Gonzalez v Ellenberg

[*1] Gonzalez v Ellenberg 2004 NY Slip Op 51518(U) Decided on October 12, 2004 Supreme Court, New York County Smith, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 12, 2004
Supreme Court, New York County

NICHOLAS J. GONZALEZ, Plaintiff,

against

MICHAEL ELLENBERG, SUZANNE RAPISARDA, KAREN HUTSON, ELLENBERG & HUTSON, LLP and MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, , Defendants.



0602011/00

Karen S. Smith, J.

Defendants' Michael Ellenberg, Suzanne Rapisarda, Karen Hutson, and Ellenberg & Hutson, LLP's ("Ellenberg defendants"), motion for an order granting summary judgment dismissing the complaint is granted to the extent that the complaint, as asserted against defendants Rapisarda and Hutson in their individual capacities, is dismissed.

Procedural Background

On May 22, 2000, plaintiff Dr. Nicholas Gonzalez, filed the instant complaint. The complaint alleges that the Ellenberg defendants' legal representation of him in an underlying medical malpractice action constitutes legal malpractice. Plaintiff also alleges that defendant Medical Liability Insurance Company ("MLMIC") breached its contract with him by failing to provide him with adequate representation in the underlying action.The Ellenberg defendants interposed an answer on February 12, 2002.

The instant action was reassigned to this court on April 3, 2004 after (1) defendants'

motion to dismiss the complaint pursuant to CPLR § 3211[a][5] on statute of limitation grounds, was denied by Justice Diane Lebedeff on August 22, 2001, and after (2) long and protracted discovery proceedings were held before Justice Lebedeff on October 23, November 21, December 9, 2002, and January 28, 2003 in response to defendants' demands for greater specificity in plaintiff's bill of particulars.

In December 2003, the Ellenberg defendants moved to dismiss the complaint for failure to state a cause of action, pursuant to CPLR § 3211[a][7]. On April 15, 2004, a conference was held, at which time the parties were given notice pursuant to CPLR § 3211[c], that the court would treat the motion as a motion for summary judgment. A briefing schedule was set, and on July 8, 2004, affidavits, exhibits and memoranda of law were submitted simultaneously. Oral [*2]argument was held on August 26, 2004. Defendant MLMIC does not appear on the motion.

Underlying Medical Malpractice Case

The underlying case, which serves as the basis for this legal malpractice claim, was commenced in December 1993, by Julianne Charell, a former patient of Dr. Gonzalez, (Charell v. Gonzalez, Index No. 13170/99, Sup Ct. NY County ["the Charell action"].

Briefly, the facts in the underlying medical malpractice action are: Ms. Charell began treating with Dr. Gonzalez in 1991 following surgery which removed of tumors in the endometrial lining of her uterus. Following surgery at Mount Sinai Medical Center ("Mount Sinai"), it was recommended to her that she follow a post surgical orthodox treatment of external beam radiation and chemotherapy. Also available to her at the time was an experimental protocol developed by Dr. Dottino, her oncologist at Mount Sinai, referred to as the "Dottino Protocol." After conducting some research into available treatments and after consultation with Dr. Gonzalez, Ms. Charell rejected the treatments offered at Mount Sinai and opted for treating with Dr. Gonzalez. Dr. Gonzalez's alternative protocol involved an individually tailored food diet and a plethora of vitamins and mineral supplements designed to bolster Ms. Charell's immune system, and six coffee enemas a day, designed to remove toxins from her body. After a period of treatment with Dr. Gonzalez, it was discovered that there were cancer cells in Ms. Charell's spine. Thereafter, Ms. Charell returned to Mount Sinai for further treatment, at which time she received external beam radiation and chemotherapy. Sometime in this period she began having problems with her eyesight, back and hip. Ms Charell continued to treat with the Mount Sinai doctors for these conditions for which she received strong medications. Eventually she lost her eyesight and was left with serious back and hip problems.

Ms. Charell sued Dr. Gonzalez, alleging that Dr. Gonzalez departed from good and accepted medical practice in the area of cancer treatment for endometrial cancer in that he (1) caused her to reject post surgical orthodox treatment of radiation and chemotherapy, which would have helped her, (2) convinced her to adopt his alternative protocol, which caused her to lose her eyesight and to develop severe hip and back problems, and (3) failed to inform her that his alternative protocol was not accepted by the medical establishment. Ms. Charell sought both compensatory and punitive damages.

Defendant MLMIC, Dr. Gonzalez's medical malpractice insurance carrier, with whom he had a $1,000,000 policy, appointed defendant law firm to represent Dr. Gonzalez in the Charell action. Defendant Michael Ellenberg, and defendant Karen Hutson are partners in the law firm. Defendant Ellenberg served as Dr. Gonzalez's counsel throughout the litigation. Defendant Suzanne Rapisarda, an associate at the law firm, assisted defendant Ellenberg in the preparation of the case for trial.

The Verdict in the Charell Action

On March 27, 1997 a jury rendered a verdict in the Charell action finding that Dr. Gonzalez was 51% responsible and Ms. Charell was 49% responsible for her injuries. The jury awarded damages in the amount of (1) $2,500,000 for past pain and suffering, (2) $2,000,000 for [*3]future pain and suffering, (3) $125,000 for past loss of earnings, and (4) $75,000 for future loss of earnings. The jury also found that Ms. Charell was entitled to punitive damages in the amount of $150,000.

Dr. Gonzalez moved to set aside the jury's verdict in its entirety and Ms. Charell cross-moved to set aside the portion of the verdict that found that she had assumed a risk of injury to herself. Both motions were denied by the trial judge, Justice Edward Lehner. (Charell v. Gonzalez, 173 Misc 2d 227 [Sup. Ct. NY County 1997]). The Appellate Court modified, setting aside the award for punitive damages. (Charell v. Gonzalez, 251 AD2d 72 [1st Dept 1998]).

As a result of the verdict and the $1,000,000 limit on his malpractice insurance policy, Dr. Gonzalez was responsible for the excess award, which amounted to $1,300,000. Dr. Gonzalez filed for bankruptcy; Ms. Charell intervened, and the parties settled for $330,000.

The Complaint in This Action

The gravamen of plaintiff's complaint is that defendant Ellenberg failed to provide Dr. Gonzalez with an adequate defense in the Charell action, in that Ellenberg (1) failed to read medical texts and studies provided to him, (2) failed to investigate, interview and depose witnesses whose names were given to him, (3) failed to call expert and other witnesses at trial to support plaintiff's treatment of Ms. Charell, (4) failed to properly prepare for the cross-examination of Ms. Charell's expert witness, Dr. Holland, and (5) failed to commence a third party action against the Mount Sinai doctors, whom Dr. Gonzalez maintains, caused Ms. Charell's injuries.

Plaintiff maintains that these actions constitute negligence, were the proximate cause of his damages, and that but for these acts of negligence by the defendant, the outcome of the Charell action would have been different.

In his complaint and amended bills of particulars, plaintiff includes eight categories of actions which he claims constitute a departure from good and accepted legal practice. The departures include:

1. the Ellenberg defendants' conflict of interest in representing Dr. Gonzalez at the same time as serving as counsel for MLMIC;

2. the failure to conduct the proper investigation into the literature and studies which showed (a) that neither chemotherapy and external beam radiation nor the Dottino Protocol, were accepted forms of treatment for Ms. Charell's type and stage of cancer, and (b) that Dr. Gonzalez's protocol was an accepted form of treatment;

3. the failure to obtain discovery documents, specifically Ms. Charell's medical records from Mount Sinai; 4. the failure to interview, depose and call Dr. Dottino, Dr. Paciuc and other of Ms. Charell's treating physicians at Mount Sinai; and the failure to interview and call experts at trial in support of Dr. Gonzalez's therapy;

5. the failure to properly conduct and defend party depositions;

6. the failure to timely submit a motion for summary judgment in the Charell actionin behalf of Dr. [*4]Gonzalez; the failure to develop assumption of the risk and object to Ms. Charell's expert's unsworn affidavit submitted in opposition to the motion for summary judgment, and, in the post trial motion, the failure to address causation and to clarify when [*5]Ms. Charell's vision problems began;

7. the failure to make appropriate objections at the time of trial, [FN1] and

8. the failure to commence a third party action against the physicians at Mount Sinai who

treated Ms. Charell after she stopped treating with Dr. Gonzalez.

In addition, Dr. Gonzalez claims that Ellenberg never informed him that (1) there was a possibility that he could lose, (2) a settlement offer had been made and accepted by Ms. Charell for the amount of the insurance policy, (3) if the jury awarded Ms. Charell an amount in excess of the policy, Ms. Charell would not agree to take the policy limit, and (4) he would be personally liable for any amount awarded in excess of the $1,000,000 policy limit.

Plaintiff alleges that as a result of these departures, he had to pay $330,000 in excess of his coverage, lost research contracts with institutions with whom he had contracts prior to the Charell verdict, and lost patients, which resulted in a substantial decline in his income.

Ellenberg Defendants' Summary Judgment Motion

The Ellenberg defendants ("movants") move for summary judgment dismissing the complaint asserted against them on the basis that plaintiff has failed to state a cause of action for legal malpractice. Movants argue that plaintiff has not demonstrated that the acts and conduct complained of constitute anything more than legal judgment and strategy and, as such, do not constitute a breach of the duty movants owed Dr. Gonzalez. Furthermore, according to movants, even if said acts were negligent, plaintiff is unable to prove, that "but for" the alleged negligence, plaintiff would have prevailed in the underlying medical malpractice action. The Ellenberg defendants further move to dismiss the action against defendants Hutson and Rapisarda individually, as plaintiff fails to allege or prove any specific acts and or conduct by them which constitute negligence.

Legal Malpractice is defined as the failure by an attorney to "exercise that degree of skill commonly exercised by an ordinary member of the legal community." (Estate of Nevelson v Carro, Spanbock, Kaster, & Cuiffo, 259 AD2d 282, 284 [1st Dept 1999]). In order to prevail on a cause of action for legal malpractice, a plaintiff must show that (1) defendant owes plaintiff a duty, (2) defendant breached that duty, and (3) actual damages were proximately caused by the breach. (Hatfield v. Herz, 109 F. Supp. 2d 174, 179 [S.D.NY 2000]). To establish the third element of proximate cause and actual damages, the plaintiff "must meet the 'case within a case' [*6]requirement, demonstrating that 'but for' the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages [citations omitted]." (Weil Gotshal & Manges LLP v. Fashion Boutique of Short Hills, Inc, ___AD3d___, *4, 2004 NY Slip Op 06304 [1st Dept, August 5, 2004]; Davis v. Klein, 88 NY2d 1008, 1009 [1996]; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, supra at 284). Actions or conduct which constitute an error of judgment or are found to constitute one of several alternative ways in which a reasonable prudent attorney would proceed, are not actionable as legal malpractice. (Kaye Scholer v. Estate of Moe Ginsburg, NYLJ July 15, 2004, at 20, col 1 [Sup Ct NY County]; Rosner v. Paley, 65 NY2d 736 [1985]; Rubinberg v. Walker, 252 AD2d 466 [1st Dept 1998]; Geller v. Harris, 258 AD2d 421 [1st Dept 1999]; see also, Bernstein v. Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]).

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320 [1987]). Once such a showing has been made, the burden shifts to the party opposing the motion to produce evidence in an admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action. (Zuckerman v City of New York, 49 NY2d 557 [1980]).

In a legal malpractice action, the movant must present evidence in an admissible form establishing that plaintiff is unable to prove at least one of the three elements of a malpractice cause of action. (Crawford v McBride, 303 AD2d 442 [2d Dept 2003]; Hatfield v. Herz, supra. at 179). The moving party has the burden of showing that no material issues of fact exist. (Hatfield v. Herz, id). However, "[c]onclusory, self-serving statements with no expert or other evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care," is not sufficient to sustain this burden. (Estate of Nevelson v Carro, Spanbock, Kaster, & Cuiffo, supra at 284).

To survive a motion for summary judgment in a legal malpractice action, plaintiff must (1) offer proof, in the form of expert opinion evidence, to establish the standard of professional care and skill that defendant allegedly failed to meet and, (2) offer evidence, in admissible form, to show that there are material issues of fact as to the elements of malpractice which defendant claims plaintiff is unable to prove. (Estate of Nevelson v Carro, Spanbock, Kaster, & Cuiffo, supra. at 284; Kaye Scholer v. Estate of Moe Ginsburg, supra.; Hatfield v. Herz, supra at 179-180).Generally, an attorney may be held liable for legal malpractice for "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action." (Bernstein v. Oppenheim & Co., supra. at 430). In addition, courts have found triable issues of fact in legal malpractice cases involving: an attorney's demeanor and the failure to call a witness at an arbitration (Berkeley v. Liddle, 247 AD2d 231 [1st Dept 1998]), the failure to obtain discovery (Bernstein v. Oppenheim & Co., supra.), the failure to include necessary parties as defendants (Kowalska v Budin, 5 AD3rd 196 [1st Dept 2004], and the failure to conduct adequate legal research (Shopsin v Siben & Siben, 268 AD2d 568 [2d Dept 2000]). An attorney's failure to call a witness at trial and to alert the judge of threats made to the witness, has resulted in a denial of a motion to dismiss a legal malpractice claim. (Weil Gotshal & Manges [*7]LLP v. Fashion Boutique of Short Hills, Inc., supra.).

The Ellenberg defendants' representation of Dr. Gonzalez at the same time they served as attorneys for Dr. Gonzalez's malpractice insurance carrier, defendant MLMIC, does not constitute legal malpractice. A conflict of interest, standing alone, does not serve as an independent basis for a malpractice claim (Sumo Container Station, Inc. v. Evans, Orr, Pacelli, Norton & Laffan. P.C., 278 AD2d 169, 169-170 [1st Dept 2000]).

As counsel for Dr. Gonzalez, the Ellenberg law firm, defendant Michael Ellenberg, as lead counsel in the Charell action, and defendant Rapisarda, an associate who worked on the Charell action, owed a duty of care to plaintiff to properly defend him. In contrast, there are no facts alleged in plaintiff's pleadings that defendant Hutson was personally involved in the Charell action, thus she owed no duty of care to plaintiff in her individual capacity. Plaintiff further fails to allege facts in his pleadings that defendant Rapisarda engaged in any acts which constitute a breach of the duty she owed plaintiff. The court thus finds that the Ellenberg defendants have made a prima facie showing that plaintiff is unable to prove at least one element of the malpractice claim against defendants Hutson and Rapisarda. As plaintiff has failed to raise any issues of fact in this regard, the motion is granted to the extent that the complaint is dismissed as to these two defendants.

There being no dispute that the remaining Ellenberg defendants, Michael Ellenberg and Ellenberg & Hutson, LLP, owed plaintiff a duty of care, their burden on this motion is to make a prima facie showing that plaintiff is unable to prove either (1) defendants breached that duty by failing to perform the acts listed in categories 2 - 7 above, or (2) but for these breaches, the outcome of the Charell action would have been different. For the reasons stated below, the court finds defendants have not met this burden. Generally, if no prima facie showing is made on a motion for summary judgment, the motion will be denied without regard to the opposing papers. In this case, in light of the § 3211[c] treatment and the simultaneous submission of additional papers, the court has considered all submitted papers.

Defendants argue that Ellenberg's actions in the Charell action were the exercise of his trial strategy. They further argue that even if the court were to find otherwise, plaintiff is unable to show that but for defendant Ellenberg's alleged negligence, the outcome of the Charell action would have been different. Defendant, however, fails to submit any affidavit from an expert or anyone else to support his argument. His motion is supported only by his own conclusory affidavit. Plaintiff , on the other hand, argues that defendant Ellenberg's negligent conduct was a direct result of his failure to study and comprehend the medicine in the case and the hostility he developed towards the defendant and defendant's form of treatment. In support of his position, plaintiff submits an attorney's affidavit in which he states that Ellenberg's representation was below the standard of care in the profession. Plaintiff also annexes affidavits from experts and other witnesses who state that they were available to testify at the trial in support of plaintiff's treatment of Ms. Charell but were either not contacted or were rejected by Ellenberg for spurious reasons.

The Failure To Conduct A Proper Investigation

In his pleading, plaintiff alleges that Ellenberg (1) failed to conduct the proper [*8]investigation into the literature and studies provided to him which showed that neither the orthodox/conventional treatment of chemotherapy and external beam radiation, nor the experimental Dottino Protocol, were accepted forms of treatment for Ms. Charell's type and stage of cancer at the time she treated with Dr Gonzalez, (2) failed to study the literature provided to him about the validity of Dr. Gonzalez's protocol, and (3) failed to interview experts and other witnesses familiar with Dr. Gonzalez's protocol who would have shown that Dr. Gonzalez's treatment was an accepted form of treatment for Ms. Charell, and that these failures constitute a breach of the duty defendants owed plaintiff.

In his affidavit, Ellenberg neither affirms nor denies whether he ever read or studied the literature provided to him in preparation for the Charell action. Instead, he states that his overall trial strategy was based on a reasonable exercise of judgment he made at the outset of the litigation that it was not a good idea to ask a New York County jury, "to debate the merits of plaintiff's treatment (alternative medicine) against conventional treatment." (Ellenberg's December 2, 2003 Affidavit , ¶11). Ellenberg further explains that he decided that it was better to argue that "conventional treatment was unproven and experimental, and that watchful waiting was an accepted treatment" for Ms. Charell's specific illness. (Ellenberg ¶11). Ellenberg further argues that it was not important that he understand the science in the case, as that was a job for the experts.

Plaintiff submits a threshold affidavit from Harry Kutner, Esq. a former Supreme Court Judge of the State of New York, who states that based on his review of the records in the Charell action, he concludes that the "lawyers performed below the standards of care in their representation of Dr. Gonzalez." (Kutner ¶4).

In support of his claims that defendant's failure to properly investigate the medicine and the issues in the case constitutes a breach of the duty defendant owed plaintiff, plaintiff submits an affidavit from William Bishin, Esq., Dr. Gonzalez's personal counsel, who consulted with defendant throughout the course of the litigation, who attests to the following facts: (1) He told the defendant about the Aalders study, a definitive study in the field of cancer treatment which supported Dr. Gonzalez's conclusion that there was no traditional treatment available for Ms. Charell, but defendant did not avail himself of it. (Bishin ¶3).(2) He advised defendant to interview Dr. Dottino and to study the "Dottino Protocol" to understand why the protocol was not a viable option for Ms. Charell, but Ellenberg failed to interview Dr. Dottino. (Bishin ¶9).(3) He provided defendant with the names of experts and other witnesses who defendant did not interview, depose or call as a witness at trial, who would have supported plaintiff's opinion that there was no other treatment, traditional or otherwise, and would have supported plaintiff's protocol. (Bishin ¶¶3, 7, 8, 9 and 11).(4) He cautioned defendant to carefully prepare for the cross-examination of Dr. Holland, as he was key to the case, and that defendant not only ignored his admonition but failed to investigate and uncover a text by Dr. Holland, which confirmed that traditional treatment was not an option for Ms. Charell, and which could have been used to effectively impeach Dr. Holland. (Bishin ¶7).(5) Both Ellenberg and his associate, Susan Rapisarda, made statements to him admitting that Ellenberg was not prepared for the trial. (Bishin ¶4).[*9](6) Throughout the litigation, Ellenberg appeared not to be on top of what was going on. (Bishin ¶¶2 and 3).

Plaintiff argues that in contrast to defendant's claim that the underlying trial involved alternative versus conventional treatment, the issue should have been whether there was any medically accepted treatment, traditional or otherwise, that would have helped Ms. Charell's type and stage of cancer. Based on the affidavits, plaintiff argues that if defendant Ellenberg read the Aalders study and the Devita Cancer text which were provided to him, studied the Dottino protocol, deposed Dr. Dottino, and interviewed experts such as Dr. Guesry, and Dr. Hyman, defendant would have understood that there was no medically accepted treatment for Ms. Charell and thus, that plaintiff's treatment was an accepted treatment for her. (Gonzalez's July 5, 2004 Affidavit, ¶¶6, 8 and 11a-d). Plaintiff further argues that Ellenberg's failure to impeach Dr. Holland was a major component of the jury's verdict against Dr. Gonzalez in the underlying action. Justice Lehner, in his decision in the Charell action denying Dr. Gonzalez's post trial motion to set aside the jury verdict, confirms the importance of Dr Holland's testimony to the outcome of the trial.

On the issue of proximate cause, while there was conflicting

evidence, the jury was entitled to find, in accordance with the

testimony of plaintiff's expert (Dr. Holland), that if plaintiff

were not improperly dissuaded from undertaking conventional

treatment, the cancer probably would not have metastasized and she

would not have had the recurrence and resulting blindness and back

problems.

(Charell v. Gonzalez, supra. at 232).

Unlike, plaintiff's submissions, defendant's submissions are conclusory in nature and amount to no more than self-serving statements. He never explains the basis for his determination that it was not a good idea to frame the case before a New York County jury as a debate between conventional and alternative treatment. He never explains his prior experiences with cases involving medical malpractice and alternative medicine, nor has he included a review of New York County jury verdicts in such cases. He also never explains the basis for his theory about the medicine in the case, which expert he relied upon, nor does he submit an expert's affidavit supporting his view of the medicine in the case. His argument that it was not important that he understand the science in the case as it was a job for the experts, ignores the fact that the entire trial strategy, including which witnesses to call and what questions to ask, is informed by one's understanding of the facts. In a medical malpractice action those facts necessarily include an understanding of the medicine at issue, as well as the law.

Defendants have failed to make a prima facie showing that plaintiff is unable to prove that defendant Ellenberg breached the duty he owed the plaintiff by failing to study the literature and investigate the medicine in the underlying action.

Defendants never specifically addresses the question as to whether plaintiff can prove that "but for" defendants' failure in this regard, the outcome of the Charell action would have been different. However, in medical malpractice, where the entire case revolves around the question [*10]of what is the accepted standard of care for the particular disease, it is at the very least a question of fact as to whether there would have been a different verdict in the underlying action had defendant Ellenberg presented evidence that there was no good and accepted standard of treatment for Ms. Charell and that Dr. Gonzalez's treatment was not a departure. Justice Lehner's decision supports plaintiff's position that there is a question of fact as to whether but for defendant's failure to put in evidence of the standard of care, the outcome of the case would have been different.

While there may be a public debate as to the merits of certain practices of non-conventional physicians, there was no similar debate with respect

to the evidence at this trial. The standard for proving negligence in a malpractice case is whether the treatment deviates from accepted medical standards. There was no testimony on behalf of defendant on this issue. [Emphasis added].

(Charell v. Gonzalez, supra. at 231-232).

The Failure To Interview, Depose And Call As Witnesses Experts

And Other Witnesses Supportive of Dr. Gonzalez's Treatment

Plaintiff contends that defendant Ellenberg's failure to interview, depose or call experts and other witnesses supportive of Dr. Gonzalez's treatment of Ms. Charell, was a breach of the duty Ellenberg owed the plaintiff.

In his affidavit, Ellenberg states that "he employed trial strategy" in his decision "not to call as an expert witness an oncologist to testify as to the 'orthodox' medical treatment," and that his "decision in this regard was based on [his] opinion that the testimony of an oncologist concerning the essentially unorthodox treatment, would only serve to undermine Dr. Gonzalez's defense." (Ellenberg ¶14). He further states that while he originally intended to call Dr. Blackburn, an oncology expert, to support Dr. Gonzalez's treatment of Ms. Charell, he reversed that decision because "a major issue in the case developed at the time of trial, whether an area in Charell's spine where metastasis occurred was within the scope of radiation that would have been administered in the Dottino Protocol." According to Ellenberg, he asked Dr. Blackburn the question at the airport the night before Dr. Blackburn was to testify. As Dr. Blackburn answered in the affirmative, and "thereafter appeared lukewarm about Gonzalez's treatment," Ellenberg decided not to have Dr. Blackburn testify at trial. (Ellenberg ¶¶12 and 13). Absent Dr. Blackburn's affidavit, defendant's claims about Dr Blackburn's changed opinions, constitute hearsay.

Ellenberg justifies his decision not to call other expert witnesses to support Dr. Gonzalez's treatment by citing another medical malpractice case against Dr. Gonzalez involving his alternative protocol. (Gray v Gonzalez, Index No.116948/96 [Sup Ct. NY County]). There, a jury found against Dr. Gonzalez, where Dr. Guesry, one of the same experts Dr. Gonzalez requested Ellenberg call as a witness in the Charell action, testified.

Ellenberg further states that he decided not to depose the Mount Sinai doctors based on his opinion that "those orthodox/conventional practitioners would have criticized Dr. Gonzalez's protocols during their depositions and [that] in response to questions by Ms. Charell's counsel [*11][they] would have painted Dr. Gonzalez as "a quack and his protocol as unscientific rubbish." (Ellenberg ¶15).

In opposition to the motion, plaintiff distinguishes the Gray case from the Charell case as the plaintiff in Gray had a distinctive type and stage of cancer and a distinctive history of prior treatment before treating with Dr. Gonzalez. (Gonzalez's December 16, 2003 Affidavit, ¶3). Plaintiff attaches affidavits from Dr. Julian Hyman, a retired long time practicing oncologist, and Dr. Pierre Guesry, the former head of the Pasteur Institute in Paris France, "widely known as one of the finest medical research institutes in the world" and who serves as Vice -President of the Nestle Company. Both doctors state in their affidavits they were willing and able to testify in the Charell action as expert witnesses in support of Dr. Gonzalez's treatment of Ms. Charell. (Hyman ¶¶3 and 4, Guesry ¶¶1, 5 and 6). Their affidavits contain the following: (1) that there was no traditional treatment available for Ms. Charell's cancer and that such view was generally accepted in the field of medicine and oncology, (Hyman ¶¶8[e], 9[a], and 9[b]),(2) that external beam radiation was contraindicated in Ms. Charell's case, (Hyman ¶¶8[c], 9[a] and [b]),(3) that the Dottino Protocol consisted of chemotherapy and a radioactive suppository, not external beam radiation as Ellenberg mistakenly thought, and that the Dottino Protocol was considered by the medical establishment to be an experimental treatment which failed in trial tests, (Hyman ¶6),(4) that both Hyman and Guesry were initially skeptical of Dr. Gonzalez's form of treatment but that after studying Dr. Gonzalez's case files they concluded that both his method of diagnosis and type of treatment were valid, (Hyman ¶¶2,3,7, and 8, Guesry ¶¶3, 4 and 6), and(5) that there was institutional support for plaintiff's work from both the National Institute of Health and the Nestle Company, (Hyman ¶10, Guesry ¶6).

Plaintiff also submits the affidavit of Dr. J. Paul Jones, a past vice-president for Research and Development for Proctor and Gamble worldwide, who was available and willing to testify in the Charell action (Jones ¶2) as follows:

(1) that plaintiff's hair test, is a viable method of diagnosis, (Jones ¶1[c]),and (2) that prior to the verdict in the Charell action, plaintiff had institutional support for his protocol, (Jones ¶1).

Plaintiff also submits the affidavit of Herbert Posner, a retired New York City Civil Court Judge, who was willing and able to testify in the Charell action (Posner ¶¶2, 3, and 5) as follows: (1) he was a patient of plaintiff who was treated for a serious eye condition with the same protocol used to treat Ms. Charell, (Posner ¶¶2, 3, and 5), and,

(2) as a result, he was cured. (Posner ¶¶5 and 6).

Plaintiff argues that had defendant deposed Dr. Dottino and studied the Dottino Protocol he would have understood its limitations. In support, plaintiff annexes Dr. Dottino's deposition testimony taken in connection with plaintiff's bankruptcy proceeding following the verdict in the Charell case in which Dr. Dottino explains his protocol and its limitations. (In Re Gonzalez, 99 B40529 [United States Bankruptcy Court, Southern District], Plaintiff's Exhibit "P", pages 20-21). As for the last minute decision not to call Dr. Blackburn as an expert, plaintiff claims that [*12]the information Ellenberg provided to Dr. Blackburn was based on defendant's misunderstanding of what was involved in the Dottino protocol, a misunderstanding borne of defendant Ellenberg's failure to study the documents and to depose Dr. Dottino.

Plaintiff further argues that defendant's failure to offer evidence from oncology experts supporting his treatment and evidence that the National Institute of Health funded his research, enabled the jury to conclude he was a "quack and charlatan." Plaintiff further asserts that had defendant called either Dr. Hyman or Dr. Jones to testify to the viability of the hair test as a diagnostic tool to determine metastasis, or called Judge Posner to testify how Dr. Gonzalez's alternative protocol prevented him from losing his eyesight, there would have been some evidence to counter the impressions left by Ms. Charell's expert's testimony "that the hair test employed by defendant to ascertain the presence of cancer was completely bogus, (and that) the treatment provided by him [Dr. Gonzalez] was of no value" [Emphasis added]. (Charell v. Gonzalez, supra. at 232).

As further support for plaintiff's claim that Ellenberg's decisions in the Charell case were not based on a reasoned strategy, plaintiff cites defendant's decision not to call Dr. Guesry as a trial expert because Dr. Guesry requested to be flown first class from Paris. (Gonzalez ¶2). In his affidavit, Dr. Guersy states that had he known that his request to fly first class was an obstacle to his being called as a witness in support of Dr. Gonzalez, he would have either paid the difference between coach and first class, or flown coach, but that neither option was presented to him by defendant. (Guesry ¶ 6).

Defendant does not lay bare any evidence to support his conclusions on the efficacy of not calling witnesses or not deposing the Mount Sinai doctors, choosing instead to rely on his interpretation of case law. Contrary to defendants' assertion, LIC Commercial Corp. v Rosenthal, 202 AD2d 644 (2d Dept 1994), does not stand for the proposition that any and all decisions by an attorney on who to call as witnesses at trial constitute "trial strategy" and, as such, are not actionable as legal malpractice. In that case, the court held that where "the witness was deposed in this action and his testimony was confusing and generally unfavorable to the plaintiff's position," the attorney's decision not to call that witness was a rational one and thus did not constitute legal malpractice. Such a holding does not apply here. While the additional papers in this motion were submitted simultaneously and defendants do not address each witness the plaintiff says should have been called, nevertheless, Ellenberg has not demonstrated that the failing to interview or depose potential witnesses in the Charell case was a reasonable exercise of trial strategy.

While defendants raise a legitimate concern about the Gray case and its similarities to the Charell action, plaintiff has raised an issue of fact as to whether the decision not to call an oncology expert in support of Dr. Gonzalez was due to concern over the Gray case, or was part of the pattern of defendant's lack of preparedness.

Defendants have failed to make a prima facie showing that plaintiff is unable to prove that defendants breached the duty owed to plaintiff by defendant Ellenberg's failure to interview, depose or call as witnesses experts who would have testified that there was no accepted treatment for Ms. Charell and that Dr. Gonzalez's treatment was an acceptable form of treatment. [*13]Similarly, defendants have failed to provide any evidence to support the conclusion that plaintiff is unable to prove that "but for" these failures the outcome in the Charell action would have been different. The failure to call any oncology expert in support of plaintiff's treatment underpins Justice Lehner's decision not to set aside the portion of the jury's verdict on punitive damages.

It should be noted that although, as aforesaid, there is a pending controversy

between the medical establishment and non-conventional practitioners,

defendant failed to produce a single witness at trial who defended his

treatment of plaintiff as medically sound. Whereas plaintiff's experts

clearly paint him as a charlatan. With only such evidence before it, I

cannot say that the jury award of punitive damages was unsupported

by the weight of the evidence. [Emphasis added.]

(Charell v Gonzalez, supra. at 234 ).

Justice Lehner's decision not to set aside the jury's verdict as to punitive damages is particularly significant in light of the fact that there are no reported cases in New York County of an award of punitive damages in a medical malpractice case. (Charell v. Gonzalez, supra at 234).

The Failure To Commence A Third Party Action

Against The Mount Sinai Doctors

Plaintiff maintains that Ms. Charell's blindness and hip and back problems were caused by the Mount Sinai doctors' subsequent treatment which included external beam radiation to her spine, chemotherapy and the administration of other strong drugs. As such, plaintiff maintains that defendant should have commenced a third party action against the Mount Sinai doctors who subsequently treated Ms. Charell.

Ellenberg states that his decision not to commence a third party action against the Mount Sinai doctors was based on his reasoned judgment that it would have added too many players to the lawsuit, confused the issues and given the doctors the ability to denounce Dr. Gonzalez at trial. (Ellenberg ¶15). Additionally, defendant argues that there was no legal basis to commence a third party action against the Mount Sinai doctors as Dr. Gonzalez cannot demonstrate that he owed a duty to Ms. Charell that was delegated or otherwise assumed by the physicians at Mount Sinai.

In opposition to the motion, plaintiff submits an affidavit by Dr. Hyman that the Mount Sinai doctors' treatment of Ms. Charell was "below the standards of care in their fields" and that their treatment was the cause of Ms. Charell's loss of her eyesight and the problems with her back. (Hyman ¶¶9[f] and 9[g]). In his affidavit, Dr. Hyman specifies the departures by each of the various doctors who treated Ms. Charell ranging from (1) their failure to inform her that the cancerous cells in her spine were already dead at the time they commenced treating her with chemotherapy and radiation, (2) their treatment of Ms. Charell with chemotherapy and radiation, and (3) proscribing flagyl and steroids for treatment for her eye, back and hip problems. Dr Hyman opines that these doctors acted "below the standards of medical care" in their treatment [*14]of Ms. Charell and opines that their treatment was a substantial factor in causing her injuries (Hyman ¶¶9-12).

Defendant is incorrect when he states that there is no legal basis in the instant case to support a third party complaint by plaintiff against the Mount Sinai doctors. The main element of a common law cause of action for indemnification is "a separate duty owed the indemnitee by the indemnitor." (Raquet v. Braun and W.NY Carpet Factory Outlet, 90 NY2d 177, 183 [1997]). Liability in common law indemnification is premised on the principal that "every one is responsible for the consequences of his own negligence, and if another person has been compelled ... to pay the damages which ought to have been paid by the wrongdoer, there may be recovery from him." (Id.). Nor is the court persuaded by defendant's argument that there can be no negligence in failing to commence a third party complaint against the Mount Sinai doctors when the statute of limitations has not yet run and thus there is no injury to plaintiff. The argument ignores the fact that had such an action been commenced with the underlying action all of the facts would have been before the jury and the litigation costs would have been borne by the insurer. Now plaintiff must bear the cost himself.

While defendants have made a prima facie showing that plaintiff cannot prove that the failure to commence a third party action against the Mount Sinai doctors constituted a breach of defendants' duty to plaintiff and that but for that breach there would have been a different outcome in the underlying case, plaintiff has submitted sufficient evidence to show that there are questions of fact in regard to both these elements requiring a trial.

Miscellaneous Alleged Failures By Defendants In The Charell Action

A. The Failure To Obtain Ms. Charell's Medical Records From Mount Sinai

Plaintiff alleges that defendant's failure to obtain Ms. Charell's medical records from Mount Sinai was a breach of the duty Ellenberg owed the plaintiff. Plaintiff maintains that absent such records, plaintiff was unable to prove at trial that the cancer cells found in Ms. Charell's spine had metastasized prior to her treatments with Dr. Gonzalez, and that these cancer cells were killed as a result of his treatment.

Defendant does not specifically address this issue in his papers.

In opposition, plaintiff argues, that defendant's failure to obtain Ms. Charell's records from Mount Sinai permitted Ms. Charell's attorney to mischaracterize the cancer cells found in her spine as metastasis caused by Dr. Gonzalez's treatment. Plaintiff submits an affidavit by Dr. Julian Hyman, a retired long time practicing oncologist, who reviewed Ms. Charell's chart after the trial and who confirms that the cells found in Ms Charell's spine after she treated with Dr. Gonzalez and before she treated with Mount Sinai for the second time, were necrotic ("dead"), raising an issue of fact as to whether the Mount Sinai doctors' treatment of Ms. Charell with external beam radiation and chemotherapy after the cancer cells had died was a departure from good and accepted medical practice, and whether that departure caused her injuries. (Hyman ¶¶8[d] & 8[e]).

The court finds that defendants have failed to make a prima facie showing that plaintiff is unable to prove that defendant breached the duty he owed the plaintiff by failing to [*15]obtain Ms. Charell's medical records from Mount Sinai and that but for the breach the outcome in the underlying action would have been different.

B. The Failure to Make Objections During Trial

Plaintiff contends that defendant Ellenberg's failure to make objections during trial and during summation was a breach of the duty Ellenberg owed plaintiff.

Defendants argue that plaintiff is collaterally estopped from making this argument as the Appellate Court addressed that issue in the Charell case when it issued its decision not to set aside the jury's verdict, except as to punitive damages. (Charell v. Gonzalez, 251 AD2d 72 [1st Dept 1998]).

The party seeking to invoke collateral estoppel must demonstrate "that the identical issue was necessarily decided in the prior action and is decisive in the present action." (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Defendants are unable to do so in the present case. In the Charell action, the court was faced with the question as to whether the verdict was contrary to the weight of the evidence (CPLR § 4404[a]). The issue faced by the court in this case, whether the defendant's failure to object was negligent, and whether this negligence caused the unfavorable outcome to the plaintiff, was not before the Appellate Court. Thus, collateral estoppel is not a bar to this claim.

The court finds that defendants have failed to make a prima facie showing that plaintiff is unable to prove that defendant breached the duty he owed plaintiff by failing to make objections during the trial and during Ms. Charell's attorney's summation and that but for this failure the outcome in the underlying action would have been different.

C. The Failure to Properly Conduct and Defend Depositions

Plaintiff fails to specify in the pleadings what the defendant did wrong in conducting or defending depositions in the Charell action or how those actions affected the litigation. Absent sufficient facts to support such claims, said claims are dismissed.

D. The Failures In Regard To The Motion for Summary Judgment

And The Post Trial Motion

Defendant has made a prima facie showing that plaintiff cannot prove that defendant breached his duty to plaintiff as a result of defendant's (1) failure to timely submit a summary judgment motion in behalf of Dr. Gonzalez, (2) failure to object to Ms. Charell's expert's unsworn affidavit submitted in support of the summary judgment motion, (3) failure to develop the assumption of risk argument in the summary judgment motion, (4) failure to address causation in the post trial motion, and (5) failure to clarify in the post trial motion when Ms. Charell's vision problems began.

Plaintiff has submitted sufficient evidence to raise issues of fact in relation to defendant's failures both as to the summary judgment and the post trial motions, to require a trial on these issues.

E. The Failure to Apprise Plaintiff Of Settlement Discussions

There is a dispute between the parties as to whether defendant informed plaintiff during the trial of settlement offers by Ms. Charell's insurance carrier. However, by letter dated October 22, 1996, attached to defendants' papers, defendant informed Dr. Gonzalez of the possibility that he could lose and that he would be responsible for any verdict in excess of the insurance coverage. Plaintiff never denies having received this letter. In addition, the court notes in Justice Lebedeff's August 22, 2001 decision denying defendants' motion to dismiss, reference is made to letters dated July 6th and July 12th , 1994, from defendant MLMIC, plaintiff's insurance carrier, warning plaintiff of his excess exposure in the Charell action. Thus, this claim is dismissed.

Conclusion

Accordingly, it is hereby

ORDERED that the motion for summary judgment is granted to the extent of (1) dismissing the action against defendants Hutson and Rapisarda individually, (2) dismissing the claim of legal malpractice for defendants' conflict of interest, and (3) dismissing the claim for legal malpractice concerning the failure to apprise plaintiff of settlement discussions and potential excess liability; and it is further

ORDERED that the motion is denied in all other respects and the remainder of the action shall continue; and it is further

ORDERED that the clerk shall enter judgment dismissing the complaint against defendants Hutson and Rapisarda individually.

The parties are to contact chambers to arrange a conference call to resolve all outstanding discovery, but in no event shall discovery exceed forty-five (45) days from today's date. A status conference will be held in Part 44 at 111 Center Street, Room 581 on December 16, 2004 at 2:15 PM.

This constitutes the decision and order of the court.

Dated: October 12, 2004________________________

New York, New YorkKAREN S. SMITH, J.S.C.

Footnotes

Footnote 1: Justice Lebedeff in the December 9, 2002 discovery conference ruled that the claim for negligence for failure to make objections during the Charell action was limited to objections which could have been made during the trial and at summation.