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NO: MMX CV 17 6017720S SUPERIOR COURT
CHARLES BEYER J.D. OF MIDDLESEX
Vv. AT MIDDLETOWN
BROWNSTONE EXPLORATION &
DISCOVERY PARK, LLC MAY 2, 2024
DEFENDANT, BROWNSTONE EXPLORATION & DISCOVERY PARK, LLC'S,
OBJECTION TO PLAINTIFF’S MOTION TO PRECLUDE AND LIMIT OPINIONS
AND TESTIMONY OF LLOYD SABERSKI, MD
The defendant, Brownstone Exploration & Discovery Park, LLC (hereinafter
"Brownstone"), hereby objects to the plaintiffs Motion to Preclude Testimony and Limit
Opinions and Testimony of Lloyd Saberski, MD dated May 1, 2024 [docket entry
#294.00]. The plaintiff, again, seeks to preclude an expert that he has disclosed. Dr.
Saberski has been disclosed as an expert witness by both parties in this case.
Furthermore, the plaintiff has already introduced testimony from Dr. Saberski into
evidence that addresses the subject he now seeks to preclude Dr. Saberski from
providing testimony on, thus waiving any objection to further testimony by Dr. Saberski
on the subject. Moreover, Dr. Saberski is qualified to address the treatment of wounds,
including skin grafts, as a certified pain management and internal medicine specialist.
Accordingly, plaintiffs counsel’s motion to preclude or limit the testimony of Dr.
Saberski should be denied.
I BACKGROUND
The plaintiff injured his left foot at the defendant's facility in August of 2016. See
September 18, 2020 Amended Complaint [docket entry #197.00]. During the course of
the plaintiffs treatment for his injury, his treating foot surgeon, Dr. Elyna Perez, who
recommended, on multiple occasions, that he undergo a grafting procedure on the
laceration to his foot, but the plaintiff opted notto pursue that recommendation.
On December 13, 2023, the defendant disclosed Dr. Lloyd Saberski to “testify
regarding his October 30, 2023 independent medical examination of the plaintiff, as
well as his examination of the plaintiff's medical records pertaining to injuries the
plaintiff allegedly sustained as a result of the incident which is the subjectof the
plaintiff's complaint.” See Defendant's December 13, 2023 Expert Disclosure of Dr.
Lloyd Saberski, p. 1 [docket entry #221.00]. The disclosure further indicates that Dr.
Saberski would testify “in accordance with his report.... [and] in accordance with his
review of the medical records/reports and such other evidence that may come to his
attention before and during trial.” Id. Additionally, the disclosures indicates that “Dr.
Saberski is expected to testify that, with a reasonable degree of medical certainty, the
plaintiff's clinical presentation has been principally an expression of mononeuropathy.”
Id. at p. 2.
Dr. Saberski was deposed by plaintiffs counsel on April 5, 2024, wherein he
addressed the causes of nerve injuries, the loss of sensory perception, the impact of
blood vessel damage and regrowth, and scar tissue, including the use of vascular flap
graft procedures to address these issues. See April 5, 2024 Deposition of Dr. Lloyd
Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14, attached as ExhibitA. Shortly
thereafter, on April 9, 2024, the plaintiff disclosed Dr. Saberski, indicating that he
would testify “regarding his October 30, 2023 independent medical examination of the
plaintiff, as well as his examination of the plaintiff's medical records pertaining to
injuries the plaintiff sustained as a result of the incident which is the subject o the
plaintiff's complaint.” See Plaintiffs April 9, 2024 Disclosure of Expert Witness, p. 1
[docket entry # 239.00]. The disclosure further indicates that “[t]he substance of facts
and opinions to which Dr. Saberski will testify are in accordance with his expert report,
his examination of the plaintiff, his review of the plaintiff's medical reports, and his
deposition testimony of April 5, 2024.” Id., p. 2. That testimony would include the
testimony regarding the vascular flap and grafting noted above.
Trial then commenced on April 30, 2024, and the plaintiff played a portion of Dr.
Saberski’s deposition testimony, including the testimony regarding the vascular flap
grafting procedure, as well as the causes of nerve injuries, the loss of sensory
perception, the impactof blood vessel damage and regrowth, and scar tissue, all of
which relate to the consequences of the failure to pursue the graft procedure. See
April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14,
attached as ExhibitA. The plaintiff also consented to the introduction of a portion of
the video deposition testimony of Dr. Saberski by the defendant which also included
the testimony regarding the vascular flap grafting procedure. See ExhibitA, pp. 75-
14-76:5.
ll. DR. SABERSKI HAS BEEN SUFFICIENTLY DISCLOSED
Plaintiff's counsel’s argument is circular. Essentially, he is arguing that the
defendant that has not put in any evidence regarding the graft orto support a claim for
mitigation of damages, so Dr. Saberski should not be allowed to address the subjectof
the graft. However, the defendant has a witness, Dr. Saberski, who will address that
very issue. The defendant simply has not yet had the opportunity to fully address the
subject with Dr. Saberski yet since the plaintiff has not yet rested. The plaintiff cannot
preclude the defendant from putting in the very evidence the plaintiff claims that the
defendant needs to support its claim regarding mitigation of damages.
Moreover, the defendant disclosed Dr. Saberski to address his independent
medical examination and his analysis of the plaintiff's treatment records which include
the recommendations of Dr. Perez (who is also qualified to provide testimony
regarding the subject of the graft as she is a foot surgeon). See Defendant's
December 13, 2023 Expert Disclosure of Dr. Lloyd Saberski, p. 1 [docket entry
#221.00]. Generally, one does not need to redisclose their expertto address any
additional opinions that are teased out by opposing counsel at the deposition of the
expert. The plaintiff was also sufficiently apprised of the opinions by way of plaintiff's
counsel’s questioning of Dr. Saberski on the subject at his deposition, particularly
since Dr. Saberski’s disclosure included his analysis of the plaintiff's treatment records
that address the subject.
Moreover, the plaintiff has disclosed Dr. Saberski regarding his opinions,
including those asserted during his deposition, which include the opinions
regarding the graft. See Plaintiffs April 9, 2024 Disclosure of Expert Witness, p. 1
[docket entry #239.00]; April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3,
75:11-76:5, 89:22-90:14, attached as ExhibitA. The plaintiff has also already
introduced testimony on the subject that he now seeks to keep out by way of playing
portions of Dr. Saberski’s deposition testimony during the plaintiff's case in chief. See
April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14,
attached as ExhibitA. The plaintiff has opened the doorto further testimony on the
subject, particularly since the plaintiffs piecemeal cobbling together of the testimony
did not sufficiently allow for a clear explanation on the subject.
In short, Dr. Saberski has been sufficiently disclosed to address the matter the
plaintiff is trying to keep him from testifying about. Moreover, the plaintiff has opened
the door to testimony on the subject by including testimony on the subject during his
case in chief. As such, the plaintiffs motion is without merit and should be denied.
Ill. DR. SABERSKI IS QUALIFIED TO OFFER OPINIONS REGARDING THE
GRAFTING
Plaintiff's counsel also baldly claims that Dr. Saberski is not qualified to testify
regarding the foot grafting procedure. However, he has no support
for this claim. Dr.
Saberski is board certified in internal medicine and anesthesiology with an added
qualification in pain medicine. See ExhibitA, pp. 15:14-16:3. Dr. Saberski’s pain
management
and internal medicine work involve a vast understanding of medical
procedures and anatomy as he is tasked with dealing with the sequela of such
procedures and the failures to pursue such procedures. He also has to understand the
complete anatomy of the nervous system in orderto assess and address his pain
management
and internal medicine patients. Thus, he is more than qualified to
address the grafting procedure and the ramifications thereof.
Moreover, the question here is not about
the nitty gritty details of how to
perform the grafting procedure. Rather, the question is what is the purpose of the
procedure and what happens if the procedure is not pursued. In this case, Dr.
Saberski explained during his deposition how the procedure would impact the blood
vessels, blood flow, and scarring which can impact the nerves in the body, including, in
this case, the sural nerve which Dr. Saberski has opined was injured. The plaintiff has
already introduced a portion of Dr. Saberski’s deposition testimony on the subject
which allows the defendantto further address the subject.
Finally, plaintiff's counsel claims that Dr. Saberski is not qualified to address the
subject of the surgery by pointing to page 55 of plaintiff's trial exhibit 9 which is Dr.
Saberski’s IME report. However, plaintiff's counsel mischaracterizes and/or
misunderstands what Dr. Saberski is saying in that portion of his report. Although he
notes that “[t]o understand the risks of surgery directed at the left sural nerve,
consultation with a plastic surgeon, fellowship trained as microsurgeon required,” that
addresses any surgeries now or in the future related to the nerve itself. It does not
address the grafting procedure that was recommended and refused by the plaintiff at
the outset of his treatment. Thus, Dr. Saberski has in no way conceded that he is not
qualified to testify on the subject.
IV. THE PLAINTIFF’S MOTION IS UNTIMELY
The plaintiff's motion is untimely as the parties are in the middle of trial and Dr.
Saberski has been on the witnesses list since early March of 2024. As the plaintiff
previously argued in a motion for sanctions which was filed against defense counsel,
on April 19, 2024, motions in limine were due on April 9, 2024, per order of the court.
See Plaintiff's April 19, 2024 Motion for Order of Sanctions [docket entry #269.00].
Although the court, Shah, J ., subsequently allowed the filing of additional motions
based on issues that had arisen since the April 9, 2024 deadline for motions in limine,
those motions were to be filed prior to the commencementof trial (and, accordingly,
led to the denial of the motion for sanctions). Plaintiff's counsel was aware of Dr.
Saberski’s testimony well in advance of either of those deadlines as his testimony was
obtained on April 5, 2024 during Dr. Saberski’s deposition. Accordingly, any motions
on the subject should have been filed prior to the state of trial. As such, the plaintiff's
motion is untimely.
Vv. CONCLUSION
WHEREFORE, the defendant, Brownstone Exploration and Discovery Park,
LLC, respectfully requests that the Court sustain its objection and deny the plaintiff's
motion to preclude.
DEFENDANT,
BROWNSTONE EXPLORATION &
DISCOVERY PARK, LLC
By_/s/ Rachel M. Bradford
Christopher M. Vossler
Rachel M. Bradford
Howd & Ludorf, LLC
100 Great Meadow Road, Suite 201
Wethersfield, CT 06109
(860) 249-1361
(860) 240-7665 (Fax)
Juris No.: 28228
CERTIFICATION
This is to certify that a copy of the foregoing Objection was or will immediately
be mailed or delivered electronically or non-electronically on May 2, 2024 to all parties
and self-represented parties of record and to all parties who have not appeared in this
matter and that written consent for electronic delivery was received from all attorneys
and self-represented parties receiving electronic delivery.
Andrew P. Garza, Esquire
Connecticut Trial Firm, LLC
437 Naubuc Avenue, Ste. 107
Glastonbury, CT 06033
/s/ Rachel
ei hati M. Bradford
rota ee
Rachel M. Bradford
E XHIBIT A — —= ——
— —==
In The Matter Of:
Charles Beyer v Brownstone Exploration &
Discovery Park LLC
Dr. Lloyd R. Saberski
April 5, 2024
A Plus Reporting Service LLC
55 Whiting Street, Suite 1A
Plainville, CT 06062
203.269.9976
—— <= —= J
Dr. Lloyd R. Saberski
any reason?
2 A No.
Q Have you ever been a named defendant ina
medical malpractice lawsuit?
A Only once that I recall and I was a
resident at the time so that dials it back to
I think 1987 and I did give a deposition but the
case disappeared. I was never involved. I don't
know what happened. I think the case settled but
10 I really was not -- I was a resident. I was not the
mover and shaker on the case and I think they let me
12 go anyway just because of my status. But that's the
13 only case I have been named in that I can think of.
14 Q. Are you board certified?
15
A Yes.
16 Q In what areas?
17 A Internal medicine and anesthesiology and
I have the added qualification in pain medicine.
19 Q What does that mean?
20 A I did a fellowship and then I qualified
21 for the exam when it was finally offered in 1993.
22 Q So does that mean you're also board
23 certified in pain management?
24 A I don't know if they call it that but
25 yes, I mean, that's what it means but I think they
Page: 15
Dr. Lloyd R. Saberski
called it added qualification examination but, yes,
for all intent and purposes it's the highest level
of achievement in the field of pain medicine.
for my own personal curiosity, is
Q This is
there a reason why they treat that differently than
other areas that you can become board certified in?
A I can't explain it, no. Maybe when they
developed it it was just called the added
qualification. It may have to do with the fact that
10 the ACGME recognized board for everybody is
11 administered by the anesthesiology -- American Board
12 of Anesthesiology. And anybody can take it for any
13 subspecialty. You can be a gynecologist, you can be
14 a psychologist, neurologist, you just have to do an
15 ACGME recognized fellowship. So I think in the
16 process they wanted to have the language different
17 so that if you had the added qualification of pain
18 management that's the same qualification for GYN or
19 a psychiatrist or for me. I suspect that has
20 something to do with it but I'm not sure.
21 Q Fair enough. All right. How is your
22 time divided professionally between clinical work,
23 academic work and administrative work?
24 A. Thank God I'm not doing much
25 administrative work anymore. I sold my medical
Page: 16
Dr. Lloyd R. Saberski
So now I would like to talk to you a
little bit about the sural nerve generally. So can
you explain to me what a sural nerve injury is? Is
it very simply an injury to the sural nerve? I
mean --
A That's it exactly.
7 Q. So I can go to medical school now.
A And an injury can be lots of different
injuries, the whole nerve, part of the nerve. It
can be an avulsion injury, the nerve can get wrapped
il up in scar tissue, parts of the nerve can have
12 diminished blood supply. It can be a lot of
13 different things causing nerve pain.
14 In this particular case, you know, I have
15 some ideas but all I can tell you is the location of
16 the pain, the loss of sensory perception in the
17 distribution of the sural nerve and the trauma, they
18 all coincide. They are basically one. They're all
19 the same. So that's how I know it's a sural nerve
20 injury.
21 If you want to get a little bit more
22 specific as to what's wrong with the sural nerve
23 today, it can be scar tissue. It actually has
24 probably damage to some of the fibers, at least the
25 distal fibers or it may be a blood flow issue based
Page: 52
Dr. Lloyd R. Saberski
on my differential testing of temperature just in
that one little area on the flap, where the flap
went.
Q. How is a sural nerve injury diagnosed?
A History and physical exam. I mean, you
can do electroconductive studies but
electroconductive studies have false negatives and
false positives and obviously I don't do
electroconductive studies. Dr. Hughes can better
10 explain this. But it depends where you put the
11 electrodes. If you put your electrodes on the sural
12 nerve, let's say behind the ankle bone, that covers
13 the sural nerve but it's not in the area of
14 question. You would have to get an electrode down
on the foot, you know, toward the little toe and
16 I don't know if they can do that.
to say are you saying that
17 Q So I was going
18 part of the problem with an EMG is human error to an
19 extent because --
20 A No, no, no. Okay, look. EMGs never can
21 diagnose sural neuralgia. Okay? Let's be clear
22 about that. EMGs look at only large myelinated
23 fibers that go to muscles. The sural nerve is not a
24 large myelinated fiber and does not go to muscle.
25 So you have to do a nerve conduction study of the
Page: 53
Dr. Lloyd R. Saberski
and that's outside of my specialty so I don't want
to go talk about it.
Q Okay. So I think I understand. It
sounds like maybe you don't want to step on the toes
of the other doctors but that you respect that
physicians have a certain level of discretion. And
would it be fair to say that you didn't see anything
in his medical records that seemed unnecessary or
not reasonably necessary?
10 A I did not.
reviewing Charlie's records, are you
Q From
12 aware the laceration became infected?
13 A Yes.
14 Q And what's your understanding of the
15 nature of that?
MS. BRADFORD: Objection.
17 A It became infected. It's not usual for
18 large wounds that have poor vascular supply which
belies the question of how they manage it. You
2¢ know, there's a different approach -- I mean,
21 essentially what they did is they allowed secondary
22 retention, meaning they just let it grow over and
23 scar over. Many times that's managed with what we
24 call a vascular flap. It's a type of grafting where
25 you rotate in a piece of tissue with fascia, and
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Dr. Lloyd R. Saberski
muscle perhaps, to protect the nerve but with a
fresh vascular supply so you get good blood flow.
So that would be the plastic surgical approach. And
I know they talked about it but it was declined by
the patient.
BY MS. MAHONY:
your opinion that -- well, I
Q So it's
think you said it, it's not unusual for an infection
like this to occur when you're dealing with a large
10 laceration?
11 A Yes.
12 Q All right. I think you said a few times
you agree with most of what Dr. Hughes said in his
14 reports so Dr. Hughes reports that Charlie is unable
15 to jog, right? Is that one of the things he
16 documents?
A That makes sense. I didn't ask him
18 specifically that question but he can walk. He says
19 when he's on macadam, hard surfaces it hurts more.
20 He goes to work every day. He wakes up in the
21 morning his pain level is one or so, or one and a
22 half, and by the end of the day it's a six. So
23 I would imagine if he went running that would
24 aggravate things quicker.
25 Q All right. And that pain and those sort
Page: 76
Dr. Lloyd R. Saberski
really injured to the core. We can't fix that. But
number two is a lot of the injuries are the nerve
has lost its glide inside a soft tissue plane. For
instance, nerves -- when you bend your elbow, for
example, your nerves in your elbow are moving back
and form smoothly in the fascial plane. But once
something gets all gunked up and scarred up when you
go to, let's say, bend your ankle up and down or
walk, that sural nerve can't really move very freely
10 because it's stuck in scar tissue. So there's a
11 whole world of trying to free it up. But in this
12 case that would be impossible given how big that
13 chunk of skin was and the big wound and all that
14 imflammatory stuff. And then the third type is the
18 nerve grows something like a neuroma which there are
16 a bunch of operations for that and there may or may
17 not be one here. When I was examining him there's a
18 thing called a Tinel's sign. I was banging my
19 finger down the sural nerve and I thought he had a
20 reproduction of pain from that. That's possible,
21 but again, not definitive.
22 Q So you think of the three nerve problems
23 that you just described Charlie's is more likely the
24 second one where the nerve lost its glide in the
25 soft tissue plane?
Page:89
Dr. Lloyd R. Saberski
A Well, I think that's a big chunk of it.
I think there's probably damage to a bunch of distal
nerve fibers too. I mean, let's face it. That was
a full thickness through the skin you've got to
remember, so I think some distal fibers got cut.
Now normally skin nerves grow back. There's
generally not a problem, especially these distal
ones. So what happened here. There was just bad
blood flow and there is still bad blood flow.
10 I know there is bad blood flow because I measured
11 the temperature and it's like nine degrees cooler or
12 eight degrees cooler in that spot, so there is bad
13 blood flow and so that impeded the skin nerves from
14 really maximizing their growth potential.
15 Q And we talked about I think what prompted
16 you to describe the three different problems in the
17 first place was my question about if the sural nerve
18 injury can be cured and it sounds like you're saying
19 with the kind of nerve injury that Charlie has it
20 cannot be cured?
21 A Yes, that is my opinion.
22 Q All right. And then you say in your
23 report you think it's far more common for someone to
24 have an atypical presentation of a common condition
25 like a sural nerve injury as opposed to a rare
Page: 90
Dr. Lloyd R. Saberski
CERTIFICATE OF REPORTER
I, Kathleen S. Norton, a Registered Professional
Reporter/Commissioner within and for the State of
Connecticut, do hereby certify that I took the
deposition of LLOYD R. SABERSKI, M.D., on APRIL 5,
2024, who was by me duly sworn to testify to the truth
and nothing but the truth; that he was thereupon
carefully examined upon his oath and his examination
reduced to writing under my direction by means of
Computer Assisted Transcription, and that this
deposition is a true record of the testimony given by
the witness.
I further certify that I am neither attorney nor
counsel for, nor related to, nor employed by any of the
parties to the action in which this deposition is taken
and further that I am not a relative or employee of any
attorney or counsel employed by the parties hereto, nor
financially interested in the outcome of the action.
IN WITNESS THEREOF, I have hereunto set my hand
April 15, 2024.
Keto 8 Meitin
Kathleen S. Norton, LSR #105
Notary Public
My commission expires: 8-31-2026
Page: 105
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NO: MMX CV 17 6017720S SUPERIOR COURT CHARLES BEYER J.D. OF MIDDLESEX Vv. AT MIDDLETOWN BROWNSTONE EXPLORATION & DISCOVERY PARK, LLC MAY 2, 2024 DEFENDANT, BROWNSTONE EXPLORATION & DISCOVERY PARK, LLC'S, OBJECTION TO PLAINTIFF’S MOTION TO PRECLUDE AND LIMIT OPINIONS AND TESTIMONY OF LLOYD SABERSKI, MD The defendant, Brownstone Exploration & Discovery Park, LLC (hereinafter "Brownstone"), hereby objects to the plaintiffs Motion to Preclude Testimony and Limit Opinions and Testimony of Lloyd Saberski, MD dated May 1, 2024 [docket entry #294.00]. The plaintiff, again, seeks to preclude an expert that he has disclosed. Dr. Saberski has been disclosed as an expert witness by both parties in this case. Furthermore, the plaintiff has already introduced testimony from Dr. Saberski into evidence that addresses the subject he now seeks to preclude Dr. Saberski from providing testimony on, thus waiving any objection to further testimony by Dr. Saberski on the subject. Moreover, Dr. Saberski is qualified to address the treatment of wounds, including skin grafts, as a certified pain management and internal medicine specialist. Accordingly, plaintiffs counsel’s motion to preclude or limit the testimony of Dr. Saberski should be denied. I BACKGROUND The plaintiff injured his left foot at the defendant's facility in August of 2016. See September 18, 2020 Amended Complaint [docket entry #197.00]. During the course of the plaintiffs treatment for his injury, his treating foot surgeon, Dr. Elyna Perez, who recommended, on multiple occasions, that he undergo a grafting procedure on the laceration to his foot, but the plaintiff opted notto pursue that recommendation. On December 13, 2023, the defendant disclosed Dr. Lloyd Saberski to “testify regarding his October 30, 2023 independent medical examination of the plaintiff, as well as his examination of the plaintiff's medical records pertaining to injuries the plaintiff allegedly sustained as a result of the incident which is the subjectof the plaintiff's complaint.” See Defendant's December 13, 2023 Expert Disclosure of Dr. Lloyd Saberski, p. 1 [docket entry #221.00]. The disclosure further indicates that Dr. Saberski would testify “in accordance with his report.... [and] in accordance with his review of the medical records/reports and such other evidence that may come to his attention before and during trial.” Id. Additionally, the disclosures indicates that “Dr. Saberski is expected to testify that, with a reasonable degree of medical certainty, the plaintiff's clinical presentation has been principally an expression of mononeuropathy.” Id. at p. 2. Dr. Saberski was deposed by plaintiffs counsel on April 5, 2024, wherein he addressed the causes of nerve injuries, the loss of sensory perception, the impact of blood vessel damage and regrowth, and scar tissue, including the use of vascular flap graft procedures to address these issues. See April 5, 2024 Deposition of Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14, attached as ExhibitA. Shortly thereafter, on April 9, 2024, the plaintiff disclosed Dr. Saberski, indicating that he would testify “regarding his October 30, 2023 independent medical examination of the plaintiff, as well as his examination of the plaintiff's medical records pertaining to injuries the plaintiff sustained as a result of the incident which is the subject o the plaintiff's complaint.” See Plaintiffs April 9, 2024 Disclosure of Expert Witness, p. 1 [docket entry # 239.00]. The disclosure further indicates that “[t]he substance of facts and opinions to which Dr. Saberski will testify are in accordance with his expert report, his examination of the plaintiff, his review of the plaintiff's medical reports, and his deposition testimony of April 5, 2024.” Id., p. 2. That testimony would include the testimony regarding the vascular flap and grafting noted above. Trial then commenced on April 30, 2024, and the plaintiff played a portion of Dr. Saberski’s deposition testimony, including the testimony regarding the vascular flap grafting procedure, as well as the causes of nerve injuries, the loss of sensory perception, the impactof blood vessel damage and regrowth, and scar tissue, all of which relate to the consequences of the failure to pursue the graft procedure. See April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14, attached as ExhibitA. The plaintiff also consented to the introduction of a portion of the video deposition testimony of Dr. Saberski by the defendant which also included the testimony regarding the vascular flap grafting procedure. See ExhibitA, pp. 75- 14-76:5. ll. DR. SABERSKI HAS BEEN SUFFICIENTLY DISCLOSED Plaintiff's counsel’s argument is circular. Essentially, he is arguing that the defendant that has not put in any evidence regarding the graft orto support a claim for mitigation of damages, so Dr. Saberski should not be allowed to address the subjectof the graft. However, the defendant has a witness, Dr. Saberski, who will address that very issue. The defendant simply has not yet had the opportunity to fully address the subject with Dr. Saberski yet since the plaintiff has not yet rested. The plaintiff cannot preclude the defendant from putting in the very evidence the plaintiff claims that the defendant needs to support its claim regarding mitigation of damages. Moreover, the defendant disclosed Dr. Saberski to address his independent medical examination and his analysis of the plaintiff's treatment records which include the recommendations of Dr. Perez (who is also qualified to provide testimony regarding the subject of the graft as she is a foot surgeon). See Defendant's December 13, 2023 Expert Disclosure of Dr. Lloyd Saberski, p. 1 [docket entry #221.00]. Generally, one does not need to redisclose their expertto address any additional opinions that are teased out by opposing counsel at the deposition of the expert. The plaintiff was also sufficiently apprised of the opinions by way of plaintiff's counsel’s questioning of Dr. Saberski on the subject at his deposition, particularly since Dr. Saberski’s disclosure included his analysis of the plaintiff's treatment records that address the subject. Moreover, the plaintiff has disclosed Dr. Saberski regarding his opinions, including those asserted during his deposition, which include the opinions regarding the graft. See Plaintiffs April 9, 2024 Disclosure of Expert Witness, p. 1 [docket entry #239.00]; April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14, attached as ExhibitA. The plaintiff has also already introduced testimony on the subject that he now seeks to keep out by way of playing portions of Dr. Saberski’s deposition testimony during the plaintiff's case in chief. See April 5, 2024 Deposition off Dr. Lloyd Saberski, p. 52:8-53:3, 75:11-76:5, 89:22-90:14, attached as ExhibitA. The plaintiff has opened the doorto further testimony on the subject, particularly since the plaintiffs piecemeal cobbling together of the testimony did not sufficiently allow for a clear explanation on the subject. In short, Dr. Saberski has been sufficiently disclosed to address the matter the plaintiff is trying to keep him from testifying about. Moreover, the plaintiff has opened the door to testimony on the subject by including testimony on the subject during his case in chief. As such, the plaintiffs motion is without merit and should be denied. Ill. DR. SABERSKI IS QUALIFIED TO OFFER OPINIONS REGARDING THE GRAFTING Plaintiff's counsel also baldly claims that Dr. Saberski is not qualified to testify regarding the foot grafting procedure. However, he has no support for this claim. Dr. Saberski is board certified in internal medicine and anesthesiology with an added qualification in pain medicine. See ExhibitA, pp. 15:14-16:3. Dr. Saberski’s pain management and internal medicine work involve a vast understanding of medical procedures and anatomy as he is tasked with dealing with the sequela of such procedures and the failures to pursue such procedures. He also has to understand the complete anatomy of the nervous system in orderto assess and address his pain management and internal medicine patients. Thus, he is more than qualified to address the grafting procedure and the ramifications thereof. Moreover, the question here is not about the nitty gritty details of how to perform the grafting procedure. Rather, the question is what is the purpose of the procedure and what happens if the procedure is not pursued. In this case, Dr. Saberski explained during his deposition how the procedure would impact the blood vessels, blood flow, and scarring which can impact the nerves in the body, including, in this case, the sural nerve which Dr. Saberski has opined was injured. The plaintiff has already introduced a portion of Dr. Saberski’s deposition testimony on the subject which allows the defendantto further address the subject. Finally, plaintiff's counsel claims that Dr. Saberski is not qualified to address the subject of the surgery by pointing to page 55 of plaintiff's trial exhibit 9 which is Dr. Saberski’s IME report. However, plaintiff's counsel mischaracterizes and/or misunderstands what Dr. Saberski is saying in that portion of his report. Although he notes that “[t]o understand the risks of surgery directed at the left sural nerve, consultation with a plastic surgeon, fellowship trained as microsurgeon required,” that addresses any surgeries now or in the future related to the nerve itself. It does not address the grafting procedure that was recommended and refused by the plaintiff at the outset of his treatment. Thus, Dr. Saberski has in no way conceded that he is not qualified to testify on the subject. IV. THE PLAINTIFF’S MOTION IS UNTIMELY The plaintiff's motion is untimely as the parties are in the middle of trial and Dr. Saberski has been on the witnesses list since early March of 2024. As the plaintiff previously argued in a motion for sanctions which was filed against defense counsel, on April 19, 2024, motions in limine were due on April 9, 2024, per order of the court. See Plaintiff's April 19, 2024 Motion for Order of Sanctions [docket entry #269.00]. Although the court, Shah, J ., subsequently allowed the filing of additional motions based on issues that had arisen since the April 9, 2024 deadline for motions in limine, those motions were to be filed prior to the commencementof trial (and, accordingly, led to the denial of the motion for sanctions). Plaintiff's counsel was aware of Dr. Saberski’s testimony well in advance of either of those deadlines as his testimony was obtained on April 5, 2024 during Dr. Saberski’s deposition. Accordingly, any motions on the subject should have been filed prior to the state of trial. As such, the plaintiff's motion is untimely. Vv. CONCLUSION WHEREFORE, the defendant, Brownstone Exploration and Discovery Park, LLC, respectfully requests that the Court sustain its objection and deny the plaintiff's motion to preclude. DEFENDANT, BROWNSTONE EXPLORATION & DISCOVERY PARK, LLC By_/s/ Rachel M. Bradford Christopher M. Vossler Rachel M. Bradford Howd & Ludorf, LLC 100 Great Meadow Road, Suite 201 Wethersfield, CT 06109 (860) 249-1361 (860) 240-7665 (Fax) Juris No.: 28228 CERTIFICATION This is to certify that a copy of the foregoing Objection was or will immediately be mailed or delivered electronically or non-electronically on May 2, 2024 to all parties and self-represented parties of record and to all parties who have not appeared in this matter and that written consent for electronic delivery was received from all attorneys and self-represented parties receiving electronic delivery. Andrew P. Garza, Esquire Connecticut Trial Firm, LLC 437 Naubuc Avenue, Ste. 107 Glastonbury, CT 06033 /s/ Rachel ei hati M. Bradford rota ee Rachel M. Bradford E XHIBIT A — —= —— — —== In The Matter Of: Charles Beyer v Brownstone Exploration & Discovery Park LLC Dr. Lloyd R. Saberski April 5, 2024 A Plus Reporting Service LLC 55 Whiting Street, Suite 1A Plainville, CT 06062 203.269.9976 —— <= —= J Dr. Lloyd R. Saberski any reason? 2 A No. Q Have you ever been a named defendant ina medical malpractice lawsuit? A Only once that I recall and I was a resident at the time so that dials it back to I think 1987 and I did give a deposition but the case disappeared. I was never involved. I don't know what happened. I think the case settled but 10 I really was not -- I was a resident. I was not the mover and shaker on the case and I think they let me 12 go anyway just because of my status. But that's the 13 only case I have been named in that I can think of. 14 Q. Are you board certified? 15 A Yes. 16 Q In what areas? 17 A Internal medicine and anesthesiology and I have the added qualification in pain medicine. 19 Q What does that mean? 20 A I did a fellowship and then I qualified 21 for the exam when it was finally offered in 1993. 22 Q So does that mean you're also board 23 certified in pain management? 24 A I don't know if they call it that but 25 yes, I mean, that's what it means but I think they Page: 15 Dr. Lloyd R. Saberski called it added qualification examination but, yes, for all intent and purposes it's the highest level of achievement in the field of pain medicine. for my own personal curiosity, is Q This is there a reason why they treat that differently than other areas that you can become board certified in? A I can't explain it, no. Maybe when they developed it it was just called the added qualification. It may have to do with the fact that 10 the ACGME recognized board for everybody is 11 administered by the anesthesiology -- American Board 12 of Anesthesiology. And anybody can take it for any 13 subspecialty. You can be a gynecologist, you can be 14 a psychologist, neurologist, you just have to do an 15 ACGME recognized fellowship. So I think in the 16 process they wanted to have the language different 17 so that if you had the added qualification of pain 18 management that's the same qualification for GYN or 19 a psychiatrist or for me. I suspect that has 20 something to do with it but I'm not sure. 21 Q Fair enough. All right. How is your 22 time divided professionally between clinical work, 23 academic work and administrative work? 24 A. Thank God I'm not doing much 25 administrative work anymore. I sold my medical Page: 16 Dr. Lloyd R. Saberski So now I would like to talk to you a little bit about the sural nerve generally. So can you explain to me what a sural nerve injury is? Is it very simply an injury to the sural nerve? I mean -- A That's it exactly. 7 Q. So I can go to medical school now. A And an injury can be lots of different injuries, the whole nerve, part of the nerve. It can be an avulsion injury, the nerve can get wrapped il up in scar tissue, parts of the nerve can have 12 diminished blood supply. It can be a lot of 13 different things causing nerve pain. 14 In this particular case, you know, I have 15 some ideas but all I can tell you is the location of 16 the pain, the loss of sensory perception in the 17 distribution of the sural nerve and the trauma, they 18 all coincide. They are basically one. They're all 19 the same. So that's how I know it's a sural nerve 20 injury. 21 If you want to get a little bit more 22 specific as to what's wrong with the sural nerve 23 today, it can be scar tissue. It actually has 24 probably damage to some of the fibers, at least the 25 distal fibers or it may be a blood flow issue based Page: 52 Dr. Lloyd R. Saberski on my differential testing of temperature just in that one little area on the flap, where the flap went. Q. How is a sural nerve injury diagnosed? A History and physical exam. I mean, you can do electroconductive studies but electroconductive studies have false negatives and false positives and obviously I don't do electroconductive studies. Dr. Hughes can better 10 explain this. But it depends where you put the 11 electrodes. If you put your electrodes on the sural 12 nerve, let's say behind the ankle bone, that covers 13 the sural nerve but it's not in the area of 14 question. You would have to get an electrode down on the foot, you know, toward the little toe and 16 I don't know if they can do that. to say are you saying that 17 Q So I was going 18 part of the problem with an EMG is human error to an 19 extent because -- 20 A No, no, no. Okay, look. EMGs never can 21 diagnose sural neuralgia. Okay? Let's be clear 22 about that. EMGs look at only large myelinated 23 fibers that go to muscles. The sural nerve is not a 24 large myelinated fiber and does not go to muscle. 25 So you have to do a nerve conduction study of the Page: 53 Dr. Lloyd R. Saberski and that's outside of my specialty so I don't want to go talk about it. Q Okay. So I think I understand. It sounds like maybe you don't want to step on the toes of the other doctors but that you respect that physicians have a certain level of discretion. And would it be fair to say that you didn't see anything in his medical records that seemed unnecessary or not reasonably necessary? 10 A I did not. reviewing Charlie's records, are you Q From 12 aware the laceration became infected? 13 A Yes. 14 Q And what's your understanding of the 15 nature of that? MS. BRADFORD: Objection. 17 A It became infected. It's not usual for 18 large wounds that have poor vascular supply which belies the question of how they manage it. You 2¢ know, there's a different approach -- I mean, 21 essentially what they did is they allowed secondary 22 retention, meaning they just let it grow over and 23 scar over. Many times that's managed with what we 24 call a vascular flap. It's a type of grafting where 25 you rotate in a piece of tissue with fascia, and Page: 75 Dr. Lloyd R. Saberski muscle perhaps, to protect the nerve but with a fresh vascular supply so you get good blood flow. So that would be the plastic surgical approach. And I know they talked about it but it was declined by the patient. BY MS. MAHONY: your opinion that -- well, I Q So it's think you said it, it's not unusual for an infection like this to occur when you're dealing with a large 10 laceration? 11 A Yes. 12 Q All right. I think you said a few times you agree with most of what Dr. Hughes said in his 14 reports so Dr. Hughes reports that Charlie is unable 15 to jog, right? Is that one of the things he 16 documents? A That makes sense. I didn't ask him 18 specifically that question but he can walk. He says 19 when he's on macadam, hard surfaces it hurts more. 20 He goes to work every day. He wakes up in the 21 morning his pain level is one or so, or one and a 22 half, and by the end of the day it's a six. So 23 I would imagine if he went running that would 24 aggravate things quicker. 25 Q All right. And that pain and those sort Page: 76 Dr. Lloyd R. Saberski really injured to the core. We can't fix that. But number two is a lot of the injuries are the nerve has lost its glide inside a soft tissue plane. For instance, nerves -- when you bend your elbow, for example, your nerves in your elbow are moving back and form smoothly in the fascial plane. But once something gets all gunked up and scarred up when you go to, let's say, bend your ankle up and down or walk, that sural nerve can't really move very freely 10 because it's stuck in scar tissue. So there's a 11 whole world of trying to free it up. But in this 12 case that would be impossible given how big that 13 chunk of skin was and the big wound and all that 14 imflammatory stuff. And then the third type is the 18 nerve grows something like a neuroma which there are 16 a bunch of operations for that and there may or may 17 not be one here. When I was examining him there's a 18 thing called a Tinel's sign. I was banging my 19 finger down the sural nerve and I thought he had a 20 reproduction of pain from that. That's possible, 21 but again, not definitive. 22 Q So you think of the three nerve problems 23 that you just described Charlie's is more likely the 24 second one where the nerve lost its glide in the 25 soft tissue plane? Page:89 Dr. Lloyd R. Saberski A Well, I think that's a big chunk of it. I think there's probably damage to a bunch of distal nerve fibers too. I mean, let's face it. That was a full thickness through the skin you've got to remember, so I think some distal fibers got cut. Now normally skin nerves grow back. There's generally not a problem, especially these distal ones. So what happened here. There was just bad blood flow and there is still bad blood flow. 10 I know there is bad blood flow because I measured 11 the temperature and it's like nine degrees cooler or 12 eight degrees cooler in that spot, so there is bad 13 blood flow and so that impeded the skin nerves from 14 really maximizing their growth potential. 15 Q And we talked about I think what prompted 16 you to describe the three different problems in the 17 first place was my question about if the sural nerve 18 injury can be cured and it sounds like you're saying 19 with the kind of nerve injury that Charlie has it 20 cannot be cured? 21 A Yes, that is my opinion. 22 Q All right. And then you say in your 23 report you think it's far more common for someone to 24 have an atypical presentation of a common condition 25 like a sural nerve injury as opposed to a rare Page: 90 Dr. Lloyd R. Saberski CERTIFICATE OF REPORTER I, Kathleen S. Norton, a Registered Professional Reporter/Commissioner within and for the State of Connecticut, do hereby certify that I took the deposition of LLOYD R. SABERSKI, M.D., on APRIL 5, 2024, who was by me duly sworn to testify to the truth and nothing but the truth; that he was thereupon carefully examined upon his oath and his examination reduced to writing under my direction by means of Computer Assisted Transcription, and that this deposition is a true record of the testimony given by the witness. I further certify that I am neither attorney nor counsel for, nor related to, nor employed by any of the parties to the action in which this deposition is taken and further that I am not a relative or employee of any attorney or counsel employed by the parties hereto, nor financially interested in the outcome of the action. IN WITNESS THEREOF, I have hereunto set my hand April 15, 2024. Keto 8 Meitin Kathleen S. Norton, LSR #105 Notary Public My commission expires: 8-31-2026 Page: 105