New York State Court of Claims

New York State Court of Claims

WATSON v. THE STATE OF NEW YORK, #2008-030-507, Claim No. 107677, Motion Nos. M-74089, CM-74253


Defendant’s motion to vacate prior determination of 50/50 liability and grant a new trial, or to preclude evidence of psychological injury at damages trial, denied. Claimant’s cross-motion to amend bill of particulars to include psychological injury of new diagnosis of “conversion hysteria” granted. No showing that deliberate misrepresentation on claimant’s part, defendant did not take opportunity to depose claimant when offered, nor did defendant respond to medical exchanges served showing neurologist’s diagnosis. No undue delay by claimant and material substantiating the underlying merit of the additional items in the bill of particulars submitted; no new theory of liability. Defendant to be afforded ample discovery.

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 25, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on defendant’s motion [M-74089] to preclude evidence of psychological injury at a pending damage trial or, in the alternative, vacating the interlocutory judgment as to liability, and on claimant’s[1] cross-motion [CM-74253] for an order pursuant to CPLR 3042 (b), allowing service of an Amended Verified Bill of Particulars nunc pro tunc, “and/or to accept the Supplemental Verified Bill of Particulars previously served:”
1,2 Notice of Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General, dated October 11, 2007 and attached exhibits

3,4 Notice of Cross-Motion; Affirmation by Gregory J. Cannata, Attorney for claimants, dated November 27, 2007 and attached exhibits

  1. Affirmation by J. Gardner Ryan, Assistant Attorney General, dated December 3, 2007, and attached exhibits
6-9 Filed papers: Second Amended Claim, Answer; Exchange of Medical Information dated April 16, 2004; Watson v State of New York, UID # 2007-030-007, Claim No. 107677, unreported decision (March 2, 2007, Scuccimarra, J.).

In his claim, Dennis Watson alleged that while he was incarcerated at Fishkill Correctional Facility he was seriously injured on November 7, 2002 in the course of his work assignment replacing steam pipes and traps at the direction of a supervising plumber employed by the State of New York. More specifically, he had alleged that because of the Defendant’s negligent failure to provide a safe workplace, safe equipment and adequate supervision, he was injured when he fell from a broken ladder provided, which he was instructed to utilize. The liability portion of the claim was tried separately, as is the general practice in this court, commencing on September 7, 2005, and concluding thereafter on October 26, 2006. In an interlocutory decision filed on April 16, 2007, the court found that the parties were equally liable for claimant’s fall and any resulting injuries. An interlocutory judgment was entered on April 24, 2007 and, in a letter dated May 23, 2007, a damages trial was scheduled for September 18, 2007.

A trial preparation conference was scheduled for August 30, 2007 and adjourned on consent to September 10, 2007. Counsel for claimant advised during the conference that Mr. Watson was scheduled to undergo further testing at Lenox Hill Hospital, advised counsel and the court in writing that Mr. Watson had been admitted for same on September 12, 2007 and then further advised that results on the testing would not be available on the trial date. Counsel for claimant wrote that although he would be ready to go forward with the testimony of Mr. and Mrs. Watson on the scheduled trial date, he would ask that the testimony of Dr. Jerome M. Block, claimant’s expert treating neurologist, be adjourned as it was “crucial” to claimant’s case. Counsel for claimant noted in the correspondence that he was aware that the Defendant would be objecting to the introduction of the testing as well as Dr. Block’s testimony.

Thus on the trial date, the matter was adjourned in its entirety given the assistant attorney general’s professed intent to move to preclude the offered testimony and findings, and his further indication that he did not want to proceed with only the offered testimony of the claimants. Another reason for adjournment was premised on claimant’s counsel’s representation that he was awaiting a written report by Dr. Block, based on more recent tests, and the verbal indication from the neurologist, that rather than actually suffering from paraplegia for physical reasons, Mr. Watson’s current symptoms might have a psychological genesis. It was not clear when claimant’s counsel had the first indication of this possibility, except that it appears that in a letter to claimant’s counsel dated July 5, 2007 - referencing verbal discussions between the claimant’s attorney and the neurologist - the idea that claimant was experiencing “conversion hysteria” disorder was noted. It was for that reason that the neurologist wanted to perform further testing.

In date order from when they were received in chambers from claimant, and presumably served upon the defendant, are documents entitled “Supplemental Exchange of Medical Information”, dated August 10, 2007, and received on August 24, 2007, containing a narrative report by Dr. Jerome M. Block dated July 5, 2007; a “Supplemental Exchange of Medical Information” dated August 20, 2007, and received August 29, 2007, containing authorizations allowing defendant to obtain records from listed providers all executed by claimant on August 10, 2007; a “Supplemental Exchange of Medical Information” dated September 18, 2007, filed in the Clerk’s Office on September 21, 2007 and received in chambers on October 9, 2007, containing authorizations allowing defendant to obtain records from Dr. Block and Lenox Hill Hospital, the site of the recent testing; a “Supplemental Exchange of Medical Information” dated October 3, 2007, received October 9, 2007, containing narrative reports by Dr. Jerome M. Block dated July 5, 2007, July 10, 2007 and September 18, 2007; and a “Second Supplemental Verified Bill of Particulars” dated October 3, 2007 and received October 9, 2007. The only document apparently filed in the Clerk’s Office was the September 18, 2007 “Supplemental Exchange of Medical Information.” Defendant rejected by letter the “Second Supplemental Verified Bill of Particulars” received by the Attorney General’s Office on October 4, 2007. All the other documents appear to have been received but not responded to.

In papers submitted in connection with this motion practice, there are a series of letters from Dr. Block to counsel for claimant dated, respectively, May 3, 2007, July 5, 2007, and September 18, 2007. [Affirmation by Gregory J. Cannata, Exhibits 3, 4, 5]. The May 3, 2007 letter references material from August 2005 when Dr. Block apparently first examined Mr. Watson. [Ibid. Exhibit 3, 4]. The narrative report from Dr. Block dated July 5, 2007, discusses the prior examinations of claimant and the materials reviewed and suggests further examinations and testing. [Ibid. Exhibit 4]. As noted, this letter is the first written indication presented that Mr. Watson’s alleged paraplegia may be of psychological origin. [Id.].

Reviewing the documents served earlier in the litigation, in a “Verified Bill of Particulars” dated January 8, 2004[2] among the injuries described is “functional paraplegia.” [Affirmation by J. Gardner Ryan, Exhibit 2; Affirmation by Gregory J. Cannata, Exhibit 1]. The bill further provides that claimant “reserves the right to provide additional medical information as and when such information becomes available to claimant.” [Id.]. In a “Supplemental Verified Bill of Particulars” received by the Attorney General’s Office on January 21, 2004, claimant again reserved the right to provide additional medical information as and when such information became available, and listed “depression” among the injuries claimed. [Affirmation (Reply) by J. Gardner Ryan, ¶4, Exhibit 9]. In the “Exchange of Medical Information” dated April 16, 2004, claimant attached a copy of a letter from Michael A. Bernstein, M.D. from Mount Sinai Hospital directed to the New York State Office of Temporary and Disability Assistance dated March 30, 2004 indicating that the doctor was following Mr. Watson for a list of diagnoses, including “T10 Fracture with paraplegia; Wheelchair dependence; GERD; Hypertension; Depression; Chronic Pain; Neurogenic Bladder.” [Affirmation by J. Gardner Ryan, Exhibit 3; Affirmation by Gregory J. Cannata, Exhibit 2].

As noted by the assistant attorney general, when prior counsel for claimant completed a trial form in January 2004 utilized by this court primarily for the purpose of scheduling, it was indicated that no medical testimony was required for the liability portion of the trial, and in the attached preliminary conference order completed at the same time it was indicated that claimant’s psychiatric records were “not applicable.” [Affirmation by J. Gardner Ryan, Exhibit 4].

It is defendant’s contention that there has been misrepresentation on claimant’s part as to the nature of the injury claimed. Before the liability trial, defendant argues, claimant asserted that his spine was injured as a result of this accident, and that because of such injury he experienced loss of sensory and motor ability. Defendant asserts that now claiming that Mr. Watson’s apparent loss of sensory and motor ability is psychological is highly prejudicial. The assistant attorney general asserts that earlier knowledge of this claim would have his altered trial preparation, including the scope of disclosure sought, elections to defer a medical or psychiatric examination of claimant until after a decision on liability; the decision not to conduct a medical examination in any event, and the decision not to seek a unified trial. Defendant urges that whether a misstatement of claimant’s injury was intentional or inadvertent, it nonetheless was prejudicial and misleading, affecting not just damages, but rather “go[ing]. . . to the core of the decision on liability [because] claimant’s unusually elastic grasp of what is true and untrue, real and unreal is a matter central to any objective assessment of his credibility.” [Affirmation by J. Gardner Ryan, ¶ 26]. Defendant argues that as this is arguably “newly discovered evidence” under Civil Practice Law and Rules §5015, the court should vacate its decision on liability and direct a new trial. Alternatively, defendant seeks to preclude the proffered testimony of Dr. Jerome M. Block, the treating neurologist, and opposes the cross-motion to amend the bill of particulars to include the diagnosis.

Claimant argues first that defendant’s motion to vacate is untimely, since it is made more than fifteen days after the decision on liability. Second, claimant argues that defendant’s reliance on Civil Practice Law and Rules §§5015 (a)(2) and (3) as the basis for vacatur of the liability decision because the result would have been different had such information have been available is tenuous. Finally, claimant argues that preclusion of the evidence at a damages trial is unwarranted due to a lack of prejudice to defendant, since “Claimant has been and remains available for a physical examination and deposition by the Defendant.” [Affirmation by Gregory J. Cannata, ¶3]. Indeed, counsel attaches a copy of correspondence to the assistant attorney general dated July 9, 2007, offering to make Mr. Watson available for examination and deposition for six proposed dates in August 2007. [Ibid. Exhibit 6].

The defendant’s motion is clearly not untimely, given claimant’s revelations, thus this aspect of claimant’s arguments is not discussed further. With regard to the newly discovered evidence arguments, however, the court disagrees with defendant’s assertion that had this material been available the result on liability would have differed, and finds this to be pure speculation.

Vacatur pursuant to Civil Practice Law and Rules §5015(a) (2) on the ground of newly discovered evidence is discretionary, and requires the movant to establish that such evidence, if introduced at trial, would “probably have produced a different result” (emphasis added), and that the evidence could not have been discovered earlier with due diligence. See Federated Conservationists of Westchester County, Inc. v County of Westchester, 4 AD3d 326 (2d Dept 2004); Litras v Litras, 271 AD2d 578 (2d Dept 2000); Gonzalez v Chalpin, 233 AD2d 367 (2d Dept 1996); Weinstock v Handler, 251 AD2d 184 (1st Dept 1998), lv dismissed 92 NY2d 946 (1998); Solomon v Solomon, 27 AD3d 988 (3d Dept 2006); Texido v S & R Car Rentals Toronto, 244 AD2d 949 (4th Dept 1997), lv dismissed and denied 91 NY2d 938 (1998). Where the new material would only undermine an adverse witness’ credibility, there is insufficient basis for granting a new trial. Litras v Litras, supra; Gonzalez v Chalpin, supra, at 368; Weinstock v Handler, supra. Defendant’s arguments presuppose that claimant’s testimony alone concluded the factual issues before the court in terms of liability. Defendant has not established as required that had this “new evidence” been known, that the result on the liability portion would “probably” have been different. The court is also not convinced that due diligence has been shown as required. See Federated Conservationists of Westchester County, Inc. v County of Westchester, supra, at 327. As early as January 2004, there were indications of psychiatric issues related to claimant’s injuries, given the brief notations in the Supplemental Bill of Particulars served at that time, and the notation by Dr. Bernstein attached to the Exchange of Medical Information from April 2004. Mr. Watson was also receiving medical treatment while in State custody for two years after the accident. Finally, the movant has failed to show that the liability determination was produced by fraud, misrepresentation or other misconduct. See Civil Practice Law and Rules §5015(a)(3); Texido v S & R Car Rentals Toronto, supra at 949-950.

With regard to the defendant’s motion to preclude the testimony of claimant’s treating neurologist and claimant’s cross-motion to amend the bill of particulars to include the items listed thereon, the motion to preclude is denied and the motion to amend the bill of particulars is granted. Civil Practice Law and Rules §§ 3025(b) and 3043(c). Permission for leave to serve a supplemental or amended bill of particulars is to be freely given, absent prejudice or surprise. Andre-Long v Verizon Corp., 31 AD3d 353, 354-355 (2d Dept 2006); Gusmerotti v Martocci, 169 AD2d 813 (2d Dept 1991); Scarangello v State of New York, 111 AD2d 798 (2d Dept 1985); see also Maloney Carpentry, Inc., v Budnik, 37 AD3d 558 (2d Dept 2007). A neurologist is competent to testify as to this present diagnosis of conversion hysteria disorder, arising out of the same facts and circumstances, despite the fact that psychiatry is not his specialty, since any lack of expertise on the physician’s part goes to the weight of any evidence he offers, not its admissibility. See Smith v City of New York, 238 AD2d 500, 501 (2d Dept 1997). The present diagnosis was made in July 2007, and the neurologist’s report was exchanged in August 2007. Defendant did not take the opportunity to depose claimant when it was offered, nor were the series of medical exchanges served by claimant responded to. There has been no undue delay and claimant has submitted material substantiating the underlying merit of the additional items on the bill, and no new theory of liability is alleged.

The practice in this court in any event is that independent examination by defendant’s medical experts is generally deferred until after the liability determination. Thus, provided defendant is afforded a substantial period of time to complete further discovery and have the claimant examined by its own medical and psychiatric experts [see Ponte v Slyvan Drug Inc., 40 AD2d 874 (2d Dept 1972); Vitiello v Consolidated Edison of New York, Inc., 51 AD2d 523 (1st Dept 1976)], and provided defendant is given the opportunity to further depose the claimant on notice, there is no substantial prejudice to allowing the amendment.

Accordingly, defendant’s motion is denied [M-74089], and claimant’s cross-motion [CM-74253] is granted to the extent that claimant may serve upon the defendant and file with the Clerk of the Court his Second Supplemental Verified Bill of Particulars within fifteen (15) days of the filing date of this decision and order. The parties are directed to appear for conference on Tuesday, April 8, 2008 at 10:00 a.m. to set a timetable for discovery, unless they submit a written stipulation setting forth a timetable to be so ordered by the court, if approved, by April 7, 2008.

February 25, 2008
White Plains, New York

Judge of the Court of Claims

[1].References to claimant are to Dennis Watson only as the claim of Veronica Watson is derivative.
[2].The Verified Bill of Particulars dated January 8, 2004 and the Supplemental Verified Bill of Particulars also dated January 8, 2004, although served on the defendant, do not appear to have been filed in the office of the Chief Clerk of the Court of Claims as required. See 22 NYCRR §206.5(c).