Preview
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
EXHIBIT G
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
NYSCEF Confirmation Notice
Suffolk County Supreme Court
The NYSCEF website has received an electronic filing on 05/26/2023 06:34 PM. Please keep this notice
as a confirmation of this filing.
026910/2012
xxxxxx xxxxxxxx et al - v. - Ronald J Tadeo et al
Assigned Judge: CCP JUSTICE
Documents Received on 05/26/2023 06:34 PM
Doc # Document Type
231 AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION, Motion #012
Filing User
Anina H Monte | anina.monte@mcblaw.com | 516-222-8500
90 Merrick Ave, Suite 401, East Meadow, NY 11554
E-mail Notifications
An email regarding this filing has been sent to the following on 05/26/2023 06:34 PM:
GREGORY A. CASCINO - gregory.cascino@mcblaw.com
xxxxxx L. xxxxxxx - jciaccio@napolilaw.com
ANGELA FABIANO - angelafabiano@mja-law.com
Keith L. Kaplan - Kkaplan@kbrlaw.com
ANINA H. MONTE - anina.monte@mcblaw.com
JAMES M. MORIARTY - jmoriarty@zeislaw.com
xxxxxx P. NAPOLI - Jnapoli@napolilaw.com
EDMUND T. RAKOWSKI - edmund.rakowski@mcblaw.com
SAMANTHA E. SHAW - shaws@mcblaw.com
RICHARD L. WOLF - richard.wolf@mcblaw.com
Vincent Puleo, Suffolk County Clerk
Phone: 631-852-2000 Fax: 631-852-3016 (fax)
NYSCEF Resource Center, nyscef@nycourts.gov
Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile
Page 1 of 2
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
NYSCEF Confirmation Notice
Suffolk County Supreme Court
026910/2012
xxxxxx xxxxxxxx et al - v. - Ronald J Tadeo et al
Assigned Judge: CCP JUSTICE
Email Notifications NOT Sent
Role Party Attorney
Respondent Scott Berlin No consent on record.
Respondent Berlin OBGYN Associates No consent on record.
Respondent Janssen Pharmaceuticals, No consent on record.
Inc. k/n/a Ortho-McNeil-
* Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined
consent.
Vincent Puleo, Suffolk County Clerk
Phone: 631-852-2000 Fax: 631-852-3016 (fax)
NYSCEF Resource Center, nyscef@nycourts.gov
Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile
Page 2 of 2
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
AHM/md
33-087918
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,
Index No.: 269102/2012
Plaintiff,
-against-
RONALD J. TADEO, M.D., RICHARD PITCH, M.D.,
SCOTT BERLIN, M.D., SHORE PSYCIATRIC CENTER,
FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN
OBGYN ASSOCIATES, JANSSEN
PHARMACEUTICALS, INC. and ZYDUS
PHARMACEUTICALS (USA), INC.
Defendants.
---------------------------------------------------------------------X
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE TO
PRECLUDE EVIDENCE OR TESTIMONY “PERTAINING TO PARTICULAR
UNDERLYING CAUSES, SYMPTOMS AND SEQUELAE OF MRS. xxxxxxxx’S
PAST MENTAL HEALTH CONDITIONS”
Of Counsel: Anina H. Monte, Esq.
4856885_1
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
PRELIMINARY STATEMENT
Defendants RONALD J. TADDEO, M.D. (s/h/a RONALD J. TADEO M.D.) and
SHORE PSYCHIATRIC CENTER (collectively “Defendants”) submit this Memorandum of
Law in opposition to Plaintiff’s motion in limine seeking to preclude them from “introducing
evidence or seeking to elicit testimony pertaining to particular underlying causes, symptoms
and sequelae or Mrs. xxxxxxxx’s past mental health conditions.” Plaintiffs contend that such
evidence is “inflammatory, highly prejudicial and likely to confuse the jury on the issues”.
Plaintiff’s Bill of Particulars alleges that, as a result Dr. Taddeo’s negligent prescription
of the medication Topamax to xxxxxx xxxxxxxx, prior to her pregnancy, the infant Plaintiff C.S.
was born with a severe bilateral cleft lip and palate, requiring multiple surgeries and treatments.
Plaintiff also contends that Topamax is a dangerous and contraindicated medication to pregnant
women with dangerous side effects, and that Ms. xxxxxxxx’s use of the medication prior to and
during her pregnancy with C.S. resulted in the infant’s injuries.
Plaintiff’s motion should be denied in its entirety, since the probative value of the
testimony/evidence she is seeking to preclude far outweighs any prejudicial effect. Ms.
xxxxxxxx had a significant mental health history, and the facts and evidence Plaintiff seeks to
preclude are interwoven into the underlying care and treatment rendered by Dr. Taddeo, and
were an integral part of the assessment performed as to the extent of the patient’s disorder, the
risk of suicide, self-injury and impulsive behavior, and the appropriate psychiatric and
pharmacologic treatment.
As such, precluding Defendants from introducing such evidence would skew the facts
that were in front of them at the time when they were considering how to treat Ms. xxxxxxxx.
Indeed, it would be akin to not placing a patient’s significant cardiac illness before the jury
4856885_1
2
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
when the doctor was being judged between the modalities of treatment for clogged arteries.
Accordingly, Plaintiff’s motion should be denied.
MRS. xxxxxxxx’S LONG DOCUMENTED HISTORY OF MENTAL ILLNESS
Ms. xxxxxxxx has a long documented history of mental illness, which includes at least
two overt suicide attempts; the most recent of which occurred when she was the only adult in
the house with her three young children. As this placed her children in vulnerable position
should anything have happened following her demise and before another adult was present,
Child Protective Services opened an investigation. Plaintiff also had a history of borderline
personality disorder, compulsive/impulsive behavior disorders, depression, mania, and sexual
addiction including extramarital affairs. Dr. Taddeo was aware of and documented her history,
and her risk of suicidality, which formed the basis of his analysis for her treatment choices, part
and parcel of which was the assessment of which medications would be appropriate to address
her lack of impulse control, of which Topamax was one. Those treatment recommendations and
the informed consent that was obtained at that time, form the basis of the Plaintiff’s challenges
in this malpractice trial.
In Defendants August 15, 2022 3101(d) disclosure, they revealed that their trial expert,
Dr. Muskin was going to testify, among other things, about Ms. xxxxxxxx’s medical, psychiatric
and physical history; treatment of a psychiatric patient in the child bearing years; generally, and
specifically in this case; diagnosis and treatment of patients with suicidal ideation, overt suicide
attempts, patients with bipolar disorder, patients with borderline personality disorder,
compulsive/impulsive behavior disorders, depression, mania, and sexual addiction. Dr. Muskin
also will testify about family and conception planning with a patient receiving psychiatric
4856885_1
3
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
treatment (specifically Ms. xxxxxxxx); psychotropic medications, off label medications,
pregnancy classifications of various medications, the use of various medications in patients
with psychiatric disorders, the use of therapy in patients with psychiatric disorders, and
counseling and informed consent of a psychiatric patient.
Dr. Muskin will also explain how at the start of the care and treatment at issue, Ms.
xxxxxxxx was in psychiatric crisis and that the treatment Defendants rendered to her was proper
and appropriate. Dr. Taddeo undertook a full history and psychiatric evaluation, consulted with
prior treating practitioners, and that the treatment offered to and recommended to her was fully
and appropriately discussed, and properly and appropriately tailored to her age, psychiatric
history and condition.
ISSUE PRESENTED
Plaintiff has moved to preclude Defendants from offering any evidence or seek into
elicit testimony pertaining to various areas of Ms. xxxxxxxx’s past conduct which were
considered by Dr. Taddeo as part of his risk benefit analysis in prescribing Topamax.
Specifically, Plaintiff seeks to preclude Defendants from introducing testimony regarding: (1)
the physical and sexual assaults Ms. xxxxxxxx was victim to as a child; (2) a Child Protective
Services investigation into Ms. xxxxxxxx; (3) Ms. xxxxxxxx’s suicide attempts, suicide ideation
and self-harm; and (4) Ms. xxxxxxxx’s past risk-seeking behavior including promiscuity and
compulsive spending. As noted more fully below, Plaintiff’s motion should be denied in its
entirety because the probative value of this evidence far outweighs any potential prejudice to
them.
Defendants respectfully request that this Memorandum of Law be marked as a Court
Exhibit.
4856885_1
4
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
ARGUMENT
EVIDENCE REGARDING MS. xxxxxxxx’S PRIOR MENTAL
HEALTH HISTORY SHOULD BE PERMITTED BECAUSE THESE
EVENTS ARE INTERWOVEN INTO THE TREATEMENT
RENDERED.
To be admissible evidence, must be relevant and its probative value outweigh the risk
of any undue prejudice. See Mazella v. Beals, 27 N.Y.3d 694 (2013); People v. Morris, 21
N.Y.3d 588 (2013). Evidence is relevant, in turn, if “it has any tendency in reason to prove the
existence of any material fact, i.e., it makes determination of the action more probable or less
probable than it would be without the evidence.” People v. Scarola, 71 N.Y.2d 769 (1988);
People v. Lewis, 69 N.Y.2d 321 (1987); see also Jerome Prince, Richardson on Evidence § 4-
101 (Farrell 11th ed. 1995). The determination of what is “in issue,” in turn, is based on the
pertinent substantive law and the pleadings. Jerome Prince, Richardson on Evidence § 4-102
(Farrell 11th ed. 1995).
It is well settled that where evidence is essential to establish an element of a claim or a
defense, it is not unduly prejudicial. For example, in Walsh v. Akhund, 198 A.D.3d 1010 (2d
Dep’t 2021) the Second Department reversed a defense verdict in a medical malpractice action
because of the trial Court’s non-harmless error in excluding evidence that after decedent’s death
from ovarian cancer, her sister tested positive for a harmful variant of the BRCA2 gene.
Specifically it held that such evidence was not unduly prejudicial and was relevant to the issue
of proximate cause, as it would have supported the plaintiff's argument and the testimony of the
plaintiff's expert that the decedent would have undergone gene testing if properly advised to do
so, and more likely than not would have tested positive for the harmful gene variant and
4856885_1
5
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
undergone a procedure to remove her ovaries, diminishing her chances of developing ovarian
cancer.
Similarly in Pisula v. Roman Catholic Archdiocese of New York, 201 A.D.3d 88 (2d
Dep’t 2021), the Second Department noted that factual allegations about a defendant’s prior
sexual abuse conduct will not be stricken from the complaint as prejudicial or scandalous, where
one or more causes of action includes, as a necessary element, what acts or propensities an
institutional defendant knew or should have known by the time of the plaintiff’s own abuse.
It is equally well settled that the mere fact that evidence is of a sensitive disturbing
nature and can arouse the jury’s emotions is not enough to preclude it. For example in Mazella
v. Beals, 27 N.Y.3d 694 (2013) a patient’s widow brought a medical malpractice and wrongful
death action against the defendant psychiatrist, seeking to recover damages arising from the
death of a patient who committed suicide. The jury found for plaintiff, after which the Court
of Appeals noted that it was not an abuse of discretion for the trial court to allow plaintiff to
admit photographs of the decedent’s body. Although defendant argued that the photograph
should have been precluded because it lacked probative value and served only to arouse the
jury’s emotions, the Court of Appeals nevertheless held that:
The photograph depicted the manner in which decedent committed suicide and
was relevant to plaintiff's theory that the violent nature of the suicide—death by
self-inflicted knife wounds—was a result of decedent's extreme mental and
emotional condition, induced by the long-term use of prescription drugs. Nor
was its admission unduly prejudicial since there was already testimony from a
paramedic describing the condition in which he found the body, and the official
autopsy report from the Medical Examiner's Office was admitted into evidence
without objection. Therefore, the court did not abuse its discretion in admitting
the photograph
(27 N.Y.3d at 709)
4856885_1
6
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
Also in Rivera v. City of New York, 200 A.D.2d 379 (1st Dep’t 1994) the plaintiff
alleged a misdiagnosis of the condition that led to a cerebral aneurysm. After the jury dismissed
the action, the plaintiff claimed error by the trial court in allowing the EMT to testify that when
he arrived at the scene, he was told by the comatose patient’s niece that he had used crack
cocaine the night before. The First Department held that such testimony was not prejudicial
and irrelevant evidence of past drug use, since, based upon expert testimony concerning the
impact of cocaine use on conditions such as plaintiff, the testimony was pertinent to diagnosis
and treatment.
As noted in Gallagher v. Cayuga Medical Center, 151 A.D.3d 1349 (3d Dep’t 2017) the
rule that a physician “may not be held liable for a mere error in professional judgment” is
“particularly relevant to cases involving mental health treatment, given that psychiatry is not an
exact science and, therefore, decisions related to mental health treatment …. often involve a
measure of calculated risk” See Schrempf v. State, 66 N.Y.2d 289 (1985); Park v.
Kovachevich, 116 A.D.3d 182 (1st Dep’t 2014)(“When a psychiatrist chooses a course of
treatment, within a range of medically accepted choices for a patient after a proper examination
and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist
from liability”); Durney v. Terk, 42 A.D.3d 335 (1st Dep’t 2007).
Based on the foregoing precedent, it is clear that Defendants should be permitted to
introduce evidence regarding Ms. xxxxxxxx’s entire mental health history considered by Dr.
Taddeo during the time of treatment. Her mental health history, history of trauma, history and
continued acts of suicidality and suicidal ideation, lack of impulse control, and risky behavior
formed the basis and foundation for his treatment. As such it is part and parcel of the decision
to offer and prescribe Topamax. As such, it is crucial to show that he complied with the
4856885_1
7
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
standard of care, which is an element of his defense and a part of the error in judgment charge
in PJI 2:150.
As set forth above, Dr. Muskin will explain how Ms. xxxxxxxx’s long history of suicidal
ideation, overt suicide attempts, bipolar disorder, borderline personality disorder,
compulsive/impulsive behavior disorders, depression, mania, and sexual acts, factored into Dr.
Taddeo’s risk benefit analysis in prescribing to Topamax to someone of childbearing age.
While Ms. xxxxxxxx may find some/all of this testimony and evidence embarrassing, and it may
have the potential to elicit an emotional response in the jury, Defendants are not planning on
introducing this to embarrass Ms. xxxxxxxx or launch a collateral attack on her credibility.
Rather this evidence and testimony goes directly to the issue of whether or not
Defendants exercised appropriate medical judgment in an inexact field of medicine where
calculated risks sometimes need to be taken, to show that they did not depart from the standard
of care. As in Mazella and Rivera, supra, this information is critical to establish an element of
Defendants’ defense, and they should not be punished and prohibited from telling the jury the
entire story just because potentially sensitive information is involved.
CONCLUSION
Based upon the foregoing, it is respectfully requested that this Court deny Plaintiff’s
motion in its entirety, together with such other and further relief as this Court deems just and
proper.
Dated: East Meadow, New York
May 26, 2023
Yours, etc.
MARTIN CLEARWATER & BELL LLP
By: ______________________________
Anina H. Monte
4856885_1
8
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
Attorneys for Defendants
Ronald J. Taddeo, M.D.
s/h/a Ronald J. Tadeo, M.D., and
Shore Psychiatric Center
90 Merrick Avenue, Suite 401
East Meadow, New York 11554
(516) 222-8500
4856885_1
9
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012
NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023
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 OPPOSITION TO PLAINTIFF’S
MOTION IN LIMINE, inclusive of point headings and footnotes, and exclusive of the
caption, table of contents, table of authorities, signature block, and this Statement, is 2,016
words.
Dated: East Meadow, New York
May 26, 2023
______________________________
Anina H. Monte
4856885_1
10
Preview
FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 EXHIBIT G FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 NYSCEF Confirmation Notice Suffolk County Supreme Court The NYSCEF website has received an electronic filing on 05/26/2023 06:34 PM. Please keep this notice as a confirmation of this filing. 026910/2012 xxxxxx xxxxxxxx et al - v. - Ronald J Tadeo et al Assigned Judge: CCP JUSTICE Documents Received on 05/26/2023 06:34 PM Doc # Document Type 231 AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION, Motion #012 Filing User Anina H Monte | anina.monte@mcblaw.com | 516-222-8500 90 Merrick Ave, Suite 401, East Meadow, NY 11554 E-mail Notifications An email regarding this filing has been sent to the following on 05/26/2023 06:34 PM: GREGORY A. CASCINO - gregory.cascino@mcblaw.com xxxxxx L. xxxxxxx - jciaccio@napolilaw.com ANGELA FABIANO - angelafabiano@mja-law.com Keith L. Kaplan - Kkaplan@kbrlaw.com ANINA H. MONTE - anina.monte@mcblaw.com JAMES M. MORIARTY - jmoriarty@zeislaw.com xxxxxx P. NAPOLI - Jnapoli@napolilaw.com EDMUND T. RAKOWSKI - edmund.rakowski@mcblaw.com SAMANTHA E. SHAW - shaws@mcblaw.com RICHARD L. WOLF - richard.wolf@mcblaw.com Vincent Puleo, Suffolk County Clerk Phone: 631-852-2000 Fax: 631-852-3016 (fax) NYSCEF Resource Center, nyscef@nycourts.gov Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile Page 1 of 2 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 NYSCEF Confirmation Notice Suffolk County Supreme Court 026910/2012 xxxxxx xxxxxxxx et al - v. - Ronald J Tadeo et al Assigned Judge: CCP JUSTICE Email Notifications NOT Sent Role Party Attorney Respondent Scott Berlin No consent on record. Respondent Berlin OBGYN Associates No consent on record. Respondent Janssen Pharmaceuticals, No consent on record. Inc. k/n/a Ortho-McNeil- * Court rules require hard copy service upon non-participating parties and attorneys who have opted-out or declined consent. Vincent Puleo, Suffolk County Clerk Phone: 631-852-2000 Fax: 631-852-3016 (fax) NYSCEF Resource Center, nyscef@nycourts.gov Phone: (646) 386-3033 | Fax: (212) 401-9146 | Website: www.nycourts.gov/efile Page 2 of 2 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 AHM/md 33-087918 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, Index No.: 269102/2012 Plaintiff, -against- RONALD J. TADEO, M.D., RICHARD PITCH, M.D., SCOTT BERLIN, M.D., SHORE PSYCIATRIC CENTER, FAMILY PSYCHOLOGY OF LONG ISLAND, BERLIN OBGYN ASSOCIATES, JANSSEN PHARMACEUTICALS, INC. and ZYDUS PHARMACEUTICALS (USA), INC. Defendants. ---------------------------------------------------------------------X DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OR TESTIMONY “PERTAINING TO PARTICULAR UNDERLYING CAUSES, SYMPTOMS AND SEQUELAE OF MRS. xxxxxxxx’S PAST MENTAL HEALTH CONDITIONS” Of Counsel: Anina H. Monte, Esq. 4856885_1 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 PRELIMINARY STATEMENT Defendants RONALD J. TADDEO, M.D. (s/h/a RONALD J. TADEO M.D.) and SHORE PSYCHIATRIC CENTER (collectively “Defendants”) submit this Memorandum of Law in opposition to Plaintiff’s motion in limine seeking to preclude them from “introducing evidence or seeking to elicit testimony pertaining to particular underlying causes, symptoms and sequelae or Mrs. xxxxxxxx’s past mental health conditions.” Plaintiffs contend that such evidence is “inflammatory, highly prejudicial and likely to confuse the jury on the issues”. Plaintiff’s Bill of Particulars alleges that, as a result Dr. Taddeo’s negligent prescription of the medication Topamax to xxxxxx xxxxxxxx, prior to her pregnancy, the infant Plaintiff C.S. was born with a severe bilateral cleft lip and palate, requiring multiple surgeries and treatments. Plaintiff also contends that Topamax is a dangerous and contraindicated medication to pregnant women with dangerous side effects, and that Ms. xxxxxxxx’s use of the medication prior to and during her pregnancy with C.S. resulted in the infant’s injuries. Plaintiff’s motion should be denied in its entirety, since the probative value of the testimony/evidence she is seeking to preclude far outweighs any prejudicial effect. Ms. xxxxxxxx had a significant mental health history, and the facts and evidence Plaintiff seeks to preclude are interwoven into the underlying care and treatment rendered by Dr. Taddeo, and were an integral part of the assessment performed as to the extent of the patient’s disorder, the risk of suicide, self-injury and impulsive behavior, and the appropriate psychiatric and pharmacologic treatment. As such, precluding Defendants from introducing such evidence would skew the facts that were in front of them at the time when they were considering how to treat Ms. xxxxxxxx. Indeed, it would be akin to not placing a patient’s significant cardiac illness before the jury 4856885_1 2 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 when the doctor was being judged between the modalities of treatment for clogged arteries. Accordingly, Plaintiff’s motion should be denied. MRS. xxxxxxxx’S LONG DOCUMENTED HISTORY OF MENTAL ILLNESS Ms. xxxxxxxx has a long documented history of mental illness, which includes at least two overt suicide attempts; the most recent of which occurred when she was the only adult in the house with her three young children. As this placed her children in vulnerable position should anything have happened following her demise and before another adult was present, Child Protective Services opened an investigation. Plaintiff also had a history of borderline personality disorder, compulsive/impulsive behavior disorders, depression, mania, and sexual addiction including extramarital affairs. Dr. Taddeo was aware of and documented her history, and her risk of suicidality, which formed the basis of his analysis for her treatment choices, part and parcel of which was the assessment of which medications would be appropriate to address her lack of impulse control, of which Topamax was one. Those treatment recommendations and the informed consent that was obtained at that time, form the basis of the Plaintiff’s challenges in this malpractice trial. In Defendants August 15, 2022 3101(d) disclosure, they revealed that their trial expert, Dr. Muskin was going to testify, among other things, about Ms. xxxxxxxx’s medical, psychiatric and physical history; treatment of a psychiatric patient in the child bearing years; generally, and specifically in this case; diagnosis and treatment of patients with suicidal ideation, overt suicide attempts, patients with bipolar disorder, patients with borderline personality disorder, compulsive/impulsive behavior disorders, depression, mania, and sexual addiction. Dr. Muskin also will testify about family and conception planning with a patient receiving psychiatric 4856885_1 3 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 treatment (specifically Ms. xxxxxxxx); psychotropic medications, off label medications, pregnancy classifications of various medications, the use of various medications in patients with psychiatric disorders, the use of therapy in patients with psychiatric disorders, and counseling and informed consent of a psychiatric patient. Dr. Muskin will also explain how at the start of the care and treatment at issue, Ms. xxxxxxxx was in psychiatric crisis and that the treatment Defendants rendered to her was proper and appropriate. Dr. Taddeo undertook a full history and psychiatric evaluation, consulted with prior treating practitioners, and that the treatment offered to and recommended to her was fully and appropriately discussed, and properly and appropriately tailored to her age, psychiatric history and condition. ISSUE PRESENTED Plaintiff has moved to preclude Defendants from offering any evidence or seek into elicit testimony pertaining to various areas of Ms. xxxxxxxx’s past conduct which were considered by Dr. Taddeo as part of his risk benefit analysis in prescribing Topamax. Specifically, Plaintiff seeks to preclude Defendants from introducing testimony regarding: (1) the physical and sexual assaults Ms. xxxxxxxx was victim to as a child; (2) a Child Protective Services investigation into Ms. xxxxxxxx; (3) Ms. xxxxxxxx’s suicide attempts, suicide ideation and self-harm; and (4) Ms. xxxxxxxx’s past risk-seeking behavior including promiscuity and compulsive spending. As noted more fully below, Plaintiff’s motion should be denied in its entirety because the probative value of this evidence far outweighs any potential prejudice to them. Defendants respectfully request that this Memorandum of Law be marked as a Court Exhibit. 4856885_1 4 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 ARGUMENT EVIDENCE REGARDING MS. xxxxxxxx’S PRIOR MENTAL HEALTH HISTORY SHOULD BE PERMITTED BECAUSE THESE EVENTS ARE INTERWOVEN INTO THE TREATEMENT RENDERED. To be admissible evidence, must be relevant and its probative value outweigh the risk of any undue prejudice. See Mazella v. Beals, 27 N.Y.3d 694 (2013); People v. Morris, 21 N.Y.3d 588 (2013). Evidence is relevant, in turn, if “it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.” People v. Scarola, 71 N.Y.2d 769 (1988); People v. Lewis, 69 N.Y.2d 321 (1987); see also Jerome Prince, Richardson on Evidence § 4- 101 (Farrell 11th ed. 1995). The determination of what is “in issue,” in turn, is based on the pertinent substantive law and the pleadings. Jerome Prince, Richardson on Evidence § 4-102 (Farrell 11th ed. 1995). It is well settled that where evidence is essential to establish an element of a claim or a defense, it is not unduly prejudicial. For example, in Walsh v. Akhund, 198 A.D.3d 1010 (2d Dep’t 2021) the Second Department reversed a defense verdict in a medical malpractice action because of the trial Court’s non-harmless error in excluding evidence that after decedent’s death from ovarian cancer, her sister tested positive for a harmful variant of the BRCA2 gene. Specifically it held that such evidence was not unduly prejudicial and was relevant to the issue of proximate cause, as it would have supported the plaintiff's argument and the testimony of the plaintiff's expert that the decedent would have undergone gene testing if properly advised to do so, and more likely than not would have tested positive for the harmful gene variant and 4856885_1 5 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 undergone a procedure to remove her ovaries, diminishing her chances of developing ovarian cancer. Similarly in Pisula v. Roman Catholic Archdiocese of New York, 201 A.D.3d 88 (2d Dep’t 2021), the Second Department noted that factual allegations about a defendant’s prior sexual abuse conduct will not be stricken from the complaint as prejudicial or scandalous, where one or more causes of action includes, as a necessary element, what acts or propensities an institutional defendant knew or should have known by the time of the plaintiff’s own abuse. It is equally well settled that the mere fact that evidence is of a sensitive disturbing nature and can arouse the jury’s emotions is not enough to preclude it. For example in Mazella v. Beals, 27 N.Y.3d 694 (2013) a patient’s widow brought a medical malpractice and wrongful death action against the defendant psychiatrist, seeking to recover damages arising from the death of a patient who committed suicide. The jury found for plaintiff, after which the Court of Appeals noted that it was not an abuse of discretion for the trial court to allow plaintiff to admit photographs of the decedent’s body. Although defendant argued that the photograph should have been precluded because it lacked probative value and served only to arouse the jury’s emotions, the Court of Appeals nevertheless held that: The photograph depicted the manner in which decedent committed suicide and was relevant to plaintiff's theory that the violent nature of the suicide—death by self-inflicted knife wounds—was a result of decedent's extreme mental and emotional condition, induced by the long-term use of prescription drugs. Nor was its admission unduly prejudicial since there was already testimony from a paramedic describing the condition in which he found the body, and the official autopsy report from the Medical Examiner's Office was admitted into evidence without objection. Therefore, the court did not abuse its discretion in admitting the photograph (27 N.Y.3d at 709) 4856885_1 6 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 Also in Rivera v. City of New York, 200 A.D.2d 379 (1st Dep’t 1994) the plaintiff alleged a misdiagnosis of the condition that led to a cerebral aneurysm. After the jury dismissed the action, the plaintiff claimed error by the trial court in allowing the EMT to testify that when he arrived at the scene, he was told by the comatose patient’s niece that he had used crack cocaine the night before. The First Department held that such testimony was not prejudicial and irrelevant evidence of past drug use, since, based upon expert testimony concerning the impact of cocaine use on conditions such as plaintiff, the testimony was pertinent to diagnosis and treatment. As noted in Gallagher v. Cayuga Medical Center, 151 A.D.3d 1349 (3d Dep’t 2017) the rule that a physician “may not be held liable for a mere error in professional judgment” is “particularly relevant to cases involving mental health treatment, given that psychiatry is not an exact science and, therefore, decisions related to mental health treatment …. often involve a measure of calculated risk” See Schrempf v. State, 66 N.Y.2d 289 (1985); Park v. Kovachevich, 116 A.D.3d 182 (1st Dep’t 2014)(“When a psychiatrist chooses a course of treatment, within a range of medically accepted choices for a patient after a proper examination and evaluation, the doctrine of professional medical judgment will insulate such psychiatrist from liability”); Durney v. Terk, 42 A.D.3d 335 (1st Dep’t 2007). Based on the foregoing precedent, it is clear that Defendants should be permitted to introduce evidence regarding Ms. xxxxxxxx’s entire mental health history considered by Dr. Taddeo during the time of treatment. Her mental health history, history of trauma, history and continued acts of suicidality and suicidal ideation, lack of impulse control, and risky behavior formed the basis and foundation for his treatment. As such it is part and parcel of the decision to offer and prescribe Topamax. As such, it is crucial to show that he complied with the 4856885_1 7 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 standard of care, which is an element of his defense and a part of the error in judgment charge in PJI 2:150. As set forth above, Dr. Muskin will explain how Ms. xxxxxxxx’s long history of suicidal ideation, overt suicide attempts, bipolar disorder, borderline personality disorder, compulsive/impulsive behavior disorders, depression, mania, and sexual acts, factored into Dr. Taddeo’s risk benefit analysis in prescribing to Topamax to someone of childbearing age. While Ms. xxxxxxxx may find some/all of this testimony and evidence embarrassing, and it may have the potential to elicit an emotional response in the jury, Defendants are not planning on introducing this to embarrass Ms. xxxxxxxx or launch a collateral attack on her credibility. Rather this evidence and testimony goes directly to the issue of whether or not Defendants exercised appropriate medical judgment in an inexact field of medicine where calculated risks sometimes need to be taken, to show that they did not depart from the standard of care. As in Mazella and Rivera, supra, this information is critical to establish an element of Defendants’ defense, and they should not be punished and prohibited from telling the jury the entire story just because potentially sensitive information is involved. CONCLUSION Based upon the foregoing, it is respectfully requested that this Court deny Plaintiff’s motion in its entirety, together with such other and further relief as this Court deems just and proper. Dated: East Meadow, New York May 26, 2023 Yours, etc. MARTIN CLEARWATER & BELL LLP By: ______________________________ Anina H. Monte 4856885_1 8 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 Attorneys for Defendants Ronald J. Taddeo, M.D. s/h/a Ronald J. Tadeo, M.D., and Shore Psychiatric Center 90 Merrick Avenue, Suite 401 East Meadow, New York 11554 (516) 222-8500 4856885_1 9 FILED: SUFFOLK COUNTY CLERK 08/14/2023 01:54 PM INDEX NO. 026910/2012 NYSCEF DOC. NO. 257 RECEIVED NYSCEF: 08/14/2023 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 OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE, inclusive of point headings and footnotes, and exclusive of the caption, table of contents, table of authorities, signature block, and this Statement, is 2,016 words. Dated: East Meadow, New York May 26, 2023 ______________________________ Anina H. Monte 4856885_1 10