New York State Court of Claims

New York State Court of Claims

FITCH v. THE STATE OF NEW YORK, #2003-030-514, Claim No. 94481, Motion Nos. M-66034, M-66054


Synopsis


Discovery motion on damages portion of claim asserting causally related multiple sclerosis. Claimant's motion to reargue granted. Defendant has not established special circumstances to warrant non-party deposition of claimant's treating neurologist and disclosed expert. Special circumstances established with respect to other non-party treating neurologist, with protective order limiting scope of deposition. Defendant's Motion to Deem Items Noticed admitted denied. Claimant's motion to vacate Notice to Admit denied

Case Information

UID:
2003-030-514
Claimant(s):
ANDREA J. FITCH and WILLIAM D. FITCH
Claimant short name:
FITCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94481
Motion number(s):
M-66034, M-66054
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
FINZ & FINZ, P.C.By: JAY FEIGENBAUM, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: NANCY HORNSTEIN, ASSISTANT ATTORNEY GENERAL AND PAUL F. CAGINO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 4, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers numbered 1 to 14 were read on Claimant's[1] motion, brought pursuant to §2221 Civil Practice Law and Rules, to reargue and or renew this Court's prior Orders dated August 5, 2002 and October 24, 2002 allowing the nonparty deposition of Dr. Brij Singh Ahluwalia and Dr. James R. Miller; and upon granting reargument and/or renewal granting Claimant's motion for a protective Order with regard to such disclosure; Claimant's motion for an Order vacating a Notice to Admit served on Claimant by Defendant and for a protective Order; and Defendant's motion pursuant to §3126 Civil Practice Law and Rules for an Order deeming the items noted in Defendant's Notice to Admit, admitted:
1,2,3 Notice of Motion to Reargue/Renew/Vacate; Affirmation in Support of Motion by Jay L. Feigenbaum, Esq., Counsel for Claimant, dated November 6, 2002, and accompanying exhibits; Memorandum of Law.

  1. Affirmation in Opposition of Nancy Hornstein, Assistant Attorney General, dated November 25, 2002, and accompanying exhibits
  1. Reply Affirmation of Jay L. Feigenbaum, Esq., dated December 4, 2002.
6,7 Notice of Motion; Affirmation by Paul F. Cagino, Assistant Attorney General dated November 12, 2002 and accompanying exhibits

  1. Affirmation in Opposition by Jay L. Feigenbaum, dated November 25, 2002
9,10 Filed Papers: Claim, Answer

11-14 Filed Papers: Decision and Order, M-64806, filed April 17, 2002; Order filed August 16, 2002; Order filed November 6, 2002; Order filed November 6, 2002.

After carefully considering the papers submitted and the applicable law the applications are disposed of as follows:
Motion to Reargue/Renew and for Protective Order
"A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided...(citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application." Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979). With respect to renewal, the general rule is that such a motion is based upon newly discovered evidence not available at the time of the prior motion through the exercise of due diligence. O'Donnell v Arrow Electronics, 294 AD2d 582 (2d Dept 2002); Cannistra v Gibbons, 224 AD2d 570 (2d Dept 1996). The movant must proffer a reasonable excuse for any failure to have offered the evidence in the first instance. Id. Because the prior rulings were based upon informal and thus less complete presentations by Counsel, the Court hereby grants reargument and finds as follows:

Disclosure from a nonparty is available only upon a showing of "special circumstances." §3101(a)(4) Civil Practice Law and Rules provides in pertinent part: "...There shall be full disclosure of all matter material and necessary in the prosecution or defense of any action, regardless of the burden of proof, by:....any other person [i.e.: a nonparty], upon notice stating the circumstances or reasons such disclosure is sought or required." As interpreted in the Second Department, that provision still requires that "special circumstances" be shown; perhaps not as rigorously defined as prior to the 1984 amendment to the statute, but shown nonetheless.

Thus, in DioGuardi v St. John's Riverside Hospital, 144 AD2d 333, 334 (2d Dept 1988), the Court said: "...The existence of such ‘special circumstances' may be shown by establishing that the information sought to be discovered cannot be obtained from other sources...(citation omitted) [and] is not established...merely upon a showing that the information sought might be relevant.....(citation omitted)." The court found that the trial court had not abused its discretion in denying defendant an opportunity to depose "...one of several physicians who treated the plaintiff for the injuries allegedly caused by the defendant's malpractice...", given defendant's failure to show the information was not available from another source, i.e., hospital records; and defendant's assertion, made without any foundation, that the physician in question had "advised the plaintiff to lie about the origin of his injury...." Id. See, also, Lanzello v Lakritz, 287 AD2d 601 (2d Dept 2001).[2]

It is axiomatic that determination of what special circumstances there are in a particular case is within the trial court's discretion. Given the breadth of Second Department rulings on what constitutes the appropriate special circumstances, however, the trial court proceeds at its peril. Sometimes records or documents alone are deemed enough, and further nonparty disclosure is unwarranted. See, e.g., Murphy v MacArthur Holding B. Inc., 269 AD2d 507 (2d Dept 2000); Ferrer v Horvath, 143 AD2d 627 (2d Dept 1988); Pantaleo v Sacca, 64 AD2d 696 (2d Dept 1978). At other times, a deposition is called for, [See, e.g., Bostrom v William Penn Life Insurance Company of New York, 285 AD2d 482 (2d Dept 2001); Frybergh v Kouffman, 119 AD2d 541 (2d Dept 1986); Wiseman v American Motors Sales Corp., 103 AD2d 230 (2d Dept 1984); Heitzman v Abrahamson, 97 AD2d 811 (2d Dept 1983); Prema v Maleszka, 95 AD2d 850 (2d Dept 1983); Gersten v New York Hospital, 81 AD2d 632 (2d Dept 1981)]; although its scope may be limited. Abbadessa v Sprint, ___AD2d___, 736 NYS2d 881 (2d Dept 2002).

In an Order filed August 16, 2002, the Court had determined, based upon the information then presented, that special circumstances warranted the nonparty deposition of Dr. Brij Singh Ahluwalia (hereafter Dr. Singh) - Claimant's treating neurologist and, according to counsel, an expert witness to be called at trial - and Dr. James R. Miller, another neurologist who saw claimant shortly after the accident of January 20, 1996 which is the subject of this claim. In truth, a broader determination of special circumstances dates back to April 1, 2002, when this Court granted Claimant's application to quash certain nonparty deposition subpoenas directed to Drs. Rametta, Hui and Gulati because they were inadequately drafted but nonetheless found that there were special circumstances warranting the deposition of these nonparty physicians. That finding was based, in part, upon Claimant's very limited recall of treatment she received before and after the accident as shown in deposition testimony furnished earlier, the claim of causally related multiple sclerosis - a disease of uncertain etiology that can be suggested in a multitude of symptoms over a period of time - the occurrence of an earlier automobile accident in either 1988 or 1993, and the illegibility of what records were furnished.

In the Court's subsequent Order, filed August 16, 2002, the Court incorporated the reasoning of its April 1, 2002 determination by reference, finding that - based upon the information presented by Claimant and Defendant at the time - deposition of Dr. James Miller, a neurologist consulted for a second opinion by Claimant who will not be called at trial by Claimant, was warranted, as was the deposition of Dr. Singh.

In the present application, Counsel for Claimant did not include the underlying letters by Counsel the Court reviewed prior to issuing the Order of August 16, 2002. The Court has nonetheless reviewed its own file to find that in the letter submission by Counsel for Claimant at the time, dated July 30, 2002, Counsel for Claimant did not include case law pertinent to the specific request to depose Dr. Miller, and argued that a letter in which Dr. Miller stated he could not find his records concerning his physical examination of the Claimant - that in this Court's view invited more pertinent questions than it answered - together with the letter report Dr. Miller had furnished to the referring physician on June 1, 1996, should alone suffice as discoverable material. Apparently, Dr. Miller has since found some of his notes and provided them to the parties: a fact Counsel for Claimant and the Assistant Attorney General concede, but never revealed until now to the Court.

Defendant maintains that the production of some of the physician's underlying notes does not negate the Court's prior determination that special circumstances - namely the lack of any underlying basis for Dr. Miller's report in the form of his records, his acknowledgment that her case was "peculiar", and Claimant's lack of recall of most details of visits to this and other physicians, among other things - still obtain. Further, Defendant argues that one kind of special circumstance found in other cases has been the loss of physical evidence, and an inability to obtain the information sought by other means. See, e.g., Brooklyn Floor Maintenance Co. v Providence Washington Ins. Co., 296 AD2d 520, 745 NYS2d 208 (2d Dept 2002).

The fact that nothing but this one letter report directed to the Claimant's referring physician then survived of Dr. Miller's examination of Claimant, certainly constituted a component of the Court's earlier ruling allowing his deposition. The Court agrees that production of only some of the underlying notes weighs toward granting the nonparty deposition of Dr. Miller, as Defendant argues, in order to elucidate the basis for the conclusions in his report. Bostrom v William Penn Life Insurance Company of New York, supra.[3] Claimant's limited recall of medical treatment before and after the accident, the fact of a prior accident or accidents, and the unusual and uncertain nature of the disease claimed as being causally related to the accident at issue, were also important components of the Court's earlier finding. Although, as Claimant argues, obtaining a history from a patient is not unusual or extraordinary [See, Claimant's Memorandum of Law, Page 7], there are times when what questions were asked to obtain a patient's history may indeed provide evidence that is material and necessary to the defense of a particular lawsuit. See, e.g., Heitzman v Abrahamson, supra.[4] Here, the report of Dr. Miller has been provided, but only some of the underlying notes, despite the fact that a physical examination was apparently conducted and presumably some tests were given. This loss of underlying information concerning Dr. Miller's examination of Claimant coupled with the other factors already mentioned constitutes special circumstances warranting the nonparty deposition of Dr. Miller.

This Court agrees with Claimants, however, that such inquiry should be limited to the neurologist's examination and findings leading to his diagnosis, as well as what information Claimant may have provided in order to inform that diagnosis, but his opinions concerning any causal connection between trauma and the onset or exacerbation of multiple sclerosis may not be sought, indeed, they appear to be set out in his report in any event. On reconsideration, this admittedly interesting information is not within the appropriate scope of a nonparty deposition of Dr. Miller, [Brooklyn Floor Maintenance Co. v Providence Washington Insur. Co., supra, 296 AD2d 520, 745 NYS2d at 210[5]], and Claimant's application for a protective order with regard to the scope of inquiry is hereby granted.

With respect to Dr. Singh, slightly different considerations apply. Dr. Singh is not only Claimant's treating neurologist, but has been designated as one of her experts. §3101(d) Civil Practice Law and Rules. Such designation occurred by a writing dated December 4, 2001. [Defendant's Affirmation in Opposition, Exhibit "E"].

In Spano v Geller, 145 AD2d 623 (2d Dept 1988), the Second Department vacated a nonparty deposition subpoena directed to the plaintiff's treating physician in a medical malpractice case stating: "...[The doctor] became the plaintiff's treating physician after she came to him suffering from an extreme case of Cushing's disease, allegedly caused by the defendant's improper prescription of a certain cortisone drug. Since...[the doctor] is expected to testify at trial as the plaintiff's expert, and has submitted a comprehensive medical report which, together with other medical information has been freely exchanged by the plaintiff, the pretrial deposition sought by the appellants must be deemed unnecessary and coercive." See, also, Anderson v Kamalian, 231 AD2d 659 (2d Dept 1996).

Additionally, it has been found that the "novelty of the opinion expressed in...[an] expert disclosure notice,...[and] the claimed flaws underlying the expert's opinion [do not] rise to the level of special circumstances...(citations omitted)" warranting a pretrial deposition of a party's expert. Padro v Pfizer, Inc., 269 AD2d 129 (1st Dept 2000).

More compellingly on point is the situation described in Hallahan v Ashland Chemical Company, 237 AD2d 697 (3d Dept 1997), involving a products liability action against the company providing chemicals and machinery to the facility where plaintiff worked. Plaintiff alleged that his leukemia was caused by workplace exposure to chemicals. Defendants sought deposition of plaintiff's identified expert physician, whose opinion that plaintiff's illness was causally related to exposure to chemicals had been disclosed in the expert notice. Defendants argued that the deposition of the expert physician was warranted because he had changed his diagnosis of the particular type of leukemia suffered by plaintiff during the course of treatment, yet continued to opine that the cause was still workplace exposure to chemicals. Defendants stated that the physician must be examined "...to establish his factual basis, objective findings or studies or any other medical or scientific information he observed in the course of examining and treating plaintiff...that suggests a link between the identified chemicals and...[the leukemia];" and to also determine whether a Frye hearing [See, Frye v United States, 293 F 1013], might be called for given the novelty of his opinion. Hallahan v Ashland Chemical Company, supra, at 698. The Court said that defendants had all they needed given their access to the physician's medical records with regard to his treatment of the plaintiff, and that the issue of the opinion's novelty was "...nothing but a thinly veiled claim that...[plaintiff's] theories of causation are bunk and should be exposed as such at the earliest possible juncture." [Ibid]. The Court also said that "special circumstances permitting a deposition of an opponent's trial expert have been found to exist where, after having been examined by one party's expert, material physical evidence underlying a claim is lost or destroyed or otherwise becomes unavailable for further inspection...(citations omitted) or where some other unique factual situation exists...(citation omitted)." [Ibid].

With respect to Dr. Singh, Defendant has the medical records and his report. The Court is not persuaded that there had been a change in Dr. Singh's viewpoint concerning the cause of Claimant's illness noted in the records that establishes special circumstances warranting more extended disclosure in the form of a nonparty deposition. The contention that because at a preliminary phase of Dr. Singh's treatment of Claimant he could not give her and her husband a reason for her illness when asked, and that his viewpoint as to cause changed during the course of treatment, is not an unusual enough chain of events - given the fluid process of developing a diagnosis - to warrant pretrial examination of the Claimant's treating expert neurologist. No documents have been lost or destroyed, and any discoverable information is contained in the medical records. Accordingly, the Court will not grant the nonparty deposition of Claimant's treating neurologist and expert witness under these circumstances.
Motion to Vacate Notice to Admit/Motion to Deem Items Admitted
These applications are considered together since they concern the same dispute over a Notice to Admit served on Claimant by Defendant, and the adequacy of Claimant's responses.

§3123 Civil Practice Law and Rules provides in pertinent part that a party may serve upon its opponent "...a written request for admission by the latter of the...truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry....Each of the matters of which an admission is requested shall be deemed admitted unless......the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters." The purpose of this discovery device is to eliminate from litigation factual matters that will not be in dispute at trial, that are within the knowledge of the party from whom the information is sought or readily ascertainable by that party. See, generally, Vasquez v Vengroff, 295 AD2d 421 (2d Dept 2002); Taylor v Blair, 116 AD2d 204 (1st Dept 1986). Requests to admit should not be addressed to ultimate issues in the case in controversy, and should not seek legal conclusions, such as, for example that an entry onto property was trespass [See, e.g., Gomez v Long Island Railroad, 201 AD2d 455, 456 (2d Dept 1994)], or a party's interpretation of the law. Villa v New York City Housing Authority, 107 AD2d 619, 620 (1st Dept 1985). Assuming the requests are proper, then, the party to whom they are addressed must deny them or explain why they cannot respond in a sworn statement, or else the matters are deemed admitted.

In terms of any sanction associated with an alleged failure to respond adequately to a Notice to Admit, the Rules provide that upon a failure to admit the requested information, and subsequent proof of the fact in issue, the party seeking the admission may move for an order requiring payment of any expenses associated with establishing the fact in issue. See, §3123(c) Civil Practice Law and Rules. There is no provision that a party move to have a matter "deemed admitted."

In this case, Claimant responded to items numbered 1 through 3, and 6 through 8 of the Defendant's Notice to Admit by stating: "Denied and/or unable to admit as claimant does not have knowledge of this matter." Requests 4 and 5, referring to a document annexed to the request, were responded to with: "Denied and/or unable to admit as claimant does not have knowledge of what the annexed document is."

After reviewing the items listed in the Defendant's Notice to Admit, it is clear that the items requested in numbers1 through 3 could never be within the immediate knowledge of the Claimant, since they ask for, respectively, her admission that her expert witness on the relationship between trauma and the onset or exacerbation of multiple sclerosis was censured by the American Academy of Neurology; that he was censured in violation of a particular code provision of the Code of Professional Conduct of the American Academy of Neurology, and that he was censured for providing sworn testimony in violation of a particular provision of this same code. Requests 4 and 5 ask the Claimant to admit that two different sections of the code referred to are attached. Request 6 asks for an admission with respect to what the purpose is of the American Academy of Neurology Code of Professional Conduct, and Requests 7 and 8 ask for an admission, respectively, that the Medical Advisory Board of the National Multiple Sclerosis Society has made the professional conclusion that physical trauma is not causally related to the onset or exacerbation of multiple sclerosis; and that the American Academy of Neurology has published a similar statement.

Although the court has some reservations as to whether the subject matter of the Defendant's Notice to Admit is truly readily ascertainable, non-controversial matter, Claimant's motion to vacate is nonetheless denied. Claimant is on record as having responded to the Notice to Admit in a appropriate manner. Vacating the notice is not called for. Defendant's motion to deem the items requested admitted is also denied.

This disposes of motions number M-66034 and M-66054.

February 4, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]The claim of William D. Fitch is derivative.
[2] Without reciting any underlying facts, the Second Department affirmed a protective order quashing nonparty subpoena served upon treating physician of plaintiff's decedent in wrongful death case, saying "...special circumstances...not established merely upon a showing that the information sought is relevant. Rather, special circumstances are shown by establishing that the information sought cannot be obtained from other sources....(citations omitted)"
[3] Special circumstances exist for non-party deposition of medical examiner whose autopsy report and death certificate provided to the parties in action concerning life insurance coverage. The autopsy report did not contain basis for medical examiner's conclusion that the decedent's death was a suicide, at issue in the case.
[4] In an action where the plaintiff sought damages for a right leg amputation, resulting from the alleged negligence of a New York podiatrist in his use of a scalpel to remove a blister from his right foot, the nonparty deposition of an emergency room physician who had treated the plaintiff in the hospital was directed based upon her medical history notes indicating that the lancing of the blister may have occurred earlier in California rather than in New York. There was also some indication that the physician would not voluntarily appear to testify. See, also, Abbadessa v Sprint, supra, (Where plaintiff had denied failure to follow nonparty physician's treatment regimen, and physician's report - presumably - made mention of a failure to follow instructions, there were special circumstances warranting deposition but only as to those issues re: treatment, and conversations with plaintiff re:treatment).
[5] While the nonparty deposition of a corporate plaintiff's accountant concerning plaintiff's financial records in an action to recover the proceeds of a fire insurance policy was allowed based upon the special circumstance that plaintiff's principal had no knowledge of the financial affairs of the business, including the amount of sales and losses, the examination was to be limited to just those items about which special circumstances were found. Notably, after the nonparty deposition subpoena had been served, plaintiff designated the accountant as its expert to testify at trial as to the financial condition of the corporate plaintiff. The Second Department directed that the witness "...be examined solely as a fact witness on issues concerning the financial records produced by the plaintiff, including the origin of specific entries therein, and the accounting practices of the plaintiff's business, but shall not be asked to render an opinion as to the financial condition of the business nor on any other subject...." Ibid, at 209.