Tardif v. City of New York et al

Filing 431

ORDER: Plaintiff must submit its experts' affidavits by May 4, 2022. Defendant must submit its response, if any, by May 11, 2022. And as set forth herein. SO ORDERED. (Signed by Judge Kimba M. Wood on 4/27/2022) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: __________________
DATE FILED:
4/27/2022

MARY TARDIF,
Plaintiff,
13-CV-4056 (KMW)

-v-

ORDER

CITY OF NEW YORK,
Defendant.
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KIMBA M. WOOD, United States District Judge:
Plaintiff Mary Tardif seeks to introduce testimony from four expert witnesses at the
upcoming trial in this case: neuroradiologist Gregory J. Lawler, neurologist R.C. Krishna, life
care planner Linda Lajterman, and economist Mark P. Zaporowski. Defendant moved in limine
to preclude the testimony of each of these experts. (See Def. Mem. at 2–12, ECF No. 390.) It
argues that the proposed testimony is not reliable within the meaning of Rule 702 of the Federal
Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and not
helpful or relevant pursuant to Rules 702 and 403 of the Federal Rules of Evidence.
To assist the Court in determining the admissibility of the proposed expert testimony, the
parties are ordered to submit supplemental affidavits in accordance with the following
instructions.
I.

Plaintiff’s Submission
By May 4, 2022, Plaintiff must submit supplemental affidavits written by each of the

expert witnesses she wishes to have testify at trial. These affidavits must address the topics
specified in this Order.

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A. Dr. Lawler
Dr. Lawler should address the following topics in his affidavit. The affidavit should
specify whether each methodology used has been subject to peer review and publication, whether
it has a known error rate, whether standards control the application of the methodology, whether
it has gained general acceptance in the relevant community of experts, and any other
consideration that pertains to the reliability of the methodology. Where applicable, the affidavit
should direct the Court’s attention to credible sources of information that support Lawler’s
responses and be accompanied by an attached copy of the pertinent text of each source.
(1) How reliable is the use of magnetic resonance imaging (MRI) without
diffusion tensor imaging (DTI) to identify T2 white matter hyperintensity and
axonal loss in an individual patient? In your response, provide a brief description
of the process by which MRI images are generated and provide explanations of the
terms “T2 white matter hyperintensity” and “axonal injury / axonal loss.”
(2) How reliable is the use of magnetic resonance imaging (MRI) with diffusion
tensor imaging (DTI) to identify T2 white matter hyperintensity and axonal loss in
an individual patient? In your response, provide a brief description of the process
by which DTI images are generated and how this differs from the process by which
other MRI images are generated.
(3) Describe with specificity the methodology you employed to determine that a
T2 white matter hyperintensity was evident on the March 24, 2012 MRI of Ms.
Tardif’s brain but not on the April 23, 2009 MRI. If that technique is not addressed
in the prior two questions, provide evidence as to the reliability of that
methodology.
(4) In concluding that Ms. Tardif was likely to have experienced head trauma, did
you rely upon (a) your review of images of Tardif’s brain, (b) Tardif’s description
of the cause of her alleged injury, or (c) both? If your conclusion relied in whole
or in part upon your review of images of Tardif’s brain, please describe with
specificity the methodology you used to come to your conclusion.
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(5) What is the relationship, if any, between the phrase “axonal injury / axonal
loss after head trauma” used in the Impression section of your September 6, 2021
report and the condition of “traumatic brain injury”?
B. Dr. Krishna
Dr. Krishna should address the following topics in his affidavit. For each of the
following conclusions in Krishna’s report, the affidavit should describe with specificity (i) how
Krishna came to that conclusion, including which methodology or methodologies he employed,
and (ii) whether each methodology used has been subject to peer review and publication,
whether it has a known error rate, whether standards control the application of the methodology,
whether it has gained general acceptance in the relevant community of experts, and any other
consideration that pertains to the reliability of the methodology. Where applicable, the affidavit
should direct the Court’s attention to credible sources of information that support Krishna’s
responses and be accompanied by an attached copy of the pertinent text of each source. The
conclusions in question are:
(1) Your diagnosis that “[Ms. Tardif’s] clinical findings are consistent with
traumatic brain injury.” (Lax Decl., Ex. A at 5, ECF No. 389-1.)
(2) Your conclusion that “the symptoms and injuries sustained by [Ms. Tardif]”
are “causally related” to the incident with Sergeant Mattera on March 21, 2012.
(Id. at 7.)
(3) Your prognosis that Ms. Tardif has serious, permanent injuries that will
significantly limit her working and social activities and that will require a home
health aide.
(4) Your recommendations for future life care for Ms. Tardif and the dollar values
attributed to each type of care.

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Additionally, Dr. Krishna’s affidavit should answer the following questions:
(5) Did you personally and independently identify hyperintensities in the images
of Ms. Tardif’s brain, or are the statements under the header Diagnostic Testing in
your report written in reliance upon determinations made by Dr. Lawler? Which
images of Tardif’s brain did you personally review before completing your
September 6, 2021 report?
(6) In your report, you write, “No person or entity has caused, directed, or
encouraged me to submit a report that differs substantially from my professional
opinion.” Is this use of the word “substantially” a standard convention within the
medical community? Did any person or entity cause, direct, or encourage you to
submit a report that differed from your professional opinion to a degree that you
considered less than substantial?
C. Ms. Lajterman
Ms. Lajterman should address the following topics in her affidavit.
(1) Describe with specificity the methodology by which you developed the
aspects of your recommended life care plan for Ms. Tardif other than the types of
care recommended by Dr. Krishna. For example, what methodology did you use
to develop the recommendation that Tardif receive two-to-four hours of
homemaker assistance per week, for life? Describe whether the methodology you
used in creating the recommended life care plan has been subject to peer review
and publication, whether it has a known error rate, whether standards control the
application of the methodology, whether it has gained general acceptance in the
relevant community of experts, and any other consideration that pertains to the
reliability of the methodology.
(2) What is the reliability of the sources that you used to identify cost estimates
for the types of care included in the recommended life care plan for Ms. Tardif?
Please address the provenance of these sources, whether they have been subject to
peer review and professional scrutiny, whether they have gained general acceptance
among life care planning experts, and any other consideration that pertains to the
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reliability of these sources. In particular, please be sure to discuss reliability of the
Physicians Fee Reference 2021 book and the tool on Genworth.com for estimating
the costs of homemaker assistance.
(3) In several instances, your calculations rely on cost estimates provided by Dr.
Krishna rather than cost estimates found in the Physicians Fee Reference 2021 book
or another third-party source. For example, this is true of “MRI of the brain,” under
Table 2, and “Occipital nerve block,” under Table 7. Please state whether cost
estimates for these types of care can be found in third-party sources and attach the
text of such sources. Describe the methodology you used to decide which cost
estimates to use in your calculations.
D. Prof. Zaporowski
Prof. Zaporowski should address the following topics in his affidavit.
(1) Describe with specificity the Bureau of Labor Statistics data that you used in
generating the inflation projections listed on page 2 of your report. (Lax Decl., Ex.
A at 29.) Attach a copy of those data.
(2) Describe with specificity the methodology by which you used the Bureau of
Labor Statistics data identified above to generate projected rates of future inflation
in categories such as “cost of medical services” and “cost of physician’s services.”
(3) Describe the reliability of the methodology that you used. Please address
whether the methodology used has been subject to peer review and publication,
whether it has a known error rate, whether standards control the application of the
methodology, whether it has gained general acceptance in the relevant community
of experts, and any other consideration that pertains to the reliability of the
methodology. If you rely upon the text of any source of information, attach to your
affidavit a copy of the pertinent text of that source.
II.

Defendant’s Submission
By May 11, 2022, Defendant may submit a factual memorandum (not a memorandum of

law) addressing the methodologies described in the affidavits written by Plaintiff’s experts. This
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memorandum should be limited to factual issues such as whether each methodology has been
subject to peer review and publication, whether it has a known error rate, whether standards
control the application of the methodology, whether it has gained general acceptance in the
relevant community of experts, and any other consideration that pertains to the reliability of the
methodology.

CONCLUSION
Plaintiff must submit its experts’ affidavits by May 4, 2022. Defendant must submit its
response, if any, by May 11, 2022.
SO ORDERED.
Dated: New York, New York
April 27, 2022

/s/ Kimba M. Wood
KIMBA M. WOOD
United States District Judge

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