifying about Plaintiffs alleged lost opportunities, including, the opportunity to become a Vice Principal. The lay witnesses are also precluded from offering any testimony outside of their personal observations of Plaintiff s behavior before and after the accident.
In accordance with the foregoing, it is hereby ORDERED that Plaintiff s motion in limine (Seq. No. 5) to preclude Dr. Chiodo is denied; and it is further
ORDERED that Plaintiff s motion in limine (Seq. No. 6) for judicial notice and to preclude Defendants from arguing that DTI is unreliable is granted; and it is further
ORDERED that Defendants' motion in limine (Seq. No. 7) to preclude Plaintiff from offering any evidence regarding an alleged claim for lost earnings related to lost professional opportunities and to preclude Plaintiffs damages witnesses is granted in part and denied in part; and it is further
ORDERED that Plaintiff is precluded from offering any testimony regarding claims lost earnings and/or lost earning capacity related to lost professional opportunities from her alleged inability to take a position as a Vice Principal and is precluded from offering any testimony from her economic experts, Harold Bialsky and Michael J. Vernarelli regarding the alleged lost Vice Principal opportunity, and any loss earnings and/or loss of earning capacity arising therefrom. Said experts are also precluded from testifying to any continuing and/or future loss of earnings; and it is further
ORDERED that Plaintiffs lay witnesses are precluded from offering any testimony regarding claims lost earnings and/or lost earning capacity related to lost professional opportunities. The lay witnesses are also precluded from offering any testimony outside of their personal observations of Plaintiff s behavior before and after the accident; and it is further
ORDERED that any requested relief and/or remaining contentions not expressly addressed herein have nonetheless been considered and are hereby expressly rejected; and it is further
ORDERED that Defendants shall serve, via NYSCEF, a copy of this Order with Notice of Entry upon Plaintiff within five (5) days from the date of entry.
This constitutes the Decision and Order of this Court.