# Rivera v. Safway Services, LLC

> District Court, D. Massachusetts · April 23, 2025

URL: https://www.frixlaw.com/law-library/cases/10851260

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** April 23, 2025
- **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/10851260

## How later opinions describe it (automated extraction)

- affirming admission of evidence regarding collateral source income with a limiting instruction that the evidence “bears on [the plaintiff’s] motivation in declining the job and its admissibility is limited to that extent”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
VANESSA RIVERA and )
VANESSA RIVERA as p/n/g of K.C., )
)
Plaintiffs, )
)
v. )
) No. 1:23-cv-12184-JEK
SAFWAY SERVICES, LLC and )
BRAND SAFWAY SERVICES, LLC )
)
Defendants. )
)

MEMORANDUM AND ORDER ON MOTIONS IN LIMINE
This case concerns a motor vehicle accident involving the plaintiffs, Vanessa Rivera and
her minor child K.C., and Joseph Giordano, a driver for defendants Safway Services, LLC and
Brand Safway Services, LLC. The plaintiffs assert four counts of negligence against the defendants
and seek damages for the physical, emotional, and financial injuries they allegedly suffered from
the accident. In advance of trial, the parties have filed six motions in limine that are now pending
before the Court. The defendants’ motion to exclude the opinions of the plaintiffs’ expert witnesses
and to dismiss the complaint, ECF 53, and the plaintiffs’ motion to exclude evidence and testimony
regarding collateral source income, ECF 57, will be denied. The defendants’ motion to exclude
evidence and argument regarding the post-accident investigative report will be granted in part.
ECF 54. The plaintiffs’ motion to allow the use of leading questions while conducting direct
examination of the defendants will be granted. ECF 58. The defendants’ motions to exclude
evidence and argument relating to the defendants’ financial status, ECF 55, and to exclude
evidence and argument relating to the defendants’ post-accident apology, ECF 56, will be granted
as unopposed.
DISCUSSION
I. ECF 53: Defendants’ Motion to Exclude the Expert Opinions of Plaintiffs’ Experts
and to Dismiss the Complaint for Failure to Satisfy Jurisdictional Requirements.
The defendants first move to preclude evidence related to, and testimony by, the plaintiffs’
experts, Dr. Nikhil Thakur and Maryanne Cline. Dr. Thakur is a board-certified orthopedic spine
surgeon who conducted an independent medical examination of Rivera, and Cline is a registered
nurse and a certified nurse life care planner who calculated the projected cost of Rivera’s future
medical expenses based on Dr. Thakur’s findings. ECF 53-5, Ex. B, at 11; ECF 53-5, Ex. E, at 52.
Because the plaintiffs’ invocation of this Court’s diversity jurisdiction under 28 U.S.C. § 1332(a)
depends on these expert opinions to establish damages exceeding $75,000, the amount in
controversy required by the statute, the defendants also argue that exclusion of these experts’

testimony requires dismissal of this action for lack of subject matter jurisdiction.
The defendants first argue that Dr. Thakur’s opinions are inadmissible under Federal Rule
of Evidence 702, which governs the admissibility of expert opinion evidence. Rule 702 provides
that a qualified expert may offer opinion testimony if “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.” Fed. R. Evid. 702.
“The objective of the ‘flexible’ inquiry envisioned by Rule 702 is to ascertain ‘the scientific

validity and thus the evidentiary relevance and reliability’ of the proffered expert testimony.”
Doucette v. Jacobs, 106 F.4th 156, 169 (1st Cir. 2024) (quoting Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 594-95 (1993)). The court’s determination must rest “‘solely on principles and
methodology, not on the conclusions that they generate.’” Id. (quoting Daubert, 509 U.S. at 595).
“‘The soundness of the factual underpinnings of the expert’s analysis and the correctness of the
expert’s conclusions based on that analysis are factual matters to be determined by the trier of
fact.’” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22 (1st Cir. 2011) (quoting
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). Accordingly, “‘[w]hen the factual
underpinning of an expert’s opinion is weak, it is a matter affecting the weight and credibility of

the testimony’ and thus ‘a question to be resolved by the jury.’” Rodríguez v. Hosp. San Cristobal,
Inc., 91 F.4th 59, 70 (1st Cir. 2024) (quoting Milward, 639 F.3d at 22). This is so even where “the
expert’s conclusion is arguably contradicted by aspects of the record,” so long as “the expert’s
methodology itself is sound.” Doucette, 106 F.4th at 169. Where, however, the expert’s opinion
testimony rests on “‘the ipse dixit of the expert’” or “evinces significant ‘analytical gap[s] between
the data and the opinion proffered,’” excluding the testimony may be appropriate. Id. (emphasis
omitted) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).
The defendants contend that Dr. Thakur’s opinions are not founded on a satisfactory level
of analytical rigor and are not the product of reliable principles and methods. The Court is not

persuaded. Dr. Thakur’s opinions are contained within a report written after he conducted a
physical examination of Rivera and took her medical history. His opinions are derived from that
independent medical examination and his interpretation of medical records from Rivera’s other
healthcare providers. ECF 53-5, Ex. A, at 6. The defendants do not attack any procedure
undertaken during the examination, but instead highlight a number of “errors and omissions” in
the report that they believe warrant exclusion: (1) Dr. Thakur described the accident as a slip and
fall instead of a motor vehicle accident; (2) Dr. Thakur did not reference any medical records
contradicting his description of Rivera’s ongoing complications and his diagnosis of a C4-C5 disc
herniation; (3) Dr. Thakur stated that Rivera “‘completed’” physical therapy without mentioning
her request for a discharge; (4) Dr. Thakur failed to explain why Rivera should return for several
years of physical therapy when she has not been to physical therapy for almost three years; and (5)
Dr. Thakur did not discuss the February 2023 report from Shields MRI Boston, in which Dr. David
Yu concluded that Rivera did not have a C4-C5 disc herniation. ECF 53, at 4-5. These disputes
over the factual underpinnings of the report do not evince a “significant ‘analytical ga[p]’” between

Dr. Thakur’s opinions and the record evidence. Doucette, 106 F.4th at 169 (quoting Gen. Elec.
Co., 522 U.S. at 146). And the defendants’ only methodological quibble—that Dr. Thakur did not
wait until two years after the accident to measure Rivera’s maximum medical improvement—is
not a significant enough analytical issue to merit wholesale exclusion of his opinions. ECF 53, at
6 n.3; see also ECF 53-5, Ex. A, at 6 (reflecting that Dr. Thakur examined Rivera a little over a
year and ten months after her accident); id. at 9 (acknowledging that Rivera “has not reached
maximum medical improvement because she has not come to her 2 year milestone from her car
accident,” but nonetheless expressing that, “to a reasonable degree of medical certainty, without
any further intervention she will continue to have the symptoms as we are coming close to the 2-

year point”). Because the defendants’ arguments ultimately bear on the weight and credibility of
Dr. Thakur’s opinions, not their admissibility, they should be addressed through cross-examination
at trial, not excluded.
The defendants next argue that Dr. Thakur’s conclusions regarding Rivera’s future medical
treatment are “speculative and precatory” and must be excluded under Massachusetts law
governing recovery for future damages. ECF 53, at 5; see also Fitzgerald v. Expressway Sewerage
Constr., Inc., 177 F.3d 71, 74 (1st Cir. 1999) (state law, including regarding availability of
damages, provides the substantive rules of decision in diversity cases). In Massachusetts, “[a]
plaintiff is entitled to compensation for all damages that reasonably are to be expected to follow,
but not to those that possibly may follow, the injury which he has suffered.” Donovan v. Philip
Morris USA, Inc., 455 Mass. 215, 223 (2009) (emphasis added and citation and quotation marks
omitted). Applying that rule, a different session of this Court held in Arcudi v. Builder Services
Group, Inc. that Dr. Thakur’s testimony regarding a plaintiff’s future surgical needs was too
speculative to be admissible. See 673 F. Supp. 3d 9, 15 (D. Mass. 2023). There, “Dr. Thakur did

not recommend surgical intervention as future care”; instead, “[h]e merely opine[d] that it would
be to [the plaintiff’s] benefit if she were to visit a surgeon who would then evaluate her, and the
surgeon would then consider whether they recommend . . . surgery.” Id.
Dr. Thakur’s opinions in Arcudi are materially different than the opinions offered here,
because his statements in Arcudi “merely indicate[d] surgery [was] no more than possible” via a
chain of contingent recommendations. Id. Here, by contrast, Dr. Thakur has concluded that “[t]o a
reasonable degree of medical probability, [Rivera] is a candidate for a c4-5 disc replacement” and
would benefit from a number of treatments. ECF 53-5, Ex. A, at 9. The defendants argue that Dr.
Thakur “does not opine that the surgery is medically necessary or required” and that his opinions

are made all the more speculative because Rivera has not followed Dr. Thakur’s recommendations.
ECF 53, at 6. A plaintiff, however, “is not restricted to compensation for suffering and expense”
that “will inevitably follow,” because “suffering and expense following an injury cannot be
foretold with exactness.” Donovan, 455 Mass. at 223 (emphasis added). Instead, a plaintiff may
be compensated for expenses “which by a fair preponderance of the evidence [she] has satisfied
the jury reasonably are to be expected to follow.” Id. Under this standard, Dr. Thakur’s opinions
regarding Rivera’s future medical treatment do not warrant exclusion.
The defendants next contend that Dr. Thakur’s opinions should be excluded under Federal
Rule of Evidence 403 because “it is likely that a jury will assign considerable weight to his
opinions based on his credentials and experience alone.” ECF 53, at 7. As a result, they claim, the
probative value of his testimony will be substantially outweighed by the danger of jury confusion,
given the “stark contrast” between Dr. Thakur’s report and Rivera’s deposition testimony. Id. The
Court disagrees. Unlike in Arcudi, where the Court was considering contingent statements
regarding the plaintiff’s possible need for future surgery, Dr. Thakur’s recommendations for

Rivera’s treatment carry weightier probative value here and will assist the jury by providing an
expert perspective on Rivera’s injuries and her recommended future treatment. Because the
evidentiary value of these opinions is not substantially outweighed by the risk of jury confusion or
unfair prejudice, exclusion of his report and testimony is unwarranted.
The defendants’ only justification for moving to exclude Cline’s medical cost projections
hinges on the preclusion of Dr. Thakur’s opinions. Because the Court will not exclude his
statements, Cline’s opinions regarding the costs of the treatment likewise will not be excluded. As
a result, the amount in controversy remains in excess of $75,000, and the Court has subject matter
jurisdiction over this case. The defendants’ motion will be denied.

II. ECF 54: Defendants’ Motion to Exclude Evidence and Argument Relating to Their
Post-Accident Investigative Report.
The defendants move to preclude evidence and argument regarding a post-accident
investigative report created by their Area Safety Manager, Gary Johnston. Johnston was not an
eyewitness to the accident, but he generated the report after responding to the scene following the
collision, speaking to the parties involved, and taking photographs. The defendants argue that the
report is unfairly prejudicial and misleading because the statement of fault in that report was
created by a lay person and improperly offers a legal opinion on a key issue in the case.
A lay witness may offer opinion testimony that is: “(a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.” Fed. R. Evid. 701. “An opinion is not objectionable just because it embraces an
ultimate issue.” Fed. R. Evid. 704. But under Rule 701, “evidence that merely tells the jury what
result to reach is not sufficiently helpful to the trier of fact to be admissible.” Kostelecky v. NL
Acme Tool/NL Indus., Inc., 837 F.2d 828, 830 (8th Cir. 1988) (in a negligence case, excluding

accident report by a lay eyewitness that contained statements opining on the cause of the accident
because “[l]egal causation was very much in dispute,” so “the opinion as to causation served to do
nothing more than tell the jury what result it should reach”); see also Adams v. New England
Scaffolding, Inc., No. 13-cv-12629-FDS, 2015 WL 9412518, at *7 (D. Mass. Dec. 22, 2015)
(explaining that an expert witness “normally should not be permitted to testify as to an ultimate
legal conclusion, such as an opinion that a defendant was ‘negligent’” because the opinion would
do no more than indicate what the witness believes the verdict should be).
In the accident report, Johnston checked a box indicating that the “[c]ompany driver [was]
at fault.” ECF 54-2, at 4. That portion of the report will be redacted because, as in Kostelecky, legal

causation is at the heart of this negligence case, and Johnston’s opinion on whether the company
driver, Joseph Giordano, was at fault “merely tells the jury what result to reach.” 837 F.2d at 830.
The rest of the report, however, will not be excluded on those grounds, as it does not reflect
Johnston’s opinion regarding fault. See Zibolis-Sekella v. Ruehrwein, No. 12-cv-228-JD, 2013 WL
12177907, at *2-3 (D.N.H. Oct. 8, 2013) (declining to exclude entire accident report and instead
only requiring redactions of specific statements in the report that were implicated by the plaintiff’s
argument for exclusion).
The plaintiffs counter that the report’s statement of fault should be admissible as
impeachment evidence on cross-examination. According to the plaintiffs, the report is a prior
inconsistent statement because Johnston stated at his deposition that he no longer considered
Giordano responsible for the accident because he “believe[d] that [Giordano] would have seen the
car coming.” ECF 54-3, at 3. The Court “is free to use its informed discretion to exclude extrinsic
evidence of prior inconsistent statements on grounds of unwarranted prejudice, confusion, waste
of time, or the like.” United States v. Hudson, 970 F.2d 948, 956 n.2 (1st Cir. 1992); see also Fed.

R. Evid. 403. Although Johnston’s inconsistency may bear on his credibility, the statement of fault
in the report poses too great a risk of unfair prejudice and jury confusion for the Court to permit
its use on cross-examination, even with a limiting instruction. The statement was made by the
defendants’ employee, and it communicates a legal conclusion that is central to the case and
effectively “tell[s] the jury what result it should reach.” Kostelecky, 837 F.2d at 830. Johnston may
not, therefore, testify at trial—either on direct or cross-examination—regarding his view on
whether Giordano was at fault. The defendants’ motion will accordingly be granted in part, but
only as to the statement of fault listed in the report and testimony related to Johnston’s assessment
of Giordano’s responsibility for the accident.

III. ECF 55: Defendants’ Motion to Exclude Evidence and Argument Relating to Their
Financial Status.
The defendants move to exclude all evidence and argument relating to their financial status,
including private equity ownership, as irrelevant and unfairly prejudicial. The motion is unopposed
and will therefore be granted.
IV. ECF 56: Defendants’ Motion to Exclude Evidence and Argument Relating to Their
Post-Accident Apology.
The defendants move to exclude all evidence and argument relating to Giordano’s and
Johnston’s apologies to Rivera at the scene of the accident and any other statements of sympathy
related to the accident. The motion is unopposed and will be granted.
V. ECF 57: Plaintiffs’ Motion to Exclude Evidence and Argument Relating to
Collateral Source Income.
The plaintiffs move to preclude the defendants from offering evidence and testimony
concerning payments made under their health insurance and any other collateral sources of
recovery, and to redact insurance information from their medical records and bills.
In Massachusetts, “[t]he substantive aspect of the collateral source rule . . . provides that
‘compensation received from a third party unrelated to a tortfeasor-defendant (the collateral
source) will not diminish an injured party’s recovery from that tortfeasor.’” England v. Reinauer
Transp. Cos., L.P., 194 F.3d 265, 273 (1st Cir. 1999) (quoting Fitzgerald, 177 F.3d at 73).
Massachusetts’ substantive rule of damages “must be given full credit” in this diversity case.
Fitzgerald, 177 F.3d at 74. The “evidentiary strand” of the collateral source rule, however, is

governed by the Federal Rules of Evidence—in particular, Rules 401, 402, and 403. England, 194
F.3d at 273. Under those rules, “[e]vidence of collateral benefits offered to show that an
[individual] has already received compensation for his injuries is generally inadmissible” because
proof of that compensation would not mitigate—and therefore is irrelevant to—the calculation of
damages. Id. (citation and quotation marks omitted); see Fitzgerald, 177 F.3d at 74; Fed. R. Evid.
402. “When such evidence is relevant to some other contested issue, however, it may be admitted
if it is not unfairly prejudicial[.]” England, 194 F.3d at 273-74; see Fitzgerald, 177 F.3d at 75 (“[A]
jury, informed, say, that a plaintiff has recourse to first-party insurance proceeds, may be unduly
inclined to return either a defendant’s verdict or an artificially low damage award.”).

The defendants argue that the collateral source income evidence is relevant to the scope of
Rivera’s injuries, their relationship to the accident, and her need for further treatment. Pointing out
that Rivera’s insurance covered only some of her medical visits closer in time to the collision, the
defendants note that these limited payments bear on Rivera’s “medical end point” and her alleged
need for further medical care in connection with the accident. See ECF 60, at 2-3. These issues are
also relevant to witness credibility, they contend, because there is a disparity between, on the one
hand, the insurance company’s unwillingness to pay for Rivera’s physical therapy in 2022, and on
the other, the anticipated testimony from Rivera and the plaintiffs’ experts regarding her need for
future treatment and the projected costs of that care.

Because the probative value of this evidence is not substantially outweighed by the danger
of unfair prejudice or jury confusion under Rule 403, the Court will deny the plaintiffs’ motion.
However, to address the plaintiffs’ concerns, see ECF 57, at 1-2, the Court will issue an appropriate
limiting instruction, see DeMedeiros v. Koehring Co., 709 F.2d 734, 740-41 (1st Cir. 1983)
(affirming admission of evidence regarding collateral source income with a limiting instruction
that the evidence “bears on [the plaintiff’s] motivation in declining the job and its admissibility is
limited to that extent”).
VI. ECF 58: Plaintiffs’ Motion to Allow Use of Leading Questions on Direct Examination
of an Adverse Witness.
The plaintiffs move for permission to use leading questions when conducting direct
examination of the defendants. Under Federal Rule of Evidence 611(c), the court should “allow a
plaintiff who calls an adverse party on direct to use leading questions in his examination because
the witness is presumed hostile.” Elgabri v. Lekas, 964 F.2d 1255, 1260 (1st Cir. 1992); see Fed.
R. Evid. 611(c)(2). The plaintiffs’ motion will therefore be allowed.
In their limited opposition to this motion, the defendants seek a reciprocal order permitting

them to use leading questions when cross-examining the same witnesses. ECF 61, at 1.
Traditionally, the use of leading questions on cross-examination is “a matter of right.” Fed. R.
Evid. 611 advisory committee notes to 1972 proposed rules. But where, as here, “the cross-
examination is cross-examination in form only and not in fact, as for example the ‘cross-
examination’ of a party by his own counsel after being called by the opponent,” the Court may
prohibit the use of leading questions. Id.; see also Candelario Del Moral v. UBS Fin. Servs. Inc.
of Puerto Rico, No. 08-cv-1833-PAD, 2014 WL 12726081, at *6 (D.P.R. Dec. 3, 2014). The
defendants’ request will accordingly be denied without prejudice to renewal at trial, when the
Court can best determine whether the use of leading questions may be justified. See United States

v. Mulinelli-Navas, 111 F.3d 983, 990 (1st Cir. 1997), as amended (May 23, 1997) (“[T]he use of
leading questions . . . must be left to the sound discretion of the trial judge who sees the witness
and can, therefore, determine in the interest of truth and justice whether the circumstances justify
leading questions to be propounded to a witness by the party producing him.” (citation and
quotation marks omitted)).
CONCLUSION AND ORDER
For the foregoing reasons, ECF 55, 56, and 58 are GRANTED; ECF 54 is GRANTED in
part; and ECF 53 and 57 are DENIED.
SO ORDERED.

/s/ Julia E. Kobick
JULIA E. KOBICK
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10851260. Public record. Not legal advice.