Preview
FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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xxxxxx xxxxxxxx, on behalf of xxxxx
xxxxxxxx, an infant under the age of 18, and Index No. 2691/2012
xxxxxx xxxxxxxx, Individually,
Plaintiff,
AFFIRMATION IN FURTHER
SUPPORT
-against-
RONALD J. TADDEO, M.D., RICHARD PITCH,
M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG
ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN
PHARMACEUTICALS, INC. and ZYDUS
PHARMACEUTICALS (USA), INC.,
Defendant.
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1. xxxxxxxxxxxxxx, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury:
2. I am a partner with NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff, and
based on my review of the file I am familiar with the facts and circumstances of this matter.
3. I make this affirmation in further support of Plaintiff’s Order to Show Cause
seeking an Order:
a. Granting leave to serve an Amended Bill of Particulars pursuant to CPLR
3043(c);
b. Granting leave to serve same nunc pro tunc;
c. In the alternative, deeming plaintiff’s August 15th, 2022 Supplemental Bill of
Particulars as properly pleaded and served;
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d. For such other and further relief as this Court deems just and proper under
the circumstances.
4. In accordance with CPLR 2217(B), no application for this relief has been
previously made.
PLAINTIFF IS NOT CLAIMING NEW INJURIES
5. Al of the infant-plaintiff’s complaints pleaded in the Bills of Particulars, from
birth through the present stem from the same incident and injury: the exposure of the infant-
plaintiff in utero to Topamax/topiramate and its impact on his growth and development. All of
the injuries claimed are not separate and distinct but rather linked sequelae that all show a clear
origin and nexus, as Plaintiff’s expert Russell Reid will testify to at trial.
6. The dental injuries claimed in the 2022 BP in particular, are a direct result and
clearly related to the existing claimed injuries of bilateral cleft lip and palate, which are not
merely cosmetic injuries but structural injuries involving the mouth and jaw. The proposed
amendments simply further specify the treatment he has received and how the injury has
developed. Further, Defendants have been aware of dental involvement since the beginning
discovery. The palate (roof of mouth) surgeries listed in the 2012 BP were performed by dental
surgeon Michael Proothi, D.M.D., in conjunction with plastic surgeon xxxxxx Gallagher, M.D.
Thus, any claims by defendants that these injuries are “new” are without merit and should be
disregarded by this Court.
7. Defendants have known for years about the complexity of the infant-plaintiff’s
injuries. In fact, in their opposition cite only one missing authorization, thus confirming what
was established in the plaintiff’s moving papers—that we have supplied counsel with
authorizations and records to support plaintiffs’ amplified claims and that vast majority of same
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were exchanged prior to filing the Note of Issue.
8. Defendant, in their opposition, rely heavily on their August 2022 motion to strike,
ignoring that that took place 8 months ago, curing any valid claims of surprise. Now that the trial
is set to commence at the end of May 2023, and the claims sought herein are the same as those
sought in 2022, there are no surprises at the eve of this trial.
9. It is respectfully submitted that Defendants mischaracterize this Court’s March 9,
2023 Order. It is the plaintiff's understanding that the Court objected to service of the
Supplemental Bill of Particulars without leave of Court and not necessarily the claims therein,
and that the grantor of Defendant’s motion to strike was due to “such circumstances.” See
NYSCEF dkt. No. 167 at p. 2. The instant Order to Show Cause would remedy that defect.
28. The infant plaintiff is appearing for an Examination Before Trial on April 6, 2023
and can testify to these claims to the best of his ability as a 12 year old. Further, should additional
depositions or discovery be required by the defendants, plaintiff avers that it can be completed,
to the extent reasonable, prior to the commencement of jury selection.
29. Further, it is now been eight months since plaintiff served her supplemental Bill
of Particulars, and only seeks leave to amend for the claims asserted therein. Thus, there is no
unfair surprise to the Defendants. As Defendants will not be prejudiced by this Court granting
leave to plead these damages in the Bill of Particulars, Plaintiff respectfully requests that leave
be granted.
WHEREFORE, plaintiff prays that this Honorable Court grant Plaintiff’s application
in its entirety and for such other and further and different relief as this Honorable Court may
deem just and proper.
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FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023
Dated: April 4, 2023
Melville, New York
Yours, etc.,
NAPOLI SHKOLNIK, PLLC
_____________________________
xxxxxx L. xxxxxxx
Napoli Shkolnik, PLLC
Attorneys for the Plaintiff
400 Broadhollow Road – Suite 305
Melville, NY 11747
212-397-100
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FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023
DOCUMENT SPECIFICATIONS STATEMENT
I hereby certify pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme
Court and the County Court that the foregoing document was prepared on a computer using
Microsoft Word.
Type: A proportionally spaced typeface was used, as follows:
Typeface: Times New Roman
Point Size: 12
Word Count: The total number of words in this Reply, inclusive of point headings and
footnotes, and exclusive of the caption, table of contents, table of authorities, signature block,
and this Statement, is 706 words.
Dated: April 4, 2023
Melville, New York.
_________________________
xxxxxxxxxxxxxx
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Preview
FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -----------------------------------------------------------------X xxxxxx xxxxxxxx, on behalf of xxxxx xxxxxxxx, an infant under the age of 18, and Index No. 2691/2012 xxxxxx xxxxxxxx, Individually, Plaintiff, AFFIRMATION IN FURTHER SUPPORT -against- RONALD J. TADDEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS (USA), INC., Defendant. -----------------------------------------------------------------X 1. xxxxxxxxxxxxxx, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 2. I am a partner with NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff, and based on my review of the file I am familiar with the facts and circumstances of this matter. 3. I make this affirmation in further support of Plaintiff’s Order to Show Cause seeking an Order: a. Granting leave to serve an Amended Bill of Particulars pursuant to CPLR 3043(c); b. Granting leave to serve same nunc pro tunc; c. In the alternative, deeming plaintiff’s August 15th, 2022 Supplemental Bill of Particulars as properly pleaded and served; 1 of 5 FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023 d. For such other and further relief as this Court deems just and proper under the circumstances. 4. In accordance with CPLR 2217(B), no application for this relief has been previously made. PLAINTIFF IS NOT CLAIMING NEW INJURIES 5. Al of the infant-plaintiff’s complaints pleaded in the Bills of Particulars, from birth through the present stem from the same incident and injury: the exposure of the infant- plaintiff in utero to Topamax/topiramate and its impact on his growth and development. All of the injuries claimed are not separate and distinct but rather linked sequelae that all show a clear origin and nexus, as Plaintiff’s expert Russell Reid will testify to at trial. 6. The dental injuries claimed in the 2022 BP in particular, are a direct result and clearly related to the existing claimed injuries of bilateral cleft lip and palate, which are not merely cosmetic injuries but structural injuries involving the mouth and jaw. The proposed amendments simply further specify the treatment he has received and how the injury has developed. Further, Defendants have been aware of dental involvement since the beginning discovery. The palate (roof of mouth) surgeries listed in the 2012 BP were performed by dental surgeon Michael Proothi, D.M.D., in conjunction with plastic surgeon xxxxxx Gallagher, M.D. Thus, any claims by defendants that these injuries are “new” are without merit and should be disregarded by this Court. 7. Defendants have known for years about the complexity of the infant-plaintiff’s injuries. In fact, in their opposition cite only one missing authorization, thus confirming what was established in the plaintiff’s moving papers—that we have supplied counsel with authorizations and records to support plaintiffs’ amplified claims and that vast majority of same 2 of 5 FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023 were exchanged prior to filing the Note of Issue. 8. Defendant, in their opposition, rely heavily on their August 2022 motion to strike, ignoring that that took place 8 months ago, curing any valid claims of surprise. Now that the trial is set to commence at the end of May 2023, and the claims sought herein are the same as those sought in 2022, there are no surprises at the eve of this trial. 9. It is respectfully submitted that Defendants mischaracterize this Court’s March 9, 2023 Order. It is the plaintiff's understanding that the Court objected to service of the Supplemental Bill of Particulars without leave of Court and not necessarily the claims therein, and that the grantor of Defendant’s motion to strike was due to “such circumstances.” See NYSCEF dkt. No. 167 at p. 2. The instant Order to Show Cause would remedy that defect. 28. The infant plaintiff is appearing for an Examination Before Trial on April 6, 2023 and can testify to these claims to the best of his ability as a 12 year old. Further, should additional depositions or discovery be required by the defendants, plaintiff avers that it can be completed, to the extent reasonable, prior to the commencement of jury selection. 29. Further, it is now been eight months since plaintiff served her supplemental Bill of Particulars, and only seeks leave to amend for the claims asserted therein. Thus, there is no unfair surprise to the Defendants. As Defendants will not be prejudiced by this Court granting leave to plead these damages in the Bill of Particulars, Plaintiff respectfully requests that leave be granted. WHEREFORE, plaintiff prays that this Honorable Court grant Plaintiff’s application in its entirety and for such other and further and different relief as this Honorable Court may deem just and proper. 3 of 5 FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023 Dated: April 4, 2023 Melville, New York Yours, etc., NAPOLI SHKOLNIK, PLLC _____________________________ xxxxxx L. xxxxxxx Napoli Shkolnik, PLLC Attorneys for the Plaintiff 400 Broadhollow Road – Suite 305 Melville, NY 11747 212-397-100 4 of 5 FILED: SUFFOLK COUNTY CLERK 04/04/2023 02:49 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 04/04/2023 DOCUMENT SPECIFICATIONS STATEMENT I hereby certify pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court and the County Court that the foregoing document was prepared on a computer using Microsoft Word. Type: A proportionally spaced typeface was used, as follows: Typeface: Times New Roman Point Size: 12 Word Count: The total number of words in this Reply, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of authorities, signature block, and this Statement, is 706 words. Dated: April 4, 2023 Melville, New York. _________________________ xxxxxxxxxxxxxx 5 of 5