Order | Filed: June 25, 2026
| Entered: June 25, 2026
McFadden v. USA
Personal Inj. Med. Malpractice | Connecticut
Order on Motion to Preclude
ORDER granting in part and denying in part 129 Motion to Preclude Plaintiff's Expert Opinions. Defendant the United States ("USA") has moved to preclude the use of Defendant Almost Family, Inc.'s ("AF") three expert opinions disclosed on May 14, 2026, by all parties as untimely, regardless of AF's willingness to withdraw the opinions in part. AF opposes the motion, as do Plaintiff Kimberly McFadden and Defendant Raffaela Mercuri who argue that they should be allowed to examine AF's experts at deposition (and possibly trial) about the opinions in full regardless of whether they were withdrawn in part, and that preclusion of the opinions is unwarranted at this juncture. For the reasons below, The USA's motion is denied as to preclusion of the opinions against it as moot, but granted as to use of the opinions by any other party.
Chronology. On July 12, 2024, the USA filed an apportionment complaint against the other Defendants in this action. ECF No. 13 . AF answered the apportionment complaint on September 23, 2024, denying all liability. ECF No. 27 . Discovery commenced on August 5, 2024. ECF No. 19. The parties' deadline to designate trial experts on which they bear the burden of proof was December 1, 2025. ECF Nos. 78 , 80. Depositions of any such experts were to be completed by April 16, 2026. ECF No. 103. Designation of trial experts for parties on issues on which they do not bear the burden of proof were to be completed by May 14, 2026. Id. On May 14, 2026, the non-burden of proof expert disclosure deadline -- AF disclosed three additional experts -- Dr. Aldo Arpaia, Dr. Michael Frank, and Dr. Husney, who opined on issues of whether AF's actions caused the Decedent's death and whether, among other things, the USA's providers breached the standard of care in treating the Decedent, i.e. apportionment. See ECF No. 129-1 at 1-29.
Following oral argument on June 17, 2026, the Court directed AF and the USA to jointly "annotate the three expert reports filed as Exhibit 1 at ECF No. 129-1, to delineate which portions of those expert reports relate to causation and which relate to apportionment, and file such annotated reports on the docket." ECF No. 138. AF and the USA did so through handwritten revisions that, among other things, state that the witnesses "will not opine on whether federal providers breached the standard of care or were a substantial factor in bringing about [the Decedent's] death. However, [the witness] may testify to [the Decedent's] medical conditions, whether they were substantial factors, the proximate cause or cause in fact of her claimed injuries and death, and whether those causes were in the scope of [AF's] or Mercuri's responsibilities." ECF No. 140-1 at 2, 21, 24.
Legal Standard. The Court incorporates the legal standard set forth in ECF No. 102, with the following supplementation. Fed. R. Civ. P. 26(a)(2)(D) requires parties to disclose their experts "at the times and in the sequence that the court orders."
Analysis. The USA's motion argues that AF's original expert disclosures are untimely because they go to the issue of apportionment, on which AF bears the burden of proof, and therefore should have been disclosed by December 1, 2025. ECF No. 129 at 2-3. Thus, the Court first addresses whether AF may make an apportionment argument at this stage of the litigation. As the USA noted in its motion, AF has not filed an apportionment complaint in this action, nor indicated previously in its pleadings that it intends to raise such an argument. Id. at 3 n. 1. At oral argument, AF's counsel adamantly maintained, without citation to any specific authority, that AF has a plenary right to raise an apportionment argument at any point up to and including at trial, and intends to do so here. Because no party disagreed with AF's assertion and all parties affirmed they were proceeding on the assumption that AF could raise an apportionment argument without having pleaded an apportionment crossclaim, the Court assumes, without deciding, that any apportionment argument AF may make is timely (for the purposes of this order only).
Because AF may assert both an apportionment claim against... (truncated)