Opinion
110709/06.
October 15, 2009.
MEMORANDUM DECISION
In accordance with the accompanying Memorandum Decision, it is hereby
ORDERED that the branch of plaintiffs' motion to vacate this Court's September 11, 2009 Order that permitted defendant. Green Acres Mall LLC to amend its CPLR 3101(d) expert disclosure of Dr. Barbara Freeman previously served on June 11, 2009, on the medical malpractice issues in this action, is denied; and it is further
ORDERED that the branch of plaintiffs' motion to renew and reargue said Order is granted solely as to reargument; and it is further
ORDERED that upon reargument, the branch of plaintiffs' motion to preclude defendants Green Acres, Vornado Realty Trust and Meadowland Contracting Inc. from presenting any evidence about the medical malpractice of the settling defendants, Dr. Jeffrey Richmond, North Shore University Hospital and Peninsula Medical Center, is denied; and it is further
ORDERED that the Court adheres to its direction that plaintiffs reveal the name and address of their medical malpractice experts whose limited disclosure was made available by plaintiffs' attorneys during discovery; and it is further
ORDERED that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.
Plaintiffs Eli Verschleiser ("plaintiff") and Julie Verschleiser ("plaintiffs") seek to vacate this Court's September 11, 2009 Order that permitted defendant Green Acres Mall LLC ("Green Acres") to supplement "with more specificit[y]" its CPLR 3101(d) expert disclosure of Dr. Barbara Freeman previously served on June 11, 2009, on the medical malpractice issues in this action, or alternatively, to renew and reargue said Order and preclude defendants Green Acres, Vornado Realty Trust ("Vornado") and Meadowland Contracting Inc. ("Meadowland") from presenting any evidence about the medical malpractice of the settling defendants, Dr. Jeffrey Richmond, North Shore University Hospital and Peninsula Medical Center (collectively, the "malpractice defendants"). Plaintiffs also challenge defendants' prior request that plaintiff reveal the name and address of their medical malpractice experts whose limited disclosure was made available by plaintiffs' attorneys during discovery.
The Court's Order, which also adjourned the jury trial scheduled on September 11, 2009, was placed on the record. The Court also ruled that defendants were entitled to call the plaintiffs' expert witnesses as their own if plaintiff did not continue to use them as his experts at trial.
Motion
In support of renewal and reargument, plaintiffs argue that this Court did not have enough information, history and background to make its determination. Plaintiffs maintain that a prior order of the Court (J. Carey) terminated all expert disclosure on July 15, 2009 and that Green Acres failed to show good cause to permit it to serve "last-minute" expert disclosure to support its medical malpractice cross-claims; the court overlooked caselaw that precludes testimony from a liability expert where a party failed to provide the substance of the expert testimony until a few days before trial and failed to demonstrate good cause for failing to comply with CPLR 3101(d); it is unjust for the defendants to supplement their expert disclosure since plaintiffs relied upon the prior Court order and settled with the malpractice defendants based on the fact that Green Acres's expert disclosure was inadequate to establish medical malpractice on their cross-claim; and the expert disclosure fails to identify a single treating physician nor does it mention any particular alleged departures from good and accepted medical practice.
Plaintiffs contend that when defendants first asserted that they wanted to pursue a medical malpractice cross-claim, Judge Carey noted there was no expert disclosure by the defendants to support this new claim, and ordered a memorandum of law on the issue. After reviewing the memorandum of law, Judge Carey stated that she was inclined to deny this application and that stated that no further CPLR 3101(d) disclosure was permitted unless ordered by the Court. As of September 8, 2009, neither of the premises defendants had served a CPLR 3101(d) notice identifying malpractice by any of plaintiff's treating physicians or hospital.
Plaintiffs argue that defendants knew since the commencement of this action that plaintiffs were seeking damages from them as the initial tortfeasors, and from the medical malpractice defendants as the successor tortfeasors. Although defendants had three years to establish their medical malpractice cross-claims, they failed to serve a CPLR 3101(d) notice of any proposed expert testimony setting forth departures or deviations from good and accepted medical practice. Plaintiffs would be severely prejudiced if defendants were permitted to assert new medical malpractice claims, since they relied on the fact that defendants served no such CPLR 3101(d) notice. Plaintiffs' settlement with the malpractice defendants and failure to prepare for trial does not constitute good cause.
Further, Dr. Freeman's expert disclosure fails to set forth departures from good and accepted practice, and thus, defendants cannot prove a prima facie case of malpractice. And, defendants' expert disclosure is silent on the issue of whether there were any departures or deviations from good and accepted medical practice that were a proximate cause of plaintiff's condition. Thus, defendants' malpractice cross-claims are barred.
Defendant Meadowland's Opposition
With regard to the movant's request for renewal, there has been nothing additional provided to this Court other than what was presented during argument on September 11, 2009. Similarly, there has been no indication that there has been any misapprehension of law or fact by this Court to support reargument.
Meadowland argues that there are no new issues to be presented at trial beyond that which was the subject of the medical malpractice claims, that were the subject of full discovery. Meadowland has maintained a cross-claim against the malpractice defendants since service of its Answer. The defendants are not seeking to call any new expert, but rather, only those experts previously disclosed in June 2009.
The expert disclosure of Dr. Freeman specifically states that she is expected to testify as to the aspects of plaintiff's current condition, that the diagnosis of plaintiff's Compartment Syndrome and his compartmental release was late, and as to the functional status that plaintiff would likely have had if the diagnosis of Compartment Syndrome and Compartmental Release was performed in a reasonable timeframe. Thus, unlike the case where there was a complete absence for more than six years of any cross-claim or other indication a claim would be made and where there was the exchange of new experts, there are no "new experts" at issue in this case, nor are there any "new theories." Thus, there is no prejudice.
Meadowland also notes that plaintiffs' CPLR 3101(d) disclosures were served on February 25, 2009 and March 16, 2009 by plaintiffs' counsel himself.
With regard to the calling of plaintiffs' experts in this case, caselaw permits a defendant to call the plaintiffs' expert. Once the settlement occurred, Meadowland demanded that plaintiffs identify the experts set forth in their 3101(d) disclosures, so that Meadowland could call them as witnesses.
Opposition by Green Acres and Vornado
Although plaintiffs' motion was directed against Green Acres, Vornado and Meadowland, defendants EQK Green Acres, L.P., the opposition by Green Acres and Vornado is also submitted on behalf of EQKGA, Inc. and Vornado Realty, L.P.
Dr. Freeman performed a physical examination of the plaintiff on August 8, 2007 and a report was exchanged with the plaintiffs' counsel shortly after it was completed. Thereafter, the plaintiff underwent an additional operative procedure involving a tendon transfer to his left hand. Dr. Freeman reviewed the operative notes and medical records relating to this additional procedure and thereafter rendered a supplemental report regarding the plaintiffs condition, which was also exchanged with the plaintiffs' counsel shortly after it was generated.
In accordance with Judge Carey's order, defendants served expert disclosure of Dr. Freeman dated June 11, 2009 on all parties, attaching Dr. Freeman's reports and her curriculum vitae. Defendants addressed Dr. Freeman's anticipated testimony relating to her reports, the late diagnosis of Compartment Syndrome and its effects on plaintiff's injuries and conditions, that the plaintiff's compartmental release was late and what the plaintiff's functional status would have been if the compartmental release was performed in a reasonable time frame, the early vs. late diagnoses of Compartment Syndrome and the clinical signs and symptoms of each which support her findings that the plaintiffs diagnosis of compartment syndrome was late. "Late" means untimely and when used in the context of medical care, evidences malpractice or negligent treatment.
Plaintiffs settled with the malpractice defendants on August 24, 2009 for $4.65 million and triggered the provisions of General Obligations Law ("GOL") 15-108. To properly apply GOL 15-108, a jury must determine the percentage of fault attributable to the settling defendants so that it can be determined whether that percentage or the settlement is greater for purposes of a set off. The day after the settlement, defendants wrote to the plaintiffs designating his medical malpractice experts as expert witnesses who may be called at trial and designating them as supplemental medical malpractice experts to the already disclosed expert, Dr. Freeman; plaintiffs' experts' testimony would serve to supplement that of Dr. Freeman in disclosing the relevant malpractice issues in this case and the role that the malpractice defendants' negligence had on the plaintiff's ultimate injury.
Judge Carey did not issue a ruling in this case and referred the case to this Court for disposition of the issue of defendants' expert disclosure and malpractice cross-claim.
It is argued that defendants are entitled to present evidence of the settling malpractice defendants' negligence insofar as a jury must be privy to all details of the case in order to come to a rational and correct conclusion regarding liability and the plaintiff is not prejudiced by this insofar as defendants' intent to do so was disclosed in proper CPLR 3101(d) disclosure months prior to trial. Plaintiff cannot claim to be surprised that the defendants intended to put forth at trial, testimony regarding the alleged malpractice of the settling defendants.
Further, expert disclosure need only present evidence of a departure or deviation from good and accepted standards to set forth a prima facie case of medical malpractice, and need not state the words "deviation from good and accepted practice."
Additionally, although defendants' designation of plaintiffs' experts came three weeks before trial and not on the eve of trial thereby obviating need to show good cause, defendants have shown good cause, e.g. the plaintiffs settled with the medical malpractice defendants on August 24, 2009, now making it incumbent upon the defendants to solely present issues of malpractice to the jury in order to properly apply the General Obligations Law. Defendants have also established that plaintiffs would not be prejudiced by the defendants' use of these experts. Defendants designated these witnesses as their experts three weeks prior to trial; plaintiffs were aware of their anticipated testimony as they interviewed and drafted expert disclosure of these witnesses; and this Court granted plaintiffs the opportunity to take measures which plaintiffs chose to do by October 14, 2009, in order to retain a rebuttal witness and prepare his case for trial.
Discussion
The motion to renew, when properly made, posits newly discovered facts that were not previously available or a sufficient explanation is made why they could not have been offered to the Court originally ( see discussion in Alpert v Wolf, 194 Misc 2d at 133, 751 NYS2d 707; D. Siegel New York Practice § 254 [3rd ed. 1999]). A motion to renew, "is intended to draw the court's attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court's attention"(Beiny v Wynyard, 132 AD2d 190, 522 NYS2d 511, lv. dismissed 71 NY2d 994, 529 NYS2d 277).
A motion for leave to reargue, on the other hand, under CPLR 2221, "is addressed to the sound discretion of the court and may be granted only upon a showing 'that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision"' ( William P. Pahl Equipment Corp. v Kassis, 182 AD2d 22 [1st Dept] lv. denied and dismissed 80 NY2d 1005, 592 NYS2d 665, rearg. denied 81 NY2d 782, 594 NYS2d 714). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ( Pro Brokerage v Home Ins. Co., 99 AD2d 971, 472 NYS2d 661) or to present arguments different from those originally asserted ( Foley v Roche, 68 AD2d 558, 418 NYS2d 588)" ( William P. Pahl Equipment Corp. v Kassis, supra). On reargument the court's attention must be drawn to any controlling fact or applicable principle of law which was misconstrued or overlooked ( see Macklowe v Browning School, 80 AD2d 790, 437 NYS2d 11 [1st Dept 1981]).
The Court finds that there are no new facts which would justify a grant of renewal. However, to the extent plaintiffs' argue that the Court misapprehended the caselaw, this court will exercise its discretion, and grant the plaintiffs' motion for leave to reargue.
CPLR 3101(d) provides that a party "disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify . . . and a summary of the grounds for each expert's opinion." Whether such disclosure contained the words "departures" or "deviations" "from good and accepted medical practice" is not dispositive as to whether the disclosure satisfies CPLR 3101(d) ( see, e.g., Hara v Levin, 2003 WL 1240518 [Supreme Court Bronx County] [finding as wholly insufficient disclosure that stated that "the deviation or departure from accepted practice which caused plaintiff's injuries . . . can be found in the relevant medical records, the findings of the expert's independent examination, and the medical ophthalmic expert testimony elicited at trial"] [emphasis added]).
The alleged negligence of the malpractice defendants and the specifics of the anticipated testimony of Dr. Freeman regarding such malpractice were addressed in defendants' 3101(d) disclosure dated June 11, 2009:
"Dr. Freeman will testify that her physical examination of the plaintiff, and her review of the plaintiffs medical records are consistent with a late diagnosis of compartment syndrome and a late compartment release. Dr. Freeman is expected to testify regarding which aspects of plaintiff's current condition and which treatments as indicated by his medical records support a finding that the diagnosis of plaintiff's compartment syndrome. and his compartmental release was late. She is also expected to testify as to the functional status that the plaintiff would likely have had if the diagnosis of compartment syndrome and the compartmental release was performed in a reasonable time frame." "It is also expected that Dr. Freeman will provide expert testimony regarding compartment syndrome, its definition, details regarding compartment syndrome and its effects, causes, damage which results from compartment syndrome, the level of damage that may result depending on when compartment syndrome is diagnosed, clinical recommendations on diagnosis times for compartment syndrome, correlations between diagnosis time and resulting nerve and/or muscle damage, clinical testing for compartment syndrome, early vs. late diagnosis of compartment syndrome and the expected effects on muscle and nerves following later diagnoses of compartment syndrome, expected effects on muscles and nerves following early diagnoses of compartment syndrome, clinical trends associated with compartment syndrome and clinical signs used to diagnose or rule out compartment syndrome. Importantly, Dr. Freeman will provide expert testimony about the conditional and medical differences between the acute and chronic parts of the compartment syndrome and problems that are associated with compartment syndrome alongside the expected recovery that would follow both early and late diagnoses and compartmental releases."
Defendants' expert disclosure of Dr. Freeman specifically sets forth defendants' intent to present proof as to the malpractice allegedly committed by the malpractice defendants, a claim that the malpractice defendants untimely diagnosed Compartment Syndrome, and the extent of the plaintiff's injury that was caused by that late diagnosis. It cannot be said that the disclosure is "'so general and nonspecific that [defendants have] not been enlightened to any appreciable degree about the content of this expert's anticipated testimony' ( Richards v Herrick, 292 AD2d 874, 874, 738 NYS2d 470 [4th Dept 2003]). Thus, defendants' disclosure of Dr. Freeman's expert testimony sufficiently provided plaintiffs notice of the subject matter and the substance of the facts and opinions of which Dr. Freeman is expected to testify and a summary of the grounds for Dr. Freeman's opinion.
As to defendants' request to amend or supplement Dr. Freeman's expert disclosure with the expert opinion of plaintiffs' designated expert, CPLR 3101(d) also provides that "where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph" (CPLR 3101(d)). Upon motion of any party, or on its own initiative, "the court may make whatever order may be just" ( Id.). Where a party "fails to comply with a request for expert disclosure without showing good cause therefor, the trial court has the authority to preclude the party from offering expert testimony, particularly in a medical malpractice action, where expert testimony is normally required to establish a prima facie case" (Meyer v Zeichner, 263 AD2d 597, 693 NYS2d 274 [3d Dept 1999]).
It is noted that the day after the August 24, 2009 settlement with the malpractice defendants, defendants notified plaintiffs of their designation of plaintiffs' medical malpractice experts as expert witnesses who may be called at trial and designating them as supplemental medical malpractice experts. Defendants do not disclose a "new" expert unknown to plaintiffs, but designated plaintiffs' own medical malpractice experts to supplement the testimony of defendants' previously designated expert. Defendants' cross-claims against the medical malpractice defendants were alleged at the outset of this litigation and have not been dismissed or rendered moot by the plaintiffs' settlement with the malpractice defendants or abandoned by defendants. Defendants seek to supplement their June 11, 2009 disclosure with their designation of plaintiffs' experts on August 25, 2009, three weeks prior to the original September 8, 2009 trial date and now seven weeks prior to the actual start date for trial. The supplemental designation of plaintiff's experts would not raise any new defense theory and only to supplement the malpractice theories as they relate to the negligence of the settling defendants. Plaintiffs has sufficient time to adjust his trial strategy and prepare for trial if necessary. To the extent plaintiffs no longer intend to call their expert witnesses due to the settlement with the malpractice defendants, defendants should be permitted to call such experts to ensure that the jury has available to it all expert testimony, and there is no prejudice to plaintiffs who are aware of the anticipate expert testimony.
Further, it has been held that "[a]n expert belongs to no one" and "[w]ith respect to his or her observations that expert should be subject to call (or subpoena) by any party . . . With respect to the opinion of an expert, that opinion 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" ( Carrasquillo v Rothschild, 110 Misc 2d 758, 443 NYS2d 113 [Supreme Court Bronx County 1981]). The "trier of fact is entitled to all available information. . . . "(Demeter v Memorial Hosp. for Cancer and Allied Diseases, 156 Misc 2d 688, 594 NYS2d 591 [Sup Ct New York County 1993]).
With respect to defendants' showing of "good cause" the Court notes that GOL 15-108 grants defendants a set off either in the sum of the settlement that the plaintiff reached with the medical malpractice defendants or the percentage of fault attributed to those settled out defendants, whichever is greater. Thus, defendants are entitled to demonstrate the settling malpractice defendants' culpability for the jury to consider in their apportionment of liability to each respective defendant. Here, "good cause" exists to permit defendants to amend their expert disclosure.
The cases cited by plaintiffs are factually distinguishable from the case at bar.
Further, plaintiffs' opposition to defendants' request for the name and addresses of their medical malpractice experts lacks merit.
Therefore, upon reargument, the Court adheres to its ruling on the record. Conclusion
Based on the foregoing, it is hereby
ORDERED that the branch of plaintiffs' motion to vacate this Court's September 11, 2009 Order that permitted defendant Green Acres Mall LLC to amend its CPLR 3101(d) expert disclosure of Dr. Barbara Freeman previously served on June 11, 2009, on the medical malpractice issues in this action, is denied; and it is further
ORDERED that the branch of plaintiffs' motion to renew and reargue said Order is granted solely as to reargument; and it is further
ORDERED that upon reargument, the branch of plaintiffs' motion to preclude defendants Green Acres, Vornado Realty Trust and Meadowland Contracting Inc. from presenting any evidence about the medical malpractice of the settling defendants, Dr. Jeffrey Richmond, North Shore University Hospital and Peninsula Medical Center, is denied; and it is further
ORDERED that the Court adheres to its direction that plaintiffs reveal the name and address of their medical malpractice experts that were disclosed by plaintiffs' attorneys during discovery; and it is further
ORDERED that defendants serve a copy of this order with notice of entry upon all parties within 20 days of entry.
This constitutes the decision and order of the Court.