Bloch v. Bowline Hospitality III, LLC, D/B/A Mafolie Hotel and Restaurant
CourtSuperior Court of The Virgin Islands
Date FiledJanuary 15, 2026
DocketST-2024-CV-00251
JudgeCarol Thomas-Jacobs
StatusPublished
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Full Opinion
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
PETER BLOCH |
| CASE NO.: ST-2024-CV- 00251
PLAINTIFF.
Vv
ACTION FOR DAMAGES
BOWLINE HOSPITALITY III, LLC D/B/A
MAFOLIE HOTEL AND RESTAURANT
JURY TRIAL DEMANDED
DEFENDANT
Cite as 2026 V.1. Super 2_
MEMORANDUM OPINION
ql THIS MATTER is before the Court on the following Motions
(1) Plaintiff's Motion in Limine re Blood-Alcohol Testimony;
(2) Defendant’s Daubert Motion in Limine to Bar Opinions of Todd Gentilucci;
(3) Defendant’s Daubert Motion in Limine to Bar Opinions of Dr. Joseph Smolarz;
(4) Defendant’s Daubert motion in limine to bar Plaintiff's experts from opining that
Plaintiff will develop Alzheimer’s, dementia, or Parkinson’s disease or require
medical care for the same pursuant to V.I.R. Evid 403, 702, and 703;
(5) Plaintiff's Motion in Limine re Hearsay Statement Proffered by the Defendant; and
(6) Defendant’s Motion in Limine requesting that the Court
(A) Bar Plaintiff from presenting argument, evidence and testimony concerning
overservice of alcohol and the absence of TIPS Program;
(B) Bar Plaintiff from presenting argument, testimony or evidence that plaintiff
would not have fallen over the railing had it been forty-two inches;
(C) Bar Plaintiff from presenting argument, testimony or evidence on the cost of
potential future care relating to Alzheimer’s, Parkinson’s Disease or
Dementia;
(D) Bar Plaintiff from presenting argument, testimony or evidence concerning
liability insurance;
(E) Bar Plaintiff from presenting argument testimony or evidence concerning
subsequent remedial measures;
(F) Bar Plaintiff from presenting argument, testimony or evidence that the blood
alcohol measurement taken at the hospital is inaccurate;
(G) Bar Plaintiff from presenting argument testimony or evidence that Defendant
intentionally destroyed evidence; and
(H) Bar Plaintiff from introducing medical illustrations into evidence
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Memorandum Opinion
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For the following reasons, the Court shall grant, in part, and deny, in part, the motions in
limine
I PROCEDURAL AND FACTUAL BACKGROUND
q2 On February 7, 2024, Plaintiff Peter Bloch (“Bloch” or “Plaintiff’) was a patron of
Defendant Bowline Hospitality II], LLC d/b/a Mafolie Hotel and Restaurant (“Mafolie” or
“Mafolie Hotel and Restaurant” or “Defendant”). After consuming alcoholic beverages at
Mafolie’s bar, Bloch proceeded to exit the premises through a stairway. Subsequently, Bloch fell
over the railing on the stairway, sustaining serious injuries, including a severe blow to the head
On June 6, 2024, Plaintiff filed a Complaint, claiming that Defendant breached the duty to maintain
a safe premises. Specifically, Plaintiff alleged that the stairway’s guardrail was too low, failing to
meet minimum safety standards. In its Answer, Defendant asserted the affirmative defense of
Plaintiff's own comparative negligence, later articulating that Bloch’s intoxication was the legal
cause of his fall
{3 After conducting discovery, the parties submitted numerous motions in limine to bar
physical and expert testimony evidence. On October 1, 2025, Plaintiff moved to bar expert
testimony regarding Plaintiffs blood alcohol measurement taken at the Roy L. Schneider Hospital
(“Hospital”), as well as any mention of Plaintiff being labelled an “alcoholic.” On October 3, 2025,
Defendant moved to bar expert testimony from Dr. Smolarz, an Ear, Nose, and Throat doctor
(“ENT”). Dr. Smolarz opined on the cost of “smell training,” “vestibular” rehabilitation and its
associated travel costs, and the increased risk of Plaintiff developing dementia or other
neurological diseases. On October 3, 2025, Defendant moved to bar Plaintiff's experts from
opining that, due to his traumatic brain injury, Bloch is at an increased risk of developing dementia,
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Alzheimer’s, or Parkinson’s disease. On the same day, Defendant filed a motion to exclude the
opinions of Todd Gentilucci (“Gentilucci’”), a credit card transaction expert
q4 On November 14, 2025, Defendant filed an omnibus motion in limine. Defendant moved
to bar evidence concerning the overservice of alcohol to Bloch and Defendant’s failure to provide
employees with overservice training according to the Training Intervention Procedures for Servers
of Alcohol (“TIPS”) program. Defendant further requested that the Court bar expert testimony
finding that Plaintiff would not have fallen over the guardrail had it been, at a minimum, forty-two
inches high. Defendant also moved to bar argument or evidence of Plaintiff's potential future
medical expenses because of an increased risk of developing neurological diseases. Additionally,
Defendant moved to bar evidence of reference to liability insurance and the subsequent remedial
measure of installing a higher guardrail. Finally, Defendant sought to bar expert testimony opining
that Plaintiff's blood alcohol measurement was inaccurate, argument that Defendant intentionally
destroyed evidence,! and Plaintiff's demonstrative medical illustration. On the same day, Plaintiff
moved to bar hearsay statements in an email sent to Defendant’s counsel by a representative from
ePaymentAmerica, a company that processes credit card payments. Plaintiff's expert, Gentilucci,
had relied on the same company’s representations to form his opinion
{5 On December 12, 2025, the Court held a hearing regarding the motions in limine
Significantly, Plaintiff withdrew several arguments, including Dr. Smolarz’s testimony concerning
certain costs for Plaintiff's treatment and Plaintiff's increased risk of developing neurological
ailments. Plaintiff also withdrew his assertion that he is entitled to future medical expenses for
potentially developing dementia, Alzheimer’s, or Parkinson’s disease. Plaintiff further conceded
' This matter has been previously briefed in another motion. The Court issued a separate order addressing the matter
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that Defendant is allowed to impeach Gentilucci’s expert opinion with an email to Defendant’s
counsel from an ePaymentAmerica representative
II LEGAL STANDARD
A. Motion In Limine to Exclude Evidence
16 “When making a motion in limine, ‘the moving party has the burden to show that the
evidence ts irrelevant or should be excluded.’” Samuel v. Century Hill, Inc., 2021 WL 1564723,
*2 (V.I. Super. Ct. 2021) (quoting Jn re Asbestos. Catalyst & Silica Toxic Dust Exposure Litig., 68
V.1. 507, 520 (V.I. Super. Ct. 2018). “The purpose of a motion in limine is to prevent prejudicial
evidence, argument, or reference from reaching the ears of the jury. However, a trial court's ruling
ona motion in limine is preliminary and may change depending on what actually happens in trial.”
Id.
{7 Firstly, the Court must determine whether the evidence sought to be excluded from trial is
relevant. See e.g. Samuel, 2021 WL 1564723 at *2. Pursuant to Rule 401 of the Virgin Islands
Rules of Evidence (““VIRE”), “{e]vidence is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence; and the fact is of consequence in determining
the action.” “Rule 401 does not require the evidence to be dispositive of a fact in issue: the bar is
much lower and simply requires that the evidence makes the existence (or non-existence) of such
fact more or less likely.” Samuel, 2021 WL 1564723 at *2
48 Secondly, even if the Court determines that evidence is relevant, the Court may still
exclude the evidence “if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues; misleading the jury; undue delay; wasting time; or needlessly
presenting cumulative evidence.” V.I. R. Evid. 403. However, “because all evidence is inherently
prejudicial to the party against whom it is offered, Rule 403 does not bar all prejudicial evidence.”
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Alexander v. Virgin Islands, 60 V1. 486, 496 (V.I. 2014). Rather, the Rule only excludes “evidence
that is so unfairly prejudicial as to outweigh its probative value.” /d. (citation omitted)
Furthermore, confusing or misleading evidence “is evidence that may lure the jury to consider
matters other than those in dispute at trial or factors that should not be considered.” Jd. (citations
omitted). Lastly, in determining the weight and probative value of the evidence, the Court “must
assume that the evidence will be believed by the trier of fact.” /d
B. Motion In Limine to Bar Expert Testimony
49 Rule 702 of the Virgin Islands Rules of Evidence provides
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if.
(a) the expert's scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case
410 The Virgin Islands Supreme Court has held that the standard articulated in Daubert v
Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) is the soundest rule for the Virgin Islands
Antilles School, Inc. v. Lembach, 64 V.1. 400, 421 (V.I. 2016). Under Daubert, the Court may
admit expert testimony into evidence if the following requirements are met: “(1) the expert must
be qualified; (2) the expert's opinion must be derived from a reliable process or technique; and (3)
the testimony must assist the trier of fact, that is, it must ‘fit’ the facts of the case.” Arvidson v.
Buchar, 72 V.1. 50, 77 (V.1. Super. Ct. 2019) (quoting Gerald v. R.J. Reynolds Tobacco Co., 2018
V.I. LEXIS 119, *1-2 (V.L Super. Ct. 2018)). The Court, therefore, serves as a “gatekeeper” of
irrelevant or unreliable expert testimony
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111 <A witness is qualified as an expert if the witness has “specialized expertise,” through
education, training, or simply real-world experience. Halliday v. Cruise Ship Excursions, Inc.,
2016 V.I. LEXIS 266, *5 (V.I. Super. Ct. 2016). “Expert testimony must be rooted in the expert's
scientific, technical, or other specialized knowledge that will help the trier of fact to understand
the evidence or to determine a fact in issue.” Samuel v. United Corporation, 64 V.I. 512, 524 (V.1
2016) (citation omitted). “An expert is permitted wide latitude to offer opinions, including those
not based on firsthand knowledge or observation.” Arvidson, 72 V.I. at 77 (quoting Daubert, 509
U.S. at 592). The U.S. Supreme Court has found that “evidence which does not relate to any issue
in the case is not relevant and, thus, is not helpful” to the trier of fact. People of the V.I. v. Todmann,
93 V.I. 431, 440 (V.1. 2010) (citing Daubert, 509 U.S. at 591). Notably, however, “[b]ecause ‘even
an expert's flawed conclusion is capable of helping the factfinder, the court does not have to accept
the validity of the conclusion reached by the expert for the evidence offered by the expert to be
admissible.’” Arvidson, 72 V.I. at 78 (quoting In re Joy Recovery Technology Corp., 286 B.R. 54,
70 (N.D. III. 2002)). Additionally, expert testimony that states a determinative, legal conclusion is
irrelevant and inadmissible. /d. (citing GE v. Joiner, 522 U.S. 136, 138-39 (1997))
412 Furthermore, “this liberal approach to relevancy demands that this Court ‘have
considerable leeway in deciding how to determine whether particular expert testimony is
reliable.’” Jd. (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). In determining
reliability, the Court may consider factors such as “whether the opinion can be (and has been)
tested, whether the theory or technique has been subjected to peer review and publication, what
the known or potential rate of error is, and the existence and maintenance of standards controlling
the technique's operation.” Antilles, 64 VI. at 416 (citing Daubert, 509 U.S. at 593-94). “No one
factor is dispositive” and “[a]s such, the Court's inquiry must focus solely on principles and
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methodology, not on the conclusions generated therefrom.” Gov't of the V.L. v. Jackson, 47 V1
123, 126 (V.I. Super. Ct. 2005) (citing Daubert, 509 U.S. at 595). “Reliability requires a detailed
inquiry into the methodology used to form the expert's conclusion. This inquiry ensures that the
methodology is grounded in good science based on more than mere subjective belief or
unsupported speculation.” V./. Port Auth. v. Callwood, 2014 V.I. LEXIS 11, *8 (V.I. Super. Ct
2014) (quoting Jn re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n. 8 (3d Cir. 1994))
413 Ultimately, the Court has discretion over whether to admit expert testimony. Arvidson, 72
V.I. at 78. Notably, the Court bears in mind that the Daubert standard is a “liberal one” and that,
generally, Rule 702 favors admitting expert testimony. Gerald v. R.J. Reynolds Tobacco Co., 2018
V.I. LEXIS 119, *2 (V.I. Super Ct. 2018) (citing Daubert, 509 U.S. at 595). Furthermore, the
Court recognizes that it is for the jury to determine the credibility of the expert opinion. Arvidson,
72 V.1. at 77 (citation omitted). Lastly, “the party proposing the admission of a proposed expert's
opinion testimony bears the burden of establishing their expert's admissibility requirements
utilizing a preponderance of the evidence standard.” Jd. (citing Gerald, 2018 V.I. LEXIS 119 at
*2)
Ili. DISCUSSION
A. Motion In Limine Re Blood-Alcohol Testimony
i. Plaintiff's Blood Alcohol Content
4,14 Plaintiff asserts that Bloch’s blood alcohol level of 220 mg/dL, or 0.22g/dL measured at
the Hospital is inaccurate and must be reduced to 0.185 to 0.195 g/dL. In her report, Plaintiff's
expert, Dr. Swortwood, finds that, at the time the test was taken at the Hospital, Bloch’s true blood
alcohol content was less than 0.22 because the Hospital likely tested “serum and not whole
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blood.” Dr. Swortwood explains that “[s]erum, a blood product, has a higher water content than
whole blood, and thus serum contains a higher alcohol content than whole blood.”? Plaintiff,
therefore, argues that informing the jury of the 0.22 serum measurement would be “irrelevant to
the issue of the true content of the Plaintiffs blood alcohol content at the incident.’ Plaintiff
further asserts that the evidence should be excluded because mentioning the 0.22 blood alcohol
content “would be misleading and unduly prejudicial when both [Plaintiff's and Defendant’s]
toxicologists have explained why that figure is incorrect.”
{15 Bloch’s blood alcohol content, whether measured by serum or whole blood, is undoubtedly
relevant to this case. In its Answer, Defendant asserts the affirmative defense of comparative
negligence, later asserting that Plaintiff was intoxicated from alcohol consumption on the evening
of Bloch’s fall at Mafolte. Thus, Bloch’s blood alcohol content around the time of the accident is
essential to this dispute and makes his intoxication more probable than not. See V.I. R. Evid. 401
(“Evidence is relevant if it has any tendency to make a fact more or less probable than it would be
without the evidence; and the fact is of consequence in determining the action.”’). Moreover, the
toxicologists’ disapproval of the serum test’s portrayal of someone’s true blood alcohol level does
not change the fact that the figure is relevant
416 The Court is also disinclined to find that disclosing Bloch’s 0.22 measurement, as reported
in the Hospital records, to the jury would be misleading. Confusing or misleading evidence “is
evidence that may lure the jury to consider matters other than those in dispute at trial or factors
that should not be considered.” Alexander, 60 V.I. at 496. Plaintiff's blood alcohol level is a
: Pl.’s Mot. In Lim. Re Blood Alcohol Testimony, Ex. 2 at 3
a mI s Mot. In Lim. Re Blood Alcohol Testimony at 3
5 Id. at 4
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relevant matter in dispute. Informing the jury of Bloch’s blood alcohol measurement of 0.22 is
not misleading. Plaintiff does not assert, nor does the record show, that the test was performed
negligently or misinterpreted in any way. As Dr. Madeleine J. Swortwood explains, hospitals
“typically evaluate serum and not whole blood, which is what forensic toxicology labs use when
evaluating subject alcohol levels.” Thus, there is simply a difference between how hospitals and
toxicologists measure blood alcohol levels; this does not mean that the hospital’s test is inherently
inaccurate and should be automatically disregarded. The toxicologists may explain to the jury this
difference in opinion on which test is preferable. See Alexander, 60 V.I. at 496 (finding that
although the testimony of two witnesses “was contradictory in some instances, the defense had
ample opportunity to cross examine each of them and bring these inconsistencies to the jury's
attention”). Ultimately, it is for the jury to determine which measurement to rely on in deciding
Bloch’s level of intoxication. See id. at 498 (“The law irrefutably declares that the jury, and not
the court, determines the credibility of witnesses in a jury trial.”’)
417 The Court does not find it unduly prejudicial to permit the jury to hear that Bloch’s serum
alcohol concentration at the Hospital was 0.22. “{B]ecause all evidence is inherently prejudicial to
the party against whom it is offered, Rule 403 does not bar all prejudicial evidence.” /d. at 496
Rather, the Rule only excludes “evidence that is so unfairly prejudicial as to outweigh its probative
value.” /d. (citation omitted). Bloch’s serum measurement of 0.22 is clearly prejudicial to his case;
however, the evidence’s probative value is great considering that Defendant’s affirmative defense
hinges on proving Bloch’s intoxication. Any prejudicial effect is minimized by the testimony of
the toxicologists explaining the significance of the difference between the serum and whole blood
° Pl.’s Mot. In Limine Re Blood Alcohol Testimony, Ex. 2 at 3
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measurements. Accordingly, the Court finds that the ethanol serum figure of 0.22 is highly relevant
to this matter and barring discussion of the figure for being misleading or unduly prejudicial is
unwarranted
ii. Dr. Wheatley’s Testimony
418 Plaintiff argues that Dr. Clayton Wheatley, the emergency room doctor who treated Bloch
at the Hospital on the night of the incident, should be barred from testifying about Plaintiff's blood
alcohol content, in part, because Dr. Wheatley has not been identified as an expert witness by
Defendant. However, Dr. Wheatley may testify as a fact witness to those things he perceived while
treating Bloch, which are not based on scientific, technical, or specialized knowledge as
contemplated by Rule 702 of the VIRE. Under Rule 701 of the VIRE
[i]f a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is: (a) rationally based on the witness’s perception; (b) helpful
to clearly understanding the witness’s testimony or to determining a fact in issue
and (c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702
A fact or lay witness must, therefore, speak only to his or her personal knowledge. This Court has
previously held that a doctor or treating physician can be deemed a fact witness so long as the
physician testifies only about what he or she perceived, which is not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702. See In re Catalyst Litig., 2010 WL
11488772, *4 (V.I. Super. Ct. 2010)
119 Here, Plaintiff contends that Dr. Wheatley, who treated him in the Hospital’s emergency
room, may not opine about his blood alcohol content of 0.22. However, it was Dr. Wheatley who
submitted Bloch for the test, and he personally observed Bloch and reviewed his test results while
Bloch was in the emergency room. Dr. Wheatley is not providing an opinion but rather stating
what he observed Bloch’s blood alcohol content to be, as reflected in the medical report
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As discussed, Plaintiff does not dispute the validity of the serum test itself and informing the jury
of the figure would not be misleading. Furthermore, contrary to Plaintiff's assertion, Dr. Wheatley
does not state a belief that the smell of alcohol is “an indication of the amount of alcohol content
in one’s system.”’ Rather, when asked about the “reason for [the] test intoxication” and the ‘ signs
or symptoms that led to” ordering the test, Dr. Wheatley explained that Bloch “had a strong smell
of alcohol on his breath and he appeared red-eyed as well as slightly slurring his words.’’® These
comments encompass solely what the Doctor perceived. Thus, the Court shall permit Dr. Wheatley
to testify as to what he observed when treating Bloch, including his physical state and blood
alcohol level
4120 However, unless Dr. Wheatley is properly identified as an expert, he may not testify about
his beliefs regarding whether Bloch’s blood alcohol level was higher or lower before arriving at
the Hospital. This is opinion testimony that is not based on perception but rather on specialized
knowledge. Therefore, Dr. Wheatley is prohibited from opining about Bloch’s blood alcohol
content before he submitted to the test at the Hospital
iii. Identifying Plaintiff as an “Alcoholic”
921 Plaintiff urges the Court to prohibit Defendant from identifying Bloch as an “alcoholic.”
In its Opposition, Defendant asserts that it “will not label Plaintiff an alcoholic.”? Instead,
Defendant only intends to submit its toxicologist’s testimony regarding “Plaintiffs prior medical
history of alcohol use disorder and the number of drinks he consumes on a daily basis, as well as
his daily marijuana use.”!° The Court agrees with Plaintiff that Defendant should not be permitted
’ Pl.’s Mot. In Limine Re Blood Alcohol Testimony at 5
* Pl.*s Mot. In Limine Re Blood Alcohol Testimony, Ex. 7 at 4:7-15
wor? to Pl.’s Mot. In Limine Re Blood Alcohol Testimony at 7
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to label Bloch as an “alcoholic.” Nothing in the record supports labelling Bloch as an alcoholic. In
fact, Defendant’s toxicologist, Dr. Harper, provided deposition testimony explaining that Bloch is
not considered to be an “alcoholic” but just a “social drinker.”!' Moreover, evidence identifying
Bloch as an alcoholic would be unduly prejudicial, regardless of the relevance of his potential
alcoholism. Particularly considering the availability of other evidence of Bloch’s intoxication at
the time of the incident, the probative value of labelling Bloch an “alcoholic” is substantially
outweighed by a danger of undue prejudice. Accordingly, the Court shall prohibit Defendant and
witnesses from identifying Bloch as an “alcoholic” at trial
B. Motion Jn Limine to Bar Testimony that the Blood Alcohol Measurement is
Inaccurate
4122 Defendant seeks to bar Plaintiff's toxicology experts from opining that the blood alcohol
serum measurement of 0.22 d/gL is inaccurate because it would confuse and mislead the jury
Plaintiff contends that it is the Defendant who should not be allowed to submit evidence of the
0.22 figure because the measurement is inaccurate and therefore misleading. Confusing or
misleading evidence “is evidence that may lure the jury to consider matters other than those in
dispute at trial or factors that should not be considered.” Alexander, 60 V.I. at 496 (citations
omitted). As Defendant explains, informing the jury of the 0.22 measurement is necessary to
“provide the jury with a full clinical picture of Plaintiff's condition, which is highly relevant and
probative of Plaintiff's comparative fault.”'? Similarly, the jury should hear the toxicologists
explanation as to how the 0.22 figure is not fully reflective of Bloch’s true blood alcohol level. As
discussed above, the Court does not find that barring evidence of the 0.22 measurement is
NPL s Metin ate Re Blood Alcohol Testimony, Ex. 4 at 16:2-11
". Def.’s Omnibus Mot. In Limine at 17
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appropriate. Therefore, the best avenue to resolve this conflict is through cross-examination
Accordingly, the Court will not bar the toxicologists from opining that the blood alcohol
measurement was inaccurate
C. Motion Jn Limine to Bar Expert Opinions Regarding Plaintiffs Increased Risk of
Developing Alzheimer’s, Dementia, or Parkinson’s Disease
]23 Defendant argues that the Court should bar expert testimony opining that Bloch is at an
increased risk of developing dementia, Alzheimer’s or Parkinson’s disease in the future because
the opinion is speculative and otherwise unreliable. The Court disagrees. The Court acknowledges
that “nothing is absolutely certain in the field of medicine, but the intent of the law is that if a
physician cannot form an opinion with sufficient certainty so as to make a medical judgment,
neither can a jury use that information to reach a decision.” Schulz v. Celotex Corp., 942 F.2d 204,
209 (3d Cir. 1991) (citing McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971)). Accordingly, the
Court may bar expert testimony that is based on nothing more than unsupported speculation or
subjective belief. See Better Building Maintenance of the Virgin Islands, Inc. v. Lee, 60 V.I. 740,
753 (V.1. 2014); V.Z. Port Auth., 2014 V.1. LEXIS 11 at *8. Although “the particular phrase used
should not be dispositive . . . using such language as ‘possibility’” may signal whether the expert’s
opinion is merely speculative. Better Building, 60 V.1. at 753 (quoting Schulz v. Celotex Corp.,
942 F.2d 204, 208-09 (3d Cir. 1991)). “Phrases like ‘strong possibility,’ or ‘20-80% probability
also invite speculation.” Schulz, 942 F.2d at 208 (quoting Chaney v. Smithkline Beckman
Corp., 764 F.2d 527, 529-30 (8th Cir.1985))
{24 Upon closer inspection, the physician testimony proffered in this case is not speculative
The neurologists, Dr. David Weisher and Dr. James D. Nelson, opined that Bloch is at risk of
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developing “long-term neurological consequences following such an injury,’ including
Alzheimer’s, dementia, or Parkinson’s disease. Specifically, Dr. Weisher explained that “[p]atients
with [Plaintiff's] type of head injury have 2-3 times the risk of Alzheimer’s disease in their
expected lifetime. There is also an increased risk of Parkinson’s disease.”'4 Dr. Weisher further
found that “[pJathological reports have demonstrated that harmful chemicals responsible for
diseases like Alzheimer's, dementia and Parkinson's, can be released into the brain by trauma.”!>
Dr. Nelson similarly agreed that, due to Bloch’s “post traumatic head syndrome,” he is at an
increased risk of developing neurological ailments based on “his brain damage [which] was
documented by neuropsychological testing and SPECT scan.”!® Both doctors provided that their
opinions were made with “a reasonable degree of medical certainty.”!”
425 Defendant, however, asserts that “not a single doctor has opined that Plaintiff is more likely
than not going to develop either Alzheimer’s, dementia or Parkinson’s disease. Rather, Plaintiff's
medical experts simply opine that he is at an increased risk.”'* Defendant is correct that the doctors
do not indicate the likelihood of Bloch actually developing such neurological diseases. However,
it is for this reason that the doctors cannot be said to be speculating within the meaning of the law
The doctors’ opinion that Bloch is at an increased risk is not simply a subjective belief, lacking
any objective support. The record shows that the doctors’ opinion is based on the facts of the case,
medical testing, and scientific data available to them. Furthermore, the opinions lack uncertain,
'3 Pf.’s Opp’n to Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. 6 at 8
: 7 ’s Opp’n to Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. 2 at 4
'© P].’s Opp’n to Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. 5 at 4
"Td. at Ex. 2 at3; Ex. 5 at 6
'S Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s at 3
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speculative language. They affirmatively opine that “to a reasonable degree of medical certainty,”
Bloch has an increased risk
4126 Defendant further points out, however, that Plaintiff's vocational expert, Lisa Gay (“Gay”),
indicated that she has doubts about the experts’ opinions diagnosing Bloch with an increased risk
of dementia. Specifically, Gay explained that “narrowing down the likelihood of someone
developing dementia is very difficult. So I couldn't say that that crossed that threshold of
probability. I can't say for sure that that will be likely for him.”!? Accordingly, Gay decided not to
include the medical costs associated with dementia as “part of the main life care plan,”?° which
details the estimated range of expenses Plaintiff is expected to incur in the future based on his
injury. However, Gay does not dispute Bloch’s increased risk of developing dementia. This
opinion, therefore, does not squarely contradict the other experts, and even if it did, it is for the
jury to determine the credibility and weight to give these expert opinions. See Arvidson, 72 V.1. at
77 (citation omitted). Ultimately, the Court will not bar the experts’ testimony as speculative
because the doctors used assured language and provided the requisite support for their opinions
427 Furthermore, the Court is unpersuaded by Defendant’s arguments concerning the reliability
of the doctors’ methodology. The “grounds for the expert's opinion merely have to be good; they
do [not] have to be perfect.” Jn re Catalyst, 55 V.1. at 48 (quoting /n re Paoli R.R. Yard PCB Litig
35 F.3d 717, 744 (3d Cir. 1994)). First, Defendant asserts that Dr. Weisher opined that Bloch’s
MRI scans do not evidence “accelerated atrophy,” which tends to show “whether an individual is
going to have or is on the verge of having Alzheimer’s.”?! However, after reviewing Bloch’s most
recent MRI, Dr. Weisher indicated that Bloch is still susceptible to degenerative brain diseases,
'9 Def.’s Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. G at 28:2-5
© Td. at 28:7-9
*! Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s at 4
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finding that the scan “essentially supports [his] initial index of suspicion that the patient’s head
injury and resulting encephalomalacia has a significant progressive component that warrants
consideration.”?? Moreover, the jury is tasked with weighing the opinions of Dr. Weisher and any
supporting or competing evidence, not this Court. See Alexander, 60 V.I. at 498
4/28 Defendant contends that “Plaintiff's experts fail to perform any differential diagnosis as to
whether Plaintiff's complaints are the result of excessive alcohol and/or marijuana use.””? Dr
Weisher, however, explained that the “lesions that we see on the MRI, these brain lesions are
unequivocally, absolutely not caused by alcohol. Any reference to that is laughable. It's just not
the case. These lesions that we see in the brain are caused by the fall and only by the fall.”2* This
testimony demonstrates that the physicians applied reliable principles and methods by accounting
for Bloch’s alcohol consumption. Ultimately, the jury must determine the credibility of the expert’s
opinion that Bloch’s alcohol or marijuana use is not consequential to his diagnosis
429 Defendant further notes that another expert, Dr. Oppenheimer, recently examined Bloch
and found that he has made a “solid recovery.”** This evidence does not serve to negate the
reliability or admissibility of Plaintiff's expert testimony. Rather, the appropriate way to attack the
veracity of such testimony is through “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.” Arvidson, 72 V.I. at 77; see also
Braithwaite v. K-Mart Corp., 2000 WL 36724491, *3 (Terr. V.I. 2000) (finding that the
"2 P],’s Opp’n to Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. 9
3? Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s at 4
*4 Def.’s Mot. In Limine Re Alzheimer’s, Dementia, or Parkinson’s, Ex. E at 52:12-17
*5 Id. at Ex. H at 9
Bloch v. Mafolie, ST-2024-CV- 00251
Memorandum Opinion
Page 17 of 45
“(defendant's evidence that Plaintiffs condition may improve can be raised on cross-examination
of [the expert witness] and is more a matter of weight than admissibility”)
4130 The Court does not find that the experts’ opinion should be barred because of the potential
for the testimony to confuse, mislead, and inflame the emotions of the jury, unduly prejudicing
Defendant. Relevant evidence is evidence tending to “make a fact more or less probable than it
would be without the evidence [] and the fact is of consequence in determining the action.”
V.I. R. Evid. 401. Relevant evidence may nonetheless be excluded “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice; confusing the issues [or] misleading
the jury.” V.I. R. Evid. 403. “Rule 403 does not bar all prejudicial evidence,” but rather, the Rule
only excludes “evidence that is so unfairly prejudicial as to outweigh its probative value.”
Alexander, 60 V.I. at 496. Confusing or misleading evidence “is evidence that may lure the jury
to consider matters other than those in dispute at trial or factors that should not be considered.” /d
(citations omitted). “The danger of unfair prejudice exists where the evidence has the tendency of
appealing to the sympathies of the jury, arousing a sense of horror, provoking an instinct to punish,
or otherwise cause the jury to base its decision on something other than the established propositions
in the case.” Jd. at 502 (citation omitted). For example, in Alexander, the Supreme Court found
that a photograph of a deceased victim’s smiling face when he was alive was irrelevant and
“created the risk of arousing the sympathies of the jury.” /d. at 503
431 First, the expert testimony finding that Bloch is at an increased risk of neurological
disorders is certainly relevant to Plaintiff's non-economic damages award. Second, the Court finds
that the tendency to confuse or mislead the jury is minimal because Bloch’s risk of developing
such cognitive disorders is an issue in dispute as it relates to non-economic damages. Lastly, the
Court recognizes that mentioning such cognitive diseases like Alzheimer’s or Parkinson’s may
Bloch v. Mafolie, ST-2024-CV- 00251
Memorandum Opinion
Page 18 of 45
appeal to the jury’s sympathies. However, juries have handled significantly more sensitive
information in other cases without letting the sensitive nature of the case impair their impartial
judgment. Furthermore, any juror’s predisposed prejudice to such cognitive ailments can be
adequately mitigated through the voir dire process. See Rivera-Moreno vy. Gov't of Virgin Islands,
61 V.I. 279, 316 (V.I. 2014) (explaining that “empanelled jurors are not presumed to be prejudiced
or unqualified”). Moreover, through direct and cross examination, Defendant may delineate to the
jury the difference between a person who is simply at an increased risk of developing cognitive
diseases, and a person who is actually likely to develop such diseases. Thus, unlike in Alexander,
the evidence here is relevant, and its probative value is not substantially outweighed by
emotionally inflammatory and prejudicial evidence
D. Motion in Limine to Bar Argument or Evidence on the Cost of Potential Future
Care for Alzheimer's, Parkinson’s Disease, or Dementia
4/32 Defendant asserts th