New York State Court of Claims

New York State Court of Claims

CARATHERS v. THE STATE OF NEW YORK, #2008-030-556, Claim No. 109001, Motion No. M-75232


Counsel for both parties directed to cooperate in arranging for independent medical examination [IME] of claimant, incarcerated in federal prison in Kentucky. Motion to strike demand for IME denied. The situation here is unique, in that the State’s 100% liability is already established, and damages discovery before and after the finding of liability was based upon whatever choices the parties made, with full knowledge that access to the claimant would be in the hands of federal authorities, subject to whatever rules and regulations for access to incarcerated felons is allowed by the federal Bureau of Prisons. Each to pay own expenses

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:
September 9, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for an order striking defendant’s demand for an independent medical examination [IME]; directing claimant’s attorney to arrange for a physical examination through claimant’s current federal incarceration by the Bureau of Prisons, at the Federal Medical Center CN Unit, in Lexington, Kentucky, as well as alternative relief:
1-4 Notice of Motion; Affirmation in Support of Motion and of Good Faith by Gary E. Divis, attorney for Claimant; Affirmation by William J. Rold, former attorney for Claimant; Memorandum of Law

  1. Affirmation in Opposition by Rachel Zaffrann, Assistant Attorney General
  1. Supplementary Affirmation in Support of Motion by Gary E. Divis, attorney for Claimant
7-9 Filed papers: Claim, Answer, Carathers v State of New York, UID # 2007-030-042, Claim No. 109001 (Scuccimarra, J., filed December 3, 2007)

In a decision rendered after the liability portion of this claim, the State was found 100% liable for any injuries caused to this claimant, a shackled, wheelchair-bound inmate who fell off the edge of the sloped sidewalk entrance to a hospital when escorting personnel failed to set the brake and failed to remain near enough to prevent any foreseeable accident. The decision finding the defendant liable was filed on December 3, 2007, and the interlocutory judgement was entered on December 10, 2007. In a letter dated December 10, 2007, a damages trial was scheduled for March 25, 2008, and adjourned four times at one or the other counsel’s request. The most recent joint request for adjournment of the trial until October was memorialized in a letter from the Court dated May 28, 2008 rescheduling the damages trial to commence October 7, 2008.

As is the routine practice for the bifurcated trials held in this Court [22 NYCRR §206.19], the IME and other damage related discovery was to occur after a finding of liability.[1] Indeed, in the preliminary conference order agreed to by the parties, claimant’s physical examination was to have been held within 45 days of the finding of liability. The demand for same was apparently made by letter from counsel for defendant dated December 12, 2007 and then again on March 20, 2008. [Affirmation in Opposition to Claimant’s Motion by Rachel Zaffrann, Assistant Attorney General, ¶5].[2] There was also some telephonic communication between counsel regarding the mechanics of producing the claimant for an IME, that did not lead to any resolution.

Counsel for claimant now moves for various types of alternative relief given Mr. Carathers’ present incarceration in federal custody in Lexington, Kentucky. It is noted that at the time of the liability trial, claimant’s testimony was presented by video-conferencing technology, because he was also in federal custody at the time, although he was housed in Massachusetts. Additionally, some time prior to Mr. Carathers’ transfer to Massachusetts he had been housed at the Westchester County Jail as a federal prisoner presumably under whatever contractual arrangement the local facility had with federal authorities, namely the BOP or the United States Marshals Service. Mr. Carathers’ presence in Westchester County preceded the determination of liability in any event. According to his former attorney’s affirmation, claimant has been in federal custody since May 22, 2007. [See Affirmation of William Rold, ¶5].

The present motion seeks to strike the demand for an IME, or seeks instead - somewhat puzzlingly - that the Court direct “claimant’s attorney arrange for claimant’s present jailer, the Bureau of Prison [sic] (BOP), at the Federal Medical Center CN Unit, POB 14500, Lexington, Kentucky 40512, [to] conduct a physical examination of his body parts alleged to have been damaged by defendant’s negligence and determining that such a report be admitted in evidence.” [Notice of Motion, ¶¶ 1, 2]. Claimant also alternatively seeks orders determining various evidentiary issues with respect to the admissibility of claimant’s medical expert’s testimony and claimant’s own testimony regarding his past and present condition. [See ibid. ¶3].

The motion to strike the demand for an IME is denied, and the other aspects of the motion are denied in part at least with respect to premature applications for evidentiary rulings.

Defendant is absolutely entitled to a physical examination of the claimant by a physician given that the claimant’s physical condition is “in controversy.” Civil Practice Law and Rules §3121(a). That there would be difficulty in effectuating such examination, however, and that the parties might need to cooperate a little more than in more routine situations, has been a given in this matter since liability was found, and before such finding, based upon Mr. Carathers’ retention in federal custody. There is nothing new in this, despite defendant’s argument that this matter is likened to situations where discovery is impeded because of some self-created hardship on the part of the claimant such as deportation to a foreign country based upon criminal activity [see Simmons v State of New York, UID # 2000-007-076, Claim No. 94484, Motion Nos. M-62393, CM-62625 (Bell, J., December 19, 2000);[3] Pryce v State of New York, UID # 2007-009-003, Claim No. 109542, Motion No. M-72346 (Midey, J., March 6, 2007)]; or self-created hardship by those choosing to remove themselves to a foreign country [see Bristol-Myers Squibb Company v Yen-Shang B. Chen, 186 AD2d 999 (4th Dept 1992), but cf. Hoffman v Kraus, 260 AD2d 435 (2d Dept 1999)]; or because of convenience concerns premised on the county of residence within New York State versus the organization of districts in the Court of Claims, or other “within-the-State” issue. See e.g. Wright v State of New York, UID # 2002-031-042, Claim No. 99477, Motion Nos. M-64885, CM-65330 (Minarik, J., September 17, 2002); Duskin v State of New York, UID # 2006-033-176, Claim No. 109916, Motion No. M-70972 (Lack, J., March 15, 2006).

None of the authority cited by defendant, however, involves a situation where the State’s complete liability is already established, and damages discovery before and after the finding of liability was based upon whatever choices the parties made, with full knowledge that access to the claimant would be beyond his control and in the hands of federal authorities. The claimant was and is in the custody of the Federal Bureau of Prisons, which both parties acknowledge has its own rules and regulations for access to its incarcerated felons, yet neither party has explored and resolved the limits of such access. Counsel for claimant’s references to the roadblocks to producing claimant for trial on a civil matter are not sufficient, nor are defendant’s protestations that a “stale” IME would have resulted had efforts been made earlier to arrange for claimant’s physical examination. From the Court’s viewpoint, the State’s liability was established almost one (1) year ago, and the damages trial has been adjourned with some frequency based upon the need to resolve discovery concerns, yet the attorneys do not seem to have determined what procedures must be undertaken to secure the information they need.

In a Supplemental Affirmation, counsel for claimant suggests that the Court appoint a local expert physician agreed to by the parties who “. . . would be charged to give a ‘middle of the road’ analysis of the causal connection of the accident to claimant’s past medical complaints and of future consequences . . . ” whose prepared report would be admitted into evidence, and whose expenses would be shared by the parties. [Supplementary Affirmation in Support of Motion by Gary E. Divis, attorney for claimant, ¶ 7]. Counsel for the Defendant does not make any suggestions, except to (understandably) maintain that the State should not bear the cost of the claimant’s own litigation expenses. Obviously, claimant’s suggestion for a “middle of the road analysis” by one expert is not a tenable one. Theoretically, experts’ opinions are not circumscribed by the respective interests of litigants.

Nonetheless, Kentucky is not Guyana, or Taiwan, nor is the fact of claimant’s retention in federal custody under these circumstances a self-created hardship warranting what would amount to an empty order directing that claimant appear in New York State[4] for the demanded IME within a certain time, or risk preclusion of his own testimony concerning his physical condition or dismissal of his claim.

Unfortunately, other than the vaguest of references to the requirements of the federal authorities, neither attorney has presented a reason why each party’s own selected physician could not examine claimant, render a report, and testify in a videotaped deposition if necessary if the respective experts are unavailable for appearance in New York. The Civil Practice Law and Rules and applicable regulations all allow for these eventualities in a modern world [see e.g. Civil Practice Law and Rules §3113; 22 NYCRR §206.11], and the federal rules likely do as well.[5] These efforts should be made under these facts - repeated for emphasis - because this claimant has established the defendant’s liability, and his circumstances as an incarcerated felon within the jurisdiction of federal authorities has been continuous since May 2007.

Accordingly, defendant may pursue its right to an IME, perhaps by utilizing a Kentucky physician, or by flying down its own New York physician, but in any event the physician’s fees are the defendant’s expense to bear. It is the claimant’s obligation to procure what orders or writs defendant may need - with the cooperation of both parties - to secure such physical examination of a claimant in federal custody, just as it would be his obligation to present himself for an IME if he were available in New York. What claimant has done so far to arrange for such examination is simply not enough. Counsel for claimant writes that the unit manager at the Federal Medical Center where claimant is housed told him by telephone that there is a “process”[6] to transport a prisoner for civil reasons, but that “to apply for such transport will be a vain act”, that the “. . . [Bureau of Prisons] orally offered to complete a medical update of claimant . . .” ; and also offered to set up the teleconference for any damages trial. [Affirmation in Support of Motion & of Good Faith by Gary E. Divis, attorney for Claimant, ¶8].

Based upon the experience of the video-conferencing of claimant’s testimony for the liability portion of the trial when he was incarcerated in Massachusetts, assuming the compatibility of the equipment, there should be no additional expense with regard to presenting the testimony of claimant himself at trial, however it is up to counsel to determine the logistics. As noted, counsel for claimant has indicated that BOP personnel expressed a willingness to arrange for same. [See ibid.].

Accordingly, based on the foregoing, both counsel are directed to cooperate in arranging for the IME pursuant to Civil Practice Law and Rules §3121(a) of claimant by a physician of defendant’s choice. Unless the parties stipulate to another arrangement, in writing, to be so ordered by the Court if approved, defendant’s counsel is directed to advise claimant’s counsel of its choice of such physician in writing within thirty (30) days of the filing date of this decision and order, or else such right to an IME is waived, and claimant is to make whatever arrangements it must to allow such examination by defendant’s physician with the federal authorities within ninety (90) days of the filing date of this decision and order. Claimant is directed to provide the appropriate medical records and authorizations to defendant thirty (30) days prior to any such examination, if he has not already done so. 22 NYCRR §206.14. It is presumed that both counsel would engage in appropriate document and expert exchange in any event without Court intervention.

Trial on the issue of damages is adjourned to April 14, 2009. Counsel are directed to complete discovery by March 27, 2009.

September 9, 2008
White Plains, New York

Judge of the Court of Claims

[1]. Counsel for defendant - because no IME had been arranged - opposed prior counsel for claimant’s request that a unified trial be held to avoid issues that might result upon claimant’s removal into federal custody, and would not consent to scheduling an IME before liability was found. It is noted that claimant was in federal custody locally at the time, but in federal custody nonetheless.
[2]. Although there are references to exhibits in counsel’s affirmation, none are attached.
[3].For example, in Simmons v State of New York, supra, the Court would not direct that the claimant’s deposition and IME be held in Guyana - even at claimant’s expense - opining that the former inmate claimant’s deportation to that country did not exempt claimant from an obligation to appear for deposition and an IME in the place where the matter was venued for trial, namely New York State. Notably, the claim had already been pending since 1996, when the claimant’s transfer from the custody of the New York State Department of Correctional Services [DOCS] to that of the United States Immigration and Naturalization Service [INS] occurred in March 1998, with little to no discovery having been exchanged. When the claimant was deported a month after counsel for claimant notified defendant of the eventuality, no deposition had been conducted. Thereafter, counsel for claimant sought to compel his client’s deposition in Guyana, having realized that such testimony would be necessary in order to meet his burden of proof at trial. Not only did the court find there that the claimant had been dilatory in proceeding with discovery between the filing of his claim and discovery pursuits, but that his own culpable conduct had resulted in his deportation, and thus could not serve as a reason for compelling discovery activity - including an IME - in a place other than the State of New York. This finding is not controlling here, given the finding of liability, and the very different status of deportation versus incarceration.
[4]. It is noted that the provision allowing for an IME does not contain language to the effect that same should take place in the county in which the matter is pending. See Civil Practice Law and Rules §3121.
[5]. The only reference to federal procedures provided by these attorneys has been counsel for claimant’s reports of telephone conversations concerning transporting the claimant for a civil court appearance. The information that the Bureau of Prisons would not produce claimant for trial in White Plains, New York is hardly news, given how the liability phase of the trial was conducted.
[6]. Counsel has not indicated any attempt to engage in such process.