New York State Court of Claims

New York State Court of Claims

SPENCER v. THE STATE OF NEW YORK, #2004-031-115, Claim No. 107001, Motion Nos. M-68965, M-68966, M-68997


Synopsis


Claimant's request for poor person status and for assignment of counsel in medical malpractice action is denied. Claimant's request for judicial subpoena's for identified witnesses is denied in part and granted in part

Case Information

UID:
2004-031-115
Claimant(s):
JOHN SPENCER
Claimant short name:
SPENCER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107001
Motion number(s):
M-68965, M-68966, M-68997
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
JOHN SPENCER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: HEATHER R. RUBINSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 14, 2004
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on three motions by Claimant for leave to proceed as poor person and appointment of counsel and the issuance of judicial subpoenas to secure the testimony of various fact and expert witnesses at trial:
1. Claimant's Notice of Motion (M-68965), filed August 16, 2004;
2. Claimant's Affidavit (M-68965), sworn to August 11, 2004;
3. Affirmation of Heather R. Rubinstein, Esq. (M-68965), dated August 27, 2004;
4. Claimant's Notice of Motion (M-68966), filed August 16, 2004;
5. Claimant's Affidavit (M-68966), sworn to August 12, 2004;
6. Affirmation of Heather R. Rubinstein, Esq. (M-68966), dated August 27, 2004;
7. Claimant's Notice of Motion (M-68997), filed August 26, 2004;
8. Claimant's Affidavit (M-68997), sworn to August 23, 2004;
9. Affirmation of Heather R. Rubinstein, Esq. (M-68997), dated September 8, 2004;
10. Filed documents: Claim and Verified Answer. Claimant has filed three motions in this matter. In the first (M-68965), he seeks leave to proceed as a poor person and the appointment of counsel to represent him in the preparation and trial of his claim against the State. In the second and third (M-68966 and M-68997), he requests the issuance of judicial subpoenas to compel the testimony of various fact and expert witnesses at the trial of his claim, which is currently scheduled for September 24, 2004 at Auburn Correctional Facility. The claim, filed on November 27, 2002, alleges that Defendant committed medical malpractice relating to the failure to properly diagnose and treat his appendicitis. Claimant alleges that he first sought medical intervention on June 20, 2002 and was misdiagnosed as having influenza. He was not treated again until June 27, 2002, by which time his appendix had already burst and it was too late for surgical intervention.
POOR PERSON STATUS AND THE APPOINTMENT OF COUNSEL
To the extent that Claimant's motion (M-68965) is addressed to the Court's filing fee, I note that Claimant requested and received a reduced filing fee for this claim in December of 2002. Since there are no other costs or fees required by the Court of Claims to prosecute a claim, the Claimant's motion to proceed as a poor person is denied.

With regard to Claimant's request for the appointment of counsel, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that Courts should not routinely approve requests made by indigents for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv dismissed 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). I have examined the underlying claim and find that this matter involves neither a fundamental right, nor is of sufficient complexity to warrant assignment of counsel (see Matter of Smiley, supra; Matter of St. Luke's-Roosevelt Hosp. Ctr., 159 Misc 2d 932, 936, mod and remanded 215 AD2d 337).

For this reason, motion M-68965 is denied in its entirety.
JUDICIAL SUBPOENA OF FACT WITNESSES
With motion M-68966, Claimant requests that subpoenas be issued and Defendant be compelled to produce two inmate fact witnesses, Donald Kilgore (89-D-0001) and Robert D. Walton, Sr. (91-A-1380). Claimant asserts, and Defendant does not dispute, that each of these inmates is currently incarcerated at Auburn Correctional Facility, the same location as the trial. Claimant purports to justify the necessity of testimony from these individuals asserting that "they have knowledge of events when this claim occurred and therefore their appearance is essential." Claimant has also attached to his moving papers an affidavit from each proposed witness which indicates that each of these inmates saw him on June 20, 2002 and were aware that he was ill and that he had been diagnosed as having influenza.

Defendant opposes Claimant's application on the grounds that these inmates' testimonies, based upon the information provided by Claimant, would be little more than hearsay, redundant and would serve no useful purpose. While Defendant may be correct, I find that the testimony of at least one of these inmates may be helpful to the Court in understanding the date of onset and severity of Claimant's symptoms. For this reason, Defendant is directed to make inmate Robert D. Walton, Sr. (91-A-1380) available to give testimony at the trial without the necessity of a subpoena. Motion M-68966 is, in all other respects, denied.
JUDICIAL SUBPOENA OF EXPERT AND FACT WITNESSES
With motion M-68997, Claimant requests subpoenas for seven expert witnesses, all of whom Claimant alleges treated him at Upstate Medical Center in Syracuse, New York. He also requests subpoenas for three more fact witnesses, all of whom are employed by Defendant and allegedly observed Claimant shortly before or during his transfer to Upstate Medical Center. With regard to the proposed expert witnesses, I note that none of these proposed witnesses is employed by Defendant and, therefore, under its control. Additionally, Claimant is seeking opinion testimony from these individuals to demonstrate that the treatment provided Claimant deviated from contemporary community standards. In such instances, a subpoena compelling such testimony is not appropriate. Claimant should understand that an "[e]xpert witness [such as a physician] can be subpoenaed to testify to facts within [his] [own] knowledge and to physical observations, but cannot be compelled to give testimony concerning matters that require employment of the expert's expertise, education, judgment or opinion in the expert's particular field of expertise" (Blake v State of New York, Ct Cl, March 15, 2000 [Claim No. 85065, Motion No. M-61001, Lebous, J.). Eliciting expert opinions at trial requires that Claimant make arrangements with a witness before trial, including negotiation of any expert witness fee.

With regard to the proposed fact witnesses, Claimant has failed to demonstrate that they can add anything relevant to the trial of this claim that will not be redundant in light of the anticipated testimony of Claimant and inmate Walton. For this reason, M-68997 must be denied in its entirety.

Accordingly, it is hereby

ORDERED, that
1) Claimant's motion for permission to proceed as a poor person and for the assignment of counsel to represent him in this matter (M-68965) is denied;
2) Defendant is directed to make inmate Robert D. Walton, Sr. (91-A-1380) available to give testimony in the trial of this matter, should he so choose, and all other aspects of M-68966 are denied; and
3) Claimant's motion M-68997 is denied in its entirety.


September 14, 2004
Rochester, New York
HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims