Defendant's motion for an order disqualifying one of claimants' expert witnesses and the law firms representing claimants was denied.
|Claimant(s):||TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Infant Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated|
|Claimant short name:||SPRINGER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||UNDERBERG & KESSLER, LLP
BY: Paul V. Nunes, Esq.
MARLER CLARK, LLP, PS
BY: Bruce T. Clark, Esq.,
DREYER BOYAJIAN, LLP
BY: Donald W. Boyajian, Esq. and
James R. Peluso, Esq.,
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
BY: Edward F. McArdle, Esq.,
Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||October 9, 2013|
|See also (multicaptioned case)|
Defendant has brought this motion seeking an order disqualifying Jennifer Clancy, Ph.D. as an expert witness for the claimants, and also for an order disqualifying the law firms representing the claimants in this claim. Specifically, defendant contends that Dr. Clancy has a conflict of interest prohibiting her from serving as an expert witness for the claimants, and further contends that Dr. Clancy provided claimants' attorneys with privileged or confidential information and/or documents. The Court has considered the following papers in connection with this motion:
Notice of Motion; Affirmation in Support of Edward F. McArdle, Esq., Assistant Attorney General; Affirmation of Thomas R. McCarthy, Esq.; with Exhibits 1-3
Memorandum of Law in Support 4
Affirmation of Paul V. Nunes, Esq., in Opposition, with Exhibits 5
Claimants' Memorandum of Law in Opposition 6
Affidavit of Jennifer L. Clancy, Ph.D. 7
Reply Affirmation in Support of Edward F. McArdle, Esq., Assistant Attorney General; Reply Affidavit of Thomas R. McCarthy, Esq., with Exhibits. 8-9
Defendant's Reply Memorandum of Law in Support 10
Correspondence from Paul V. Nunes, Esq., dated January 24, 2012, in Rebuttal 11
On August 15, 2005, the Spraypark located at Seneca Lake State Park (hereinafter referred to as Spraypark) was closed by the New York State Department of Health following an outbreak of cryptosporidosis, a highly contagious parasitic disease. Following this cryptosporidium outbreak at the Spraypark, the New York State Office of Parks, Recreation and Historic Preservation retained Malcolm Pirnie, an engineering firm, to evaluate the water treatment and circulation system at the Spraypark in an attempt to determine the possible cause of the outbreak.
During the course of discovery, claimants demanded copies of all reports prepared by Malcolm Pirnie in connection with its evaluation of the Spraypark. Pursuant to the Demand, the State produced a "Draft Professional Consultation Report" and a "Draft Study of Sprayground Report", both dated November 2005. Claimants' attorneys subsequently deposed one Dr. Michael J. MacPhee, Ph.D., an engineer who contributed to the Malcolm Pirnie Report. The State did not raise any objection to this deposition.
During the course of Dr. MacPhee's deposition, it was revealed that Dr. Clancy had also participated in the preparation of the Malcolm Pirnie Report. Subsequent to Dr. MacPhee's deposition, one of claimants' attorneys (Paul V. Nunes, Esq.) contacted Dr. Clancy regarding her participation in the Malcolm Pirnie Report, and at some point thereafter made arrangements for Dr. Clancy to serve as an expert witness for the claimants.
By this motion, defendant contends that through her involvement in the Malcolm Pirnie evaluation and Report, Dr. Clancy had a pre-existing confidential, expert relationship with the State, and was provided privileged and confidential information pertaining to the State's defense of this claim. Furthermore, defendant maintains that Dr. Clancy then provided claimants' attorneys with this privileged and confidential information, thereby requiring the disqualification of claimants' counsel as well.
On a motion to disqualify an expert witness, a moving party must establish first that "it was objectively reasonable for the party claiming to have initially retained the expert to conclude that a confidential relationship existed between them" and then must also establish that "confidential or privileged information was disclosed by said party to the expert." (Roundpoint v V.N.A. Inc., 207 AD2d 123 [3d Dept 1995]). In order to disqualify an expert witness, the Court must find that both prongs of this analysis have been established, bearing in mind that the burden of proof is on the moving party (Tower Ins. Co. of N.Y. v State of New York, 20 Misc 3d 698 [Ct Cl 2008]).
In this claim, defendant relies primarily upon the Affirmations of Thomas R. McCarthy, Esq., who was the Deputy Chief Counsel for Parks at the time of the cryptosporidium outbreak at the Spraypark, as well as at the time that Malcolm Pirnie prepared its evaluation and report. Mr. McCarthy unequivically states that Dr. Clancy had been retained by the State as an expert in the microbiology field of cryptosporidium, and that she was a substantial contributor in the preparation and drafting of the Malcolm Pirnie Report. He states that Dr. Clancy was paid over $33,000.00 by the State for her work on this report, including travel and overnight lodging expenses.
On the other hand, Dr. Clancy, in her Affidavit, states that she was never retained as an expert by the State, but rather was hired as a sub-consultant by Malcolm Pirnie to assist that engineering firm in the preparation of its report.
She further states that Mr. McCarthy had discussed with her the possibility that she might be retained by the State as an expert, and that she was requested to submit her resume for consideration. She states that after submitting her resume for consideration, neither Mr. McCarthy, nor his successor, contacted her in this regard, and that therefore, in her opinion, no such expert, confidential relationship existed with the State.
Although not dispositive on this issue, the Court notes that the State has not produced any written agreement between it and Dr. Clancy for expert services, and further notes that Dr. Clancy was never disclosed by the State as an expert witness in this matter. Therefore, the Court finds and concludes that there was no formal agreement of any kind between the State and Dr. Clancy by which she agreed to serve as an expert in this Spraypark litigation.
The Court's inquiry, however, does not end at this point. Despite the lack of a formal, written agreement, the Court must determine whether it was "objectively reasonable" for the State to believe that it had a confidential relationship with Dr. Clancy.
Again, defendant relies upon the Affirmation of Mr. McCarthy, who states that he had specific discussions with Dr. Clancy regarding defense strategy related to this anticipated litigation, that confidential information was provided to her, and that he shared his "thoughts, impressions, opinions, theories and possible defense strategies concerning defendant's liability with her." (McCarthy Affirmation, at par. 16).
However, the fact that Mr. McCarthy requested Dr. Clancy to submit her resume so that she could be considered for retention as an expert leads the Court to conclude that she had not yet been retained as an expert by the State, and that with this knowledge, it was not "objectively reasonable" for State officials to believe that such an expert, confidential relationship existed between Dr. Clancy and the State.
Briefly stated, the Court finds that although the State had ample opportunity to confirm its relationship with Dr. Clancy as an expert in microbiology, it never availed itself of this opportunity, and therefore can not now prevent her from serving as an expert for the claimants.
Since the Court has found that the State has not satisfied the first prong of this two-prong analysis, the Court need not necessarily address the second prong, i.e., whether any confidential or privileged information was in fact disclosed to Dr. Clancy. Nevertheless, the Court will address this issue since it could potentially impact the second aspect of this motion (whether claimants' attorneys should be disqualified).
Again, the State relies upon the Affirmation of Mr. McCarthy, who states that Dr. Clancy was given "unfettered access to unredacted, confidential, and privileged Park documents that otherwise would have been protected from disclosure." (McCarthy Affirmation, par. 20).
However, as set forth by attorney Nunes in his Affirmation, the State, throughout the course of this litigation, has never claimed that any documents or information related to the Malcolm Pirnie evaluation and/or its report, was privileged or confidential. Furthermore, the State has never asserted any claim of privilege or confidentiality as to any aspect of the Malcolm Pirnie investigation (or any other matter) during the course of discovery. In this regard, Mr. Nunes further notes that the State has never produced a privilege log identifying any specific document or communication claimed to be privileged or confidential.
In his reply affirmation, defendant's attorney places considerable emphasis upon a prior draft of the Malcolm Pirnie Report that had not been previously disclosed to the claimants; that was then provided by Dr. Clancy to claimants' attorneys; and that defendant contends is conditionally or absolutely privileged.
While this Court has no doubt that this prior draft was provided by Dr. Clancy to claimants' attorneys, the Court is also well aware that this undisclosed prior draft would have been covered by claimants' previous discovery demands, and although not provided by the defendant, there was no claim made that this draft was privileged or confidential.
In other words, at this point in the litigation, the Court can not find that any privileged or confidential information has been provided by Dr. Clancy to claimants' attorneys, based primarily on the fact that no claim to privilege or confidentiality has been made by the State at any point in this litigation. There is absolutely no basis for this Court to conclude that the draft provided by Dr. Clancy was subject to any claim of privilege or confidentiality.
Accordingly, the Court therefore finds and concludes that the State has not established that any confidential or privileged information was in fact disclosed by the State to Dr. Clancy, or that Dr. Clancy disclosed any confidential or privileged information to claimants' attorneys. Defendant has therefore failed to establish the second prong of this two-prong analysis as well.
Based on the foregoing, the Court finds no basis on which to disqualify Dr. Clancy as an expert for the claimants.
Furthermore, based upon its finding that no privileged or confidential information was disclosed by Dr. Clancy to claimants' attorneys, the Court also finds no basis on which to disqualify claimants' attorneys from their continued representation of claimants in this matter.
Based upon the foregoing, therefore, it is
ORDERED, that Motion No. M-79517 is hereby DENIED; and it is further
ORDERED, that a conference will be scheduled as soon as practicable to establish a date for the trial of this claim.
October 9, 2013
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims