New York State Court of Claims

New York State Court of Claims

BLAKE v. New York, #2000-019-501, Claim No. 85065, Motion No. M-61001


Synopsis


This is a motion brought by a pro se inmate seeking the Court's assistance in the issuance of subpoenas in preparation for the damages phase of this matter. Motion granted, but claimant was cautioned about the difference between fact and expert witnesses.

Case Information

UID:
2000-019-501
Claimant(s):
WILLIAM BLAKE, JR.
Claimant short name:
BLAKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
85065
Motion number(s):
M-61001
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
WILLIAM BLAKE, JR., PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: MICHELE M. WALLS, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
March 1, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is a motion submitted by Claimant, an inmate proceeding pro se, seeking the Court's assistance in the issuance of subpoenas in preparation for the damages phase of this matter.


The Court considered the following papers in connection with this motion:
  1. Claim, filed March 23, 1992.
  2. Verified Reply to Combined Demands, filed May 11, 1992.
  1. MEMORANDUM DECISION, Ct Cl., December 19, 1997, Patti, J., Claim No. 85065.
  2. DECISION AND ORDER, Ct Cl., April 1, 1998, Patti J., Claim No. 85065, Motion No. M-57074.
  3. Notice of Motion No. M-61001, dated January 3, 2000 and filed January 6, 2000.
  4. Affidavit of William Blake, Jr., in support of motion, sworn to January 3, 2000, with attached exhibits.
  5. Affidavit of Michele M. Walls, AAG, in opposition to motion, sworn to January 10, 2000 and filed January 13, 2000, with attached exhibit.
  6. Affidavit in Reply of William Blake, Jr., in support of motion, sworn to January 18, 2000 and filed January 21, 2000.

In a Memorandum Decision filed December 19, 1997, the Hon. Philip J. Patti found the State of New York (hereinafter "State") fully liable for Claimant's injuries suffered as the result of an assault by a fellow inmate that occurred at the Shawangunk Correctional Facility (hereinafter "Facility") on February 19, 1991. An Interlocutory Judgment was entered in the Office of the Clerk on December 26, 1997.[1] A damages trial previously scheduled for April 3, 1998 before Judge Patti was adjourned. Upon transfer to this Court, the parties were advised a damages trial would be held during this Court's prisoner pro se spring/summer 2000 term. Claimant files this instant motion seeking various subpoenas in preparation for the damages trial. The State submits opposing papers which do not substantively contest Claimant's motion, but rather raise certain procedural objections.


As an overview, Claimant requests this Court approve and issue subpoenas for the production of certain witnesses and documents at the damages trial as follows:

1. Certified medical records from St. Luke's Hospital in Newburgh, New York relating to Claimant's February 19, 1991 treatment.

2. Certified records of Claimant's State Office of Mental Health's file including any notes, reports or records prepared by Edward Rudder.

3. Subpoena ad testificandum for Christine E. Jelalian, M.D.

4. Subpoenas ad testificandum and duces tecum for State Department of Correction employees including:

a). Edward Rudder-Special Housing Unit Psychologist

b). Vivian Blades-Facility nurse

c). Cathy Vacca-Facility nurse administrator.

5. Certified medical records from State Department of Correction relative to Claimant's medical treatment at the Facility in relation to the February 19, 1991 incident.



Claimant also requests that the Court prepare these subpoenas, advise him of the applicable witness fees, and approve service of these subpoenas by certified mail, return receipt requested. Initially, it is important to note that Claimant filed a similar motion in anticipation of the previously scheduled damages trial which resulted in a Decision and Order filed April 1, 1998 by the Hon. Philip J. Patti.[2]

This Court will first consider those items previously addressed in the Decision and Order of the Hon. Philip J. Patti filed April 1, 1998 which are again requested in the instant motion, namely: 1) the production of three State employees (Dr. Rudder, Nurse Blades and Nurse Admin. Vacca); 2) the production of certified copies of Claimant's prison medical records; and 3) the production of certified copies of "any notes, reports or records" maintained by the State Office of Mental Health and/or prepared by Dr. Rudder in connection with this incident. These matters were fully litigated and addressed in the prior Decision and Order and, as such, are the law of this case. Consequently, Judge Patti's Decision and Order will simply be amended to reflect the new date of the damages trial as set below.[3] The only two areas of this motion which need to be discussed in any depth are Claimant's requests for a subpoena duces tecum to obtain his certified medical records from St. Luke's Hospital and a subpoena ad testificandum for Christine E. Jelalian, M.D.


St. Luke's Hospital records

Claimant moves for the issuance of a subpoena duces tecum directing St. Luke's Hospital in Newburgh, New York to produce certified copies of his medical records pertaining to his treatment on February 19, 1991.[4] Claimant is attempting to comply with the evidentiary requirement that only certified copies of medical records are to be admitted into evidence upon the issuance of a court ordered subpoena. (CPLR 4518[c] & 2302[b]). Claimant avers despite several attempts to obtain certified copies of his medical records from St. Luke's, he has yet to receive a response. The Court is not optimistic about St. Luke's response rate to Claimant's request without a subpoena. Both Claimant and the State have non-certified copies of the St. Luke's Hospital records consisting of eight pages. In fact, with respect to these eight pages, the State avers it "[d]oes not object to the foundation of these exhibits should these be the only medical records which he [Claimant] seeks to introduce at trial from both Dr. Jelalian and St. Luke's Hospital." (Affidavit in Opposition, ¶ 10). Despite the apparent willingness of the State to stipulate to the introduction of these records, in this Court's view it is the better practice to grant Claimant's request for a subpoena duces tecum compelling St. Luke's Hospital in Newburgh, New York to produce certified copies of Claimant's medical records pertaining to his treatment on February 19, 1991.



Christine E. Jelalian, M.D.

Claimant also requests a subpoena ad testificandum compelling the appearance and testimony of Christine E. Jelalian, M.D., the plastic surgeon who surgically repaired Claimant's lacerations on the date of the accident at St. Luke's Hospital. A review of the record reveals only a one page surgical report by Dr. Jelalian, but no other reports or notes indicating that Dr. Jelalian ever subsequently treated or examined Claimant. Claimant avers "Dr. Jelalian's testimony is important because she can testify things [sic] regarding my injuries that are not in the medical records, like the effects of the nerve damage I suffered." (Affidavit in Support, ¶ 5). By way of comparison, in an earlier discovery response Claimant stated: "[s]he is the plastic surgeon who repaired the artery, vein and nerve that had been damaged in claimant. She also closed five of the lacerations that claimant received. She will be asked to testify as to the medical work that she did on claimant and to the degree of the injuries that claimant suffered." (Verified Reply to Combined Demands, filed May 11, 1992, ¶ 3). It is unclear whether Claimant intends to question Dr. Jelalian as a fact witness or an expert witness or, for that matter, whether he understands the legal difference between the two. In other words, the current representation that Dr. Jelalian will testify to the "effects" (e.g. prognosis) of Claimant's injuries sounds like an intent to use Dr. Jelalian as an expert witness, whereas the prior representation that she will testify to "medical work" performed is more akin to calling Dr. Jelalian to testify as a fact witness.


Although the Court will grant Claimant's motion for a subpoena ad testificandum for Dr. Jelalian, Claimant should be forewarned about the scope of such a subpoena and the differences between an expert witness and a fact witness. Claimant should understand that an "[e]xpert witness can be subpoenaed to testify to facts within [her] knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require employment of the expert's expertise, education, judgment or opinion in the expert's particular field of expertise." (58 NY Jur 2d, Evidence & Witnesses, § 754; emphasis added). As such, the subpoena the Court is approving herein will serve only to compel Dr. Jelalian's appearance at trial and require her to testify as a fact witness. In other words, this subpoena does not require Dr. Jelalian to provide by way of testimony her opinion as to Claimant's prognosis and the "effects of the nerve damage". If Claimant hopes to elicit such expert opinion from Dr. Jelalian then he needs to make such arrangements with the witness before trial including negotiating an expert witness fee. While this Court is cognizant of any physician's concern for becoming an unwilling expert witness, case law indicates that the line between a fact witness and an expert witness cannot be determined until trial when the witness appears and the questions are evaluated. (Matter of Atkinson, 103 AD2d 960; Waters v East Nassau Med. Group, 92 AD2d 893). As such, the Court must approve this subpoena and leave for trial a determination as to any objections regarding the substance of the questions posed.


Procedurally, Dr. Jelalian may be subpoenaed "in such manner as the Court directs" pursuant to CPLR 308(5). The phrase "if service is impracticable" has been applied to the situation faced by an incarcerated individual seeking to effect service upon a natural person. (Matter of Davis v Coughlin, 96 AD2d 682; 86 NY Jur 2d, Process & Papers, § 59). In this Court's view, service by certified mail, return receipt requested is appropriate. Assuming Dr. Jelalian's appearance is solely as a fact witness, she would have to be tendered a $15.00 appearance fee for a day's attendance at trial either with the subpoena or sometime prior to her appearance at trial, plus she would be entitled to 23 cents per mile each way from the place of service to the place of trial, not 8 cents per mile as set forth by Claimant. (CPLR 8001[a]). Claimant asked for assistance for the applicable mileage. The distance from Newburgh (the place of Dr. Jelalian's office) to the Sullivan Correctional Facility located in Fallsburg, New York is 53 miles one-way and 106 miles round-trip meaning the cost for mileage is $24.38.


With respect to the preparation of the subpoenas for both St. Luke's Hospital and Dr. Jelalian, Claimant should prepare the subpoenas himself and submit them to chambers for approval and signature by the Court.[5] If acceptable, the Court will sign the subpoenas and return them to Claimant who may then serve them by certified mail, return receipt requested. The subpoena for Christine E. Jelalian, M.D. should be mailed (certified mail, return receipt requested) to her office located at 425 Robinson Avenue, Newburgh, New York 12550, together with a check for $39.48 representing the $15.00 witness fee and $24.38 for round-trip mileage between Newburgh and Fallsburg.


Finally, the parties are advised that this matter has been scheduled for a damages trial on May 9, 2000 at the Sullivan Correctional Facility located in Fallsburg, New York. The parties will receive further correspondence from the Court with respect to the trial schedule and preparations.

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-61001, is GRANTED as follows:


1) the Decision & Order of the Hon. Philip J. Patti filed April 1, 1998 is hereby amended to read as follows:

ORDERED, that the New York State Office of Mental Health shall

release any notes, reports or records prepared by Edward Rudder and maintained

by the Office of Mental Health, and the Defendant shall produce certified

copies of those records at the damages trial of this matter at the Sullivan

Correctional Facility on May 9, 2000 or at any adjourned date thereof; and

it is further


ORDERED, that Defendant shall produce certified copies of Claimant's

medical records maintained by Department of Correctional Services relating to the incident of February 19, 1991, and any subsequent treatment relating thereto at the damages trial of this matter at the Sullivan Correctional Facility on May 9, 2000,

or at any adjourned date thereof; and it is further


ORDERED, that Defendant shall have Edward Rudder, Vivian Blades,

and Cathy Vacca present at the damages trial of this matter at the Sullivan

Correctional Facility on May 9, 2000, or at any adjourned date thereof to

testify on Claimant's behalf; and it is further



2) ORDERED the Claimant's motion for a subpoena duces tecum for St. Luke's Hospital to produce certified medical records relative to Claimant's February 19, 1991 treatment is GRANTED; and it is further


3) ORDERED that the Claimant's motion for a subpoena ad testificandum for Christine E. Jelalian, M.D. to appear at trial is GRANTED.


March 1, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]The Memorandum Decision was affirmed on appeal. (Blake v State of New York, 259 AD2d 878).
[2]Blake v The State of New York, Ct Cl., April 1, 1998, Patti, J., Claim No. 85065, Motion No. M-57074. There is nothing in this record indicating that said Decision & Order was appealed.
[3]The Court notes that the State agreed to produce these witnesses without the need for a subpoena in connection with the prior motion and as outlined in Judge Patti's Decision & Order, but now indicates that subpoenas are required. This Court will hold the State to its earlier representation that these witnesses and documents will be produced without subpoenas.
[4]Claimant technically requested that a subpoena ad testificandum be issued to Lawrence Kelly, St. Luke's CEO and Director. A subpoena to the CEO/Director is not required to obtain certified medical records, a subpoena duces tecum to the institution itself is sufficient.
[5]Claimant questions whether a special form is required for a subpoena in the Court of Claims; no such special subpoena exists and Claimant may use the general form subpoena found in any form book and insert the proper caption and information.