FILED: QUEENS COUNTY CLERK 01/22/ :53 PM INDEX NO /2014 NYSCEF DOC. NO. 248 RECEIVED NYSCEF: 01/22/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COIJNTY OF QUEENS X X MARY LOUISE PORTANOVA individually and MARY LOUISE PORTANOVA as executor of the INDEX NO.: /2014 Estate of JOHN PORTANOVA, Plaintiffs, MOTION IN LIMINE TO PRECLUDE - against- PLAINTIFFS' EXPERT WITNESS DISCLOSURE ALEXANDER FALKOVSKY, D.O., KUNJURAMAN CHANDRAMOHAN, M.D., REISA F. ULLMAN, M.D., MARK FONROSE, M.D., FRANKLIN HOSPITAL MEDICAL CENTER, FRANKLIN HOSPITAL, FRANKLIN GENERAL HOSPITAL and NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., Defendants The undersigned and defendant Ullman, by and through her attorneys Bartlett, LLP respectfully requests that the Court preclude plaintiffs from introducing the untimely report of expert Judith Kahn dated December 19, 2017, preclude the expert from testifying as to the contents of said report and that the plaintiff be held to the report previously submitted on December 14, LEGAL STANDARD The function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use, (State v Metz, 241 A.D.2d 192,198 (1st Dep't 1998); 4 N.Y. Prac. Com. Litig. In N.Y. Courts 36.1 (3d. ed). Even in a trial to the Court, a motion in limine can be a valuable tool for streantlining the case or. focusing attention on an important issue 1 of 11

2 before the trial begins. The Court's authority to rule on a motion in limine stands from "its trials." inherent authority to manage the course of Id. 2 of 11

3 EXHIBITS EXHIBIT A Response to demand for experts with resume of Judith Kahn and report of examination conducted on December 8, 2016 dated December 14, EXHIIsIT B Report of exam by plaintiff conducted allegedly by expert Judith Kahn on December 15, 2017, dated December 19, 2017, in but received on December 29, 2017 EXHIBIT C Plaintiffs corrected Amended Bill of Particulars dated April 11, of 11

4 FACTS RELEVANT PROCEDURAL POSTURE This case sounds in medical malpractice where plaintiff s Mary Louise Portanova and John Portanova filed a Summons and Complaint wherein defendant Ullman, who "held herself out as specializing in infectious diseases", allegedly departed from the standard of accepted medical care and treatment with respect to plaintiff Mary Louise Portanova's MRSA infection. The record reflects that during discover, the plaintiffs submitted an expert disclosure with resume and report of an examination conducted by their expert Dr. Judith Kahn, on the plaintiff Mary Louise Portnova on December , attached hereto as Exhibit A. The exam was reportedly conducted on December 8, 2016 at the doctor's office in Riverdale New York. Discovery continued to proceed and trial was scheduled to originally begin on May 30, It was thereinafter delayed due to Motion practice. Eventually, trial in this matter began on November 8, 2017 and ended in a mistrial on November 27, 2017, The trial was presided over by the Honorable Judge Kevin Kerrigan. The matter is now scheduled to be re trial before the Honorable Judge Leonard Livote on January 22, Discovery has long since been closed with trial witness lists, reports of experts and expert disclosures fully submitted to all parties. On the eve of trial, specifically on December 29, 2017 where trial was scheduled to begin on January 22, 2018, plaintiffs submitted a report of an examination done by the same expert, Judith Kahn, on December 15, The report was submitted on December 29, The report of Dr. Kahn shows that this time the expert added a review of previous records, available since the inception of the lawsuit, and the report of December 14, 2016 and added new claims not previously articulated in any Bill of Particulars. 4 of 11

5 The basis for the supplemental report does not comport with the submission guidelines as contained in CPLR 3101 (h) whereby plaintiff can establish that after their response of December 2016 that plaintiff thereafter obtained information that the response was "incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading." CPLR 3101(h) It is defendant's contention, as contained within the facts and law contained in this motion, that the court should preclude plaintiff from entering that report, referring to that report or allowing their expert to testify to the report on the retrial of this matter, as to any statements or findings within that report, based on the fact that it is untimely, prejudicial, contains allegations not contained in any Bill of Particulars submitted by plaintiff before this point and consistent with plaintiffs practice loaded with "typographical errors." 1 LEGAL ARGUMENT The admissibility of the submission of a late supplemental expert witness disclosure or the subject matter, in this case, a supplemental report on which the expert is expected to testify, is left to the sound discretion of the court, therefore defendants concede that plaintiffs' submission is not precluded alone based on lateness, Rivers v Birnbaum, 102 A.D.3d 26, (2nd Dep't 2012). This is especially true since this expert, Dr Judith Kahn, was previously disclosed; plaintiff is seeking to supplement her previous disclosure with a new report of an exam by the 1 The report states that Mary Louise Portnova was examined on December 15, 2016 in Dr. Kahn's office in Riverdale, New York. The date 2016 is subsequently, manually crossed out and made to be The second page of the report is dated December 9, 2017, which is inconsistent with the fact that the patient was not examined by Dr. Kahn until December 15, In addition when viewing both reports, the date December 9, 2017 fails to show up in either repo>t of 2016 or of 11

6 same expert. However, the Second Department has well settled law that disclosures as to new theories of liability on the eve of trial, where plaintiff fails to articulate good cause for the delay in the disclosure is not allowed. Durant v Shuren, 33 A.D.3d 843 (2nd Dep't 2006) citing Lissak v. Cerabona, 10 A.D.3d 308, (1" Dep't 2004); Conroe v. Barmore-Sellstrom, inc., 12 A.D.3d ( 4d' Dep't 2004). CPLR 3101(h) reads as follows: Amendment or supplementation of responses. A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party's thereafter obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. Furthermore, CPLR 3101 (h) reads Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of noncompliance with this subdivision. hi that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order obtained by court order. may be just. Further amendment or supplementation may be Plaintiffs are under a continuing obligation to amend or supplement their responses to defendant's prior discovery demands and CPLR 3101(h) imposes a duty and requires all parties to assume the initiative and correct discovery responses to disclosures. As a practical matter, absent Court order, the plaintiff would need to show that the supplemental response of December 29, 2017, was warranted based on information that the response of December 14, 2016 was incorrect or incomplete, no longer correct and that such disclosure was made promptly after discoverin the omissions, 6 of 11

7 PLAINTIFF SHOULD BE PRECLUDED FROM SUBMITTING THE REPORT OF DR. JUDITH KAHN DATED DECEMBER 19, 2017, BASED ON THE FACT THAT IT IS UNTIMELY AND DOES NOT COMPORT WITH THE G.UIDELINES ARTICULATED IN CPLR 3101 (h). Here the facts show that from December 14, 2016, when the first report of the examination done by Dr. Judith Kahn was submitted to defendant, until December 29, 2016 when the second supplemental report of an examination conducted on plaintiff was submitted to defendant, approximately one year had lapsed. Irrespective of the glaring typographical errors, the facts show that the medical records and reports that were reviewed by Dr. Kahn, from November 23, 2011 to name a few, now included in the December 29, 2019 report, were available since the inception of the lawsuit and also at the time of the examination that was conducted on plaintiff in December 2016, yet plaintiff waited until after a mistrial was declared on November 27, 2017 to supplement their report. The report shows that medical records from Franklin Hospital from November 23, 2011, which included emergency room notes, x-rays, and lab work, as well as various infectious disease notes, physical therapy notes, x-rays, CT scan reports and history and physical summary from the admission of January 31, 2012, and further records from the admission of plaintiff from February 3, 2012 until March 11, 2012 were all reviewed and commented on and form the basis of new allegations and complaints. The record shows that it is not that these items were previously included in the report of December 14, 2016 and now are shown to be incorrect, thus necessitating a supplemental disclosure, instead it is simply that a review of these records was completely omitted the first time. This reasons for the omission in the previous report, and thus a supplemental report at this stage is not sufficient "good cause." 7 of 11

8 This supplemental report and exam and its introduction at this point, at trial, clearly defies the spirit of the CPLR whereby plaintiff between the time of the first disclosure and the second disclosure realized that certain records had not been reviewed by their expert and the review needed to be included in the report, Defendant contends that plaintiff is seeking to supplement their disclosure with a report of a "purported" exam after trial that ended in a mistrial and before retrial, no doubt based on the significance of some of the records not previously reviewed by plaintiffs' expert Dr. Judith Kalm. Plaintiffs report should be precluded and plaintiffs' expert Dr. Judith Kahn should be precluded from referring to that report or allowing their expert to testify to the report on the retrial of this matter, as to any statements or findings within that report. PLAINTIFFS REPORT OF DR. JUDITH KAHN DATED DECEMBER 19, 2017, SHOULD BE PRECLUDED WHEREBY IT CONTAINS NEW ALLEGATIONS NOT PREVIOUSLY ARTICULATED IN ANY PLAINTIFF'S BILL OF PARTICULARS, EVEN THE CORRECTED BILL OF PARTICULARS, NOT CURRENTLY ACCEPTED BY THE COURT, ATTACHED HERETO AS EXHIBIT C. A side-by-side comparison of the reports of Dr. Judith Kahn show that the report based on the alleged examination conducted on December 15, 2017 is materially different in several respects. Glaringly apparent is the fact that the expert now adds entire new sections under the heading "CURRENT COMPLAINTS" entitled feet pain, anxiety / depression and impaired functional mobility. Furthermore within those sections and also under the experts heading of "REVIEW OF SYSTEMS", plaintiff is seeking add new complaints not previously found in the Bill of Particulars dated April 11, 2017, if in fact that is the Bill of Particulars accepted by the collrt,. 8 of 11

9 Plaintiffs Bill of Particulars plaintiff states the following: "Plaintiff was caused to be confined to bed: confinement to home: inability to work: complete loss of mobility, requiring plaintiff to use a wheelchair: inability to have corrective knee replacements: requirement to maintain dosage of antibiotics throughout her lifetime: permanent bruising, scarring, and discoloration of her hip and back: osteoarthritis: diffuse arthritic phenomena in through the vertebral column except for D10 and D11, where poor tracer activity is noted: severe pain in the chest, back, rib cage, hip, spine and legs: blisters throughout the entire arm: rashes throughout her body, including the thigh, buttocks, back and left arm: onset of deep vein thrombosis requiring the use of inferior vena cava filter and anticoagulation medication for treatment... Now the expert now claims that she has "episodic headaches, achiness in her upper trapezius muscles bilaterally, episodic pain in both wrists that can last one to two days and are related to increased weight-bearing on her wrists, involuntarily leg spasms at night in her right leg since November 2017, numbness in her rectum, urgency and frequent incontinence of bowel and bladder, oozing of stool, red rash under her breasts and groin that worsened after sitting for prolonged periods in the court room, itching in her palms with water blisters, and a new onset of GERD." In addition, in the "SOCIAL HISTORY" section, the expert relates apparent psychological issues related to the fact that "since she is not able to live alone and is now living with her sister that she is only allowed one drawer in the refrigerator for her personal use and consequently mostly orders food from Peapod and her food consists typically of starchy meals and pasta." The expert also relates that because of her living situation "friends cannot visit as her sister insists that the home is not presentable for guests." These additions are but a few of the complaints that plaintiff is now seeking to allow the expert to testify to without having previously disclosed them in any discovery device, whereby an expert report is not a discovery device. 9 of 11

10 It is reasonable and defendant is entitled to an amended Bill of Particulars and a supplemental report that may or may not update the progression of plaintiff's alleged complaints, and introduce new theories of liability, well before trial and at the close of discovery, certainly NOT less than a month before re trial, with no notice or application made to the Court after the mistrial that counsel would be subjecting plaintiff to an updated exam., Especially since the veracity of the assertions within the report are suspect based on plaintiffs' longstanding and repeated history of mistakes and errors that are later claimed to be mere "typographical error." Plaintiff's expert should be held to the findings and allegations made in the previous report dated December 14, 2017 and should testify as to those findings and those findings only. WHEREFORE, defendant Ullman requests that the Court preclude plaintiffs from (1) introducing the untimely report of expert Judith Kahn dated December 19, 2017, (2) preclude the expert from testifying as to the contents of said report and (3) plaintiff be held to the report previously submitted on December 14, Dated: White Plains, New York January 22, 2018 BARTLE T LLP By: SARA I. TOMANIO, ESQ. Attorneys for Defendant REISA F. ULLMAN, M.D. 81 Main Street, Suite 400 White Plains, New York (914) I TO: JAROSLAWICZ & JAROS, LLC Attorneys for Plaintiff 225 Broadway, 24th Floor New York, New York Tel.: (212) of 11

11 GABRIELE & MARANO, LLP Attorneys for Defendant ALEXANDER FALKOVSKY, D.O. 100 Quentin Roosevelt Blvd. Garden City, New York Tel.: (516) I 1I I 11 of 11