Tardif v. City of New York

Background

Mary Tardif sought to introduce testimony from four expert witnesses at the upcoming trial:

- neuroradiologist Gregory J. Lawler; - neurologist R.C. Krishna; - life care planner Linda Lajterman; and - economist Mark P. Zaporowski.

The City of New York moved in limine, meaning it asked the court to decide before trial that the experts should not be allowed to testify. The City argued that the proposed testimony was unreliable under Rule 702 of the Federal Rules of Evidence and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals. It also argued that the testimony was not helpful or relevant under Rules 702 and 403.

Court’s Order

The court did not grant or deny the City’s motion in limine in this order. Instead, it ordered supplemental affidavits to help determine whether the proposed expert testimony was admissible.

Required information from Dr. Lawler

Dr. Lawler had to explain the reliability of the methods he used involving magnetic resonance imaging (MRI), including MRI with and without diffusion tensor imaging. He had to describe the methods’ peer review and publication history, known error rates, applicable standards, acceptance among relevant experts, and other reliability considerations.

The affidavit also had to address how he determined that a T2 white matter hyperintensity appeared on Ms. Tardif’s March 24, 2012 brain MRI but not on her April 23, 2009 MRI. He had to explain whether his conclusion that Ms. Tardif likely experienced head trauma relied on the brain images, her description of the alleged injury, or both. He also had to explain the relationship between “axonal injury / axonal loss after head trauma” and “traumatic brain injury.”

Required information from Dr. Krishna

Dr. Krishna had to explain the methods and reliability of his conclusions that Ms. Tardif’s clinical findings were consistent with traumatic brain injury; that her symptoms and injuries were causally related to the March 21, 2012 incident with Sergeant Mattera; that she had serious and permanent injuries affecting work and social activities; and that she would need a home health aide.

He also had to explain his recommendations for future care and the dollar amounts assigned to that care. In addition, he had to state whether he independently identified abnormalities in Ms. Tardif’s brain images or relied on Dr. Lawler’s determinations, and identify which images he personally reviewed. The court also asked him to explain his use of the word “substantially” in a statement about whether anyone influenced his report.

Required information from Ms. Lajterman

Ms. Lajterman had to describe the methods she used to develop portions of Ms. Tardif’s life care plan, including the recommendation for two to four hours of homemaker assistance per week for life. She had to address whether those methods had been peer reviewed or published, their known error rates, applicable standards, acceptance among relevant experts, and other reliability considerations.

She also had to explain the reliability and sources of the cost estimates used in the plan, including the Physicians Fee Reference 2021 and a Genworth.com tool for estimating homemaker-assistance costs. She had to identify whether third-party sources contained cost estimates for certain services and explain how she selected the estimates used in her calculations.

Required information from Professor Zaporowski

Professor Zaporowski had to identify and provide the Bureau of Labor Statistics data used for his inflation projections. He also had to explain how he used those data to project future inflation for categories such as medical services and physician services, and address the reliability of that methodology.

Deadlines and disposition

The court ordered Ms. Tardif to submit the supplemental expert affidavits by May 4, 2022. The City could submit a factual memorandum by May 11, 2022, limited to factual issues concerning the reliability of the methods described in the affidavits. Judge Kimba M. Wood therefore ordered additional submissions but did not resolve the admissibility of the four experts’ testimony in this order.