New York State Court of Claims

New York State Court of Claims

IACAMPO v. THE STATE OF NEW YORK, #2001-009-009, Claim No. 86220, Motion No. M-62931


Synopsis


Claimants' application for permission to serve expert witness disclosure was granted.

Case Information

UID:
2001-009-009
Claimant(s):
LUCA IACAMPO and FILOMENA IACAMPO, His Wife
Claimant short name:
IACAMPO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86220
Motion number(s):
M-62931
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
EDWARD C. SCHEPP, ESQ.
Defendant's attorney:
COSTELLO, COONEY & FEARON, LLP
BY: Louis J. Viviani, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
March 6, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause, claimants have brought this motion seeking an order directing defendant to accept the expert witness disclosure previously served by claimants and rejected by defendant.

The following papers were considered by the Court in connection with this application:
Order to Show Cause, dated January 10, 2001, Affirmation, with Exhibits 1,2


Affidavit (in Opposition), with Exhibit 3

Reply Affirmation, with Exhibits 4

Having previously determined liability, this Court has scheduled the trial on the damages portion of this claim to commence on March 12, 2001.

After I rendered my decision on liability, and in an attempt to settle this claim, at the request of the parties, my esteemed colleague, Hon. Diane L. Fitzpatrick, graciously consented to conduct a settlement conference. At this conference, it was determined that disclosure of information from the economists and life care planners for each party was required before any meaningful settlement negotiations could occur. I therefore issued a scheduling order directing that claimants provide expert witness disclosure by October 15, 2000, and defendant to provide its expert witness disclosure by November 15, 2000.

While in the process of preparing and providing defendant with claimants' disclosure of their life care planner and economist, claimants' counsel advised defendant's counsel, by correspondence dated September 25, 2000, that he was also considering calling a non-treating physician to testify at trial, but that he would be unable to supply expert witness disclosure regarding this non-treating physician by October 15, 2000, the date set in my order for claimants' expert witness disclosure.

Pursuant to my scheduling order, claimants timely provided expert witness disclosure of Kenneth W. Reagles, Ph.D. (life care planner) and of Ronald R. Reiber, Ph.D. (economist). Defendant also timely provided expert witness disclosure of Mona G. Yudkoff, R.N. (life care planner), and of Saad G. Sobhy, M.D., a non-treating physician.

Defendant, however, rejected as untimely the disclosure made by claimants of their non-treating physician, Rina C. Davis, M.D., and of a non-treating nurse, Maureen P. Schmitt, R.N. The disclosure for both of these experts was made by claimants subsequent to the October 15, 2000 date set forth in my scheduling order.

Claimants' disclosure of their non-treating nurse, Maureen P. Schmitt, R.N., was made on November 30, 2000. Disclosure of their non-treating physician, Rina C. Davis, M.D., was originally made on December 22, 2000, and a revised disclosure was made on January 2, 2001.

Although disclosure of their non-treating expert physician and retained nursing expert were admittedly both made subsequent to the date provided for in my scheduling order, claimants' counsel did advise defendant's counsel, prior to said date, that he would be unable to comply with the time frame set forth in my scheduling order for these witnesses. Defendant was therefore aware that additional disclosure was forthcoming. The actual disclosure of these two potential witnesses was made approximately three months prior to the scheduled commencement of the damages trial, and therefore defendant cannot claim any prejudice or surprise as a result of claimants' failure to disclose by the October 15, 2000 deadline. Furthermore, it is clear to the Court that disclosure of these two experts was not essential for a meaningful settlement discussion before Judge Fitzpatrick.

Accordingly, it is

ORDERED, that defendant is directed to accept the expert witness disclosure made by claimants of their non-treating expert physician, Rina C. Davis, M.D., and of their retained nursing expert, Maureen P. Schmitt, R.N.


March 6, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims