# Guerrero v. Loiacono

> District Court, E.D. New York · November 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10740204

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10740204

## How later opinions describe it (automated extraction)

- 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’”
- 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.
- noting that cross-examination is an appropriate tool by which to challenge “reliable, albeit debatable, expert testimony”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------X

JOSE GUERRERO,

Plaintiff, MEMORANDUM & ORDER

No. 19-cv-06239 (KAM)
- against - (SJB)

CHARLES LOIACONO and COSTCO
WHOLESALE CORPORATION,

Defendants.

-----------------------------------X

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10740204. Public record. Not legal advice.