New York State Court of Claims

New York State Court of Claims

STEVENSON v. THE STATE OF NEW YORK, #2004-030-505, Claim No. 99406


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 11, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


William Stevenson, the Claimant herein, alleges in Amended Claim Number 99406, filed August 30, 1999, that Defendant's agents failed to provide him with adequate medical care and treatment while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS), incarcerated at Fishkill Correctional Facility (hereafter Fishkill). Trial of the matter had originally been scheduled to go forward on December 8, 2003; however on that date the Court instead heard argument on Defendant's oral motion to preclude the testimony of Claimant's proposed expert. Counsel also submitted memoranda of law, [Court's Exhibits 2 and 3] as well as further exhibits marked by the Court.

After carefully considering the arguments presented, the application is disposed of as follows:
Although the Amended Claim herein was originally filed pro se, present Counsel for Claimant filed a Notice of Appearance on or about December 20, 2001, and discovery proceedings were commenced accordingly. In a preliminary conference order executed by both parties and "so ordered" by the Court on February 4, 2002, the parties agreed to expert disclosure pursuant to Civil Practice Law and Rules 3101(d)(1) by July 31, 2002. [Court's Exhibit 1]. The preliminary conference order also directed that the Note of Issue and Certificate of Readiness be filed on or before August 30, 2002. [Id].

On March 3, 2003 this Claim was part of a calendar call scheduled because of the failure to file a Note of Issue and Certificate of Readiness as required. The Court granted the request made at the calendar call to extend the time within which to file a Note of Issue to May 1, 2003, and thereafter, on April 29, 2003, allowed an extension of the time frame within which to file a Note of Issue to July 1, 2003 pursuant to a stipulation executed by both parties.

On June 30, 2003 the Note of Issue and Certificate of Readiness was filed with the usual attestations, including the indication that there had been compliance with all orders issued pursuant to the pre-calendar rules.[1] [Court's Exhibit 4]. This would include directives contained in a preliminary conference order.

On July 30, 2003 the Court wrote to counsel advising of the trial date of December 8, 2003, and further advising that a trial preparation conference would be scheduled three weeks before the trial for the purpose of marking exhibits and identifying witnesses and other "housekeeping" matters. By letter of transmittal dated October 27, 2003, the trial preparation conference was scheduled for November 20, 2003, and a trial preparation order executed by the Court was sent to the parties. On consent, the trial preparation conference was adjourned to November 24, 2003.

At the trial preparation conference, Claimant's counsel presented his witness list, and Defendant's counsel thus learned for the first time that Claimant intended to call one of two expert physicians and the subject matter upon which the selected physician would testify. Copies of their résumés were given to Defendant's counsel. [Court's Exhibit 7]. The Defendant's objection to the use of an expert at trial - given the failure to disclose - and the prejudice to Defendant were discussed in an off-the-record discussion at the trial preparation conference between Counsel and the Court's law clerk. It was noted that there was a likelihood that the Court would preclude the expert's testimony given the lack of compliance with the preliminary conference order and the late notice. Counsel were advised to make arguments on the record on the trial date, and to present any law on the issue prior to the trial date. They were also advised that the trial would go forward on December 8, 2003, having been scheduled some five (5) months earlier. At that time, counsel for Claimant indicated that he would likely use the treating physician's testimony to support the claim were his expert's testimony disallowed. Some colloquy concerning the use of a fact witness versus an expert witness was had. Counsel for Defendant agreed to arrange for the appearance of one of the employee physicians, and to provide Claimant's counsel with the form for an Order to Produce necessary to secure the incarcerated Claimant's presence at trial. Claimant's counsel decided he would need a subpoena to secure the presence of the non-employee physician who had performed the surgery upon Claimant.

Thereafter, and on November 25, 2003, Counsel for Claimant wrote to the Court saying he had decided not to proceed to trial, and indicating ". . . our arguments concerning the preclusion of claimant's expert witnesses was not recorded, and no written decision entered, nor was I allowed time to prepare a Brief for the Court. Therefore, I would like to make a motion concerning this issue. Please let me know when I can make the motion returnable and whether or not oral argument will be required."[2] [Court's Exhibit 5]. This letter was received by the Court on December 1, 2003. [Id]. The Court's law clerk wrote back immediately, confirming that the matter was still scheduled for trial on the issue of liability for a period of three (3) days; and that there had been no preclusion to date because there had been no Court order directing same, and that counsel could make whatever applications they deemed appropriate before the Court, as well as submit legal memoranda if they chose.

On Friday, December 5, 2003 Counsel for Claimant forwarded another letter to the Court by fax enclosing a memorandum of law [Court's Exhibit 2]; and Counsel for Defendant did the same. [Court's Exhibit 3]. By letter dated December 5, 2003, the Court indicated that Claimant would not be required to go forward on Monday, December 8, 2003, but that both Counsel should appear on that date for oral argument on the issue of the preclusion of Claimant's expert's testimony.

During oral argument before the Court, Counsel for Claimant indicated he had only spoken with Dr. Harold H. Osborn, one of his proposed experts, on November 17, 2003 - one week before the trial preparation conference - he did not indicate when (and if) he had spoken to the other proposed expert, Dr. Barbara C. Zeller, but did say he would prefer to have Dr. Zeller because she was the HIV expert. As he had explained in his memorandum of law, Counsel reiterated that the medical issue in the case is ". . . quite simple: was the defendant negligent in doing the subject bunion operation in view of the presence of infection, i.e. HIV?" [Court's Exhibit 2, Page 6]. He argued that there can be no claim of prejudice because the bill of particulars indicates what the alleged medical negligence is, namely, performing surgery when infection is present, although it does not specify HIV. [Court's Exhibit 9]. He argued that since Defendant's own witness list proffered at the trial preparation conference indicates that the Assistant Attorney General "did in fact consult with physicians" [Court's Exhibit 2, page 7], the fact that no independent expert had been consulted was not prejudicial, and that the Defendant's counsel "had at least two weeks [from the date of the trial preparation conference] in order to speak to these physicians and/or retain an . . . expert." [Id]. He stated that the presence of any kind of infection prior to surgery was significant, and that an expert in HIV was not really necessary, which is why he would settle for Dr. Osborn if he were the one available.

When asked by the Court what the significance was of the date and telephone number imprinted on the copy of the résumé of Dr. Osborn - reflecting a receipt by fax transmission of the résumé on April 12, 2001 [See Court's Exhibit 7] - Counsel indicated that he keeps résumés of potential experts on file, and had used Dr. Osborn in another case. Although the printing is not as clear, the copy of Dr. Zeller's résumé provided indicates receipt in March, 1999. [Id].

Counsel for Claimant indicated he had not retained an expert earlier because there had been illness in his family, he had been working on another trial, and, because he never received a demand for expert disclosure, it didn't trigger his search for one. This demand argument was echoed throughout his presentation. It was his view that only in the event of a demand for expert disclosure as set forth in the statute [See Civil Practice Law and Rules §3103 (d) 1 (i)], would he have been required to provide same. He averred he did not understand the preliminary conference order to require that he provide expert disclosure by July 31, 2002, although he acknowledged signing the order. He maintained that the Defendant did not comply with the preliminary conference order either, because Defendant did not provide expert disclosure. Indicating his awareness that in a medical malpractice action the Claimant would not make out a prima facie case,[3] Counsel for Claimant nonetheless indicated he just didn't get around to consulting an expert until November 17, 2003. He stated he did not advise the Assistant Attorney General on that date because he knew they were coming in for a conference and he thought he could tell him then.

No affidavits from the proposed experts confirming their retention were offered nor was their testimony. From the statements made on December 8, 2003 it would appear that it was still not clear which expert Claimant intended to call.

The Court notes that in the body of the preliminary conference order, where service of a demand is required by a given date, the word "demand' is set forth, such as the service of a demand for a bill of particulars. [Court's Exhibit 1].

Counsel for the Defendant maintained that receiving notice that an expert witness in the HIV field was to be called by Claimant at the trial of the matter two weeks before trial was untimely and prejudicial. Had the Assistant Attorney General known an expert would be called, he said that with sufficient notice he would likely have wanted to depose the expert as might be allowed on a showing of special circumstances [See generally Civil Practice Law and Rules §3101(d) (1) (iii)]; and would have hired his own expert. Moreover, the Assistant Attorney General stated that the assertion by Claimant's Counsel that in the two weeks before the trial he could have sought such deposition, and have found an expert who would be able to review the medical records and be available for trial, was not made in good faith. Indeed, on November 25, 2003 the Assistant Attorney General had received a telephone call from Counsel for Claimant saying he did not intend to go forward with the trial, which was followed up by a letter saying the same thing. [Court's Exhibit 5].
Civil Practice Law and Rules §3101(d)(1)(i) provides that ". . . [u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just . . ."

As interpreted in the Second Department, the party offering the expert must show good cause for the delay in disclosing the expert. Vigilant Ins. Co. v Barnes, 199 AD2d 257 (2d Dept 1993); Corning v Carlin, 178 AD2d 576 (2d Dept 1991). Indeed, in Vigilant, supra, the Appellate Division affirmed the trial court order precluding plaintiff from offering the testimony of three (3) experts disclosed three weeks before the trial date, when the demand for disclosure had been made some fourteen (14) months earlier, even though all the opinion information had already been provided. In Corning, supra, at 577, the Second Department particularly emphasized that the party offering the undisclosed expert three (3) years after a demand had not shown good cause why the expert had not been retained ". . . until the very eve of trial and then failed to disclose his existence until after opening statements had been made."

While it is true that other Second Department cases have suggested that preclusion not be the discretionary option chosen absent a showing of prejudice and an intentional, willful failure to disclose, [See e.g. Young v Long Is. Univ., 297 AD2d 320 (2d Dept 2002); Shopsin v Siben & Siben, 289 AD2d 220 (2d Dept 2001)], these rulings nonetheless found that the offering party had good cause in the first instance for the failure to retain and disclose, and that there was no prejudice.

Unlike the Claimant here, the plaintiff in another medical malpractice case reviewed by the Second Department retained an expert witness six (6) weeks before trial commenced, immediately notified the defendant, and additionally served defendant with supplemental information detailing the expected expert testimony. See Vega v LaPalorcia, 281 AD2d 623 (2d Dept 2001).

In the case at bar no good cause for the failure to retain an expert has been advanced. Counsel for Claimant's cavalier approach to prosecuting this medical malpractice claim - which he acknowledges cannot be established prima facie without medical testimony - is telling. A court order establishing the time frames within which to exchange information, including information concerning experts, has been completely ignored. Although Counsel apparently had some knowledge of what experts might be available to him for years, given his acknowledgment that he routinely keeps résumés on file for potential use, and, indeed, had retained Dr. Osborn in the past, he failed to act at all to retain an expert until one (1) week prior to what should have been a routine marking conference, held two (2) weeks before an anticipated trial. Indeed, it is still not clear to the Court whether Claimant ever finalized which of two (2) experts he was intending to call, and whether he had made any contact with his preferred expert, who apparently is more knowledgeable than Dr. Osborn about HIV. Claimant's counsel, having spoken to Dr. Osborn on November 17, 2003, did not immediately notify Defendant's counsel but rather waited until he appeared at the trial preparation conference to hand up a witness list containing expert information.

It bears repeating that both counsel have been apprised well in advance of any obligations to appear before the court or serve documents. It is careless at best for an attorney to have filed a Note of Issue and Certificate of Readiness on June 30, 2003, indicating compliance with all outstanding discovery and all orders of the Court, to have been notified of a December trial date in a letter dated July 30, 2003, to then indicate he had not "gotten around" to hiring an expert. There is no good cause on this record. This is intentional behavior.

As noted in the Attorney General's memorandum, and restated on December 8, 2003, the Defendant did not hire an expert because he assumed that the Claimant's attorney had chosen an option frequently chosen by claimants alleging medical malpractice while in DOCS custody, of cross-examining treating physicians who present medical testimony, or subpoenaing same as Claimant's witnesses. This is prejudice.

The only reason this Court did not immediately rule on the issue, and gave counsel the opportunity to argue the points on the originally scheduled trial date, is there would seem to be a conflict between the Appellate Division departments, with the Second Department having the "less liberal" standards concerning preclusion as noted by at least one trial court. Marks v Solomon, 174 Misc 2d 752, 755-757 (Westchester Co Sup Ct 1997); [See also Court's Exhibit 8]. "Freezing" the consideration of the Defendant's application at the point it was made - less than two (2) weeks before the trial, the Court having set aside three (3) days for the trial, no good cause shown, no indication still of which expert was planned, Defendant having relied on an apparent trial strategy by Claimant to proceed in the absence of an expert, adjournment of the trial alone does not seem appropriate.

Accordingly, for all the above-stated reasons Defendant's motion to preclude the introduction of the expert testimony of either Dr. Harold H. Osborn or Dr. Barbara C. Zeller is granted in all respects.

The matter is re-calendered for trial on Monday, March 22, 2004 at 10:00 a.m. No adjournments shall be granted except in conformance with part 125 of the Rules of the Chief Administrator.

February 11, 2004
White Plains, New York

Judge of the Court of Claims

[1] Although the Certificate of Readiness refers to 22 NYCRR §202.12 pertaining to actions in Supreme Court, the rules applicable in the Court of Claims concerning, respectively, pre-calendar practice and the contents of a Certificate of Readiness are essentially the same. See, 22 NYCRR §206.10; 206.12.
[2] It should be noted that there was no telephone service in or out of the Court of Claims in White Plains from Thursday, November 20, 2003 through Tuesday, November 25, 2003. The Thanksgiving recess was on Thursday, November 27, 2003
[3] This statement echoes that made in his memorandum of law at Page 3. [Court's Exhibit 2].