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BOYAR v. KOREAN AIR LINES CO.

November 6, 1996

ROBERT M. BOYAR, Personal Representative of the Estate of MICHAEL TRUPPIN, Deceased, Plaintiff,
v.
KOREAN AIR LINES CO., LTD., Defendant. ROBERT M. BOYAR, Personal Representative of the Estate of JAN MOLINE, Deceased, Plaintiff, v. KOREAN AIR LINES CO., LTD., Defendant.



The opinion of the court was delivered by: ROBINSON

 This matter is before the Court on Defendant's Motion in Limine to Preclude the Testimony of Dr. Thomas Borzilleri. The Court heard oral argument on this motion on October 21, 1996. For the reasons set forth herein, Defendant's Motion is DENIED.

 I. BACKGROUND

 These cases are consolidated death actions brought against Defendant Korean Air Lines Co., Ltd. ("KAL") by the personal representative of the estates of Dr. Michael Truppin ("Dr. Truppin") and his wife, Jan Moline ("Ms. Moline") (collectively, "the decedents"). Dr. Truppin and Ms. Moline were passengers aboard KAL flight KE007 who were killed when the flight was shot down by the Soviet Union on September 1, 1983. This Court has previously determined that KAL is liable for the deaths of Dr. Truppin and Ms. Moline. In re Korean Air Lines Disaster of Sept 1, 1983, 289 U.S. App. D.C. 391, 932 F.2d 1475 (D.C. Cir.), cert. denied, 502 U.S. 994, 112 S. Ct. 617, 116 L. Ed. 2d 639 (1991). Still pending and awaiting trial is the question of the amount of KAL's liability.

 Plaintiff has asserted various claims for damages including loss of support and loss of inheritance. To prove the amount of its damages, Plaintiff has retained Dr. Thomas Borzilleri ("Dr. Borzilleri") to testify regarding the lost economic accumulations of the decedents. Pursuant to Federal Rule of Civil Procedure 16(c)(3) and Federal Rules of Evidence 702 and 703, Defendant has moved in limine to exclude Dr. Borzilleri's testimony as speculative, conjectural, and based upon improper and unfounded assumptions.

 A. Plaintiff's Factual Proffer

 Plaintiff has proffered the following facts which he believes will be established by the evidence at trial regarding the financial condition of the decedents. At the time of death, Dr. Truppin was 57 and Ms. Moline was 45. The couple owned and operated three related business entities. Dr. Truppin was an obstetrician/gynecologist and operated Michael Truppin M.D., P.C., a medical practice in New York. Ms. Moline owned and operated Moline Medical Management, which provided staffing to the medical practice. Finally, Dr. Truppin and Ms. Moline jointly owned TBM leasing, which leased medical equipment to the medical practice.

 The focus of KAL's objection to Dr. Borzilleri's testimony is on the projections for income that Dr. Borzilleri makes for Dr. Truppin's medical practice. Plaintiff proffers that the decedents had positioned themselves for great financial gain during the years preceding Dr. Truppin's retirement. Prior to 1979, Dr. Truppin had operated a solo medical practice from a small office on Fifth Avenue in New York City. However, after 1979, and in the four years preceding his death, Dr. Truppin began expanding his practice. By the time of his death in 1983, Dr. Truppin had joined with the equivalent total of four full time physicians operating out of both the original Fifth Avenue office and a new office that Dr. Truppin acquired in 1979.

 The 1979 office, Plaintiff proffers, provides much insight into the plans of Dr. Truppin. This office was extremely modern and spacious. At the time of his death, Dr. Truppin operated the office with four full time physicians, each of which had been added to the practice from 1979 to 1983. In addition, Dr. Truppin leased half of the office space to a psychiatrist who was not affiliated with Dr. Truppin's practice. However, that lease expired in late 1983, at which time Plaintiff avers that Dr. Truppin intended to further expand his practice by adding doctors to the vacated space. Ultimately, Plaintiff proffers that Dr. Truppin intended to support a total of eight physicians, thereby maximizing the space available to him in the new office.

 In addition, Plaintiff proffers that Dr. Truppin and Ms. Moline had entered into several loan agreements with Barclay's Bank to support the expansion of the medical practice. The purpose of the loans was to renovate office space and modernize office equipment. Two months prior to their deaths, the decedents renegotiated the loans, apparently in an effort to further advance their expansion plans.

 Finally, Plaintiff rests on his own testimony as evidence of Dr. Truppin's expansion plans. Plaintiff was a lawyer, financial advisor, and close personal friend to the decedents. He contends that he had extensive discussions with decedents regarding their plans for expanding the medical practice.

 B. Dr. Borzilleri's Proposed Testimony

 As stated by KAL, the "underlying assumption upon which Borzilleri bases his projections is that the decedents had definite plans for significant and substantial expansion of the medical practice in which the number of physicians employed essentially would double and the income of the decedents would increase significantly." Defendant's Statement of Points & Authorities in Support of Motion in Limine at 3. As KAL points out, Dr. Borzilleri's calculations rely chiefly upon the representations made by Plaintiff and Plaintiff's counsel regarding the planned expansion of Dr. Truppin's practice. Dr. Borzilleri received this information during discussions with Plaintiff and in several letters from Plaintiff's counsel to Dr. Borzilleri.

 Based upon that information, Dr. Borzilleri produced two scenarios, one which assumed that Dr. Truppin's medical practice would expand to seven full time physicians, and the other which assumed that the practice would remain at four full time physicians. In the first scenario, Dr. Borzilleri calculated that the decedents would have accumulated $ 3.4 million by the end of their lifetimes. In the second scenario, Dr. Borzilleri calculated that decedents would have accumulated $ 1.4 ...


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