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COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS. SUPERIOR COURT
NO, 1872CV00606
DOUGLAS A. CAPAK, PERSONAL,
REPRESENTATIVE OF THE ESTATE OF
DAWN MARIE ROBERTS,
Plaintiff
Vv
CLOE F. SHELTON, M.D.,
ANTHONY CARAVELLO, M.D.,
SHARON MAHONEY, M.D.,
SUSAN ANDEREGG, M.D.,
CAPE COD HOSPITAL, TRISTAN MEDICAL,
P.C., G CURTIS BARRY, M.D., P.C., and CAPE
COD OBSTETRICS & GYNECOLOGY, P.C.,
Defendants
THIRD MOTION IN LIMINE OF THE DEFENDANTS, SHARON MAHONEY, M.D.,
TRISTAN MEDICAL, P.C., AND G. CURTIS BARRY, M.D., P.C.. TO LIMIT ALL
EXPERT TESTIMONY TO THE OPINIONS DISCLOSED IN THE PARTIES’
SUPERIOR COURT RULE 30B EXPERT DISCLOSURES FILED WITH THE JOINT
PRE-TRIAL MEMORANDUM
Now come the defendants, Sharon Mahoney, M.D., Tristan Medical, P.C., and G. Curtis
Barry, M.D., P.C., and hereby move én limine for an Order to limit the testimony of all expert
witnesses at trial to those opinions disclosed in their expert disclosures, attached to the Joint Pre-
Trial Memorandum. As grounds for this motion, the defendants assert that this case has been
pending since 2018 and all parties have had ample opportunity to retain expert witnesses and to
supplement their expert disclosures.
Pursuant to Mass. Superior Court Rule 30B all parties were required to identify (1) the
substance of the facts and opinions to which their expert is expected to testify and (2) a summary
of the grounds for each opinion ofeach such expert. See Superior Court Rule 30B.
Accordingly, all parties should be bound by the expert disclosures set forth in the Joint Pre-Trial
Memorandum and should be precluded from offering any testimony beyond those matters
specifically identified in each experts’ 30B certified expert disclosure.
In a medical malpractice action, the burden of proof rests with the plaintiff to establish a
breach of the applicable standard of care, as well as causation and damages. See Borysewicz v.
Dineen, 302 Mass. 461, 464 (1939). Proof ofa departure by the physician from the applicable
standard of care is established through the testimony of expert witnesses. See Haggerty v.
McCarthy, 344 Mass. 136, 139 (1962). The Massachusetts Rules of Civil Procedure provide, in
relevant part:
A party may through interrogatories require another party to identify each person
whom the other party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state the substance
of the facts and opinions to which the expert is expected to testify and a summary
of the grounds for each opinion.
Mass. R. Civ. P. 26(b)(4).
Further, Massachusetts Rule of Civil Procedure 26(e)(1)(B) states that:
A party is under a duty to seasonably supplement her response with respect to any
question directly addressed to ... the identity of each person expected to be called
as an expert witness at trial, the subject matter that he or she is expected to testify
and the substance of their testimony.
Furthermore, Superior Rule 30B provides that the disclosure as to any expert set forth in
the Joint Pre-Trial Memorandum must be signed by the expert who must certify that "the
disclosure accurately states the subject matter(s) on which the expert is expected to testify, the
substance of the facts and opinions to which the expert is expected to testify, and a summary of
the grounds for each opinion to which the expert is expected to testify at trial."
The purpose of these rigorous rules pertaining to pre-trial disclosure of expert testimony
is to allow parties to prepare in advance of trial for cross-examination of an opponent's experts,
J johnson y. H. K. Webster, Inc., 775 F. 2d 11, 6-7 (Ist Cir 1985). Advanced preparation is
necessary for effective cross-examination of an expert witness. Id. The parties must be limited
to these expert disclosures. Any additional opinions or undisclosed testimony of the experts
must be precluded pursuant to the Rules discussed above, which are designed to protect against
undue surprise and prejudice.
WHEREFORE, for the reasons set forth above, the defendants, Sharon Mahoney, M.D.,
Tristan Medical, P.C., and G. Curtis Barry, M.D., P.C., hereby move to limit the substance of the
facts, opinions, and grounds of the opinions of all expert witnesses to the matters set forth in
each witness’ expert disclosure and this Court should bar any testimony as to statements beyond
the scope of said expert disclosures.
Respectfully submitted,
tsf Stephen M_ O'Shea
Stephen M. O'Shea BBO No. 559236
Michael J. Keefe BBO No. 263751
Attorneys for Defendant
Sharon Mahoney, M.D., Tristan Medical, P.C. and
G. Curtis Barry M.D., P.C.
Martin, Magnuson, McCarthy & Kenney
101 Merrimac Street, 7th Floor
Boston, MA 02114
617-227-3240
soshea@mmmk.com
mkeefe@mmmk.com
CERTIFICATE OF SERVICE
I, Stephen M. O’Shea hereby certify that a true copy of the above document was served on
November 24, 2023 by emailing a copy thereof to:
Adam Satin, Esq. Edward Hinchey, Esq.
Lynn Hu, Esq. Tanya K., Oldenhoff, Esq.
Lubin & Meyer Hinchey and Oldenhoff
100 City Hall Plaza, 4th Floor Mashpee Commons
Boston, MA 02108 22 Steeple St., Suite 203
statin@lubinandmeyer.com ehinchey@hincheyllp.com
Ihu@lubinandmeyer.com toldenhoff@hincheyllp.com
Christopher Lavoie, Esq.
Allyson Hammerstedt, Esq.
Dunn and Dunn
11 Beacon Street #1100
Boston, MA 02108
al hammerstedt@dunnanddunn.com
clavoie@dunnanddunn.com
/s/ Stephen M. O'Shea
Stephen M. O'Shea BBO No. 559236
Michael J. Keefe BBO No. 263751
Attorneys for Defendant
Tristan Medical, P.C.
Martin, Magnuson, McCarthy & Kenney
101 Merrimac Street, 7th Floor
Boston, MA 02114
617-227-3240
soshea@mmmk.com
mkeefe@mmmk.com
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COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, SS. SUPERIOR COURT NO, 1872CV00606 DOUGLAS A. CAPAK, PERSONAL, REPRESENTATIVE OF THE ESTATE OF DAWN MARIE ROBERTS, Plaintiff Vv CLOE F. SHELTON, M.D., ANTHONY CARAVELLO, M.D., SHARON MAHONEY, M.D., SUSAN ANDEREGG, M.D., CAPE COD HOSPITAL, TRISTAN MEDICAL, P.C., G CURTIS BARRY, M.D., P.C., and CAPE COD OBSTETRICS & GYNECOLOGY, P.C., Defendants THIRD MOTION IN LIMINE OF THE DEFENDANTS, SHARON MAHONEY, M.D., TRISTAN MEDICAL, P.C., AND G. CURTIS BARRY, M.D., P.C.. TO LIMIT ALL EXPERT TESTIMONY TO THE OPINIONS DISCLOSED IN THE PARTIES’ SUPERIOR COURT RULE 30B EXPERT DISCLOSURES FILED WITH THE JOINT PRE-TRIAL MEMORANDUM Now come the defendants, Sharon Mahoney, M.D., Tristan Medical, P.C., and G. Curtis Barry, M.D., P.C., and hereby move én limine for an Order to limit the testimony of all expert witnesses at trial to those opinions disclosed in their expert disclosures, attached to the Joint Pre- Trial Memorandum. As grounds for this motion, the defendants assert that this case has been pending since 2018 and all parties have had ample opportunity to retain expert witnesses and to supplement their expert disclosures. Pursuant to Mass. Superior Court Rule 30B all parties were required to identify (1) the substance of the facts and opinions to which their expert is expected to testify and (2) a summary of the grounds for each opinion ofeach such expert. See Superior Court Rule 30B. Accordingly, all parties should be bound by the expert disclosures set forth in the Joint Pre-Trial Memorandum and should be precluded from offering any testimony beyond those matters specifically identified in each experts’ 30B certified expert disclosure. In a medical malpractice action, the burden of proof rests with the plaintiff to establish a breach of the applicable standard of care, as well as causation and damages. See Borysewicz v. Dineen, 302 Mass. 461, 464 (1939). Proof ofa departure by the physician from the applicable standard of care is established through the testimony of expert witnesses. See Haggerty v. McCarthy, 344 Mass. 136, 139 (1962). The Massachusetts Rules of Civil Procedure provide, in relevant part: A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Mass. R. Civ. P. 26(b)(4). Further, Massachusetts Rule of Civil Procedure 26(e)(1)(B) states that: A party is under a duty to seasonably supplement her response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial, the subject matter that he or she is expected to testify and the substance of their testimony. Furthermore, Superior Rule 30B provides that the disclosure as to any expert set forth in the Joint Pre-Trial Memorandum must be signed by the expert who must certify that "the disclosure accurately states the subject matter(s) on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion to which the expert is expected to testify at trial." The purpose of these rigorous rules pertaining to pre-trial disclosure of expert testimony is to allow parties to prepare in advance of trial for cross-examination of an opponent's experts, J johnson y. H. K. Webster, Inc., 775 F. 2d 11, 6-7 (Ist Cir 1985). Advanced preparation is necessary for effective cross-examination of an expert witness. Id. The parties must be limited to these expert disclosures. Any additional opinions or undisclosed testimony of the experts must be precluded pursuant to the Rules discussed above, which are designed to protect against undue surprise and prejudice. WHEREFORE, for the reasons set forth above, the defendants, Sharon Mahoney, M.D., Tristan Medical, P.C., and G. Curtis Barry, M.D., P.C., hereby move to limit the substance of the facts, opinions, and grounds of the opinions of all expert witnesses to the matters set forth in each witness’ expert disclosure and this Court should bar any testimony as to statements beyond the scope of said expert disclosures. Respectfully submitted, tsf Stephen M_ O'Shea Stephen M. O'Shea BBO No. 559236 Michael J. Keefe BBO No. 263751 Attorneys for Defendant Sharon Mahoney, M.D., Tristan Medical, P.C. and G. Curtis Barry M.D., P.C. Martin, Magnuson, McCarthy & Kenney 101 Merrimac Street, 7th Floor Boston, MA 02114 617-227-3240 soshea@mmmk.com mkeefe@mmmk.com CERTIFICATE OF SERVICE I, Stephen M. O’Shea hereby certify that a true copy of the above document was served on November 24, 2023 by emailing a copy thereof to: Adam Satin, Esq. Edward Hinchey, Esq. Lynn Hu, Esq. Tanya K., Oldenhoff, Esq. Lubin & Meyer Hinchey and Oldenhoff 100 City Hall Plaza, 4th Floor Mashpee Commons Boston, MA 02108 22 Steeple St., Suite 203 statin@lubinandmeyer.com ehinchey@hincheyllp.com Ihu@lubinandmeyer.com toldenhoff@hincheyllp.com Christopher Lavoie, Esq. Allyson Hammerstedt, Esq. Dunn and Dunn 11 Beacon Street #1100 Boston, MA 02108 al hammerstedt@dunnanddunn.com clavoie@dunnanddunn.com /s/ Stephen M. O'Shea Stephen M. O'Shea BBO No. 559236 Michael J. Keefe BBO No. 263751 Attorneys for Defendant Tristan Medical, P.C. Martin, Magnuson, McCarthy & Kenney 101 Merrimac Street, 7th Floor Boston, MA 02114 617-227-3240 soshea@mmmk.com mkeefe@mmmk.com