Defendant herein moves for an order compelling service of a further bill of
particulars and the production of medical authorizations previously demanded.
Defendant also seeks an order dismissing the claim and awarding sanctions.
Claimant opposed the motion and cross-moved for an order compelling the
defendant to provide the names and last known addresses of personnel who worked
on the construction project where claimant was injured and to produce copies of
certain documents pertaining to the project. Subdivision (c) of Rule
provides: "If a party fails to respond
to a demand in a timely fashion or fails to comply fully with a demand, the
party seeking the bill of particulars may move to compel compliance, or, if such
failure is willful, for the imposition of penalties pursuant to subdivision (d)
of this rule."
On May 4, 2004 defendant served a demand for a verified bill of particulars
upon the claimant. Claimant served a verified bill of particulars in response
to the demand on June 24, 2004. No objection to the bill was raised until
defense counsel's letter of March 4, 2005 which objected to paragraphs 4, 5, 8,
10, 11, 12, 13 and 16 of claimant's bill. Efforts to avoid the instant motion
' "The purpose of a bill of particulars is to amplify the pleadings, limit the
proof and prevent surprise at trial" ' (Hayes v Kearney, 237 AD2d 769,
quoting Twiddy v Standard Mar. Transp. Servs, 162 AD2d 264, 265; see
MacDormand v Blumenberg, 182 AD2d 991, 992). 'The "responses to a
demand for a bill must clearly detail the specific acts of negligence attributed
to each defendant" ' (Hayes v Kearney, supra at 769, quoting
Miccarelli v Fleiss, 219 AD2d 469, 470). They need not, however, provide
evidentiary material or information to be gleaned from expert testimony
(see, Liddell v Cree, 233 AD2d 593, 594; Heyward v Ellenville
Community Hosp., 215 AD2d 967). Notably, in a medical malpractice action,
as in any action for personal injuries, the bill of particulars 'requires only a
"[g]eneral statement of the acts or omissions constituting the negligence
claimed" ' (Rockefeller v Hwang, 106 AD2d 817, 818 quoting CPLR 3043
[a]; see, Coughlin v Festin, 53 AD2d 800) Felock v Albany
Med. Ctr. Hosp., 258 AD2d 772, 773.
Paragraph "4" of the defendant's demand requested that the claimant set forth
an itemized and detailed statement of each and every injury suffered by the
claimant. Claimant's response notes disc injuries to her lower back and neck
with aggravation of a pre-existing condition or activation of a latent
condition, a possible tear injury to her right hip causing inflammation and a
possible meniscal injury of her right knee. The response further states that
claimant suffers from lumbar radiculopathy and constant pain in her right flank
and down her right leg along with lumbar radiculopathy. The Court deems this
response to be sufficient except with regard to the alleged "aggravation of a
pre-existing condition or an activation of a latent condition". Claimant shall
provide a further response describing the pre-existing or latent condition and
the manner in which the condition was aggravated or activated as a result of the
subject incident. The response shall be served within 20 days of receipt of the
decision and order herein.
Paragraph "5" of the demand requested that claimant set forth an itemized and
detailed statement of each and every injury claimed to be permanent specifying
the character, degree and cause of the permanency. Claimant's response was that
all of the injuries have permanent aspects, asserting that the injuries resulted
in moderate permanent partial disability and total disability from claimant's
prior occupation. The cause of the permanency was said to be the injuries set
forth in paragraph "4". This response was likewise sufficient.
Paragraph "8" requested information regarding how long a period of time, as a
result of the alleged injuries, claimant was prevented from attending to her
usual occupation and/or routine activities and the amount of wages or earnings
claimed to have been lost by reason of the injuries. Claimant responded that
except for a two month period (June 16, 2003 - August 20, 2003) she has been
unable to work in her usual occupation since the date of the accident resulting
in lost earnings in the amount of $1,000 - $1,600 per week or roughly $50,000
per year. The response is sufficient with reference to claimant's occupation
but is inadequate with regard to the accident's effect upon claimant's routine
activities. Claimant shall provide a response detailing what, if any, effect
the accident has had on her routine activities and affix a dollar value, if any,
to such loss.
Paragraph "10" of the defendant's demand requested that the claimant set forth
an itemized and detailed statement of each and every expense incurred, or to be
incurred, for medical and hospital care or other treatment of the claimant
specifying the names and addresses of the persons with whom such expense has
been incurred, or is to be incurred and the reasons for same. Claimant's
response to this demand was clearly inadequate. Claimant shall provide the
names and addresses of each medical service provider who attended or treated
claimant following the accident and to the extent that such information is
available the dollar amount charged for their services.
Paragraph "11" demanded a statement of each and every item of damage not
requested in paragraphs "4" through "10" which claimant alleges to have been
sustained as a result of the subject occurrence. Claimant responded by
identifying pain and suffering, including loss of enjoyment of life, loss of
earnings, medical expenses and other expenses. Except for "other expenses"
claimant's response is deemed sufficient since the demand did not request
information regarding the amount of damages claimed. Claimant shall provide the
defendant an additional response describing in reasonable detail what, if any,
"other expenses" have been incurred.
Paragraph "12" demanded an exact amount of damages claimed for which payments
have been received from collateral sources. Claimant responded that there is a
Workers' Compensation lien for payments made and that no expenses were paid by
collateral sources. Claimant shall provide the total dollar amount of the
Workers' Compensation lien to date.
Paragraph "13" demands that claimant state the source and the amount or extent
of anticipated collateral source coverage. Claimant's response that there are
no collateral sources other than Workers' Compensation is sufficient.
Paragraph "16" demands that claimant "[s]tate what the damages consist of and
how the amounts claimed were determined". The claimant cited pain and suffering
to be determined by the Court and otherwise referred the defendant to the
responses provided in paragraphs "8" (lost earnings), "10" (past medical
expenses) and "17" (future medical expenses). The Court has already determined
that the statement of past lost wages contained in paragraph "8" was sufficient.
Anticipated future lost earnings are dependent upon expert proof at trial and
need not be stated.
The decision herein has also previously addressed the issue of past medical
expenses. With regard to future medical expenses, the claimant shall to the
extent practicable provide the defendant an estimate of such expenses.
With regard to defendant's demands for medical authorizations it appears from
defense counsel's reply affidavit that the claimant has supplied several
authorizations but that authorizations remain outstanding for the following
doctors, hospitals or other named entities: Dr. Thompson, Workers' Compensation
Board permitting St. Paul Travelers to obtain the file, Canton Potsdam Hospital,
claimant's cardiologist and the surgeon who performed claimant's OB/GYN
surgeries. Although defense counsel requested authorizations for Bell Company
and VESID by letter dated September 1, 2005, since the return date of the motion
and cross-motion was July 20, 2005 the Court cannot order claimant to provide
those authorizations without the necessity of a further motion. Authorizations
for the remaining entities or individuals shall be provided to defense counsel
within 20 days of receipt of this decision and order. Since there is no
derivative claim against the defendant the Court denies the defendant's request
set forth in the reply affidavit for authorizations for either a therapist or
medical care provider regarding treatment and therapy for marital issues.
Claimant cross-moved for an order compelling the production of the names and
addresses of claimant's co-workers as well as copies of the inspector's daily
report, inspector's log book and the engineer's daily project diary. Defendant
opposed the cross-motion arguing that claimant's demands were over broad, vague
Defendant shall provide claimant's attorney with an unredacted certified
payroll for each pay period from June 1, 2002 to the date of claimant's accident
within 20 days of receipt of this decision and order. Defendant shall within
the same period provide copies of the inspector's daily reports, inspector's log
books and the engineer's daily project diary from June 2002 to the date of
claimant's accident to the extent not previously provided.
Finally, the Court finds no evidence of willful noncompliance on the part of
claimant's attorney and therefore denies the relief requested pursuant to CPLR
3126. Since the previously ordered discovery deadline of August 15, 2005 was
reached during the pendency of these motions and since each party has been
directed to provide additional information to opposing counsel the Court hereby
extends the discovery deadline to December 15, 2005.