ROBINSON v. THE STATE OF NEW YORK, #2000-015-516, Claim No. 95245
Court imposed monetary sanction against Assistant Attorney General for
egregious departure from norms of conduct where she initiated communication with
former DOC Commissioner in an attempt to dissuade him from testifying as an
expert in inmate personal injury action.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Parker & Waichman
By: Zwiebel, Brody, Gold & Fairbanks, LLPAlan S. Zwiebel, Esquire
Honorable Eliot Spitzer, Attorney General
By: Michael A. Rosas, EsquireAssistant Attorney General
September 11, 2000
See also (multicaptioned
The claimant moves for an order pursuant to CPLR 3126 striking the defendant's
answer for spoliation of evidence alleging the intimidation of an expert witness
and for sanctions pursuant to 22 NYCRR part 130 for frivolous conduct during
this litigation. In this claim, the claimant alleges that she sustained injuries
when she was attacked by a fellow inmate at Bedford Hills Correctional Facility
at approximately 10:00 p.m. on November 14, 1996. It is alleged that negligence
on the part of employees of the Department of Correctional Services (DOCS)
permitted the assault to occur. By order filed on January 19, 2000, the trial
of the claim was bifurcated with the liability portion scheduled to commence on
May 4, 2000. Approximately one and one-half months prior to the trial the
attorneys for the claimant requested Thomas A. Coughlin, III to serve as an
expert witness for the claimant. Claimant thereafter served a copy of her
expert witness response upon defense counsel and by letter dated April 5, 2000
(Court Exhibit 1) Assistant Attorney General Michael A. Rosas communicated to
the Court as follows:
On April 4, 2000, I received a faxed copy of claimant's expert disclosure. The
disclosure indicated that claimant would call Thomas A. Coughlin, III as her
expert in corrections penal administration. The disclosure raises several
issues that should be conferenced by the Court prior to trial.
Mr. Coughlin was the Commissioner of the New York State Department of
Correctional Services from 1979 to August 1994. The Attorney General's office
has represented, and continues to represent, Mr. Coughlin in many lawsuits
brought by present and former inmates. Those lawsuits include numerous cases
brought by inmates at Bedford Hills Correctional Facility, the location of the
subject incident. I am confident that our records will show that Mr. Coughlin,
as former Commissioner, has signed affidavits and provided testimony regarding
some or all of the matters that he will testify to. We have begun a search for
In addition to changing the originally anticipated scope of the trial, I have a
genuine concern that the use of such impeachment material may pose a conflict of
interest for this office. That conflict would be solely attributable to Mr.
Coughlin's decision to testify against his former employer as to matters that he
has been sued for or is being sued for in his personal and/or official capacity.
Of course, it would also [sic] my position that the State should not be
prevented from fully defending itself with relevant impeachment material.
Accordingly, it is my intention, at this time, to move prior to trial to
preclude the expert testimony of Mr. Coughlin.
In response, a telephone conference was held on April 12, 2000 to address the
issues raised by Mr. Rosas' letter. On April 12, 2000, claimant's counsel sent
a letter to the Court requesting an adjournment of the trial in the event that
the State moved to disqualify Mr. Coughlin as claimant's expert witness. On
April 13, 2000, the Court received a letter by fax from Assistant Attorney
General Rosas (Court Exhibit 2) which stated:
After reviewing the information available to me at this time, I have determined
not to move to preclude Thomas Coughlin as an expert for the claimant.
I have discussed the scope of Mr. Coughlin's testimony with claimant's counsel
and am optimistic that it will be based on information which would be subject to
disclosure in the usual course of litigation. However, I still reserve the
right to object at trial to any testimony by Mr. Coughlin which would be
considered confidential or privileged information pursuant to Roundpoint v
V.N.A. Inc., 207 A.D.2d 123, 621 N.Y.S. 2d 161 (3d Dept. 1995).
On May 1, 2000, the Court received a faxed letter from claimant's counsel
(Court Exhibit 3) stating:
As this Court is aware this firm has retained ex-Commissioner of Corrections
Thomas Coughlin to testify in regard to the above captioned matter at a trial
scheduled to begin on May 4, 2000. As you know issues arose when the State
objected to this firm's use of Mr. Coughlin as a witness. It was my
understanding that these issues hand [sic] been laid to rest.
Unfortunately, today I was contacted by Mr. Coughlin by telephone and he
informed me of a circumstance that raises serious ethical considerations, which
I believe require the Court's immediate attention.
It would appear that a representative of the Department of Corrections, Mr.
Anthony Annucci, counsel for the Department relayed information to Mr. Coughlin
from the Office of the Attorney General. I have attached a copy of a fax
transmission to me from Mr. Coughlin. The contents are self explanatory and I
believe constitute a form of witness tampering. Kindly review Mr. Coughlin's
Based upon the foregoing I believe the contact of Mr. Coughlin by the State
constitutes an ethical breach which has compromised the Plaintiff's case/witness
and that the trial should be adjourned pending an investigation of the
The memorandum from Mr. Coughlin to claimant's counsel (Court Exhibit 4)
attached to the faxed letter provides:
On Friday night, April 28th, I received a call at my home from Anthony Annucci,
Counse, [sic] NYS Department of Correctional Services with regard to the
Robinson matter. He advised me that he had received a call from 'the number 1
person in the NYC AG's office'. The AG was concerned about my appearing as a
witness for Ms. Robinson, the AG felt that if that happened that he would have
to attack my credibility in the Robinson matter and because of that the AG's
office would not be able to defend me in the still pending cases that date from
the time I was Commissioner.
He further advised me that the AG said that they would have to certify outside
counsel for those pending matters. In addition the matter of my personal
indemnification in those pending matters would have to be reexamined. Since I
have a pending $700,000 judgement I became concerned about that statement and
voiced my concern to Mr. Annucci. I then told Mr. Annucci that I would welcome
outside counsel and that I was concerned that the AG was interferring
[sic] in my ability to make a living and that I had been retired for
almost 6 years and enough was enough.
On May 4, 2000, prior to the commencement of the trial of the claim, the
claimant's counsel made oral motions to strike the defendant's answer pursuant
to CPLR 3126 and for the imposition of sanctions pursuant to 22 NYCRR part
Claimant's counsel requested permission
to submit proof upon the motions to which the Court acceded.
Mr. Coughlin testified on behalf of the claimant and stated that he was the
Commissioner of DOCS from 1979 until his retirement in 1994. At some point in
time during the middle of March, 2000, Mr. Coughlin was approached by claimant's
counsel concerning his willingness to act as an expert witness for claimant. He
had no personal knowledge of the facts of the case and, after reviewing various
documents, Mr. Coughlin agreed to become claimant's expert.
With respect to the incident giving rise to the hearing, Mr. Coughlin testified
that he hired Anthony Annucci as the Deputy Commissioner and Counsel to the
Department of Correctional Services during the mid 1980's. At approximately
9:00 p.m. on Friday, April 28, 2000, Mr. Coughlin was at his residence when he
received a telephone call from Mr. Annucci. The first part of the conversation
involved a matter the two men had previously discussed concerning payment by
DOCS to a company that Mr. Coughlin had represented in the past. The second
part of the conversation dealt with Mr. Coughlin acting as an expert witness in
the instant litigation. Mr. Coughlin related the conversation as
Q. And can you tell us the sum and substance of that conversation?
A. He told me that he had received a phone call from, as he put it the number
one A.G. in New York City, ah, that they had problems with me being an expert in
this particular case and that, ah, if I did persist in being an expert in the
case, that they would have to consider certifying outside counsel, ah, for me in
all of the other cases that the A.G. represents me in. They said that they
would have to do that because, ah, I , they would have to attack my credibility
in the Robinson matter and therefore couldn't represent me in other matters.
They also said they would have to review, ah, all issues of
. . .
Q. What did you understand indemnification to mean?
A. The, ah, in many of the lawsuits that are, that I happen to be a defendant
in, if, if, ah, if there are money damages awarded to a plaintiff, the state may
indemnify, ah, the defendants in the case and protect, and hold them harmless
from, from paying the, ah, the money damages. I am personally familiar with
this because of twenty years as a commissioner, I have been a defendant in a lot
of lawsuits. There was, there is one particular case, it is still pending right
now. It is a major money damage award against me and, ah, I get very nervous
about someone talking about, ah, reviewing indemnification issues because it is
my understanding that indemnification is not, ah, is not a right, but is
something that the A.G. and the department can or cannot do.
Mr. Coughlin testified that he became angry and agitated because Mr. Annucci
could not give him any reason why the State would have to review its position
with regard to indemnification. Mr. Coughlin was agitated, in part, because
of his prior poor relations with the Office of the Attorney General. He stated
that in the six years since his retirement he had often been contacted by
assistant attorneys general on very short notice to appear for depositions and
at trials and this activity had wreaked havoc with his private employment. Mr.
Coughlin was concerned as to whether he would be indemnified against a
$750,000.00 judgment rendered in a case entitled McClary
Coughlin was out of state at the time of trial and refused to return to testify.
Assistant Attorney General Bove advised Mr. Coughlin that he would be considered
an uncooperative witness by the Attorney General and might not get indemnified.
Apparently, the McClary
case is still on appeal. Mr. Annucci told Mr.
Coughlin that the telephone call was made at the request of the Attorney General
and Mr. Coughlin believed that it was an attempt to intimidate him. He believed
the contact was improper because "I mean I was suppose to be an expert witness
in this case and I was getting a message from the opposing counsel in the
Mr. Coughlin stated that although he
and Mr. Annucci had spoken on approximately a dozen occasions since the time of
his retirement, Annucci had never before acted as an intermediary between
himself and the Attorney General's office.
On Monday, May 1, 2000, Mr. Coughlin telephoned DOCS Commissioner Glenn Goord
to advise him that he was upset by what he perceived as a threat by Annucci in
the course of the telephone conversation of the prior Friday evening. Mr.
Coughlin conveyed his concerns about indemnification and one-half hour later Mr.
Goord called him back to advise him not to worry about that issue. Still, Mr.
Coughlin was concerned because it required the approval of both the involved
State agency and the Attorney General for a State employee to be indemnified
under Public Officer's Law § 17. Mr. Coughlin testified that he had never
felt intimidated by DOCS and was not concerned that the Department would decline
indemnification. Mr. Coughlin related his understanding of Mr. Annucci's
comments in the following manner:
Q. And in fact it wasn't an agitation because you were concerned or intimidated
by Mr. Annucci about appearing as a witness in this case, isn't that
A. No, I felt that, that a phone, that phone conversation was a, was a pretty
strange conversation and that it had, it had several layers of meanings to it.
Ah, and yet if there comes a point in time where, ah, I get on the wrong side
of, ah, the department, or I get on the wrong side of the Attorney General's
office, that my life would be made difficult.
Finally, Mr. Coughlin testified that despite all that has occurred he intends
to testify as an expert witness on the claimant's behalf at the time of the
bifurcated trial upon the liability issue.
In sum, Mr. Coughlin testified that he knew Anthony Annucci well and that the
two men had a good relationship. Mr. Coughlin stated that Annucci related that
he was calling at the request of a high ranking member of the Attorney General's
staff, that Mr. Coughlin's acting as an expert in the Robinson trial
would create problems for the Attorney General and might require certification
of private counsel and a review of indemnification issues relative to pending
litigation involving Mr. Coughlin. Mr. Coughlin stated that he was aware that
indemnification under Public Officer's Law § 17 required the approval of
both the affected agency and the Attorney General and that he perceived Mr.
Annucci's reference to indemnification issues as a threat, not by Mr. Annucci,
but by the Office of the Attorney General at whose request Mr. Annucci had
June Duffy testified that she began working as a lawyer for the Attorney
General in 1989 and in 1996 was promoted to become one of the two bureau chiefs
of the New York City litigation office. During April of 2000, Ms. Duffy
received a telephone call from Mr. Rosas advising her that former Commissioner
Coughlin intended to testify as an expert on claimant's behalf. Ms. Duffy knew
very little of the claim other than it alleged negligence on the part of DOCS in
failing to protect claimant from an assault by another inmate. Ms. Duffy
professed concerns in the areas of confidentiality and privilege because of the
Attorney General's representation of Mr. Coughlin in pending lawsuits. Ms.
Duffy caused a computer search to be made which disclosed that the Attorney
General's office was representing Mr. Coughlin as a named defendant in 89 open
files. Ms. Duffy placed a telephone call to Mr. Annucci and she described the
content of the conversation as follows:
Q. Okay. The question had to do with your conversation with Mr. Annucci.
A. Yes. I phoned, ah, Mr. Annucci and asked him, ah, he knew that
Commissioner Coughlin was going to speak as an expert against the department in
a claims matter and to my recollection he said something like I, I think I have
heard that, ah, and I said it may raise some, ah, attorney client privilege
issues. I, I said words to the effect of I have had a print out, ah, made and
he has, you know, almost ninety cases here which we are currently representing
him. I also said words to the effect of, ah, I felt this was personal. I felt
that it was, ah, an inappropriate action on the part of Commissioner Coughlin,
perhaps a bit unseemly to attack the institution that he had worked for so
long. And I asked Tony if, I said does anyone up there still know Coughlin?
Could, could you, ah, could he be talked to to see how inappropriate this is?
And to my knowledge that was the extent of my conversation with Tony
Ms. Duffy stated that she was concerned that if Mr. Coughlin's credibility was
impeached in the course of his testimony in this claim that the Office of the
Attorney General might have to certify outside counsel to represent him in the
89 pending lawsuits. Ms. Duffy was aware that there was nothing unethical about
Mr. Coughlin testifying as an expert on claimant's behalf but wanted someone at
DOCS who still had a good relationship with him to contact him and advise him
that his testimony could create problems for the office of the Attorney General
in having to pay for outside counsel in the other 89 pending lawsuits. Her
testimony was as follows:
A. Ah, no. I asked him if he, if anyone, I think my words were does anyone up
there still know, know Coughlin. I didn't know that it would be Mr. Annucci who
would contact Mr. Coughlin.
Q. But it was your understanding that someone would contact Mr. Coughlin and
tell him that his testimony in this case could create problems in litigation
either pending or the actual case itself, am I correct?
A. Well, it could, it could present problems of representation.
Q. That you couldn't represent him anymore?
A. No. If we certify outside counsel, the Office of the Attorney General pays
for that outside counsel, so it isn't that Mr. Coughlin would be out anything.
We would, if we had to certify outside counsel, we would have to pay for the
outside counsel, but it would raise the problem of having to do the
certification. That, it was, that was a possibility.
Q. And you wanted to know if there was anyone who could speak to him about the
issues that were raised in his representation because of his testimony in this
A. The fact that he was going to testify against the institution, yes, raised
the specter as far as I was concerned.
Q. Was there anything about his testimony in this case which would be improper
in an ethical manner?
A. I felt that in terms of the ethics concerns, he probably passed, ah
everything in the statute.
Q. So that your only concern was whether or not in some litigation, in some
court, involving the State of New York, there might be a problem, am I
A. In ninety cases.
Q. In ninety cases, there might be a problem if he testified in this
Q. And you didn't want him to testify in this case because it could create a
problem for the state?
A. Well not for the state, no, for the Office – (interrupted)
Q. Well for who would it create a problem?
A. For the Office of the Attorney General.
Mr. Annucci testified that he is the Deputy Commissioner and Counsel for DOCS
and served in that capacity under former Commissioner Coughlin for approximately
five years. He received a telephone call from Ms. Duffy relating that there
might be a problem if Mr. Coughlin testified as an expert for claimant. Ms.
Duffy requested that either Mr. Annucci or Commissioner Goord reach out to Mr.
Coughlin to discuss the problems. Mr. Annucci agreed that either he or
Commissioner Goord would make the contact. At approximately 9:00 p.m. on April
28, 2000 Mr. Annucci placed a telephone call to Mr. Coughlin at his residence.
Mr. Annucci related the purpose of his call as, "I was going to ask him to
reconsider his being an expert witness, in light of these other considerations,
yes". After advising Mr. Coughlin that there was a potential conflict issue
that could arise if the former Commissioner gave expert testimony at the
Robinson trial, Mr. Annucci related that the conversation continued as
. . . I explained well, there is a conflict issue here and the conflict issue
is that, ah, if you testify as an expert witness, then the Attorney General's
Office will be obligated to vigorously cross examine you and possibly impugn
your credibility which then might create a conflict and if that conflict is
created, that potentially, that may require outside counsel in all of these
pending cases against you. And, ah, he didn't seem to think that that would be
a problem, so I tried to explain, ah, logistically, that could present problems
in managing these cases. I forget the exact phraseology I used, but I believe I
may have said words to the effect of that could present problems with settlement
and indemnification. And he continued to express annoyance that these cases
were following him. He seemed annoyed. He said something to the effect of this
is, ah, impinging my ability to earn a living in New York and, ah, continued to
express frustration and finally I said well, commissioner, I am just being the
messenger here. And he said okay, message received. And then we said
Mr. Annucci testified that at the time he made the phone call he had no idea
whether Mr. Coughlin's testimony in the Robinson case would affect
defense strategies in the other cases in which Mr. Coughlin was a defendant. He
further stated that he was not Mr. Coughlin's attorney at the time that he made
the telephone call and that he was not offering him legal advice. Mr. Annucci
testified that he made the telephone call because, "I felt that I had a moral
obligation to make him aware of these issues so that he could make a decision".
In other jurisdictions, attempting to intimidate a witness is considered
spoliation of evidence (see, United States v Van Metre, 150 F3d
339 [Fourth Circuit, 1998]; United States v Mendez-Ortiz, 810 F2d 76
[Sixth Circuit, 1986]; Shpak v Schertle, 629 A2d 763 [Court of Special
Appeals of Maryland, 1993]), and evidence of such wrongful conduct is admissible
as tending to show the spoliator's consciousness of the weakness of his or her
case (McCool v Gehret, 657 A2d 269 [Supreme Court of Delaware, 1995]).
The subjective belief of the witness is the test as to whether he or she has
been threatened (United States v Maddox, 944 F2d 1223 [Court of Appeals
Sixth Circuit, 1991]). In New York, sanctions for spoliation have, to date,
been limited to instances involving the destruction of evidence (DiDomenico v
C & S Aeromatik Supplies, 252 AD2d 41). In this case, evidence has not
been destroyed as Mr. Coughlin has stated his willingness to testify at the
future trial of this claim and the spoliation doctrine is, therefore, not
applicable to our facts.
Claimant seeks relief pursuant to CPLR 3126, the purpose of which is cogently
described in Klein v Seenauth, 180 Misc 2d 213, 217, 218, as
It is well settled that the overriding objective of CPLR article 31 is not
punitive but, rather, the liberal and full disclosure of all evidence which is
rational and necessary or relevant to the issues to be tried (see,
Miller v Duffy, 126 AD2d 527, 528). In pertinent part, CPLR 3126
provides that a court, in its discretion, may impose a variety of sanctions upon
a party who either (a) 'refuses to obey an order for disclosure' or (b)
'wilfully fails to disclose information which the court finds ought to have been
disclosed'. It has been noted that '[t]his section is not a procedure to punish
for contempt but one to insure that disclosure procedures are not
CPLR 3126 provides a remedy which is separate and distinct from the sanctioning
authority granted to the Courts by 22 NYCRR part 130 (New v Scores
Entertainment, 255 AD2d 108; Mazarakis v Bronxville Glen I
Assn., 229 AD2d 661). The penalties available under CPLR 3126 range
from striking a pleading to the lesser sanction of fining a recalcitrant
litigant or attorney. "Striking a pleading is warranted only where there is
'serious prejudice to the affected party, irremediable by less drastic steps' "
Carpenter v Browning-Ferris Indus., 262 AD2d 999, 1000). The discretion
afforded by CPLR 3126 has been used by a judge of this Court to personally fine
an assistant attorney general whose deliberate conduct caused depositions to not
go forward (Kulers v State of New York, 141 Misc 2d 1079). Here, CPLR
3126 is not applicable as this is not a situation where the defendant or one of
its agents refused to obey an order of disclosure or wilfully failed to disclose
information. Instead, the controversy before the Court does not relate to
disclosure and by its terms CPLR 3126 is not germane.
The rule which is applicable is 22 NYCRR part 130 of the Rules of the Chief
Administrator of the Courts which authorizes sanctions for frivolous conduct and
was specifically incorporated into the Uniform Rules for the Court of Claims by
the adoption of section 206.20 of the Court's Uniform Rules (see,
Faison v State of New York, 176 Misc 2d 808 (Ct. Of Claims, 1998);
Jermosen v State of New York, 178 AD2d 810; Bahamonde v State of New
York, 269 AD2d 551 (2nd Dept. 2000).
Section 130-1.1 (a) provides, in pertinent part, that:
(a) The court, in its discretion, may award to any party or attorney in any
civil action or proceeding before the court, except where prohibited by law,
costs in the form of reimbursement for actual expenses reasonably incurred and
reasonable attorney's fees, resulting from frivolous conduct as defined in this
Part. In addition to or in lieu of awarding costs, the court, in its discretion
may impose financial sanctions upon any party or attorney in a civil action or
proceeding who engages in frivolous conduct as defined in this Part, which shall
be payable as provided in section 130-1.3 of this Part.
Section 130-1.1 (b) authorizes the Court to impose a sanction against either an
attorney, a party, or both and where the sanction is against an attorney it may
be against the lawyer personally or upon the firm or government agency by whom
he or she is employed. Section 130-1.1 (c) (2) states that conduct is frivolous
if it is "undertaken primarily . . . to harass . . . another". Conduct
occurring outside of Court that is undertaken primarily to harass another is
sanctionable (Telemark Constr. v Fleetwood & Assoc., 236 AD2d 462,
463). An improper communication by counsel for the defendant with a non-party
witness may rise to the level of frivolous conduct (Preferred Equities Corp.
v Ziegelman, 190 AD2d 659). "Sanctions are also appropriate when an
attorney egregiously fails to conform to accepted notions of conduct" and the
standard for measuring an attorney's conduct is that of a "reasonable attorney"
(Principe v Assay Partners, 154 Misc 2d 702, 707, 708).
The issue remaining for resolution is whether the defendant's contact with the
claimant's expert witness on the eve of trial was a proper communication or an
improper attempt to harass the expert witness and prevent his testimony.
Defendant posits two grounds to justify the communication. The first argument
is that the Attorney General's office was obliged to communicate with Mr.
Coughlin as a result of its attorney/client relationship with him in the 89
pending cases since his expert testimony for the claimant might raise a
potential conflict of interest. The second argument is that there is nothing
improper about an attorney contacting his adversary's expert provided there is
no attempt to circumvent the vehicle for expert disclosure set forth in CPLR
Addressing the first argument, the Court agrees with defense counsel's
contention that the disciplinary rules contained in the Code of Professional
Responsibility required the Attorney General to communicate with Mr. Coughlin
concerning a potential conflict of interest. The Court disagrees with the
contention that this was such a communication. A reasonable attorney seeking to
communicate with a client concerning a potential conflict of interest has
available various legitimate means to do so. Defense counsel could have brought
the problem to the attention of the Court and it would have been addressed at a
conference. The Attorney General could have sent notice to Mr. Coughlin
requesting a conference which Mr. Coughlin could have attended with private
counsel. The actual method of communication chosen by the Attorney General in
this matter "egregiously fails to conform to accepted notions of conduct".
Furthermore, in the Court's view, the communication with Mr. Coughlin on the
eve of trial was not motivated by concerns arising out of an attorney/client
relationship, but rather was motivated solely to prevent Mr. Coughlin from
testifying on claimant's behalf. Finally, the communication was not made by Mr.
As with most litigation, the determination of the issues before the Court turns
upon the credibility of the witnesses. The Court found Mr. Coughlin to be
forthright and his testimony to be credible while the testimony of the State's
witnesses was evasive. The Court accepts Mr. Coughlin's testimony that the
telephone call on the evening of April 28, 2000 was the first time that Mr.
Annucci acted as an intermediary on behalf of the Attorney General. The Court
accepts Mr. Coughlin's testimony concerning the issue of indemnification and
rejects that of Mr. Annucci.
Defendant's contention that the communication arose out of the attorney/client
relationship is belied by the testimony of Ms. Duffy and Mr. Annucci. Ms. Duffy
testified that the purpose of the call was to prevent Mr. Coughlin from
testifying as an expert witness because that would create a problem for the
office of the Attorney General. The means utilized was to ask Mr. Annucci if
anyone at DOCS still had a sufficient relationship with Mr. Coughlin so as to
persuade him not to testify. Such an intermediary is not a part of the normal
means of communication between a reasonable attorney and his or her client. Mr.
Annucci testified that he did not communicate with Mr. Coughlin in his capacity
as an attorney but rather as a "messenger" for the Attorney General. The
purpose of the call was to persuade Mr. Coughlin not to testify and the means of
persuasion was the explicit or implied threat of a review by the Attorney
General of the indemnification available to Mr. Coughlin under Public Officer's
Law § 17 in the numerous pending cases against him. Defense counsel has
not explained to the Court how Mr. Coughlin's expert testimony on behalf of the
claimant would constitute illegal or unethical conduct. The Court finds that no
reasonable attorney would attempt to communicate with a client appearing as an
expert witness for an adversary by the means employed by Ms. Duffy and, further,
finds that the purpose of the communication was to harass Mr. Coughlin into not
giving expert testimony on behalf of the claimant.
As to the defendant's argument that it was proper for the Attorney General to
contact the claimant's expert witness without the knowledge of claimant's
counsel, the defendant relies upon Opinion Number 577 (1986) of the Committee
on Professional Ethics of the New York State Bar Association. That Opinion sets
forth that in the Committee's view a communication with an adverse party's
expert witness without the knowledge, permission, or consent of opposing counsel
does not violate Disciplinary Rule 7-014(A)(1) of the Code of Professional
Responsibility. The opinion goes on to note that:
It should be noted that New York State's Civil Practice Law and Rules §
3101[d] and Federal Rule of Civil Procedure 26[b] set forth procedures for
and govern the scope of discovery of expert witnesses. Because matters of law
are beyond the authority of this Committee, we express no opinion on the
application of these statutes and rules to ex parte communications with
an adverse party's expert witness, or whether such conduct might violate court
rules or polices relating to discovery and disclosure.
The cautionary language employed by the Committee on Professional Ethics was
prescient. In the case of Carroll v Nunez, 146 Misc 2d 422, 426, Mr.
Justice Harris pointed out that CPLR 3101 (d) sets forth the sole method by
which contact with the opposing party's expert is to take place in civil
litigation and went on to give the following warning to attorneys when expert
witness disclosure led to the identification of the opposing party's medical
...And, of course, unscrupulous persons might take advantage of this by-product
knowledge and attempt to contact the expert for the purpose of dissuading him
from testifying. However, the power of this court is not so fragile as to be
unable to prevent such unfortunate circumstance, even to the dismissal of the
offending party's probative pleading and the entry of judgment against such
party. . . . the court issues the caveat that if any information required by the
court to be furnished by any party leads any of the other parties to identify
the name of the expert retained by an opposing party, such expert shall not be
contacted with a view to intimidating him or discouraging him from
In the unreported decision and order of Mr. Justice Mugglin in the case of
Olsen v Delhi Motor Co., Sup. Ct., Delaware County, May 30, 1991, defense
counsel caused an insurance investigator to communicate with the plaintiff's
expert witness for an improper reason and without the knowledge of plaintiff's
counsel. Upon those facts, Mr. Justice Mugglin determined that it would not be
appropriate to strike the defendant's answer due to the absence of any prejudice
to the plaintiff, but that the appropriate remedy was to personally sanction
defense counsel through the imposition of a $500.00 fine pursuant 22 NYCRR Part
130. That is the course of action that will be followed here. The
communication with Mr. Coughlin instigated by Ms. Duffy was beyond the scope of
CPLR 3101 (d) and was undertaken for the improper purpose of attempting to
dissuade him from testifying. The Court finds that Ms. Duffy initiated the
contact by Mr. Annucci with Mr. Coughlin for the sole purpose of preventing his
testimony at trial. Further, the Court accepts the testimony of Mr. Annucci
that he was acting as a "messenger" for the Attorney General's Office in
contacting his friend and mentor. Finally, the Court discerns from the proof
and the totality of the circumstances that Ms. Duffy intended the ex
parte communication which she initiated to act as a threat that Mr.
Coughlin's defense and indemnification in the cases pending against him would be
imperiled should he testify as an expert against the State in the instant
The remaining issue is the sanction to be imposed. The Court attributes the
bulk of the blame to Ms. Duffy as she initiated this sad chain of events.
Accordingly, Ms. Duffy is sanctioned $500.00 and is directed to deposit that sum
with the Lawyers Fund for Client Protection within 30 days of the date of the
filing of this decision and order. With regard to Mr. Annucci, while the Court
does not condone his actions, it appears that he was only acting as a conduit in
this matter and may, to some extent, have done so out of a misguided belief that
he was helping Mr. Coughlin. More importantly, he is not a party or the counsel
of a party and is thus beyond the class of persons this Court is authorized to
sanction pursuant to 22 NYCRR 130-1.1 (a).
22 NYCRR § 130-1.1 (a) authorizes an award of "costs in the form of
reimbursement for actual expenses reasonably incurred and reasonable attorney's
fees" in addition to a financial sanction. But for the improper conduct
concerning Mr. Coughlin, claimant was prepared to go forward with her trial on
the scheduled date of May 4, 2000. Instead, her trial was delayed, her attorney
was required to conduct a hearing, research and submit a brief and pay for a
hearing transcript. In addition, her expert witness was required to appear at
the hearing and may well claim payment for that time.
Such costs and expenses, including attorney's fees are clearly recoverable
under Part 130 "except where prohibited by law." This Court is unable to make
such an award, however, in light of the prohibitive language of section 27 of
the Court of Claims Act. That section, after specifically excepting certain
statutes not applicable here, states that "costs, witnesses' fees and
disbursements shall not be taxed, nor shall counsel or attorney's fees be
allowed by the court to any party." Accordingly, the Court is precluded from
awarding costs or attorney's fees in this matter (cf Mihileas v State
of New York, 266 AD2d 866 (4th Dept. 1999); Spickerman v State of New
York, 85 AD2d 60 (3rd Dept. 1982); Taylor v State of New York, 160
Misc 2d 120).
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
Claimant has not followed up upon the request
to make a motion for civil contempt hence the Court will not address that
All quotations are from the hearing