The following papers, filed electronically were read and considered on the following motions in limine:

(1) The omnibus motion filed by Plaintiffs (Mot. Seq. #15) for an Order

(i) directing Defendants SOPHIE BARTSICH and MARC J. ELKOWITZ, M.D., P.C. d/b/a PLASTIC SURGERY OF NEW YORK are precluded from offering testimony at trial from (a) any of their newly disclosed expert witnesses, or (b) their newly disclosed expert neurologist;

(ii) directing Defendants FABIEN BITAN and MANHATTAN ORTHOPEDIC SPINE PLLC are precluded from offering at trial any testimony from their newly disclosed expert witness; and

(iii) directing Defendants SOPHIE BARTSICH, MARC J. ELKOWITZ, M.D., P.C. d/b/a PLASTIC SURGERY OF NEW YORK, FABIAN BITAN, and MANHATTAN ORTHOPEDIC SPINE PLLC are precluded at trial from making any reference to, or presenting any evidence about Plaintiff Deborah Buck's prior medical malpractice lawsuit or her financial recovery therefrom; or, in the alternative as to (i) and (ii) supra;

(iv) that the trial is briefly adjourned to allow Plaintiffs to retain and disclose an expert neurologist to testify at trial; and

(2) The motion filed by Defendants SOPHIE BARTSICH, M.D., PLASTIC SURGERY OF NEW YORK, P.C., and MARC J. ELKOWITZ, M.D., P.C. d/b/a PLASTIC SURGERY OF NEW YORK (Mot. Seq. #16) for an Order

(i) precluding Plaintiffs' counsel from introducing, eliciting, or referring to any alleged financial arrangement, professional relationship, or supposed impropriety between defendant and the consulting surgeon, whether through evidence or argument;

(ii) precluding Plaintiffs from testifying about their child with special needs during the trial;

(iii) precluding Plaintiffs, Plaintiffs' counsel, and any witnesses, from making or suggesting any argument, statement, or question that implies the jury should return a verdict in order to protect themselves, their families, or the community, or otherwise to deter future conduct unrelated to the claims in this case

Notice of Motion, Affirmation in Support Doc. 438-439

Affirmation in Opposition, Exhibits A-D Doc. 450-454

Affirmation in Opposition, Exhibits A-E Doc.456-461

Notice of Motion, Affirmation in Support, Memoranda of Law Doc.433-437

Affirmation in Opposition Doc. 455

This medical malpractice action stems from a cervical fusion surgery and muscle flap closure Plaintiff Deborah Buck ("Plaintiff") underwent on May 25, 2016, performed by surgeon Fabien Bitan ("Dr. Bitan") and plastic surgeon Sophie Bartsich ("Dr. Bartsich"). Plaintiff asserts the physicians deviated from the standard of care in performing the cervical fusion and the muscle flap closure and the post-operative care and that deviation caused muscle atrophy, muscle dehiscence, left shoulder dysfunction, a scapulopathic fusion, decreased range of motion and partial paralysis of her head, neck and back and an injury to her spinal accessory nerve. Plaintiff also alleges Defendants Manhattan Orthopedic Spine, PLLC and Plastic Surgery of New York, P.C. are vicariously liable for the surgeons.

All parties engaged in and completed discovery, and Plaintiff filed a Note of Issue November 23, 2022. This matter is presently scheduled for trial with jury selection to begin on September 10, 2025.

Defendants Dr. Bartsich, Plastic Surgery Of New York, P.C., and Marc J. Elkowitz, M.D., P.C. d/b/a Plastic Surgery of New York ("Bartsich Defendants") and Defendants Dr. Bitan and Manhattan Orthopedic Spine, PLLC ("Bitan Defendants") previously filed motions for summary judgment that were denied by Decision and Order dated August 23, 2023 (Goldberg-Velazquez, J.)^[FN1] In support of their motion, the Bartsich Defendants proffered the expert opinion of Dr. Jack Stern, a neurosurgeon, as well as Dr. Bartsich's own affidavit. In support of their motion for summary judgment, the Bitan Defendants relied on Dr. Bitan as the expert and [*2]proffered his Affirmation, attesting he did not depart from the standard of care in his treatment of Plaintiff.

The instant motions consist of separate applications by Plaintiffs and by Dr. Bartsich ^[FN2] concerning preclusion of certain evidence and arguments at trial. Plaintiff seeks to preclude trial testimony from Dr. Bartsich's newly retained neurology expert as well as from Dr. Bitan's newly designated expert and also to preclude Defendants from introducing any evidence or eliciting testimony about Plaintiff's prior malpractice action or her financial recovery therefrom.

Dr. Bartsich is seeking to preclude Plaintiffs from offering any evidence or make any arguments about any alleged financial arrangement, professional relationship, or supposed impropriety between her and Dr. Bitan, precluding Plaintiffs from testifying about their child with special needs during the trial; and precluding Plaintiffs, Plaintiffs' counsel, and any witnesses, from making or suggesting any argument, statement, or question that implies the jury should return a verdict in order to protect themselves, their families, or the community, or otherwise to deter future conduct unrelated to the claims in this case.

Plaintiffs argue Defendants' experts should be precluded from offering testimony because the disclosures were untimely, having first been made after the pre-trial conference was held as opposed to inclusion in the pre-trial binders that are to be submitted and exchanged five days prior to the pre-trial conference pursuant to this Court's Part Rules. Plaintiffs note Dr. Bartsich served her Expert Witness Disclosure ("EWD") on August 4, 2025 that stated she would call a physician board certified in neurology, which is not the expert she relied on in support of her motion for summary judgment. Dr. Bitan served his EWD on August 5, 2025, stating his sole expert witness would be a board-certified orthopedic/spinal surgeon, and this expert was not previously relied on by Dr. Bitan in support of his motion for summary judgment. Plaintiffs' counsel notes both EWDs were promptly rejected as untimely and contends the late disclosure of the expert witnesses amounts to a strategy of trial-by surprise, given the protracted litigation that this case has already endured over the past seven years, including summary judgment motions that were decided two years ago. Plaintiff notes that, while Dr. Bartsich may contend the neurologist will "parrot" the opinions offered by the expert who she previously relied on for her summary judgment motion, the questioning of this expert will likely be expanded into broader areas of neurology than were addressed at summary judgment, where the focus was on specific treatment of a specific issue or issues. Plaintiffs argue they have not been given the chance to timely prepare for the opinion of a neurologist or to prepare their experts for responding to criticisms deriving from a neurologist's perspective.

In opposition, Dr. Bartsich argues there is no specific time required in CPLR §3101(d) for the retention of an expert, and that the trial court is vested with the discretion to allow the testimony of an expert who was disclosed near the commencement of trial. Dr. Bartsich also argues the trial notebook that was presented to the Court before the August 1, 2025 pretrial [*3]conference included indication to call as experts a plastic surgeon and a neurologist. Counsel explains that the neurosurgeon who provided the affirmation in support of its motion for summary judgment would not be able to testify at trial because of age-related health problems and that it became necessary to secure a replacement expert, which ended up being a neurologist due to disinterest or unavailability of other neurosurgeons. It is further argued the opinions of the neurologist were quite the same as those of the neurosurgeon, and there is no requirement that a defendant use the same expert at trial as was relied on in support of a summary judgment motion. Lastly, counsel argues the neurologist's expected testimony, as disclosed, does not materially differ from that of the neurosurgeon since both experts agree Plaintiff's condition is neurological in origin, that Dr. Bartsich's wound closure could not have caused a spinal accessory nerve injury, and that the anatomical location of the alleged injury is remote from the surgical field. It is noted the EWD describes the expected testimony of the neurologist and closely parallels the affirmation of Dr. Stern, the neurosurgeon, submitted in support of the motion for summary judgment. Dr. Bartsich further argues there is no surprise or prejudice to Plaintiffs concerning Dr. Bartsich calling a neurologist when this case has always involved neurological injury.

With respect to Dr. Bitan's expert, Plaintiffs argue that, in addition to being untimely, the expert opinion advances a theory never before articulated by any Defendants - that Plaintiff had a very strange neurological problem which was not a consequence of the surgery or closure, particularly insofar as there were no immediate post-operative symptoms to suggest an injury to the spinal accessory nerve, and that the only way there could have been an injury to the spinal accessory nerve during the surgery was if there was an anatomical variant. Plaintiffs argue that nowhere in Dr. Bitan's affidavit submitted in support of his summary judgment motion did he mention "a very strange neurological problem" or "an anatomical variant" and that he never raised this theory of defense at any time during the pendency of this litigation. Plaintiff contends Dr. Bitan intentionally suppressed this theory only to reveal it in the month preceding trial, evincing a willful strategy of surprise.

In opposition, Dr. Bitan argues expert disclosure is governed by CPLR §3101(d)(l)(i) which contains no deadline for the disclosure, in purposeful anticipation the disclosure of expert trial witnesses might not occur until near the commencement of trial. Counsel further takes issue with Plaintiffs' interpretation of this Court's Part Rules and argues the rules do not address any timeline or procedures for the exchange of expert disclosure. Counsel further notes that at the pre-trial conference on August 1, 2025, he advised Defendants' expert witness disclosure would be served no later than August 5, 2025. Dr. Bitan argues it would be an improvident exercise of the Court's discretion to preclude his expert when his EWD was served within the time indicated to the Court more than a month before the commencement of trial and was not in violation of any statute, rule or court order. Counsel further argues Plaintiffs cannot claim prejudice because they should have anticipated Dr. Bitan would retain an expert to testify in his defense at the trial as is common practice. As to the expert's opinion, Dr. Bitan maintains it is consistent with the opinion in his Affirmation submitted in support of his summary judgment motion and the expert will offer opinions countering each assertion by Plaintiff's expert.

In opposition to Plaintiffs' claim that the new expert witness posits a never-before articulated theory of defense, Dr. Bitan notes his Affirmation in support of his summary judgment motion stated the spinal accessory nerve was not in his operative field, and argus that therefore it is not a leap of logic to consider that if the spinal accessory nerve was injured by Dr. [*4]Bitan as plaintiffs claim, then it had to have run an errant course to be where Dr. Bitan operated. Dr. Bitan further argues this theory is supported by his statement that he did not know what caused Plaintiff's contracture and his denial it was caused by injury to the spinal accessory nerve (which would typically cause paralysis instead of contracture). Lastly, Dr. Bitan points to his September 28, 2016 summary note concerning the uncertain etiology of Plaintiff's complaints and argues it clearly indicates Plaintiff had a "very strange neurological problem". Dr. Bitan argues that all of Plaintiffs' arguments in support of preclusion fail and the motion should be denied since there has been no willful or contumacious conduct warranting the drastic remedy.

The fact that the disclosure of an expert pursuant to CPLR §3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rivers v. Birnbaum, 103 AD3d 26, 41 (2d Dept. 2012). CPLR §3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. Cruz v. Gustitos, 51 AD3d 963 (2d Dept. 2008); Saldivar v. I.J. White Corp., 46 AD3d 660 (2d Dept. 2007). The language of CPLR §3101(d)(1)(i) anticipates that the disclosure of expert trial witnesses might not occur until near the commencement of trial and the statute implicitly recognizes that the parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary. Rivers v. Birnbaum, supra,103 AD3d at 38-39.

Civil Practice Law and Rules Section 3101(d) provides that:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. (Emphasis supplied).

As held in the Burbige v. Siben & Ferber, CPLR §3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. 115 AD3d 632, 633 (2d Dept. 2014) (citing Cutsogeorge v. Hertz Corp., 264 AD2d 752, 753-754 [2d Dept. 1999] [quoting Aversa v. Taubes, 194 AD2d 580, 582 [2d Dept. 1993], quoting Lillis v. D'Souza, 174 AD2d 976 [2d Dept. 1991] [*5][internal quotation marks omitted]); Barchella Contr. Co., Inc. v. Cassone, 88 AD3d 832, 832 (2d Dept. 2011); Saldivar v. I.J. White Corp., 46 AD3d 660 (2d Dept. 2007); Fava v. City of New York, 5 AD3d 724, 724-725 (2d Dept. 2004).

In Burbige, the Second Department reversed the Supreme Court's decision precluding plaintiff's expert from testifying at trial, finding that the record did not support a conclusion that the plaintiff's delay in retaining his expert or in serving his expert information was intentional or willful. Id. at 633; Matter of State of New York v. Dennis K., 120 AD3d 964 (2d. Dept. 2014); Ocampo v. Pagan, 68 AD3d 1077 (2d Dept. 2009); Mazzueco v. Gordon, 173 AD3d 1001 (2d Dept. 2019). Similarly, in Rowan v. Cross County Ski & Skate, Inc., the Second Department affirmed the Supreme Court allowing defendant's expert to testify noting that disclosure of the expert information was not made on the eve of trial since the plaintiff had two weeks within which to review the material prior to the date when the trial was scheduled to begin. 42 AD3d 563, 564 (2d Dept. 2007).

Herein, Dr. Bartsich previously relied on the expert testimony of neurosurgeon Dr. Jack Stern in support of her motion for summary judgment. Her counsel has demonstrated the necessity of substituting a neurologist in place of Dr. Stern, who will not be able to testify at trial due to advanced age-related health conditions. This replacement expert was disclosed more than one month prior to the commencement of trial. Dr. Bartsich is entitled to rely on a replacement expert, especially to the extent the expert's opinion parrots the opinion previously given by Dr. Stern that were disclosed years ago. To the extent the questioning of this replacement expert attempts to expand into broader areas of neurology as Plaintiffs anticipate, the propriety of such broader questioning can be appropriately addressed during such examination.

As to the prejudice claimed by Plaintiffs due to this information being served one month before trial, the Court does not see the prejudice given the nature of the opinion has already been fully disclosed in support of the summary judgment motion and Plaintiffs have had ample time to prepare to counter the anticipated expert testimony.

Consistent with the caselaw noted herein, the Court finds no intentional or willful failure to disclose on the part of Dr. Bartsich's counsel, and Plaintiffs have not been prejudiced to the extent argued in their moving papers. Therefore, in light of the Court's findings, Plaintiffs' application to preclude Dr. Bartsich's neurology expert from testifying is DENIED.

As to Dr. Bitan's expert, Plaintiffs also argue this expert should be precluded from testifying because the EWD was served late, was deficient, and advances a new theory in a calculated strategy to surprise Plaintiffs. Plaintiffs contend Dr. Bitan's EWD was served after the pre-trial conference was held, and was deficient in that it did not reveal when the expert was retained. Plaintiffs argue this late disclosure has deprived them of the ability to prepare to address the newly advanced "anatomical variant" theory. As to the timing of Dr. Bitan's EWD, the Court agrees the disclosure was made in accordance with representations at the pre-trial conference and that no willful or contumacious conduct is evident that would warrant preclusion of testimony from this expert. The retention of a spinal surgeon for trial testimony on behalf of Dr. Bitan is entirely appropriate despite that Dr. Bitan did not retain an expert for the purpose of his summary judgment motion, relying only on his own affirmation, as he is entitled to.

However, contrary to his counsel's argument, Dr. Bitan did not previously articulate the anatomical variant theory he now seeks to advance through his newly designated expert. It is argued Dr. Bitan's statement in his Affirmation that the spinal accessory nerve is not in his operative field lends itself to the logical conclusion the nerve had to have run an errant course in [*6]order for it to be where Dr. Bitan operated. It is further argued the tenor of Dr. Bitan's note from September 28, 2016 suggests the patient had a "very strange neurological problem". The Court disagrees. Not only does Dr. Bitan's Affirmation stop short of articulating the supposed logical conclusion, but the September 28, 2016 office note also does not, as counsel contends, make clear the existence of a very strange neurological problem supportive of the proffered anatomical variant theory. Neither of these statements are tantamount to the conclusive opinion of a medical expert such that opposing counsel would be on notice and would have had the opportunity to address and counter this theory with its expert. Accordingly, this theory presents an improper surprise for which testimony will not be permitted at trial.

In light of the above, Plaintiffs' application to preclude Dr. Bitan's spine surgeon from testifying is DENIED, subject to the limitation herein.

Lastly, Plaintiffs argue Defendants should be precluded from offering any evidence or eliciting testimony about Deborah Buck's prior malpractice action or her financial recovery therefrom. Plaintiff anticipates Defendants will attempt to introduce evidence of the prior medical malpractice action brought nearly 30 years before this action was filed and from which she received a financial recovery. Plaintiffs argue there can be no legitimate reason for additionally mentioning either the prior action itself or the financial recovery as that information would inevitably confuse the medical and financial issues for the jury. No Defendant has opposed this aspect of Plaintiffs' motion and the Court agrees this information is irrelevant to the issues in the instant action. Accordingly, this branch of Plaintiffs' motion is GRANTED.

Dr. Bartsich seeks preclusion of (1) any evidence concerning any alleged financial arrangement, professional relationship, or supposed impropriety between her and Dr. Bitan, (2) any testimony about Plaintiffs' child with special needs, and (3) any argument, statement, or question that implies the jury should return a verdict in order to protect themselves, their families, or the community, or otherwise to deter future conduct unrelated to the claims in this case.

Dr. Bartsich argues allegations of financial impropriety have no relevance to the substantive elements of a medical malpractice action. Dr. Bartsich further contends the argument is based on speculation as Plaintiffs have no admissible evidence supporting claims of improper financial motives or professional improprieties and any attempt to argue such matters would improperly invite the jury to decide based on conjecture rather than proven facts. Dr. Bartsich also argues any minimal probative value is substantially outweighed by the danger of unfair prejudice, as suggesting that a physician's clinical decision was driven by greed rather than patient care is highly inflammatory and risks shifting the jury's focus from the actual medical issues to a generalized distrust of the defendants. Such arguments would mislead the jury, cause confusion, and encourage decision-making on an improper emotional basis. Lastly, Dr. Bartsich argues it is a violation of standards of professional conduct for counsel to assert facts not in evidence or make arguments solely intended to inflame the passions of the jury.

Plaintiffs argue this application is an improper effort to sanitize or censor a part of the [*7]relevant and material patient records, as billing records are evidentiary exhibits that are properly before the jury. Plaintiffs argue that hiding the financial realities relevant to the procedures performed by each Defendant invites the jury to speculate that there was no financial incentive or implication for the doctors or the patient. The Court disagrees. While billing records are properly before the jury, it strains credulity to think jurors would speculate about financial incentive to physicians involved in the performance of surgery. It is axiomatic that medical providers, including surgeons, are paid for performing their jobs, and the fees would be reflected in the billing records. To insinuate the doctors involved in this surgery had a financially motivated basis or anything other than a professional relationship, including the purported termination of that relationship subsequent to Plaintiff's procedure, would itself be an invitation for the jury to speculate and would detract from the specific issue of whether either surgeon departed from the standard of care and whether that departure caused Plaintiff's damages. As noted by both parties, this Court is vested with broad discretion to determine the materiality and relevance of proposed evidence. Hyde v. County of Rensselaer, 51 NY2d 927, 929 (1980); also, Caplan v. Tofel, 58 AD3d 659 (2d Dept. 2009). Accordingly, Dr. Bartsich's request is granted and no evidence of anything other than Defendants' professional relationship as physician colleagues prior to Plaintiff's procedure may be introduced at trial.

Dr. Bartsich argues evidence should not be admitted at trial if it is not relevant to the issues the jury is considering, and that evidence is considered relevant if it has any tendency in reason to prove the existence or nonexistence of any material fact. Dr. Bartsich continues, however, even relevant evidence is not admissible if its probative value is substantially outweighed by the potential to prejudice, mislead, or confuse the jury. Dr. Bartsich contends testimony about Plaintiffs' child having special needs should be excluded because its probative value is substantially outweighed by the risk of undue prejudice to Defendants, confusion of the issues, and improper influence on the jury, especially since this trial is not bifurcated. Lastly, Dr. Bartsich contends limiting instructions at trial are insufficient to mitigate the prejudice if the jury were to consider the challenges of caring for a child with special needs.

In response, Plaintiffs argue this is a desperate attempt by Dr. Bartsich to create an alternate reality by preventing the jury from being told about Plaintiffs' actual lifestyle, which includes caring for their child with special needs. In addition to asserting its relevance in terms of Plaintiffs' actual day-to-day life with a disabled child, Plaintiffs argue the information that Dr. Bartsich improperly seeks to keep from the jury also underlies Plaintiffs' reason for using audio recordings to preserve conversations of significance -such as, for example, conversations about Plaintiffs' child's special educational needs, or medical conversations about the child's care and treatment. Plaintiffs argue that absent a full and accurate factual explanation about this context, the jury will be left to speculate as to Plaintiffs' "isolated" recordings of post-operative conversations with Defendants.

This Court has found insufficient contextual information in the papers submitted with which to properly consider this argument. The Court has reviewed the evidence lists included in the parties' trial binders, as well as Plaintiffs' deposition transcripts, none of which reflect any recordings are intended to be proffered by any party. Therefore, Plaintiffs' argument as to potential jury confusion over isolated recordings is rejected. Next, based on a review of the deposition testimony, it appears Plaintiffs' daughter was diagnosed with a learning disability, for [*8]which she required an Individualized Education Program. This is in contrast to a physical disability of the sort that would require additional physical care that could be difficult for Plaintiff to provide in her own physical condition. While the Court is mindful of the myriad challenges faced by anyone living with any form of disability as well as the added stress for those in the individual's immediate family, this information pertaining to Plaintiffs' daughter is not relevant to the issues in this case and the prejudice outweighs the probative value. Kegg v. Truck-Rite Distrib. Sys. Corp., 84 Misc 3d 564 (Sup. Ct. Kings Cty. 2024).^[FN3] Thus, to the extent Plaintiffs' daughter's educational challenges are the disability that is the subject of this motion, the Court sees no basis for allowing evidence as to this disability as it does not bear on Plaintiff's ability to provide care for her now 23-year-old daughter.

Based on the foregoing, Dr. Bartsich's application for preclusion of testimony and evidence concerning Plaintiffs' daughter's learning disability is GRANTED.

Dr. Bartsich maintains that any argument to the jury that seeks to frame the case as one requiring a verdict to "protect the community," "make the community safer," or otherwise to guard against hypothetical dangers to jurors, their families, or the public at large (commonly known as "Reptile Theory" and "Golden Rule" arguments) are improper because they appeal to fear, self-interest, and emotion rather than to reasoned consideration of the evidence. She posits these types of arguments distract the jury from the applicable law and facts, improperly appeal to passion and prejudice, constitute a backdoor punitive damages argument, are irrelevant, prejudicial, distort the role of a jury, and may violate ethical standards.

Plaintiffs argue in response that this application should be rejected as it is an improper request in a motion in limine where it is not tethered to specific statements an adversary will make and has not identified evidence sought to be excluded and are hypothetical and overbroad. Plaintiffs note that New York State courts do not appear to have addressed the propriety of reptile arguments and relies on an analysis from Judge Garaufis of the Eastern District of New York that rejected to categorically conclude reptile theory arguments are improper.

In this medical malpractice action, the only issues for the jury to consider are whether Defendants, in the course of their medical treatment of Plaintiff, deviated from the standard of care and whether the deviation was a proximate cause of Plaintiff's alleged damages. It can hardly be said that generalized "deterrence of wrongful conduct" of the sort implied by reptilian theory arguments is the appropriate consideration for the jury in this action, and it would be improper in this case for counsel to suggest otherwise. Discussion of the jury's role in reviewing the evidence and determining the outcome within the parameters of appropriate inquiry is best left to the relevant jury charges. With due deference to analysis provided from the Federal Court for the Eastern District of New York, this Court nevertheless holds that counsel shall be precluded from arguing the actions of Defendants require a verdict to protect the community at large or guard against hypothetical dangers. Accordingly, Defendant's application is GRANTED.

Accordingly, after careful consideration of the arguments as discussed herein, it is hereby

ORDERED that to the extent Plaintiffs' motion (Mot. Seq. #15) seeks preclusion of testimony by the expert neurologist offered on behalf of Dr. Bartsich, the motion is DENIED, and it is further

ORDERED that to the extent Plaintiffs' motion (Mot. Seq. #15) seeks preclusion of testimony by the expert offered on behalf of Dr. Bitan, the motion is DENIED, subject to limitations noted herein, and it is further

ORDERED that to the extent Plaintiffs' motion (Mot. Seq. #15) seeks to preclude any evidence concerning Plaintiff's prior malpractice action and financial recovery therefrom, the motion is GRANTED, and it is further

ORDERED that to the extent Dr Bartsich's motion (Mot. Seq. #16) seeks to preclude Plaintiffs' counsel from introducing, eliciting, or referring to any alleged financial arrangement, professional relationship, or supposed impropriety between defendant and the consulting surgeon, whether through evidence or argument, the motion is GRANTED, and it is further

ORDERED that to the extent Dr Bartsich's motion (Mot. Seq. #16) seeks to preclude Plaintiffs from testifying about their child with special needs during the trial; the motion is GRANTED and it is further

ORDERED that to the extent Dr Bartsich's motion (Mot. Seq. #16) seeks to preclude Plaintiffs, Plaintiffs' counsel, and any witnesses, from making or suggesting any argument, statement, or question that implies the jury should return a verdict in order to protect themselves, their families, or the community, or otherwise to deter future conduct unrelated to the claims in this case the motion is GRANTED and it is further

ORDERED that counsel for the parties shall appear before the undersigned at 9:15 a.m. on September 10, 2025 prior to the start of jury selection.

The foregoing constitutes the Decision and Order of this Court.