Supreme Court, Kings County

Decided on May 4, 2026

Index No. 506287/2018

Aaron D. Maslow, J.

[*1]

The following numbered papers were used with respect to the determination herein: NYSCEF Document Numbers 925-941, 945-957.

I. Introduction

In advance of the trial in this action, Plaintiffs Hilary Sheryl Sloan ("plaintiff Sloan") and Noah Shulman (collectively "the plaintiffs" or "plaintiffs") move in limine with 11 branches to their motion. Defendant 216 Bedford Kings Corp. ("the defendant") moves in limine with 30 branches to its motion. This decision and order determines the branch of the plaintiffs' motion concerning the testimony of Dr. Jennifer Canter, a life care planner to be called as an expert witness by the defendant, and the branches of both parties' motions dealing with collateral payments, collateral sources, the plaintiffs' financial status, and the plaintiffs' settlements with [*2]the three other defendants in this action.^FN1 The said motion branches are as follows: the plaintiffs' Branch No. 3 (preclude Dr. Jennifer Canter's testimony) and Branch No. 7 (preclude mentioning collateral payments and collateral sources), and the defendant's Branch No. 21 (permit evidence of collateral source payments) and Branch No. 22 (admit settlement evidence).^FN2

Presented is the following significant issue: May a defendant who asserts that a plaintiff claiming total and permanent occupational incapacity is not thusly incapacitated call an expert witness who will testify, among other things, that the plaintiff is receiving employment disability benefits, may receive Social Security disability benefits, and will receive payments from settlements with other defendants, and otherwise introduce evidence to that effect?

Other issues are also raised by the plaintiffs with respect to Dr. Canter's anticipated testimony, including the stated basis for it.

II. Background

On January 10, 2018, plaintiff Sloan was allegedly injured when she slipped and fell on a patch of ice while walking on the sidewalk abutting 216 Bedford Avenue in Brooklyn. The defendant 216 Bedford Kings Corp.^FN3 was the owner of the property at that address. As a result, plaintiff Sloan claims injuries to her left wrist, left shoulder, and left arm. Most notably, plaintiff Sloan claims a comminuted fracture of the distal left humerus that required multiple surgeries and resulted in associated nerve pain, neuropathy, and Complex Regional Pain Syndrome ("CRPS"). Plaintiff Sloan treated extensively with various physicians in the years following the accident and, to date, she claims to have undergone ten surgeries as a result of the accident. She claims to be permanently disabled and asserts economic damages (both past and future) totaling $25,956,905.00 and past and future damages for pain and suffering. Plaintiff Noah Shulman, husband of plaintiff Sloan, sues derivatively for loss of consortium and services.

III. Projected Testimony of Dr. Jennifer Canter

Dr. Jennifer Canter is a board-certified pediatrician whom the defendant intends to call as an expert witness to provide testimony from the perspective of a physician life care planner, certified vocational rehabilitation counselor, and trained epidemiologist. Per the expert disclosure concerning Dr. Canter, she reviewed numerous medical records pertaining to plaintiff Sloan's post-accident treatment and interviewed plaintiff Sloan. Dr. Canter offers opinions that plaintiff Sloan had a history of pre-accident neuropathic pain, that a life care plan for plaintiff Sloan should not assume progressive deterioration attributable to the accident, and that plaintiff Sloan is not permanently precluded from all forms of work. Dr. Canter noted plaintiff Sloan's [*3]not having applied for Social Security Disability Insurance benefits and stated that this suggests that a formal determination of total and permanent disability has not been pursued. The record here reflects fluctuating symptoms, periods of functional capacity, a demonstrated ability to work post-event, and ongoing treatment with a variable response, according to Dr. Canter. She maintained that it was important to acknowledge that vocational behavior can be influenced by access to disability benefits (plaintiff Sloan is receiving disability benefits through her employer), financial stability outside of employment, and perceived or anticipated outcomes related to litigation (settlement proceeds); in other words, that plaintiff Sloan has incentives not to return to work although capable of doing so.

Even if Dr. Canter were not to testify, it is the intention of the defendant to introduce into evidence, including by cross-examining plaintiff Sloan, that she is the recipient of disability benefits and settlement payments from co-defendants, and that she is eligible to apply for Social Security disability benefits.

IV. The Plaintiffs' Contentions

The plaintiffs argue that Dr. Canter's testimony should be entirely precluded due to the following:

a. She relies on material from Dr. Lloyd Saberski, who never examined plaintiff Sloan and which is cumulative of Dr. Christopher Gharibo who is in the same specialty and did examine plaintiff Sloan.^FN4

b. Her opinions are based on material misrepresentations of the defense experts' reports.

c. She improperly relies on inadmissible financial information, collateral sources, and irrelevant legal standards to speculate about plaintiff Sloan's motivation and damages.

d. She offers no reliable opinions within her purported fields of vocational rehabilitation and life care planning, and her disclosure is nothing more than a boilerplate, open-ended, and methodologically deficient attempt to serve as a roving rebuttal witness.

The plaintiffs argue that Dr. Canter's opinions as a life care planner are not independently derived, but rather are materially predicated on the opinions of Dr. Saberski, a pain management specialist. This selective reliance on Dr. Canter's part is not consistent with accepted expert methodology and reflects a litigation-driven preference for a favorable opinion rather than an objective analysis of the medical evidence. Dr. Canter's "resolved injury" conclusion is solely the product of Dr. Saberski.

The plaintiffs also argue that Dr. Canter premised her opinions on misleading characterizations of the very defense experts she relied on, in particular Dr. Andrew Merkler, who stated that plaintiff Sloan had certain features of CRPS, and Dr. Christopher Gharibo, who stated that plaintiff Sloan has complex peripheral and central pain. Ergo, plaintiffs submit that since Dr. Canter's opinions are built on material misstatements and selective omissions, they lack a reliable factual foundation and should be precluded.

Further, the plaintiffs urge the Court to preclude Dr. Canter's testimony inasmuch as her opinions improperly inject inadmissible and highly prejudicial financial considerations into her analysis, including references to settlement proceeds and disability-related payments, in an effort to suggest that plaintiff Sloan lacks motivation to work. Settlement-related compensation is inadmissible and irrelevant to the issues before the jury, and any reference to it serves only to prejudice the plaintiffs by implying that plaintiff Sloan has already been compensated. Likewise, disability payments constitute collateral source evidence governed by CPLR 4545, which may not be presented to the jury and, if applicable at all, are addressed only post-verdict. Dr. Canter's reliance on these financial factors is not part of any accepted vocational or life care planning methodology. It is a transparent attempt to influence the jury by introducing matters that are expressly barred from consideration, maintain the plaintiffs.

Dr. Canter's reference to plaintiff Sloan not having applied for Social Security Disability Insurance benefits is criticized by the plaintiffs as an attempt to usurp the role of the Court by inserting legal issues before the jury. Also, this is an attempt by Dr. Canter to speculate on plaintiff Sloan's financial incentives and subjective motivation. At a minimum, claim the plaintiffs, the Court should preclude any mention of Social Security disability benefits, her employment-related disability payments, and, most especially, any mention of any settlement she received.

Finally, the plaintiffs urge preclusion of Dr. Canter because she does not meaningfully identify future care needs, quantify costs, assess functional vocational capacity using accepted methodology, or provide any structured life care plan. Instead, she simply adopts a litigation-driven conclusion that plaintiff Sloan is better and has limited needs, an opinion that is not within her expertise to render in the absence of independent medical analysis and that is derived from selective reliance on other defense experts.

V. The Defendant's Contentions

In opposition to precluding Dr. Canter, the defendant notes that the latter relied on several doctors' opinions that the plaintiff did not have CRPS, which she is allowed to do. An expert may rely on out-of-court material, such as another expert's report or opinion, when that expert is a witness subject to full cross-examination at trial. The doctors relied on by Dr. Canter will be testifying at trial and subject to cross-examination. That Sloan is able to work and does not have residual care needs secondary to the accident is supported by more than other doctors' opinions. The defendant denies that Dr. Canter mischaracterized other doctors' statements and, even if she did, this goes to the weight of her testimony, not its admissibility.

The defendant argues that when there is a serious dispute over the extent of a plaintiff's injuries, collateral source evidence is admissible to prove that plaintiff Sloan's failure to return to work was motivated by financial factors, rather than physical incapacity. Therefore, the receipt of employment disability benefits and settlement payments are appropriate, claims the defendant. It is common for vocational rehabilitation experts to examine whether a plaintiff receives payment from collateral sources in order to determine whether a plaintiff's failure to return to work was motivated by financial reasons.

VI. Discussion

(A) Collateral Source Evidence

In an action brought to recover damages for personal injuries, where the plaintiff seeks to recover costs of past or future medical care or rehabilitation services, evidence that such costs were or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source, shall be presented to the court after the rendering of the jury's verdict (see CPLR 4545).

A brief history of CPLR 4545 appears as follows:

For decades, New York, like most jurisdictions, embraced the common-law collateral source rule. The theory of the collateral source rule is that it was simply not fair for a negligent defendant to be permitted to reduce its liability in damages by showing that the plaintiff was already entitled to be reimbursed for such items as medical expenses and lost wages by a separate contract or other type of agreement. (Kish v Board of Educ. of City of NY, 76 NY2d 379, 384 [1990].) The so-called collateral source rule, by application, permitted a double recovery for a plaintiff.

Over time, the impact and cost associated with double recoveries led to the enactment in New York of CPLR 4545 and its predecessor statute. Actually, the erosion of the collateral source rule in New York began in 1975 with the enactment of CPLR former 4010. It was not until 1986 that New York included in an amendment to CPLR 4545 its subdivision (c) which extended the offset or reduction concept to any personal injury action.

CPLR 4545 (c) now requires the court, upon a finding that items of economic loss were or will with reasonable certainty be replaced or indemnified from any collateral source, to then reduce the amount of any award for such. (Condon v Hathaway, 191 Misc 2d 235, 237 [Sup Ct, Otsego County 2002]).

In a notable Court of Appeals decision concerning collateral source benefits, Healy v Rennert (9 NY2d 202 [1961]), the Court held that evidence that an emergency vehicle operator (fireman) received a disability pension exceeding the pension which he would have received upon normal retirement two years later, was inadmissible. At trial, the defendants were permitted to cross-examine the plaintiff to develop that because of the subject motor vehicle accident the plaintiff applied for and received a disability retirement pension at three-quarters pay. Plaintiff's counsel objected. The jury rendered a verdict for the defendants. Plaintiff argued that the jury might have come to the conclusion that the difference in the amount and time of commencement of the pension that he was receiving as a result of the accident and what he would have received on normal retirement would more than compensate him for his damages. The Court held that based on case law in the federal courts and the prevailing rule in most jurisdictions, "evidence concerning the retirement of plaintiff for disability at three-quarters pay was inadmissible and without probative force to affect this cause of action" (id. at 206). Additionally, the Court held that it was improper for the defendants to show that plaintiff was a member of a health insurance plan.

In another case, where the Court of Appeals held that gratuitous services rendered by relatives, neighbors, and friends are not compensable, the Court noted, "In Healy, we held that it was error to permit defendants to establish on cross-examination that plaintiff was a member of a health insurance plan and that he was receiving increased disability pension benefits. In that case, however, the plaintiff had given value for the benefits he received; he paid a premium for [*4]the health insurance, and had worked for 18 years, in order to be eligible for the disability retirement benefits. . . . In short, [these were] insurance, pension, vacation and other benefits which were contracted and paid for . . . (Coyne v Campbell, 11 NY2d 372 [1962]).

Certain post-Healy case law citing it is worth taking note of. In Montgomery v Long Is. R. R. Co. (129 AD2d 690, 690-691 [2d Dept 1987]), the Court held: "The trial court properly precluded the defendant from introducing evidence of income benefits that the plaintiff was receiving in the form of a pension from the defendant and a disability pension from the Railroad Retirement Board. Such 'collateral sources' of income may not be considered by a jury in evaluating or in mitigation of a party's claim for damages (see, e.g., Healy v. Rennert, 9 NY2d 202, 206-208; Lehr v. City of New York, 16 AD2d 702; see also, Eichel v. New York Cent. Ry. Co., 375 US 253, 254-256)."

In the Eichel case, decided by the U.S. Supreme Court, the Court held that to the extent evidence of receipt of Railroad Retirement Act disability pension payments was relevant as bearing on the extent and duration of the disability suffered by petitioner and on malingering, there was "a substantial likelihood of prejudicial impact" (375 US at 255). "In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence" (id.). Other evidence could be used to show malingering: "[T]here will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension" (id.).

A suggestion by counsel for a defendant motorist during summation that the plaintiff had feigned his seizures in order to avoid going to Vietnam and was receiving a pension was improper and deprived the plaintiff of a fair trial on the issue of damages (see Rios v Town of Islip, 69 AD2d 855 [2d Dept 1979]).

While "[i]t is well established that a party's receipt of a pension or disability benefits is not to be considered by a jury in evaluating a party's claim for past and future lost wages (Healy v Rennert, 9 NY2d 202, 206-208)," if it is a plaintiff's attorney who initially refers to a collateral source of income, such as workers' compensation, a Social Security disability classification, or ownership of rental property, the plaintiff cannot successfully argue that the defendant improperly introduced evidence of plaintiff's income from collateral sources (Havas v Victory Paper Stock, 90 AD2d 864, 865 [3d Dept 1982]).

The Court of Appeals had occasion to revisit Healy when it decided Kish v Board of Educ. of City of NY (76 NY2d 379 [1990]). Plaintiff, a 50-year-old teacher, fell in a school auditorium and injured her knee. "In the jury trial of her negligence action against defendants--which took place eight years later and consumed 13 trial days over a three-week period--the issues of liability and damages were vigorously disputed" (id. at 381). The jury brought in a verdict finding defendants not responsible. The trial court ruled in limine prior to the trial that defense counsel was to refrain from referring to any benefits the plaintiff may have received.

Similar to the defendant's claims here regarding plaintiff Sloan, defendants in Kish

disputed the nature and extent of the impairment to plaintiff's knee and questioned whether the impairment was related to the accident rather than to a previously existing condition. The defense offered proof that, contrary to plaintiff's testimony, she was not in good health at the time of her injury and that she had received treatment for various ailments on over 30 occasions in the months immediately preceding the accident. In particular, defendants contested the claim that the knee injury and the ensuing emotional [*5]problems were so disabling as to prevent her from accepting gainful employment. (Id. at 382.)

Continuing with a description of what transpired at trial, the Kish Court's decision stated:

The issue concerning plaintiff's retirement arose when defense counsel was permitted, over objection, to develop in cross-examining plaintiff that she had retired approximately one year and eight months after the accident. The court denied plaintiff's ensuing motion for a mistrial. In dismissing the argument that defense counsel, by asking about retirement, had violated its in limine order and the collateral source rule of Healy v Rennert (9 NY2d 202, 205-208), the court stated to plaintiff's attorney, "[C]ounselor, I am familiar with the collateral source rule and it has not been violated in this case." (Emphasis added.)

Except for a single unsolicited reference made by a defense witness to the amount of plaintiff's pension, the court's in limine ruling precluding any mention of benefits received by plaintiff was not violated. The court immediately struck the defense witness's gratuitous statement as to plaintiff's pension and gave the jury an appropriate instruction to disregard it. Plaintiff's counsel made no objection to this instruction and requested no further instruction pertaining to the question of plaintiff's retirement, then or at any other time. In its final instructions to the jury, the court used the exact words requested by plaintiff: "In considering the amount of money which the plaintiff has lost by reason of her inability to work there is no evidence in this case that plaintiff is receiving any moneys from any outside source and you are not to consider or speculate about any such sums in deliberating on lost income." (Id. at 382-383.)

The Court of Appeals held that by allowing evidence of the plaintiff's early retirement, the trial court did not contravene the Healy collateral source rule. The holding in Healy was predicated on the potential resulting prejudice influencing the jury from "evidence of 'the acceleration and increase in the amount of payments of plaintiff's pension' " (id. at 383). The jury might have based its verdict

upon a belief that the plaintiff was 'not harmed rather than on questions of negligence and contributory negligence.' (9 NY2d, at 207 [emphasis added].) Similarly, we held that it was improper to permit the defendant to show collateral source payments from plaintiff's membership in a health insurance plan, relying on the rule prevailing in most jurisdictions that 'the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute' ([9 NY2d] at 206). (Id. at 383.)

The Court then explained that the collateral source rule entails prohibiting a defendant from reducing its liability in damages "by showing that the plaintiff is already entitled by contract or employment right to reimbursement for such items as medical expenses and lost wages" (id. at 384). However, "That rule is not necessarily violated where proof is offered showing that a plaintiff is not permanently disabled and has stopped working solely for a non-[*6]injury-related reason, such as voluntary retirement" (id.).

The Court rejected an absolutist position advanced by plaintiff Kish — "a categorical rule that the prejudicial impact of . . . proof [of retirement] invariably outweighs its probative value even though devoid of reference to specific monetary benefits, and even where offered solely as bearing on the issue of plaintiff's motives and credibility" (id.). This, said the Court, would substantially expand Healy and "we decline to adopt it" (id. at 385).

Further analysis by the Court of Appeals of the evidence of retirement included cautionary language:

We recognize that proof of a plaintiff's retirement, even standing alone, may carry with it significant potential for prejudice since the jurors might speculate about pension benefits in assessing damages. To avoid such prejudice, the admission of retirement evidence should be precluded unless it is centrally relevant to issues in substantial dispute bearing on the legitimacy of the claim of permanent disability--for example, plaintiff's motivation for not working and defense claims of exaggeration or malingering. If retirement proof is allowed, the court should caution the jury in its final instructions that there is no evidence in the case of any retirement benefits and that the jury must not speculate as to the possibility of plaintiff's receipt of such benefits in assessing damages or determining liability or any other issue in the case (cf., Matter of Lanzano v City of New York, 71 NY2d 208, 212). Additionally, if requested, the court should give limiting instructions at the time the retirement evidence is received. (Id.)

In light of the fact that the evidence of retirement was offered with respect to the plaintiff's physical condition and was of sufficient probative value, the Court of Appeals held that the trial court did not abuse its discretion:

In the case before us, the court did not abuse its discretion in permitting proof of plaintiff's retirement. Plaintiff's motivation in not resuming her work was made a central issue throughout the trial. Defense counsel challenged the seriousness of her knee injury and whether the injury and its emotional consequences had, in fact, disabled her from work. Substantial evidence was adduced to the effect that suitable work was available, that plaintiff was physically capable of working, that workplace adjustments could be made to accommodate her physical condition and that working would be of benefit to her psychologically. The fact that she had voluntarily terminated her employment and elected to take retirement status (as opposed to having received any amounts of retirement income) was of sufficient probative value on the critical issue of whether plaintiff, although claiming to be unable to work because of her injury, had, in truth, ceased working because she preferred not to work at all. In its final instructions to the jury, the court could not have made it clearer that there was "no evidence * * * that Plaintiff [was] receiving any money from any outside source" and that the jurors were "not to consider or speculate about any such sums" in fixing plaintiff's loss due to her inability to work. (Id. at 385-386.)

Appellate case law citing to Kish directly on the issue of the admissibility of evidence of [*7]collateral source benefits in a personal injury damages trial is practically nonexistent.^FN5 The Court could find no post-Kish controlling Court of Appeals or Appellate Division decision directly on point. However, in Schaffer v New York City Tr. Auth. (96 AD3d 485 [1st Dept 2012]), the issue of the admissibility of collateral sources was not raised by the plaintiffs-appellants who obtained a liability-plus-damages verdict which was set aside by the trial court on the issue of liability. The Appellate Division, in a three-to-one opinion, reversed, reinstated the verdict, and remanded for a collateral sources hearing. Although the plaintiffs-appellants did not ask the Appellate Division for a new trial on damages, the dissent would have ordered one due to "defense counsel [having] repeatedly, impermissibly and over objection, questioned the plaintiffs' experts on collateral sources" (id. at 486 [Catterson, J., dissenting]).

The dissent noted as follows:

Under the statutory scheme, the Legislature was clear that evidence on the issue of collateral source reimbursement should be introduced only after judgment in favor of the plaintiff has been awarded. As set forth more fully below, precedent is further clear that references to collateral sources at trial potentially prejudice the plaintiff insofar as a jury [*8]is likely to take them into account when assessing a negligent defendant's liability for damages. . . .

[T]he jury returned a verdict and award considerably lower than the losses projected by the plaintiffs' expert. Since it appears that the evidence adduced as to the plaintiffs' collateral source payments was indeed prejudicial, in my opinion, proceeding directly to a collateral source hearing would compound the error by reducing an award that may already have been reduced by the jury on the basis of the plaintiffs' collateral source payments.

. . .

The record reflects that doctors diagnosed the plaintiff police officer with complex regional pain syndrome, a pain syndrome that leaves a patient with abnormal sensations. By November, 2004, the NYPD formally deemed the plaintiff disabled. The plaintiff testified that, after the accident, he suffered from severe pain in his knee and that he underwent arthroscopic surgery followed by other treatments, but that nothing worked to alleviate his chronic knee pain. The plaintiff further testified that following the surgery, he continued to be in pain, and could only hope to bring the pain "sort of, under control," but there was no hope of eliminating it.

The plaintiff's prognosis was a lifetime of chronic pain that, at times, "may get worse and may get minimally better." In addition to the chronic pain, the plaintiffs' medical expert testified that it was probable the plaintiff would suffer from depression as a result of his injury. The plaintiffs' economic expert projected a loss of income and benefits of more than $4.1 million.

At trial, defense counsel was allowed, over the plaintiffs' objections, to extensively question the plaintiffs' economist as to the accidental disability benefits, patrolman benefit funds, and other funds that the plaintiffs were receiving. Additionally, defense counsel questioned the plaintiffs' expert as to why he had not deducted collateral source payments from his projections. The jury found the defendants liable for violating the ASME standard requiring "a rescue plan and suitable equipment" and that the violation caused the plaintiff police officer's injury. The jury awarded $2,673,154 for lost income and benefits, and future loss of earnings. This constituted 65% of the loss projected by his economic expert. Additionally, the jury awarded $500,000 in medical expenses, despite the plaintiffs' economic expert's estimate of $707,076.

. . .

CPLR 4545 provides, in general, for a reduction in an award of damages based on reimbursement to the plaintiffs from collateral sources. Specifically, section 4545 is titled "Admissibility of collateral source of payment," and it is therefore an evidentiary rule governing when such evidence may be presented: The provision is clear that "evidence [of collateral source payments] shall be admissible for consideration by the court" and that any collateral source deduction "shall be made by the trial court after the rendering of the jury's verdict" (emphasis added). (CPLR 4545 [a]; see also Wooten v State of New York, 302 AD2d 70, 73 [4th Dept 2002], lv denied 1 NY3d 501 [2003], citing Teichman v Community Hosp. of W. Suffolk, 205 AD2d 16, 19 [1994], mod on other grounds 87 NY2d 514 [1996] ["the Legislature intended the statute to define an evidentiary rule which is to be applied only where the matter is tried and a judgment in [*9]favor of a plaintiff has been 'awarded' "].)

Because the requirement of deducting from the plaintiffs' award is left solely for the court, no evidence of collateral source payments should be presented to the jury. On the contrary, the jury should determine the plaintiffs' losses without reference to any reimbursement that the plaintiffs may have received. (CPLR 4545 ["(t)he plaintiff may prove his or her losses and expenses at the trial irrespective of whether such sums will later have to be deducted from the plaintiff's recovery"]; see Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4545:3; see also Kish v Board of Educ. of City of NY, 76 NY2d 379, 384 [1990], citing Healy v Rennert, 9 NY2d 202 [1961].)

In Healy, the Court found that evidence of the plaintiff's collateral source payments which was submitted to a jury was prejudicial to the plaintiff since the jury "may well have considered that plaintiff had sustained no damage." (Healy, 9 NY2d at 207.) Subsequently, in Kish, the Court elaborated on the theory underlying the collateral source rule by observing that "the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss." (Kish, 76 NY2d at 384.) Thus, the Court held that "a negligent defendant should not, in fairness, be permitted to reduce its liability in damages by showing that the plaintiff is already entitled by contract or employment right to reimbursement." (Id.)

In this case, notwithstanding the statutory scheme as to inadmissibility of collateral source evidence at trial, defense counsel extensively questioned the plaintiffs' economist as to disability benefits, and why the plaintiffs' expert had not deducted those collateral sources from his projections. Over the plaintiffs' objections, the defendants continued to question the plaintiffs' economist about collateral source payments including Social Security payments received by his children. More egregiously, on summation, defense counsel concluded by telling the jury that the economist's failure to deduct for collateral source payments was "like cheating."

The jury awarded the plaintiffs 29 years of future expenses and $500,000 in future medical expenses, despite uncontroverted testimony that the plaintiff police officer's life expectancy was 36.18 years, and an unrebutted projection of $707,076 for future medical expenses. In my opinion, the only inference to be made from such a drastic reduction is that defense counsel's impermissible references to collateral source payments prejudiced the jury, and likely led to the reduction of the defendants' damages.

Thus, in my opinion, the plaintiffs would be severely prejudiced by a collateral source hearing that aimed to deduct the plaintiffs' collateral source payments from a jury award that in all likelihood already factored in those payments. (96 AD3d at 486-489 [Catterson, J., dissenting].)

Several federal trial courts have construed Kish to permit some evidence of collateral source benefits to be placed before the jury. Where "the evidence is being offered not as an offset, but as a challenge to the underlying basis for plaintiff's claim that she stopped working as a result of her injuries," "information relating to the offer of an early retirement package and plaintiff's decision to accept it is relevant and admissible" (Malone v Dynaserv Indus., 2007 WL 9717799 at 2 [ED NY 2007]). Nonetheless,

Defendant will not . . . be permitted to introduce evidence regarding the monetary terms of the package offered and, in order to avoid any potential misunderstanding, the Court will give the jury a limiting instruction at the time the evidence is introduced that the jury should consider the evidence only for the purpose of determining whether plaintiff's decision to cease working was due to her injuries or due to her decision to retire in response to the offer of the early retirement package. In addition, the Court will, as part of its final instructions to the jury, make it clear that "there is no evidence in this case that plaintiff is receiving any moneys from any outside source and [the jury is] not to consider or speculate about any such sums in deliberating on lost income." See Kish v. Bd. of Educ., 76 NY2d at 383, 558 N.E.2d at 1161. (Malone v Dynaserv Indus., 2007 WL 9717799 at 2.)

A plaintiff motion seeking an order precluding the defendant from offering any evidence that the former was issued a disability retirement and receiving a disability pension was denied in Walsh v City of New York (585 F Supp 2d 555, 557 [ED NY 2007]): "While Plaintiff is correct that, under Kish, the pension benefits are not admissible on the issue of credibility given the fact that his retirement was involuntary, evidence of the disability payments is admissible for the limited purpose of proving failure to mitigate damages. Assuming Defendant can establish that Plaintiff is physically capable of seeking other employment, his receipt of disability pension benefits is relevant to any failure to mitigate, and an appropriate limiting instruction will be given to that effect."

(B) Settlement Evidence

"In an action for personal injury, injury to property or for wrongful death, any proof as to payment by or settlement with another joint tort-feasor, or one claimed to be a joint tort-feasor, offered by a defendant in mitigation of damages, shall be taken out of the hearing of the jury. The court shall deduct the proper amount, as determined pursuant to section 15-108 of the general obligations law, from the award made by the jury." (CPLR 4533-b.)

"[T]he trial court erred in permitting defense counsel to inform the jury of plaintiff's prior six-figure settlement with the owner and driver of the car. Proof of such prior payment, offered in mitigation of damages, should have been received out of the hearing of the jury." (Lowenstein v City of New York, 50 AD2d 565 [2d Dept 1975].) A plaintiff in a personal injury action may not be cross-examined about a settlement entered into with a defendant in a malpractice action growing out of the initial incident (see Sky v Kahan-Frankl (47 AD2d 939 [2d Dept 1975]). In another instance regarding disclosure of settlement to the jury, it was held:

Nor should the TA's settlement with Pellegrino have been paraded before the jury. Such information could only have suggested to the jury that the TA was the sole culpable party (cf., CPLR 4533-b; see, Abernethy v Azzoni, 78 Misc 2d 832, 833). Furthermore, to the extent that jury speculation would discourage defendants from settling with injured plaintiffs and seeking contribution or indemnification from other defendants thereafter, the disclosure of such matters to the jury would contravene the policy of the State (cf., Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225; Grogan v Dooley, 211 NY 30). (Pellegrino v New York City Tr. Auth., 177 AD2d 554, 558 [2d Dept 1991].)

However, if no objection is made by a plaintiff to the defendant's elicitation from him on cross-examination that he settled with another person a claim based on the same accident, the alleged error is considered waived (see Andresen v Kirschner, 297 AD2d 235 [1st Dept 2002]).

In determining whether the defendant should be permitted to introduce evidence of the plaintiffs' settlement with the other defendants — for the purpose of impeaching plaintiff Sloan's credibility regarding her claim of not being able to work anymore — it is noteworthy that

Prior to the adoption of CPLR 4533-b, a nonsettling tortfeasor was obligated to plead and prove any prior settlement in the presence of the jury, which was instructed to credit the defendant with the amount of the settlement. Livant v. Livant, 1963, 18 AD2d 383, 239 N.Y.S.2d 608 (1st Dep't), appeal dismissed 13 NY2d 894, 243 N.Y.S.2d 676, 193 N.E.2d 503. The Legislature, however, determined that the effect of a settlement should be resolved solely by the court outside the presence of the jury. The fear was that the jury's knowledge of a settlement, even with limiting instructions, would result in the return of a nominal verdict on the assumption that the settling tortfeasor must have been the only culpable party. See Abernethy v. Azzoni, 1974, 78 Misc 2d 832, 833, 358 N.Y.S.2d 264, 266 (Sup.Ct.Suffolk Co.). To avoid this potential prejudice to the plaintiff, CPLR 4533-b requires the jury to determine liability and find the total amount of plaintiff's damages without regard to any settlement. The court will then determine the appropriate reduction in a post-trial hearing. Such a hearing will only be necessary, of course, if defendant is found liable and the damage award exceeds the amount of the settlement. Manginaro v. Nassau County Medical Center, 1986, 123 AD2d 842, 507 N.Y.S.2d 455 (2d Dep't).

In light of the policy concerns that prompted the adoption of CPLR 4533-b, the jury ordinarily should be shielded during trial from knowledge of any prior settlement. See Pellegrino v. New York City Transit Authority, 1991, 177 AD2d 554, 576 N.Y.S.2d 154 (2d Dep't). On the other hand, if a settling tortfeasor testifies at trial in plaintiff's behalf, defendant should be allowed, on cross-examination, to establish the settlement to show the witness's bias. In such case, the settlement is not being offered on the issue of liability or "in mitigation of damages" as prohibited by CPLR 4533-b; rather, it is offered to impeach the witness's credibility. See generally R. Barker & V. Alexander, Evidence in New York State and Federal Courts § 6:44 (2001). This principle was applied in Hill v. Arnold, 1996, 226 AD2d 232, 640 N.Y.S.2d 892 (1st Dep't). The interesting aspect of Hill is that the settling tortfeasor was a hospital--a corporate entity--and the actual witness--a nurse--was neither a principal of the hospital nor an actual participant in the settlement. Nevertheless, the witness was an alleged tortfeasor in the incident at issue (medical malpractice) and had a motive to shield herself and her employer from blame. The fact that she was subject to liability in her own right for the misconduct charged against her employer made her an interested witness, and her continued status as an employee made her a biased witness. With respect to either of these roles, she benefited from the employer's settlement, even if indirectly, which thereby raised questions about her objectivity concerning the alleged malpractice of a defendant physician who was still in the case. See also Meleo v. Rochester Gas & Elec. Corp., 1979, 72 AD2d 83, 97-98, 423 N.Y.S.2d 343, 353 (4th Dep't) (defendant was denied fair trial where settling tortfeasors, who were permitted to participate in trial as though they were still parties, [*10]gave testimony favorable to plaintiff; concealment of settlement deprived jury of ability to "scrutinize the evidence in the light of the true self-interests and interrelationships of the parties"). (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR 4533-b.)

(C) Basis for Life Care Plan Testimony

In an often-cited decision, Wagman v Bradshaw (292 AD2d 84, 86-87 [2d Dept 2002]), it was stated:

It is well settled that, to be admissible, opinion evidence must be based on one of the following: first, personal knowledge of the facts upon which the opinion rests; second, where the expert does not have personal knowledge of the facts upon which the opinion rests, the opinion may be based upon facts and material in evidence, real or testimonial; third, material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination; and fourth, material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.

In Wagman, at issue was the admissibility of a report interpreting unproduced MRI films. The Court held that the receipt in evidence, over the defendant's objection, of the testimony of the plaintiff's treating chiropractor as to the contents of the written report interpreting unproduced MRI imaging films, which was prepared by a nontestifying healthcare professional, constituted reversible error in the absence of proof that the written MRI report was sufficiently reliable to permit the witness to form a professional opinion. While the issue posed in the subject branch of the plaintiffs' motion in limine does not concern an MRI report, the broader holding of Wagman regarding expert trial testimony is relevant.

There is not much appellate case law specific to life care planners, but the Court takes cognizance of the following holding:

Contrary to defendant's contention, the testimony of plaintiff's expert life care planner was admissible. His testimony was based on a review of plaintiff's medical records. Three of plaintiff's treating physicians testified at trial and the medical records were introduced into evidence. While two treating physicians did not testify, their testimony was not required because one merely provided a second opinion regarding amputation and the other participated in three surgeries attended by physicians who testified. Thus, the expert's opinion was not based on inadmissible hearsay (compare Erosa v Rinaldi, 270 AD2d 384 [2000]). (Hotaling v CSX Transp., 5 AD3d 694 [3d Dept 2004].)

In a situation somewhat similar to the one in the case at bar, a defendant moved in limine in Rodriguez v Wyldwood Owners Assn. Corp. (2022 NY Slip Op 32618[U] [Sup Ct, Westchester County 2022] for an order precluding testimony from a life care planner. Defendant argued that the life care planner, a nurse, "should be precluded from testifying to any claim for future medical expenses as any such testimony is based on speculation, as she cites no [*11]specifical medical provider or records which support any of the claimed categories of future medical care, and on the basis that the life care planner is not medically qualified to testify as to medical care needed by the plaintiff" (id. at *2). The trial court determined the matter as follows:

In her January 13, 2020 Life Care Plan, Parisi documents the plaintiffs medical treatment by date and provider. Parisi bases her opinion for her life care plan projection on "review of medical records, a nursing assessment interview, evidence based clinical practice guidelines, and knowledge and experience as a certified rehabilitation nurse and certified life care planner" (see Parisi Life Care Plan, dated August 19, 2019, p 9). To the extent the documents she references are admitted into evidence, as well as any testimony by plaintiffs treating physicians regarding future care and treatment, she will be permitted to testify and rely on them for her opinion. Plaintiff will be able to lay foundation to attempt to establish that Parisi is an expert in nursing and life care planning to permit her to testify as to her opinion regarding the plaintiff[']s future medical care. However, without medical evidence as to plaintiff[']s need for future medical treatment, Parisi will be unable to testify as to same. Defendant will have the opportunity at trial to cross examine Parisi on her credentials and opinion. (Id at *3.)

"[A]ny purported shortcomings in the proposed testimony went to the weight to be given [an expert's] testimony, not its admissibility and could appropriately be explored on cross-examination" (United Store Fixtures & Importers Corp. v New York City Economic Dev. Corp., 247 AD3d 957, 960 [2d Dept 2026], quoting Ghazala v Shore Haven Apt. Del, LLC, 229 AD3d 447, 449 [2d Dept 2024] [internal quotation marks omitted]).

(D) Application of Case Law

In synthesizing the foregoing case law, the Court gleans that Healy v Rennert (9 NY2d 202) retains its viability, as confirmed in Kish v Board of Educ. of City of NY (76 NY2d 379). Kish's significance is that the Court of Appeals held that certain evidence in the nature of actions taken by the plaintiff which can impact the credibility of a claim of being permanently injured may be inquired into by the defendant. Such inquiry, however, must be undertaken without reference to specific monetary amounts. Rather, specific amounts of money expected to be paid to the plaintiff are properly the subject of a post-trial collateral source hearing in accordance with CPLR 4545.

Even after Kish, Healy still stands for the proposition that evidence regarding the existence of collateral sources is inadmissible in a personal injury trial. Healy involved a disability pension and a health insurance plan. The Court of Appeals confirmed in Coyne v Campbell that Healy would prohibit evidence of insurance, pension, vacation, and other benefits which were contracted for. Consistent with this are the Appellate Division decisions in Montgomery v Long Is. R.R. Co. (129 AD2d 690), Rios v Town of Islip (69 AD2d 855), and Havas v Victory Paper Stock (90 AD2d 864), which collectively dealt with an employment pension, a Railroad Retirement Act pension, and disability benefits — that is unless the plaintiff initially broaches the topic. Even the U.S. Supreme Court has weighed in on Railroad Retirement Act disability pensions, holding that while they would be relevant as bearing on the [*12]extent and duration of disability, misuse of the information by the jury outweighs the evidentiary value.

Kish did not abrogate Healy. The Court of Appeals conveyed this in its decision. Still prohibited is evidence of benefits, which are distinct from facts about actions taken by a plaintiff, early retirement being the action taken by plaintiff Kish. Pointedly, the Court of Appeals distinguished the Supreme Court's Eichel decision by noting that it involved Railroad Retirement Act benefits, "not the fact of plaintiff's retirement" (Kish, 76 NY2d at 385 n 2). And, of course, inquiry into a plaintiff's actions must be tethered to other evidence tending to indicate that she is not as disabled as she claims or is exaggerating or malingering, as per the Court of Appeals. The Court notes that the defendants do intend to introduce such evidence in the instant case.

This Court views Justice Catterson's dissent in Schaffer v New York City Tr. Auth. (96 AD3d 485) — where he was the only member of the Appellate Division panel to discuss the impact of the defense's extensive questioning of the plaintiff as to accidental disability benefits, patrolman benefit funds, and other funds the latter was receiving — to be particularly probative on the issue posed in the branch of the plaintiffs' motion in limine regarding Dr. Canter. Justice Catterson emphasized that evidence of collateral source benefits is only admissible before the court after the jury's verdict is rendered, citing to Kish, which cited Healy.

While the Court has noted the federal district court decisions (Malone v Dynaserv Indus. [2007 WL 9717799] and Walsh v City of New York [585 F Supp 2d 555]) construing Kish to permit inquiry concerning acceptance of an early retirement package and a disability pension — without the monetary terms being offered into evidence — it believes that these decisions extended Kish beyond its broadest parameters.

This does not mean that the defendant is unable to cross-examine or introduce evidence with respect to other factors which might tend to establish a motivation for plaintiff Sloan to feign permanent disability and engage in exaggeration or malingering. Coming to mind are the family's general financial standing insofar as their lifestyle is concerned (without reference to specific monetary figures or collateral sources), recreational pursuits, the nature of the type of employment she was engaged in, and notifying her employer that she was taking early retirement.

As for the defendant's desire to question plaintiff Sloan on her settlement with the other defendants — vigorously objected to by the plaintiffs — the Court observes that it is not only case law which prohibits this, but also the statutory provisions of CPLR 4533-b.

Based on the foregoing, the Court holds that evidence of plaintiff Sloan's employment disability benefits and receipt of co-defendants' settlement payments, as well as the possibility of Social Security disability benefits^FN6, while perhaps relevant as shedding light on plaintiff Sloan's motivations for not working, are highly prejudicial and could very well lead the jury to find that [*13]plaintiff Sloan is entitled to a reduced amount of future lost earnings — in effect applying an offset which by statute is commanded to be considered in a post-trial collateral source hearing before the Court. Evidence before the jury of such is precluded. For the same reasons, evidence of the settlements with three of the defendants is likewise precluded.

Dr. Jennifer Canter is expected to testify based on her review of reports from other doctors. This is per her own report. These other doctors are expected to testify, which would provide the opportunity for the plaintiffs to cross-examine them. If they do testify, then Dr. Canter's reliance on their reports is permissible, according to Wagman v Bradshaw (292 AD2d 84 [material not in evidence provided that the out-of-court material is derived from a witness subject to full cross-examination]). Similarly, if any of the other Wagman prerequisites for reliance by an expert witness on materials is present, Dr. Canter's testimony will not be circumscribed:

• Personal knowledge of the facts upon which the opinion rests.

• Facts and material in evidence, real or testimonial.

• Material not in evidence provided the out-of-court material is of the kind accepted in the profession as a basis in forming an opinion and the out-of-court material is accompanied by evidence establishing its reliability.

Applying Hotaling v CSX Transp. (5 AD3d 694), and agreeing with Rodriguez v Wyldwood Owners Assn. Corp. (2022 NY Slip Op 32618[U]), Dr. Canter will be permitted to testify, subject to any rulings on the plaintiffs' objections to specific questions from the defendant, the Court emphasizing that shortcomings in the proposed testimony go to the weight to be given an expert's testimony, not its admissibility. While the Court cannot provide an exhaustive list of topics Dr. Canter may testify about, it is permissible for her to testify, among the matters listed in her report, on the following: demonstrated work capacity following the accident, the relevant labor market, vocational rehabilitation, and possible future employment and recommended accommodations. Determinations concerning particular topics will have to be made during the trial should any line of questioning be objected to.

"In limine motions are left to the court's discretion" (LaSalle v 1777 GC LLC, 73 Misc 3d 592, 594 [Civ Ct, Bronx County 2021]). While the Court has endeavored to respond to the plaintiff's objections concerning Dr. Canter's testimony, matters may arise during the trial which call for a determination then. Not every line of inquiry of subject matter can be predicted now. Therefore, with the trial impending, the Court declines to provide a complete list of every single topic mentioned in Dr. Canter's report, dividing them into bright lines of permissible or precludable.

VII. Conclusion

Accordingly, it is hereby ORDERED as follows:

(1) Those branches of the plaintiffs' motion in limine seeking to preclude Dr. Jennifer Canter's testimony or to limit it and to preclude any mention of collateral payments and collateral sources are granted to the extent that evidence of employment disability benefits, settlements with other defendants, and available Social Security benefits are precluded, and they [*14]are otherwise denied, subject to specific objections asserted at trial.^FN7

(2) Those branches of the defendant's motion in limine seeking to permit evidence of collateral source payments and settlements are denied.