Zambito v. United States of America

Filing 150

ORDER deferring ruling on 137 Motion in Limine; denying 138 Motion in Limine; granting 139 Motion in Limine; denying 140 Motion in Limine; deferring ruling on 141 Motion in Limine; deferring ruling on 142 Motion in Limine; deferring ruling on 143 Motion in Limine; deferring ruling on 144 Motion in Limine; granting 145 Motion in Limine; denying 146 Motion in Limine; denying 147 Motion for Reconsideration ; denying 149 Motion to Strike.For the reasons se t forth in the attached Memorandum and Order:-Defendant's motion for reconsideration, DE 147 , is denied;-The Court reserves decision on Plaintiff's motion in limine #1, DE 137 , until trial;-Plaintiff' s motion in limine #2, DE 138 , is denied;-Plaintiff's motion in limine #3, DE 139 , is granted;-Plaintiff's motion in limine #4, DE 140 , is denied;-The Court reserves decision on Plaintiff&# 039;s motion in limine #5, DE 141 , until trial;-The Court reserves decision on Plaintiff's motion in limine #6, DE 142 , until trial;-The Court reserves decision on Plaintiff's motion in limine #7, DE 143 , until trial;-Defendant's motion in limine #1, DE 144 , is denied without prejudice and with leave to question the authenticity of Plaintiff's Exhibit PX9 at trial;-Defendant's motion in limine #2, DE 145 , is denied;-Defendant's motion in limine #3, DE 146 , is denied; and-Plaintiff's motion to strike Defendant's sur-reply related to Plaintiff's motion in limine #2, DE 149 , is denied.< br>A final Pretrial Conference is scheduled for April 9, 2025 at 11:30 a.m. in Courtroom 820 of the Central Islip courthouse, at which time the Court will set a trial schedule and address any outstanding pretrial matters. Ordered by Magistrate Judge Steven I. Locke on 3/11/2025. (KDW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARY ZAMBITO,
- against -

MEMORANDUM AND
ORDER
18-CV-3612(SIL)

Plaintiff,

THE UNITED STATES OF AMERICA,
Defendant.
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STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court in this medical malpractice-Federal Tort Claims Act
action are:

(1) Defendant United States of America’s (“Defendant” or the

“Government”) motion for reconsideration of a July 29, 2024 Order precluding the use
of certain late-produced discovery at trial, see Docket Entry (“DE”) [147]; (2) seven
motions in limine filed by Plaintiff Gary Zambito (“Plaintiff” or “Zambito”), see DE
[137]-[143]; and (3) three motions in limine filed by the Government, see DE [144][146]. Each motion is opposed. DE [137-1], [138-3], [139-3], [140-4], [141-1], [142-1],
[143-2], [144-4], [145-3], [146-2], [147-3]. For the reasons set forth herein, the motion
for reconsideration is denied, and the motions in limine are granted in part and
denied in part as described below.
I.

BACKGROUND
Plaintiff alleges that, from approximately December 2015 through March

2017, he was under Defendant’s medical care as a patient of government-run medical
clinics administered by the United States Department of Veterans Affairs (“VA”)
related to certain signs, symptoms, conditions and complaints, including
1

supraventricular tachycardia and associated syncopal episodes. 1

See Complaint

(“Compl.”), DE [1], ¶ 15. Specifically, Plaintiff alleges that he was a patient at and/or
under the care of four separate VA clinics: (1) the Northport VA Medical Center,
located at 79 Middleville Road, Northport, NY 11768; (2) the VA East Meadow Clinic,
located at 2201 Hempstead Turnpike, East Meadow, NY 11554; (3) the VA Valley
Stream Clinic, located at 99 Central Avenue, Valley Stream, NY 11580; and (4) the
VA Bronx Clinic, located at 130 West Kingsbridge Road, Bronx, NY 10468
(collectively, the “VAMC”). See Compl. ¶¶ 6-17. Zambito claims that each of these
facilities is an agent of, and operated by, Defendant, and that the VA, acting as an
agent of the Government, failed to properly diagnose, treat, and monitor his
condition. Id. at ¶¶ 18-20. He asserts a single cause of action against the Government
asserting claims for negligence and medical malpractice. Id.
On August 30, 2024, the parties submitted a proposed Joint Pre-trial Order
(“JPTO”) identifying the exhibits they may seek to enter as evidence at trial. DE
[132].

More recently, Defendant also submitted a motion for reconsideration or

clarification of a July 29, 2024 Minute Order precluding the parties from introducing
as evidence discovery served after September 15, 2023. In addition, Plaintiff has
submitted seven motions in limine addressing exhibits identified in the JPTO and
Defendant has submitted three motions in limine.

1 The complete factual background is not presently at issue.

the instant motions in limine.

2

The facts provided are those relevant to

II.

DISCUSSION
A.

Defendant’s Motion for Reconsideration

On April 11, 2024, the Court ordered the parties to submit a proposed Pretrial
Order by July 29, 2024. DE [128]. On July 11, 2024, Plaintiff filed a motion for an
extension of time to submit the Pretrial Order on the grounds that Defendant
produced a large volume of documents, medical records, and videos after the close of
discovery in August 2023 and after Plaintiff had disclosed his expert reports in
September 2023. DE [129]. Zambito argued that he would be prejudiced “since none
of the experts Plaintiff disclosed had access to [this late-produced discovery] before
their reports were disclosed in accordance with the court-ordered deadline.” Id.
In a July 29, 2024 Order (the “July 29 Order”), following a hearing on Plaintiff’s
motion, the Court granted Plaintiff’s motion in part and denied it in part. DE [131].
Relevant for purposes of the instant motion for reconsideration, the Court held that
the parties would not be permitted to use documents produced after September 15,
2023 at trial as that would create a situation where Plaintiff’s experts were not
“operating from the entire universe of documents,” through no fault of Zambito, and
that “[i]t would not be fair to allow the parties to proceed to trial in this fashion
without a corrective ruling.” Id. As this would only further delay a seven-year-old
case, the Court declined to reopen discovery. Id. The Court clarified, however, that
documents generated after September 15, 2023 that were timely produced may be
used at trial. Id. On November 1, 2024, Defendant filed the instant motion for

3

reconsideration of the July 29 Order, which Plaintiff opposes. DE [147]. The motion
is denied as untimely and without merit.
Initially, the local rules of the Eastern District of New York state that “a notice
of motion for reconsideration must be served within 14 days after the entry of the
court’s order being challenged.” Local Civ. R. 6.3. Defendant did not move for
reconsideration of the July 29 Order until November 1, 2024. DE [147]. To that end,
the Government did not raise the issue of possible reconsideration until a September
5, 2024 conference, well after the expiration of deadline set by the Court’s local rules.
See DE [133]. The untimeliness of Defendant’s motion for reconsideration alone is a
sufficient basis to deny the motion. Harris v. City of New York, No. 23-CV-6344(VSB),
2023 WL 7474419, at *2 (S.D.N.Y. Oct. 12, 2023) (“[T]he motion is untimely under
Local Civil Rule 6.3 and is denied on that basis.”); Sea Trade Co. Ltd. v. FleetBoston
Fin. Corp., No. 03 Civ. 10254(JFK), 2009 WL 4667102, at *3 (S.D.N.Y. Dec. 9, 2009)
(“Failure to adhere to Local Rule 6.3’s time limitations is in and of itself a sufficient
reason to deny a motion for reconsideration.”). 2
Moreover, the motion for reconsideration is meritless. Although Fed. R. Civ.
P. 60 allows a court to modify an order within a year of entry of the order, see Fed. R.
Civ. P. 60(b), (c)(1), a party seeking reconsideration under the Federal Rules must
“point to controlling decisions or data that the court overlooked . . . that might

2 The Court notes that the Government has repeatedly delayed this case due to its inability to meet

deadlines. See Electronic Order dated February 14, 2024, DE [114], [124], [128], [131] (all noting the
Government’s delays in producing discovery). It is particularly concerning that, here, the Government
seeks reconsideration of an Order issued because of an untimely document production by filing an
untimely motion.

4

reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A party may not use a motion for
reconsideration to ‘relitigate an issue already decided’ by advancing novel arguments
that could have been raised previously.” Hadid v. City of New York, 182 F. Supp. 3d
4, 13 (E.D.N.Y. 2016) (quoting Shrader, 70 F.3d at 257). “The decision to grant or
deny a motion for reconsideration lies squarely within the discretion of the district
court.”

Murphy v. First Reliance Standard Life Ins. Co., No. 08-CV-

3603(DRH)(WDW), 2010 WL 2243356, at *3 (E.D.N.Y. June 1, 2010).
Defendant fails to identify any facts or law that the Court overlooked in
precluding evidence produced after September 15, 2023. Instead, the Government
argues that it was not given an opportunity to brief the issues relevant to the July 29
Order, and that the Court was therefore unable to review the decisions and
information which warrant admission of the third-party records. DE [147] at 2. This
is incorrect, as the parties had the opportunity to present argument and their
complete position at the July 29, 2024 hearing. DE [131]. The parties were advised
that the hearing would address issues raised in Plaintiff’s letter that prompted the
hearing, including the issues leading to the preclusion of the evidence now at issue.
See Electronic Order dated July 12, 2024. At a further conference on September 5,
2024, the Court observed that the deadline to make a motion for reconsideration had
lapsed, but stated that Defendant could make a motion subject to Plaintiff’s
objections, including objections on procedural grounds. See Sept. 5, 2024 Hearing
Transcript (“Sept. 5 Tr.”), DE [136], at 11:1-9. As Defendant has not identified any

5

facts or law that the Court overlooked, the motion for reconsideration is denied on
this alternate basis as well. See Am. Empire Surplus Lines Ins. Co. v. Ventura, No.
21-CV-2177(FB)(JRC), 2023 WL 4420236, at *2 (E.D.N.Y. July 10, 2023) (denying
motion for reconsideration where the plaintiff “failed to identify overlooked issues of
law or fact that could have changed the outcome” of the order at issue); Klein v.
Brookhaven Health Care Facility, No. 17-CV-4841(JS)(ARL), 2022 WL 19567887, at
*2 (E.D.N.Y. Apr. 12, 2022) (denying motion for reconsideration where the plaintiff
failed to raise arguments other than what the court had already considered). As
stated at the July 29, 2024 hearing, it would be inequitable to allow Defendant to rely
on evidence that Plaintiff and his experts did not have the opportunity to review or
consider prior to issuing their expert reports.
Accordingly, and as stated in the July 29 Order, at trial, the parties may only
rely upon documents exchanged prior to September 15, 2023. The two exceptions,
both of which have been explained to the parties, are that: (1) the parties may rely
upon admissible documents generated after September 15, 2023 that were disclosed
in a timely manner; and (2) documents served after September 15, 2023 may be relied
upon for impeachment purposes.
B.

Motions in Limine
1.

Legal Standard

“The purpose of a motion in limine is to allow the trial court to rule in advance
of trial on the admissibility and relevance of certain forecasted evidence.” Gorbea v.
Verizon N.Y., Inc., No. 11-CV-3758(KAM), 2014 WL 2916964, at *1 (E.D.N.Y. June

6

25, 2014) (citing Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 443, 462 (1984)).
In a bench trial, the preference is for the admissibility of evidence. United States v.
Am. Exp. Co., No. 10-CV-4496(NGG)(RER), 2014 WL 2879811, at *8 (E.D.N.Y. June
24, 2014); see Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc.,
No. 01 Civ. 3796(PKL), 2004 WL 1970144, at *5 (S.D.N.Y. Sept. 3, 2004) (“While
standards for admissible evidence are not out the window entirely in a bench trial,
all doubts at a bench trial should be resolved in favor of admissibility.”) (internal
quotation omitted). In considering a motion in limine, a court “may reserve decision
until trial, so that the motion is placed in the appropriate factual context.” Gogol v.
City of New York, No. 15 Civ. 5703(ER), 2018 WL 4616047, at *1 (S.D.N.Y. Sept. 26,
2018).
2.

Plaintiff’s Motion in Limine #1

In Plaintiff’s motion in limine #1, Zambito seeks to preclude documents and
court decisions filed in prior lawsuits in which he was a party. DE [137]. Specifically,
Plaintiff seeks to preclude Defendant’s Exhibits Y, AA, BB, and CC identified in the
JPTO. Id. Zambito argues that these exhibits are irrelevant under Fed. R. Evid. 401,
more prejudicial than probative under Fed. R. Evid. 403, and inadmissible character
evidence under Fed. R. Evid. 404. Id. Defendant counters that the fact that Plaintiff
filed allegedly fraudulent or meritless lawsuits is relevant to establish Zambito’s
truthfulness.

DE [137-1] at 2.

Although Defendant’s argument regarding the

relevance and admissibility of these exhibits is not particularly persuasive, because
they will not be presented to a jury, the Court will defer ruling on their admissibility

7

until trial. See Automated Mgmt. Sys., Inc. v. Rappaport Hertz Cherson Rosenthal,
P.C., No. 16-CV-4762(LTS)(JW), 2024 WL 4987018, at *7 (S.D.N.Y. Dec. 4, 2024)
(reserving decision regarding prior litigations until trial to allow for appropriate
context); Gogol, 2018 WL 4616047, at *1-2 (reserving decision on motion in limine in
bench trial until the trial).
3.

Plaintiff’s Motion in Limine #2

In Plaintiff’s motion in limine #2, Zambito seeks to preclude expert opinion
testimony related to “Holter monitoring” that occurred in January 2016 and
concluded that supraventricular tachycardia “‘was most likely incidental’ and not the
cause of syncope.” 3 DE [138]. He argues that any such testimony or evidence is
inadmissible because the Government did not produce the underlying data that
formed the basis of the expert’s opinion. 4 Id. In opposition, relying upon credible
affidavit testimony from the VA’s Director of Noninvasive Cardiology, Paul Diggs,
Defendant disputes that it ever possessed the underlying data that Plaintiff seeks or
that it was required by law to maintain any such records. DE [138-4] at ¶¶ 8-15.
Diggs explains that Plaintiff wore a device that collected data from his heart, which
was sent to a third party. Id. The third party analyzed the data and sent a summary
report to the VA. Id. Accordingly, Defendant did not possess the underlying data.

3 The specific medical issues or exact nature of the procedures at issue are not relevant here and are

not described at length.

4 Although not stated by Plaintiff, the Court interprets this to relate to Plaintiff’s Exhibit K of the
JPTO, which is listed as “ZIO XT Patch Report for Gary Zambito for Enrollment Period From 1/6/16
to 1/20/16.” See JPTO at 16.

8

At trial, the parties will have the opportunity to question the relevant
individuals about the collection, provision, and retention of data, and what, if
anything, the data establishes. Therefore, there is no basis to preclude the expert
testimony. See Gill v. JUS Broadcasting Corp., No. 19-CV-4216(DLI)(PK), 2024 WL
4107251, at *4 (E.D.N.Y. Sept. 6, 2024) (holding that, in a bench trial, a dispute
regarding underlying data of an expert’s opinion did not warrant precluding the
expert’s analysis). Accordingly, Plaintiff’s motion in limine #2 is denied. 5
4.

Plaintiff’s Motion in Limine #3

In Plaintiff’s motion in limine #3, Zambito seeks to preclude expert testimony
or opinion from Defendant’s expert, Dr. Stanley Schaller, M.D. DE [139]. Plaintiff
argues that Dr. Schaller’s expert opinion is inadmissible because it relies on evidence
precluded by the July 29 Order. DE [139]. Zambito identifies 6 sets of medical
records that Defendant produced after September 15, 2023 that were unavailable to
Plaintiff’s experts when they formed their opinions. Id. He asserts that Defendant
is seeking a “backdoor” to admit inadmissible evidence. Id. In opposition, Defendant
again argues that the July 29 Order should be reconsidered and that Dr. Schaller’s
expert report should therefore be admitted in its entirety.

DE [139-3].

The

Government further argues that the expert report should not be excluded because
“Courts have declined to exclude expert reports based on undisclosed records,

5 In DE [149], Plaintiff moves to strike DE [148], which Zambito characterizes as an “unauthorized

sur-reply” to his motion in limine #2. Although the sur-reply filed at DE [148] violates the Court’s
Individual Rules, Plaintiff’s motion is denied as moot, as the sur-reply has no bearing on the Court’s
decision with respect to Plaintiff’s motion in limine #2. Plaintiff may examine Defendant’s witnesses
at trial regarding expert opinions and the evidence and data relied upon in forming any such opinions.

9

particularly where, as here, a Plaintiff could have obtained those records himself”
and the third-party evidence at issue is reliable. Id. at 2-3.
Federal Rule of Civil Procedure 37(c) provides that a party who fails to disclose
information required by Rule 26(a) “is not allowed to use that information . . . to
supply evidence . . . at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). While not mandatory, a “district court has wide
discretion to impose sanctions” under Rule 37, and whether to preclude the testimony
at issue falls within that discretion. Porter v. Home Depot U.S.A., Inc., No. 12-CV4595(NGG)(CLP), 2015 WL 128017, at *5-6 (E.D.N.Y. Jan. 8, 2015) (quoting Design
Strategy, Inc. v. Davis, 469 F.3d 284, 297-98 (2d Cir. 2006)); see Hein v. Cuprum, S.A.,
De C.V., 53 F. App’x 134, 136 (2d Cir. 2002) (“The imposition of sanctions for abuse of
discovery under [Rule] 37 is a matter within the discretion of the trial court.”). In
deciding whether to exclude testimony under Rule 37(c)(1), the Court considers “(1)
the party’s explanation for the failure to comply with the [disclosure requirement];
(2) the importance of the testimony of the precluded witness[es]; (3) the prejudice
suffered by the opposing party as a result of having to prepare to meet the new
testimony; and (4) the possibility of a continuance.” Patterson v. Balsamico, 440 F.3d
104, 117 (2d Cir. 2006) (alterations in original).
Applying these standards, precluding Dr. Schaller’s report and expert opinion
is an appropriate sanction and Plaintiff’s motion in limine #3 is therefore granted.
Initially, to the extent the Government argues that the untimely third-party records
should not be precluded, see DE [139-3] at 1-2, the Court has already addressed that

10

issue with respect to the motion for reconsideration and rejects that argument. To
this end, Defendant fails to offer any plausible explanation for its delay in producing
the records or why its expert should be permitted to rely upon them when Plaintiff’s
experts could not. To allow Defendant’s expert to rely on untimely produced evidence
contravenes the July 29 Order, as the Court observed that it would be unfair to
require that Plaintiff’s experts rely upon an incomplete set of data. Simon v. City of
New York, No. 14-CV-8391(JMF), 2017 WL 57860, at *6 (S.D.N.Y. Jan. 5, 2017)
(precluding testimony of an expert witness where the plaintiff failed to comply with
Rule 26 disclosure requirements and provided no justification for their failure).
Defendant’s argument that “Plaintiff would not be prejudiced by the use of the ThirdParty Records at trial because the records are Plaintiff’s own records,” id., is
unavailing, as Plaintiff retained experts who formulated expert opinions based upon
incomplete information, and Zambito and his experts were not put on notice that
Defendant’s experts would be relying on these records. Williams v. Bethel Springvale
Nursing Home, Inc., No. 14-CV-9383(NSR), 2018 WL 1662644, at *5 (S.D.N.Y. Apr.
5, 2018) (“[U]ntimely disclosures rob opposing counsel of the opportunity to take
discovery of the named witness, build a complete theory of the case, plan appropriate
trial strategies, and find other evidence to use for trial.”).
Moreover, although Fed. R. Evid. 703 allows a party to present an expert
opinion that relies upon underlying facts or evidence that would otherwise be
inadmissible under the Federal Rules of Evidence, this is not the situation before the
Court. The underlying information and Dr. Schaller’s expert report and opinion are

11

precluded as a sanction for Defendant’s failure to timely disclose the underlying
records to the prejudice of Plaintiff, a ruling within the Court’s discretion. Williams,
2018 WL 1662644, at *5 (granting motion to preclude witness testimony as a
sanction).

To allow Defendant to submit expert testimony that relies upon the

complete universe of facts while Plaintiff’s experts were not provided the same
information prior to the formation of his experts’ opinions would be inequitable and
prejudicial. Id. Finally, as this case has been pending since 2018, the Court declines
to prolong it further by reopening expert discovery and compelling Zambito to incur
further expert expense associated with permitting him to serve an amended expert
report. Patterson, 440 F.3d at 104; Williams, 2018 WL 1662644, at *5 (holding that
witness preclusion was appropriate to avoid further delay in “a case that ha[d] been
pending for nearly four years”).

Accordingly, Plaintiff’s motion in limine #3 is

granted.
5.

Plaintiff’s Motion in Limine #4

Plaintiff’s motion in limine #4 relates to Exhibit PX20 and is more akin to a
motion for reconsideration than a motion in limine as it seeks to permit testimony
and admission of a February 8, 2020 letter authored by Dr. Rosemarie Gambetta, MD
(the “February 8 Letter”). DE [140]. In a March 29, 2022 Order (the “March 29
Order”), the Court held that Gambetta may not serve as Plaintiff’s expert as she is a
current employee of the VA. DE [87]. In this motion, Plaintiff seeks to permit
introduction of, and testimony concerning, the February 8 Letter. Id. He argues that
the March 29 Order “was forward looking” and did not consider whether prior medical

12

opinions are subject to any evidentiary privilege. Id. In opposition, Defendant argues
that the Court has previously addressed this issue and that there has been no change
in facts or controlling law. DE [140-4]. The Court agrees with the Government.
As discussed above with respect to Defendant’s motion for reconsideration, the
motion to reconsider the March 29 Order is untimely under both Local Rule 6.3 and
Fed. R. Civ. P. 60(c)(1). Moreover, Plaintiff fails to identify facts or law that the Court
overlooked in holding that Dr. Gambetta may not serve as an expert for Plaintiff.
Am. Empire Surplus Lines Ins. Co., 2023 WL 4420236, at *2; Klein, 2022 WL
19567887, at *2. Accordingly, Plaintiff’s motion in limine #4 is denied.
6.

Plaintiff’s Motion in Limine #5

In Zambito’s motion in limine #5, he seeks to preclude Exhibit X, which
includes the Verified Complaint and Verified Bill of Particulars filed in Zambito v.
Shepp, Index No. 532897/2022 (Sup. Ct. Kings Cty.) (the “Shepp Action”). DE [141].
This is an unrelated motor vehicle accident case. Id. Plaintiff argues that the court
filings at issue are not relevant, that they were not produced during discovery in this
action, and that they violate Fed. R. Evid. 1002’s best evidence rule. Id. Defendant
counters that it intends to rely on the documents from the Shepp Action to question
Plaintiff about new injuries caused by the alleged malpractice in this action, to
question Plaintiff’s designated expert in physical medicine, and, to the extent
necessary, for impeachment purposes. DE [141-1]. Although the relevance of the
documents at issue is not readily apparent, Plaintiff is aware of their existence and
the Court held with respect to the motion for reconsideration that materials produced

13

after September 15, 2023 may be used for impeachment purposes. Accordingly, the
Court reserves ruling on Plaintiff’s motion in limine #5 so that it may be placed in its
appropriate context at trial. Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 561
(E.D.N.Y. 2011) (deferring ruling on motion in limine until trial where evidence may
have been used for impeachment purposes).
7.

Plaintiff’s Motion in Limine #6

In Plaintiff’s motion in limine #6, he seeks to preclude a complaint and
conditional transfer order in Ates v. 3M Company, No. 23-CV-1743, a case pending in
the Northern District of Alabama. DE [142]. This relates to Exhibit DD in the JPTO.
Zambito argues that this evidence is irrelevant under Fed. R. Evid. 401 and 402, more
prejudicial than probative under Fed. R. Evid. 403, and inadmissible character
evidence under Fed. R. Evid. 404. Id. The Government opposes on the grounds that
it intends to rely upon these documents for impeachment purposes to the extent they
demonstrate inconsistencies in Plaintiff’s deposition testimony. DE [142-1]. As the
documents at issue are public records and expected to be used for impeachment
purposes, the Court again reserves ruling on motion in limine #6 until trial so that
they may be considered in context. See Kozak v. Liberty Maritime Corp., 729 F. Supp.
3d 277, 289 (E.D.N.Y. 2024) (“Because Defendants intend to produce [the exhibit] for
impeachment purposes only, the Court reserves decision on Plaintiff’s motion to
preclude [the exhibit].”).

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9.

Defendant’s Motion in Limine #1

In Defendant’s motion in limine #1, the Government seeks preclusion of a May
12, 2016 letter from the VA. DE [144]. This relates to Plaintiff’s Exhibit PX9. Id.
Defendant argues that the letter at issue is not properly authenticated, and that it is
typed in a different typeface and size from the label/letterhead. Id. Defendant
further disputes the letter’s authenticity by arguing that a VA representative
confirmed that it was not generated by any medical professionals or staff at VAMCNorthport.

Id.

Plaintiff responds that Defendant did not identify the VA

representative disputing authenticity in its Rule 26 disclosures and that the
representative does not have knowledge of who created the document. DE [144-2].
Plaintiff concedes that the authenticity may be addressed at trial. Id.
As the parties’ written submissions fail to establish or disprove the
authenticity of the May 12, 2016 letter, Defendant’s motion in limine #1 is denied
without prejudice and with leave for the parties to address its authenticity at trial
and provide proper context for its relevance. See Rodriguez v. Vill. of Port Chester,
535 F. Supp. 3d 202, 219 (S.D.N.Y. 2021) (reserving ruling on admissibility of
evidence until trial so that the court could properly evaluate authenticity).
10.

Defendant’s Motion in Limine #2

Defendant’s motion in limine #2 is essentially an opposition to Plaintiff’s
motion seeking to introduce an unredacted February 8, 2020 letter from Rosemarie
Gambetta, M.D. DE [146]. For the reasons that Plaintiff’s motion in limine #4 is
denied, as discussed above, Defendant’s motion in limine #2 is granted.

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11.

Defendant’s Motion in Limine #3

In Defendant’s motion in limine #3, the Government seeks to preclude the
expert testimony of Dr. William Haas, Psy. D. at trial. DE [146]. Defendant argues
that: (1) Zambito’s administrative claim did not allege damages for depression or loss
of enjoyment, and therefore did not provide sufficient notice of Dr. Haas’s opinion;
and (2) Dr. Haas’s opinion does not meet the Daubert standard of reliability. Id.
Plaintiff asserts that he did include psychological and emotional damages in his
administrative claim, including that his Form SF-95 stated that he suffered from
“fear and anxiety” and “emotional upset.” DE [146-2].
Plaintiff’s administrative charge does reference potential emotional distress
damages including that he “continued to needlessly suffer from fear and anxiety”
related to the alleged deficient medical care.

DE [146-1] at 4.

Moreover, the

Government will have the opportunity at trial to question Dr. Haas regarding the
basis of his opinion, including what materials he reviewed. See Int’l Cards Co., Ltd.
v. MasterCard Int’l Inc., No. 13-CV-2576(LGS)(SN), 2017 WL 11890803, at *2
(S.D.N.Y. Mar. 9, 2017) (denying motion in limine where the defendant would have
“a full opportunity to cross-examine” the plaintiff’s witnesses); Sherman St. Assocs.,
LLC v. JTH Tax, Inc., 03-CV-1875(CFD), 2010 WL 4340444, at *2 (D. Conn. Oct. 25,
2010) (“[Defendant] will have the opportunity to vigorously cross-examine [the
witnesses] . . . . At trial, it may very well be revealed that their [testimony is]
unreliable and unsupported. If so, that will affect the weight of their . . . testimony,

17

but it does not affect its admissibility under Rule 701.”). Therefore, Defendant’s
motion in limine #3 is denied.
III.

CONCLUSION
For the reasons set forth herein:
-

Defendant’s motion for reconsideration, DE [147], is denied;

-

The Court reserves decision on Plaintiff’s motion in limine #1, DE [137],
until trial;

-

Plaintiff’s motion in limine #2, DE [138], is denied;

-

Plaintiff’s motion in limine #3, DE [139], is granted;

-

Plaintiff’s motion in limine #4, DE [140], is denied;

-

The Court reserves decision on Plaintiff’s motion in limine #5, DE [141],
until trial;

-

The Court reserves decision on Plaintiff’s motion in limine #6, DE [142],
until trial;

-

The Court reserves decision on Plaintiff’s motion in limine #7, DE [143],
until trial;

-

Defendant’s motion in limine #1, DE [144], is denied without prejudice and
with leave to question the authenticity of Plaintiff’s Exhibit PX9 at trial;

-

Defendant’s motion in limine #2, DE [145], is denied;

-

Defendant’s motion in limine #3, DE [146], is denied; and

-

Plaintiff’s motion to strike Defendant’s sur-reply related to Plaintiff’s
motion in limine #2, DE [149], addressed in Footnote 5, is denied.

A final Pretrial Conference is scheduled for April 9, 2025 at 11:30 a.m. in
Courtroom 820 of the Central Islip courthouse, at which time the Court will set a trial
schedule and address any outstanding pretrial matters.

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Dated:

Central Islip, New York
March 11, 2025

SO ORDERED.
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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