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183
4/21/2021
COMMONWEALTH OF MASSACHUSETS
ESSEX, SS SUPERIOR COURT
SABA HASHEM, individually, and as a *
Member of, and derivatively on behalf of, *
D’ANGELO and HASHEM, LLC. *
Plaintiff * Civil Action No. 1677-CV-01419
*
v. *
*
STEPHEN L. D’ANGELO, D’ANGELO *
LAW GROUP, LLC, and D’ANGELO *
AND HASHEM, LLC. *
Defendants *
*
v. *
*
JENNIFER M. CARRION *
Plaintiff-Intervenor *
MOTION IN LIMINE
Defendants move to exclude the testimony of Matthew Fogelman, Esq. who has been
disclosed as an expert by Intervenor-Plaintiff in the Joint Pre-Trial Memorandum to offer
testimony regarding the practice of offering referral fees, presumably in certain types of cases
as follows:
Intervenor Plaintiff intends to call as an expert witness, Matthew Fogelman
Esquire, of Fogelman & Fogelman, LLC, Newton, MA, (617) 559-0201,
mif@fogelmanlawfirm.com. His CV is attached hereto. His expert testimony will
establish that in the period that D' Angelo LLC received attorney's fees compensation
from November 5, 2015 through the present it was or is the customary practice in the
Massachusetts legal community for one third (1/3) referral fees of the ultimate legal
fee recovered to be paid to the attorney or law firm that provided services or referred
the client to the attorney performing the legal work resulting in the client's
recovery…” See Joint Pre-Trial Memorandum, Docket No. 93, P. 32 of 35.
Attorney Fogelman’s testimony in no way relates to any element of Intervenor-Plaintiff’s
case, which is limited to whether any fraudulent transfer took place. Referral fees between
attorneys are irrelevant.
Additionally, it is cumulative and potentially confusing to the jury of, and because
Plaintiff himself intends to offer the very same “expert” testimony in support of his case
against the Defendants, where arguably the amount of referral fees is an element of his claims
as to what the Defendants may owe him. Plaintiff Saba Hashem in the Joint Pre-Trial
Memorandum has disclosed his expertise and intent to offer his ”expert” opinion as follows:
“Plaintiff intends to call Saba Hashem as an expert witness. From his admission to the
Massachusetts Bar on June 14, 1999 until his temporary suspension on December 29,
2015, Saba Hashem's practice consisted almost exclusively of representing injured
parties in civil actions against third parties causing those injuries and in matters
before the Industrial Accident Board. During the over fifteen years he was in active
practice he was a member of the Massachusetts Bar Association (MBA),
Massachusetts Academy of Trial Attorneys (MATA)... He knows from those
experiences and his over fifteen years of active practice, and will testify that itwas,
and remains, the practice and custom in the Massachusetts legal community for
referral fees of one third (1/3) of the ultimate legal fee recovered to be paid to the
attorney or law firm that provided or referred the client to the attorney performing the
legal work that ultimately results in a recovery for the client and a fee for the attorney
performing the work. He, and firms with which he was associated, including D & H
LLC, paid and received one third (1/3) referral fees…”
Finally, Mr. Fogelman’s proffered testimony will not assist the jury, is not needed to assist
the jury, and most importantly, it is irrelevant to any if Intervenor-Plaintiff’s claims of
violation(s) of the Massachusetts Uniform Transfer Act. (“MUFTA”), specifically Section 5 or 6
of Chapter 109A, or to any amounts allegedly owed by Stephen L. D’Angelo as a result of any
violation, the elements of said statutory claim which first need to be proved. Inclusion of this
expert testimony, is therefore a waste of time, capable of causing confusion and substantial
prejudice that clearly outweighs any relevance, of which there is none, and in no way relates to
Intervenor-Plaintiff’s remaining claims before the Jury.
Commonwealth v. Schuchardt , 408 Mass. 347, 350 (1990), See also Commonwealth v.
Kennedy , 389 Mass. 308, 310 (1983) (citing with approval Proposed Mass. R. Evid. 401).
Reliance is placed upon the trial judge’s discretion to exclude evidence whose probative
value is “substantially outweighed” by risk of unfair prejudice, confusion, or waste of
time. Commonwealth v. Bonds , 445 Mass. 821, 831 (2006). Ruszcyk v. Secretary of Pub.
Safety , 401 Mass. 418, 423 (1988) (adopting the principles expressed in Proposed Mass. R.
Evid. 403). See Commonwealth v. Bonds , 445 Mass. 821, 831 (2006); Gath v. M/A-Com,
Inc. , 440 Mass. 482, 490–491 (2003); Commonwealth v. Beausoleil , 397 Mass. 206, 217
(1986); Commonwealth v. Cruz , 53 Mass. App. Ct. 393, 407–408 (2001). Rooker v. Fidelity
Trust Co., 263 U.S. 413-415; District of Columbia Court of Appeals v. Feldman, 460 U.S.
462 (1983). (Emphasis added.)
Respectfully Submitted,
Defendants, Stephen L. D’Angelo,
Individually, and D’Angelo Law Group,
LLC
By their Attorney
Date: April 21, 2021 /s/Thomas C. LaPorte_____
Thomas C. LaPorte, Esquire
BBO #634194
COSSINGHAM LAW OFFICE, PC
30 Massachusetts Ave., Suite 404
North Andover, MA 01845
Tel: 978-685-5686
kcossingham@cossinghamlaw.com
tlaporte@cossinghamlaw.com
CERTIFICATE OF SERVICE
I state that on this day a copy of the foregoing Motion in Limine has been e-filed with
Essex Superior Court and served on the following via email through the court’s electronic filing
system to all attorneys and to all other parties who have entered electronic service contacts
(email addresses) in this case. I am mailing or hand delivering copies to all other interested
parties.
Mernaysa Rivera-Bujosa, Esq.
Rivera Bujosa Law, PC
Shipway Place, Unit C2
The Charlestown Navy Yard
Charlestown, MA 02129
mernaysa@riverabujosalaw.com
Saba Hashem
318 Broadway
Methuen, MA 01844
shceh@yahoo.com
Dated: April 21, 2021 /s/ Thomas C. LaPorte_________________
Thomas C. LaPorte, Esquire
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183 4/21/2021 COMMONWEALTH OF MASSACHUSETS ESSEX, SS SUPERIOR COURT SABA HASHEM, individually, and as a * Member of, and derivatively on behalf of, * D’ANGELO and HASHEM, LLC. * Plaintiff * Civil Action No. 1677-CV-01419 * v. * * STEPHEN L. D’ANGELO, D’ANGELO * LAW GROUP, LLC, and D’ANGELO * AND HASHEM, LLC. * Defendants * * v. * * JENNIFER M. CARRION * Plaintiff-Intervenor * MOTION IN LIMINE Defendants move to exclude the testimony of Matthew Fogelman, Esq. who has been disclosed as an expert by Intervenor-Plaintiff in the Joint Pre-Trial Memorandum to offer testimony regarding the practice of offering referral fees, presumably in certain types of cases as follows: Intervenor Plaintiff intends to call as an expert witness, Matthew Fogelman Esquire, of Fogelman & Fogelman, LLC, Newton, MA, (617) 559-0201, mif@fogelmanlawfirm.com. His CV is attached hereto. His expert testimony will establish that in the period that D' Angelo LLC received attorney's fees compensation from November 5, 2015 through the present it was or is the customary practice in the Massachusetts legal community for one third (1/3) referral fees of the ultimate legal fee recovered to be paid to the attorney or law firm that provided services or referred the client to the attorney performing the legal work resulting in the client's recovery…” See Joint Pre-Trial Memorandum, Docket No. 93, P. 32 of 35. Attorney Fogelman’s testimony in no way relates to any element of Intervenor-Plaintiff’s case, which is limited to whether any fraudulent transfer took place. Referral fees between attorneys are irrelevant. Additionally, it is cumulative and potentially confusing to the jury of, and because Plaintiff himself intends to offer the very same “expert” testimony in support of his case against the Defendants, where arguably the amount of referral fees is an element of his claims as to what the Defendants may owe him. Plaintiff Saba Hashem in the Joint Pre-Trial Memorandum has disclosed his expertise and intent to offer his ”expert” opinion as follows: “Plaintiff intends to call Saba Hashem as an expert witness. From his admission to the Massachusetts Bar on June 14, 1999 until his temporary suspension on December 29, 2015, Saba Hashem's practice consisted almost exclusively of representing injured parties in civil actions against third parties causing those injuries and in matters before the Industrial Accident Board. During the over fifteen years he was in active practice he was a member of the Massachusetts Bar Association (MBA), Massachusetts Academy of Trial Attorneys (MATA)... He knows from those experiences and his over fifteen years of active practice, and will testify that itwas, and remains, the practice and custom in the Massachusetts legal community for referral fees of one third (1/3) of the ultimate legal fee recovered to be paid to the attorney or law firm that provided or referred the client to the attorney performing the legal work that ultimately results in a recovery for the client and a fee for the attorney performing the work. He, and firms with which he was associated, including D & H LLC, paid and received one third (1/3) referral fees…” Finally, Mr. Fogelman’s proffered testimony will not assist the jury, is not needed to assist the jury, and most importantly, it is irrelevant to any if Intervenor-Plaintiff’s claims of violation(s) of the Massachusetts Uniform Transfer Act. (“MUFTA”), specifically Section 5 or 6 of Chapter 109A, or to any amounts allegedly owed by Stephen L. D’Angelo as a result of any violation, the elements of said statutory claim which first need to be proved. Inclusion of this expert testimony, is therefore a waste of time, capable of causing confusion and substantial prejudice that clearly outweighs any relevance, of which there is none, and in no way relates to Intervenor-Plaintiff’s remaining claims before the Jury. Commonwealth v. Schuchardt , 408 Mass. 347, 350 (1990), See also Commonwealth v. Kennedy , 389 Mass. 308, 310 (1983) (citing with approval Proposed Mass. R. Evid. 401). Reliance is placed upon the trial judge’s discretion to exclude evidence whose probative value is “substantially outweighed” by risk of unfair prejudice, confusion, or waste of time. Commonwealth v. Bonds , 445 Mass. 821, 831 (2006). Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 423 (1988) (adopting the principles expressed in Proposed Mass. R. Evid. 403). See Commonwealth v. Bonds , 445 Mass. 821, 831 (2006); Gath v. M/A-Com, Inc. , 440 Mass. 482, 490–491 (2003); Commonwealth v. Beausoleil , 397 Mass. 206, 217 (1986); Commonwealth v. Cruz , 53 Mass. App. Ct. 393, 407–408 (2001). Rooker v. Fidelity Trust Co., 263 U.S. 413-415; District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). (Emphasis added.) Respectfully Submitted, Defendants, Stephen L. D’Angelo, Individually, and D’Angelo Law Group, LLC By their Attorney Date: April 21, 2021 /s/Thomas C. LaPorte_____ Thomas C. LaPorte, Esquire BBO #634194 COSSINGHAM LAW OFFICE, PC 30 Massachusetts Ave., Suite 404 North Andover, MA 01845 Tel: 978-685-5686 kcossingham@cossinghamlaw.com tlaporte@cossinghamlaw.com CERTIFICATE OF SERVICE I state that on this day a copy of the foregoing Motion in Limine has been e-filed with Essex Superior Court and served on the following via email through the court’s electronic filing system to all attorneys and to all other parties who have entered electronic service contacts (email addresses) in this case. I am mailing or hand delivering copies to all other interested parties. Mernaysa Rivera-Bujosa, Esq. Rivera Bujosa Law, PC Shipway Place, Unit C2 The Charlestown Navy Yard Charlestown, MA 02129 mernaysa@riverabujosalaw.com Saba Hashem 318 Broadway Methuen, MA 01844 shceh@yahoo.com Dated: April 21, 2021 /s/ Thomas C. LaPorte_________________ Thomas C. LaPorte, Esquire