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FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012
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AHM/SES/md
00033-087918
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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xxxxxx xxxxxxxx on behalf of C.S., an infant under
the age of 18, and xxxxxx xxxxxxxx, Individually,
Plaintiffs,
-against- Index No.: 026910/2012
RONALD J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D., SHORE PSYCHIATRIC
CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND,
BERLIN OBGYN ASSOCIATES, HANSSEN
PHARMACEUTICALS, INC. k/n/a ORTHO-MCNEIL-
JANSSEN PHARMACEUTICALS, INC., and ZYDUS
PHARMACEUTICALS USA, INC.,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS RONALD J. TADDEO,
M.D. s/h/a RONALD TADEO, M.D., AND SHORE PSYCHIATRIC CENTER’S MOTION
IN LIMINE TO PRECLUDE EXPERT TESTIMONY REGARDING MATTERS NOT
ORIGINALLY PLED IN THE BILL OF PARTICULRS AND TO PRECLUDE
CUMULATIVE AND DUPLICATIVE EXPERT TESTIMONY
Of Counsel:
Anina H. Monte, Esq.
Samantha E. Shaw, Esq.
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PRELIMINARY STATEMENT
Defendants RONALD J. TADDEO, M.D. s/h/a RONALD TADEO, M.D. (hereinafter “Dr.
Taddeo”), and SHORE PSYCHIATRIC CENTER (hereinafter, collectively with Dr. Taddeo,
“Moving Defendants”), submit this Memorandum of Law in support of the instant motion in limine
to (1) preclude Plaintiff’s expert witnesses from testifying regarding theories of liability and/or
injuries that have been precluded by the Court’s Order of March 9, 2023, as they were not included
in the Bill of Particulars; and (2) to preclude Plaintiff from eliciting and introducing cumulative
and duplicative expert witness testimony.
As this Court is aware, by Order dated March 9, 2023, Plaintiff’s “Supplemental” Bill of
Particulars was stricken and Plaintiff was precluded from introducing evidence at trial regarding
newly raised theories and alleged injuries set forth therein. Despite this Court’s clear, cogent, and
well-reasoned decision, which is now law of the case, Plaintiff’s expert disclosures reveal that they
plan to elicit testimony from her expert witnesses as to the stricken theories and injuries.
Accordingly, the Moving Defendants respectfully request that this Court preclude Plaintiff’s
expert witnesses from testifying regarding theories of liability and/or injuries which were first
raised in Plaintiff’s proposed “Supplemental” Bill of Particulars.
Furthermore, as detailed below, Plaintiff is seeking to elicit cumulative and duplicative
testimony from her expert witnesses, which would both prejudice Moving Defendants and waste
judicial resources. Accordingly, it is also respectfully requested that this Court preclude Plaintiff
from doing so and preclude the introduction of any cumulative or duplicative expert testimony.
EXHIBITS
The following exhibits are submitted in support of Moving Defendants’ motion in limine:
Exhibit A: Verified Bill of Particulars as to Moving Defendants, dated December 12,
2012
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Exhibit B: Proposed “Supplemental” Bill of Particulars as to Dr. Taddeo, dated August
15, 2022
Exhibit C: Order dated March 9, 2023, Striking Plaintiff’s proposed Supplemental Bill
of Particulars
Exhibit D: Plaintiff’s Expert Witness Disclosure for a psychiatry expert
Exhibit E: Plaintiff’s Expert Witness Disclosure for Richard Schuster, Ph.D.
Exhibit F: Plaintiff’s Expert Witness Disclosure for Richard H. Finnell, Ph.D.,
DABMG
Exhibit G: Plaintiff’s Expert Witness Disclosure for Russell R. Reid, M.D., Ph.D.
Exhibit H: Defendants’ Letter Objecting to Plaintiff’s Expert Witness Disclosures
STATEMENT OF RELEVANT FACTS
Plaintiff commenced this medical malpractice action over 10 years ago, on August 30,
2012. See NYSCEF No. 1.1 Moving Defendants answered the Complaint on November 9, 2012.
See NYSCEF No. 11. At the same time, Moving Defendants served a demand for a Bill of
Particulars. See NYSCEF No. 14. The demand requested, inter alia, that Plaintiff identify the
injuries suffered as a result of the alleged negligence or malpractice of Moving Defendants, as well
as special damages being claimed by Plaintiff, including loss of earnings. See id. at ¶¶6, 9, 11.
Plaintiff served a Verified Bill of Particulars on or about December 13, 2012. See Ex. A
(also NYSCEF No. 156). Of note, Plaintiff claimed 20 different personal injuries and their
sequelae, including a cleft lip and palate, hearing loss, cleft palate and eustachian tube dysfunction,
three surgeries during 2010-12, inability to feed, speech impediment, pain and suffering, disruption
of life goals and a normal childhood, and self-consciousness of scarring. See id. at ¶6. With
1
Papers previously filed electronically with the Court are cited by reference to their document number on NYSCEF.
See CPLR 2214(c); Nationstar Mtge., LLC v. Bailey, 175 A.D.3d 697, 698 (2d Dep’t 2019).
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respect to special damages, Plaintiff made no claim for loss of earnings. See id. at ¶¶9, 11. Plaintiff
also did not provide any amounts for claimed physician, nurse, medical supplies, and hospital
costs. See id. at ¶9. Despite reserving the right to supplement her responses with respect to special
damages during the course of litigation (see id. at ¶¶9, 11), Plaintiff never did so. On September
12, 2018, Plaintiff certified that discovery was complete and that this action was ready for trial,
and filed a Note of Issue. See NYSCEF No. 22.
Plaintiff served an expert witness disclosure, dated October 4, 2021, pursuant to CPLR
3101(d), reserving the right to call a purported psychiatry expert. See Ex. D. On or about March
10, 2022, Plaintiff served an expert witness disclosure pursuant to CPLR 3101(d), reserving the
right to call Richard Schuster, Ph.D., at trial. See Ex. E (also NYSCEF No. 158). On or about
July 12, 2022, Plaintiff served expert witness disclosures pursuant to CPLR 3101(d), reserving the
right to call Richard Finnell, Ph.D., DABMG, and Russell R. Reid, M.D., Ph.D., at trial. See Ex.
F and G (also NYSCEF No. 159-60). Moving Defendants objected to the expert witness
disclosures of Dr. Schuster, Dr. Reid, and Dr. Finnell and demanded that they be withdrawn, on
the grounds that each of the three expert witness disclosures attempted to expand the claimed
injuries to the Infant Plaintiff, and the disclosure for Dr. Schuster indicated that he would opine as
to lost earnings and special damages. Moving Defendants also objected on the grounds that the
disclosures lacked specificity as to the anticipated testimony. See Ex. H (also NYSCEF No.
161).
As the Court is well aware from prior motion practice, in response, Plaintiff attempted to
amend her Bill of Particulars to add new claims of injury, theories of liability and damage. This
attempt was made 10 years after this action was started, and included claimed future lost earnings
and $3 million in special damages. See Ex. B at ¶¶9, 11. It also included 30 new personal injuries
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and their sequelae allegedly sustained by the Infant Plaintiff. See id. at ¶6. Motion practice to
strike the new theories and injuries ensued and the Court issued an Order of March 9, 2023. That
Order determined that the new theories and injuries were improperly included for the first time on
the eve of trial, and struck the proposed “Supplemental” Bill of Particulars. See Ex. C (also
NYSCEF No. 167). This Court correctly found that “the Verified Supplemental Bill of Particulars
contains numerous newly claimed injuries that were not set forth in the original Bill of Particulars.
For example, the original Bill of Particulars does not set forth any dental injury, cognitive injury,
or psychological injury.” Id. at 2. This Court noted that the “Supplemental” Bill of Particulars
did not simply amplify the allegations set forth in the original Bill of Particulars, and thus
constituted an amended Bill of Particulars served, without leave of Court, nearly four years after
the filing of the Note of Issue. See id. The “Supplemental” Bill of Particulars was thus a legal
nullity. See id. This Court therefore found that “it would be an improvident exercise of discretion
to allow the plaintiff to claim these new damages at trial,” and granted Moving Defendants’
motion. Id.
Since that time, Plaintiff has not amended their prior expert disclosures to a more narrowly
tailored offer of proof. As such, with the disclosures as currently drafted, the proposed testimony
will cover topics and assertions that are clearly improper and outside the scope of the Bill of
Particulars. Furthermore, Plaintiff has represented their intention to call two or three of their
witnesses at the time of trial, with the possibility of offering testimony from their purported
psychiatry expert, as well as Dr. Reid, and possibly Dr. Schuster at trial. The expert disclosures
of all three potential witnesses, albeit vague, seemingly indicate that all of the experts are
anticipated to testify with respect to causation and damages, necessitating the instant motion to
prevent cumulative and duplicative testimony.
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ARGUMENT
I. A. This Court’s Decision is Law of the Case and Plaintiff is Precluded from
Introducing Evidence Regarding Newly-Alleged Injuries and Special Damages
As set forth above, in its Order dated March 9, 2023, this Court conclusively and
definitively struck the “Supplemental” Bill of Particulars and precluded Plaintiff “from introducing
evidence at trial regarding the newly raised theories and alleged injuries set forth therein,”
including allegations of “dental injury, cognitive injury, or psychological injury.” Ex. C at 1-2.
Plaintiff is now trying to circumvent this Court’s clear and well-reasoned decision by improperly
eliciting testimony from his experts on the theories and alleged injuries raised for the first time in
the “Supplemental” Bill of Particulars. It is respectfully submitted that this Court should not
countenance Plaintiff’s malfeasance, as the Order dated March 9, 2023 is law of the case.
“‘The doctrine of the law of the case seeks to prevent relitigation of issues of law that have
already been determined at an earlier stage of the proceeding.’” Sunshine v. Berger, 214 A.D.3d
1020, 1021 (2d Dep’t 2023), quoting Bank of N.Y. Mellon v. Singh, 205 A.D.3d 866, 868 (2d Dep’t
2022). The doctrine applied to legal determinations that were necessarily resolved on the merits
in a prior decision, and to the same questions presented in the same case. See id. at 1021-22;
Benjamin v. Yeroushalmi, 212 A.D.3d 758, 759 (2d Dep’t 2023); B.Z. Chiropractic, P.C. v. Allstate
Ins. Co., 197 A.D.3d 144, 152-53 (2d Dep’t 2021).
As of the date of the filing of this herein motion in limine, plaintiff’s counsel has indicated
that he is no longer intending to call Dr. Finnell as an expert at trial so Dr. Finnell’s expert
disclosure will not be addressed herein. However, plaintiff’s counsel has indicated that he is
intending to call Dr. Reid (craniofacial reconstructive & plastic surgery), an unidentified
psychiatry expert, and potentially Dr. Schuster (vocational rehabilitation). See Ex. D, E. G. All
three of these expert disclosures indicate that Plaintiff is intending to elicit testimony outside the
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scope of the Bill of Particulars. For instance, the expert disclosures pertaining to Dr. Reid, Dr.
Schuster, and the psychiatry expert indicate, in sum and substance, that these experts are
anticipated to testify that the use of Topamax caused developmental delays, which is both a new
theory of liability and encompasses new injuries not previously claimed in the Bill of Particulars.
Compare Ex. D at ¶82, E at ¶2. G at ¶4. Plaintiff’s expert disclosures are also exceptionally brief
and vague. However, while this limits the specific detail Moving Defendants can directly cite to,
it remains our understanding that, at the time of trial, Plaintiff is intending to use their experts to
expand on the theories of liability and injuries to correlate with the contents of the previously
stricken Supplemental Bill of Particulars. As such, any testimony with respect to new theories of
liability and new injuries beyond the scope of the Bill of Particulars must be precluded, based upon
the prior March 9, 2023 order.
Regarding Dr. Schuster, Moving Defendants demanded that Plaintiff withdraw the expert
disclosure pertaining to her vocational expert as the entirety of the anticipated testimony of Dr.
Schuster is beyond the scope of the Bill of Particulars, which Plaintiff failed to do. See Ex. H.
Significantly, there are no claims of special damages or lost earnings or cognitive/developmental
claims in the Bill of Particulars, and thus, the testimony of a vocational expert is improper.
Annexed to the expert disclosure of Dr. Schuster is a report authored by Dr. Schuster, wherein,
following his assessment of records and an interview of the infant, Dr. Schuster renders a
conclusion which exceeds the claims/damages/injuries in the Bill of Particulars, including a
reduced earning potential and being at risk for negative vocational ramifications. See Ex. E at
pages 21-22. As such, Dr. Schuster’s testimony should be precluded in its entirety as it is beyond
2
Exhibit D (psychiatry expert disclosure) does not contain numbered paragraphs. Paragraph “8” starts at
the bottom of page #2.
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the scope of the Bill of Particulars.
In alleging a new theory of causation and cognitive injuries in the stricken Supplemental
Bill of Particulars, Plaintiff was attempting to find a basis for newly claimed damages, including
a future lost earnings claim. However, it was established that Plaintiff improperly included an
entirely new category of damages in the “Supplemental” Bill of Particulars in alleging, for the first
time, $3 million in special damages, plus a 27% reduction in future earning capacity per year and
expenses for “additional therapies, dental care, and equipment.” Ex. B at ¶¶9, 11. None of those
damages were claimed in the original Verified Bill of Particulars. Compare Ex. A at ¶¶9, 11, with
Ex. B at ¶¶9, 11. To the extent that Dr. Schuster is expected to address cognitive injuries, the loss
of earnings capacity and life care plan, it should not be permitted.
This Court decided and granted Moving Defendants’ prior motion to strike the
Supplemental Bill of Particulars. The Court found that the Supplemental Bill of Particulars
contained newly claimed injuries not set forth in the original Bill of Particulars. It is expressly
stated in the Court’s decision that that “the original bill of particulars does not set forth any dental
injury, cognitive injury, or psychological injury” Ex. C at 2. Furthermore, the Court held that the
“Supplemental” Bill of Particulars, therefore, was in actuality an attempt to amend the Bill of
Particulars, and since this attempt was made nearly four years after the filing of the Note of Issue,
and without leave of Court, it was, as a matter of law, a nullity. See id. As such, this Court has
already determined, on the merits and as a matter of law, that the plaintiff cannot offer testimony
or evidence as to those injuries. Yet, Plaintiff’s expert disclosures indicate and/or imply the
intention of eliciting testimony beyond those originally contained in the Bill of Particulars.
Allowing Plaintiff to elicit testimony and introduce evidence of alleged injuries and
theories which were not included in the original Bill of Particulars, despite this Court’s prior
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determination, would allow Plaintiff a second bite at the apple, and undermine the “sound policy
that once an issue is judicially determined, that should be the end of the matter” absent
consideration from a court with appellate jurisdiction. B.Z. Chiropractic, P.C., 197 A.D.3d at 153.
Accordingly, it is respectfully submitted that Plaintiff should be precluded from introducing
evidence at trial or eliciting testimony regarding the newly raised theories and alleged injuries set
forth in the “Supplemental” Bill of Particulars, as this Court decided in the Order dated March 9,
2023.
B. Alternatively, This Court Should Preclude Plaintiff from Introducing
Evidence Regarding Newly-Alleged Injuries and Special Damages in the
Interest of Justice
Even if this Court were inclined to disregard the law of the case doctrine, it should preclude
Plaintiff from introducing evidence of the newly alleged injuries and damages in the interest of
justice. Moving Defendants would be prejudiced if this Court were to allow Plaintiff to introduce
evidence regarding new theories and new alleged injuries. As explained in Moving Defendants’
initial motion to strike and preclude, Plaintiff did not serve the “Supplemental” Bill of Particulars
until August 15, 2022, a full 9 years, 11 months, and 16 days after this action was commenced on
August 30, 2012. See Ex. B; NYSCEF No. 1. In addition, she did not serve the “Supplemental”
Bill of Particulars until nearly 4 years after this action was certified as ready for trial and the Note
of Issue was filed on September 12, 2018. See Ex. B; NYSCEF No. 22. Plaintiff’s lengthy delay
was prejudicial and warranted denial of her attempt to amend the Bill of Particulars on the eve of
trial. See Lorincz v. Castellano, 208 A.D.3d 573, 575 (2d Dep’t 2022); Sampson v. Contillo, 55
A.D.3d 591, 592 (2d Dep’t 2008).
If this Court were to allow Plaintiff to introduce evidence of new theories, alleged injuries,
and categories of damages which were never raised until now it would be prejudicial for two
reasons. First, even more time has passed since the alleged malpractice, since this action was
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commenced, since the original Bill of Particulars was served, and since the Note of Issue was filed.
Plaintiff’s new allegations, which were untimely when Moving Defendants filed their motion to
strike and preclude, are even more untimely now, months later.
Second, it would be manifestly unfair and prejudicial to allow Plaintiff to, in effect, amend
her Bill of Particulars now during trial. This is especially true here where Moving Defendants
have relied upon this Court’s Order dated March 9, 2023, which directed that Plaintiff is precluded
“from introducing evidence at trial regarding the newly raised theories and alleged injuries set
forth therein,” including allegations of “dental injury, cognitive injury, or psychological injury,”
for months, since it was entered. Ex. C at 1-2. Allowing Plaintiff to introduce this very same
evidence now would prejudice Moving Defendants, who have prepared for trial in reliance upon
the Order.
II. This Court Should Preclude Plaintiff from Introducing Cumulative and Duplicative
Expert Testimony.
Plaintiff is seeking to introduce into evidence cumulative expert testimony, which should
not be countenanced. “As a general rule, the issue of whether evidence should be excluded as
cumulative rests within the sound discretion of the trial court.” Rucigay v. Wyckoff Hgts. Med.
Ctr., 194 A.D.3d 865, 867 (2d Dep’t 2021) (internal quotation marks omitted); see Dufel v. Green,
84 N.Y.2d 795, 797 (1995); Greenberg v. Greenberg, 144 A.D.3d 625, 629 (2d Dep’t 2016); Cor
Canada Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 1365 (4th Dep’t 2006);
Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 591 (2d Dep’t 1988). It is a provident
exercise of discretion for a trial court to preclude a plaintiff’s expert witness from offering
testimony that is cumulative of that of another expert. See Rucigay, 194 A.D.3d at 867; Cor
Canada Rd. Co., LLC, 34 A.D.3d at 1365.
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Here, Plaintiff is attempting to elicit cumulative and duplicative testimony from her expert
witnesses. For instance, Plaintiff seeks to introduce causation testimony from both her psychiatry
expert (unidentified) and craniofacial expert (Dr. Reid), and per the wording of the expert
disclosure, even from the vocational expert (Dr. Schuster). See Ex. D, E, and G. As Plaintiff has
indicated that she does not intend to call Dr. Finnell, his expert disclosures is not addressed herein.
Plaintiff’s psychiatry expert witness disclosure indicates that the expert is expected to
testify that Moving Defendants deviated from the standard of care in prescribing
Topamax/topiramate to Plaintiff and that the medication is known in the psychiatric field to cause
birth defects, including cleft lips and palates. See Ex. D at ¶4-5. Pursuant to the expert disclosure
of Plaintiff’s craniofacial expert, Dr. Reid, it is anticipated that Dr. Reid will testify that
Topamax/topiramate is causally associated with oral clefts in infants born to mothers who ingest
this medication during pregnancy. See Ex. G at ¶8-10. Pursuant to the vocational expert
disclosure, even Dr. Schuster is expected to testify that the infant sustained injuries in utero from
Topamax, which caused a bilateral cleft and palate, etc. See Ex. E at ¶2. While stated a variety
of different and vague ways in each expert disclosure, the sum and substance is that Plaintiff
intends to elicit testimony from all of their experts with respect to causation. Such evidence would
be cumulative and would serve no purpose except to bolster each other and prejudice Moving
Defendants.
A review of the three expert witness disclosures served by Plaintiff reveals that allowing
each of the experts (psychiatry, Dr. Reid, and Dr. Schuster) to testify would present cumulative
testimony. For example, the disclosures pertaining to Dr. Reid and Dr. Schuster identically state
that each witness, is expected to testify at trial, “on behalf of infant plaintiff … with regard to the
permanent disability of plaintiff, as a result of teratogenic injuries he sustained in utero from
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Topamax/topiramate, which resulted in a bilateral cleft lip and palate, developmental delays,
hearing delays, and severe mental anguish and distress.” Compare Ex. E at ¶2 with Ex. G at ¶4.
While worded differently, plaintiff’s psychiatry expert disclosure also states that the expert is
expected to testify the same as Dr. Reid and Dr. Schuster, specifically that the alleged departures
by Defendants caused “a severe bilateral cleft lip and cleft palate, as well as hearing loss,
developmental delays, speech delays and difficulties, physician and emotional pain and
suffering..” Ex. D at ¶8.
The expert disclosures of Dr. Reid and Dr. Schuster are also identical in stating that the
expert witnesses will testify that the Infant Plaintiff’s “injuries are of a direct causal relationship
the subject malpractice [sic],” right down to each missing a word between “relationship” and “the.”
Compare Ex. E at ¶7 with Ex. G at ¶13. Again, while worded differently, the sum and substance
of the psychiatry expert disclosure also indicates that the expert will testify that the injuries are a
result of the defendants’ “departures.” See Ex. D at ¶8.
The expert disclosures for Dr. Schuster and Dr. Reid also identically state that the
respective witness will testify or opine:
“that due to the subject malpractice, plaintiff … has suffered serious, permanent and
debilitating personal injuries, which adversely affect plaintiff’s past, present and future
health status and mental health status, which will continue into adulthood and negatively
affect quality of life.” Compare Ex. E at ¶3 with Ex. G at ¶5.
“in regards to the medical diagnoses and conclusions, relevant to the plaintiff’s health
status, as a result of the injuries in utero he sustained which are the subject of this lawsuit.”
Compare Ex. E at ¶4 with Ex. G at ¶6.
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that the Infant Plaintiff “will continue to have permanent deficits that will require medical
treatment and procedures for the foreseeable future.” Compare Ex. E at ¶6 with Ex. G at
¶12.
Moreover, even where Plaintiff’s expert disclosures are not identical, it is still clear that
the experts intend to provide the same testimony. The sum and substance of each is that Plaintiff
intends, at a minimum, to have all three experts testify that the Topamax/topiramate she ingested
while the she was pregnant caused the infant to suffer teratogenic injuries, the damages of which
include a cleft lip and palate and sequelae therefrom. Allowing multiple experts to testify to the
same issues and provide the same opinions would be cumulative, and such testimony should be
precluded. See Rucigay, 194 A.D.3d at 867; Cor Canada Rd. Co., LLC, 34 A.D.3d at 1365; Abbott,
141 A.D.2d at 591.
CONCLUSION
For the reasons set forth above, it is respectfully requested that this Honorable Court (1)
preclude the introduction of any testimony or other evidence regarding the newly-raised alleged
injuries and special damages contained in Plaintiff’s “Supplemental” Bill of Particulars, and (2)
preclude the introduction of cumulative and duplicative testimony by Plaintiff’s expert witnesses.
Dated: East Meadow, New York
May 25, 2023
Yours, etc.
MARTIN CLEARWATER & BELL LLP
By: ______________________________
Anina H. Monte
Attorneys for Defendants
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RONALD J. TADDEO, M.D. s/h/a
RONALD J. TADEO, M.D. and
SHORE PSYCHIATRIC CENTER
90 Merrick Avenue
East Meadow, New York 11554
516-222-8500
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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 MEMORANDUM OF LAW,
inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of
authorities, signature block, and this Statement, is 3,680 words.
Dated: East Meadow, New York
May 25, 2023
______________________________
Anina H. Monte
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FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 AHM/SES/md 00033-087918 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------X xxxxxx xxxxxxxx on behalf of C.S., an infant under the age of 18, and xxxxxx xxxxxxxx, Individually, Plaintiffs, -against- Index No.: 026910/2012 RONALD J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCHIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, HANSSEN PHARMACEUTICALS, INC. k/n/a ORTHO-MCNEIL- JANSSEN PHARMACEUTICALS, INC., and ZYDUS PHARMACEUTICALS USA, INC., Defendants. ---------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS RONALD J. TADDEO, M.D. s/h/a RONALD TADEO, M.D., AND SHORE PSYCHIATRIC CENTER’S MOTION IN LIMINE TO PRECLUDE EXPERT TESTIMONY REGARDING MATTERS NOT ORIGINALLY PLED IN THE BILL OF PARTICULRS AND TO PRECLUDE CUMULATIVE AND DUPLICATIVE EXPERT TESTIMONY Of Counsel: Anina H. Monte, Esq. Samantha E. Shaw, Esq. 4858099 1 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 PRELIMINARY STATEMENT Defendants RONALD J. TADDEO, M.D. s/h/a RONALD TADEO, M.D. (hereinafter “Dr. Taddeo”), and SHORE PSYCHIATRIC CENTER (hereinafter, collectively with Dr. Taddeo, “Moving Defendants”), submit this Memorandum of Law in support of the instant motion in limine to (1) preclude Plaintiff’s expert witnesses from testifying regarding theories of liability and/or injuries that have been precluded by the Court’s Order of March 9, 2023, as they were not included in the Bill of Particulars; and (2) to preclude Plaintiff from eliciting and introducing cumulative and duplicative expert witness testimony. As this Court is aware, by Order dated March 9, 2023, Plaintiff’s “Supplemental” Bill of Particulars was stricken and Plaintiff was precluded from introducing evidence at trial regarding newly raised theories and alleged injuries set forth therein. Despite this Court’s clear, cogent, and well-reasoned decision, which is now law of the case, Plaintiff’s expert disclosures reveal that they plan to elicit testimony from her expert witnesses as to the stricken theories and injuries. Accordingly, the Moving Defendants respectfully request that this Court preclude Plaintiff’s expert witnesses from testifying regarding theories of liability and/or injuries which were first raised in Plaintiff’s proposed “Supplemental” Bill of Particulars. Furthermore, as detailed below, Plaintiff is seeking to elicit cumulative and duplicative testimony from her expert witnesses, which would both prejudice Moving Defendants and waste judicial resources. Accordingly, it is also respectfully requested that this Court preclude Plaintiff from doing so and preclude the introduction of any cumulative or duplicative expert testimony. EXHIBITS The following exhibits are submitted in support of Moving Defendants’ motion in limine: Exhibit A: Verified Bill of Particulars as to Moving Defendants, dated December 12, 2012 2 4858099 2 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 Exhibit B: Proposed “Supplemental” Bill of Particulars as to Dr. Taddeo, dated August 15, 2022 Exhibit C: Order dated March 9, 2023, Striking Plaintiff’s proposed Supplemental Bill of Particulars Exhibit D: Plaintiff’s Expert Witness Disclosure for a psychiatry expert Exhibit E: Plaintiff’s Expert Witness Disclosure for Richard Schuster, Ph.D. Exhibit F: Plaintiff’s Expert Witness Disclosure for Richard H. Finnell, Ph.D., DABMG Exhibit G: Plaintiff’s Expert Witness Disclosure for Russell R. Reid, M.D., Ph.D. Exhibit H: Defendants’ Letter Objecting to Plaintiff’s Expert Witness Disclosures STATEMENT OF RELEVANT FACTS Plaintiff commenced this medical malpractice action over 10 years ago, on August 30, 2012. See NYSCEF No. 1.1 Moving Defendants answered the Complaint on November 9, 2012. See NYSCEF No. 11. At the same time, Moving Defendants served a demand for a Bill of Particulars. See NYSCEF No. 14. The demand requested, inter alia, that Plaintiff identify the injuries suffered as a result of the alleged negligence or malpractice of Moving Defendants, as well as special damages being claimed by Plaintiff, including loss of earnings. See id. at ¶¶6, 9, 11. Plaintiff served a Verified Bill of Particulars on or about December 13, 2012. See Ex. A (also NYSCEF No. 156). Of note, Plaintiff claimed 20 different personal injuries and their sequelae, including a cleft lip and palate, hearing loss, cleft palate and eustachian tube dysfunction, three surgeries during 2010-12, inability to feed, speech impediment, pain and suffering, disruption of life goals and a normal childhood, and self-consciousness of scarring. See id. at ¶6. With 1 Papers previously filed electronically with the Court are cited by reference to their document number on NYSCEF. See CPLR 2214(c); Nationstar Mtge., LLC v. Bailey, 175 A.D.3d 697, 698 (2d Dep’t 2019). 3 4858099 3 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 respect to special damages, Plaintiff made no claim for loss of earnings. See id. at ¶¶9, 11. Plaintiff also did not provide any amounts for claimed physician, nurse, medical supplies, and hospital costs. See id. at ¶9. Despite reserving the right to supplement her responses with respect to special damages during the course of litigation (see id. at ¶¶9, 11), Plaintiff never did so. On September 12, 2018, Plaintiff certified that discovery was complete and that this action was ready for trial, and filed a Note of Issue. See NYSCEF No. 22. Plaintiff served an expert witness disclosure, dated October 4, 2021, pursuant to CPLR 3101(d), reserving the right to call a purported psychiatry expert. See Ex. D. On or about March 10, 2022, Plaintiff served an expert witness disclosure pursuant to CPLR 3101(d), reserving the right to call Richard Schuster, Ph.D., at trial. See Ex. E (also NYSCEF No. 158). On or about July 12, 2022, Plaintiff served expert witness disclosures pursuant to CPLR 3101(d), reserving the right to call Richard Finnell, Ph.D., DABMG, and Russell R. Reid, M.D., Ph.D., at trial. See Ex. F and G (also NYSCEF No. 159-60). Moving Defendants objected to the expert witness disclosures of Dr. Schuster, Dr. Reid, and Dr. Finnell and demanded that they be withdrawn, on the grounds that each of the three expert witness disclosures attempted to expand the claimed injuries to the Infant Plaintiff, and the disclosure for Dr. Schuster indicated that he would opine as to lost earnings and special damages. Moving Defendants also objected on the grounds that the disclosures lacked specificity as to the anticipated testimony. See Ex. H (also NYSCEF No. 161). As the Court is well aware from prior motion practice, in response, Plaintiff attempted to amend her Bill of Particulars to add new claims of injury, theories of liability and damage. This attempt was made 10 years after this action was started, and included claimed future lost earnings and $3 million in special damages. See Ex. B at ¶¶9, 11. It also included 30 new personal injuries 4 4858099 4 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 and their sequelae allegedly sustained by the Infant Plaintiff. See id. at ¶6. Motion practice to strike the new theories and injuries ensued and the Court issued an Order of March 9, 2023. That Order determined that the new theories and injuries were improperly included for the first time on the eve of trial, and struck the proposed “Supplemental” Bill of Particulars. See Ex. C (also NYSCEF No. 167). This Court correctly found that “the Verified Supplemental Bill of Particulars contains numerous newly claimed injuries that were not set forth in the original Bill of Particulars. For example, the original Bill of Particulars does not set forth any dental injury, cognitive injury, or psychological injury.” Id. at 2. This Court noted that the “Supplemental” Bill of Particulars did not simply amplify the allegations set forth in the original Bill of Particulars, and thus constituted an amended Bill of Particulars served, without leave of Court, nearly four years after the filing of the Note of Issue. See id. The “Supplemental” Bill of Particulars was thus a legal nullity. See id. This Court therefore found that “it would be an improvident exercise of discretion to allow the plaintiff to claim these new damages at trial,” and granted Moving Defendants’ motion. Id. Since that time, Plaintiff has not amended their prior expert disclosures to a more narrowly tailored offer of proof. As such, with the disclosures as currently drafted, the proposed testimony will cover topics and assertions that are clearly improper and outside the scope of the Bill of Particulars. Furthermore, Plaintiff has represented their intention to call two or three of their witnesses at the time of trial, with the possibility of offering testimony from their purported psychiatry expert, as well as Dr. Reid, and possibly Dr. Schuster at trial. The expert disclosures of all three potential witnesses, albeit vague, seemingly indicate that all of the experts are anticipated to testify with respect to causation and damages, necessitating the instant motion to prevent cumulative and duplicative testimony. 5 4858099 5 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 ARGUMENT I. A. This Court’s Decision is Law of the Case and Plaintiff is Precluded from Introducing Evidence Regarding Newly-Alleged Injuries and Special Damages As set forth above, in its Order dated March 9, 2023, this Court conclusively and definitively struck the “Supplemental” Bill of Particulars and precluded Plaintiff “from introducing evidence at trial regarding the newly raised theories and alleged injuries set forth therein,” including allegations of “dental injury, cognitive injury, or psychological injury.” Ex. C at 1-2. Plaintiff is now trying to circumvent this Court’s clear and well-reasoned decision by improperly eliciting testimony from his experts on the theories and alleged injuries raised for the first time in the “Supplemental” Bill of Particulars. It is respectfully submitted that this Court should not countenance Plaintiff’s malfeasance, as the Order dated March 9, 2023 is law of the case. “‘The doctrine of the law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding.’” Sunshine v. Berger, 214 A.D.3d 1020, 1021 (2d Dep’t 2023), quoting Bank of N.Y. Mellon v. Singh, 205 A.D.3d 866, 868 (2d Dep’t 2022). The doctrine applied to legal determinations that were necessarily resolved on the merits in a prior decision, and to the same questions presented in the same case. See id. at 1021-22; Benjamin v. Yeroushalmi, 212 A.D.3d 758, 759 (2d Dep’t 2023); B.Z. Chiropractic, P.C. v. Allstate Ins. Co., 197 A.D.3d 144, 152-53 (2d Dep’t 2021). As of the date of the filing of this herein motion in limine, plaintiff’s counsel has indicated that he is no longer intending to call Dr. Finnell as an expert at trial so Dr. Finnell’s expert disclosure will not be addressed herein. However, plaintiff’s counsel has indicated that he is intending to call Dr. Reid (craniofacial reconstructive & plastic surgery), an unidentified psychiatry expert, and potentially Dr. Schuster (vocational rehabilitation). See Ex. D, E. G. All three of these expert disclosures indicate that Plaintiff is intending to elicit testimony outside the 6 4858099 6 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 scope of the Bill of Particulars. For instance, the expert disclosures pertaining to Dr. Reid, Dr. Schuster, and the psychiatry expert indicate, in sum and substance, that these experts are anticipated to testify that the use of Topamax caused developmental delays, which is both a new theory of liability and encompasses new injuries not previously claimed in the Bill of Particulars. Compare Ex. D at ¶82, E at ¶2. G at ¶4. Plaintiff’s expert disclosures are also exceptionally brief and vague. However, while this limits the specific detail Moving Defendants can directly cite to, it remains our understanding that, at the time of trial, Plaintiff is intending to use their experts to expand on the theories of liability and injuries to correlate with the contents of the previously stricken Supplemental Bill of Particulars. As such, any testimony with respect to new theories of liability and new injuries beyond the scope of the Bill of Particulars must be precluded, based upon the prior March 9, 2023 order. Regarding Dr. Schuster, Moving Defendants demanded that Plaintiff withdraw the expert disclosure pertaining to her vocational expert as the entirety of the anticipated testimony of Dr. Schuster is beyond the scope of the Bill of Particulars, which Plaintiff failed to do. See Ex. H. Significantly, there are no claims of special damages or lost earnings or cognitive/developmental claims in the Bill of Particulars, and thus, the testimony of a vocational expert is improper. Annexed to the expert disclosure of Dr. Schuster is a report authored by Dr. Schuster, wherein, following his assessment of records and an interview of the infant, Dr. Schuster renders a conclusion which exceeds the claims/damages/injuries in the Bill of Particulars, including a reduced earning potential and being at risk for negative vocational ramifications. See Ex. E at pages 21-22. As such, Dr. Schuster’s testimony should be precluded in its entirety as it is beyond 2 Exhibit D (psychiatry expert disclosure) does not contain numbered paragraphs. Paragraph “8” starts at the bottom of page #2. 7 4858099 7 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 the scope of the Bill of Particulars. In alleging a new theory of causation and cognitive injuries in the stricken Supplemental Bill of Particulars, Plaintiff was attempting to find a basis for newly claimed damages, including a future lost earnings claim. However, it was established that Plaintiff improperly included an entirely new category of damages in the “Supplemental” Bill of Particulars in alleging, for the first time, $3 million in special damages, plus a 27% reduction in future earning capacity per year and expenses for “additional therapies, dental care, and equipment.” Ex. B at ¶¶9, 11. None of those damages were claimed in the original Verified Bill of Particulars. Compare Ex. A at ¶¶9, 11, with Ex. B at ¶¶9, 11. To the extent that Dr. Schuster is expected to address cognitive injuries, the loss of earnings capacity and life care plan, it should not be permitted. This Court decided and granted Moving Defendants’ prior motion to strike the Supplemental Bill of Particulars. The Court found that the Supplemental Bill of Particulars contained newly claimed injuries not set forth in the original Bill of Particulars. It is expressly stated in the Court’s decision that that “the original bill of particulars does not set forth any dental injury, cognitive injury, or psychological injury” Ex. C at 2. Furthermore, the Court held that the “Supplemental” Bill of Particulars, therefore, was in actuality an attempt to amend the Bill of Particulars, and since this attempt was made nearly four years after the filing of the Note of Issue, and without leave of Court, it was, as a matter of law, a nullity. See id. As such, this Court has already determined, on the merits and as a matter of law, that the plaintiff cannot offer testimony or evidence as to those injuries. Yet, Plaintiff’s expert disclosures indicate and/or imply the intention of eliciting testimony beyond those originally contained in the Bill of Particulars. Allowing Plaintiff to elicit testimony and introduce evidence of alleged injuries and theories which were not included in the original Bill of Particulars, despite this Court’s prior 8 4858099 8 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 determination, would allow Plaintiff a second bite at the apple, and undermine the “sound policy that once an issue is judicially determined, that should be the end of the matter” absent consideration from a court with appellate jurisdiction. B.Z. Chiropractic, P.C., 197 A.D.3d at 153. Accordingly, it is respectfully submitted that Plaintiff should be precluded from introducing evidence at trial or eliciting testimony regarding the newly raised theories and alleged injuries set forth in the “Supplemental” Bill of Particulars, as this Court decided in the Order dated March 9, 2023. B. Alternatively, This Court Should Preclude Plaintiff from Introducing Evidence Regarding Newly-Alleged Injuries and Special Damages in the Interest of Justice Even if this Court were inclined to disregard the law of the case doctrine, it should preclude Plaintiff from introducing evidence of the newly alleged injuries and damages in the interest of justice. Moving Defendants would be prejudiced if this Court were to allow Plaintiff to introduce evidence regarding new theories and new alleged injuries. As explained in Moving Defendants’ initial motion to strike and preclude, Plaintiff did not serve the “Supplemental” Bill of Particulars until August 15, 2022, a full 9 years, 11 months, and 16 days after this action was commenced on August 30, 2012. See Ex. B; NYSCEF No. 1. In addition, she did not serve the “Supplemental” Bill of Particulars until nearly 4 years after this action was certified as ready for trial and the Note of Issue was filed on September 12, 2018. See Ex. B; NYSCEF No. 22. Plaintiff’s lengthy delay was prejudicial and warranted denial of her attempt to amend the Bill of Particulars on the eve of trial. See Lorincz v. Castellano, 208 A.D.3d 573, 575 (2d Dep’t 2022); Sampson v. Contillo, 55 A.D.3d 591, 592 (2d Dep’t 2008). If this Court were to allow Plaintiff to introduce evidence of new theories, alleged injuries, and categories of damages which were never raised until now it would be prejudicial for two reasons. First, even more time has passed since the alleged malpractice, since this action was 9 4858099 9 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 commenced, since the original Bill of Particulars was served, and since the Note of Issue was filed. Plaintiff’s new allegations, which were untimely when Moving Defendants filed their motion to strike and preclude, are even more untimely now, months later. Second, it would be manifestly unfair and prejudicial to allow Plaintiff to, in effect, amend her Bill of Particulars now during trial. This is especially true here where Moving Defendants have relied upon this Court’s Order dated March 9, 2023, which directed that Plaintiff is precluded “from introducing evidence at trial regarding the newly raised theories and alleged injuries set forth therein,” including allegations of “dental injury, cognitive injury, or psychological injury,” for months, since it was entered. Ex. C at 1-2. Allowing Plaintiff to introduce this very same evidence now would prejudice Moving Defendants, who have prepared for trial in reliance upon the Order. II. This Court Should Preclude Plaintiff from Introducing Cumulative and Duplicative Expert Testimony. Plaintiff is seeking to introduce into evidence cumulative expert testimony, which should not be countenanced. “As a general rule, the issue of whether evidence should be excluded as cumulative rests within the sound discretion of the trial court.” Rucigay v. Wyckoff Hgts. Med. Ctr., 194 A.D.3d 865, 867 (2d Dep’t 2021) (internal quotation marks omitted); see Dufel v. Green, 84 N.Y.2d 795, 797 (1995); Greenberg v. Greenberg, 144 A.D.3d 625, 629 (2d Dep’t 2016); Cor Canada Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 1365 (4th Dep’t 2006); Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 591 (2d Dep’t 1988). It is a provident exercise of discretion for a trial court to preclude a plaintiff’s expert witness from offering testimony that is cumulative of that of another expert. See Rucigay, 194 A.D.3d at 867; Cor Canada Rd. Co., LLC, 34 A.D.3d at 1365. 10 4858099 10 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 Here, Plaintiff is attempting to elicit cumulative and duplicative testimony from her expert witnesses. For instance, Plaintiff seeks to introduce causation testimony from both her psychiatry expert (unidentified) and craniofacial expert (Dr. Reid), and per the wording of the expert disclosure, even from the vocational expert (Dr. Schuster). See Ex. D, E, and G. As Plaintiff has indicated that she does not intend to call Dr. Finnell, his expert disclosures is not addressed herein. Plaintiff’s psychiatry expert witness disclosure indicates that the expert is expected to testify that Moving Defendants deviated from the standard of care in prescribing Topamax/topiramate to Plaintiff and that the medication is known in the psychiatric field to cause birth defects, including cleft lips and palates. See Ex. D at ¶4-5. Pursuant to the expert disclosure of Plaintiff’s craniofacial expert, Dr. Reid, it is anticipated that Dr. Reid will testify that Topamax/topiramate is causally associated with oral clefts in infants born to mothers who ingest this medication during pregnancy. See Ex. G at ¶8-10. Pursuant to the vocational expert disclosure, even Dr. Schuster is expected to testify that the infant sustained injuries in utero from Topamax, which caused a bilateral cleft and palate, etc. See Ex. E at ¶2. While stated a variety of different and vague ways in each expert disclosure, the sum and substance is that Plaintiff intends to elicit testimony from all of their experts with respect to causation. Such evidence would be cumulative and would serve no purpose except to bolster each other and prejudice Moving Defendants. A review of the three expert witness disclosures served by Plaintiff reveals that allowing each of the experts (psychiatry, Dr. Reid, and Dr. Schuster) to testify would present cumulative testimony. For example, the disclosures pertaining to Dr. Reid and Dr. Schuster identically state that each witness, is expected to testify at trial, “on behalf of infant plaintiff … with regard to the permanent disability of plaintiff, as a result of teratogenic injuries he sustained in utero from 11 4858099 11 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 Topamax/topiramate, which resulted in a bilateral cleft lip and palate, developmental delays, hearing delays, and severe mental anguish and distress.” Compare Ex. E at ¶2 with Ex. G at ¶4. While worded differently, plaintiff’s psychiatry expert disclosure also states that the expert is expected to testify the same as Dr. Reid and Dr. Schuster, specifically that the alleged departures by Defendants caused “a severe bilateral cleft lip and cleft palate, as well as hearing loss, developmental delays, speech delays and difficulties, physician and emotional pain and suffering..” Ex. D at ¶8. The expert disclosures of Dr. Reid and Dr. Schuster are also identical in stating that the expert witnesses will testify that the Infant Plaintiff’s “injuries are of a direct causal relationship the subject malpractice [sic],” right down to each missing a word between “relationship” and “the.” Compare Ex. E at ¶7 with Ex. G at ¶13. Again, while worded differently, the sum and substance of the psychiatry expert disclosure also indicates that the expert will testify that the injuries are a result of the defendants’ “departures.” See Ex. D at ¶8. The expert disclosures for Dr. Schuster and Dr. Reid also identically state that the respective witness will testify or opine: “that due to the subject malpractice, plaintiff … has suffered serious, permanent and debilitating personal injuries, which adversely affect plaintiff’s past, present and future health status and mental health status, which will continue into adulthood and negatively affect quality of life.” Compare Ex. E at ¶3 with Ex. G at ¶5. “in regards to the medical diagnoses and conclusions, relevant to the plaintiff’s health status, as a result of the injuries in utero he sustained which are the subject of this lawsuit.” Compare Ex. E at ¶4 with Ex. G at ¶6. 12 4858099 12 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 that the Infant Plaintiff “will continue to have permanent deficits that will require medical treatment and procedures for the foreseeable future.” Compare Ex. E at ¶6 with Ex. G at ¶12. Moreover, even where Plaintiff’s expert disclosures are not identical, it is still clear that the experts intend to provide the same testimony. The sum and substance of each is that Plaintiff intends, at a minimum, to have all three experts testify that the Topamax/topiramate she ingested while the she was pregnant caused the infant to suffer teratogenic injuries, the damages of which include a cleft lip and palate and sequelae therefrom. Allowing multiple experts to testify to the same issues and provide the same opinions would be cumulative, and such testimony should be precluded. See Rucigay, 194 A.D.3d at 867; Cor Canada Rd. Co., LLC, 34 A.D.3d at 1365; Abbott, 141 A.D.2d at 591. CONCLUSION For the reasons set forth above, it is respectfully requested that this Honorable Court (1) preclude the introduction of any testimony or other evidence regarding the newly-raised alleged injuries and special damages contained in Plaintiff’s “Supplemental” Bill of Particulars, and (2) preclude the introduction of cumulative and duplicative testimony by Plaintiff’s expert witnesses. Dated: East Meadow, New York May 25, 2023 Yours, etc. MARTIN CLEARWATER & BELL LLP By: ______________________________ Anina H. Monte Attorneys for Defendants 13 4858099 13 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 RONALD J. TADDEO, M.D. s/h/a RONALD J. TADEO, M.D. and SHORE PSYCHIATRIC CENTER 90 Merrick Avenue East Meadow, New York 11554 516-222-8500 14 4858099 14 of 15 FILED: SUFFOLK COUNTY CLERK 05/25/2023 09:52 AM INDEX NO. 026910/2012 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 05/25/2023 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 MEMORANDUM OF LAW, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of authorities, signature block, and this Statement, is 3,680 words. Dated: East Meadow, New York May 25, 2023 ______________________________ Anina H. Monte 15 4858099 15 of 15