Junger v. Singh

• Citation: 514 F.Supp.3d 579
• Decision Date: 22 January 2021
• Docket Number: 1:16-CV-00564 EAW
• Court: U.S. District Court — Western District of New York
• Parties: Kathryn JUNGER and Robert F. Danzi, as co-administrators of the estate of George Edward Johnson, deceased, and Kathryn Junger, individually, Plaintiffs, v. Harpreet SINGH, M.D., and Ashokkumar J. Kothari, M.D., Defendants.

514 F.Supp.3d 579

Kathryn JUNGER and Robert F. Danzi, as co-administrators of the estate of George Edward Johnson, deceased, and Kathryn Junger, individually, Plaintiffs,

v.Harpreet SINGH, M.D., and Ashokkumar J. Kothari, M.D., Defendants.

1:16-CV-00564 EAW

United States District Court, W.D. New York.

Signed January 22, 2021

Christine a. Coscia, Robert F. Danzi, The Law Office of Robert Danzi, Jericho, NY, for Plaintiffs.

Arianna Elise Kwiatkowski, Dennis R. McCoy, Barclay Damon, LLP, Buffalo, NY, Bryan C. Larsen, Pro Hac Vice, L&G Law Group LLP, Chicago, IL, for Defendant Harpreet Singh, M.D.

Jesse B. Baldwin, Kara M. Addelman, Kenney Shelton Liptak Nowak, LLP, Buffalo, NY, for Defendant Ashokkumar J. Kothari, M.D.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiffs Kathryn Junger ("Junger") and Robert Danzi, the co-administrators of the estate of George Edward Johnson ("Johnson" or "Decedent"), commenced the instant action on July 13, 2016, on behalf of Johnson's estate and Junger individually¹ . (Dkt. 1). In the Amended Complaint, which is the operative pleading, Plaintiffs assert claims against defendants Dr. Harpreet Singh ("Dr. Singh") and Dr. Ashokkumar J. Kothari ("Dr. Kothari") (collectively "Defendants") sounding in medical malpractice and wrongful death. (Dkt. 4).² Junger also asserts loss of consortium claims in her individual capacity. (Id. ).

Currently pending before the Court are seven motions in limine related to the jury trial originally scheduled to commence on May 11, 2020, and subsequently adjourned without date. (Dkt. 167; Dkt. 168; Dkt. 169; Dkt. 170; Dkt. 176; Dkt. 184). The Court's resolution of these motions is set forth below.

FACTUAL BACKGROUND

The factual background of this matter is set forth in detail in the Court's Decision and Order dated August 8, 2019 (Dkt. 144), familiarity with which is assumed for purposes of the instant Decision and Order. To briefly summarize, on August 4, 2014, Decedent was taken by ambulance to Olean General Hospital ("OGH") complaining of chest pain and nausea. (Id. at 2-3). Decedent was treated in the emergency room by Dr. Teresa M. Deak ("Dr. Deak") and Dr. Robert S. Buckley ("Dr. Buckley"). (Id. at 3-4). Dr. Buckley requested a consultation with interventional cardiologist Dr. Christopher T. Mallavarapu ("Dr. Mallavarapu"), who performed a cardiac catheterization on Decedent, including an aortogram. (Id. at 5). At the time he performed the aortogram, Dr. Mallavarapu did not observe an aortic dissection. (Id. ). However, Dr. Mallavarapu subsequently acknowledged that the aortogram was indicative of an aortic dissection. (Id. at 5-6).

Dr. Kothari was called for a cardiology consultation regarding Decedent's case after the cardiac catheterization and was informed that the aortogram had not revealed an aortic dissection. (Id. at 6). Dr. Kothari treated Decedent on both August 4, 2014, and August 5, 2014. (Id. at 6-7). Dr. Kothari signed Decedent off cardiology service on the morning of August 5, 2014. (Id. at 7). Dr. Singh, a hospitalist, discharged Decedent from OGH that same day. (Id. ). On August 8, 2014, Decedent died due to hemopericardium due to or as a consequence of ruptured dissection of the aorta. (Id. ).

PROCEDURAL BACKGROUND

Plaintiffs commenced the instant action on July 13, 2016. (Dkt. 1). Plaintiffs filed an Amended Complaint (Dkt. 4) on July 15, 2016, which is the operative pleading. The Amended Complaint names as defendants Dr. Singh and Dr. Kothari, as well as OGH, Olean General Healthcare Systems LLC ("OGHS"), Dr. Deak, Dr. Buckley, Exigence Medical of Olean PLLC ("Exigence"), and Dr. Mallavarapu. (Id. at 1). OGHS was discontinued as a defendant via stipulation on November 15, 2016. (Dkt. 60; Dkt. 61).

Discovery in the matter closed on July 30, 2018. (Dkt. 96). On October 29, 2018, Dr. Deak, Dr. Buckley, Exigence, Dr. Kothari, and OGH filed motions for summary judgment. (Dkt. 119; Dkt. 120; Dkt. 122; Dkt. 123). The Court entered a Decision and Order on August 8, 2019, granting Dr. Deak's, Dr. Buckley's, and Exigence's motions for summary judgment, granting in part and denying in part OGH's motion for summary judgment, and denying Dr. Kothari's motion for summary judgment. (Dkt. 144).

On September 4, 2019, the Court entered a pretrial order that, among other things, scheduled a jury trial to commence on May 11, 2020, and ordered the filing of motions in limine by April 1, 2020. (Dkt. 151).

On December 16, 2019, Plaintiffs sent the Court a letter indicating that they had settled their claims against Dr. Mallavarapu. (Dkt. 152). Dr. Mallavarapu and OGH were subsequently terminated as defendants in this matter via stipulation. (Dkt. 159; Dkt. 160; Dkt. 161; Dkt. 162).

On April 1, 2020, the parties filed, among other pretrial filings, the following motions in limine: (1) a motion by Dr. Kothari to preclude testimony by Plaintiffs’ expert economist, Edmund H. Mantell, Ph.D. ("Dr. Mantell") (Dkt. 167); (2) a motion by Plaintiffs to disqualify Dr. Kothari's accounting expert, Michael Carnegie (Dkt. 168); (3) a motion by Plaintiffs to preclude Dr. Nishith Amin, Dr. Singh's expert interventional cardiologist, from providing opinion testimony as to deviation from good and accepted medical practice on the part of Dr. Mallavarapu or any other defendant or former defendant (Dkt. 169); (4) a motion by Plaintiffs to preclude Dr. Judy Ann Joy-Pardi, Dr. Kothari's expert non-interventional cardiologist, from providing opinion testimony as to deviation from good and accepted medical practice on the part of Dr. Mallavarapu or any other defendant or former defendant (Dkt. 170); (5) a motion by Plaintiffs to preclude cross-examination of Dr. Mantell on prior judicial criticism (Dkt. 172); and (6) a motion by Dr. Singh to strike Dr. Mantell's expert opinions (Dkt. 176).

Dr. Singh moved to adjourn the scheduled trial due to the ongoing COVID-19 pandemic on April 3, 2020. (Dkt. 178). The Court granted the motion and adjourned the trial without date on April 6, 2020, but kept in place the filing deadlines set forth in the Pretrial Order. (Dkt. 181).

On April 9 and 10, 2020, the parties filed response papers, and Dr. Singh filed a cross-motion to preclude Plaintiffs from offering evidence that Dr. Mallavarapu did not commit malpractice in his treatment of Decedent. (Dkt. 182; Dkt. 183; Dkt. 184). Replies and Plaintiffs’ response to Dr. Singh's cross-motion were filed on April 14 and 15, 2020. (Dkt. 185; Dkt. 186; Dkt. 187; Dkt. 188; Dkt. 190; Dkt. 194).

On April 15, 2020, Dr. Singh also filed objections to the portions of Plaintiffs’ trial memorandum indicating that they: (1) intend to introduce deposition testimony of Dr. Deak, Dr. Buckley, and Dr. Mallavarapu at trial; (2) intend to introduce portions of the deposition testimony of Dr. Mallavarapu's expert, Dr. Philip B. Duncan, at trial; and (3) intend to call Dr. Singh's expert economist, Matthew McCabe, in presenting their direct case. (Dkt. 195). Plaintiffs filed a reply to Dr. Singh's objections later that same day. (Dkt. 199).

The Court held oral argument on the pending motions in limine on June 12, 2020, continuing on June 18, 2020, and reserved decision. (Dkt. 207; Dkt. 209).

DISCUSSION

I. Motions Related to Dr. Mantell's Testimony

Defendants have both filed motions in limine to preclude Dr. Mantell, Plaintiffs’ expert economist, from testifying at trial. (See Dkt. 167; Dkt. 176). Plaintiffs have also filed a motion in limine regarding Dr. Mantell's testimony, requesting that the Court preclude Defendants from cross-examining Dr. Mantell regarding judicial criticism he received for testimony he provided in 1984 and 1991. (Dkt. 172).

A. Defendants’ Motions to Preclude Testimony by Dr. Mantell

Defendants move to preclude Dr. Mantell's testimony because it "relies on hearsay, is based on unsupportable assertions and assumptions, ignores relevant evidence, and is the product of a flawed analysis." (See Dkt. 176 at 8; see also Dkt. 167 at 2 ("Dr. Mantell's testimony would be speculative and without foundation.")). Dr. Kothari has also argued, in the alternative, that Dr. Mantell's testimony should be limited to the scope of his original report. (See Dkt. 167 at 2).

1. Admissibility of Dr. Mantell's Testimony

Defendants challenge the following specific "unsupported assumptions" upon which Dr. Mantell's testimony is allegedly based: (1) Decedent would have resumed his full-time legal practice effective September 2016, until age 75; (2) Decedent's gross professional revenues in 2017 would have been equal to his gross professional revenues in 2007; and (3) Decedent would have rendered his customary household services for a weekly average of 16 hours for every year from 2017 until age 82.2. (See Dkt. 176 at 10-11). Defendants contend that these assumptions are hearsay, "based primarily on the conclusory and self-serving assertions of the decedent's wife, have no basis in fact and are therefore unreliable. Further, they are not supported by published statistical data regarding those projections, which would be the assumptions that experts such as Dr. Mantell would otherwise rely on." (Id. at 11). For example, Defendants contend that Plaintiffs’ counsel instructed Dr. Mantell to assume that Decedent would work until age 75, rather than the age specified by the statistical tables, which is younger. (Id. at 11-12). Dr. Mantell also acknowledged that although the statistical tables take into account a person's physical condition, he was instructed to disregard the tables. (Id. at 11). Further, Defendants argue that Dr. Mantell "conducted no independent analysis of what other lawyers in the town where the decedent worked were making, what their average income was, what the decedent's hourly rate was in 2007, or what the decedent's hourly rate was going to be in 2017," but rather assumed that Decedent's gross professional revenues in 2017 would have been equal to his gross professional...