Guerrero v. Loiacono

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSE GUERRERO,

Plaintiff, MEMORANDUM & ORDER

No. 19-cv-06239 (KAM)

- against - (SJB)

CHARLES LOIACONO and COSTCO

WHOLESALE CORPORATION,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Before the Court are Defendants’ pre-trial motions. (ECF Nos.

49, 52, 55, 58.) For the reasons below, the Court rules as follows:

- Defendants’ motion to preclude Plaintiff’s expert, Dr.

Stanislav Avshalumov, D.O., from testifying as to

Plaintiff’s need for future knee replacement surgery is

DENIED. (See infra Discussion Section I.A.)

- Defendants’ motion to preclude Plaintiff’s expert, Dr.

George DiGiacinto, M.D., from testifying as to Plaintiff’s

likelihood of future surgery due to adjacent segment

degeneration in the cervical and lumbar spine is GRANTED.

(See infra Discussion Section I.B.)

- Defendants’ motion to preclude Plaintiff’s expert, Dr.

Barry Root, M.D., from testifying as to Plaintiff’s need

for future surgery and medical treatment as projected in

Dr. Root’s “Life Care Plan” is DENIED. (See infra

Discussion Section I.C.)

- Defendants’ motion to preclude Plaintiff’s counsel from

referencing specific numerical figures for damages is

GRANTED IN PART and DENIED IN PART. (See infra Discussion

Section II.)

BACKGROUND

The Court assumes familiarity with the underlying facts but

will briefly describe those relevant to the instant motions. The

Court refers to its Summary Judgment Memorandum and Order for

additional factual background. (See ECF No. 37.)

Jose Guerrero (“Plaintiff”), a New York resident, commenced

this action against Defendants Charles Loiacono (“Loiacono”), a

New Jersey resident, and Costco Wholesale Corporation (“Costco”),

a Washington State corporation with its principal place of business

in Washington, in the Supreme Court of Kings County, on April 8,

2019. (ECF No. 1, Petition for Removal (“Rem. Pet.”) ¶¶ 2, 10-11.)

On January 5, 2019, Plaintiff and Loiacono, who was driving

a vehicle on behalf of Costco, were involved in a vehicle collision

on the Brooklyn Queens Expressway (the “BQE”) in Brooklyn, New

York. (ECF No. 37 at 1.) Plaintiff asserts that Defendants were

negligent, and the alleged negligence was the sole proximate cause

of the collision, because Defendant Loiacono made an unsafe lane

change in violation of New York Vehicle and Traffic Law §§ 1128(a)

and 1163(a). (Id. at 20.)

On November 5, 2019, Defendants timely removed this action to

the Eastern District of New York under 28 U.S.C. §§ 1441 and

1446(b), following Plaintiff’s October 31, 2019 response to an Ad

Damnum Demand that clarified the amount in controversy exceeded

$75,000, noting alleged sustained damages of approximately

$10,000,000. (Rem. Pet. ¶¶ 6-17.) The Court has diversity

jurisdiction pursuant to 28 U.S.C. § 1332(a).

On August 24, 2023, this Court denied Plaintiff’s motion for

summary judgment on the issue of liability. (ECF No. 37.) In

anticipation of trial, Defendants filed four pre-trial motions.

LEGAL STANDARD

I. Motions in Limine

“The purpose of a motion in limine is to allow the trial court

to rule in advance of trial on the admissibility and relevance of

certain forecasted evidence.” Hopkins v. Nat'l R.R. Passenger

Corp., No. 08-cv-2965 (NGG) (RML), 2016 WL 8711718, at *2 (E.D.N.Y.

Apr. 29, 2016); see also Luce v. United States, 469 U.S. 38, 40

n.2 (1984) (defining such motions as “any motion, whether made

before or during trial, to exclude anticipated prejudicial

evidence before the evidence is actually offered”). “Evidence

should be excluded on a motion in limine only when the evidence is

clearly inadmissible on all potential grounds.” United States v.

Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001) (citation

omitted). “[C]ourts considering a motion in limine may reserve

decision until trial, so that the motion is placed in the

appropriate factual context.” Jean-Laurent v. Hennessy, 840 F.

Supp. 2d 529, 536 (E.D.N.Y. 2011) (citation omitted). Further, a

district court's ruling on a motion in limine is preliminary and

“subject to change when the case unfolds.” Luce, 469 U.S. at 41.

II. Federal Rule of Evidence 702

Federal Rule of Evidence (“FRE”) 702 states that “[a] witness

who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or

otherwise if the proponent demonstrates to the court that it is

more likely than not that:

(a) the expert's scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert’s opinion reflects a reliable application of

the principles and methods to the facts of the case.”

The proponent of expert testimony bears the burden of

establishing by a preponderance of the evidence that FRE 702’s

admissibility requirements are satisfied. See United States v.

Williams, 506 F.3d 151, 160 (2d Cir. 2007).

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), the Supreme Court established the district court’s

gatekeeping role in assessing the admissibility of scientific

evidence. See id. at 589. The gatekeeping role ensures that an

“expert's testimony both rests on a reliable foundation and is

relevant to the task at hand.” Id. at 597. Further, the Daubert

gatekeeping obligation applies “not only to testimony based on

‘scientific’ knowledge, but also to testimony based on ‘technical’

and ‘other specialized’ knowledge.” Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 141 (1999).

Before permitting expert testimony under Rule 702, “the court

must make the following findings: (1) the witness is qualified to

be an expert; (2) the opinion is based upon reliable data and

methodology; and (3) the expert's testimony on a particular issue

will ‘assist the trier of fact.’” In re Payment Card Interchange

Fee and Merch. Disc. Antitrust Litig., 638 F. Supp. 3d 227, 242

(E.D.N.Y. 2022) (quoting Nimely v. City of New York, 414 F.3d 381,

396–97 (2d Cir. 2005)).

A. Witness Qualifications

“Federal Rule of Evidence 702(a) permits a district court to

admit the expert testimony of a witness ‘who is qualified as an

expert by knowledge, skill, experience, training, or education.’”

United States v. Arslanouk, 853 F. App'x 714, 718 (2d Cir. 2021).

“If the expert has educational and experiential qualifications in

a general field closely related to the subject matter in question,

the court will not exclude the testimony solely on the ground that

the witness lacks expertise in the specialized areas that are

directly pertinent.” In re Zyprexa Prods. Liab. Litig., 489 F.

Supp. 2d 230, 282 (E.D.N.Y. 2007) (citation omitted). “Even if a

proposed expert lacks formal training in a given area, he may still

have ‘practical experience’ or ‘specialized knowledge’ qualifying

him to give opinion testimony under Rule 702.” Lickteig v. Cerberus

Cap. Mgmt., L.P., 589 F. Supp. 3d 302, 328 (S.D.N.Y. 2022) (citing

McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir. 1995)).

B. Reliability

Regarding reliability, “the district court should consider

the indicia of reliability identified in Rule 702, namely, (1)

that the testimony is grounded on sufficient facts or data; (2)

that the testimony is the product of reliable principles and

methods; and (3) that the witness has applied the principles and

methods reliably to the facts of the case.” Williams, 506 F.3d at

160 (quoting Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d

256, 265 (2d Cir. 2002) (internal quotation marks omitted)).

“Expert opinions based on insufficient facts or data, or on

unsupported suppositions [are] not acceptable. Anecdotal evidence

and ‘generalized assumptions’ are inadequate bases for an expert

report.” In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d at 284

(internal citations omitted). Further, “[e]xpert testimony should

be excluded if it is ‘speculative or conjectural.’” In re Payment

Card Interchange Fee and Merch. Disc. Antitrust Litig., 638 F.

Supp. 3d at 242 (quoting United States v. Jones, 965 F.3d 149, 162

(2d Cir. 2020)).

In Daubert, the Supreme Court enumerated factors “bearing on

reliability that district courts may consider: (1) whether a theory

or technique has been or can be tested; (2) ‘whether the theory or

technique has been subjected to peer review and publication;’ (3)

the technique's ‘known or potential rate of error’ and ‘the

existence and maintenance of standards controlling the technique's

operation;’ and (4) whether a particular technique or theory has

gained general acceptance in the relevant scientific community.”

Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593–94).

The test of reliability is “flexible,” and Daubert's factors are

not exclusive; “[r]ather, the law grants a district court the same

broad latitude when it decides how to determine reliability as it

enjoys in respect to its ultimate reliability determination.”

Kumho Tire Co., 526 U.S. at 141–42 (emphasis in original) (citing

General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997)).

In turn, “Daubert instructs a district court to ‘focus on the

principles and methodology employed by the expert, without regard

to the conclusions the expert has reached or the district court's

belief as to the correctness of those conclusions.’” Bustamante v.

KIND, LLC, 100 F.4th 419, 427 (2d Cir. 2024) (citation omitted).

However, “Rule 702 also requires that there be a sufficiently

reliable connection between the methodology and the expert's

conclusions for such conclusions to be admissible.” Marini v.

Adamo, 995 F. Supp. 2d 155, 180 (E.D.N.Y. 2014) (citing Joiner,

522 U.S. at 146). Thus, “when an expert opinion is based on data,

a methodology, or studies that are simply inadequate to support

the conclusions reached, Daubert and Rule 702 mandate the exclusion

of that unreliable opinion testimony.” Amorgianos, 303 F.3d at

266; see Nimely, 414 F.3d at 396 (“[N]othing in either Daubert or

the Federal Rules of Evidence requires a district court to admit

opinion evidence which is connected to existing data only by the

ipse dixit of the expert. A court may conclude that there is simply

too great an analytical gap between the data and the opinion

proffered.” (alteration in original) (quoting Joiner, 522 U.S. at

146)).

The Second Circuit has cautioned, however, that courts

“should only exclude [expert] evidence if the flaw [in the expert's

reasoning or methodology] is large enough that the expert lacks

‘good grounds’ for his or her conclusions,” Amorgianos, 303 F. 3d

at 267 (internal citations omitted); in turn, “[v]igorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.”

Daubert, 509 U.S. at 596. “It is a well-accepted principle that

Rule 702 embodies a liberal standard of admissibility for expert

opinions,” United States v. Napout, 963 F.3d 163, 187 (2d Cir.

2020), and “[f]requently...‘gaps or inconsistencies in the

reasoning leading to [the expert's] opinion...go to the weight of

the evidence, not to its admissibility.’” Restivo v. Hessemann,

846 F.3d 547, 577 (2d Cir. 2017) (quoting Campbell ex rel. Campbell

v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001));

see also Davids v. Novartis Pharms. Corp., 857 F. Supp. 2d 267,

279 (E.D.N.Y. 2012) (“To the extent Novartis argues that Dr. Kraut

did not adequately rule out additional factors or has provided

contradictory testimony in the various depositions, these are

credibility determinations that go to the weight and not the

admissibility of his opinions.”)

Finally, although the district court must ascertain the

reliability of an expert's methodology, the gatekeeping function

“does not necessarily require that a separate hearing be held in

order to do so.” Williams, 506 F.3d at 161.

C. Relevance

Courts must assess whether the expert testimony “will help

the trier of fact to understand the evidence or to determine a

fact in issue.” Fed. R. Evid. 702; see In re Fosamax Prods. Liab.

Litig., 807 F. Supp. 2d 168, 179 (S.D.N.Y. 2011) (noting that

“[h]elpfulness can be expressed as a question of ‘fit’—'whether

expert testimony proffered in the case is sufficiently tied to the

facts of the case that it will aid the jury in resolving a factual

dispute’” (quoting Daubert, 509 U.S. at 591)), aff'd, 707 F.3d 189

(2d Cir. 2013), and aff'd, 509 F. App'x 69 (2d Cir. 2013). The

Court examines relevance under FRE 401 and weighs the balance of

the probative value of challenged evidence and testimony with the

risk of prejudice under FRE 403. See Daubert, 509 U.S. at 595.

DISCUSSION

I. Defendants’ Motions to Preclude Certain Testimony of

Plaintiff’s Experts

Defendants move to challenge certain portions of expert

testimony from three of Plaintiff’s anticipated experts. The Court

addresses each in turn.

A. Defendants’ Motion to Preclude Certain Testimony of Dr.

Stanislav Avshalumov, D.O.

First, Defendants move to preclude Plaintiff’s expert

witness, Dr. Stanislav Avshalumov, D.O., from testifying as to

Plaintiff’s need for future knee replacement surgery. (See

generally ECF No. 49 (“Avshalumov Mot.”).) They argue that Dr.

Avshalumov’s opinion is not the product of reliable principles and

methods, and even if so, he fails to reliably apply them.

Defendants do not oppose Dr. Avshalumov’s qualifications as

an expert in knee surgery. (See ECF No. 51 (“Avshalumov Reply”)

¶ 5.) Regardless, the Court “must satisfy itself” that Dr.

Avshalumov is qualified under FRE 702. Speedfit LLC v. Woodway

USA, Inc., No. 13-cv-1276 (KAM) (AKT), 2019 WL 1435911, at *5

(E.D.N.Y. Mar. 29, 2019). Dr. Avshalumov is board-certified in

orthopedic surgery, licensed in New York and New Jersey, did a

post-graduate residency in orthopedic surgery at Peninsula

Hospital Center in Far Rockaway, New York, and did a Fellowship in

Joint Preservation, Resurfacing and Replacement at Washington

University Orthopedics in St. Louis, Missouri. (Avshalumov Mot.,

Ex. B at 28-29;1 Ex. C (“Avshalumov Dep.”) at 10:17-21.2) Dr.

Avshalumov has demonstrated sufficient “knowledge, skill,

experience, training, or education” and is qualified to provide

expert testimony, provided his testimony conforms to FRE 702’s

remaining requirements. Fed. R. Evid. 702.

Defendants principally argue that Dr. Avshalumov failed to

show reliable principles and methods for his opinion on Plaintiff’s

need for a future total knee replacement, and that even assuming

he did show such principles and methods, he did not reliably apply

them. Plaintiff’s core argument is that Defendants’ objections

affect the weight of Dr. Avshalumov’s testimony, not its

admissibility. (See ECF No. 50 (“Avshalumov Resp.”)).

As a threshold matter, the testimony is relevant under FRE

1 The Court refers to the ECF pages, as the exhibits are not individually

paginated.

2 The Court cites to the deposition pages of deposition testimony.

401 and would “help the trier of fact to understand the evidence

or to determine a fact in issue,” namely, whether Plaintiff may

require a future right knee replacement, and the potential future

damages. Fed. R. Evid. 702.

The Court further finds that Dr. Avshalumov bases his opinion

on Plaintiff’s probable need for a future knee replacement on

sufficient facts and data, and that his testimony is the product

of reliable principles and methods that are reliably applied. Dr.

Avshalumov’s opinion is a product of his observations during

surgery, and review of Plaintiff’s medical records, including x-

ray and MRI imaging related to his right knee. (ECF No. 49, Ex. A

(“Avshalumov Rep.”) at 23-24.) Further, although Plaintiff

designated him an expert witness, Dr. Avshalumov is also

Plaintiff’s treating physician, and Dr. Avshalumov also reviewed

results from pre- and post-operative orthopedic exams that he

conducted, along with a report of the right knee surgery itself:

Plaintiff first saw Dr. Avshalumov for treatment of his left knee,

and later returned for treatment of his right knee following the

collision giving rise to this case, once on February 25, 2019,

again on March 7, 2019, for an arthroscopy of his right knee, and

again on March 18, 2019, for a post-operative visit. (Id. at 24.)

Dr. Avshalumov again saw Plaintiff on August 16, 2021, for a

physical examination requested by Plaintiff’s attorney, to obtain

a narrative report related to the instant case. (Id.)

Dr. Avshalumov’s deposition testimony stated that after

“[g]oing inside the knee and the chondral defect and deterioration

of cartilage, there is probably more probability to have a knee

replacement,” and that “in [his] practice [he] see[s] patients

after a knee scope with a chondral defect for knee replacement.”

(Avshalumov Dep. at 39:5-7, 21-23.) He further stated that he based

his opinion regarding the probability of Plaintiff’s total knee

replacement on the fact that his “intraoperative demonstrate[d]

[Plaintiff] started having problem [sic] with his cartilage,” and

he “[a]lready [had a] presence of cartilage delamination and

process of devastation of the cartilage start[ing],” such that

there was “[m]ore probability in the future he may require knee

replacement.” (Id. at 41:11-17.) He also stated that he took

intraoperative photographs of the tears in the right knee, which

he incorporated into his report. (Id. at 26:25-27:11.)

Courts in this Circuit “regularly admit expert testimony from

doctors who apply their training and professional experience to a

review of similar sources of information.” Tardif v. City of New

York, No. 13-cv-4056 (KMW), 2022 WL 2195332, at *7 (S.D.N.Y. June

17, 2022) (admitting medical expert testimony relying on expert’s

“knowledge, training and experience as a board certified

neurologist,” patient’s history, neurological exam, diagnostic

testing, and medical records), reconsideration denied, No. 13-cv-

4056 (KMW), 2022 WL 2239793 (S.D.N.Y. June 22, 2022); Monterey v.

City of New York, No. 17-cv-4477 (VEC), 2019 WL 5884466, at *5

(S.D.N.Y. Nov. 12, 2019) (finding expert reliable when “bas[ing]

her opinion on a review of Plaintiff's medical records, an analysis

of his MRI results, and a review of his deposition transcript”

because “[t]hose sources of information provided [expert] with

‘good grounds’ for her opinion and ensure that her opinion is

‘adequately grounded in the methods and procedures of science’ and

based on ‘more than subjective belief or unsupported speculation’”

(quoting Amorgianos, 303 F.3d at 267)); see also Bermudez v. City

of New York, No. 15-cv-3240 (KAM) (RLM), 2019 WL 136633, at *13

(E.D.N.Y. Jan. 8, 2019) (noting that “[e]valuation of the patient’s

medical records, like performance of a physical examination, is a

reliable method of concluding that a patient is [injured]”

(alternation in original) (quoting Deutsch v. Novartis Pharm.

Corp., 768 F. Supp. 2d 420, 483 (E.D.N.Y. 2011)).

Here, Dr. Avshalumov explains that his opinion on Plaintiff’s

probable need for a total knee replacement is based in part on his

experience in practice with patients that, after a knee scope with

a chondral defect and cartilage deterioration, require knee

replacements. Dr. Avshalumov also states that the process of

cartilage devastation had already started for Plaintiff

specifically, based on his intraoperative report of the surgery.

(Avshalumov Dep. at 41:11-17.) Accordingly, the Court finds that

Dr. Avshalumov’s experience and review of Plaintiff’s medical

records, including imaging of his knee, clinical examinations, and

surgical findings, establish that his opinion as to Plaintiff’s

probable need for a future knee replacement is a product of

reliable principles and methods that are reliably applied, and he

sufficiently explains “how his opinion was based on his experience

or medical education[.]” Vale v. United States of Am., 673 F. App’x

114, 117 (2d Cir. 2016).

Defendants raise many objections to Dr. Avshalumov’s opinion,

including that he was unable to cite to studies or statistics, or

state how often patients who have arthroscopies later require knee

replacements; that he failed to reference peer reviewed medical

studies on the likelihood of future total knee replacement

following arthroscopy; that he failed to sufficiently account for

age-related degeneration; that he failed to reconcile his

testimony that although a main indicator of cartilage

deterioration is ongoing patient complaints, Plaintiff had not

raised complaints with him in the intervening two-and-a-half years

between Plaintiff’s post-operative appointment and his August 16,

2021 assessment in anticipation of litigation; and that Dr.

Avshalumov had not ordered radiologic studies to assess the

progression of Plaintiff’s cartilage following the surgery.

Defendants also focus on inconsistencies in Dr. Avshalumov’s

conclusion. Dr. Avshalumov’s report states that “[i]t is more

probable than not that [Plaintiff] will require a total knee

replacement in the future.” (Avshalumov Rep. at 25.) His deposition

testimony, however, tends to characterize the likelihood of total

knee replacement only as an increased probability—for example,

stating that with “a cartilage defect and cartilage deteriorating,

it is probably more possible for [a] patient to have a total knee

replacement in the future,” and as to Plaintiff specifically,

noting there is “[m]ore probability in the future he may require

knee replacement” given there is “[a]lready presence of cartilage

delamination and process of devastation of the cartilage[.]”

(Avshalumov Dep. at 40:10-13, 41:11-17.)

Defendants’ objections are not sufficient to render

unreliable and inadmissible Dr. Avshalumov’s opinion on the

probability of Plaintiff needing a future total knee replacement.

District courts should only exclude expert evidence based on

questionable reliability when “the flaw is large enough that the

expert lacks ‘good grounds’ for his or her conclusions,”

Amorgianos, 303 F.3d at 267 (noting that cross-examination is an

appropriate tool by which to challenge “reliable, albeit

debatable, expert testimony”), because “the traditional and

appropriate means of attacking shaky but admissible evidence” is

not exclusion but “[v]igorous cross-examination, presentation of

contrary evidence, and careful instruction on the burden of proof,”

Daubert, 509 U.S. at 596.

Despite Defendants’ arguments, the Court does not find “too

great an analytical gap between the data and the opinion proffered”

to mandate exclusion where Dr. Avshalumov reviewed Plaintiff’s

medical records, right knee imaging, results from right knee

surgery and corresponding exams, in conjunction with his

experience that patients after an arthroscopic knee procedure with

a chondral defect require knee replacement, to support his opinion

on Plaintiff’s probable need for future knee replacement. Restivo,

846 F.3d at 577 (quoting Joiner, 522 U.S. at 146). District courts

are to “focus on the principles and methodology employed by the

expert, without regard to the conclusions the expert has reached

or the district court’s belief as to the correctness of those

conclusions.” Bustamante, LLC, 100 F. 4th at 427. Here,

inconsistencies or gaps in Dr. Avshalumov’s conclusion regarding

the likelihood of total knee replacement affect the weight, and

not admissibility, of his opinion. See Restivo, 846 F.3d at 577

(noting that “[f]requently...‘gaps or inconsistencies in the

reasoning leading to [the expert’s] opinion...go to the weight of

the evidence, not to its admissibility’”).

The same is true of Dr. Avshalumov’s failure to rely on peer

reviewed medical studies, which goes to the weight and credibility

of his testimony where he “otherwise reliably utilizes scientific

methods to reach a conclusion[.]” In re Mirena IUS Levonorgestrel-

Related Prods. Liab. Litig. (No. II), 982 F.3d 113, 124 (2d Cir.

2020) (quoting Amorgianos, 303 F.3d at 267); McCullock, 61 F.3d at

1043-44 (noting “lack of textual authority” ultimately “go[es] to

the weight, not the admissibility” of expert’s medical testimony

and admitting testimony where expert “could not point to a single

piece of medical literature” supporting his conclusion, in view of

his “background” and the “range of factors” supporting his

opinion).

Accordingly, the Court denies Defendants’ motion to preclude

Dr. Avshalumov’s testimony regarding Plaintiff’s probable need for

a future knee replacement.

B. Plaintiff’s Motion to Preclude Certain Testimony of

Dr. George DiGiacinto, M.D.

Second, Defendants move to preclude Plaintiff’s spine expert,

Dr. George DiGiacinto, M.D., from testifying as to Plaintiff’s

likelihood of future surgery due to adjacent segment degeneration

in the cervical and lumbar spine. (ECF No. 52 (“DiGiacinto Mot.”)

at 1, 9.)

Dr. DiGiacinto’s expert report generally references “the

likelihood of future surgery due to adjacent segment

degeneration,” without quantifying the likelihood. (DiGiacinto

Mot., Ex. A (“DiGiacinto Rep.”) at 9.) He also testified in his

deposition, in response to a question regarding the incidence “of

surgery for an adjacent segment degeneration after surgical

diskectomy effusion,” that he “[did not] know the exact number. 20

to 40 percent. It depends a little bit on pathology above or below

the level of effusion.” (DiGiacinto Mot. at 9; Ex. C (“DiGiacinto

Dep.”) at 46:19-47:5.) He testified to the same numbers for surgery

for adjacent segment degeneration after lumbar fusion. (Id.)

Defendants explicitly do not challenge Dr. DiGiacinto’s

qualifications as a spinal surgeon. (See ECF No. 54, DiGiacinto

Reply, ¶ 5.) The Court finds Dr. DiGiacinto is qualified to provide

expert testimony about spinal surgery, provided his testimony

conforms to FRE 702’s remaining requirements. See Speedfit LLC,

No. 13-cv-1276 (KAM) (AKT), 2019 WL 1435911, at *5. Dr. DiGiacinto

is board-certified in neurological surgery and received his

medical education from Harvard Medical School. (DiGiacinto Mot.,

Ex. B at 34-35; DiGiacinto Dep. 41:19-20.) At the time he retired

from active practice in 2019, Dr. DiGiacinto was an Assistant

Professor of Neurological Surgery at Mount Sinai West Hospital,

capping a nearly a half-century of medical practice. (DiGiacinto

Mot., Ex. B. at 34.)

Regarding reliability, Defendants principally argue that Dr.

DiGiacinto failed to explain what methodology he used to reach his

opinion regarding “the likelihood of future surgery due to adjacent

segment degeneration” and fault him for not reviewing peer reviewed

literature to support his opinion. Defendants further argue that

even assuming Dr. DiGiacinto did offer reliable methods, he does

not reliably apply them to the facts of this case because he did

not know there was an MRI of Plaintiff’s cervical spine from 2017,

and because he did not compare 2018 and 2019 MRIs with an October

18, 2015 CT scan. (DiGiacinto Mot. at 13.)

Plaintiff, in turn, argues that the lack of specified peer

reviewed articles, and any other failure to review materials, goes

to the weight, not admissibility, of his testimony. (See ECF No.

53 (“DiGiacinto Resp.”) ¶¶ 11-12.)

The Court finds Dr. DiGiacinto’s opinion on the likelihood of

future surgery due to adjacent segment degeneration to be

unreliable. Dr. DiGiacinto reviewed Plaintiff’s medical history,

medical records, and results from Dr. DiGiacinto’s physical

examination of Plaintiff. (See generally DiGiacinto Rep.) Then, as

part of the report’s conclusion, Dr. DiGiacinto references “the

likelihood of future surgery due to adjacent segment

degeneration.” (Id. at 9.) He does not explain how his conclusion

regarding the likelihood of future surgery due to adjacent segment

degeneration is connected to the existing facts or data, and

neither does his deposition testimony clarify a methodology. FRE

702, however, “requires that there be a sufficiently reliable

connection between the methodology and the expert's conclusions

for such conclusions to be admissible.” Marini, 995 F. Supp. 2d at

180 (citing Joiner, 522 U.S. at 146). Further, when asked in his

deposition generally about the “incidents of surgery for an

adjacent segment degeneration after surgical diskectomy effusion,”

Dr. DiGiacinto stated, “I don’t know the exact number. 20 to 40

percent. It depends a little on pathology above or below the level

of effusion.” (DiGiacinto Dep. 46:16-21.) He testified that the

incidence of surgery for adjacent segment degeneration after

lumbar fusion was “[a]bout the same frequency. Again, it depends

on a certain degree of pathology above or below the level of

previous fusion.” (Id. at 46:25-47:5.) Regarding his opinion that

“pathology above or below the level of” fusion impacts the

incidence of surgery, Dr. DiGiacinto stated that “you would have

to worry a little more [regarding surgery] if there is already

significant degeneration above or below the treated segment that

might give out in the future.” (Id. at 47:9-14.)

However, Dr. DiGiacinto does not appear to offer any principle

or method on which he bases the range of 20 to 40 percent incidence

of adjacent segment surgery for either the neck or back. Dr.

DiGiacinto testified that he did not review, nor could he cite,

any peer reviewed literature to determine either opinion. (Id. at

46:22-47:17.) Further, although Dr. DiGiacinto may be basing his

opinion on his experience, he fails to explain how such experience

formed his opinion. This is insufficient under Daubert and FRE

702. See Vale, 673 F. App'x at 117 (noting expert “lacked reliable

foundation because he provided no explanation as to how his opinion

was based on his experience or medical education”); Potter v.

United States, No. 17-cv-4141 (AJN), 2020 WL 2836440, at *7

(S.D.N.Y. May 30, 2020) (“While Plaintiff argues that Dr.

Rosenbaum's opinion is based on his ‘clinical experience,’...‘an

expert relying solely on his experience “must explain how that

experience leads to the conclusion reached, why that experience is

a sufficient basis for the opinion, and how that experience is

reliably applied to the facts.”’” (internal citations omitted)).

Further, even assuming his opinion on the likelihood of

adjacent segment surgery was a product of a reliable principle or

method, Dr. DiGiacinto did not reliably apply it. When asked

directly whether he had an opinion whether Plaintiff specifically

“will require adjacent segment fusion surgery on either his neck

or back in the future,” he answered: “Only from a statistical point

of view rather than any specific observation” and confirmed the

“statistical point of view” referenced the previously stated 20 to

40 percent incidence rate. (DiGiacinto Dep. 55:15-22.) By

explicitly basing his conclusion “[o]nly” on “a statistical point

of view” and not on “any specific observation” of Plaintiff, and

not on any study or medical source, Dr. DiGiacinto does not appear

to have applied any principle or method at all “to the facts of

the case.” Fed. R. Evid. 702. This is problematic because Dr.

DiGiacinto also testified that the range of 20 to 40 percent

“depends a little bit on pathology above or below” the level of

fusion, which requires, even in his own words, some sort of

“specific observation” of Plaintiff’s own pathology. “A court may

conclude that there is simply too great an analytical gap between

the data and the opinion proffered.” Nimely, 414 F.3d at 396

(quoting Joiner, 522 U.S. at 146)); see In re Mirena IUD Prods.

Liab. Litig., 169 F. Supp. 3d 396, 433–34 (S.D.N.Y. 2016) (“When

asked to explain where he got some of the figures he used in that

calculation, Dr. Young cited ‘just kind of my experience working

with pregnant and nonpregnant tissue and just in terms of

contractility of uterine tissue,’...and said that he derived these

calculations from his ‘experience and talking with the people who

have done the research, [who] seem to be getting those

values,’....This does not rise to the level of intellectual rigor

of medical or scientific study, rendering this opinion

unreliable.” (citing Joiner, 522 U.S. at 146) (footnote omitted)).

Defendants also argue that Dr. DiGiacinto failed to reliably

apply principles and methods because he was not aware of an MRI of

Plaintiff’s cervical spine from 2017, and because he did not

compare the 2018 and 2019 MRIs with the October 18, 2015 CT scan.

Defendants do not specifically tie Dr. DiGiacinto’s failure to

review and compare such scans with the argument that his opinion

on the likelihood of adjacent segment surgery is unreliable.

Regardless, that he explicitly stated that his opinion of the 20

to 40 percent incidence rate is based “[o]nly [on] a statistical

point of view rather than any specific observation” leads this

Court to believe that Dr. DiGiacinto did not rely on Plaintiff’s

specific imaging for his conclusion regarding the likelihood of

adjacent segment surgery.

Plaintiff argues that Dr. DiGiacinto is permitted and

qualified to provide an opinion, even without textual evidence,

and that Defendants’ attacks are properly characterized as

addressing the weight, not admissibility, of testimony. (See

generally DiGiacinto Resp.) Plaintiff ignores the remaining FRE

702 requirements that an expert, however qualified, must ensure

their testimony is a “product of reliable principles and methods”

that are reliably applied “to the facts of the case.” See Fed. R.

Ev. 702. Here, Dr. DiGiacinto has not reliably used principles and

methods to reach his conclusion regarding the likelihood of surgery

due to adjacent segment degeneration. Although “[t]rained experts

commonly extrapolate from existing data...nothing in either

Daubert or the Federal Rules of Evidence requires a district court

to admit opinion evidence that is connected to existing data only

by the ipse dixit of the expert.” Joiner, 522 U.S. at 146; see

Balura v. Ethicon, Inc., No. 19-cv-1372 (LEK) (ML), 2020 WL 819293,

at *10 (N.D.N.Y. Feb. 19, 2020) (“[W]hile it seems perfectly

plausible to the Court that Mrs. Balura will continue to suffer

from dyspareunia and incontinence and, and [sic] that her

incontinence could even worsen as Dr. Margolis predicts, without

more information about Dr. Margolis’ reasons for and methods in

arriving at this conclusion, the Court cannot admit it under

Daubert.”)

Because the Court finds that Dr. DiGiacinto’s opinion on the

likelihood of surgery for adjacent segment degeneration is

unreliable, the Court need not consider whether such testimony

would be helpful to the trier of fact. See Bermudez v. City of New

York, No. 15-cv-3240 (KAM) (RLM), 2018 WL 6727537, at *7 (E.D.N.Y.

Dec. 21, 2018) (making no finding as to relevance when concluding

that expert may not offer opinion).

Finally, Plaintiff briefly requests in his opposition that

“should this Court feel that Defendants’ concerns and arguments

are legitimate, which Plaintiff in no way concedes herein, then it

is respectfully submitted that this motion should still be denied

as premature, as Dr. DiGiancinto [sic] will submit the

foundation(s) for his opinion(s) as necessary at the time of

trial.” (DiGiacinto Resp. ¶ 17.) The Court respectfully disagrees

that Defendants’ motion is premature. Discovery in this case closed

on August 1, 2022. (See June 1, 2022 Order; August 25, 2022 Order.)

Plaintiff’s expert had an obligation under Federal Rule of Civil

Procedure 26(a)(2) to provide a written report containing not only

his opinions, but also the bases and reasons for them, including

the facts or data he considered in forming the opinion. Although

Rule 26(a)(2) “‘contemplates that the expert will supplement,

elaborate upon, explain and subject himself to cross-examination

upon his report,’” In re Payment Card Interchange Fee and Merch.

Disc. Antitrust Litig., 638 F. Supp. 3d at 301, as noted, Dr.

DiGiacinto’s deposition testimony failed to articulate a reliable

principle or method that he reliably applied to the facts of this

case regarding the likelihood of future surgery on Plaintiff’s

neck and back due to adjacent segment degeneration. “[N]othing in

either Daubert or the Federal Rules of Evidence requires a district

court to admit opinion evidence which is connected to existing

data only by the ipse dixit of the expert.” Nimely, 414 F.3d at

396 (alteration in original) (quoting Joiner, 522 U.S. at 146).

Accordingly, Defendants’ motion is not premature and is

granted.

C. Plaintiff’s Motion to Preclude Certain Testimony of

Dr. Barry C. Root, M.D.

Third, Defendants move to preclude Plaintiff’s expert, Dr.

Barry Root, M.D., from testifying as to Plaintiff’s need for future

surgery and medical treatment as projected in his “Life Care Plan.”

Defendants argue Dr. Root failed to provide a sufficient foundation

and explanation of methodology used for his conclusions concerning

the likelihood of needing future surgery and medical treatment,

and that even assuming Dr. Root’s methods are reliable, his

application of his methods is not. (ECF No. 55 (“Root Mot.”) at

7.)

Plaintiff argues Dr. Root’s medical experience, along with

his review of Plaintiff’s medical records, two teleconferences

with Plaintiff prior to the first report, and a physical

examination of Plaintiff prior to his supplemental report,

constitute reliable grounds to support his opinion on the need for

future surgery and medical treatment. Plaintiff also argues that

Defendants’ objections go to the weight, not admissibility, of Dr.

Root’s testimony. (See generally ECF No. 56.)

Though Defendants do not explicitly challenge Dr. Root’s

qualifications, (see generally Root Mot.), Defendants raise

certain points that nonetheless appear to assert such a challenge.

For example, Defendants note Dr. Root is not a certified life care

planner, that he did not take classes to learn how to prepare life

care plans, and that he learned to prepare life care plans “by

largely making it up.” (Id. at 10.)

Notwithstanding Defendants’ arguments, the Court finds Dr.

Root is qualified to provide expert testimony, provided that it

conforms to FRE 702’s remaining requirements. First, after being

confronted in his deposition with his alleged prior statement from

another case that he prepares life care plans “largely by making

[them] up,” Dr. Root testified that he did not “recall saying that”

and “believe[s] it’s taken out of context,” (ECF No. 55-3 (“Root

Dep.”) at 35:18-24), and Defendants offer nothing to the contrary.

Second, although Dr. Root testified that he had not taken

classes to learn to prepare life care plans, and that he is not a

certified life care planner, (id. at 35:25-36:5, 40:7-12),

Defendants cite no case law to suggest that a witness who has not

taken prior classes and lacks certification is necessarily

unqualified to testify to life care plans. Other courts in this

Circuit have denied motions to preclude expert testimony regarding

life care plans where the expert was not a certified life care

planner. See Corneli v. Adventure Racing Co., LLC, No. 12-cv-1303

(FJS) (TWD), 2015 WL 4716285, at *11-12 (N.D.N.Y. Aug. 7, 2015)

(denying motion to preclude expert testimony where defendant

offered no authority for argument that expert must be certified,

and where expert was not a certified life care planner, medical

doctor, or vocational expert but had 30 years’ experience of

occupational evaluation and assessment of handicapped individuals’

needs, reviewed medical records, performed an in-person

assessment, and was familiar with costs and services).

Further, “[e]ven if a proposed expert lacks formal training

in a given area, he may still have ‘practical experience’ or

‘specialized knowledge’ qualifying him to give opinion testimony

under Rule 702.” Lickteig, 589 F. Supp. 3d at 328 (citing

McCullock, 61 F.3d at 1043); see also In re Rezulin Prods. Liab.

Litig., 309 F. Supp. 2d 531, 559 (S.D.N.Y. 2004) (“The Second

Circuit has taken a liberal view of the qualification requirements

of Rule 702, at least to the extent that a lack of formal training

does not necessarily disqualify an expert from testifying if he or

she has equivalent relevant practical experience.”)

Dr. Root is board-certified in physical medicine and

rehabilitation, and he had an additional subspeciality board

certification in spinal cord injury medicine from 2003 to 2013.

(ECF No. 55-1, Ex. B at 32.) He is currently an Assistant Clinical

Professor of Physical Medicine & Rehabilitation at Hofstra

Northwell School of Medicine; was an adjunct Clinical Assistant

Professor of Rehabilitation Medicine at New York Hospital/Cornell

University Medical Center for nearly two decades; and was Chairman

of the Department of Physical Medicine and Rehabilitation at Glen

Clove Hospital for nearly two decades. (Id. at 33-34.) He is

currently transitioning to retirement and decreasing his clinical

work seeing patients. (Root Dep. at 22:6-12.) Dr. Root has offered

consulting services “related to neuro-musculoskeletal medicine,

long-term management of chronic pain and care of disabled

individuals” since 2005. (ECF No. 55-1, Ex. B. at 33.)

Next, as a threshold matter, the Court finds that Dr. Root’s

opinions as to Plaintiff’s future surgery and medical needs are

relevant under FRE 401 and would assist a trier of fact to

determine Plaintiff’s future medical expenses. Fed. R. Evid. 702.

The Court further finds that Dr. Root’s opinions on

Plaintiff’s future surgery and medical needs are based on

sufficient facts and are the product of reliable principles and

methods, which he has reliably applied. Specifically, Dr. Root

stated in his deposition testimony that his opinions on the need

for future knee, neck, and back surgery are generally a product of

his medical education and experience, reviewing Plaintiff’s

medical records, including reports from his treating doctors, and,

as to the need for knee surgery, his familiarity with the research

and Plaintiff’s age. (Root Dep. 69:14-73:8.) Dr. Root also twice

interviewed Plaintiff via teleconference, due to the COVID-19

pandemic, prior to preparing his first report; he later physically

examined Plaintiff and prepared a supplementary report. (ECF No.

55-2, Root Supplemental Report at 1.)

Courts in this Circuit have found that expert testimony

regarding life care plans relying on similar principles and methods

satisfy Daubert and FRE 702. See, e.g., Qureshi v. Costco Wholesale

Corp., No. 20-cv-4086 (PK), 2022 WL 16757952, at *2 (E.D.N.Y. Nov.

8, 2022) (noting “courts in this circuit have admitted the expert

testimony of lifecare planners whose findings are based on those

of treating medical providers” and collecting cases); Csikos v.

S.M. Constr. & Contracting, Inc., No. 18-cv-9598 (VEC), 2022 WL

3211462, at *9 (S.D.N.Y. Aug. 9, 2022) (denying motion to preclude

medical expert’s testimony on future medical costs where expert

“personally examined Plaintiff and reviewed his prior medical

records,” finding him thus “well situated to opine on Plaintiff’s

need for treatment as he ages”); Kiss v. Clinton Green N., LLC,

No. 17-cv-10029 (LGS), 2021 WL 4272741, at *2 (S.D.N.Y. Sept. 21,

2021) (denying motion to preclude expert testimony on life care

plan where expert’s opinions were “based on his background and

experience” as “a medical doctor, board certified in physical

medicine and rehabilitation” and as “a certified independent

medical examiner,” and where expert “reviewed Plaintiff’s medical

records and conducted a physical examination” and accordingly

“opined about Plaintiff’s future medical needs, including medical

care, medications, diagnostic studies, therapies and assisting

devices”); Frometa v. Diaz-Diaz, No. 07-cv-6372 (HB), 2008 WL

4192501, at *3 (S.D.N.Y. Sept. 11, 2008) (“In light of Dr.

Kincaid’s experience and the evident research that he conducted

and that is reflected in his life care plan, including extensive

quotes from Plaintiff’s medical records, the Daubert criteria have

been met.”)

Defendants argue Dr. Root’s opinions regarding future surgery

and medical needs are speculative, not based on facts of the case,

and lack the required indicia of reliability. (See generally Root

Mot.; ECF No. 57, Root Reply ¶ 5.) For example, Defendants cite

Dr. Root’s failure to: (1) physically evaluate Plaintiff prior to

preparing his initial Life Care Plan, and the fact that his

supplemental report and Life Care Plan following an eventual

physical examination were nearly identical to the first; (2) speak

to Plaintiff’s treating physicians; (3) rely on peer-reviewed

articles; and (4) know the incidence rate of future surgeries

following Plaintiff’s injuries. Defendants also take issue with

Dr. Root’s projection of certain treatments that Plaintiff’s

treating physicians had not recommended, and that Dr. Root’s

deposition testimony stated he did not review Plaintiff’s medical

records from 2021 up to early 2022, when he was deposed.3

Defendants, however, fail to convince the Court that Dr.

Root’s opinions are “speculative or conjectural,” In re Payment

Card Interchange Fee and Merch. Disc. Antitrust Litig., 638 F.

Supp. 3d at 242, or otherwise “based on insufficient facts or

data,” In re Zyprexa Prods. Liab. Litig., 489 F. Supp. 2d at 284.

For example, although Dr. Root did prepare his initial report based

on two teleconference calls with Plaintiff, he later physically

examined Plaintiff and supplemented his report. He further stated

in his deposition testimony that limited availability of medical

services during the pandemic contributed to such gaps. (Root Dep.

at 80:9-12.) Defendants will be able to explore the purported

weaknesses in Dr. Root’s opinions through cross-examination. See

Daubert, 509 U.S. at 596 (“Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.”); Restivo, 846 F.3d at

577 (noting that “gaps or inconsistencies in the reasoning” of

3 Defendants’ motion states that “Dr. Root did not know what doctors, if any,

Mr. Geurrero [sic] had seen in 2020, 2021 or 2022.” (Root Mot. at 11.) However,

Dr. Root’s supplemental report expressly considers Plaintiff’s visits and

procedures by treating physicians in January and March 2020. (ECF No. 55-2 at

6.)

experts “go to the weight of the evidence, not to its

admissibility” (internal citations omitted)).

Further, that Dr. Root did not speak to Plaintiff’s treating

physicians goes to the weight, not admissibility, of his testimony.

See Reichmann v. Whirlpool Corp., No. CV 16-5151 (AYS), 2021 WL

12102128, at *3 (E.D.N.Y. Mar. 9, 2021) (noting that standard for

life care planners does not require direct consultation with

treating physicians, and arguments that expert failed to directly

consult with plaintiff’s treating physicians when forming

recommendations “are not the kind of deep-seated methodological

flaws that can preclude an expert’s testimony”); Tardif, No. 13-

cv-4056 (KMW), 2022 WL 2195332, at *11 (finding degree of treating

physicians’ involvement in creation of life care plan goes to

weight of evidence, not admissibility); see also Qureshi, No. 20-

cv-4086 (PK), 2022 WL 16757952, at *2 (admitting expert testimony

of life care planner, notwithstanding that expert “never spoke to

Plaintiff’s doctors and did not conduct an in-person evaluation of

Plaintiff”).

Dr. Root’s failure to rely on peer reviewed studies similarly

goes to the weight of his testimony where, as here, he “otherwise

reliably utilizes scientific methods to reach a conclusion[.]” In

re Mirena IUS Levonorgestrel-Related Prods. Liab. Litig. (No. II),

982 F.3d at 124; McCullock, 61 F.3d at 1043-44 (noting “lack of

textual authority” ultimately “go[es] to the weight, not the

admissibility” of expert’s medical testimony and admitting

testimony where expert “could not point to a single piece of

medical literature” supporting his conclusion, in view of his

“background” and “range of factors” on which he based his opinion).

Defendants also take issue with Dr. Root’s projection of

certain medical care that Plaintiff’s current treating physicians

have not recommended. (Root Mot. at 13.) The fact that treating

physicians have not recommended certain care does not necessarily

“preclude Plaintiff’s need for [such care] in the future.” Bauta

v. Greyhound Lines, Inc., No. 14-cv-3725 (RER), 2019 WL 8060183,

at *4 (E.D.N.Y. Jan. 4, 2019) (finding plaintiff not taking

Percocet at time of trial did not preclude “need for it in the

future” when assessing future cost of care); id. (rejecting

defendants’ argument that because plaintiff “never received home

care prior to trial” and did “not appear to need it currently”

that “the evidence [did] not support awarding any home care as

part of Plaintiff's future costs” and finding jury award not

contrary to evidence or lacking foundation); Csikos, No. 18-cv-

9598 (VEC), 2022 WL 3211462, at *9 (in context of life care plan,

noting “costs of future assistive devices and prescription

medications that Plaintiff may require—irrespective of whether

Plaintiff currently requires such care—are not so speculative that

a physician cannot opine on the likelihood Plaintiff will need

such treatment in the future” and noting a jury could reasonably

find plaintiff will likely require certain treatment “in the

future, despite not needing such care currently”). Instead,

Defendants “can and should press” Dr. Root “on these claims during

cross-examination[.]” Csikos, No. 18-cv-9598 (VEC), 2022 WL

3211462, at *9; see Daubert, 509 U.S. at 596.

Accordingly, because the Court finds no reason to preclude

Dr. Root from testifying regarding Plaintiff’s anticipated need

for future surgery and medical treatment, Defendants’ motion is

denied. Nonetheless, Plaintiff shall avoid presenting cumulative

evidence, especially regarding Plaintiff’s probable need for knee

replacement surgery.

II. Defendants’ Motion to Preclude Reference to Specific

Numerical Figures for Damages

Fourth, Defendants move to preclude Plaintiff’s counsel from

referencing specific numerical figures for damages. Defendants

argue that permitting Plaintiff’s counsel to request a specific

dollar amount in damages would improperly sway or “anchor” the

jury with suggestions of damages that are potentially

insufficiently supported by evidence. (See generally ECF No. 58.)

Plaintiff argues that Defendants improperly seek an advisory

ruling; alternatively, Plaintiff requests that this Court follow

Joseph v. Deluna, No. 15-cv-5602 (KMW), 2018 WL 5095668, at *3

(S.D.N.Y. Oct. 19, 2018), where the court precluded suggestions of

a specific damage award in plaintiff’s opening statement but

reserved the decision on whether it would permit such a suggestion

during summation.

As a threshold matter, Plaintiff appears to argue that the

issue presented by the instant motion, requesting a specific

numerical figure for damages, is one “that [has] not been but may

potentially be in controversy in the future,” and therefore a

decision by this Court would be an impermissible advisory opinion.

(ECF No. 59 ¶ 5.) Plaintiff’s argument is without merit. An opinion

is improperly advisory where, for example, the court is not

“resolv[ing] real issues between genuine adversaries” and is

merely opining on “abstract or theoretical questions.” Abele v.

Markle, 452 F.2d 1121, 1124 (2d Cir. 1971). Although a court may

find a motion in limine unripe in certain situations, see Abbott

v. United States, No. 96-cv-0510, 1998 WL 743711, at *2 (N.D.N.Y.

Oct. 21, 1998) (reserving decision on government's motions in

limine made in advance of government electing to move for summary

judgment), this is not one of them. The issue regarding a specific

damages request is hardly “abstract or theoretical,” because the

parties in this case will commence trial imminently. Abele, 452

F.2d at 1124.

Turning to the propriety of specifying damage figures, “[t]he

Second Circuit has advised that ‘specifying target amounts for the

jury to award is disfavored.’” Equal Emp. Opportunity Comm'n v.

United Health Programs of Am., Inc., No. 14-cv-3673 (KAM) (JO),

2017 WL 10088567, at *13 (E.D.N.Y. Sept. 4, 2017) (quoting Consorti

v. Armstrong World Indus., 72 F.3d 1003, 1016 (2d Cir. 1995) (“Such

suggestions anchor the juror’s expectations of a fair award at a

place set by counsel, rather than by the evidence.”), vacated on

other grounds, 518 U.S. 1031 (1996)). The Circuit has left the

question to “the discretion of the trial judge, who may either

prohibit counsel from mentioning specific figures or impose

reasonable limitations, including cautionary jury instructions.”

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997).

The Court grants in part and denies in part Defendants’

motion. The Court follows the approach of many others in this

Circuit and prohibits Plaintiff from suggesting or arguing to the

jury a request for a specific dollar amount, but Plaintiff is

permitted to argue to the jury with respect to a specific dollar

amount for any compensable damages if supported by admissible

evidence presented during his case-in-chief, and Defendants had an

opportunity to cross-examine the witness presenting the evidence.

See, e.g., Woolfolk v. Baldofsky, No. 19-cv-3815 (WFK) (ST), 2022

WL 2600132, at *4 (E.D.N.Y. July 8, 2022) (prohibiting plaintiff

from submitting to the jury a request for a specific dollar amount

regarding non-economic damages but permitting plaintiff to argue

to jury regarding specific dollar amount for compensable damages,

such as previously incurred or foreseeable medical expenses, if

supported by admissible evidence); Ashley v. Civil, No. 14-cv-5559

(NGG) (SMG), 2019 WL 1441124, at *11 (E.D.N.Y. Apr. 1, 2019)

(precluding plaintiff from suggesting or submitting to jury

specific dollar amount regarding non-economic damages but

permitting plaintiff to argue during summation a specific dollar

amount regarding other compensable damages, so long as figure had

“reasonable basis in admissible evidence introduced during

Plaintiff's case in chief and Defendant ha[d] an opportunity to

respond if it cho[se] to do so”); Jean-Laurent, 840 F. Supp. 2d at

558 (precluding plaintiff’s counsel from submitting specific

dollar amount regarding damages for pain and suffering but

permitting submission of dollar amount regarding other compensable

damages if supported with admissible evidence during case in

chief).

Conclusion

For the reasons above, Defendants’ motion to preclude Dr.

Avshalumov from testifying regarding Plaintiff’s probable need for

a future knee replacement surgery is DENIED; Defendants’ motion to

preclude Dr. DiGiacinto from testifying regarding the likelihood

that Plaintiff will need future spinal surgery due to adjacent

segment degeneration in the cervical and lumbar spine is GRANTED;

Defendants’ motion to preclude Dr. Root from testifying to

Plaintiff’s potential needs for future surgery and medical

treatment as projected in his “Life Care Plan” is DENIED; and

Defendants’ motion to preclude Plaintiff’s counsel from

referencing specific numerical figures for damages is GRANTED IN

PART and DENIED IN PART.

SO ORDERED.

Dated: November 13, 2024 b “7 YY, _—

Brooklyn, New York

□ a 8 ewe

KIYO A. MATSUMOTO. —

United States District Judge

Eastern District of New York

39