Opinion
# 2015-041-033 Claim No. 124311 Motion No. M-85774 Motion No. M-86104
04-22-2015
JOSEPH CAPALDO v. THE STATE OF NEW YORK
GARY E. DIVIS, ESQ. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Defendant's motion to disqualify claimant's attorney because attorney allegedly made himself a necessary and material witness in dental malpractice claim by writing letters to defendant urging defendant to timely and adequately treat claimant's dental issues is denied; Court, in response to claimant's motion to compel, will conduct in camera review of Quality Assurance Audits of defendant's dental clinics to determine whether all, or part, of said records are exempted from disclosure by Education Law 6527 (3).
Case information
| UID: | 2015-041-033 |
| Claimant(s): | JOSEPH CAPALDO |
| Claimant short name: | CAPALDO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124311 |
| Motion number(s): | M-85774, M-86104 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | GARY E. DIVIS, ESQ. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 22, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves (M-85774) to disqualify Gary E. Divis (Divis) as the attorney for claimant because Divis has allegedly "placed himself into the position of an advocate/witness for his own client, especially given his use of a Notice to Admit as to documents he created" (emphasis in original).
Claimant opposes the defendant's motion and moves (M-86104) for an order pursuant to CPLR 3124 compelling production of "certain Quality Assurance Audits," (QAA) and requiring defendant to file a privilege log with respect thereto, or, to direct defendant to produce the requested documents for in camera review. Defendant opposes claimant's motion.
The claim alleges that defendant is liable for dental malpractice in its treatment of claimant, an inmate, while claimant was incarcerated at Bare Hill and Franklin Correctional facilities, respectively, between 2008 and 2014.
Defendant's disqualification motion will be considered first.
In support of its disqualification request, defendant offers a series of letters from Divis to defendant in which Divis repeats to defendant complaints which claimant had made to Divis regarding defendant's untimely and inadequate dental treatment of claimant. The Divis letters further suggest to defendant that claimant be treated by an "outside" dentist at claimant's own expense. Defendant also points out that after commencement of the claim, Divis requested that defendant admit to the genuineness of the subject letters pursuant to CPLR 3123.
According to defendant, the letters sent by Divis, together with the request that defendant admit the genuineness of the letters, require that Divis be disqualified as claimant's attorney because Divis is now a necessary and material witness to the allegations of the claim.
Defendant argues that Kattas v Sherman (32 AD3d 496, 497 [2d Dept 2006]), demonstrates that where a party's attorney is "intimately involved" in the transaction underlying the lawsuit, has dealt directly with the other party during the transaction and has conversed directly with the other party concerning a material matter in the litigation, the attorney becomes "a witness with information about relevant and material facts and . . . should [be] disqualified."
Defendant also relies upon Skiff-Murray v Murray (3 AD3d 610, 611 [3d Dept 2004]), for the proposition that "the advocate-witness rule requires an attorney to withdraw from pending litigation if it appears that his or her testimony is 'necessary' and he or she 'ought to be called as a witness' (Code of Professional Responsibility DR 5-102 [a]; [22 NYCRR 1200.21]; see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 74-75 [2002]; Bullard v Coulter, 246 AD2d 705, 706 [1998])."
Divis states in his affidavit opposing defendant's motion that he has "never met claimant in person nor any of the dental medical providers . . . [he has] not inspected any of the dental clinics where he received medical treatment. I have no first hand knowledge of any of the facts in claimant's case. Whatever I learned came from his dental records and what he told me."
Claimant has also authored an affidavit in opposition to defendant's motion to disqualify Divis, stating that he is "very satisfied" with Divis and that Divis, in writing letters on claimant's behalf, "only did what I asked in order for me to receive treatment and/or seek emergency treatment for dental pain."
The claim alleges that claimant complained to defendant's dental care providers about tooth and gum issues on specific dates and that defendant did not adequately and timely treat claimant's "dental issues."
The claim sounds in dental malpractice:
"To succeed in his dental malpractice claim, claimant [is] required to prove that [defendant] deviated from the accepted standard of dental care and that such departure was the proximate cause of his injuries" (Bennett v State of New York, 31 AD3d 1069, 1070 [3d Dept 2006]).
Through expert testimony, or other competent proof, claimant must "introduce sufficient evidence of the relevant accepted standard of care owed . . . [and] whether the defendant had departed from [the] standard of care " (Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745 [2d Dept 2009]).
Although defendant offers no specific reason why the Divis letters make him a necessary witness for either the claimant or the defendant, the letters could arguably be seen as giving defendant notice of claimant's unhappiness with his treatment. Notice to a defendant that a patient may be unhappy with the course of treatment or non-treatment is not generally an element of a dental malpractice cause of action, however, and lack of such notice to defendant is no defense, under the facts alleged in the claim.
Further, the claim alleges that "claimant . . . complained ["at diverse times"] of cracked teeth, the need for root canals, untreated cavities, had teeth unnecessarily extracted . . . and generalized severe pain and mental distress, among other symptoms." The fact that claimant's attorney repeated claimant's complaints to defendant via letter does not make Divis a "necessary" witness (Skiff-Murray 3 AD3d at 611) in possession of "relevant and material facts" (Kattas, 32 AD3d at 497).
On this record, the Court concludes that Divis is neither "intimately involved" in the underlying transaction (claimant's dental treatment) nor does he have relevant and material information regarding the salient issues of the claim. Additionally, under the facts presented, the testimony of Divis is not "necessary" to either the prosecution of the claim or its defense.
In sum, the actions of Divis in writing letters to a government agency reciting complaints from a potential client, and requesting resolution of the stated complaints, is what lawyers do on a routine basis. Defendant's motion to disqualify Divis as claimant's attorney is denied.
Claimant moves for an order pursuant to CPLR 3124 compelling production of "certain Quality Assurance Audits," requiring defendant to file a privilege log with respect thereto, or, to direct defendant to produce the requested documents for in camera review.
In particular, claimant demanded production of "Dental Quality Assurance Audits for Barehill [sic] Correctional Facility for the years from February 6, 2008 until April 10, 2010" [and] "Dental Quality Assurance Audits for Franklin Correctional Facility for the years from April 10, 2010 until the present."
Defendant refused to produce the requested QAA, asserting that they are not discoverable pursuant to Education Law 6527 and Public Health Law 2805-m, respectively, and are "privileged."
The Court has "broad discretion in managing disclosure, and absent an abuse of discretion or unreasonable interference with the disclosure of relevant and necessary material," that discretion will not be disturbed (Czarnecki v Welch, 23 AD3d 914, 915 [3d Dept 2005]).
It is equally clear that "[w]hile disclosure provisions are to be liberally construed, the trial court is vested with broad discretion to supervise discovery and determine what is 'material and necessary' under CPLR 3101 (a)" (Mora v RGB, Inc., 17 AD3d 849, 851 [3d Dept 2005]).
The standard of materiality is "one of usefulness and reason," with the goal of "sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]).
With respect to Education Law 6527 (3), relied upon by defendant, Katherine F. v State of New York (94 NY2d 200, 204-205 [1999], explains that:
"The language of the statute is unequivocal. Education Law § 6527 (3) exempts three categories of documents from disclosure: records relating to medical review and quality assurance functions; records reflecting 'participation in a medical and dental malpractice prevention program;' and reports required by the Department of Health pursuant to Public Health Law § 2805-l, including incident reports prepared pursuant to Mental Hygiene Law § 29.29.
Similarly, in Stalker v Abraham (69 AD3d 1172, 1173 [3d Dept 2010]), the court explained that Public Health Law 2805-m, together with Education Law 6527 (3),:
"[S]afeguard[s] information collected as part of a medical review committee's periodic assessment of physicians' credentials and competence in order to encourage frank and objective discussion during the credentialing process (see Logue v Velez, 92 NY2d 13, 17 [1998]). . . 'Public Health Law § 2805-m confers complete confidentiality on information gathered by a hospital in accordance with Public Health Law §§ 2805-j and 2805-k, expressly exempting it from disclosure under CPLR article 31' (Logue v Velez, 92 NY2d at 17 [citation omitted])."
Case law demonstrates that "[i]t is the burden of the entity seeking to invoke the privilege to establish that the documents sought were prepared in accordance with the relevant statutes" (Marte v Brooklyn Hosp. Ctr., 9 AD3d 41, 46 [2d Dept 2004]). The facility invoking the privilege must "'show that it has a review procedure and that the information for which the exemption is claimed was obtained or maintained in accordance with that review procedure'" (Kivlehan v Waltner, 36 AD3d 597, 599 [2d Dept 2007], quoting Bush v Dolan, 149 AD2d 799, 800-801 [3d Dept 1989]).
Edward Marra, DDS, Regional Dental Director for the Department of Corrections and Community Supervision for Bare Hill and Franklin Correctional Facilities, respectively, among others, states in his affidavit that he "conducted Dental Quality Assurance Audits for both Bare Hill and Franklin for the years" covered by claimant's demand to produce.
Dr. Marra further states that "at least two of the purposes of the Department of Corrections and Community Supervision in requiring that Dental Quality Assurance Audits be performed are to attempt to avoid or deter medical or dental malpractice from occurring and to insure that the dental staff members are performing their functions professionally and competently."
The Court finds that Dr. Marra's affidavit affords to defendant prima facie entitlement to the exemption from disclosure provided by Public Health Law 2805-m and by Education Law 6527 (3) for "records relating to performance of a medical or a quality assurance review function or participation in a medical and dental malpractice prevention program."
On this record, however, the Court cannot determine whether all, or portions, of the documents sought by claimant are properly exempted from disclosure by Education Law 6527 (3) and Public Health Law 2805-m. Defendant is therefore directed to provide to the Court for "in camera inspection [copies] of the documents responsive to [claimant's] request to enable it to determine which of the documents, or portions thereof, if any, are entitled to the statutory privileges . . . and, furthermore, whether they are 'material and necessary' to the prosecution of this action under CPLR 3101 (a)" (Chardavoyne v Cohen, 56 AD3d 508, 509 [2d Dept 2008]).
Defendant is directed to provide copies of the requested Dental QAAs to the Court for in camera review within thirty (30) days of the filing of this Decision and Order.
April 22, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion (M-85774), filed September 25, 2014;
2. Affidavit of Joan Matalavage, sworn to September 25, 2014, and attached exhibits;
3. Affirmation of Gary E. Divis, dated November 4, 2014, and attached exhibit;
4. Affidavit of Joseph Capaldo, sworn to October 13, 2014;
5. Claimant's Notice of Motion (M-86104), filed December 22, 2014;
6. Affirmation of Gary E. Divis, dated December 22, 2014, and attached exhibits;
7. Affirmation of Joan Matalavage, sworn to February 26, 2015, and attached exhibits;
8. Affidavit of Edward Marra, sworn to February 25, 2015;
9. Reply Affirmation of Gary E. Divis, dated March 8, 2015, and annexed exhibits.