New York State Court of Claims

New York State Court of Claims

BRYANT v. THE STATE OF NEW YORK, #2000-013-025, Claim No. 96743, Motion No. M-62075


Claimant's motion for the production of documents and witnesses at trial is granted in part and denied in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES E. SHOEMAKER, ESQ., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 17, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On August 2, 2000, the following papers were read on Claimant's motion for the production of witnesses and documents for trial:
1. Notice of Motion
2. Letter Response from James E. Shoemaker, Esq., dated August 4, 2000
3. Claimant's Reply dated August 7, 2000

Claimant seeks damages in this action for medical malpractice and/or medical neglect at the Southport Correctional Facility (Southport) in July 1997. His trial is scheduled for September 8, 2000 at the Elmira Correctional Facility. He filed this motion to request the production of witnesses and documents for trial.

Initially, Claimant asked for a total of six witnesses, including two doctors, a nurse, a medical specialist and two inmate witnesses. He subsequently withdrew his request for one doctor (Dr. Shah) and one inmate (D. Mathis). Defendant has not opposed Claimant's requests, except to point out that some of the witnesses are not employees of the Department of Correctional Services (DOCS) or the State and to insist upon advanced payment of the expenses and witness fees related to the witnesses. Having reviewed the witness list and Claimant's description of the testimony the requested witnesses would provide, I have decided to pare Claimant's witness list because I have determined that some of the proposed evidence would not be helpful to the resolution of this claim. My rulings are as follows.

Claimant's descriptions of the testimony that Nurse Ziegler and Dr. Hatef would provide suggest that they have information that is relevant to his claim. Therefore, Claimant shall be permitted to call each of these witnesses at trial. Defendant points out, however, that neither of these witnesses is employed by DOCS. I will issue judicial subpoenas and forward them to Claimant. It will be his obligation to have the subpoenas served in the same manner as a summons (see, CPLR 2303).[1] If Claimant cannot get the subpoenas served, then he may rely upon the testimony of Dr. Alves, who has treated Claimant and will be testifying on Defendant's behalf at trial.

Claimant's request to call Medical Specialist Lillian Courchesne at trial is denied. It is evident from Claimant's description of her anticipated testimony that she has no firsthand knowledge about Claimant's medical conditions. Indeed, Defendant advises that she works in Albany. Claimant's intention is to use Ms. Courchesne to establish that he wrote to her to complain about the medical treatment he received at Southport. However, he can demonstrate this, to the extent it is relevant to his claim, through his own testimony and by introducing copies of the letters he wrote and the replies he received.

Claimant's request to call inmate Dumpson is also denied. Inmate Dumpson is supposed to testify that he, unlike Claimant, received boots in the highest security section of Southport and to describe the pain that Claimant appeared to experience because of the alleged medical malpractice and neglect. I conclude, however, that this testimony, to the extent it is relevant, duplicates testimony that Claimant can offer himself. Therefore, the testimony of Inmate Dumpson is unnecessary.

Claimant also asked for copies of certain documents. Defendant has offered to produce all of these documents to the extent they exist. The only exceptions are the medical protocols and the health services policy manual which Defendant says are available in every inmate law library. In view of Defendant's promise of cooperation, I find no need to order Defendant to produce the requested documents at trial. If Claimant determines, however, that the medical protocols or health services policy manual are not available in his prison law library, then he should notify Defendant and the Court, and I will order Defendant to produce them if Defendant will not agree to do so voluntarily.

August 17, 2000
Rochester, New York

Judge of the Court of Claims

Although Claimant has asked me to waive the witness fees, I will not do so here. The third party status of Nurse Ziegler and Dr. Hatef and the availability of Dr. Alves leads me to conclude that waiving the fees is not appropriate in this case. Claimant is invited to renew his poor person application and to provide a copy of his current inmate account statement (see, CPLR 1101, et seq.).