Opinion
INDEX NO. 505880/2014
03-07-2018
CHARLES J. THOMAS, as guardian of the property of MAGOMED ABDUSALAMOV, an incapacitated person, BAKANAY ABDUSALAMOVA, individually, PATIMAT ABDUSALAMOVA, SHAKRIZAT ABDUSALAMOVA and SAYGIBAT ABDUSALAMOVA as infants by their mother and natural guardian BAKANAY ABDUSALAMOVA, Plaintiffs, v. ANTHONY G. CURRERI, M.D., OSRIC S. KING, M.D., GERARD P. VARLOTTA, D.O., BENJAMIN ESTEVES, JR., Defendants.
NYSCEF DOC. NO. 842
DECISION/ORDER
Motion Seq. No. 40
Date Submitted: 3/1/18
Cal. No. 63Recitation, as required by CPLR 2219(a), of the papers considered in the review of plaintiffs' motion to disqualify defendant Gerard P. Varlottta's expert.
Papers | NYSCEF Doc. |
|---|---|
Order to Show Cause, Affirmation and Exhibits Annexed | 796, 825-827 |
Answering Affirmation and Exhibits Annexed | 830-839 |
Reply and Exhibit Annexed | 840-841 |
Upon the foregoing cited papers, the Decision/Order on this application is as follows:
This is a medical malpractice and negligence action arising from a boxer's injuries during and following a professional boxing match. Plaintiffs move to disqualify Michael Schwartz, D.O. from serving as an expert for defendant Gerard P. Varlotta, D.O., based upon the fact that plaintiffs' counsel consulted with Dr. Schwartz for the purpose of possibly retaining him as plaintiffs' expert witness.
As the Third Department explained in Roundpoint v V.N.A. Inc. (207 AD2d 123, 125 [3d Dept 1995] [internal citations omitted]):
To resolve the issue of whether a claimed conflict of interest disqualifies an expert, courts have used a two-step analysis, first seeking to determine if 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, secondly, to ascertain if any confidential or privileged information was disclosed by said party to the expert. Affirmative answers to both inquiries requires disqualification while negative responses to either inquiry will likely result in a finding that disqualification would not be appropriate.
Here, although plaintiffs' counsel consulted with the defendant's expert, he did not retain him, and under the circumstances, it is not objectively reasonable to conclude that a confidential relationship existed (see Winzelberg v 1319 50th St. Realty Corp., 114 AD3d 673 [2d Dept 2014]). Even if a consultation with an expert, without retention, could create a confidential relationship in some circumstances, there is no indication that the one15 to 20 minute telephone conversation between Dr. Schwartz and plaintiffs' counsel herein involved the disclosure of privileged or confidential information. Schwartz asserts that no privileged information or confidences were imparted to him by plaintiffs' counsel which he did not already know about from the publicity following the bout.
Plaintiffs' counsel offers only conclusory claims that confidential and privileged information had to have been provided to the expert, thereby failing to satisfy plaintiffs' burden on the motion (see Winzelberg v 1319 50th St. Realty Corp., 35 Misc 3d 715, 718 [Sup. Ct., Kings County 2012] ["neither the movant nor the Synagogue have alleged that confidential information was actually disclosed to" the expert], affd. 114 AD3d 673 [2nd Dept 2014]; Tower Ins. Co. of New York v State, 20 Misc 3d 698, 702 [Ct. Cl. 2008] [expert denied having obtained confidential information which was not controverted]; Rodriguez v Pataki, 293 F Supp 2d 305, 312 [SDNY] ["conclusory claims that expert received 'confidential' information 'regarding [their] analyses, thought processes, and deliberations' insufficient to meet burden on motion to disqualify"], affd. 293 FSupp. 2d 315 [SDNY 2003]; cf. Pazooki v. Richard Obreza Trucking, Inc., 2005 N.Y. Misc. LEXIS 8434, *1 [Sup Ct., NY County 2005] [evidence that privileged information was disclosed to expert that was not controverted by expert].
Indeed, as with motions for attorney disqualification, the court must be mindful of the use of motions to disqualify experts for tactical advantage where no confidences have been revealed (see Solow v W.R. Grace & Co., 83 NY2d 303, 310 [1994] ["such disqualification motions may be used frivolously as a litigation tactic when there is no real concern that a confidence has been abused"]). Moreover, it would be unfair to allow one party to limit the available pool of experts in a specialty by briefly consulting with each of them, particularly where the expert expressed an adverse opinion (cf. Carrasquillo v Rothschild, 110 Misc 2d 758, 760 [Sup. Ct., Bronx County 1981] ["the opinion of an expert . . . should be equally available to all parties willing to pay an appropriate fee for time consumed by travel and testimony, and for whom the expert is willing to testify as to that opinion. To conclude [otherwise] would enable one party to the litigation to deny access to outstanding experts in a particular field to its adversary by consulting and 'retaining' those experts first"]; United States v International Business Machines Corp., 406 F Supp 175, 178 [SDNY 1975] ["a party to a lawsuit involving highly specialized technology could, by the employment of experts, effectively insulate itself from the highly probative testimony that those experts might provide"]).
Accordingly, it is
ORDERED that the motion is denied.
This shall constitute the decision and order of the court. Dated: March 7, 2018
ENTER:
/s/_________
Hon. Debra Silber, J.S.C.