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DOCKET NO. DBD CV22-6044695S : SUPERIOR COURT
KATHLEEN GUTIERREZ : JUDICIAL DISTRICT OF DANBURY
AT DANBURY
v. :
BARBARA J. NEFF : May 2, 2024
MOTION IN LIMINE TO PRECLUDE DR. GIORDANO
Pursuant to Practice Book § 13-4 and 15-3, the Defendant, Barbara J. Neff,
respectfully moves this Court to preclude the Plaintiff, Kathleen Gutierrez, from calling
as an expert witness Dr. Michael Giordano or eliciting any information, testimony or
evidence related to an independent medical examination and report done by Dr. Giordano
disclosed on April 2, 2024. As is set forth more fully below, the preclusion of any such
information, testimony, or evidence is necessary as this disclosure is untimely and would
be highly prejudicial to the defendant if allowed into evidence at trial with Jury Selection
schedule for May 7, 2024.
I. Background
On November 12, 2020 at approximately 3:44 p.m. the Plaintiff was operating her
motor vehicle on Federal Road in Danbury. She alleged that at the same time, Ms. Neff
exited a private driveway and made a left turn in front of her vehicle causing the impact
and her injuries. On December 5, 2022 the Plaintiff filed a one-count complaint alleging
negligence. On February 27, 2024, the Plaintiff’s deposition occurred. The Plaintiff last
treated for injuries that she claimed resulted from this accident in April 2023.
II. Legal Standard
Practice Book § 15-3 provides, in relevant part: “The judicial authority to whom
a case has been assigned for trial may in its discretion entertain a motion in limine made
by any party regarding the admission or exclusion of anticipated evidence. . . Such
motion shall be in writing and shall describe the anticipated evidence and the prejudice
which may result therefrom. All interested parties shall be afforded an opportunity to be
heard regarding the motion and the relief requested. The judicial authority may grant the
relief sought in the motion or such other relief as it may deem appropriate, may deny the
motion with or without prejudice to its later renewal, or may reserve decision thereon
until a later time in the proceeding.” In exercising such discretion, the Court “must be
mindful that our discovery rules are designed to facilitate trial proceedings and to make a
trial less a game of blind-man’s bluff and more a fair contest with the basic issues of fact
disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Washington
v. National Amusements, Superior Court, judicial district of New Haven, Docket No. CV
960388035S (February 2, 2001).
III. Argument
a. Dr. Giordano and his report must be precluded due to the untimeliness
of the disclosure
As noted above, the Court must preclude the plaintiff from eliciting or introducing
any testimony, information, or evidence related to Dr. Giordano and his report disclosed
on April 2, 2024 because the admission of any such testimony, information, or evidence
would be highly prejudicial to the defendant. This accident occurred in 2020 and the case
has been pending since 2022. The Plaintiff last sought treatment in April 2023. Per the
report disclosed on April 2, 2024, the Plaintiff waited until March 12, 2024, to have an
independent medical examination. This report disclosed for the first time a month before
trial attempts to provide an opinion on potential future surgery in an effort to bolster her
claims. At no time, was the defendant put on notice that the Plaintiff was going for an
independent medical examination. In fact, at her deposition, she testified that she had no
appointments scheduled for treatment. While this appointment would not be viewed as
treatment, one would reasonable conclude that she would have acknowledged that she
was attempting to schedule this examination back in February. There is no good reason
why the Plaintiff could not have been evaluated by this doctor well before this date and
within the discovery order deadline. These opinions and this disclosure on the eve of trial
has not provided the defendant with fair notice. The defendant is unfairly prejudiced by
not having the opportunity to probe the foundation for Dr. Giordano’s opinion. The
admission of any such testimony, information, or evidence would result in significant
undue prejudice to the defendant. Accordingly, any testimony, information, or evidence
related to the Dr. Giordano and his examination must be precluded so as to avoid any
such undue prejudice to the defendant.
b. In the alternative, Dr. Giordano’s opinion as to surgery and cost of
surgery must be precluded as his findings are purely speculative.
Notwithstanding the fact that Dr. Giordano and his report should be precluded due
to the untimeliness, the defendant maintains that the opinions contained within the report
are purely speculative. “To be entitled to damages a plaintiff must establish a causal
relation between the injury and the physical condition which he claims resulted from it.
Bates v. Carroll, 99 Conn. 677, 679. This causal connection must rest upon more than
surmise or conjecture. Witkowksi v. Goldberg, 115. Conn. 693. However, Dr.
Giordano’s opinion as to surgery does not rise to the level of reasonable medical certainty
required to go before a jury and therefore, must be preclude. His opinion as to the need
for surgery is merely speculative. He stated in his report: “Treatment could be with
further chiropractic, physical therapy, pain injections or even surgery, if conservative
measures were inadequate to treat her symptoms”. The actual surgery he lists is purely
speculative as he is not her treating physician and none of her treating physicians has
recommended surgery. Further, the costs of surgery that he puts in his report is also
highly speculative as he acknowledges that the estimates are “gross estimates…and often
vary depending on region”. Thus, this IME doctor’s opinion as to surgery is purely
speculative and simply one potential list of options that he arrived out. The basis of his
opinion does not meet the threshold standard of medically probable. At most, surgery is
a mere possibility that is purely speculative. Further, there is no reasonable calculation of
cost for a jury to consider as an element of future medical. As Dr. Giordano’s opinion as
to surgery and the cost of surgery is purely surmise and/or conjecture, his opinion must
be precluded.
IV. CONCLUSION
In sum, it is the Defendant’s position that this Court must preclude the Plaintiff
from eliciting, introducing any testimony, information, or evidence related to the recently
disclosed Dr. Giordano and his report. Any such testimony, information, or evidence is
(1) not in compliance with the provisions of the Practice Book, and (2) would result in
significant undue prejudice to the Defendant in the event that it is admitted. Therefore,
the defendant urges the Court to grant her Motion in Limine.
DEFENDANT
BARBARA J. NEFF
BY
Jill Hallihan
MUSCO & IASSOGNA
555 Long Wharf Drive, 10th Floor
New Haven, Connecticut 06511
Tel: (203) 782-4122
Fax: (203) 782-4128
CERTIFICATION
I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on the 2nd day of May, 2024, to all counsel and self-
represented parties of record and that written consent for electronic delivery was received
from all counsel and self-represented parties of record who were or will immediately be
electronically served.
George Fernandes, Esq.
Ventura Law
235 Main Street
Danbury, CT 06810
E-mail: george@venturalaw.com
Jill Hallihan
Preview
DOCKET NO. DBD CV22-6044695S : SUPERIOR COURT KATHLEEN GUTIERREZ : JUDICIAL DISTRICT OF DANBURY AT DANBURY v. : BARBARA J. NEFF : May 2, 2024 MOTION IN LIMINE TO PRECLUDE DR. GIORDANO Pursuant to Practice Book § 13-4 and 15-3, the Defendant, Barbara J. Neff, respectfully moves this Court to preclude the Plaintiff, Kathleen Gutierrez, from calling as an expert witness Dr. Michael Giordano or eliciting any information, testimony or evidence related to an independent medical examination and report done by Dr. Giordano disclosed on April 2, 2024. As is set forth more fully below, the preclusion of any such information, testimony, or evidence is necessary as this disclosure is untimely and would be highly prejudicial to the defendant if allowed into evidence at trial with Jury Selection schedule for May 7, 2024. I. Background On November 12, 2020 at approximately 3:44 p.m. the Plaintiff was operating her motor vehicle on Federal Road in Danbury. She alleged that at the same time, Ms. Neff exited a private driveway and made a left turn in front of her vehicle causing the impact and her injuries. On December 5, 2022 the Plaintiff filed a one-count complaint alleging negligence. On February 27, 2024, the Plaintiff’s deposition occurred. The Plaintiff last treated for injuries that she claimed resulted from this accident in April 2023. II. Legal Standard Practice Book § 15-3 provides, in relevant part: “The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. . . Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. All interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.” In exercising such discretion, the Court “must be mindful that our discovery rules are designed to facilitate trial proceedings and to make a trial less a game of blind-man’s bluff and more a fair contest with the basic issues of fact disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Washington v. National Amusements, Superior Court, judicial district of New Haven, Docket No. CV 960388035S (February 2, 2001). III. Argument a. Dr. Giordano and his report must be precluded due to the untimeliness of the disclosure As noted above, the Court must preclude the plaintiff from eliciting or introducing any testimony, information, or evidence related to Dr. Giordano and his report disclosed on April 2, 2024 because the admission of any such testimony, information, or evidence would be highly prejudicial to the defendant. This accident occurred in 2020 and the case has been pending since 2022. The Plaintiff last sought treatment in April 2023. Per the report disclosed on April 2, 2024, the Plaintiff waited until March 12, 2024, to have an independent medical examination. This report disclosed for the first time a month before trial attempts to provide an opinion on potential future surgery in an effort to bolster her claims. At no time, was the defendant put on notice that the Plaintiff was going for an independent medical examination. In fact, at her deposition, she testified that she had no appointments scheduled for treatment. While this appointment would not be viewed as treatment, one would reasonable conclude that she would have acknowledged that she was attempting to schedule this examination back in February. There is no good reason why the Plaintiff could not have been evaluated by this doctor well before this date and within the discovery order deadline. These opinions and this disclosure on the eve of trial has not provided the defendant with fair notice. The defendant is unfairly prejudiced by not having the opportunity to probe the foundation for Dr. Giordano’s opinion. The admission of any such testimony, information, or evidence would result in significant undue prejudice to the defendant. Accordingly, any testimony, information, or evidence related to the Dr. Giordano and his examination must be precluded so as to avoid any such undue prejudice to the defendant. b. In the alternative, Dr. Giordano’s opinion as to surgery and cost of surgery must be precluded as his findings are purely speculative. Notwithstanding the fact that Dr. Giordano and his report should be precluded due to the untimeliness, the defendant maintains that the opinions contained within the report are purely speculative. “To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it. Bates v. Carroll, 99 Conn. 677, 679. This causal connection must rest upon more than surmise or conjecture. Witkowksi v. Goldberg, 115. Conn. 693. However, Dr. Giordano’s opinion as to surgery does not rise to the level of reasonable medical certainty required to go before a jury and therefore, must be preclude. His opinion as to the need for surgery is merely speculative. He stated in his report: “Treatment could be with further chiropractic, physical therapy, pain injections or even surgery, if conservative measures were inadequate to treat her symptoms”. The actual surgery he lists is purely speculative as he is not her treating physician and none of her treating physicians has recommended surgery. Further, the costs of surgery that he puts in his report is also highly speculative as he acknowledges that the estimates are “gross estimates…and often vary depending on region”. Thus, this IME doctor’s opinion as to surgery is purely speculative and simply one potential list of options that he arrived out. The basis of his opinion does not meet the threshold standard of medically probable. At most, surgery is a mere possibility that is purely speculative. Further, there is no reasonable calculation of cost for a jury to consider as an element of future medical. As Dr. Giordano’s opinion as to surgery and the cost of surgery is purely surmise and/or conjecture, his opinion must be precluded. IV. CONCLUSION In sum, it is the Defendant’s position that this Court must preclude the Plaintiff from eliciting, introducing any testimony, information, or evidence related to the recently disclosed Dr. Giordano and his report. Any such testimony, information, or evidence is (1) not in compliance with the provisions of the Practice Book, and (2) would result in significant undue prejudice to the Defendant in the event that it is admitted. Therefore, the defendant urges the Court to grant her Motion in Limine. DEFENDANT BARBARA J. NEFF BY Jill Hallihan MUSCO & IASSOGNA 555 Long Wharf Drive, 10th Floor New Haven, Connecticut 06511 Tel: (203) 782-4122 Fax: (203) 782-4128 CERTIFICATION I certify that a copy of the above was or will immediately be mailed or delivered electronically or non-electronically on the 2nd day of May, 2024, to all counsel and self- represented parties of record and that written consent for electronic delivery was received from all counsel and self-represented parties of record who were or will immediately be electronically served. George Fernandes, Esq. Ventura Law 235 Main Street Danbury, CT 06810 E-mail: george@venturalaw.com Jill Hallihan