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Date Filed 3/27/2024 3:19 PM Vd1
Superior Court - Plymouth iy
Docket Number 1483CV01004
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COMMONWEALTH OF MASSACHUSETTS
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,UPERIOR COURT i fi
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PLYMOUTH, ss.
IVILSUPERI
AGTIQN ING; lii
OR COURT DEPT. OF THE TRIAL COURT
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PLYMOUTH COUNTY
JOHN NUNES, i
Plaintiff
Vv.
WAR 27 2004 Hd
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SARAH DUFFY, and
C.A. GELDMACHER, INC., Ga.
III
Clerk of Court
Defendants
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DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY OF
UNDISCLOSED EXPERT DR. LINDSAY YORNS
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The defendants, Sarah Duffy (“Duffy”) and C.A. Geldmacher, Inc. (“Geldmacher”), i
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hereby move this Court to enter an order in limine excluding any and all evidence, testimony, or! ! My
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reference at trial to Plaintiff John Nunes’ (“Nunes”) purported expert Dr. Lindsay Yorns. hey
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FACTUAL BACKGROUND AND PROCEDURAL POSTURE
This case arises out of a traffic accident on May 15, 2014. The complaint in this matter
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was filed on September 22, 2014. The original discovery deadline was January 19, 2016. A
Final Pre-Trial Conference was held on December 12, 2017. The first jury trial was held from
July 16-19, 2018. It concluded with a jury verdict for both defendants. The Appeals Court
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vacated the judgment and the case was remanded for further proceedings on August 25, 302 ,. |i
The Court then ordered a Final Pre-Trial Conference for July 17, 2023 and a second jury tral t ||
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commence on July 24, 2023. Both of these latter events went forward as scheduled. i
Nunes’ current co-counsel, Owen P. McGowan, filed an appearance in this case on June
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15, 2023. Since his entry into the case, Attorney McGowan has tried multiple times to reopen
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discovery and/or introduce new testimony and evidence outside the record of this case! For
example, prior to the second jury trial, on July 5, 2023, Attorney McGowan filed an Emergency
Motion to Compel the Further Production of Documents Including Interviews and Statements
103479010
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Date Filed 3/27/2024 3:19 PM
Superior Court - Plymouth
Docket Number 1483CV01004
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Provided to Defendant Sarah Duffy’s Insurer (Paper #78). Judge McGuire DENIED that motion,
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noting that the discovery deadline had long passed (Paper #107). Undeterred, on July 6, 2023, i
Nunes filed an Emergency Motion to Enforce the Keeper of Records Subpoena that was served i
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upon Safety Insurance (Paper #79). Judge McGuire also DENIED that motion citing that the | Ha
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discovery deadline had passed (Paper #107). it
On the third day of the second jury trial — July 26, 2023 — Judge McGuire declared a : :
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mistrial based upon Mr. McGowan’s misconduct during the trial. Judge McGuire ordered that
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Attorney McGowan withdraw from the case and thereafter rescheduled ajury trial in this matter |
for April 8, 2024.
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Nunes moved for reinstatement of Attorney McGowan as counsel on September! 22,) i
2023. That motion was denied. Nunes again moved for reinstatement of Attorney McGowan asi
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counsel on December 5, 2023 (Paper 118). That motion was again denied. On January 2, 2024,
the Court relented and allowed Attorney McGowan to be reinstated as counsel for Nunes under
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certain conditions — among them, Attorney McGowan was prohibited from offering opening or
closing statements and from questioning witnesses he had questioned in the July 2023 tral
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Attorney McGowan, whose participation in the case was ostensibly limited, then moved again t
re-open discovery as to medical issues (Paper 124). Defendants opposed this motion. The Court
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has not ruled on this motion.
During the initial discovery period in this case — a period which concluded more than
eight (8) years ago — both defendants propounded interrogatories to the plaintiff Nunes
requesting expert disclosures. To date, Nunes has identified one expert — a proposed “accident
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reconstruction expert” named Stephen Benanti. Nunes has never supplemented this respon:
Me
Ise. |
Nunes now indicates that he intends to offer expert testimony from’ one Dr. Lindsay Yorns :
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Beth Israel Deaconess Medical Center, apparently regarding medical treatment received by
103479010
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Date Filed 3/27/2024 3:19 PM
‘Superior Court - Plymouth
Docket Number 1483CV01004
Nunes from July 5, 2023 through November 29, 2023 — more than nine (9) years after the
accident. At no point in these lengthy proceedings did Nunes supplement his discovery
responses to identify Dr. Yorns as an expert witness. Nunes has not offered any expert
disclosures or report regarding Dr. Yorns’ proposed testimony. Dr. Yorns has not been deposed
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in this matter.
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ARGUMENT it
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Rule 26(b)(4)(A)(i) of the Massachusetts Rules of Civil Procedure expressly provides:
A party may through interrogatories require any other party to ji
identify each person whom the other party expects to call as an
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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. ||
The court may preclude expert testimony where the plaintiff fails to comply with Rule 26! i
See Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 225 (1999); Kearns v. Ellis, 18 Mass!
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App. Ct. 923, 924-925, rev. denied 393 Mass. 1102 (1984).
Here, Nunes has failed to provide the requisite expert disclosures under Rule
26(b)(4)(A)(i). Indeed, Nunes failed completely to identify Dr. Yorns as a proposed expert
witness until well after the close of discovery. Defendants cannot adequately prepare cross-
examination of Dr. Yorns for purposes of trial without the required disclosures and an
opportunity to depose Dr. Yorns. As such, this Court should deny Nunes’s belated efforts to
offer Dr. Yorns as an expert at trial of this matter.
CONCLUSION
In light of the foregoing, the defendants, Sarah Duffy and C.A Geldmacher, Ine.,|) | |
respectfully request that this Honorable Court enter an order in limine excluding any and all! tet
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evidence, testimony, or reference at trial to Dr. Lindsay Yorns.
103479010
Date Filed 3/27/2024 3:19 PM
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Superior Court - Plymouth
Docket Number 1483CV01004
Defendant, Defendant,
SARAH DUFFY C.A. GELDMACHER, INC.
By Her Attorneys By Its Attorneys,
/s/Thomas A. Murphy /s/Robert M. Mack
Thomas A. Murphy, Esq., BBO #675434 Robert M. Mack, BBO #549369
tmurphy@lynchlynch.com rmack@morrisonmahoney.com
LYNCH & LYNCH MORRISON MAHONEY LLP
45 Bristol Drive 1500 Main Street, Suite 2400
South Easton MA 02375 Post Office Box 15387
Phone: (508) 230-2500 Springfield MA 01115-5387
Fax: (508) 230-2510 Phone: (413) 737-4373 {i
Fax: (413) 739-3125
CERTIFICATE OF SERVICE
I, Robert M. Mack, attorney for the defendant, C.A. Geldmacher, Inc., hereby certify that
I have this day served the foregoing DEFENDANT’S MOTION IN LIMINE TO EXCLUDE, i
TESTIMONY OF UNDISCLOSED EXPERT DR. LINDSAY YORNS by serving same via
email to:
t
Owen P. McGowan, Esq. Thomas A. Murphy, Esq.
McGowan & Associates Lynch & Lynch
80 Washington Street, C-20 45 Bristol Drive
Norwell MA 02061 South Easton MA 02375
Southshorelaw@aol.com tmurphy@lynchlynch.com
Ift
Dated: March 27, 2024 Attorney: /s/Robert M. Mack
Robert M. Mack
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103479010
Preview
Milfs fi Date Filed 3/27/2024 3:19 PM Vd1 Superior Court - Plymouth iy Docket Number 1483CV01004 | {i COMMONWEALTH OF MASSACHUSETTS if ,UPERIOR COURT i fi ODO PLYMOUTH, ss. IVILSUPERI AGTIQN ING; lii OR COURT DEPT. OF THE TRIAL COURT ii PLYMOUTH COUNTY JOHN NUNES, i Plaintiff Vv. WAR 27 2004 Hd it he hy SARAH DUFFY, and C.A. GELDMACHER, INC., Ga. III Clerk of Court Defendants I DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE TESTIMONY OF UNDISCLOSED EXPERT DR. LINDSAY YORNS | i The defendants, Sarah Duffy (“Duffy”) and C.A. Geldmacher, Inc. (“Geldmacher”), i Jor hereby move this Court to enter an order in limine excluding any and all evidence, testimony, or! ! My 1| il | I ha reference at trial to Plaintiff John Nunes’ (“Nunes”) purported expert Dr. Lindsay Yorns. hey 1 ( \ i FACTUAL BACKGROUND AND PROCEDURAL POSTURE This case arises out of a traffic accident on May 15, 2014. The complaint in this matter iy was filed on September 22, 2014. The original discovery deadline was January 19, 2016. A Final Pre-Trial Conference was held on December 12, 2017. The first jury trial was held from July 16-19, 2018. It concluded with a jury verdict for both defendants. The Appeals Court |! vacated the judgment and the case was remanded for further proceedings on August 25, 302 ,. |i The Court then ordered a Final Pre-Trial Conference for July 17, 2023 and a second jury tral t || i commence on July 24, 2023. Both of these latter events went forward as scheduled. i Nunes’ current co-counsel, Owen P. McGowan, filed an appearance in this case on June | | 15, 2023. Since his entry into the case, Attorney McGowan has tried multiple times to reopen | | i discovery and/or introduce new testimony and evidence outside the record of this case! For example, prior to the second jury trial, on July 5, 2023, Attorney McGowan filed an Emergency Motion to Compel the Further Production of Documents Including Interviews and Statements 103479010 Py ' i | je Date Filed 3/27/2024 3:19 PM Superior Court - Plymouth Docket Number 1483CV01004 II , ji | ! Provided to Defendant Sarah Duffy’s Insurer (Paper #78). Judge McGuire DENIED that motion, | noting that the discovery deadline had long passed (Paper #107). Undeterred, on July 6, 2023, i Nunes filed an Emergency Motion to Enforce the Keeper of Records Subpoena that was served i || il t upon Safety Insurance (Paper #79). Judge McGuire also DENIED that motion citing that the | Ha i| discovery deadline had passed (Paper #107). it On the third day of the second jury trial — July 26, 2023 — Judge McGuire declared a : : }{ it | 1 mistrial based upon Mr. McGowan’s misconduct during the trial. Judge McGuire ordered that i: Attorney McGowan withdraw from the case and thereafter rescheduled ajury trial in this matter | for April 8, 2024. ' I; i ' 1 Nunes moved for reinstatement of Attorney McGowan as counsel on September! 22,) i 2023. That motion was denied. Nunes again moved for reinstatement of Attorney McGowan asi |I I counsel on December 5, 2023 (Paper 118). That motion was again denied. On January 2, 2024, the Court relented and allowed Attorney McGowan to be reinstated as counsel for Nunes under it certain conditions — among them, Attorney McGowan was prohibited from offering opening or closing statements and from questioning witnesses he had questioned in the July 2023 tral |4 Attorney McGowan, whose participation in the case was ostensibly limited, then moved again t re-open discovery as to medical issues (Paper 124). Defendants opposed this motion. The Court 1 1 has not ruled on this motion. During the initial discovery period in this case — a period which concluded more than eight (8) years ago — both defendants propounded interrogatories to the plaintiff Nunes requesting expert disclosures. To date, Nunes has identified one expert — a proposed “accident i reconstruction expert” named Stephen Benanti. Nunes has never supplemented this respon: Me Ise. | Nunes now indicates that he intends to offer expert testimony from’ one Dr. Lindsay Yorns : | | | Beth Israel Deaconess Medical Center, apparently regarding medical treatment received by 103479010 i i 1 | ‘il Date Filed 3/27/2024 3:19 PM ‘Superior Court - Plymouth Docket Number 1483CV01004 Nunes from July 5, 2023 through November 29, 2023 — more than nine (9) years after the accident. At no point in these lengthy proceedings did Nunes supplement his discovery responses to identify Dr. Yorns as an expert witness. Nunes has not offered any expert disclosures or report regarding Dr. Yorns’ proposed testimony. Dr. Yorns has not been deposed | in this matter. i! i ARGUMENT it it Rule 26(b)(4)(A)(i) of the Massachusetts Rules of Civil Procedure expressly provides: A party may through interrogatories require any other party to ji identify each person whom the other party expects to call as an {I 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. || The court may preclude expert testimony where the plaintiff fails to comply with Rule 26! i See Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 225 (1999); Kearns v. Ellis, 18 Mass! } App. Ct. 923, 924-925, rev. denied 393 Mass. 1102 (1984). Here, Nunes has failed to provide the requisite expert disclosures under Rule 26(b)(4)(A)(i). Indeed, Nunes failed completely to identify Dr. Yorns as a proposed expert witness until well after the close of discovery. Defendants cannot adequately prepare cross- examination of Dr. Yorns for purposes of trial without the required disclosures and an opportunity to depose Dr. Yorns. As such, this Court should deny Nunes’s belated efforts to offer Dr. Yorns as an expert at trial of this matter. CONCLUSION In light of the foregoing, the defendants, Sarah Duffy and C.A Geldmacher, Ine.,|) | | respectfully request that this Honorable Court enter an order in limine excluding any and all! tet uf evidence, testimony, or reference at trial to Dr. Lindsay Yorns. 103479010 Date Filed 3/27/2024 3:19 PM i | Superior Court - Plymouth Docket Number 1483CV01004 Defendant, Defendant, SARAH DUFFY C.A. GELDMACHER, INC. By Her Attorneys By Its Attorneys, /s/Thomas A. Murphy /s/Robert M. Mack Thomas A. Murphy, Esq., BBO #675434 Robert M. Mack, BBO #549369 tmurphy@lynchlynch.com rmack@morrisonmahoney.com LYNCH & LYNCH MORRISON MAHONEY LLP 45 Bristol Drive 1500 Main Street, Suite 2400 South Easton MA 02375 Post Office Box 15387 Phone: (508) 230-2500 Springfield MA 01115-5387 Fax: (508) 230-2510 Phone: (413) 737-4373 {i Fax: (413) 739-3125 CERTIFICATE OF SERVICE I, Robert M. Mack, attorney for the defendant, C.A. Geldmacher, Inc., hereby certify that I have this day served the foregoing DEFENDANT’S MOTION IN LIMINE TO EXCLUDE, i TESTIMONY OF UNDISCLOSED EXPERT DR. LINDSAY YORNS by serving same via email to: t Owen P. McGowan, Esq. Thomas A. Murphy, Esq. McGowan & Associates Lynch & Lynch 80 Washington Street, C-20 45 Bristol Drive Norwell MA 02061 South Easton MA 02375 Southshorelaw@aol.com tmurphy@lynchlynch.com Ift Dated: March 27, 2024 Attorney: /s/Robert M. Mack Robert M. Mack I 103479010