Mendez-Caton v. Caribbean Family Health Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STACEY MENDEZ-CATON and :

ALISTER CATON, :

:

:

Plaintiffs, : MEMORADUM & ORDER

-against- : 19-cv-1599 (DLI)(TAM)

:

UNITED STATES OF AMERICA, :

NYU LANGONE HEALTH, and :

JENNA SILVERSTEIN, M.D., :

:

Defendants. :

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DORA L. IRIZARRY, United States District Judge:

This medical malpractice action, resulting from alleged negligence in the provision of post-

partum care, is before the Court pursuant to 28 U.S.C. § 2675 and 28 U.S.C. § 1346. Am. Compl.,

Dkt. Entry No. 75. The parties certified the close of discovery on March 31, 2022. Joint Letter

Certifying the Close of Discovery, Dkt. Entry No. 58. Before the Court are the parties’ cross-

motions in limine, seeking to preclude the testimony of expert witnesses pursuant to Fed. R. of

Evidence 702 (“Rule 702”).

Stacey Mendez-Caton and Alister Caton (“Plaintiffs”) move to preclude the testimony of

the United States of America’s (the “Government”) medical expert, Dr. Ifath Hoskins, as well as

the testimony of NYU Langone Health’s and Dr. Jenna Silverstein’s (“NYU Defendants”) medical

expert, Dr. Thomasina Ellison. See, Pls.’ Mot. in Lim. (“Pls.’ MIL”), Dkt. Entry No. 118-2. The

Government and NYU Defendants each oppose Plaintiffs’ motion. See, USA Opp’n to Pls.’ MIL

(“USA Opp’n”), Dkt. Entry No. 120; NYU Defs.’ Opp’n to Pls.’ MIL (“NYU Opp’n”), Dkt. Entry

No. 119. Plaintiffs replied to each opposition. See, Pls.’ Reply to NYU (“Reply to NYU”), Dkt.

Entry No. 121-1; Pls.’ Reply to USA Opp’n (“Reply to USA”), Dkt. Entry No. 121-2.

expert witness, Dr. Burt Greenburg. See, USA Mot. in Lim. (“USA MIL”), Dkt. Entry No. 122;

NYU Mot. in Lim. (“NYU MIL”), Dkt. Entry No. 125. Plaintiffs opposed both motions. See,

Pls.’ Opp’n to USA MIL (“Pls.’ USA Opp’n”), Dkt. Entry No. 124; Pls.’ Opp’n to NYU MIL

(“Pls.’ NYU Opp’n”); Dkt. Entry No. 128. The Government and NYU Defendants replied in

support of their respective motions. See, USA Reply in Supp. of USA MIL (“USA Reply”), Dkt.

Entry No. 129; NYU Reply in Supp. of NYU MIL (“NYU Reply”), Dkt. Entry No. 126.

BACKGROUND

On September 5, 2017, Stacey Mendez-Caton (“Mendez-Caton”) was admitted to NYU

Langone Health/LM located at 150 55th Street, Brooklyn, New York pregnant and in labor. Am.

Compl. at ¶ 14. After giving birth by Caesarean section, Mendez-Caton suffered an injury to her

skin during post-partum care. Id. As Jenna Silverstein, M.D. (“Dr. Silverstein”), the resident-in-

charge, attempted to remove the dressing tape that was applied to her skin, “she removed much of

the skin with the tape.” Id.

Plaintiffs filed this action asserting negligence in the medical care Mendez-Caton received.

Id. at ¶¶ 15-18. Plaintiffs also make claim for loss of consortium. Id. at ¶¶ 19-21. Plaintiffs allege

that Mendez-Caton’s “permanent and severe injuries,” including scarring, resulted from

Defendants’ failure to adhere to appropriate standards of care, failure to provide sufficient post-

partum care, failure to listen to Mendez-Caton’s statements of pain and injury, and failure to

consult with specialists prior to proceeding. Id. at ¶¶ 16-17.

LEGAL STANDARD

Federal Rule of Evidence 104(a) provides that the admissibility of expert testimony is a

preliminary question of law for the court to determine. Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 592 (1993). The proponent of the testimony bears the burden of demonstrating its

admissibility by a preponderance of the evidence. See, Berk v. St. Vincent’s Hosp. and Med. Ctr.,

380 F. Supp.2d 334, 349 (S.D.N.Y. Aug. 11, 2005) (citations omitted).

The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of

Evidence. See, Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005). Rule 702 sets forth

a three-step inquiry to determine whether the testimony of a party’s proffered expert should be

deemed admissible. First, the court must review the relevance of the proposed expert’s testimony

to determine whether the conclusions it draws will aid the factfinder in answering the questions at

issue in the case. Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F. Supp.2d 334, 350 (S.D.N.Y.

Aug. 11, 2005). Second, the court must investigate the expert’s compliance with the provision of

Fed. R. Evid. 702 that requires an expert to be “qualified as an expert by knowledge, skill,

experience, training, or education.” Nimely, 414 F.3d at 395 n. 11.

Finally, the court must consider whether the testimony is reliable. To be reliable, expert

testimony must be based on sufficient facts or data, and it must be the product of reliable, properly

applied principles or methodology. “[P]roponents ‘do not have to demonstrate to the judge by a

preponderance of the evidence that the assessments of their experts are correct, they only have to

demonstrate by a preponderance of evidence that their opinions are reliable. . . . [t]he evidentiary

requirement of reliability is lower than the merits standard of correctness.’” Advisory Committee

Note to the 2000 amendment to Rule 702, quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d

717, 744 (3d Cir. 1994).

DISCUSSION

As an initial matter, it is helpful to clarify on which issues in this case a medical expert’s

testimony is needed to aid the factfinder, and, therefore, what type of expertise a proposed expert

should possess. From this common foundation, evaluation of each proposed expert’s

qualifications and proffered testimony can proceed.

Under New York Law, medical malpractice requires a showing of three elements: (1) the

standard of care in the locality where the treatment occurred; (2) that the defendants breached that

standard of care; and (3) that the breach of the standard was the proximate cause of injury.” In

most cases, each element “must be established by expert medical opinion.” Urena v. Yan Wolfson,

M.D., 2012 WL 958529, at *4 (E.D.N.Y. Mar. 20, 2012) (citing Hogan v. A.O. Fox Mem. Hosp.,

346 F. App'x 627, 630 (2d Cir. 2009) (summary order)). “[I]t is well-established that each element

[of medical malpractice] must be established by expert medical opinion unless the deviation from

a proper standard of care is so obvious as to be within the understanding of an ordinary layperson.”

Kawache v. United States, 2011 WL 441684, at *14 (E.D.N.Y. Feb. 7, 2011), aff'd, 471 F. App'x

10 (2d Cir. 2012) (citing Sitts v. United States, 811 F.2d at 739–40 (2d Cir. 1987)).

Here, the malpractice Plaintiffs complain of is Defendants’ failure to adhere to the standard

of care in the post-surgical use (including removal) of surgical bandages and tape following

Mendez-Caton’s Cesarean section. Am. Compl. at ¶¶ 14, 16. Therefore, the relevant expertise is

knowledge of the standard of care in the post-surgical use of these surgical bandages and tape in

September 2017. While experience with the use of surgical bandages and tape specifically

following a Cesarean section would be most directly on point and, thus, perhaps given more weight

by the finder of fact, this does not serve to preclude testimony by an expert who has extensive

experience with their use in other post-surgical contexts. In re Zyprexa Prods. Liab. Litig., 489 F.

Supp.2d 230, 282 (E.D.N.Y. 2007) (“Assertions that the witness lacks particular educational or

other experiential background, go to the weight, not the admissibility, of [the] testimony.”

(quotations omitted)).

I. Defendants’ Medical Experts

Plaintiffs move to preclude the testimony of the Government’s medical expert, Dr. Ifath

Hoskins (“Dr. Hoskins”) and NYU Defendants’ medical expert Dr. Thomasina Ellison (“Dr.

Ellison”). See, Pls.’ MIL.

A. Dr. Hoskins

Dr. Hoskins is the Director of Safety and Quality, in the Department of Obstetrics and

Gynecology (“OB/GYN”) at the NYU School of Medicine. USA Opp’n, Ex. B, Curriculum Vitae

(“CV”) of Dr. Hoskins (“Hoskins CV”), Dkt Entry No. 120-3. Dr. Hoskins reviewed medical

records, testimony and other evidence to produce a report and opinion as to whether Defendants

departed from the acceptable standard of care in their treatment of Mendez-Caton following her

Cesarean section. Hoskins Decl. Ex. B (“Hoskins 2d Rep.”) at 1, Dkt. Entry No. 122-10.

Dr. Hoskins begins her report by describing the conditions of pregnancy that led to

Mendez-Caton’s Cesarean section and her surgical medical history. Id. at 2. She then discusses

the surgery and the treatment following thereafter. Id. In detail, she describes the attempts to

remove the surgical dressing and the ultimate removal of the dressing. Id. She then summarizes

the remainder of the post-operative treatment as uneventful and proceeds to provide her opinions.

Id. at 3. Finally, she provides her opinion and conclusions. Id. at 3-4.

In sum, her opinion is that the post-operative treatment of Mendez-Caton did not deviate

from the standard of care. Id. She also explicitly contradicts some of Plaintiffs’ expert’s opinions

and conclusions. Id. Thus, her opinion is directly relevant to the issue of establishing the standard

of care and any departure or lack of departure from it. The Court concludes that Dr. Hoskins’

conclusions and opinion will aid the factfinder in determining key issues in this case.

Plaintiffs argue that the Court should preclude Dr. Hoskins from testifying because of bias

resulting from her employment with Defendants, her alleged attempt to create confusion through

inaccuracies in her report, and her unfamiliarity with Medical Adhesive Related Skin Injury

(“MARSI”) and the standard of care applicable in this case. Pls.’ MIL at 2, 13, 17, 19. The

Government counters that any potential bias of Dr. Hoskins does not affect the admissibility of the

testimony, only its weight, any inaccuracies in her initial report were unintentional and corrected

in her second report, and Dr. Hoskins has the relevant experience and qualifications to testify as

an expert in this case. USA Opp’n at 3-5, 10-11, 6-9.

1. Dr. Hoskin’s Qualifications

Plaintiffs concede that Dr. Hoskins has extensive experience in OB/GYN. Pls.’ MIL at 9-

10. However, Plaintiffs argue that this case is about skin injuries rather than OB/GYN care, and

Dr. Hoskins lacks expertise in this area. Id.

Based on Dr. Hoskins’ CV provided by the Government, the Court finds that Dr. Hoskins

is qualified as an expert in OB/GYN: (1) Dr. Hoskins is a Fellow of the American College of

Obstetricians and Gynecologists and the American College of Surgeons; (2) she is a board certified

OB/GYN, with a specialization in Maternal Fetal medicine; (3) she was a resident in OB/GYN at

the National Naval Medical Center from 1979-1982; (4) beginning in 1985 through today she has

been a practicing doctor in OB/GYN; (5) and since 1983 she has retained various faculty

appointments in OB/GYN. Of particular relevance to this case, Dr. Hoskins has extensive

experience in Cesarean sections, having performed several hundred in her career and has spent 35

years supervising and training OB/GYN residents in performing surgeries and managing patients

post-operation. Hoskins 2d Rep. at 1.

However, Plaintiffs argue that Dr. Hoskins’ OB/GYN expertise in is not relevant to the

injuries in the case because she testified that she has no experience with the injury causing

instrumentality and lacks relevant knowledge or experience to opine on post-surgical injuries or

use of silk surgical tape. Pls.’ MIL at 2-3, 11-12. Plaintiffs specifically identify as problematic

Dr. Hoskins’ testimony that she was unfamiliar with MARSI. Id. These arguments are unavailing.

As discussed above, Dr. Hoskins has extensive experience with medical care following

Cesarean sections, including the use of post-operative bandages and tape. Additionally, Dr.

Hoskins testified that she has experience with similar situations involving skin irritation or

reactions to post-operative adhesives. Depo. Trans. of Dr. Hoskins (“Hoskins Depo.”) at 16-18,

Dkt. Entry No. 120-2. With regard to her unfamiliarity with MARSI, her testimony merely shows

that she was unfamiliar with a specific acronym. This does not outweigh the evidence presented

of Dr. Hoskins’ extensive training and experience.

2. Reliability

Plaintiffs do not challenge the reliability of Dr. Hoskins’ application of her expertise to the

facts of the case. See, Pls. MIL. After reviewing her report and testimony, the Court is satisfied

that her conclusions are reliable. In addition to explaining the reasons for her conclusions in her

report, Dr. Hoskins testified extensively regarding the rationale for her conclusions. See generally,

Hoskins Depo. The injuries suffered by Mendez-Caton allegedly resulted from the use of surgical

dressings and tape following a Cesarean section. Am. Compl. at ¶¶ 14, 16. As discussed above,

Dr. Hoskins has extensive experience with medical care following Cesarean sections. Her report

and testimony adequately demonstrate that she applied her expertise in a reliable manner to the

pertinent facts and data of the case. Therefore, the Court finds that Dr. Hoskins’ testimony meets

the requirements of Rule 702.

3. Bias

Plaintiffs assert that Dr. Hoskins is biased in favor of Defendants as a result of her

employment at NYU. Pls.’ MIL at 10-11. They maintain that, in her various roles, Dr. Hoskins

had personal involvement with patient treatment at the treating location in this case, wrote

protocols that Mendez-Caton’s treating physicians would have followed, and has ongoing access

to privileged documents and information regarding this case. Id. Even assuming Plaintiffs’

contentions are true, they do not show that she is in essence “the defendant hospital,” as Plaintiffs

argue. Id. at 11. Rather, these arguments simply go to the weight and credibility of her testimony.

First, any meaningful working association Dr. Hoskins had with the hospital that treated

Mendez-Caton had long since concluded at the time of Mendez-Caton’s treatment. See, Hoskins

CV; Hoskins Depo. at 11-12. Dr. Hoskins’ CV shows that she has not worked at that location

since 2012 and she testified that her contacts in the intervening years have been minimal. Hoskins

CV; Hoskins Depo. at 11-12. Furthermore, Dr. Hoskins testified that she had no role in patient

safety at the location that treated Mendez-Caton. Hoskins Depo. at 13; 18-19.

Second, Plaintiffs’ assertion that the Court should preclude Dr. Hoskins testimony because

she was one author of a Cesarian birth protocol used by NYU Langone similarly is unavailing.

See, Pls.’ MIL at 10. Instead of disqualifying her, this further supports her expertise in the field

of OB/GYN. Third, even if Dr. Hoskins could review privileged documents, as Plaintiffs argue,

Plaintiffs do not establish that she did here. Id. at 10-11.

As a result, Plaintiffs have not established that Dr. Hoskin’s potential bias renders her

unable to testify. Plaintiffs may explore this potential bias on cross-examination. See, Hasemann

v. Gerber Prod. Co., 2024 WL 1282368, at *7 (E.D.N.Y. Mar. 25, 2024) (argument that a proffered

expert witness is an interested witness may be raised on cross-examination).

4. Report Inaccuracies

Plaintiffs do not provide any support for their proposition that Dr. Hoskins intentionally

inserted errors in her report to confuse the trier of fact. See, Pls.’ MIL at 4. Plaintiffs argue that

the Dr. Hoskins testified that the standard of care was to remove the tape and dressing on post-

operative day one and that she misstated that Mendez-Caton’s bandages were removed post-

operative day one when, in fact, they were removed on day two. Id. at 4. Nor do Plaintiffs explain

how this error was not cured by Dr. Hoskins’ correction of the error in her second report. See,

Hoskins 2d Rep.

In sum, Plaintiffs’ arguments for preclusion of Dr. Hoskins’ testimony are unavailing. The

Court finds that the preponderance of the evidence demonstrates that Dr. Hoskins is qualified to

testify and that her opinion is the result of reliable application of her expertise. Plaintiffs’ motion

to preclude Dr. Hoskins’ testimony is denied.

B. Dr. Ellison

Dr. Ellison is a Faculty Attending Physician and Associate Director of Benign Gynecology

at Maimonides Medical Center in Brooklyn, NY. Pls.’ MIL Ex. G, CV of Dr. Ellison (“Ellison

CV”), Dkt. Entry No. 118-5. Dr. Ellison reviewed the file materials, including medical records,

testimony and other evidence, relating to the treatment of Mendez-Caton following her Cesarean

section and provided an opinion as to whether Defendants departed from the acceptable standard

of care. NYU Opp’n Ex. A Report of Dr. Ellison (“Ellison Rep.”), Dkt. Entry No. 119

Dr. Ellison begins her report by summarizing Mendez-Caton’s relevant medical history

and the reasons for her Cesarean section on September 5, 2017. Id. She then describes the

treatment following the Cesarean section, including a detailed description of the process of

removal of the medical dressing covering the incision site. Id. at 2. Ultimately, Dr. Ellison opines

that Defendants did not deviate from accepted standards of care in their post-operative treatment

of Mendez-Caton. Id. at 2-3. Her opinion is directly relevant to the issue of establishing the

standard of care and Defendants’ adherence to this standard. The Court finds that Dr. Ellison’s

conclusions and opinion will aid the factfinder in determination of the ultimate issues in this case.

Plaintiffs argue that the Court should preclude Dr. Ellison’s testimony because she is

unfamiliar with skin related injuries and the type of tape adhesive used to treat Mendez-Caton, and

her conclusions are disconnected from the facts of the case. Pls.’ MIL at 14-21. The NYU

Defendants counter that Dr. Ellison is qualified to testify because she has extensive training and

experience in the relevant fields and that the conclusions of her report and proposed testimony are

well supported by the facts of this case. NYU Opp’n at 1, 8-9.

1. Dr. Ellison’s Qualifications

Plaintiffs acknowledge that Dr. Ellison is a “well credentialed physician within the

specialty of Obstetrics and Gynecology.” Pls.’ MIL at 3. However, Plaintiffs argue that she is not

an expert in skin injuries and should not be allowed to testify. Id.

Based on the CV provided for Dr. Ellison, the Court finds that Dr. Ellison is qualified. See,

Ellison CV. Specifically, Dr. Ellison’s CV shows that she: (1) is board certified as an OB/GYN;

(2) graduated medical school in 1988; (3) was a resident at SUNY-Downstate in the Department

of Obstetrics and Gynecology from 1988 to 1992 and was the chief resident from 1991-1992; (4)

has been employed as a OB/GYN physician at various hospitals since 1992; and (5) she has served

as a Professor of OB/GYN at various universities since 1992. Id.

Despite these qualifications, Plaintiffs argue that Dr. Ellison’s opinion on skin injuries

should be precluded because she testified in her deposition that she is unfamiliar with MARSI, the

rule of nines, and the classification of skin injuries. Pls.’ MIL at 14-19 (citing Ex. B to NYU

Opp’n, Ellison Depo. Trans. (“Ellison Depo.”) at 43, Dkt. Entry No. 119). However, the NYU

Defendants counter, and Plaintiffs do not dispute, that MARSI is a term used in an article in a

nursing journal, which was not disclosed in advance of Dr. Ellison’s deposition, not subject to peer

review, and sponsored by a surgical tape company. NYU Opp’n at 3, Reply to NYU. At most,

Plaintiffs have demonstrated Dr. Ellison’s lack of familiarity with this acronym. Without more,

this does little to undermine Dr. Ellison’s extensive experience with treatment following Cesarean

sections and ability to testify as an expert.

Plaintiffs also fail to demonstrate why Dr. Ellison’s lack of familiarity with the “rule of

nines” supports excluding her testimony. NYU Defendants assert that the rule of nines is used for

burn victims. NYU Opp’n at 3. In their reply, Plaintiffs do not challenge this assertion or explain

how the rule of nines is applicable in this case, which does not involve burns. See, Reply to NYU.

Similarly, Dr. Ellison’s statement that she “would not” classify Mendez-Caton’s injuries,

is inadequate to serve as a basis to exclude her testimony. See, Ellison Depo. at 54. In context,

Dr. Ellison’s statement is simply her assertion that she would not classify the injuries because

either they were not severe enough to warrant classification or she could not do so based on the

images shown. As a result, this statement does not provide warrant preclusion of Dr. Ellison’s

testimony.

2. Reliability

Plaintiffs maintain that Dr. Ellison’s opinion that an allergic reaction caused Mendez-

Caton’s injuries must be precluded because it lacks factual support and Dr. Ellison is not trained

in the field of allergens and is not an allergist. Pls.’ MIL at 6-7. NYU Defendants counter that

Dr. Ellison’s opinion is based on the reliable application of her experience and expertise to the

facts of this case. NYU Opp’n at 6.

Dr. Ellison testified that her opinion and conclusions were based on her nearly thirty years

of clinical experience and her review of the file materials. Ellison Depo. at 86-87, 25. The file

materials included the summons and complaint in both the state action and the federal court action,

the bill of particulars served in the state court action, records of NYU Lutheran Medical Center,

records of the Caribbean-American Family Health Center, photographs taken by Mendez-Caton,

photographs taken of Mendez-Caton, report of William Rosenblatt, M.D., and transcripts of the

deposition testimony of Mendez-Caton, Alister Caton, Jenna Silverstein, M.D., Raisa Ibragimov,

M.D., Gail Besson, M.D., Sam Shahem, and Erika Ryan, M.D. Report of Thomasena Ellison

(“Ellison Report”), Dkt. Entry No. 94-25. Dr. Ellison testified that she has seen skin reactions like

those suffered by Mendez-Canton in rare instances. Ellison Depo. at 86-87.

This testimony adequately demonstrates that she applied her expertise in a reliable manner

to the pertinent facts and data of the case. Therefore, the Court finds that Dr. Ellison’s testimony

meets the requirements of Rule 702. Plaintiffs’ motion to preclude Dr. Ellison’s testimony is

denied.

II. Plaintiff’s Medical Expert

Dr. Burt Greenberg (“Dr. Greenberg”) is a board-certified plastic surgeon with his own

private practice in New York. Depo. Trans. of Dr. Greenberg at 10-11. (“Greenberg Depo.”), Dkt.

Entry No. 52-1. Dr. Greenberg was asked to review the medical records, testimony and other

evidence in this case, as well as perform an examination of Mendez-Caton in order to provide a

report and opinion as to whether Defendants departed from the acceptable standard of care in their

treatment of Mendez-Caton following her Cesarean section. Second Rep. of Dr. Greenberg

(“Greenberg 2d Rep.”) at 6, Dkt. Entry No. 42.

Dr. Greenberg begins his report by discussing the testimony of Dr. Besson regarding

Mendez-Caton’s post-Cesarean section treatment. Id. at 7. He next describes the attempts to

remove the tape and the ultimately successful removal of the tape and bandage. Id. He also

provides details regarding the amount of skin that was removed and discrepancies between the

notes of the attending physician, Dr. Shahem, and the measurements of the resident-in-charge, Dr.

Jenna Silverstein. Id. Dr. Greenberg describes his examination of Mendez-Caton and his

measurements of the scarred areas. Id. at 7-8. Finally, Dr. Greenberg provides his opinion and

conclusions regarding the medical treatment received by Mendez-Caton. Id. at 8-9.

In sum, Dr. Greenberg’s opinion is that Mendez-Caton’s injuries were the result of

Defendants’ departure from the standard of care in specific areas. Id. at 8-9. He also discusses

the areas of his disagreement with Defendants’ experts’ opinions. Id. at 9. Thus, his opinion is

directly relevant to the issue of establishing the standard of care and whether Defendants departed

from this standard. As a result, the Court concludes that Dr. Greenberg’s conclusions and opinion

will aid the factfinder in determining key issues in this case.

However, the Government and NYU Defendants both seek to preclude Dr. Greenberg’s

testimony because he lacks relevant expertise to testify and his opinion is not the result of reliably

applied principles and methods to the facts of this case. Plaintiffs counter that Dr. Greenberg’s

experience and training as a plastic surgeon provides sufficient expertise to allow him to testify as

an expert in this case and that he reliably applied his expertise to the facts of this case.

1. Dr. Greenberg’s Qualifications

Defendants argue that Dr. Greenberg should be precluded from testifying because he is a

plastic surgeon and he lacks training, knowledge, and experience in OB/GYN to testify as to the

standard of care in this case. USA MIL at 9-11; NYU MIL at 8-12. Plaintiffs counter that Dr.

Greenberg is an expert in plastic surgery and, thus, is qualified to opine on the treatment of skin

injuries. Pls. Opp’n at 5-8. Plaintiffs contend that this is appropriate because the Amended

Complaint alleges that the injuries resulted from the care and treatment of a wound. Id. at 6.

Based on Dr. Greenberg’s CV and his deposition testimony, the Court finds that Dr.

Greenberg is qualified to testify. Dr. Greenberg: (1) is a board-certified plastic surgeon with more

than forty years of experience; (2) teaches residents and medical students from Hofstra Medical

School and Northwell Hospital; (3) previously was board-certified in general surgery; (4) regularly

performs surgical procedures; (5) has served as an expert in plastic surgery in other cases; and (6)

regularly uses postsurgical skin adhesives. See, Greenberg Depo. at 10-23. Dr. Greenberg testified

that he was prepared to offer an expert opinion “on the management of the skin tear injury.”

Greenberg Depo. at 13-14. More specifically, he would offer an opinion on the use of postsurgical

skin adhesives, which he stated he uses “every single day” and has forty years of experience with.

Id. at 15-16.

Defendants do not dispute that Dr. Greenberg is an expert in plastic surgery. See, USA

MIL at 10; NYU MIL at 8. Instead, they contend that his expertise is not relevant in this case

because he is not an expert in OB/GYN surgery or medicine. USA MIL at 10-11; NYU MIL at 8-

12. In response, Plaintiffs argue that OB/GYN expertise is irrelevant to evaluating the medical

treatment and injury in this case and that, instead, the relevant expertise is in wound care, in which

Dr. Greenberg has ample experience. Pls.’ Opp’n at 2, 5-6.

When assessing a whether an expert should be permitted to testify, courts look at the totality

of the witness' qualifications and must ensure that the issues or subject matters on which the expert

opines are within that area of expertise. Bee v. Novartis Pharms. Corp., 18 F. Supp.3d 268, 300

(E.D.N.Y. 2014) (citing Rosco, Inc. v. Mirror Lite Co., 506 F. Supp.2d 137, 144–45 (E.D.N.Y.

2007). While Dr. Greenberg does not practice in OB/GYN, he nonetheless works with surgical

bandages “every day” and handles their removal himself. This places the subject matter of post-

operative use of surgical bandages and tape firmly within his area of expertise.

The injuries in this case result from the removal of post-surgical bandages and tape.

Necessary to, but absent from, Defendant’s argument that OB/GYN experience is required, is some

support for the proposition that the standard of care for the use of post-surgical bandages and tape

is distinct when used to cover a Cesarean section incision, as opposed to another surgical incision,

requiring OB/GYN expertise. Thus, despite Defendants’ insistence that a witness must have

OB/GYN expertise to testify regarding the applicable standard of care in this case, there is nothing

about Mendez-Caton’s injuries in this case that supports this requirement.

2. Reliability

Defendants contend that Dr. Greenberg’s conclusions and opinions are unsupported by

facts in the record and/or are irrelevant to the issues in the case. USA MIL at 2, 11-20; NYU MIL

at 4-7. Plaintiffs oppose, arguing the Dr. Greenberg’s opinion and conclusions are reliable and

that Defendants may raise their arguments on cross-examination. Pls.’ Opp’n at 8-10, 10-12.

Dr. Greenberg testified at length regarding how he formed his opinions regarding the

medical treatment in this case. See, Greenberg Depo. He discussed why he believes that the initial

attempts to remove the surgical tape were negligent. Id. at 44-46, 55. He also discussed the basis

for his belief that the treatment of the areas where skin had been removed was negligent. Id. at 58.

In addition to his review of the file materials and the MARSI article, Dr. Greenberg examined

Mendez-Caton himself. Greenberg 2d Rep. The Court is satisfied that the preponderance of the

evidence shows Dr. Greenberg’s report and opinion are the result of the reliable application of his

expertise to the facts of the case.

Defendants have not identified any issue with Dr. Greenberg’s report or testimony that

compels preclusion of his testimony. First, to the extent Defendants argue that Dr. Greenberg’s

opinions are not based on facts in the record, they may raise these issues on cross-examination.

Weaknesses in the foundation for an expert’s “opinions ‘are fair ground for cross-examination, but

they are not a basis for preclusion.’” Lane v. Am. Airlines, Inc., 2024 WL 1200074, at *18

(E.D.N.Y. Mar. 20, 2024) (quoting Vazquez v. City of New York, 2014 WL 4388497, at *12

(S.D.N.Y. Sept. 5, 2014)). Second, to the extent that Defendants argue that Dr. Greenberg’s

opinions on certain topics are irrelevant, they may object to his testimony on these points. See,

USA MIL at 17, 18.

Therefore, the Court finds that Dr. Greenberg’s testimony meets the requirements of Rule

702. Defendants’ motions to preclude Dr. Greenberg’s testimony are denied.

CONCLUSION

For the reasons set forth above, the motions in limine of the Plaintiffs, the Government,

and NYU Defendants are denied.

SO ORDERED.

Dated: Brooklyn, New York

September 30, 2024

/s/

DORA L. IRIZARRY

United States District Judge