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FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018
NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
___________________________________________________
VALERIE AUSTIN and AMANDA DILLON, as
co-administrators for the ESTATE OF LARRY C. AUSTIN,
Plaintiffs,
v. AFFIRMATION IN REPLY
AND FURTHER OPPOSITION
PAWAN K. RAO, M.D.; BRIAN CHANGLAI, M.D.; INDEX NO.: 007476/2018
JEANNE BISHOP, M.D.; and OVID NEULANDER, M.D., JUDGE: LAMENDOLA
Defendants.
___________________________________________________
Zachary M. Mattison, Esq., pursuant to CPLR 2106, hereby affirms under penalty of
perjury:
1. I am an attorney duly licensed to practice law in the State of New York, and a
partner with the Sugarman Law Firm, LLP, attorneys for defendant Ovid Neulander, M.D. As
such, I am fully familiar with the facts and circumstances set forth herein.
2. This reply affirmation is submitted in further support of Dr. Neulander’s motion in
limine for an order limiting the proof offered by plaintiffs Valerie Austin and Amanda Dillon, as
Co-Administrators for the Estate of Larry C. Austin (“plaintiffs”) at trial. Specifically, Dr.
Neulander respectfully requests an order:
(1) Precluding the plaintiffs from offering evidence or testimony of any alleged deviation
from the standard of care by Dr. Neulander that was dismissed when this Court ruled
on Dr. Neulander’s motion for summary judgment and/or that was not identified in the
general surgeon affidavit they offered in opposition to Dr. Neulander’s motion for
summary judgment;
(2) Precluding the plaintiffs from offering any evidence or testimony from their internal
medicine expert, Ray Forbes, M.D., regarding alleged deviations from the standard of
care by Dr. Neulander;
(3) Precluding the plaintiffs from offering cumulative evidence or testimony from their
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expert witnesses;
(4) Precluding the plaintiffs from offering or eliciting evidence or testimony that misstates
the dates and number of times Dr. Neulander saw the decedent;
(5) Precluding the plaintiffs from suggesting that the photographs of the decedent after his
discharge from St. Joseph’s Hospital fairly or accurately reflect his condition when he
was seen by Dr. Neulander, and for a limiting instruction, and limiting the number of
photographs the plaintiffs can show the jury;
(6) Precluding the plaintiffs from offering or eliciting any evidence or testimony regarding
prior medical malpractice actions or OPMC proceedings against Dr. Neulander,
including evidence or testimony regarding how those actions and/or proceedings were
resolved; and
(7) Precluding the plaintiffs from mentioning Robert Neulander in the presence of the jury
and for a special instruction to the jury on this issue.
3. This affirmation is also submitted in further opposition to the plaintiffs’ motion in
limine, which the plaintiffs are now attempting to expand to encompass their recent settlement
with defendant Jeanne Bishop, M.D.
DR. NEULANDER’S MOTION IN LIMINE SHOULD BE GRANTED
4. Dr. Neulander seeks an order precluding the plaintiffs from offering proof of
alleged deviations that have been dismissed and/or that were not identified in their opposition to
Dr. Neulander’s motion for summary judgment. This is not, as the plaintiffs claim, an “unfounded
attempt” to limit their proof. See Attorney’s Reply Affidavit of Matthew E. Whritenour, Esq.
(“Whritenour Affidavit”), ¶ 3. It is a proper request for relief, given this Court’s prior ruling on
Dr. Neulander’s motion for summary judgment (which the plaintiffs do not dispute is the law of
the case) and the content of the plaintiffs’ expert disclosure.
5. Notably, the plaintiffs make no attempt in their opposition to argue that some of the
allegations in their expert disclosure are new and go beyond the affidavit Dr. Girard submitted in
opposition to Dr. Neulander’s summary judgment motion. This includes, merely as one example,
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the new allegation that Dr. Neulander should have done a wound culture.
6. The plaintiffs argue that, in light of their settlement with Dr. Bishop, the request
that Dr. Forbes be precluded from offering proof regarding alleged deviations by Dr. Neulander is
moot. See Whritenour Affidavit, ¶ 6. If the plaintiffs do not call Dr. Forbes to testify, then this
request would be moot.
7. The plaintiffs also contend that their settlement with Dr. Bishop moots Dr.
Neulander’s argument that they should be precluded from offering cumulative expert testimony.
See Whritenour Affidavit, ¶ 7. At this point, there appears to be no possibility that the plaintiffs
will call both Dr. Girard and Dr. Forbes to offer cumulative testimony. However, Dr. Neulander
does not agree that this request for relief is moot. One of the areas of potentially cumulative
testimony related to the decedent’s medical condition and course of treatment after he was admitted
to St. Joseph’s Hospital on July 27, 2016, the decision-making process that resulted in the decedent
being taken home for hospice care, and the cause of the decedent’s death. According to the
plaintiffs’ witness list, which was served on January 16, 2014, and is attached as Exhibit A, they
intend to call Kathryn Watson, M.D., who was one of the physicians who saw the decedent when
he was taken to St. Joseph’s Hospital on July 27, 2016. Dr. Neulander, therefore, respectfully
submits that, regardless of the settlement with Dr. Bishop, this Court should issue an order
precluding cumulative testimony.
8. The plaintiffs argue that “an unintentional typographical error” in their “prior
Motion papers” does not entitle Dr. Neulander to an order precluding them from offering or
eliciting evidence or testimony that misstates the dates and number of times Dr. Neulander saw
the decedent. See Whritenour Affidavit, ¶ 8. If the only issue were a single error in the opposition
papers the plaintiffs filed more than a year ago, Dr. Neulander would not have sought this relief.
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However, Dr. Neulander felt compelled to make this motion because the plaintiffs’ expert
disclosure repeated this error by referencing a visit that never occurred on July 25, 2016, and made
yet another error, by referring to a non-existent visit on July 29, 2016. Dr. Neulander, therefore,
respectfully submits that he should be granted a prophylactic order precluding the plaintiffs from
offering or eliciting any testimony or evidence, from Dr. Girard or otherwise, that misstates the
dates and number of times Dr. Neulander saw the decedent.
9. Dr. Neulander seeks an order precluding the plaintiffs from suggesting that the
photographs of the decedent, which were taken after he left James Square, fairly or accurately
reflect the decedent’s condition when he was seen by Dr. Neulander. There is no merit to the
plaintiffs’ argument in opposition that the photographs are relevant to “Dr. Neulander’s
credibility.” See Whritenour Affidavit, ¶ 10. These photographs were taken at least twelve days
after the decedent left James Square for the final time and there is no proof – and there will be
none at trial – that the ulcers (or the decedent himself) looked the same in the photographs as they
did at any time Dr. Neulander saw the decedent. 1 There is also no merit to the plaintiffs’ argument
that the limiting instructions requested by Dr. Neulander should not be given. See Whritenour
Affidavit, ¶ 10. The requests are supported by the case law Dr. Neulander cited, and the plaintiffs
have offered no contrary case law in opposition.
10. With respect to the number of photographs that will be shown to the jury, the issue
is not whether the plaintiffs intend to offer photographs that are duplicative. See Whritenour
Affidavit, ¶ 11. The issue is the prejudicial effect that will result from showing the jury dozens of
similar, graphic photographs, particularly when the plaintiffs also intend to offer potentially
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The decedent left James Square on July 27, 2016. According to the plaintiffs’ opposition, these
photographs were taken on August 8, 2016. See Whritenour Affidavit, ¶ 9.
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cumulative testimony from Amanda Dillon regarding the decedent’s condition. See Whritenour
Affidavit, ¶ 9. The plaintiffs have offered to make a proposal regarding which photographs they
wish to use at trial, and Dr. Neulander is open to the potential that the parties can agree on the
photographs. Short of that, however, he asks this Court to rule and to limit the photographs
appropriately.
11. The plaintiffs do not appear to dispute that, as a general matter, evidence of prior
medical malpractice actions and OPMC proceedings is inadmissible. See Whritenour Affidavit, ¶
13. However, based on a news article from 2010, they attempt to backdoor in the existence of
proceedings by questioning Dr. Neulander regarding an alleged suspension of his privileges.
According to the plaintiffs, this news article is inconsistent with Dr. Neulander’s deposition
testimony that his privileges had never been suspended. See Whritenour Affidavit, ¶ 12. However,
that news article is not “best evidence” of a prior suspension of privileges, and I submit that it is
an inaccurate representation of the facts and circumstances of Dr. Neulander’s privileges as they
existed in 2010. In fact, Dr. Neulander’s response to the question at the deposition was a truthful
response on an issue that is not relevant to this litigation.
12. Moreover, even if the article were accurate, the plaintiffs would only be able to ask
Dr. Neulander during cross-examination whether his privileges have been suspended in the past.
If his answer is inconsistent with his deposition testimony, only then can he be impeached with
that testimony. However, if he says that his privileges have not been suspended, the plaintiffs must
take Dr. Neulander’s answer without asking further questions, and they cannot offer any extrinsic
evidence on this collateral matter for the purposes of impeachment. See Mazella v. Beals, 27 NY3d
1083, 1094 (2016).
13. The case the plaintiffs cite, Alonso v. Powers, 220 AD2d 311 (4th Dept. 1995), does
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not stand for the proposition that a defendant-physician can be cross-examined about prior
privilege suspensions because they are relevant to credibility. Alonso involved the questioning of
an expert, not a defendant-physician who had given expert testimony on his own behalf. The
Court’s entire holding was as follows: “Defendant’s cross-examination of plaintiffs’ expert
regarding his suspensions from the practice of medicine was limited by the court, and to the extent
such questioning was allowed, it did not constitute an improvident exercise of discretion.” See
supra at 311 (citations omitted).
14. The plaintiffs have offered no case law to support their claim that Dr. Neulander
can be asked about prior medical malpractice actions and OMPC proceedings if he “attempts to
testify as an expert.” See Whritenour Affidavit, ¶ 13. Regardless, Dr. Neulander will only be
discussing the facts surrounding his care, and will affirm that he believes he met the standard of
care. Dr. Neulander’s expert testimony will come from other witnesses. In any case, even in
situations involving non-defendant experts, parties do not have unfettered latitude to ask such
questions. See Jacobs v. Madison Plastic Surgery, P.C., 106 AD3d 530 (1st Dept. 2013) (“The
trial court did not commit reversible error in allowing into evidence testimony concerning
plaintiff's expert's prior medical malpractice actions against her. This evidence was at most
harmless error, particularly since the same testimony was elicited from defendant's expert.”).
15. Finally, the plaintiffs represent that they will not mention Dr. Neulander’s brother,
Robert Neulander, in the presence of the jury. See Whritenour Affidavit, ¶ 14. However, since
even the plaintiffs recognize that this issue is likely to come up, at least during jury selection, the
special instruction requested by Dr. Neulander should be given. See Whritenour Affidavit, ¶ 14.
Taking the “wait and see” approach the plaintiffs appear to be advocating only has the potential to
result in prejudice to Dr. Neulander.
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THE PLAINTIFFS’ MOTION IN LIMINE SHOULD BE DENIED
16. Dr. Neulander also respectfully requests that this Court accept the following
argument in further opposition to the plaintiffs’ motion in limine.
17. According to the plaintiffs’ reply papers, their motion in limine seeks to preclude
any reference to their settlements with James Square and Dr. Bishop. See Whritenour Affidavit,
¶ 15. This is incorrect. When the plaintiffs made their motion, they had not yet settled with Dr.
Bishop. There is, therefore, no motion pending before this Court that seeks to preclude proof of
the eve-of-trial settlement with Dr. Bishop.
18. In any case, Dr. Neulander takes the same position he took with respect to the James
Square settlement, i.e., that at this point in time, he has no intention of mentioning the plaintiffs’
settlement with Dr. Bishop, but that he does not waive his right to offer such proof if a circumstance
arises in which it is relevant and/or admissible, and that the plaintiffs’ motion should be denied as
premature and overly broad.
19. There is also no merit to the plaintiffs’ apparent argument that evidence against
James Square and Dr. Bishop is not admissible at trial, and that James Square and Dr. Bishop
should not be on the verdict sheet. See Whritenour Affidavit, ¶¶ 15-16.
20. First, there can be absolutely no doubt that General Obligations Law § 15-108
applies. On this point, the plaintiffs offer nothing but vague, equivocal, and unsubstantiated
assertions that the claims against James Square, Dr. Bishop, and Dr. Neulander “differ somewhat,”
and that “it is not clear that each may be deemed joint tortfeasors.” See Whritenour Affidavit, ¶
15. However, the plaintiffs have very clearly alleged that James Square, Dr. Bishop, and Dr.
Neulander were all liable in tort for the same injuries and death that are at issue in this case.
Therefore, General Obligations Law § 15-108 applies.
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21. Second, there is no merit to the plaintiffs’ argument that the offsets should only be
addressed post-verdict. The case cited by the plaintiffs, Pollicina v. Misericordia Hospital
Medical Center, 82 NY2d 332 (1993), does not suggest that evidence of negligence and causation
relating to settling tortfeasors is not admissible at trial. In fact, in Pollicina, the jury actually
apportioned liability to some of the settling former defendants, which means that evidence of their
liability was offered at trial. The only step that was taken after the trial in Pollicina was the actual
mathematical computation of the offset, taking into consideration the settlement amounts and the
percentage apportionments made by the jury.
22. As Dr. Neulander argued in his initial opposition, improperly precluding him from
offering proof regarding the liability of settling tortfeasors would be significantly prejudicial and
patently erroneous. If Dr. Neulander is not permitted to offer proof that allows the jury to apportion
James Square’s and Dr. Bishop’s equitable shares of fault, he would be limited to an offset for the
amount of the settlements. See Whelan v. Kawasaki Motors Corp., 92 NY2d 288 (1998). This
would not only be unfair (particularly since the plaintiffs claim that their settlement with James
Square was “artificially low”) but an erroneous application of General Obligations Law § 15-108.
Dr. Neulander is entitled to an appropriate offset, regardless of whether evidence on that issue
“lengthen[s] the proof at trial.” See Whritenour Affidavit, ¶ 16.
WHEREFORE, your deponent requests an Order granting Dr. Neulander’s motion in
limine and (1) precluding the plaintiffs from offering evidence or testimony of any alleged
deviation from the standard of care by Dr. Neulander that was dismissed when this Court ruled on
Dr. Neulander’s motion for summary judgment and/or that was not identified in the general
surgeon affidavit they offered in opposition to Dr. Neulander’s motion for summary judgment; (2)
precluding the plaintiffs from offering any evidence or testimony from their internal medicine
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expert, Ray Forbes, M.D., regarding alleged deviations from the standard of care by Dr. Neulander;
(3) precluding the plaintiffs from offering cumulative evidence or testimony from their expert
witnesses; (4) precluding the plaintiffs from offering or eliciting evidence or testimony that
misstates the dates and number of times Dr. Neulander saw the decedent; (5) precluding the
plaintiffs from suggesting that the photographs of the decedent after his discharge from St.
Joseph’s Hospital fairly or accurately reflect his condition when he was seen by Dr. Neulander,
and for a limiting instruction, and limiting the number of photographs the plaintiffs can show the
jury; (6) precluding the plaintiffs from offering or eliciting any evidence or testimony regarding
prior medical malpractice actions or OPMC proceedings against Dr. Neulander, including
evidence or testimony regarding how those actions and/or proceedings were resolved; (7)
precluding the plaintiffs from mentioning Robert Neulander in the presence of the jury and for a
special instruction to the jury on this issue; an Order denying the plaintiffs’ motion in limine; and
for such other and further relief as to this Court seems just and proper.
Dated: January 18, 2024
___________________________________
Zachary M. Mattison, Esq.
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WORD COUNT CERTIFICATION
Pursuant to 22 NYCRR § 202.8-b
I hereby certify that the total number of words in the Affirmation in Reply and Further
Opposition, inclusive of point headings and footnotes, and exclusive of the caption, the table of
contents, table of authorities, and signature block, is 2649 words, which complies with the word
count limit.
Dated: January 18, 2024
_________________________
Zachary M. Mattison, Esq.
SUGARMAN LAW FIRM, LLP
Attorneys for Dr. Neulander
Office and Post Office Address
211 West Jefferson Street, Suite 20
Syracuse, New York 13202
Telephone: (315) 474-2943
zmattison@sugarmanlaw.com
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FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA ___________________________________________________ VALERIE AUSTIN and AMANDA DILLON, as co-administrators for the ESTATE OF LARRY C. AUSTIN, Plaintiffs, v. AFFIRMATION IN REPLY AND FURTHER OPPOSITION PAWAN K. RAO, M.D.; BRIAN CHANGLAI, M.D.; INDEX NO.: 007476/2018 JEANNE BISHOP, M.D.; and OVID NEULANDER, M.D., JUDGE: LAMENDOLA Defendants. ___________________________________________________ Zachary M. Mattison, Esq., pursuant to CPLR 2106, hereby affirms under penalty of perjury: 1. I am an attorney duly licensed to practice law in the State of New York, and a partner with the Sugarman Law Firm, LLP, attorneys for defendant Ovid Neulander, M.D. As such, I am fully familiar with the facts and circumstances set forth herein. 2. This reply affirmation is submitted in further support of Dr. Neulander’s motion in limine for an order limiting the proof offered by plaintiffs Valerie Austin and Amanda Dillon, as Co-Administrators for the Estate of Larry C. Austin (“plaintiffs”) at trial. Specifically, Dr. Neulander respectfully requests an order: (1) Precluding the plaintiffs from offering evidence or testimony of any alleged deviation from the standard of care by Dr. Neulander that was dismissed when this Court ruled on Dr. Neulander’s motion for summary judgment and/or that was not identified in the general surgeon affidavit they offered in opposition to Dr. Neulander’s motion for summary judgment; (2) Precluding the plaintiffs from offering any evidence or testimony from their internal medicine expert, Ray Forbes, M.D., regarding alleged deviations from the standard of care by Dr. Neulander; (3) Precluding the plaintiffs from offering cumulative evidence or testimony from their 1 1 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 expert witnesses; (4) Precluding the plaintiffs from offering or eliciting evidence or testimony that misstates the dates and number of times Dr. Neulander saw the decedent; (5) Precluding the plaintiffs from suggesting that the photographs of the decedent after his discharge from St. Joseph’s Hospital fairly or accurately reflect his condition when he was seen by Dr. Neulander, and for a limiting instruction, and limiting the number of photographs the plaintiffs can show the jury; (6) Precluding the plaintiffs from offering or eliciting any evidence or testimony regarding prior medical malpractice actions or OPMC proceedings against Dr. Neulander, including evidence or testimony regarding how those actions and/or proceedings were resolved; and (7) Precluding the plaintiffs from mentioning Robert Neulander in the presence of the jury and for a special instruction to the jury on this issue. 3. This affirmation is also submitted in further opposition to the plaintiffs’ motion in limine, which the plaintiffs are now attempting to expand to encompass their recent settlement with defendant Jeanne Bishop, M.D. DR. NEULANDER’S MOTION IN LIMINE SHOULD BE GRANTED 4. Dr. Neulander seeks an order precluding the plaintiffs from offering proof of alleged deviations that have been dismissed and/or that were not identified in their opposition to Dr. Neulander’s motion for summary judgment. This is not, as the plaintiffs claim, an “unfounded attempt” to limit their proof. See Attorney’s Reply Affidavit of Matthew E. Whritenour, Esq. (“Whritenour Affidavit”), ¶ 3. It is a proper request for relief, given this Court’s prior ruling on Dr. Neulander’s motion for summary judgment (which the plaintiffs do not dispute is the law of the case) and the content of the plaintiffs’ expert disclosure. 5. Notably, the plaintiffs make no attempt in their opposition to argue that some of the allegations in their expert disclosure are new and go beyond the affidavit Dr. Girard submitted in opposition to Dr. Neulander’s summary judgment motion. This includes, merely as one example, 2 2 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 the new allegation that Dr. Neulander should have done a wound culture. 6. The plaintiffs argue that, in light of their settlement with Dr. Bishop, the request that Dr. Forbes be precluded from offering proof regarding alleged deviations by Dr. Neulander is moot. See Whritenour Affidavit, ¶ 6. If the plaintiffs do not call Dr. Forbes to testify, then this request would be moot. 7. The plaintiffs also contend that their settlement with Dr. Bishop moots Dr. Neulander’s argument that they should be precluded from offering cumulative expert testimony. See Whritenour Affidavit, ¶ 7. At this point, there appears to be no possibility that the plaintiffs will call both Dr. Girard and Dr. Forbes to offer cumulative testimony. However, Dr. Neulander does not agree that this request for relief is moot. One of the areas of potentially cumulative testimony related to the decedent’s medical condition and course of treatment after he was admitted to St. Joseph’s Hospital on July 27, 2016, the decision-making process that resulted in the decedent being taken home for hospice care, and the cause of the decedent’s death. According to the plaintiffs’ witness list, which was served on January 16, 2014, and is attached as Exhibit A, they intend to call Kathryn Watson, M.D., who was one of the physicians who saw the decedent when he was taken to St. Joseph’s Hospital on July 27, 2016. Dr. Neulander, therefore, respectfully submits that, regardless of the settlement with Dr. Bishop, this Court should issue an order precluding cumulative testimony. 8. The plaintiffs argue that “an unintentional typographical error” in their “prior Motion papers” does not entitle Dr. Neulander to an order precluding them from offering or eliciting evidence or testimony that misstates the dates and number of times Dr. Neulander saw the decedent. See Whritenour Affidavit, ¶ 8. If the only issue were a single error in the opposition papers the plaintiffs filed more than a year ago, Dr. Neulander would not have sought this relief. 3 3 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 However, Dr. Neulander felt compelled to make this motion because the plaintiffs’ expert disclosure repeated this error by referencing a visit that never occurred on July 25, 2016, and made yet another error, by referring to a non-existent visit on July 29, 2016. Dr. Neulander, therefore, respectfully submits that he should be granted a prophylactic order precluding the plaintiffs from offering or eliciting any testimony or evidence, from Dr. Girard or otherwise, that misstates the dates and number of times Dr. Neulander saw the decedent. 9. Dr. Neulander seeks an order precluding the plaintiffs from suggesting that the photographs of the decedent, which were taken after he left James Square, fairly or accurately reflect the decedent’s condition when he was seen by Dr. Neulander. There is no merit to the plaintiffs’ argument in opposition that the photographs are relevant to “Dr. Neulander’s credibility.” See Whritenour Affidavit, ¶ 10. These photographs were taken at least twelve days after the decedent left James Square for the final time and there is no proof – and there will be none at trial – that the ulcers (or the decedent himself) looked the same in the photographs as they did at any time Dr. Neulander saw the decedent. 1 There is also no merit to the plaintiffs’ argument that the limiting instructions requested by Dr. Neulander should not be given. See Whritenour Affidavit, ¶ 10. The requests are supported by the case law Dr. Neulander cited, and the plaintiffs have offered no contrary case law in opposition. 10. With respect to the number of photographs that will be shown to the jury, the issue is not whether the plaintiffs intend to offer photographs that are duplicative. See Whritenour Affidavit, ¶ 11. The issue is the prejudicial effect that will result from showing the jury dozens of similar, graphic photographs, particularly when the plaintiffs also intend to offer potentially 1 The decedent left James Square on July 27, 2016. According to the plaintiffs’ opposition, these photographs were taken on August 8, 2016. See Whritenour Affidavit, ¶ 9. 4 4 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 cumulative testimony from Amanda Dillon regarding the decedent’s condition. See Whritenour Affidavit, ¶ 9. The plaintiffs have offered to make a proposal regarding which photographs they wish to use at trial, and Dr. Neulander is open to the potential that the parties can agree on the photographs. Short of that, however, he asks this Court to rule and to limit the photographs appropriately. 11. The plaintiffs do not appear to dispute that, as a general matter, evidence of prior medical malpractice actions and OPMC proceedings is inadmissible. See Whritenour Affidavit, ¶ 13. However, based on a news article from 2010, they attempt to backdoor in the existence of proceedings by questioning Dr. Neulander regarding an alleged suspension of his privileges. According to the plaintiffs, this news article is inconsistent with Dr. Neulander’s deposition testimony that his privileges had never been suspended. See Whritenour Affidavit, ¶ 12. However, that news article is not “best evidence” of a prior suspension of privileges, and I submit that it is an inaccurate representation of the facts and circumstances of Dr. Neulander’s privileges as they existed in 2010. In fact, Dr. Neulander’s response to the question at the deposition was a truthful response on an issue that is not relevant to this litigation. 12. Moreover, even if the article were accurate, the plaintiffs would only be able to ask Dr. Neulander during cross-examination whether his privileges have been suspended in the past. If his answer is inconsistent with his deposition testimony, only then can he be impeached with that testimony. However, if he says that his privileges have not been suspended, the plaintiffs must take Dr. Neulander’s answer without asking further questions, and they cannot offer any extrinsic evidence on this collateral matter for the purposes of impeachment. See Mazella v. Beals, 27 NY3d 1083, 1094 (2016). 13. The case the plaintiffs cite, Alonso v. Powers, 220 AD2d 311 (4th Dept. 1995), does 5 5 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 not stand for the proposition that a defendant-physician can be cross-examined about prior privilege suspensions because they are relevant to credibility. Alonso involved the questioning of an expert, not a defendant-physician who had given expert testimony on his own behalf. The Court’s entire holding was as follows: “Defendant’s cross-examination of plaintiffs’ expert regarding his suspensions from the practice of medicine was limited by the court, and to the extent such questioning was allowed, it did not constitute an improvident exercise of discretion.” See supra at 311 (citations omitted). 14. The plaintiffs have offered no case law to support their claim that Dr. Neulander can be asked about prior medical malpractice actions and OMPC proceedings if he “attempts to testify as an expert.” See Whritenour Affidavit, ¶ 13. Regardless, Dr. Neulander will only be discussing the facts surrounding his care, and will affirm that he believes he met the standard of care. Dr. Neulander’s expert testimony will come from other witnesses. In any case, even in situations involving non-defendant experts, parties do not have unfettered latitude to ask such questions. See Jacobs v. Madison Plastic Surgery, P.C., 106 AD3d 530 (1st Dept. 2013) (“The trial court did not commit reversible error in allowing into evidence testimony concerning plaintiff's expert's prior medical malpractice actions against her. This evidence was at most harmless error, particularly since the same testimony was elicited from defendant's expert.”). 15. Finally, the plaintiffs represent that they will not mention Dr. Neulander’s brother, Robert Neulander, in the presence of the jury. See Whritenour Affidavit, ¶ 14. However, since even the plaintiffs recognize that this issue is likely to come up, at least during jury selection, the special instruction requested by Dr. Neulander should be given. See Whritenour Affidavit, ¶ 14. Taking the “wait and see” approach the plaintiffs appear to be advocating only has the potential to result in prejudice to Dr. Neulander. 6 6 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 THE PLAINTIFFS’ MOTION IN LIMINE SHOULD BE DENIED 16. Dr. Neulander also respectfully requests that this Court accept the following argument in further opposition to the plaintiffs’ motion in limine. 17. According to the plaintiffs’ reply papers, their motion in limine seeks to preclude any reference to their settlements with James Square and Dr. Bishop. See Whritenour Affidavit, ¶ 15. This is incorrect. When the plaintiffs made their motion, they had not yet settled with Dr. Bishop. There is, therefore, no motion pending before this Court that seeks to preclude proof of the eve-of-trial settlement with Dr. Bishop. 18. In any case, Dr. Neulander takes the same position he took with respect to the James Square settlement, i.e., that at this point in time, he has no intention of mentioning the plaintiffs’ settlement with Dr. Bishop, but that he does not waive his right to offer such proof if a circumstance arises in which it is relevant and/or admissible, and that the plaintiffs’ motion should be denied as premature and overly broad. 19. There is also no merit to the plaintiffs’ apparent argument that evidence against James Square and Dr. Bishop is not admissible at trial, and that James Square and Dr. Bishop should not be on the verdict sheet. See Whritenour Affidavit, ¶¶ 15-16. 20. First, there can be absolutely no doubt that General Obligations Law § 15-108 applies. On this point, the plaintiffs offer nothing but vague, equivocal, and unsubstantiated assertions that the claims against James Square, Dr. Bishop, and Dr. Neulander “differ somewhat,” and that “it is not clear that each may be deemed joint tortfeasors.” See Whritenour Affidavit, ¶ 15. However, the plaintiffs have very clearly alleged that James Square, Dr. Bishop, and Dr. Neulander were all liable in tort for the same injuries and death that are at issue in this case. Therefore, General Obligations Law § 15-108 applies. 7 7 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 21. Second, there is no merit to the plaintiffs’ argument that the offsets should only be addressed post-verdict. The case cited by the plaintiffs, Pollicina v. Misericordia Hospital Medical Center, 82 NY2d 332 (1993), does not suggest that evidence of negligence and causation relating to settling tortfeasors is not admissible at trial. In fact, in Pollicina, the jury actually apportioned liability to some of the settling former defendants, which means that evidence of their liability was offered at trial. The only step that was taken after the trial in Pollicina was the actual mathematical computation of the offset, taking into consideration the settlement amounts and the percentage apportionments made by the jury. 22. As Dr. Neulander argued in his initial opposition, improperly precluding him from offering proof regarding the liability of settling tortfeasors would be significantly prejudicial and patently erroneous. If Dr. Neulander is not permitted to offer proof that allows the jury to apportion James Square’s and Dr. Bishop’s equitable shares of fault, he would be limited to an offset for the amount of the settlements. See Whelan v. Kawasaki Motors Corp., 92 NY2d 288 (1998). This would not only be unfair (particularly since the plaintiffs claim that their settlement with James Square was “artificially low”) but an erroneous application of General Obligations Law § 15-108. Dr. Neulander is entitled to an appropriate offset, regardless of whether evidence on that issue “lengthen[s] the proof at trial.” See Whritenour Affidavit, ¶ 16. WHEREFORE, your deponent requests an Order granting Dr. Neulander’s motion in limine and (1) precluding the plaintiffs from offering evidence or testimony of any alleged deviation from the standard of care by Dr. Neulander that was dismissed when this Court ruled on Dr. Neulander’s motion for summary judgment and/or that was not identified in the general surgeon affidavit they offered in opposition to Dr. Neulander’s motion for summary judgment; (2) precluding the plaintiffs from offering any evidence or testimony from their internal medicine 8 8 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 expert, Ray Forbes, M.D., regarding alleged deviations from the standard of care by Dr. Neulander; (3) precluding the plaintiffs from offering cumulative evidence or testimony from their expert witnesses; (4) precluding the plaintiffs from offering or eliciting evidence or testimony that misstates the dates and number of times Dr. Neulander saw the decedent; (5) precluding the plaintiffs from suggesting that the photographs of the decedent after his discharge from St. Joseph’s Hospital fairly or accurately reflect his condition when he was seen by Dr. Neulander, and for a limiting instruction, and limiting the number of photographs the plaintiffs can show the jury; (6) precluding the plaintiffs from offering or eliciting any evidence or testimony regarding prior medical malpractice actions or OPMC proceedings against Dr. Neulander, including evidence or testimony regarding how those actions and/or proceedings were resolved; (7) precluding the plaintiffs from mentioning Robert Neulander in the presence of the jury and for a special instruction to the jury on this issue; an Order denying the plaintiffs’ motion in limine; and for such other and further relief as to this Court seems just and proper. Dated: January 18, 2024 ___________________________________ Zachary M. Mattison, Esq. 9 9 of 10 FILED: ONONDAGA COUNTY CLERK 01/18/2024 03:57 PM INDEX NO. 007476/2018 NYSCEF DOC. NO. 320 RECEIVED NYSCEF: 01/18/2024 WORD COUNT CERTIFICATION Pursuant to 22 NYCRR § 202.8-b I hereby certify that the total number of words in the Affirmation in Reply and Further Opposition, inclusive of point headings and footnotes, and exclusive of the caption, the table of contents, table of authorities, and signature block, is 2649 words, which complies with the word count limit. Dated: January 18, 2024 _________________________ Zachary M. Mattison, Esq. SUGARMAN LAW FIRM, LLP Attorneys for Dr. Neulander Office and Post Office Address 211 West Jefferson Street, Suite 20 Syracuse, New York 13202 Telephone: (315) 474-2943 zmattison@sugarmanlaw.com 10 10 of 10