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Date Filed 2/23/2024 2:44 PM
Superior Court - Suffolk
Docket Number 1984CV01018 BC
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
CA NO. 1984CV01018A 16
JAMES ZANFARDINO, JR., PERSONAL
REPRESENTATIVE OF THE ESTATE OF
JAMES ZANFARDINO,
Plaintiffs,
Vv.
TSUYOSHI KANEKO,
Defendant.
DEFENDANT, TSUYOSHI KANEKO, M.D.’S MOTION IN LIMINE ON VARIOUS
MATTERS
Now comes the Defendant, Tsuyoshi Kaneko, M.D. (hereinafter, “Dr. Kaneko” or
“defendant”), and hereby respectfully move this Honorable Court in limine for an order barring
any order to:
I Limit and enjoin the plaintiff, his attorneys, and his witnesses from making
reference to the following matters at trial:
1 Any and all reference to liability insurance. See Goldstein v. Gontarz, 364
Mass. 800, 808 (1974). This prohibition includes, but is not limited to, direct or indirect
references to insurance, insurance companies, insurance coverage, insurance adjustors or
investigators, counsel retained by insurance companies, statements made to insurance
adjustors or investigators, and any other similar references or allusions to insurers or
insurance coverage.
2 Any reference to any other medical claims against the defendant.
(propensity and prior bad acts objection).
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3 Any and all references by plaintiff's counsel, whether in the opening,
closing or during trial, that imply or state directly or indirectly that the jury should “send a
message” to the medical profession, and/or that the jury should “punish” or “teach a lesson”
to the defendant, and that they do so by reaching a verdict in favor of the plaintiff or
statements of a similar nature. See Luz v. Stop & Shop, Inc., 348 Mass. 198, 207-08
(1964); London v. Bay State St. Ry. Co., 231 Mass. 480,485 (1919) (finding it improper to
appeal to jury in violation of their duty as jurors).
4 Any and all references by plaintiffs counsel, either in the opening, closing,
or during trial, that refers to hypothetical damages in other circumstances, or verdicts in
other cases. This prohibition includes, but is not limited to, analogies to verdicts in other
cases, the cost of advertising on television and/or radio, professional athlete salaries, the
cost for a crashed airplane, or the price of paintings or other collectibles. See Gath v. M/A-
Cc ‘om, Inc., 440 Mass. 482, 495 (2003).
5 Any and all reference in the opening, closing or during the trial to the idea
that any of the defendant was grossly negligent and/or outrageous in behavior.
6 Any reference by the plaintiff and/or his witnesses to any statements
allegedly made by other health care providers critical in any way of the care provided by
the defendant. (hearsay objection).
7 Any and all reference to the fact that a medical malpractice tribunal was not
demanded pursuant to M.G.L. c. 260, §60B. See Beeler v. Downey, 387 Mass. 609 (1982).
8 Any reference by the plaintiff and/or his witnesses to any medical literature
that has not been noticed pursuant to M.G.L. c. 233, § 79C (hearsay objection) or without
any otherwise proper foundation.
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Superior Court - Suffolk
Docket Number 1984CV01018
9 Any expert witness testimony and/or evidence that has not been seasonably
disclosed. Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984) (single expert identified two
days before trial excluded from testifying where party seeking failed to give seasonable
notice of testimony); see also Cassano v. Gogos, 20 Mass. App. Ct. 348, 355 (1985); Com.
v. Trapp, 423 Mass. 356, 364-65 (1996) (Court has discretion to exclude late-discovered
evidence).
10. Any reference by plaintiff's counsel regarding putting the jury in the
plaintiffs shoes or statements of a similar nature. See Santos v. Chrysler Corp., 430 Mass.
198 (1999).
11. Any statements by plaintiff's counsel regarding what they personally
believe. See Santos, 430 Mass. 198, 213-14; Warren v. Edge Co, Inc., 8 Mass. App. Ct.
171, 177-78 (1979) (noting references to one’s personal beliefs or life experiences is
improper).
Il. A ruling by the Court that issues regarding offset under the medical malpractice
statute, specifically including but not limited to collateral sources of payment of medical bills, be
dealt with administratively by the Court after a post-verdict hearing, if necessary, to establish such
items.
Respectfully submitted,
The Defendant,
Tsuyoshi Kaneko, M.D.,
By his Attorneys,
/s/ Victoria C. Goetz Berlyand
Brian H. Sullivan, Esq. BBO#629236
Victoria C. Goetz Berlyand, Esq. BBO#697060
Sloane and Walsh, LLP
One Boston Place, 16th Floor
Boston, MA 02108
bsullivan@sloanewalsh.com
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Date Filed 2/23/2024 2:44 PM
Superior Court - Suffolk
Docket Number 1984CV01018
vg oct: o 5
sloancwalsh.com
3228527.v1
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Date Filed 2/23/2024 2:44 PM Superior Court - Suffolk Docket Number 1984CV01018 BC COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT CA NO. 1984CV01018A 16 JAMES ZANFARDINO, JR., PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES ZANFARDINO, Plaintiffs, Vv. TSUYOSHI KANEKO, Defendant. DEFENDANT, TSUYOSHI KANEKO, M.D.’S MOTION IN LIMINE ON VARIOUS MATTERS Now comes the Defendant, Tsuyoshi Kaneko, M.D. (hereinafter, “Dr. Kaneko” or “defendant”), and hereby respectfully move this Honorable Court in limine for an order barring any order to: I Limit and enjoin the plaintiff, his attorneys, and his witnesses from making reference to the following matters at trial: 1 Any and all reference to liability insurance. See Goldstein v. Gontarz, 364 Mass. 800, 808 (1974). This prohibition includes, but is not limited to, direct or indirect references to insurance, insurance companies, insurance coverage, insurance adjustors or investigators, counsel retained by insurance companies, statements made to insurance adjustors or investigators, and any other similar references or allusions to insurers or insurance coverage. 2 Any reference to any other medical claims against the defendant. (propensity and prior bad acts objection). 3228527.v1 Date Filed 2/23/2024 2:44 PM Superior Court - Suffolk Docket Number 1984CV01018 3 Any and all references by plaintiff's counsel, whether in the opening, closing or during trial, that imply or state directly or indirectly that the jury should “send a message” to the medical profession, and/or that the jury should “punish” or “teach a lesson” to the defendant, and that they do so by reaching a verdict in favor of the plaintiff or statements of a similar nature. See Luz v. Stop & Shop, Inc., 348 Mass. 198, 207-08 (1964); London v. Bay State St. Ry. Co., 231 Mass. 480,485 (1919) (finding it improper to appeal to jury in violation of their duty as jurors). 4 Any and all references by plaintiffs counsel, either in the opening, closing, or during trial, that refers to hypothetical damages in other circumstances, or verdicts in other cases. This prohibition includes, but is not limited to, analogies to verdicts in other cases, the cost of advertising on television and/or radio, professional athlete salaries, the cost for a crashed airplane, or the price of paintings or other collectibles. See Gath v. M/A- Cc ‘om, Inc., 440 Mass. 482, 495 (2003). 5 Any and all reference in the opening, closing or during the trial to the idea that any of the defendant was grossly negligent and/or outrageous in behavior. 6 Any reference by the plaintiff and/or his witnesses to any statements allegedly made by other health care providers critical in any way of the care provided by the defendant. (hearsay objection). 7 Any and all reference to the fact that a medical malpractice tribunal was not demanded pursuant to M.G.L. c. 260, §60B. See Beeler v. Downey, 387 Mass. 609 (1982). 8 Any reference by the plaintiff and/or his witnesses to any medical literature that has not been noticed pursuant to M.G.L. c. 233, § 79C (hearsay objection) or without any otherwise proper foundation. 3228527.v1 Date Filed 2/23/2024 2:44 PM Superior Court - Suffolk Docket Number 1984CV01018 9 Any expert witness testimony and/or evidence that has not been seasonably disclosed. Kearns v. Ellis, 18 Mass. App. Ct. 923, 924 (1984) (single expert identified two days before trial excluded from testifying where party seeking failed to give seasonable notice of testimony); see also Cassano v. Gogos, 20 Mass. App. Ct. 348, 355 (1985); Com. v. Trapp, 423 Mass. 356, 364-65 (1996) (Court has discretion to exclude late-discovered evidence). 10. Any reference by plaintiff's counsel regarding putting the jury in the plaintiffs shoes or statements of a similar nature. See Santos v. Chrysler Corp., 430 Mass. 198 (1999). 11. Any statements by plaintiff's counsel regarding what they personally believe. See Santos, 430 Mass. 198, 213-14; Warren v. Edge Co, Inc., 8 Mass. App. Ct. 171, 177-78 (1979) (noting references to one’s personal beliefs or life experiences is improper). Il. A ruling by the Court that issues regarding offset under the medical malpractice statute, specifically including but not limited to collateral sources of payment of medical bills, be dealt with administratively by the Court after a post-verdict hearing, if necessary, to establish such items. Respectfully submitted, The Defendant, Tsuyoshi Kaneko, M.D., By his Attorneys, /s/ Victoria C. Goetz Berlyand Brian H. Sullivan, Esq. BBO#629236 Victoria C. Goetz Berlyand, Esq. BBO#697060 Sloane and Walsh, LLP One Boston Place, 16th Floor Boston, MA 02108 bsullivan@sloanewalsh.com 3228527.v1 Date Filed 2/23/2024 2:44 PM Superior Court - Suffolk Docket Number 1984CV01018 vg oct: o 5 sloancwalsh.com 3228527.v1