Motion for issuance of trial witness and document supboenas by inmate claimant proceeding pro se on dental malpractice and fraud claim granted in part. Defendant directed to produce without the necessity of a subpoena employee witnesses requested. No opinion testimony. Document subpoenas issued.
|Claimant short name:||WHITFIELD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||JOHN WHITFIELD, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 3, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for trial witness and document subpoenas:
1,2 Notice of Motion for Issuance of Subpoenas and Subpoena Duces Tecums; Affidavit in Support of Motion for Issuance of Subpoenas and Subpoena Duces Tecums by John Whitfield, Claimant and attached papers
3 Affirmation in Opposition to Motion for Subpoenas by Jeane L. Strickland Smith, Assistant Attorney General
4,5 Filed Papers: Claim; Answer (and amendments thereto)
John Whitfield alleges in his claim that on March 19, 1992 an impacted wisdom tooth was extracted at Fishkill Correctional Facility. He alleges that a piece of tooth was left in his gum during the surgery. On June 23, 2003, while confined at Sing Sing, he alleges that this tooth particle bored its way out of claimant's gum and was thereafter removed surgically. Between March 1992 and June 2003, claimant experienced discomfort, pain and suffering caused by the large tooth chip left in his gum. Four causes of action are asserted in the claim, sounding generally in dental malpractice, and fraudulent concealment of same. The initial claim was filed in the Office of the Chief Clerk on July 8, 2003, and an Amended Verified Claim was filed on December 12, 2003. Trial of the matter is scheduled for March 26, 2010.
Generally, since claimant is not a person authorized to issue a subpoena, he must seek a Court order allowing the issuance of a subpoena upon proper motion for non-party witnesses, including fellow inmates. See Civil Practice Law and Rules §2302 (a) and (b). Proposed subpoenas for the Court's signature should accompany the motion. The Court may direct the appearance of employee witnesses without the necessity of a subpoena upon a proper showing. An affidavit indicating why the testimony of each witness is material and necessary to the prosecution of the claim must be included, akin to the pre-trial disclosure standards. See generally Civil Practice Law and Rules §3101; Price v State of New York, 4 Misc3d 1008(A)(Ct Cl 2004). The sought for testimony should not be cumulative.
To establish malpractice, claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A cause of action is premised in medical/dental malpractice when it is the medical treatment, or the lack of it, that is in issue. A claimant must establish that the caregiver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field. If a claim can be read to allege simple negligence, or medical negligence, then the alleged negligent omissions or acts by the State's employees can be readily determined by a fact finder using common knowledge without the necessity of expert testimony. Similarly, the State may be found liable for ministerial neglect if its employees fail to comply with an institution's own administrative procedures and protocols for dispensing medical care to inmates. Regardless of whether the claim is based upon negligence or medical malpractice, however, " '[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical testimony is a required element of a prima facie case'." Tatta v State of New York, 19 AD3d 817, 818 (3d Dept 2005), lv denied 5 NY3d 712 (2005) quoting Wells v State of New York, 228 AD2d 581, 582 (2d Dept 1996), lv denied 88 NY2d 814 (1996).
To establish a prima facie case of fraud, a claimant must present proof that (1) the defendant made material representations that were false, (2) the defendant knew the representations were false and made them with the intent to deceive the claimant, (3) the claimant justifiably relied on the defendant's representations, and (4) the claimant was injured as a result of the defendant's representations. An additional element to establish a cause of action for negligent misrepresentation would be that the defendant was acting in a professional capacity. What the misrepresentations were should be established (and should be pleaded). See Civil Practice Law and Rules §3016(b); see generally Cohen v Houseconnect Realty Corp., 289 AD2d 277 (2d Dept 2001). Notably, the eleventh affirmative defense contained in the Verified Answer to the Amended Claim asserts that the claim fails to state a cause of action against the State of New York, and defenses addressing the statute of limitations are also raised. Equitable estoppel will bar - albeit rarely - the assertion of the affirmative defense of statute of limitations where defendant's affirmative wrongdoing produced a long delay between accrual of a cause of action and commencement of a lawsuit. See generally Bevinetto v Plotnick, 51 AD3d 612 (2d Dept 2008); see also Bayuk v. Gilbert, 57 AD3d 227 (1st Dept 2008) lv denied 12 NY3d 705 (2009);Cellupica v Bruce, 48 AD3d 1020 (3d Dept 2008).
The Court is satisfied, based upon the claimant's affidavit, a review of the pleadings, and the issues raised therein, that the testimony of at least some of these witnesses is material and necessary to the prosecution of his claim. See Civil Practice Law and Rules §3101. Accordingly, defendant is directed to produce without the necessity of a subpoena the following State employees(1) :
(1) Barbara A. Taylor
(2) S. Soni, DDS
(3) Nurse Gutowsky
(4) Nurse Jones
The request for production of other witnesses, including among others an Assistant Attorney General appearing on the claim in years past, and "the person who allegedly found the 4/20/1992 x-rays" [see Affidavit in Support of Motion for Issuance of Subpoenas and Subpoena duces Tecums by John Whitfield, Claimant,¶ ¶ 17-18] is denied. These requests call for irrelevant or cumulative testimony, or evidence that might be better presented in documentary form (grievances and medical records), or testimony that claimant himself could offer.
It is noted that if what claimant is seeking is opinion testimony from the medical witnesses as to whether the treatment provided claimant was appropriate and reasonable, such testimony may not be compelled. The directed appearances of Dr. Soni, Nurse Gutowsky and Nurse Jones authorized herein are solely as fact witnesses.
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." (emphasis added) Blake v State of New York, UID # 2000-019-501, Claim No. 85056, M-61001 (Lebous, J., filed March 15, 2000)[(quoting) 58 NY Jur 2d, Evidence & Witnesses, §754]. Eliciting expert opinions at trial requires that claimant make arrangements with a witness before trial, including negotiation of any expert witness fee.
The line between a fact witness and an expert witness can often not be determined until trial when the witness appears and the questions are evaluated. Any objections regarding the substance of the questions posed would be determined as they arise.
As to documentary evidence, the subpoenas provided are over broad, and contain in part requests for privileged materials. Additionally, the filed pleadings and motion decisions maintained in the files of the Chief Clerk of the Court are already a part of the record.
The proposed subpoenas also include, however, requests for materials that are in the control of the defendant, that would normally be included in the proof of a claim involving medical issues and alleged misfeasance by State personnel (including inmate grievance materials). Addressed to claimant's current facility, and to Sing Sing Correctional Facility, it is unclear whether the subpoenaed records could be obtained exclusively from one or the other, thus any overlap should be resolved between the facilities. Accordingly the Court has executed and issued of even date two (2) modified subpoenas for records, directed to the Records Access Officers at Woodbourne Correctional Facility and Sing Sing Correctional Facility to be served by claimant by certified mail, return receipt requested. Claimant is reminded to include authorizations for the release of medical records.
March 3, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Since the State has given no indication that these individuals are not State employees, subpoenas do not need to be issued.