New York State Court of Claims

New York State Court of Claims

SHARMA v. New York, #2000-019-514, Claim No. 90630, Motion No. M-61435


Synopsis


Claimants move for an order compelling expert witness disclosure in relation to this medical malpractice claim scheduled for trial on September 25 through 29, 2000. Motion Granted in part and Denied in part.

Case Information

UID:
2000-019-514
Claimant(s):
BHAGMATTY SHARMA and JAGAT SHARMA
Claimant short name:
SHARMA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
90630
Motion number(s):
M-61435
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DiJOSEPH, PORTEGELLO & SCHUSTER, P.C.BY: ARNOLD E. DiJOSEPH, III, ESQ., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: DIANE G. TEMKIN, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 2, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for an order compelling expert witness disclosure in relation to this medical malpractice claim scheduled for trial on September 25 through 29, 2000.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed November 23, 1994.
  2. Letter from Diane G. Temkin, AAG to the Court, dated March 14, 2000 and received March 17, 2000.
  3. Notice of Motion, dated March 27, 2000 and filed March 29, 2000.
  4. Affirmation of Arnold E. DiJoseph, III, Esq., in support of motion, dated March 27, 2000, with attached exhibits.
  5. Affirmation of Diane G. Temkin, AAG, in opposition to motion, dated April 11, 2000 and filed April 12, 2000, with attachments.
  6. Reply Affirmation of Arnold E. DiJoseph, III, Esq., in support of motion, dated April 14, 2000 and filed April 18, 2000.
  7. Sur-Reply of Diane G. Temkin, AAG, in opposition to motion, dated April 24, 2000 and filed April 27, 2000.
Claimant Bhagmatty Sharma[1] presented to the defendant State University of New York Health Science Center at Brooklyn (hereinafter "State" or "Downstate") for delivery of her first child on October 8, 1991. A cesarean section was indicated due to fetal distress. There were three unsuccessful attempts to administer Claimant anesthesia via the epidural route. Apparently, Claimant reported feeling an electric shock or tear radiating down her right leg after the third attempt. Ultimately, a second anesthesiologist successfully administered a spinal anesthesia. A healthy male infant was born. Claimant alleges she suffered partial immobility and paralyzation of her left leg due to the unsuccessful epidural attempts. The sequence of events relating solely to the discovery issues at hand is as follows:
August 6, 1998: Claimant examined by State's physician Jerome M. Block, M.D.
Dr. Block issues a "Narrative Report" on the same date and indicates a

"Supplemental Report" will be forthcoming.


March 12, 1999: State exchanges Expert Witness Disclosure per CPLR 3101 (d) (1) (i)

listing an unidentified anesthesiologist and Dr. Block.


December 30, 1999: Claimant examined by State's physician David J. Dickoff, M.D.

February 11, 2000: State exchanges Supplemental Witness Disclosure relative to Dr. Block and Dr. Dickoff.

March 14, 2000: State sends letter to Court confirming the availability of "three expert witnesses and one fact witness" for specific trial dates.



Claimant's complaints regarding the State's expert disclosure involve three separate issues, more specifically: 1) noncompliance with CPLR 3101 (d) (1) (i) regarding the qualifications and substance of testimony by both Drs. Block and Dickoff; 2) failure to provide Dr. Block's Supplemental Report pursuant to CPLR 3121; and 3) the State's March 14, 2000 letter to the Court.[2] Each of these issues will be treated separately below.


1. Expert Disclosure CPLR 3101 (d) (1) (i)

Claimant asserts the State's disclosure provides inadequate information as to the experts' qualifications and substance of their expected testimony. Claimant's primary contention is that the State should disclose what each of its experts will state is a proximate cause of Claimant's injuries or whether they will assert Claimant is a malingerer. CPLR 3101 (d) (1) (i) requires disclosure of the subject matter and the substance of the facts and opinion on which an expert is expected to testify. It is well-settled that the disclosure must not be general in nature, but specific enough to "[f]acilitate effective cross-examination and rebuttal testimony [citations omitted]." (Chapman v State of New York, 189 AD2d 1075, appeal after remand 227 AD2d 867, 868). The State does not substantively address this point in its opposing papers other than asserting in conclusory fashion its response was in compliance with the CPLR and disputing Claimant's representation "that this case hinges on the issue of proximate cause." A review of the State's disclosure reveals its experts merely represented they would testify that the "failed epidurals were not the cause". This Court finds it is within the realm of CPLR 3101 (d) (1) (i) for these experts to divulge the substance of the particular theory they will testify to and not merely, in conclusory fashion, what causes they are expected to exclude. (Hines v RAP Realty Corp., 254 AD2d 330, 331, lv denied 93 NY2d 812; Curatola v Staten Is. Med. Group, 243 AD2d 673). The State is directed to submit a supplemental discovery response in accordance herewith on or before July 1, 2000.


Additionally, regarding the qualifications of the unidentified anesthesiologist the State previously disclosed the following:
[d]uly licensed to practice medicine in the State of New York who is a Diplomate of the American Board of Anesthesiology and a Diplomate of the American Board of Pain Medicine, and who is Vice Chairman of Anesthesiology and attending-in-charge of the Pain Service in a major metropolitan area medical center and holds an academic appointment in a major metropolitan area medical center.

(Defendant's Expert Witness Disclosure dated March 12, 1999). In this Court's view, Claimant is entitled to know the medical school attended, but not any other information such as associated dates and names of current hospital affiliations since that might tend to reveal the expert's identification. (Jasopersaud v Tao Gyoun Rho, 169 AD2d 184). The State is directed to submit a supplemental discovery response in accordance herewith on or before July 1, 2000.[3]


2. Production of Medical Reports CPLR 3121

The next point of contention is Dr. Block's "Supplemental Report". The parties agree that the law does not require the production of reports if an expert did not physically examine a litigant. (Edelman v Holmes Private Ambulances, 32 AD2d 563). Here, the State contends that Dr. Block's initial physical exam and the resulting "Narrative Report" should be viewed as separate and distinct from any subsequent review by Dr. Block of the Claimant's medical records and his "Supplemental Report". However, in the Court's view, the State's position is an attempt to create a fictional separation between these two reports that may not exist. Dr. Block's own "Narrative Report" envisioned the anticipated Supplemental Report as a continuation of his initial report rather than a separate and distinct report given his reference that "this [supplemental] report will also contain my final opinion and prognosis." To expect Dr. Block's subsequent report to ignore his prior physical examination of Claimant seems unrealistic. Nevertheless, allowing for the possibility that the "Supplemental Report" could be based purely on a record review, the Court will direct the State to produce forthwith Dr. Block's Supplemental Report to the Court for an in camera inspection to ascertain whether it goes beyond a mere record review and relies upon, to even the smallest degree, the doctor's physical examination of Claimant.


3. March 14, 2000 letter

Claimant argues the State's reference to a fact witness in its March 14, 2000 letter addressed to the Court is a surprise. The State counters that Claimant has long known its fact witness is Dr. Roger Kula, Claimant's own treating physician. In reply, Claimant demands Dr. Kula's address "[i]n order for claimants to be able to speak with Dr. Kula or subpoena him for a non-party witness deposition if we are so inclined." (emphasis added). The Court cannot determine from this record whether Dr. Kula's name and address were previously disclosed, but in the event the address has not yet been provided the State is directed to do so forthwith.


Finally, it is not lost on the Court that this case has been scheduled for trial numerous times with each date being adjourned and has been the subject of countless discovery motions in which the conduct of counsel on both sides has been the subject of repeated comments by the court.[4] This motion was no different. Suffice it to say, that there must be a point at which the endless delays and motions and name-calling between counsel must cease and this matter be tried. Accordingly, at this stage the Court will not consider Claimant's request for sanctions against the State. This matter has been scheduled for a September 2000 trial and nothing short of dire circumstances will adjourn the trial again; certainly not claims of critical discovery not yet being complete from either party.


In view of the foregoing, Claimant's motion to compel, Motion No. M-61435, is DENIED IN PART and GRANTED IN PART as indicated above.

May 2, 2000
Binghamton, New York

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




[1]"Claimant" refers solely to Bhagmatty Sharma since the claim of Jagat Sharma is derivative in nature.
[2]The State's argument that this motion should be dismissed due to Claimant's failure to provide an affirmation of good faith is without merit in light of the numerous telephone conferences held between counsel and the Court to resolve discovery problems.
[3]The State's opposing papers contain further qualifications for Drs. Block and Dickoff to which Claimant has not raised any objection.
[4]There have been several assistant attorney generals representing the State throughout the course of this litigation.