3, 4, 5, 6, 7, 8 Filed Papers: Claim, Answer, Decision and Order in Motion No.
M-64605, Supplemental Order in Motion No. M-64605, Decision and Order in Motion
No. M-64868, Order in Motion No. M-65008
Upon the foregoing papers, this motion is denied in all respects, except to the
This is Claimant's motion for reargument and reconsideration of Motion Nos.
M-64868, M-64605 and M-65008. First, I will recite the sum and substance of
each of these prior motions.
Motion No. M-64605 was the Defendant's motion for an order to compel or
preclude responses with respect to certain disclosure demands. The Decision and
Order therein was filed on March 26, 2002, and on May 3, 2002, I filed a sua
sponte Supplemental Order, both of which may be characterized as conditional
orders of preclusion. Those orders speak for themselves.
Motion No. M-65008 was brought by Claimant seeking reconsideration of the
original order in Motion No. M-64605, noted above. In an order filed on April
29, 2002, I denied that motion. Since there has previously been a motion for
reconsideration of Motion No. M-64605 in Motion No. M-65008, which I denied, and
no new or compelling arguments are raised at Claimant's third bite at the apple,
I decline to review those orders yet again. The instant motion is denied with
respect to those decisions and orders.
By letter from chambers dated April 12, 2002, the trial which had been
rescheduled for June 18, 2002, was adjourned sine die to examine the
instant motion. Some of the confusion relating to this claim is discussed in my
decision and order in Motion No. M-65153, filed contemporaneously with this
motion, wherein I have restored Claim No. 102408 to the calendar. Relevant
circumstances discussing the confusion about filed pleadings and papers in that
claim are recited therein.
Motion No. M-64868 was Claimant's motion for the attendance of witnesses and
the production of documents for the trial of this claim; the decision and order
was filed on May 3, 2002. With respect to Motion No. M-64868, Claimant seeks to
have me revisit the determination not to require the appearance of ‘DSP'
Ronald F. Nelson, Sergeant LeOuteourneau, as well as Correction Officers Manser
and Volpe, and has attempted to distinguish intentional harassment from the
intentional infliction of emotional distress, asserting that emotional distress
may or may not be the result of harassment. However, he is not persuasive in
demonstrating the relevance of such prospective testimony to a cause of action
sounding in the intentional infliction of emotional harm (De Lesline v State
of New York, 91 AD2d 785, lv denied 58 NY2d 610, and Wheeler v
State of New York, 104 AD2d 496), regardless of his unsuccessful attempt to
distinguish the cause of action. I adhere to my prior ruling with respect to
I similarly adhere to my prior ruling with respect to Captain Gummerson,
Sergeant Murphy, Correction Officer (CO) G. Small, CO J. Fasce, "SCC" Robert
Butera, CO Robert Mitchell, R.N. George Ray, or R.N. Annie and all other
individuals addressed in the decision and order in M-64868, except as specified
With respect to R.N. Finch and P.A. R. Laux, I adhere to my earlier decision,
declining to permit their testimony for the reasons that follow, in addition to
the speculative and redundant nature of their prospective testimonies, as well
as the failure to describe the nature of the desired expert opinions. The
relevant factual aspects of their purported testimony is readily available in
the Claimant's medical records. With respect to Dr. Graceffo, the treating
physician at Auburn Correctional Facility (Auburn), Nurse Administrator Coyne,
and all these other medically-related employees at Auburn, Claimant urges his
entitlement to attempt to elicit their expert opinions, relying upon the
decision of Presiding Judge Susan Phillips Read (Loucks v The State of New
York, June 4, 2001, UID No. 2001-001-517
[www.nyscourtofclaims.state.ny.us]). That case can be said to hold for the
proposition that a treating physician who voluntarily testifies (to wit, not
under subpoena) is permitted to proffer expert opinions, as CPLR 3101(d) applies
to retained experts.
When a claimant seeks witnesses for the purpose of obtaining expert medical
testimony, it has been held that "A professional under subpoena may testify as a
fact witness but cannot be compelled to give testimony as an expert (58A NY Jur
2d, Evidence & Witnesses, § 752)" Madison v The State of New
York, Sise, J., February 23, 2001, UID No. 2001-028-0519
(www.nyscourtofclaims.state.ny.us). Claimant's request here is the functional
equivalent of seeking a subpoena to compel the testimony of the named medical
personnel employed by the Defendant at Auburn for the articulated purpose of
obtaining expert medical testimony.
Judge Philip J. Patti, in Cadiz v The State of New York, Patti, J.,
April 29, 2002, UID No. 2002-013-512, (www.nyscourtofclaims.state.ny.us),
examining the general rule in New York that an expert witness cannot be
compelled to give opinion testimony, noted that where the treating physicians
were defendants in a medical malpractice action, the Court of Appeals has held
that the patient plaintiff could examine them "as freely and fully as he could
any other qualified witness" citing McDermott v Manhattan Eye, Ear &
Throat Hosp. (15 NY2d 20). He observed further that physicians who are
employed by the malpractice defendant physicians have also been required to
provide expert opinion testimony (Hardter v Semel, 197 AD2d 846; Glass
v Rochester Gen. Hosp., 74 AD2d 732). Of course in Cadiz,
supra, the McDermott holding did not apply because compliance with
appropriate medical standards was not at issue in that trial, as the expert
testimony sought related to an entirely different element, causation.
Given the specific circumstances and allegations here, I have decided to permit
the testimony of Dr. Graceffo and N.A. Coyne, allowing that Claimant may seek to
elicit opinion testimony (McDermott v Manhattan Eye, Ear & Throat
Hosp., supra; cf., Cadiz v State of New York,
supra). Accordingly, the Defendant shall arrange, without the necessity
of subpoena, for the appearances of Dr. Graceffo and N.A. Coyne, if they remain
employed by the State of New York, at the rescheduled trial of this claim.
With respect to the documents which Claimant has sought, Claimant argues as to
their relevance. I similarly reiterate my prior determination. I note however
that this does not preclude Claimant from attempting at trial to offer into
evidence those documents currently in his possession through discovery or
otherwise, as I simply decline requiring the Defendant to produce at the trial
those documents as sought in the original motion.
Accordingly, upon reconsideration of my prior orders herein, I adhere to my
earlier decisions, including those directions to the Defendant to have copies of
specified documents available at trial, except as noted above for Dr. Graceffo
and N.A. Coyne.
The motion is hereby denied in all respects except to the extent noted.