Talbert v C.A.C. Indus., Inc. 2024 NY Slip Op 33498(U) October 2, 2024 Supreme Court, New York County Docket Number: Index No. 154468/2017 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154468/2017 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 10/03/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 40 Justice --------------------X INDEX NO. 154468/2017 LISBETH E. TALBERT. MOTION DATE 05/30/2024 Plaintiff, MOTION SEQ. NO. 006 - V-
· C.A.C. INDUSTRIES, INC.,STEVEN J. FOULDS DECISION + ORDER ON MOTION Defendant. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 117, 118, 119, 120, 121,122,123,124,125,126,127,132,133,134,135,136,137,138,139,140,149,150,151,152,162, 163,164,165 were read on this motion to/for STRIKE PLEADINGS
Upon the foregoing documents, and after oral arguments, it is ordered that defendants
C.A.C. Industries, Inc. and Steven J. Foulds' order to show cause to strike plaintiffs Second
Supplemental Bill of Particulars (hereinafter referred to as the "Second BP") dated February 22,
2024, to strike plaintiff's expert disclosures for Dr. Mark McMahon and Dr. Ali Guy, to preclude
plaintiff from presenting evidence at trial related to the injuries claimed in the Second BP, to
vacate the Note of Issue, and to stay the trial is decided below. Plaintiff opposes and cross-moves
to preclude defendants' biomechanical expert and to conduct a Frye hearing. Defendants reply
and oppose plaintiff's cross-motion. Plaintiff replies to the cross-motion.
With regards to defendants' order to show cause, they argue that plaintiffs Second BP
must be stricken as it was untimely filed and raises a new category of damages not previously
claimed. Moving defendants further argue that both of plaintiffs expert disclosures were
exchanged on the eve of trial and would be duplicative of the expert treating doctors.
Plaintiff opposes the instant order to show cause arguing that defendants knew of the
154468/2017 TALBERT, LISBETH E. vs. C.A.C. INDUSTRIES, INC. Page 1 of 5 Motion No. 006
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right shoulder surgery which was claimed in the Second BP as a right shoulder injury was
claimed in the first Bill of Particulars. Plaintiff further argues that CPLR §3101 (d) does not
specify a particular time frame for the expert disclosure. According to plaintiff, such statute
states that the disclosures must be made with "appropriate notice", which plaintiff argues was
done in this action. Plaintiff argues that the expert disclosures and the reports were sent to
defendants expeditiously following the physical examinations done by the two expert doctors. As
such, plaintiff contends that there was no willful failure to disclose the experts.
Here, at oral arguments, lengthy discussions were held in an attempt to resolve the instant
order to show cause, however, the parties were unable to come to a resolution regarding
additional discovery necessary for this action to be trial ready. As a result, the trial date was
adjourned and no additional discovery was agreed to, such that no additional discovery has been
completed since the filing of the instant Order to Show Cause.
In this action, plaintiff filed the Note oflssue on May 2, 2022. Following the filing of the
Note oflssue, which marked this action trial ready, this case was scheduled for three settlement
conferences, the last of which was held on December 13, 2023. On such date, a trial date of
March 4, 2024 was chosen by the parties. Eleven days before the March 4, 2024 trial date,
plaintiff filed the Second BP. Plaintiffs two expert disclosures were served on February 7, 2024
and February 26, 2024. The Court notes that CPLR §3042(b) explicitly states that the bill of
particulars may be amended "once as of course prior to the filing of a note of issue." It is
undisputed that plaintiff failed to obtain leave of court prior to filing the Second BP, which was
filed subsequent to the filing of the Note of Issue. The Second BP claims a right shoulder surgery
that was not claimed in the first Bill of Particulars dated July 27, 2017. Although plaintiff argues
that defendants knew of such surgery, defendants' knowledge of a surgery does not obviate
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plaintiff's obligation to provide sufficient notice of all of her injuries and to claim all such
injuries. Notably, while plaintiff contends that defendants had knowledge of the 2018 shoulder
surgery, the report of defendants' medical expert, Jeffrey D. Klein, M.D., dated March 30, 2020,
specifically states that plaintiff "was ... involved in a motor vehicle accident in 2015 in which she
injured her right shoulder; she denied a neck or lower back injury related to this accident. ... This
information is what was given by the claimant at our evaluation." Notice of Motion, Mot. Seq.
No. 005, Exh. D, Dr. Klein's IME Report, dated March 30, 2020, p. 2. Thus, defendants
attributed the right shoulder injury and surgery to plaintiff's 2015 motor vehicle accident, rather
than to plaintiff's 2016 accident which is the subject of the instant action. Dr. Klein's IME
Report further states that "right shoulder arthroscopy in 2015 with revision in 2016 (both prior to
current accident)". Id The Court notes that the shoulder surgery at issue herein was performed in
June of 2018, over five and a half years prior to the filing of the Second BP, and nearly four
years prior to the filing of the Note of Issue. There is no mention of the June 2018 right shoulder
surgery in Dr. Klein's IME Report, dated March 30, 2020, with regard to the instant action. Even
if this Court considers the Second BP as a "supplemental" bill of particulars, rather than an
amended bill of particulars, it is still untimely pursuant to CPLR §3043(b). Such statute states
that "[a] party may serve a supplemental bill of particulars with respect to claims of continuing
special damages ... without leave of court at any time, but not less than thirty days prior to trial."
CPLR §3043(b). The Second BP was filed a mere 11 days prior to the March 4, 2024 trial date.
Thus, plaintiffs Second BP was untimely served and filed, and is hereby stricken, and plaintiff is
precluded from presenting evidence at trial related to the injuries claimed in the Second BP.
As to the portion of defendants' motion seeking to strike plaintiffs expert disclosures of
Dr. McMahon and Dr. Guy, the Court finds that plaintiff failed to provide "appropriate notice"
154468/2017 TALBERT, LISBETH E. vs. C.A.C. INDUSTRIES, INC. Page 3 of 5 Motion No. 006
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pursuant to CPLR §3101 ( d). Such statute, relied upon by plaintiff, states that "where a party for
good cause shown retains an expert an insufficient period of time before the commencement of
trial to give appropriate notice thereof, the party shall not thereupon be precluded from
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Talbert v C.A.C. Indus., Inc. 2024 NY Slip Op 33498(U) October 2, 2024 Supreme Court, New York County Docket Number: Index No. 154468/2017 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 154468/2017 NYSCEF DOC. NO. 171 RECEIVED NYSCEF: 10/03/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 40 Justice --------------------X INDEX NO. 154468/2017 LISBETH E. TALBERT. MOTION DATE 05/30/2024 Plaintiff, MOTION SEQ. NO. 006 - V-
· C.A.C. INDUSTRIES, INC.,STEVEN J. FOULDS DECISION + ORDER ON MOTION Defendant. -------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 006) 117, 118, 119, 120, 121,122,123,124,125,126,127,132,133,134,135,136,137,138,139,140,149,150,151,152,162, 163,164,165 were read on this motion to/for STRIKE PLEADINGS
Upon the foregoing documents, and after oral arguments, it is ordered that defendants
C.A.C. Industries, Inc. and Steven J. Foulds' order to show cause to strike plaintiffs Second
Supplemental Bill of Particulars (hereinafter referred to as the "Second BP") dated February 22,
2024, to strike plaintiff's expert disclosures for Dr. Mark McMahon and Dr. Ali Guy, to preclude
plaintiff from presenting evidence at trial related to the injuries claimed in the Second BP, to
vacate the Note of Issue, and to stay the trial is decided below. Plaintiff opposes and cross-moves
to preclude defendants' biomechanical expert and to conduct a Frye hearing. Defendants reply
and oppose plaintiff's cross-motion. Plaintiff replies to the cross-motion.
With regards to defendants' order to show cause, they argue that plaintiffs Second BP
must be stricken as it was untimely filed and raises a new category of damages not previously
claimed. Moving defendants further argue that both of plaintiffs expert disclosures were
exchanged on the eve of trial and would be duplicative of the expert treating doctors.
Plaintiff opposes the instant order to show cause arguing that defendants knew of the
154468/2017 TALBERT, LISBETH E. vs. C.A.C. INDUSTRIES, INC. Page 1 of 5 Motion No. 006
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right shoulder surgery which was claimed in the Second BP as a right shoulder injury was
claimed in the first Bill of Particulars. Plaintiff further argues that CPLR §3101 (d) does not
specify a particular time frame for the expert disclosure. According to plaintiff, such statute
states that the disclosures must be made with "appropriate notice", which plaintiff argues was
done in this action. Plaintiff argues that the expert disclosures and the reports were sent to
defendants expeditiously following the physical examinations done by the two expert doctors. As
such, plaintiff contends that there was no willful failure to disclose the experts.
Here, at oral arguments, lengthy discussions were held in an attempt to resolve the instant
order to show cause, however, the parties were unable to come to a resolution regarding
additional discovery necessary for this action to be trial ready. As a result, the trial date was
adjourned and no additional discovery was agreed to, such that no additional discovery has been
completed since the filing of the instant Order to Show Cause.
In this action, plaintiff filed the Note oflssue on May 2, 2022. Following the filing of the
Note oflssue, which marked this action trial ready, this case was scheduled for three settlement
conferences, the last of which was held on December 13, 2023. On such date, a trial date of
March 4, 2024 was chosen by the parties. Eleven days before the March 4, 2024 trial date,
plaintiff filed the Second BP. Plaintiffs two expert disclosures were served on February 7, 2024
and February 26, 2024. The Court notes that CPLR §3042(b) explicitly states that the bill of
particulars may be amended "once as of course prior to the filing of a note of issue." It is
undisputed that plaintiff failed to obtain leave of court prior to filing the Second BP, which was
filed subsequent to the filing of the Note of Issue. The Second BP claims a right shoulder surgery
that was not claimed in the first Bill of Particulars dated July 27, 2017. Although plaintiff argues
that defendants knew of such surgery, defendants' knowledge of a surgery does not obviate
154468/2017 TALBERT, LISBETH E. vs. C.A.C. INDUSTRIES, INC. Page 2of5 Motion No. 006
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plaintiff's obligation to provide sufficient notice of all of her injuries and to claim all such
injuries. Notably, while plaintiff contends that defendants had knowledge of the 2018 shoulder
surgery, the report of defendants' medical expert, Jeffrey D. Klein, M.D., dated March 30, 2020,
specifically states that plaintiff "was ... involved in a motor vehicle accident in 2015 in which she
injured her right shoulder; she denied a neck or lower back injury related to this accident. ... This
information is what was given by the claimant at our evaluation." Notice of Motion, Mot. Seq.
No. 005, Exh. D, Dr. Klein's IME Report, dated March 30, 2020, p. 2. Thus, defendants
attributed the right shoulder injury and surgery to plaintiff's 2015 motor vehicle accident, rather
than to plaintiff's 2016 accident which is the subject of the instant action. Dr. Klein's IME
Report further states that "right shoulder arthroscopy in 2015 with revision in 2016 (both prior to
current accident)". Id The Court notes that the shoulder surgery at issue herein was performed in
June of 2018, over five and a half years prior to the filing of the Second BP, and nearly four
years prior to the filing of the Note of Issue. There is no mention of the June 2018 right shoulder
surgery in Dr. Klein's IME Report, dated March 30, 2020, with regard to the instant action. Even
if this Court considers the Second BP as a "supplemental" bill of particulars, rather than an
amended bill of particulars, it is still untimely pursuant to CPLR §3043(b). Such statute states
that "[a] party may serve a supplemental bill of particulars with respect to claims of continuing
special damages ... without leave of court at any time, but not less than thirty days prior to trial."
CPLR §3043(b). The Second BP was filed a mere 11 days prior to the March 4, 2024 trial date.
Thus, plaintiffs Second BP was untimely served and filed, and is hereby stricken, and plaintiff is
precluded from presenting evidence at trial related to the injuries claimed in the Second BP.
As to the portion of defendants' motion seeking to strike plaintiffs expert disclosures of
Dr. McMahon and Dr. Guy, the Court finds that plaintiff failed to provide "appropriate notice"
154468/2017 TALBERT, LISBETH E. vs. C.A.C. INDUSTRIES, INC. Page 3 of 5 Motion No. 006
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pursuant to CPLR §3101 ( d). Such statute, relied upon by plaintiff, states that "where a party for
good cause shown retains an expert an insufficient period of time before the commencement of
trial to give appropriate notice thereof, the party shall not thereupon be precluded from
introducing the expert's testimony at the trial solely on grounds of noncompliance with this
paragraph." CPLR §3 l0l(d)(l)(i). Here, plaintiff has failed to provide any reason for the delay in
retaining Dr. McMahon and Dr. Guy, let alone establish good cause for the delay. One such
disclosure was a mere seven days prior to the original trial date. As such, plaintiffs expert
disclosures for Dr. Mark McMahon and Dr. Ali Guy are stricken.
As to plaintiffs cross-motion seeking to exclude defendants' biomechanical expert, Dr.
Ronald J. Fijalkowski, Ph.D., plaintiff argues that such expert must be precluded as his testimony
is not based upon generally accepted scientific methods. Alternatively, plaintiff seeks a Frye
hearing. In opposition, defendants argue that Dr. Fijalkowski's methods are peer-reviewed and
are generally accepted in the field.
It is well settled that expert testimony in New York must meet the Frye standard, as
articulated by the Court of Appeals in People v Wesley. "The long-recognized rule of Frye v
United States ... is that expert testimony based on scientific principles or procedures is admissible
but only after a principle or procedure has 'gained general acceptance' in its specified field."
People v Wesley, 83 NY2d 417,422 (1994) (citing Frye v United States, 293 F. 1013 [D.C. Cir.
1923]). As to methodology, "[t]he burden of proving general acceptance rests upon the party
offering the disputed expert testimony". Dovberg v Laubach, 154 A.D. 3d 810, 813 (2nd Dept
2017).
Defendants have offered evidence herein to establish that Dr. Fijalkowski is using a
generally accepted methodology and one that has been accepted in many similar cases, as well as
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having been peer reviewed. See defendants' Affirmation in Opposition dated April 8, 2024, Exh.
A, Affidavit of Ronald J. Fijalkowski, Ph.D. in Opposition to Plaintiffs Notice of Cross-Motion
and Affirmation in Support, p. 1-6. Contrarily, plaintiff offers no expert opinion to dispute that
these methods are not generally scientifically accepted. In the instant action, defendants have
provided evidence that Dr. Filjalkowski is using methods that are generally acceptable in the
scientific community. Thus, plaintiffs arguments regarding the testimony of Dr. Filjalkowski
applies to the weight of the expert's testimony rather than preclusion. As such, plaintiff's cross-
motion is denied.
Accordingly, it is
ORDERED that defendants' order to show cause to strike is granted in part to the extent
that plaintiffs Second BP dated February 22, 2024 is stricken, plaintiff is precluded from
presenting evidence at trial related to the injuries claimed in the Second BP, and plaintiffs expert
disclosures for Dr. Mark McMahon and Dr. Ali Guy are stricken; and it is further
ORDERED that plaintiffs cross-motion seeking to preclude defendants' biomechanical
expert is denied in its entirety; and it is further
ORDERED that the parties shall appear on November 7, 2024 at 9:30am, in Part 40, 60
Centre Street, New York, NY 10007 for trial; and it is further
ORDERED that within 21 days of entry, defendants shall serve a copy of this
decision/order upon all parties with notice of entry.
Q/l{:1 This constitutes the Decision/Order of the Court.
10/02/2024 DATE
~ CHECK ONE: CASE DISPOSED ~ NON-FINAL OISPOSITION GRANTED □ DENIED X GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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