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
Bloch v. Mafolie, ST-2024-CV-                  00251
Memorandum Opinion
Page 2 of 45

           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,
Bloch v. Mafolie, ST-2024-CV-             00251
Memorandum Opinion
Page 3 of 45

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
Bloch v. Mafolie, ST-2024-CV-             00251
Memorandum Opinion
Page 4 of 45

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., 

,

*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.”

{7          Firstly, the Court must determine whether the evidence sought to be excluded from trial is

relevant.        See e.g. Samuel,    

 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, 

 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.”
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 5 of 45

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.,       

 (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.,               

,   *1-2 (V.L   Super. Ct. 2018)). The Court,     therefore,   serves as a   “gatekeeper”   of

irrelevant or unreliable expert testimony
Bloch v. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 6 of 45

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.,

, *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, 

 (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, 

). 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,

, 440 (V.1. 2010) (citing Daubert, 

). 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., 

 (N.D. III. 2002)). Additionally, expert testimony that states a determinative, legal conclusion is

irrelevant and inadmissible. /d. (citing GE v. Joiner,      

 (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, 

 (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, 

).                   “No one

factor is dispositive” and “[a]s such, the Court's inquiry must focus solely on principles and
Bloch v, Mafolie, ST-2024-CV-                00251
Memorandum Opinion
Page 7 of 45

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,            

).   “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, 

 (V.I. Super. Ct

2014) (quoting Jn re Paoli R.R. Yard PCB Litig., 

, 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., 

,   *2 (V.I.   Super Ct. 2018) (citing Daubert,    

).   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, 

 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
Bloch v. Mafolie, ST-2024-CV-            00251
Memorandum Opinion
Page 8 of 45

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
Bloch vy. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 9 of 45

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
Bloch v. Mafolie, ST-2024-CV-     00251
Memorandum Opinion
Page 10 of 45

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., 

, *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
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 11 of 45

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
Bloch v. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 12 of 45

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
Bloch v. Mafolie, ST-2024-CV-           00251
Memorandum Opinion
Page 13 of 45

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., 

 (3d Cir. 1991) (citing McMahon v. Young, 

 (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, 

 (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.,

 (3d Cir. 1991)).             “Phrases like ‘strong possibility,’   or ‘20-80% probability

also     invite   speculation.”   Schulz,   

   (quoting Chaney       v.   Smithkline   Beckman

Corp.,    

 (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
Bloch v. Mafolie, ST-2024-CV-            00251
Memorandum Opinion
Page 14 of 45

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
Bloch v. Mafolie, ST-2024-CV-              00251
Memorandum Opinion
Page 15 of 45

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

 (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
Bloch v. Mafolie, ST-2024-CV-            00251
Memorandum Opinion
Page 16 of 45

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, 

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.,   

,   *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 

 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, 

. 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,

 (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 that the Court should bar Plaintiff from introducing evidence or

argument seeking to obtain a future medical expenses award for Bloch’s potential development of

dementia,     Alzheimer’s,   or Parkinson’s disease.    At the hearing held on December           12, 2025,

Plaintiff withdrew the argument regarding Plaintiff's potential future medical costs. Nonetheless,

the Court agrees, finding that any award for future medical expenses would be based on mere

speculation rather than reasonable medical certainty.       “It is well settled that an award for future

medical expenses may not be based upon mere speculation.” Better Building,                60 V.1.     at 753

(citation omitted).    “If a plaintiff seeks future medical expenses as an element of consequential

damage, she must establish with a degree of reasonable medical certainty through expert testimony

that such expenses will be incurred.”     /d. (citation omitted). In Better Building, the Supreme Court

of the Virgin       Islands found   that an expert’s   opinion   on   future medical   expenses     was   not
Bloch vy. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 19 of 45

speculative, because he did not use language indicating the                  “expenses were merely possible or

based on guesswork” or “that his opinion was the product of something less than medical

certainty.” /d

133      As Defendant asserts, “none of Plaintiffs experts have opined that Plaintiff is going to

develop Alzheimer’s, dementia or Parkinson’s with a reasonable degree of medical certainty. They

only opined that he is at an increased risk.”*° Indeed, the experts do not provide any testimony

indicating that Bloch will, in fact, incur future medical expenses with any degree of certainty. Their

opinions would necessarily result in a jury applying sheer speculation to conjure up a damages

award because the opinions are limited in scope to Bloch’s mere increased risk of developing

neurological diseases. In fact, Plaintiffs vocational expert, Gay, excluded potential future medical

costs associated with dementia in her calculations because “narrowing down the likelihood of

someone developing dementia is very difficult.”’’ The Court shall, thus, prohibit Gay from

introducing such calculations to the extent she included any costs related to Bloch’s potential

future neurological diseases.      Ultimately,        it would be inappropriate for Plaintiff to seek future

medical expenses without any evidence that Bloch will incur such expenses to a degree of

reasonable medical certainty

434     On    the other hand,     Bloch    is entitled to claim non-economic             damages   based on his

reasonable fear of developing future neurological ailments, such as Alzheimer’s or Parkinson’s

disease, because of his traumatic brain injury. This Court has found that “[o]rdinarily, a mere risk

of future harm or anxiety without physical injury is insufficient to establish legal harm.” Louis v.

Caneel Bay, Inc.,    50 V.1. 7, 17 (V.1. Super. Ct. 2008) (emphasis added). Therefore,             it follows that



 © Def.’s Omnibus Mot. In Limine at 10
7 Def.’s Mot. In Limine Re Alzheimer’s,   Dementia,    or Parkinson’s, Ex. G at 28:2-5
Bloch y. Mafolie, ST-2024-CV-             00251
Memorandum Opinion
Page 20 of 45

“where       an individual     has a reasonable fear of developing cancer or other asbestos-related

conditions stemming from a present condition, such fear and anxiety are also compensable.”                   /d.

(citing Dunn       v. HOVIC,    28 V.1.    526,   532-33 (3d.   Cir.   1993) (emphasis added)).   The Court’s

finding was in reference to the Third Circuit’s decision in Dunn v. HOVIC,               28 V.1. 526 (3d. Cir

1993)

            In Dunn, the Plaintiff had been repeatedly exposed to asbestos at the workplace for
            several years and had ‘massive’ pleural plaques, a demonstrable decrease in lung
            capacity, pronounced physical effects and multiple physicians had diagnosed him
            with asbestosis, an asbestos related condition of the lungs. The Court concluded
            that the demonstrated detrimental impact on Plaintiff's physical health was
            sufficient evidence for a jury to conclude that Plaintiff was injured. The Court also
            concluded that his fear of developing cancer and mesothelioma in the future based
            on his past exposure to asbestos was an injury because he had a “reasonable” fear
            of future symptoms in light of the present deterioration of his health

Louis, 50 V.1. at 17

Unlike Dunn, in Louis, the plaintiffs’ claim for damages based on fear of future harm failed

because none of plaintiffs’ medical evaluations showed any physical injury from exposure to

asbestos.     Accordingly, this Court held that “no reasonable jury could find that Plaintiffs' brief

exposure to asbestos has resulted in a legal injury.” /d.

435         Similarly, as Defendant Mafolie highlighted, the District Court of the Virgin Islands has

found that mere exposure to asbestos without a present showing of an                 “asbestos-related disease”

does not entitle a plaintiff to damages for fear of being at an          “enhanced risk” of developing cancer

or another disease. Purjet v. Hess Oil Virgin Islands Corp.,            22 V.1. 147, 149-51 (D.V.I.   1986). In

support,     the District Court cited Schweitzer v. Consolidated Rail Corp.,           

 (3d Cir

1985), in which the Third Circuit found that exposure to asbestos alone without actual injury to

the plaintiffs health is insufficient to support a tort claim. Thus, to prevail on a claim for damages

based on fear of suffering from future harm, a plaintiff must provide sufficient evidence that he or
Bloch v. Mafolie, ST-2024-CV-          00251
    Memorandum Opinion
    Page 21 of 45

she sustained an initial injury, which thereby causes an increased risk of developing future harm;

the plaintiff's fear must be reasonable

436        In this case, Bloch has produced sufficient evidence that he sustained a traumatic brain

injury that resulted in an increased risk of developing dementia, Alzheimer’s or Parkinson’s

disease. Bloch suffered a serious blow to the head after falling over the staircase rail at Mafolie

Hotel and Restaurant. At the Hospital, Bloch underwent a CT scan that, according to Dr. Weisher,

showed Bloch sustained a “left subdural hematoma with shift of midline intracranial contusion.””°

Dr.    Weisher     found   that   Bloch’s    injury   warranted     “emergent     medical    jet transport    to a

trauma/neurosurgical facility.”’? Upon subsequent visits to Dr. Weisher’s office, the doctor further

reported that Bloch suffered “{bJifrontal and left temporal cerebral contusions”               and “a fracture of

the left temporal bone that was nondisplaced.”“° Dr. Weisher also found that Bloch’s MRI

demonstrated “encephalomalacia, indicating permanent brain injury.”?! Dr. Weisher concluded

that “[p]atients with this type of head injury have 2-3 times the risk of Alzheimer’s disease in their

expected lifetime,” as well as “an increased risk of Parkinson’s disease.”??

437       Similarly, the other neurologist, Dr. Nelson, found that “[t]here clearly is evidence of a

traumatic brain injury with acute loss of consciousness, post traumatic amnesia                     disorientation

and confusion and there was neuroimaging demonstrating injury.’*> The doctor further identified

that “(t]he neurocognitive disorder presented immediately after the occurrence of the TBI and has

persisted past the acute post-injury period.”** In another report, Dr. Nelson surmised that Bloch



: PI.’s Opp’n to Def.’s Omnibus Daubert Mot. to Exclude Portions of Pl.’s Expert Opinions, Ex. I at 3

0 a s Opp’n    to Def.’s Omnibus Daubert Mot. to Exclude Portions of Pl.’s Expert Opinions, Ex. 2, at 2
31 Jd. at 3
2 

 a4
.      s Opp'n to Def.’s Omnibus Daubert Mot. to Exclude Portions of PI.’s Expert Opinions, Ex. 3 at 14-15
Bloch v. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 22 of 45

sustained a “closed head injury with non-displaced temporal bone fracture associated with post

traumatic memory and sleep disturbances.”** The doctor ultimately concurred with Dr. Weisher

that “there is an increased risk of Alzheimer’s and Parkinsons Disease to a reasonable degree of

medical certainty.”*°

938        Accordingly, the record shows that Bloch incurred a serious traumatic brain injury that has

increased his risk of developing future neurological diseases. The Court finds that a jury could find

that Bloch has a reasonable fear of future harm based on his initial head injury and the expert

opinions and will, therefore, permit Plaintiff to seek non-economic damages for his fear of being

at an increased risk of developing dementia, Alzheimer’s or Parkinson’s disease

           E.   Motion Jn Limine to Bar Opinions of Dr. Joseph Smolarz

439        Defendant argues that the Court should bar certain portions of Dr. Smolarz’s testimony,

including his opinions regarding the cost of “smell training,” “vestibular” rehabilitation and the

associated travel expenses, as well as Bloch’s potential risk for neurological ailments.                At the

December        12, 2025, hearing,   Plaintiff withdrew any argument or evidence supporting Dr

Smolarz’s 1.2-million-dollar assessment for vestibular rehabilitation and his opinion regarding

Plaintiff's increased risk of developing neurological diseases.           In his Opposition, Plaintiff also

withdrew the argument concerning Dr.           Smolarz’s testimony on the associated travel costs.           In

agreement with Plaintiff's withdrawn arguments,            the Court’s analysis shall follow.        The Court

agrees with Defendant to the extent that Dr.           Smolarz’s opinion about the costs surrounding

vestibular nerve rehabilitation should be barred for speculation.           The Court also finds that Dr

Smolarz is unqualified to testify about Bloch’s risk of neurological diseases as an ENT



x i *s oon to Def.’s Omnibus Daubert Mot. to Exclude Portions of Pl.’s Expert Opinions, Ex. 5 at 4
      at
Bloch v. Mafolie, ST-2024-CV-                 00251
Memorandum Opinion
Page 23 of 45

440         An expert’s opinion must be                 “based on sufficient facts or data” and be “the product of

reliable principles and methods.”                V.I.    R. Evid.      702.   In determining the reliability of expert

testimony, the Court “must ensure that the methods used by the proffered expert are based on the

“methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation.”

Henry v. Hess Oil Virgin Islands Corp.,                 

 (D.V.I.   1995) (quoting Daubert, 509 U.S

at 579).       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,

 (quoting Schulz v. Celotex Corp.,                 

 (3d Cir. 1991))

                   i.     Smell and Vestibular Rehabilitation Costs

4741        Defendant argues that the Court should prohibit Dr. Smolarz from testifying about the

speculative costs for conducting “smell” and “vestibular” training to treat Bloch’s loss of smell

and dizziness, respectively

442         Dr.         Smolarz’s opinion on the costs for Bloch’s “smell training” is speculative and

unreliable only as it pertains to his discussion concerning the millions of dollars a “full workup”>’

may cost. After explaining how much an initial session would cost Bloch to undergo “smell

training”         at Dr. Smolarz’s office, Dr. Smolarz identified an additional procedure that Bloch may

elect to help determine whether his nerve was completely severed.                          Dr.   Smolarz opined that it

would cost “millions of dollars to try to figure that out.”** The doctor further noted that it “would

be astronomical in cost”               and that he does not “even know if a million dollars would cover it.’?

When later asked again about the highest total cost for the “full workup,” Dr. Smolarz replied,




? Def.’s Ex.       Ex B at 32:8 11
8 Def.’s Ex.       Ex. B at 32:17-18
® Def.’s Ex. Ex. B at 32;20-22
Bloch v. Mafolie, ST-2024-CV-           00251
Memorandum Opinion
Page 24 of 45

“(aJh, man, 1.2 million, something astronomical.’“° Dr. Smolarz also explained that this procedure

is only used to “try to find out what the likelihood of [the smell treatment] working is going to be”

and that treatment can be done without this procedure.*!

443        Dr. Smolarz’s estimated cost for the procedure is based solely on subjective speculation

The testimony provides the Court with no principles or methodology on which to analyse the

reliability of the estimated figure.        Moreover, Dr.   Smolarz does not state his opinion with any

degree of medical certainty, providing that the cost would be “astronomical”           and that he does not

“even know if a million dollars would cover it.”** His unexplained arrival at the 1.2 million figure,

after being pressed for a more precise answer, does not evidence an objective, reliable estimate

944        Furthermore,       the “astronomical”   figure is unduly prejudicial to Defendant.     Rule 403

excludes “evidence that is so unfairly prejudicial as to outweigh its probative value.” Alexander,

 (citation omitted).        “[W]hen dealing with expert opinion testimony there is always a

danger that a jury will place too much emphasis on an expert's opinion. This is particularly risky

where...        the expert's opinion is problematic from the beginning.”    Etienne v. United Corp., 

 (Terr. V.I. 2001). Dr. Smolarz indicated that treatment for Bloch’s   loss of smell

can be done without this procedure.         His opinion, moreover, lacks a reasonable degree of certainty

and the use of a reliable methodology. Thus, the Court is particularly concerned with the potential

for a jury to award excessive damages based on expert testimony that is “so unfairly prejudicial as

to outweigh its probative value.” Alexander, 

 (citation omitted). Therefore, the Court

will prevent the Plaintiff from presenting Dr. Smolarz’s testimony regarding the costs associated

with the procedure determining the extent of nerve severing


4° Def.’s Ex.     Ex. B at 34:1-9
4! Def.’s Ex.     Ex. B at 43:2-8
* Def.’s Ex.      Ex. B at 32:20-22
Bloch v. Mafolie, ST-2024-CV-                       00251
Memorandum Opinion
Page 25 of 45

445          Secondly, regarding Dr. Smolarz’s reference to the cost for vestibular rehabilitation, the

Court finds that the testimony is speculative and is hearsay disguised as an opinion. Dr. Smolarz

explained that “the cost of the treatment itself would probably be on the order of call it 150 grand

up there for let's call it a month.’*? This uncertain language concerning the cost and timeframe of

the vestibular treatment indicates an opinion based on unsubstantiated speculation.                                             Moreover,

“while an expert may rely upon facts contained in hearsay to form an opinion, the expert may not

recite     those        facts   at    trial,   or    at     the   summary     judgment      stage,    under      the         guise      of an

 opinion.”         Schrader v. Juan F. Luis Hosp.                  & Med.    Ctr.,   

, *11 (V.I. Super

Ct. 2016) (quoting Sickler v. Mandahl Bay Holding,                              

,         *15 (V.1.         Super.    Ct

2013)).      Specifically, “an expert witness may rely on hearsay evidence while reliably applying

expertise to that hearsay evidence, but may                             not rely on hearsay for any other aspect of his

testimony.”            /d. (citing United States v. Dukagjini,                

 (2d Cir.        2002) (emphasis

added)).      Dr. Smolarz admitted that his “opinion”                       about vestibular training costs is derived only

from what his patients have told him.** He does not rely on any expertise to form his opinion

Therefore, Dr. Smolarz is barred from providing speculative, hearsay testimony concerning the

cost of vestibular rehabilitation treatment

                 ii.     Travel and Accommodation Costs for Vestibular Therapy

446        The         Court    may     swiftly      dismiss      Dr.   Smolarz’s     testimony      regarding         the     travel     and

accommodation costs for vestibular rehabilitation due to mere speculation. *° Dr. Smolarz admitted



*® Def.’s Ex. Ex. B at 34:21-23 (emphasis added)
4 Def.’s Ex. Ex. B at 47:23-25
‘5 The Court notes that, in his Opposition, Plaintiff did not argue against the inadmissibility of Dr. Smolarz’s opinion
regarding the travel and accommodation costs associated with Bloch’s vestibular rehabilitation, and in fact, Plaintiff
formally withdrew the submission of such testimony. See Pl.’s Opp’n to Mot. In Limine to Bar Opinions of Dr
Smolarz at | (explaining that “Defendant, Mafolie, does not challenge any of Dr. Smolarz’s opinions, except in three
limited areas, one of which involves travel costs that is hereby withdrawn, mooting this issue”)
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 26 of 45

that his opinion about the potential travel and accommodation costs necessary to obtain vestibular

treatment outside of the U.S. Virgin Islands is speculative and that he was “guessing.’“°

             iii. Dr. Smolarz’s Opinion on Neurological Diseases

947      Lastly,    Defendant    asserts   that   Dr.   Smolarz’s        “neurological     opinions    are unreliable,

speculative, beyond his expertise, and needlessly cumulative.’*’ The Court agrees with Defendant

to the extent that Dr. Smolarz is not a qualified expert in the field of neurology.                       A witness is

qualified as an expert if the witness has “specialized expertise,”                  through education, training, or

simply real-world experience.       Halliday,     

 at *5.          In Gerald v. R.J. Reynolds

Tobacco Co., the plaintiff proffered expert testimony regarding “lung cancer causation” from an

ENT physician. 

,            *2-3 (V.I. Super. Ct. 2018). Although not directly specialized

in treating respiratory diseases, the physician was certified as a Diplomate with the National Board

of Medical Examiners and had other certifications “which would require extensive specialized

knowledge, skill, and training in the diagnosis of medical conditions and disease.”                   /d. In particular,

the Court found that an ENT would have             “received relevant training in the diagnosis and treatment

of diseases of the respiratory system, of which the nose and throat are a part.” /d. Furthermore, the

physician testified at his deposition that “he has seen approximately 50 confirmed cases of small

cell lung carcinoma and has treated about a thousand laryngeal cancer patients.” Jd. Thus, the

Court found thatthe physician had the requisite expertise to opine on a lung cancer diagnosis. Jd

Contrarily, in Brathwaite       vy. Xavier, the Court found that Dr.               Weisher,    a neurologist whose

testimony is also proffered in this case, was not qualified as an orthopaedic to opine about a

shoulder surgery.     

,      *4-5 (V.I.    Super.     Ct.   2017).   The Court noted that Dr



46 Def.’s Ex. Ex. B at 44:8-11; 47:6-9
47 Def.’s Mot. In Limine to Bar Opinions of Dr. Smolarz at 10
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 27 of 45

Weisher, in fact, referred the plaintiff to an orthopaedic doctor, indicating Dr. Weisher’s lack of

expertise in the subject. /d.

448        Here, the Court finds that Dr. Smolarz, an ENT, is unqualified as an expert to testify about

neurological ailments. Unlike in Gerald, the record does not support finding that Dr. Smolarz has

adequate education, training, or experience diagnosing and treating neurological diseases such as

dementia.    Dr. Smolarz’s practice focuses on the ear, nose, and throat. Neurology is a specialized

field that requires sufficient education and training to grasp the complexities of the innerworkings

of the brain and nervous system.           Dr.   Smolarz testified in his deposition that, for Bloch’s

examination, he “looked at the cranial nerves . . . to discern on his hearing test if it’s neurologic or

conductive.”** Though Dr. Smolarz’s practice includes some neurological examination, such

examination does not require the same analytical expertise as diagnosing and treating a cognitive

disease.    Dr. Smolarz has not provided any certifications or prior experience to substantiate his

credentials as an expert in neurological disorders. Additionally, like in Brathwaite, Bloch sought

a neurological diagnosis from two other neurologists, indicating Dr. Smolarz’s lack of qualified

expertise

449        Furthermore, the reliability of the methodology           Dr.   Smolarz used is questionable.    Dr

Smolarz admitted that he relied solely on the literature provided by Dr. Weisher to form his opinion

about Bloch’s increased risk of developing neurological disorders. He did not cite any sources he

personally     found   to support   his opinion;      rather,   he appears   to merely   regurgitate   what the

neurologists have identified.       Ultimately, Dr.      Smolarz is not qualified to render an opinion on




8 Def.’s Ex. B at 6:5-10
Bloch v. Mafolie, ST-2024-CV-                  00251
Memorandum Opinion
Page 28 of 45

Plaintiff's increased risk of developing neurological ailments, including dementia, Alzheimer’s,

and Parkinson’s disease

         F.    Motion Jn Limine to Bar Opinion of Todd Gentilucci

450      Defendant argues that the expert opinion of Todd Gentilucci (“Gentilucci”) should be

barred because (1) the testimony is based solely on hearsay and is not derived from specialized

knowledge; (2) the opinion is unhelpful and (3) would confuse the jury. The Court is unpersuaded

by all these arguments

451      The Court does not find that Gentilucci’s opinion is merely hearsay without an explanation

supported by specialized knowledge.                    “While an expert may rely upon facts contained in hearsay

to form an opinion, the expert may not recite those facts at trial, or at the summary judgment stage,

under the guise of an            ‘opinion.’”     Schrader, 

 at *11 (quoting Sickler, 

 at *15).         Specifically, “an expert witness may rely on hearsay evidence while

reliably applying expertise to that hearsay evidence, but may not rely on hearsay for any other

aspect of his testimony.” /d. (citing Dukagjini, 

); see also Zenith Radio Corp.                       v.

Matsushita Elec.        Indus.      Co.,     

 (E.D.   Pa.   1980) (explaining that expert

opinion which incorporates hearsay is ‘‘a widely-recognized exception to the rule against hearsay

testimony. It has long been the rule of evidence in the federal courts that an expert witness can

express an opinion               even though his opinion is based in part or solely upon hearsay sources”)

Furthermore,      “[i]f experts in the particular field would reasonably rely on those kinds of facts or

data in forming an opinion on the subject, they need not be admissible for the opinion to be

admitted.” V.I.    R.     Evid.       703.     Ultimately,    “{e]xpert 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, 64 V.1. at 524 (citation omitted). An expert’s
Bloch v. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 29 of 45

“specialized expertise” may be achieved through education,              training, or real-world experience

Halliday, 

 at *5.         “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)

452       Plaintiffs expert, Gentilucci,     has formed an opinion containing hearsay statements based,

however, on specialized knowledge and facts upon which other experts in credit card transactions

would reasonably rely. Through his years of experience working as the local representative in the

U.S.     Virgin Islands for ePaymentAmerica,           a credit card processing company,    Gentilucci has

expertise in how credit card transactions are processed.*” In particular, his experience taught him

that

          credit card charges at various bars and restaurants may have a time stamp set for
          another time zone, such as Eastern Standard Time, where the credit card company
          is located. Such credit card time entries can be adjusted to Atlantic Standard time
          at the request of the bar or restaurant, which I did from time to time if requested to
          do so.%?

In his report, Gentilucci explained how he contacted the “epaymentAmerica customer support

line” to determine when the credit card transactions actually occurred in St. Thomas, which is on

Atlantic Standard Time.*' Gentilucci reported that the representatives told him that the transactions

were recorded as being authorized on             ‘2/7/2024 at 6:36 PM    EST”   and   “2/7/2024 at 6:40 PM

Eastern Standard Time.” Based on this information, Gentilucci opined that the credit cards were

charged at 7:36 PM and 7:40 PM Atlantic Standard Time. In his deposition, Gentilucci expounded

that




4° P].’s Opp’n to Mot. In Limine to Bar Gentilucci’s Opinion, Ex. 5
50 Id.
5 Id
52 Td.
Bloch v. Mafolie, ST-2024-CV-               00251
Memorandum Opinion
Page 30 of 45

           It really doesn't matter what time the credit card receipt says, it's the time that the
           authorization hits the data platform. So, credit card machines can read different
           dates and times at all times. But when that processor gets the transaction and the
           authorization code goes through that is the official timestamp. So, when I called,
           that representative was able to reference the specific timestamp done on the
           platform, and that's what said what time it would be.

453        Thus, Gentilucci is not simply reciting what the representatives told him without applying

his expertise to form his opinion.              Gentilucci has permissibly used information “not based on

firsthand    knowledge        or observation”          to articulate   his    expert    opinion   that   the   credit   card

transactions occurred an hour later on Atlantic Standard time. Arvidson, 72 V.I.                          at 77 (quoting

Daubert,     

).      Therefore,       the opinion falls within the expert opinion hearsay

exception. Furthermore, the representative’s timestamps may be referenced in Gentilucci’s opinion

because such data is of the type that experts like Gentilucci “would reasonably rely on” to form an

opinion.    See V.I.    R. Evid.   703.     As Gentilucci declared under oath,             “[a]nyone with expertise in

credit card transactions knows the only way to get the information I obtained as to the exact time

that specific credit card charges were made by the Plaintiff is to call the credit card company, as

this information is only on their server.”

454        Moreover, the Court is unpersuaded by Defendant’s assertion that Gentilucci’s opinion is

unreliable because he “failed to provide any of the underlying information and data that would

verify his conclusions.” One of the factors the Court may consider in determining reliability is

“whether the opinion can be (and has been) tested.” Antilles, 64 V.1. at 416 (citing Daubert, 

).     As    Plaintiff points       out,     “Gentilucci     provided   the contact      information     for

epaymentAmerica right after his deposition, which was provided to defense counsel so that they,




53 Pl.’s Opp’n to Mot. In Limine to Bar Gentilucci’s Opinion, Ex. 4 at 15:11-22
4 Pl.’s Opp’n to Mot. In Limine to Bar Gentilucci’s Opinion, Ex. 7
Bloch v. Mafolie, ST-2024-CV-              00251
Memorandum Opinion
Page 31 of 45

or their client (Mafolie), could make the same calls he did.”°* Thus, Gentiluci’s opinion can easily

be tested by Defendant simply contacting “epaymentAmerica”                  to verify the accuracy of the facts

relied upon by Gentilucci.           Additionally, the fact that Gentilucci failed to “inspect the point of sale

machines at Mafolie”®® does not diminish the otherwise reliable technique employed by Gentilucci

See In re Catalyst,        55 V.1.     at 48 (quoting /n re Paoli R.R.     Yard PCB Litig.,    

)

(“[G]rounds for the expert's opinion merely have to be good; they do [not] have to be perfect”)

Ultimately, the record does not put into serious question the reliability of the methods used by the

expert to reach his conclusions

955      Alternatively, Defendant argues that Gentilucci’s expert testimony does “not fit the facts

of this case and are thus unhelpful.”*’ Under Daubert, “the [expert’s] testimony must assist the

trier of fact, that is, it must ‘fit’ the facts of the case.”        Arvidson, 72 V.I. at 77 (quoting Gerald,

 at *1-2).      “[E]vidence 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, 53 V1. 431,

440 (V.I. 2010) (citing Daubert, 509 U.S, at 591). However, “[b]Jecause ‘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.1. at 78 (quoting Jn re Joy Recovery Technology Corp.,         

 (N.D. III

2002))

456      Specifically, Defendant claims that “the times identified in the Report are contradicted by

other evidence in the record, which Gentilucci admittedly did not review.”** For example,



** P],’s Opp’n to Mot. In Limine to Bar Gentilucci’s Opinion at 10
© Def.’s Mot.    In Limine to Bar Opinions of Todd Gentilucci at 5

ae
Bloch v. Mafolie, ST-2024-CV-        00251
 Memorandum Opinion
 Page 32 of 45

Defendant asserts that “a text message from Mark Robinson and his corresponding testimony

contradict this ‘opinion’” that the credit card receipts are irreflective of the true time in St

Thomas.*’ However, this purportedly contradictory evidence goes to the credibility of the expert,

rather than admissibility. See Arvidson, 72 V.I. at 77 (citation omitted) (explaining that it is for the

jury to determine the credibility of the expert opinion).           Moreover, the Court reiterates that

“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Arvidson, 72 V.I.       at 77.    Regardless, Defendant fails to articulate how Gentilucci’s

opinion would be unhelpful to the jury in determining a fact or issue in the case. Indeed, the opinion

will undoubtedly help the trier of fact understand the timeline of events leading up to the accident

and ultimately the tssue of liability

4157        Lastly, the Court does not find that Gentilucci’s opinion will confuse the jury. 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, 

 (citations

omitted).     The   timeline of events      showcased   by Gentilucci’s   explanation   of the credit card

transactions is a factor in dispute that the jury should be allowed to consider. The expert opinion

is not overly complex and will aid the jury’s understanding of the case, instead of distracting it

Accordingly, the Court shall not bar Gentilucci’s expert opinion, which is reliable, based on

specialized knowledge, and helpful to the trier of fact




°° Ted.
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 33 of 45

         G.   Motion Jn Limine Re Hearsay Statement Proffered by Defendant

4/58     Plaintiff submits that the Court should bar certain hearsay statements contained in an email,

which Defendant attached as support to its Reply to the motion to exclude Gentilucci’s expert

testimony.    At the hearing held on December 12, 2025, Plaintiff conceded that Defendant may use

the statements contained in the email to impeach Gentilucci. The Court found that the evidence is

permitted for impeachment purposes, as well as admissible evidence under the residual exception

to hearsay.   Under Rule 607 of the VIRE, any party may impeach a witness’s credibility, and the

evidence used to impeach need not be admissible.           Under Rule 807, “a hearsay statement is not

excluded by the rule against hearsay”         so long as

         (1) the statement is supported by sufficient guarantees of trustworthiness — after
         considering the totality of circumstances under which it was made and evidence, if
         any, corroborating the statement; and (2) it is more probative on the point for which
         it is offered than any other evidence that the proponent can obtain through
         reasonable efforts

459      Here, the email contains hearsay statements that contradict the evidence Gentilucci relied

upon to form his expert opinion; thus, Defendant may use the email to impeach Gentilucci’s

credibility. The email, which was sent to Defendant’s counsel from a representative at “epayment

America,” explains that “the time stamp of the transaction will be the same time zone that the

Clover Dashboard is set for. So in this case is the Virgin Islands, Atlantic Standard Time zone.”

Thus, this statement calls into question the credibility of Gentilucci, who claimed that the credit

card company representatives told him that the payment transactions at Mafolie were recorded




6° Mot. In Limine Re Hearsay Statement, Ex. |
Bloch v. Mafolie, ST-2024-CV-           00251
Memorandum Opinion
Page 34 of 45

according to Eastern Standard Time, instead of Atlantic Standard Time. Therefore, Defendant may

use this email to impeach Gentilucci

4160       Moreover, the email’s hearsay statements may be admitted into evidence under the residual

hearsay exception. The email is sufficiently trustworthy. The email shows that it was sent by an

“epayment      America”       address   to Defendant’s   counsel.   Furthermore,   as Plaintiff points   out,

Gentilucci provided Defendant with the credit card company’s contact information, insisting that

Defendant was free to confirm the timestamp logs itself. Defendant did so, and, unlike Gentilucci,

Defendant recorded the hearsay statements as written evidence, which can be reviewed by the trier

of fact for its veracity. Additionally, the email’s probative value is high, and it is the best evidence

available to Defendant that could reasonably be obtained.             Accordingly, the Court will permit

Defendant, with the proper foundation,          to introduce into evidence the email sent by the “epayment

America”     representative

        H.    Motion Jn Limine to Bar Evidence of Overservice of Alcohol and the Absence of a
              TIPS Program

461     Defendant asserts that Plaintiff should be barred from introducing evidence that Mafolie’s

employees negligently overserved Bloch alcohol or that Mafolie failed to properly train employees

about overservice according to the TIPS program.           The Court agrees.   In support, Defendant cites

the following Virgin Islands statute, which states

       A person who sells or furnishes alcoholic beverages to a person of lawful drinking
       age does not thereby become liable for injury or damage caused by or resulting
       from the intoxication of such person. However, a person who willfully and
       unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful
       drinking age, or who knowingly serves a person habitually addicted to the use of
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 35 of 45

            any or all alcoholic beverages may become liable for injury or damage caused by
            or resulting from the intoxication of such minor or person

8 V.I.C.     § 161.   Defendant asserts that none of the exceptions apply in this case, and therefore,

Plaintiff is statutorily barred from arguing that Defendant shares any liability for Bloch’s injury

based on aiding his intoxication through bartenders’ overservice of alcohol. Plaintiff contends that

the statute’s “plain text” indicates that the statute is only “designed to protect bar owners from

suits by injured third parties where an intoxicated patron leaves and injures another person.”®!

62         It 1s well settled that “[i]f it is not ambiguous, the plain text of a statute governs its

meaning.”      Wallace v. People,   7\ V.1. 703, 715 (V.L.   2019) (citation omitted).   Furthermore,   “{a]

statute should not be construed and applied in such a way that would result in injustice or absurd

consequences.” Gilbert v. People of Virgin Islands, 52 V.1. 350, 356 (V.I. 2009) (citation omitted)

Here, the statutory text is plain and unambiguous:           “A person who sells or furnishes alcoholic

beverages to a person of lawful drinking age does not thereby become liable for injury or damage

caused by or resulting from the intoxication of such person.” 8 V.I.C.        § 161. The statute does not

contain any language that limits or differentiates liability between an injured intoxicated party and

affected third persons.     Indeed, the statute broadly encompasses and prohibits any injured party

from holding liable those who serve alcohol. The Legislature could not have intended to bar third

persons injured by the intoxicated person from suing the establishment that overserved alcohol,

while permitting suit by the intoxicated, injured person. The statute intends to shift responsibility

for over-intoxication from the establishment to the patron.        If the Legislature intended to restrict

liability to a class of persons, it would have included such language. Any other interpretation would




6! P].’s Opp’n to Omnibus Mot. In Limine at 2
Bloch v. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 36 of 45

lead to an absurd result. Accordingly, the statute bars Bloch from asserting that Defendant is liable

for overserving him alcohol and, thereby causing his injury

{63     Alternatively, Plaintiff argues that, even if the statute bars a claim for liability against

Defendant,      Plaintiff is still entitled to rebut Defendant’s affirmative defense of intoxication

Specifically,    Plaintiff asserts that, pursuant to 5 V.LLC.   §1451,   “the jury should be permitted to

consider [Bloch’s] level of fault with that of Mafolie in overserving him, because it did not have a

TIPS   program     that could   have and should     have led its servers to realize the Plaintiff was

inebriated.”’*? However, to permit the jury to apportion a lesser degree of fault on Plaintiff would

simply be another way of assigning liability on Defendant based on overservice of alcohol. This

backdoor maneuver would directly conflict with the Legislature’s intent to protect establishments

from liability for overserving alcohol that leads to a plaintiff's injury.         If the jury finds that

Plaintiff's injury was due to his intoxication,     the apportionment of liability may not be lessened

based on Defendant’s overservice of alcohol.         However, the jury may freely assign liability to

Defendant for any negligence it played in Plaintiffs injury as a result of a defect in the premises,

here, a low guardrail.     Therefore, the Court will prohibit Plaintiff from arguing that Defendant

negligently overserved alcohol to Bloch or presenting evidence that Mafolie failed to train

employees under TIPS

        I.   Motion Jn Limine to Bar Expert Testimony that Plaintiff Would Not Have Fallen
             Over the Railing Had it Been Forty-Two Inches

"64     Defendant asserts that Plaintiffs expert should be barred from opining that she does not

believe Bloch would have fallen over the guardrail at Mafolie had it measured forty-two inches




® P].’s Opp’n to Omnibus Mot In Limine at 3
Bloch v. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 37 of 45

Specifically, Defendant contends that Plaintiff's liability expert, Rosie Mackay (“Mackay”), is

unqualified and fails to provide a reliable methodology to form her opinion. The Court disagrees

4/65     First, the Court finds that Mackay          is qualified as a safety expert to opine on whether

Mafolie’s guardrail falling below minimum safety standards was a cause of Plaintiff's accident. 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.

, *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, 

 (citation omitted). Thus, a qualified expert

must have the expertise or specialized knowledge that pertains to an issue in the case

{66      Mackay’s expertise in safety codes is pertinent to the issue of whether Bloch would not

have fallen over the guardrail had it been built to minimum safety standards. Defendant argues that

 while Mackay is an engineer, she has no training in biomechanics, human factors, or accident

reconstruction.”® Defendant asserts that Mackay may opine “on safety standards and whether she

believes Defendant fell below those standards, but she lacks the expertise to opine whether a forty

two inch railing would have prevented Plaintiff from going over the railing.” In fact, Mackay’s

extensive resume shows that she is an experienced             “safety engineer”   who has certified training for

premises safety standards such as the OSHA.          Through her knowledge of safety standards, Mackay

explained that “virtually every safety code [] requires a 42 inch guardrail to be placed wherever

there is a drop-off of 48 inches or more.””®’ She expounded that “this standard was adopted only

after appropriate research and testing was done” in order “to determine whether this was the proper


® Def.’s Omnibus Mot. In Limine at 8
  Id
65 P1.’s Opp’n to Def.’s Omnibus Mot. In Limine, Ex. 2 at 8
Bloch v. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 38 of 45

height to prevent persons from falling over the guardrail.’”®° Accordingly, based on the safety codes

and her “own personal observations of such guardrails,” Mackay opined that she “would not expect

Peter Bloch to fall over a properly installed guardrail that meets the known safety code height of

42 inches.”®’ Thus, regardless of whether Mackay has training in “biomechanics, human factors,

or accident construction,” she nonetheless has specialized knowledge in safety standards to support

her opinion

467      Moreover, her opinion is not merely speculative, but rather it is based on reliable

methodology applied in the creation of such safety standards. The Court has “considerable leeway

in deciding how to determine whether particular expert testimony is reliable.” Arvidson, 72 V.I. at

78 (quoting Kumho Tire Co. v. Carmichael, 

 (1999)). In determining reliability

the Court may consider factors such as “whether the opinion can be (and has been) tested . . .and

the existence and maintenance of standards controlling the technique's operation.” Antilles, 

 (citing Daubert, 

).   “No one factor is dispositive”    and “[a]s such, the

Court's inquiry must focus solely on principles and methodology, not on the conclusions generated

therefrom.” Jackson, 47 V.1.     at 126 (citing Daubert, 

).   “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.”     Callwood, 

 (quoting in re Paoli R.R.            Yard

PCB Litig.,   

 n. 8)

968      Inthis case, Mackay’s opinion is “grounded in good science.” Mackay explained that “[t]he

anthropometric data used to calculate the 42 inch height [in the safety codes] confirms that this



6 

87 

Bloch vy. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 39 of 45

height would protect someone 6” 2” tall, Peter Bloch’s height.”®* The codes relied upon include

national safety codes, “such as OSHA or the International Building Code.”® Defendant points out,

however, that     “Mackay admittedly performed no analysis or calculations to test her theory that a

forty-two inch railing would have prevented Plaintiff from falling over the side.””° Yet, as Mackay

explained, the safety “standards are adopted so they can be relied upon by property owners to

protect persons such as the Plaintiff in this case, Peter Bloch, from falling over them, without the

need for additional testing each time such a guardrail is installed.””! Therefore, Mackay’s opinion

that Bloch would not be expected to have fallen had the guardrail been up to safety standard height

is based on reliable, tested, and standardized scientific principles rather than mere subjective belief.

Thus, the Court will not bar Mackay’s testimony

        J.   Motion Jn Limine to Bar Evidence of Liability Insurance

169     Defendant argues that although it “intends to introduce evidence that Plaintiff inspected

the subject premise for safety while working for Tunick on behalf of an insurance company,

Plaintiff must not be permitted to use this to introduce evidence of insurance coverage or policy

limits.””* Plaintiff asserts, however, that Defendant has opened the door to the introduction of

liability insurance and that, therefore, Plaintiff must be able to explain Bloch’s          actions in rebuttal

for a purpose other than proving Defendant’s negligence. Plaintiff and Defendant have stated that

they do not intend to introduce evidence of an insurance liability policy

470     The Court agrees with Defendant to the extent that Plaintiff may not reference liability

insurance    to prove   Defendant’s       negligence;     however,   Plaintiff may   reference   the insurance

© Id
" Def.’s Omnibus Mot. In Limine at 10
  Pl.’s Opp’n to Def.’s Omnibus Mot.    In Limine, Ex, 2 at 8
 Def.’s Omnibus Mot. In Limine at 10
Bloch v. Mafolie, ST-2024-CV-         00251
Memorandum Opinion
Page 40 of 45

company for another purpose. “Evidence that a person was or was not insured against liability is

not admissible to prove whether the person acted negligently or otherwise wrongfully.                      But the

court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice

or proving agency, ownership, or control.” V.I. R. Evid. 411.                   Here, it appears that Defendant

intends to submit      evidence concerning        Bloch’s    previous     inspection   in 2022    of the Mafolie

premises on behalf of Tunick Insurance Agency.               According to Bloch, he conducted the safety

inspection “‘so that the insurance company will have information about the property in order to

insure it.”’> Bloch noted that before         “going to the Mafolie site in 2022, [he] had never received

any training in premises safety and had no idea there were safety requirements for guardrails of a

certain height where there was a drop off below.” Bloch further identified two prior safety reports

he reviewed that did not mention         “any safety deficiency due to the lack of a guardrail anywhere

on the property.””> Ultimately, Bloch similarly failed to note in his report recommendations that

Mafolie should install a sufficiently tall guardrail

{71     Therefore,    Plaintiff asserts that,      “once Mafolie        opens   the door,   the facts related    to

Plaintiffs inspection are relevant to explain why the Plaintiff cannot be faulted for Mafolie not

having a guardrail on its stairway.””° Specifically, Plaintiff argues that Bloch “did not include a

recommendation regarding the need for a guardrail on this stairway, as neither Tunick nor the

insurance company (which relied on this report to insure the property), ever provided the Plaintiff

with any safety training, or require that he have any such safety experience.”’’                 Thus, Plaintiff is




3 Pl.’s Opp’n to Def.’s Omnibus Mot. In Limine, Ex. 2 at 8
ay
" r s Opp’n to Def.’s Omnibus Mot. In Limine at 10
Bloch v. Mafolie, ST-2024-CV-        00251
Memorandum Opinion
Page 41 of 45

not referencing      liability insurance     to prove   Defendant’s   negligence.   Instead,    the insurance

company is mentioned indirectly as part of the safety inspection that Bloch conducted on its behalf.

§72    Moreover,       Plaintiff simply    seeks   to rebut and    explain   the whole    circumstance    that

Defendant intends to put into evidence in the first place.        It is well-established that

       Traditionally, this is also known as the         “opendoor”  doctrine.  When a
       party opens the door to evidence that would be otherwise inadmissible, that party
       cannot complain on appeal about the admission of that evidence. However, the
       “open door” doctrine's soundness depends on the specific situation in which it is
       used and thus calls for an exercise of judicial discretion. The Court may limit any
       rebuttal evidence if it does not directly contradict the evidence previously received,
       or goes beyond the necessity of removing prejudice in the interest of fairness. As a
       result, even were the Court to permit use of the suppressed evidence, counsel for
       Defendant would take a calculated risk when inquiring into that evidence

People v. Maharaj,     

,        *3 (V.I. Super. Ct. 2016). Accordingly,    it would be unfair

to permit Defendant to open the door by introducing evidence that references liability insurance

but deny Plaintiff the ability to rebut Defendant’s arguments with the same. Therefore, the Court

shall not bar Plaintiff from referencing the insurance liability company to the extent that such

reference is used only to explain Plaintiffs role in the safety inspection and not to impute an

inference of negligence on Defendant’s part

       K.   Motion Jn Limine to Bar Evidence of Subsequent Remedial Measures

473    Defendant asserts that Plaintiff should not be allowed to introduce evidence of the remedial

measure taken by Mafolie:      the recent installation of a higher guardrail. The Court agrees, finding

that none of the exceptions to the rule barring evidence of subsequent remedial measures applies

Rule 407 of the VIRE states

       When measures are taken that would have made an earlier injury or harm less likely
       to occur, evidence of the subsequent measures is not admissible to prove
       negligence; culpable conduct; a defect in a product or its design; or a need for a
       warning or instruction. But the court may admit this evidence for another purpose,
Bloch v, Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 42 of 45

        such as impeachment or          if disputed               proving ownership, control, or the
        feasibility of precautionary measures

474     Mafolie’s recent installation of a higher guardrail is evidence of a subsequent remedial

measure, which supports Plaintiff's argument that injury would not have or would have been less

likely to occur had the guardrail been sufficiently tall at the time of the accident.                    Whether

Defendant agrees that this remedial measure was in fact necessary is irrelevant to the question of

admissibility.     Defendant does not dispute ownership, control, or the feasibility of taking such a

precautionary measure. Thus, Plaintiff must either use this remedial measure for impeachment or

other valid purposes aside from proving Defendant’s fault

(75     Plaintiff asserts that it should be allowed to impeach Defendant’s                 liability expert, Joe

Barnes (“Barnes”), for his opinion denying the need for a guardrail meeting the minimum height

asserted by Plaintiff. In Barnes’s report, he concluded that “while the railing height could be

improved to meet contemporary standards in a newly constructed setting, it played no causative

role in this incident.”’® In his deposition, he further denied that a guardrail of at least forty-two

inches was necessary to prevent people from falling over. Thus, Plaintiff contends that through the

subsequent       installation   of the higher   guardrail    by    Mafolie,   Barnes’s   “credibility   has   been

undermined.””? However, the subsequent installation of the higher guardrail does not necessarily

render Barnes’s opinion incredible. As Barnes explains, it is possible that “[t]he fall resulted from




® Pl.’s Opp’n to Def.’s Omnibus Mot In Limine: Ex. 3 at 16
 ” Pl.’s Opp’n to Def.’s Omnibus Mot. In Limine at 12
Bloch v. Mafolie, ST-2024-CV-          00251
Memorandum Opinion
Page 43 of 45

Mr.   Bloch’s impaired state and unsafe conduct.’®° Thus, the Court shall not permit Plaintiff to

introduce evidence of this subsequent remedial measure for impeachment purposes

476        Furthermore, the Court is unpersuaded by Plaintiff's argument that such a subsequent

measure is admissible to allow Plaintiff to “fully respond to Mafolie’s argument that Plaintiff did

a prior inspection, suggesting he is at fault in this case.”! The Court will permit Plaintiff to rebut

Defendant’s arguments concerning Bloch’s safety inspection of the premises; however, Plaintiff

may not do so with evidence of the subsequent installation of the higher guardrail. Such evidence

is unduly prejudicial to Defendant, as the probative value is slight in comparison to the potential

for a jury to place fault on Defendant based solely on the subsequent remedial measure.       See V.I

R. Evid.        403 (the Court may exclude relevant evidence “if its probative value is substantially

outweighed by a danger of. . . unfair prejudice”). Accordingly, Plaintiff is barred from mentioning

Defendant’s subsequent remedial measure of installing a higher guardrail

           L.    Motion Jn Limine to Bar Plaintiff from Introducing Medical Illustrations into
                 Evidence

477        Defendant asserts that Plaintiff must be barred from presenting demonstrative medical

illustrations of Bloch’s injury because they lack foundation and Plaintiff's counsel would be

required to “act as a witness to verify who made the illustrations.’*? The Court is unpersuaded by

these arguments.       Rule 1006 of the Virgin Islands Rules of Evidence states

           The proponent may use a summary, chart, or calculation to prove the content of
           voluminous writings, recordings, or photographs that cannot be conveniently
           examined in court. The proponent must make the originals or duplicates available




80 P].’s Opp’n to Def.’s Omnibus Mot. In Limine, Ex. 3 at 16
81 P].’s Opp’n to Def.’s Omnibus Mot. In Limine at 13
82 Def.’s Omnibus Mot. In Limine at 20
Bloch v. Mafolie, ST-2024-CV-           00251
Memorandum Opinion
Page 44 of 45

           for examination or copying, or both, by other parties at a reasonable time and place
           And the court may order the proponent to produce them in court

Rule     1006 is derived from        Federal Rule of Evidence    1006,   which provides the following

instructive explanatory note

           Rule 1006 allows the contents of voluminous writings which cannot conveniently
           be examined in court to be presented in the form of a chart, summary, or calculation
           It creates an exception to Rule 1002, which requires that originals be used to prove
           the content of writings, recordings and photographs. Evidence admitted under Rule
           1006 must be otherwise admissible and remains subject to the usual objections
           under the rules of evidence and the Constitution. Most notably, Rule 1006 evidence
           normally is objectionable if the voluminous source material on which it is based is
           inadmissible. The proponent must show that the voluminous source materials are
           what the proponent claims them to be and that the summary accurately summarizes
           the source materials

In re Asbestos, Catalyst, & Silica Toxic Dust Exposure Litig., 68 V.1. 494, 502-03 (V.I. Super. Ct

2018) (citing      FRE 1006) (emphasis added)

477        Plaintiffs demonstrative exhibit summarizes the injuries sustained by Bloch as described

in the voluminous records produced by the hospitals that treated him. Plaintiff has produced these

records to opposing counsel and intends to mark them as exhibits at trial. The Court does not find

that laying the foundation or verification of this demonstrative illustration would be problematic

unless the voluminous records on which the illustration is based are inadmissible.       Plaintiff must

simply demonstrate that the medical records are what he claims them to be and that the illustration

accurately summarizes those records. Plaintiff may satisfy this requirement by introducing one of

Plaintiff's physicians’     testimony, which provides that he reviewed and approved the illustration as

being a “reasonable and accurate representation.”*? Accordingly, the Court shall not bar Plaintiff




* Pl,’s Opp’n   to Def.’s Omnibus Mot. In Limine, Ex. 9 at 56
     Bloch y. Mafolie, ST-2024-CV-         00251
     Memorandum Opinion
     Page 45 of 45

     from introducing a demonstrative medical illustration unless, at trial, the records upon which the

     illustration is based are shown to be inadmissible

     IV          CONCLUSION

     479         For all the reasons stated above, the Court shall issue an order consistent with this

     Memorandum Opinion granting, in part, and denying, in part, the parties’ several motions in

     limine

     Dated: January 15, 2026
                                                           HON. CAROL THO                JACOBS
                                                                Judge of the Superior Court
                                                                of the U.S. Virgin Islands

     ATTEST
     Tamara Charles
     Clerk of the Court




fr
      ML      aytoya   Camach
           Court Clerk Supgrvisor f           / /.S    (MW