Yang v. United States of America

                                               OMING 
                                           DOCUMENT 
UNITED STATES DISTRICT COURT                  ELECTRONICALLY  FILED 
SOUTHERN DISTRICT OF NEW YORK                DOC Ho 
                                           DATE FILED:  08/14/2024 
Jingyuan Yang et al., 
                      Plaintiffs, 
                                               1:21-cv-06563 (SDA) 
               -against- 
                                               OPINON AND ORDER 
United States of America, 
                      Defendant. 

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE: 
     Pending  before  the  Court  are  (1)  a  motion  by  plaintiffs Jingyuan  Yang  and  Yan  Li, 
individually and as parents and  natural guardians of S.Y., an  infant (collectively,  “Plaintiffs”), 
pursuant to Rule 702 of the Federal Rules of Evidence, for an order excluding certain testimony 
of  three  expert  witnesses  retained  by  the  United  States  of  America  (“Defendant”  or  the 
“Government”), i.e.,  Dr.  Michele Spencer-Manzon,  Dr. Allan  E.  Rubenstein  and  Dr.  Desmond 
Sutton (Pls.’ 2/6/24 Not. of Mot., ECF No. 81), and (2)  a motion by the Government, pursuant to 
Rule 702, for an order, excluding certain testimony of two experts retained by Plaintiffs, i.e., Dr. 
Richard  Luciani  and  Dr.  Daniel Adler,  and,  pursuant to  Rule  56 of the  Federal  Rules of Civil 
Procedure, for an order granting summary judgment in the Government’s favor. (Def.’s 3/15/24 
Not. of Mot., ECF No. 89.) 
     For the reasons set forth below, the Rule 702 motions are DENIED WITHOUT PREJUDICE 
to renewal at trial and the Government’s motion for summary judgment is DENIED. 

                          BACKGROUND                                     
I.   Background Facts                                                     
    In this Federal Tort Claims Act (“FTCA”) case, which is a non-jury case,1 Plaintiffs seek 

damages from the Government arising out of the labor and delivery of their infant son, S.Y., by 
Dr. Sandy Lau Bui, D.O., an employee of Charles B. Wang Community Health Center, Inc. 
(“CBWCHC”), a federally funded clinic.2 (Compl., ECF No. 4, ¶¶ 8-18.) S.Y. was delivered by an 
emergency cesarean section procedure performed by Dr. Bui on December 6, 2019. (Def.’s 56.1 
Stmt., ECF No. 91, ¶¶ 19-33; Pls.’ 56.1 Resp., ECF No. 102, ¶¶ 19-33.) Plaintiffs allege that Dr. Bui 

and others employed by the CBWCHC were negligent and committed malpractice during the 
labor  and  delivery,  and  thereafter,  which  proximately  caused  S.Y.  to  sustain  severe  and 
permanent personal injuries, including a phrenic nerve injury and brachial plexus injury. (See 
Compl. ¶¶ 14, 16, 18.)3                                                   
II.  Plaintiffs’ Experts                                                  
    Plaintiffs retained, and intend to call at trial as expert witnesses, Dr. Luciani, an obstetrics 

and gynecology specialist, and Dr. Adler, a pediatric neurology specialist.  



1 Plaintiffs are not entitled to a jury trial for their claims against the Government under the FTCA, see 28 
U.S.C. §§ 1346(b)(1), 2402, which are the only remaining claims in this case. 
2 There is no dispute that Dr. Bui is deemed a Government employee for purposes of the FTCA. (See Def.’s 
3/29/24 Opp. Mem., ECF No. 93, at 1.)                                     
3 Plaintiffs’ Complaint also had named as a defendant The New York And Presbyterian Hospital, sued 
herein as New York-Presbyterian Healthcare System, Inc., doing business as New York-Presbyterian Lower 
Manhattan Hospital and New York Presbyterian Weill Cornell Medical Center (“New York Presbyterian”). 
(See Compl. ¶ 7.) However, the claims against New York Presbyterian previously were dismissed. (7/14/23 
Order, ECF No. 63.)                                                       
    A.   Dr. Luciani                                                     
    Dr. Luciani’s area of expertise is in obstetrics and gynecology. (Luciani Rpt., ECF No. 81-
20, at 1.) In his expert report, dated February 10, 2023, Dr. Luciani opined that “the delivery 

process utilized by Dr. Bui was negligently performed and departed from accepted standards of 
care” and caused S.Y.’s injuries. (Id. at 19.)                            
    Dr. Luciani stated that the appropriate standard of care for “dis-impaction of the fetal 
head when it is deeply engaged in the pelvis during a Caesarean section” was to use a procedure 
called the “push-up” method, the “reverse breech” or “pull” method, and “other less frequently 

used methods, none of which were used by Dr. Bui.” (Luciani Rpt. at 19-20.) He stated that Dr. 
Bui used “excessive lateral traction . . . while removing the infant from the uterine cavity during 
the C-section delivery.” (Id. at 20.) Dr. Luciani opined that this “excessive traction on the neck 
during delivery” caused S.Y. to suffer a “stretch injury” which, in turn, caused S.Y. to sustain a 
“right brachial plexus injury and right phrenic nerve injury with secondary poor Apgar scores, 
neonatal respiratory and cardiac failure and clinical hypoxic ischemic encephalopathy.” (Id.) He 

further opined that the “excessive lateral traction utilized by Dr. Bui to deliver the head from the 
lower uterine segment . . . resulted in a change of the angle between the head and right shoulder 
that stretched the brachial plexus and phrenic nerve beyond their plastic limit, resulting in 
permanent injuries.” (Id. at 21.) Dr. Luciani stated that “the method employed [by Dr. Bui] was 
excessively dangerous and departed from accepted standards of care.” (Id. at 20.)4 



4 Dr. Luciani also submitted a rebuttal report, dated June 16, 2023, in which he responds to the report 
submitted by Government expert Dr. Sutton. (Luciani Rebuttal Rpt., ECF No. 77-21.) 
    B.   Dr. Adler                                                       
    Dr. Adler’s area of expertise is in pediatric neurology. (Adler Rpt., ECF No. 81-18, at 13.) 
In his expert report, dated February 17, 2023, Dr. Adler offered several opinions, including that 

“the injury to [the] right brachial plexus and right phrenic nerve of [S.Y.] occurred as a result of 
movement of his head created by Dr. Bui during the complicated cesarean section” (id.); that 
“the permanent brachial plexus injury suffered by [S.Y.] could not have occurred at any time 
other than while Dr. Bui moved the head during the cesarean section delivery” (id. at 13-14); that 
S.Y. never could be educated in a conventional classroom without support (id. at 18); that S.Y.’s 

“neurological  injuries  and  disabilities  will  prevent  him  from  ever  being  employed  in  the 
competitive job market” (id.); and that S.Y. “will not be able to live independently and will require 
lifelong supervision either at home or in a residential setting.” (Id.)   
III.  Government’s Experts                                                
    The Government retained, and intends to call at trial as expert witnesses, Dr. Spencer-
Manzon, a clinical geneticist; Dr. Rubenstein, a pediatric neurology specialist; and Dr. Sutton, an 

obstetrics and gynecology specialist with a subspecialty in maternal-fetal medicine. 
    A.   Dr. Spencer-Manzon                                              
    Dr. Spencer-Manzon is an expert geneticist. (Spencer-Manzon Rpt., ECF No. 81-1, at 1.) In 
her expert report, dated May 24, 2023, she opined that S.Y. has a congenital myopathy, which “is 
a large part of what is driving his current clinical phenotype.” (Id. at 5.) Dr. Spencer-Manzon 
stated that S.Y. could have “a likely pathogenic variant in TTN,”5 which could be affecting his 


5 “The TTN gene provides instructions for making a very large protein called titin. This protein plays an 
important role in skeletal muscles, which the body uses for movement, and in heart (cardiac) muscle.” 
MedlinePlus, https://medlineplus.gov/genetics/gene/ttn/ [https://perma.cc/4U95-LC9T]. 
clinical phenotype in two ways: (1) S.Y. could have a second mutation not detected in previous 
genetic testing; or (2) the TTN gene found on genetic testing could have incomplete penetrance 
and affect S.Y., while his mother could be “a non-penetrant carrier” of the same variant. (Id.) She 

also opined that S.Y. could have “another congenital myopathy or a muscle-brain disorder given 
his  global  developmental  delay.”  (Id.)  Citing  scientific  studies  indicating  that  “[m]ost 
neuromuscular conditions are thought to be genetic in origin,” and that “[i]t is well established 
that a molecular diagnosis can only be made in less than 50% of congenital myopathies,” she 
states that “it is very common for genetic testing to not be able to make a definitive diagnosis by 

itself,” and that “[t]he lack of definitive mutations does not rule out a genetic cause” for S.Y.’s 
condition. (Id. at 6.) Dr. Spencer-Manzon recommended that S.Y. undergo additional testing and 
evaluations that were not reflected in the record “to further assess the likely cause of his 
condition.” (Id. at 6-7.)                                                 
    B.   Dr. Rubenstein                                                  
    Dr. Rubenstein is a Clinical Professor of Neurology and Pediatrics at the NYU Grossman 

School of Medicine who practices at NYU Langone Medial Center. (Rubenstein Rpt., ECF No. 81-
3, at 1.) In his expert report, dated May 23, 2023, he opined that that there was no evidence in 
the record that S.Y. suffered from shoulder dystocia or other trauma that caused “traumatic 
palsies of the right brachial plexus or phrenic nerve,” and there was “no evidence” for the 
assertion of Plaintiffs’ expert Dr. Adler that S.Y. has “permanent neonatal brachial plexus 
injuries.” (Id. at 6-7.) Rather, according to Dr. Rubenstein, S.Y. “suffered from a congenital 

musculoskeletal abnormality unrelated to his delivery,” and a “respiratory failure at birth from a 
congenital musculoskeletal defect caused S.Y. to develop hypoxic-ischemic encephalopathy.” 
(Id.) Dr. Rubenstein further opined that “S.Y.’s clinical presentation at delivery and subsequent 
course [were] most likely due to a rare and complicated genetic abnormality, which may involve 
the TTN, MTM1[6] or other as yet unidentified neuromuscular genes.” (Id. at 8.) Dr. Rubenstein 

stated that S.Y. had not undergone “sufficient genetic testing and other analysis to determine” 
the specific cause of his condition. (Id.)                                
    C.   Dr. Sutton                                                      
    Dr. Sutton is board-certified in obstetrics and gynecology with a subspecialty in maternal-
fetal medicine and currently serves as the Medical Director of Labor and Delivery at Mount Sinai 

West Hospital. (Sutton Rpt., ECF No. 81-7 at 1; Sutton Decl., ECF No. 95, ¶¶ 4-5.) In his expert 
report, dated May 24, 2023, he opined that Dr. Bui did not depart from the standard of care when 
she delivered S.Y. by cesarean section and that the evidence in the record did not show that Dr. 
Bui caused S.Y. any nerve injury. (Sutton Rpt. at 11, 14.) In addition, Dr. Sutton states that 
“[g]enetic testing can only test for abnormal DNA sequences within current medical knowledge 
and which are understood to be connected to pathologic conditions,” and that “[i]t is possible 

that an as-yet undiscovered unifying diagnosis could explain S.Y.’s myopathy phrenic nerve 
dysfunction and global neurodevelopmental deficits that remain undiscovered.” (Id. at 14.) 
                         LEGAL STANDARDS                                 
I.   FTCA                                                                 
    “[T]he FTCA defines the liability of the United States in terms of that of a private individual 
under the law of the state where the alleged tort occurred[.]” Guttridge v. United States, 927 


6 “The MTM1 gene provides instructions for producing an enzyme called myotubularin. Myotubularin is 
thought  to  be  involved  in  the  development  and  maintenance  of  muscle  cells.”  MedlinePlus, 
https://medlineplus.gov/genetics/gene/mtm1/ [https://perma.cc/BG6D-ULUE]. 
F.2d 730, 732 (2d Cir. 1991); see also 28 U.S.C. § 2674 (“The United States shall be liable, 
respecting the provisions of this title relating to tort claims, in the same manner and to the same 
extent as a private individual under like circumstances . . ..”). Here, the alleged tort occurred in 

New York and, thus, New York law applies to this action.                  
    “To prove medical malpractice under New York law, a plaintiff must establish ‘(1) that the 
defendant breached the standard of care in the community, and (2) that the breach proximately 
caused  the  plaintiff’s  injuries.’”  Potter  v.  United  States,  No.  17-CV-04141  (AJN),  2020  WL 
2836440, at *3 (S.D.N.Y. May 30, 2020) (quoting Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 

1994)).  “Moreover,  ‘it  is  well  established  in  New  York  law  that  unless  the  alleged  act of 
malpractice falls within the competence of a lay jury to evaluate, it is incumbent upon the plaintiff 
to present expert testimony in support of the allegations to establish a prima facie case of 
malpractice.’” Id. (quoting Sitts v. United States, 811 F.3d 736, 739 (2d Cir. 1987) (internal 
quotation marks and citation omitted)). “Thus, expert testimony is generally necessary to 
establish the applicable standard of practice and, in an appropriate case, to determine whether 

an alleged deviation from that standard was the proximate cause of a plaintiff's injuries.” Id. 
(quotation marks and citation omitted).                                   
II.  Federal Rule Of Evidence 702                                         
    The admissibility of expert testimony is governed by Federal Rule of Evidence 702, which 
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 the proponent 
    demonstrates to the court that it is more likely than not that:      
    (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’s  opinion  reflects  a  reliable  application  of  the  principles  and 
    methods to the facts of the case.                                    
Fed. R. Evid. 702.                                                        
    The proponent of expert testimony bears the burden of establishing by a preponderance 
of the evidence that the testimony satisfies Rule 702. See Bourjaily v. United States, 483 U.S. 171, 
175-76 (1987). However, trial courts have a gatekeeping function, see United States v. Williams, 
506 F.3d 151, 160 (2d Cir. 2007), and are tasked with “ensuring that an expert’s testimony both 
rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., 
Inc.,  509  U.S.  579,  597  (1993).  Nevertheless,  Rule  702  “embodies  a  liberal  standard  of 

admissibility for expert opinions.” Nimely v. City of New York, 414 F.3d 381, 395 (2d Cir. 2005). 
    “First, the Court must determine if a witness is qualified as an expert.” L.S. by Oliveira v. 
United States, No. 16-CV-08763 (PMH), 2020 WL 13566228, at *1 (S.D.N.Y. Oct. 30, 2020) (citing 
Nimely, 414 F.3d at 397). “If the qualification standard is met, a court must next evaluate the 
methodology and reasoning underlying an expert’s conclusions.” Id. “Pursuant to Daubert, there 
are  several  factors  a  court  may  consider  in  determining  the  reliability  of  a  particular 

methodology: (1) whether a theory or technique has been or can be tested, (2) whether it has 
been subject to peer review or publication, (3) its error rate and ‘the existence and maintenance 
of standards controlling the technique's operation,’ and (4) whether the particular theory or 
technique has gained ‘general acceptance’ in the scientific community.” Id. (quoting Daubert, 509 
U.S. at 593-94). “If the first two requirements are met, a court must examine the relevance of 

the proffered expert’s testimony ‘to determine whether the conclusions [he or she] draws will 
aid the factfinder in answering the questions at issue in the case.’” Id. (quoting Berk v. St. 
Vincent’s Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 350 (S.D.N.Y. 2005)).   
    “Daubert and its progeny . . . do not apply straightforwardly in the context of bench trials.” 

720 Lex. Acquisition LLC v. Guess? Retail, Inc., No. 09-CV-07199 (AJN), 2014 WL 4184691, at *10 
(S.D.N.Y. Aug. 22, 2014); see also L.S. by Oliveira, 2020 WL 13566228, at *2 (“A Daubert hearing 
prior to a bench trial can be unnecessary and inefficient.”). “While standards for admissible 
evidence are not out the window entirely in a bench trial, all doubts at a bench trial should be 
resolved in favor of admissibility.” Com. Funding Corp. v. Comprehensive Habilitation Servs., Inc., 

No. 01-CV-03796 (PKL), 2004 WL 1970144, at *5 (S.D.N.Y. Sept. 3, 2004) (internal quotation marks 
and citations omitted).                                                   
    “The risk of the admission of irrelevant evidence in a bench trial is that it will prolong the 
proceedings; the risk of its exclusion is that the Court will [commit] error and make a decision on 
an incomplete record.” Howard Univ. v. Borders, No. 20-CV-04716 (LJL), 2022 WL 3568477, at *7 
(S.D.N.Y. Aug. 17, 2022). Thus, courts often reserve judgment on ruling on Daubert motions, 

Republic of Turkey v. Christie’s Inc., 425 F. Supp. 3d 204, 220-21 (S.D.N.Y. 2019), and later 
“deci[de] after the evidence is presented [at trial to determine] whether it deserves to be 
credited by meeting the requirements of Daubert and its progeny.” Tiffany (NJ) Inc. v. eBay, Inc., 
576 F. Supp. 2d 457, 457 n.1 (S.D.N.Y. 2007) (noting “[i]n the context of a bench trial where there 
is not a concern for juror confusion or potential prejudice, the court has considerable discretion 
in  admitting  the  proffered  testimony”  and  making  any  necessary  Daubert  determinations 

thereafter).                                                              
III.  Federal Rule Of Civil Procedure 56                                  
    Summary judgment is appropriate where the moving party shows that “there is no 
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). “‘Because the purpose of summary judgment is to weed out cases in 
which there is no genuine issues as to any material fact and the moving party is entitled to a 
judgment as a matter of law, it is appropriate for district courts to decide questions regarding the 
admissibility of evidence on summary judgment,’ including the admissibility of expert evidence.”  
Potter, 2020 WL 2836440, at *3 (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) 

(internal quotation marks, citation and alterations omitted)).            
                           DISCUSSION                                    
I.   Motions To Preclude                                                  
    The Government seeks to exclude, primarily as speculative and unreliable, the opinions 
of Dr. Luciani and Dr. Adler that excessive lateral traction during S.Y.’s delivery caused S.Y.’s 
injuries. (Def.’s 3/15/24 Mem., ECF No. 90, at 11-21.) Plaintiffs, in turn, seek to exclude, for largely 

the same reasons, the opinions of Dr. Spencer-Manzon, Dr. Rubenstein and Dr. Sutton that S.Y. 
has a genetic defect that caused his injuries.7 (Pls.’ 2/7/24 Mem., ECF No. 79, at 13-21.) The Court 
finds that the best path forward is to proceed to a trial where the experts will be cross-examined 
and the Court will be in a position to evaluate the experts’ opinions in the context of a full record. 
See Royal & Sun All. Ins. PLC v. UPS Supply Chain Sols., Inc., No. 09-CV-05935 (MEA), 2011 WL 
3874878, at *2 (S.D.N.Y. Aug. 31, 2011) (“When the fact-finder is the court, expert evidence 


7 Plaintiffs also argue that Dr. Rubenstein and Dr. Sutton are not qualified in the field of genetics. (Pls.’ 
2/7/24 Mem. at 18-19.) As with Dr. Adler, discussed below, the Court will hear the testimony of these 
witnesses at trial before determining the extent of their expertise.      
should be quite freely admitted so that the judge may have the benefit of live testimony and 
cross-examination to determine how much weight, if any, to give to the expert’s conclusions.”) 
(quotation marks and citation omitted); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Sexy 

Hair Concepts, LLC, No. 07-CV-05804 (GEL), 2009 WL 959775, at *6 n.3 (S.D.N.Y. Apr. 8, 2009) 
(“[W]here a bench trial is in prospect, resolving Daubert questions at a pretrial stage is generally 
less efficient than simply hearing the evidence; if [the moving party’s] objections are well-taken, 
the testimony will be disregarded in any event.”). Thus, the Court will determine at trial, not only 
what evidence is admissible but also how much weight, if any, to give to the evidence that is 
admitted. See L.S. by Oliveira, 2020 WL 13566228, at *2 (deferring until bench trial admissibility 

of expert evidence regarding cause of injuries).                          
    The  Government  also  moves  to  preclude  Dr.  Adler’s  opinions  “on  S.Y.’s  damages, 
including his purported future special educational needs, employment prospects, and purported 
need for a supported living environment,” because, according to the Government, Dr. Adler is 
not qualified to opine on S.Y.’s damages. (Def.’s 3/15/24 Mem. at 17-22; see also Def.’s 8/9/24 

Reply, ECF No. 107, at 8-9.) “To determine whether a witness qualifies as an expert, courts 
compare the area in which the witness has superior knowledge, education, experience, or skill 
with the subject matter of the proffered testimony.” United States v. Tin Yat Chin, 371 F.3d 31, 
40 (2d Cir. 2004) (citation omitted). Plaintiffs argue that Dr. Adler’s training and experience as a 
pediatric neurologist make him qualified to give opinions regarding S.Y.’s prognosis with regard 
to education, employment and prospects for living independently. (Pls.’ 6/27/24 Mem. at 24-25.) 

    The  Court  finds  that  a  determination  regarding  Dr.  Adler’s  qualification  to  testify 
regarding S.Y.’s special educational needs, employment prospects and purported need for a 
supported living environment also is best reserved for trial. Although Dr. Adler is not a vocational 
or education expert, or a life care planner, he does have training in neuro-developmental 
disabilities and his knowledge and experience as a pediatric neurologist may qualify him to  testify 

as to some aspects of S.Y.’s educational prospects and other future needs. (Pls.’ 6/27/24 Mem. 
at 25.) The Court will hear Dr. Adler’s testimony at trial before determining the extent of his 
expertise.                                                                
II.  Government’s Motion For Summary Judgment                             
    The Government’s motion for summary judgment is based entirely on the success of its 
motion to exclude Plaintiffs’ expert testimony. (See Def.’s 3/15/24 Mem. at 24-25) (“This Court 

should grant the Government’s motion for summary judgment because Plaintiffs have failed to 
adduce admissible expert testimony that could establishing the essential elements of medical 
malpractice or causation.”). Because the Government’s motion to exclude Plaintiffs’ experts’ 
testimony has been denied without prejudice, the Government’s motion for summary judgment 
is denied.                                                                

                           CONCLUSION                                    
    For  the  foregoing  reasons,  Plaintiffs’  motion  to  preclude  (ECF  Nos.  81)  is  DENIED 
WITHOUT PREJUDICE and the Government’s motion (ECF No. 89) is DENIED WITHOUT PREJUDICE 
with respect to the motion to preclude and DENIED with respect to the motion for summary 
judgment. No later than September 13, 2024, the parties shall file their Joint Pretrial Order in 
accordance with Section IV of the Court’s Individual Practices. The trial of this case shall 

commence on November 4, 2024.                                             
SO ORDERED.                                                               
Dated:       New York, New York 
           August 14, 2024 

                                         STEWART D. AARON 
                                         United States Magistrate Judge 

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