Motion and Cross-Motion addressing issues of discovery.
|Claimant(s):||RALPH RINK as Administrator of the Estate of JOANNE RINK, and RALPH RINK, Individually|
|Claimant short name:||RINK|
|Footnote (claimant name) :||The Court amends the caption to reflect the appointment of Ralph Rink as Administrator of the Estate of Joanne Rink pursuant to the Onondaga County Surrogate's Court granting Letters of Administration.|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||WALTER D. KOGUT, P.C.
By: Walter D. Kogut, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Maureen A. MacPherson, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 22, 2010|
|See also (multicaptioned case)|
Defendant brings a motion to compel disclosure pursuant to CPLR 3124. Claimant opposes the motion and brings a cross-motion seeking an order compelling the production of witnesses for depositions, compelling the production of certain documents, and names and addresses of witnesses, seeking an order appointing a referee to supervise depositions, or to impose sanctions on opposing counsel for the alleged failure to comply with Part 221 of the Uniform Rules for the Conduct of Depositions (22 NYCRR 221), seeking an Order compelling the production of Gary Kittell's Report and Notes, an Order compelling Defendant to obtain employment records for individuals who cared for and treated Mrs. Rink, and a thirty-day conditional Order striking Defendant's Third Affirmative Defense unless the Defendant provides particulars in response to Claimant's Demand for a Verified Bill of Particulars. Defendant opposes the cross-motion.
This claim arises out of a tragic incident. On June 2, 2007, Joanne Rink was admitted to State University of New York Upstate Medical University Hospital (hereinafter University Hospital) for injuries sustained in a motor vehicle accident. She was treated for her injuries and remained in the hospital through June 6, 2007. In the early morning of June 6, 2007, Mrs. Rink allegedly began to suffer from paranoia and became agitated. At some point in time that day, Mrs. Rink, who allegedly exhibited very aggressive behavior and paranoid thoughts, was administered some medication and then placed in restraints. It is alleged that after being placed in the restraints, Mrs. Rink was left alone in her room where she freed herself from the restraints and ultimately went out a window in her room falling to the roof below, where she then fell another 27 feet from the edge of a landing and onto the concrete below. Mrs. Rink suffered significant injuries and had remained in a coma since that day.(2) The action is brought for medical malpractice and negligence. The claim was filed on August 24, 2007. Defendant interposed a verified answer on October 3, 2007. A Preliminary Conference Stipulation and Order was signed on November 13, 2007, and has been amended four times with the current Order dated July 15, 2009. It is also noted that the Court's staff has had numerous conference calls with counsel regarding discovery, and it is abundantly clear that this claim is unusually adversarial.
Defendant's Motion to Compel (M-77027)
It is Defendant's position, by this motion, that a Demand for Disclosure was served, dated October 1, 2007, seeking:
(1) all statements (CPLR 3101 [e]) including oral statements of the defendant or any co-defendant, all recorded conversations or memoranda of conversations with the defendant; (2) the name and address of each person who was a witness to: the occurrence, acts, omissions or conditions, to actual notice given to the defendant, nature and duration of a causal condition, admissions of defendant, defective equipment or a dangerous condition, conscious pain and suffering, or any other element affecting liability; (3) names and addresses of all physicians or health care providers who have examined, consulted or treated the claimant (CPLR 3121) for all physical, mental, emotional, psychiatric conditions for the five years preceding the subject incident and fully executed authorization to allow defendant to obtain all specified records, including employment records for one year before the occurrence, and any workers' compensation file, and all income tax records for three years before and two years after the occurrence, and copies of all medical reports received from physician and health care providers or sources listed; (4) all written reports of treatment in possession of claimant; (5) copies of all photographs, etc., scene of the occurrence, the incidents of treatment, or that are material to the causes of action; (6) an expert witness demand (CPLR 3101 [d] ), all employment and wage information in claimant's possession for the three years prior to the occurrence; and (8) a list by source and policy of all collateral sources including copies of all contracts for indemnification or compensation.
Initially, Defendant argues that Claimant has failed to disclose statements made by Defendant in accordance with its demand and CPLR 3101 (e). Claimant argues that only written statements or oral statements that have been recorded or transcribed must be provided pursuant to a demand under this section of the CPLR. Certainly, the statutory language supports Claimant's position. However, the word "statement" has been interpreted broadly, and has even been held to include photographs (see Saccente v Toterhi, 35 AD2d 692). It appears that some courts have interpreted CPLR 3101 (e) to include oral statements - without any indication that these statements have been recorded or transcribed (see Marra v Hensonville Frozen Food Lockers, Inc., 189 AD2d 1004, 1006 [where plaintiff's oral statements given to a witness after the accident were allowed in court despite defendant's failure to provide because court noted that plaintiff only demanded statements under CPLR 3120, limited to document discovery, rather than CPLR 3101 (e)]; see also Notorangelo v State of New York, Court of Claims Decision, Ruderman, J., New York Law Journal, May 7, 1996 at p. 26, col. 3). Here, Defendant has clearly demanded oral statements as well as written. This, of course, does not obligate Claimant to produce every statement Defendant has made, nor would such production fall within the parameters of relevancy or materiality. It must also be recognized that Claimant's position is complicated by the fact that Mrs. Rink was in a coma from the date of the incident until her death. Nonetheless, if there is an oral statement of Defendant on which Claimant intends to rely or use, it needs to be disclosed. This is in line with the purpose of discovery - which is to prevent undue surprise (Conners, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3101.4). The Court's position on this issue is equally applicable to both parties.
As for Defendant's demand for witnesses, Claimant's response is incomplete. Claimant needs to provide the names and addresses of witnesses based upon the categories identified in the demand. If there are names of witnesses which Claimant cannot decipher, the response should so state and note the location where the witness is identified. Or, if there are witnesses for whom Claimant does not know the name or address at this time, the response should so state this and the response should be supplemented if this information becomes available.
In item three of the demand, Defendant seeks authorizations to obtain information regarding Mrs. Rink's physical, mental, emotional, or psychiatric condition from any physician or health care provider who consulted, examined, or treated Mrs. Rink in the five years preceding the complained of incident or condition from each health care provider. A list of sources of information is then set forth. It appears that health-related information is all that is sought from the list of sources itemized as 1-14, but the demand is confusing. In reviewing Claimant's response to this demand, it appears that the response is completely appropriate. However, a signed authorization for release of Mrs. Rink's Workers' Compensation file should be provided to Defendant.
For item four of the demand, if Claimant possesses copies of the accident report(s) then copies should be provided.
Item five, copies of pictures of the scene of the accident, if in Claimant's possession, should have been provided to Defendant. However, if copies have already been provided through deposition exhibits, duplication is unnecessary although reference should be made that these items were already provided and the date.
As for the request for income information, Mrs. Rink was apparently a W-2 wage earner, and in Claimant's Response dated June 9, 2009 (attached as Exhibit C to Defendant's motion papers) copies of her W-2 wage statements back to 2003 have been provided. Claimant has provided an authorization for release of all of Mrs. Rink's employment records. If any other income records exist, they should also be provided for the same time frame. Income tax returns have not been demanded.
Accordingly, Claimant should provide the additional information as directed herein within 20 days of the date this Decision and Order is filed.
Claimant's Cross-Motion (CM-77250) To Produce Witnesses, Produce Documents, Identify Witnesses, Appoint a Referee to Supervise Depositions, Provide Employment Records of Defendant Staff, Provide Bill of Particulars
A. Scheduling of Depositions. Claimant has made a request, dated August 31, 2009, to depose certain specified witnesses, within 15 days of the date this Decision and Order is filed. By letter, Claimant's counsel is to provide Defendant's counsel with a list of 20 dates starting after May 3, 2010, on which he will be available for depositions and the location(s). Defendant will consult with the demanded witnesses and advise within 15 days of receipt of Claimant's counsel's letter, the names of the witnesses and dates of availability, and those dates will be the dates of the depositions. If the proposed dates do not work for any specific witnesses, then Defendant's counsel will provide 10 alternative dates for depositions, and the names of the witnesses that can be deposed on those dates. Any depositions that must be adjourned or cancelled must be rescheduled within 25 days, or by Court Order. Any other depositions, which are sought, must be properly demanded in accordance with CPLR 3107 and scheduled in accordance with this Decision and Order as set forth above.
B. Documents demanded in Claimant's Notice for Production of Documents, dated August 31, 2009.
1. Defendant is to provide copies of Deposition Exhibits 5, 6, 9, 14, 17, 20, 26, and 33, within 20 days of the date this Decision and Order is filed.
Documents in subparagraphs 2, 3, 4, 6, 8, 9, 10, and 11, should be provided within 20 days of the date this Decision and Order is filed.
5. Any video required for University Hospital's restraint training prior to 2007 should be provided within 20 days of the date this Decision and Order is filed. If no video exists, a response stating this should be provided.
7. Copies of any photographs (digital or otherwise) taken on June 6, 2007, in connection with this incident, or of the vehicle accident, should be provided within 20 days of the date this Decision and Order is filed.
12. Defendant should provide copies of the Restraint Log for June 6, 2007 (as referenced in Deposition Exhibit 33) for Floor 5B of the hospital. All identifying patient information, other than as related to Mrs. Rink must be redacted. If no such log exists, the response should so state.
13, 14, 15. Defendant should provide, within 20 days of the date this Decision and Order is filed, blank copies of a restraint order including monitoring restraint forms (or restraint flow sheet forms for both safety restraint and suicide restraint), the restraint policy, and safety check forms. Defendant should also provide blank forms on which one-on-one observation of a patient is directed or documented.
C. Demand for Names and Addresses of Witnesses dated August 31, 2009, should be complied with within 20 days of the date this Decision and Order is filed.
D. Production of Kittell Reports and Notes. Claimant alleges that he is entitled to these documents as they were used by Mr. Kittell in preparation for his deposition. It is Claimant's position that any documents used to refresh the recollection of a witness may be inspected by opposing counsel. Defendant, in response, acknowledges that Mr. Kittell may have looked at some documents during the deposition, but argues that these documents are privileged pursuant to § 6527 (3) of the Education Law.
Section 6527 (3) provides that the proceedings and records relating to the performance of a medical or quality assurance review function and any report required by the Department of Health pursuant to Public Health Law § 2805-1 are protected from disclosure under CPLR article 31 (Education Law § 6527 ). It is clear that the burden is on the party asserting the privilege to establish that the documents sought are in fact protected (see Bush v Dolan, 149 AD2d 799, 800-801; Kivlehan v Waltner, 36 AD3d 597; Orner v Mt. Sinai, 305 AD2d 307, 310; Van Caloen v Poglinco, 214 AD2d 555; Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46; Benacquista v Mount Sinai Hosp., 20 Misc 3d 1111 [A]). Defendant has failed to meet that burden. Accordingly, the requested documents should be provided to Claimant's counsel within 20 days of the date this Decision and Order is filed.
E. Demand for Employment Information.
Seeking prior job performance evaluations, disciplinary actions, warnings, reprimands or adverse job actions for all employees who treated Mrs. Rink on June 5 and 6, is over-broad and beyond the scope of this claim. In the claim and Claimant's Bill of Particulars, Claimant asserts negligence in the treatment and care of Mrs. Rink, malpractice, and failure to properly train employees. There is no allegation or assertion that would make the employment history of the State's employees who treated Mrs. Rink relevant to this action.
F. Request for Referee for Future Depositions. The Court has reviewed Claimant's motion papers and Defendant's responses, and it is very clear that in this case that bright, typically well reasoned counsel have succumbed to extreme offensive and defensive postures which have eroded common sense. The transgressions that have occurred are not attributable to one attorney but involve unprofessional behavior from both counsel. Counsel is reminded of the required Standards of Civility (22 NYCRR § 1200, Appendix A) and are directed to comply. The Court is not inclined, at this point, to appoint a referee and will hopefully not have to revisit this issue.
G. Request to Strike Defendant's Affirmative Defense if Particulars are Not Provided Regarding the Culpable Conduct of Third Parties.
Claimant is entitled to know whom Defendant asserts is a third party, potentially responsible for Mrs. Rink's injuries. Defendant needs to set forth who these third parties are alleged to be, and if after discovery, additional parties become known, then the response can be supplemented. Defendant has 20 days to provide a complete response to this particular. A penalty, such as striking an Affirmative Defense, is only appropriate where Defendant's failure to timely comply was wilful (CPLR 3042 [d]; see also Gillen v Utica First Ins. Co., 41 AD3d 647). The Court is not persuaded that Defendant's counsel's conduct rises to that level at this point.
Accordingly, Claimant's cross-motion is granted to the extent set forth above. Both counsel are advised that although no sanctions or penalties are imposed at this time, any future request for sanctions or penalties will be guided by counsel's respective compliance with this Decision and Order.
March 22, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
2. Mrs. Rink passed away on February 3, 2010.