Matthews v St. Vincent's Hosp. & Med. Ctr. of N.Y.

[*1] Matthews v St. Vincent's Hosp. & Med. Ctr. of N.Y. 2004 NY Slip Op 51757(U) Decided on December 20, 2004 Supreme Court, New York County Carey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2004
Supreme Court, New York County

PATRICIA MATTHEWS, Plaintiff,

against

ST. VINCENT'S HOSPITAL AND MEDICAL CENTER OF NEW YORK, JOEL B. GRAD, M.D., DANIEL ZELAZNY, M.D., and PETER B. SADEEH, Defendants.



121068/98



Kerner & Kerner, New York NY (by Ken Kerner, Esq.) for the plaintiff

Costello, Shea & Gaffney, New York, NY (by Steven Levy, Esq.) for defendant St. Vincent's Hosp. & Med. Ctr. of New York

Aaronson, Rappaport, Feinstein & Deutsch, New York, NY (by Larry Bloomstein, Esq.) for defendant Joel B. Grad, M.D.

Sullivan, Papain, Block, McGrath & Cannavo, P.C., New York, NY (by Andrew Carboy, Esq.) for nonparty Lawrence Shields, M.D.

Joan B. Carey, J.

Based on the record of December 17, 2004 and the September 2, 2003 report of Dr. Lawrence Shields, M.D., the plaintiff, in essence, moves for a protective order (CPLR 3103) preventing the deposition of Dr. Lawrence Shields, M.D., a board certified neurologist.

The plaintiff commenced the instant action to recover damages for medical malpractice and lack of informed consent. The plaintiff is also a plaintiff in a separate action to recover damages for personal injuries stemming from the 1993 World Trade [*2]Center bombing. Represented by a different lawyer in each case, the plaintiff retained Dr. Shields to form an expert opinion regarding the injuries she sustained during the 1993 bombing and the cause or causes of those injuries. Based upon multiple examinations of the plaintiff, Dr. Shields issued several reports setting forth his opinion regarding the plaintiff's condition. Specifically, Dr. Shields determined that the plaintiff had sustained permanent injuries to her neck, upper back, left upper extremity and left hand as a result of the 1993 bombing.

The defendants in the case before the court (i.e. the medical malpractice case) have noticed Dr. Shields for a deposition. The plaintiff, in essence, moves for a protective order (CPLR 3103) preventing the deposition of Dr. Shields.

Review of the September 2, 2003 report of Dr. Shields indicates that the doctor has functioned solely as an expert witness in the action stemming from the 1993 bombing. There is no evidence that Dr. Shields provided affirmative medical care to or set forth a specific course of treatment for the plaintiff (cf. Bailey v Owens, 3 Misc 3d 1101[A], 2004 WL 895972 [Sup Ct, New York County 2004]). Therefore, because the deposition of a nonparty expert is at issue, CPLR 3101(d)(1)(iii) applies, and special circumstances must be present for the deposition to take place (see e.g. Kaufman v Lund Fire Products Co., Inc., 8 AD3d 242 [2d Dept 2004]).

Generally, "'courts are reluctant to permit an oral examination before trial of a party's expert in the absence of special circumstances' (Hallahan v Ashland Chem. Co., 237 AD2d 697, 698; see, CPLR 3101[d][1] [iii]). Such circumstances exist where physical evidence is 'lost or destroyed' or 'where some other unique factual situation exists' (Hallahan v Ashland Chem. Co., supra, at 698), such as proof 'that the information sought to be discovered cannot be obtained from other sources' (Dioguardi v St. John's Riverside Hosp., 144 AD2d 333, 334)" (Ruthman, Mercadante & Hadjis, P.C., v Nardiello, 288 AD2d 593, 594 [3d Dept 2001]; see e.g. Generali Ins. Co. of Trieste and Venice v Honeywell, Inc., 194 AD2d 442 [1st Dept 1993]). Where, as here, the report of the nonparty expert clearly indicates the nature of the expert's proposed testimony, no special circumstances are present (see Melendez v Roman Catholic Archdiocese of New York, 277 AD2d 64 [1st Dept 2000]; Weinberger v Lensclean, Inc., 198 AD2d 58 [1st Dept 1993]; see also King Electronics of Graham Ave., Inc. v American Nat. Fire Ins. Co., 232 AD2d 273 [1st Dept 1996]).

Accordingly, the plaintiff's motion for a protective order is granted, and any subpoena issued by the defendants to Dr. Lawrence Shields, M.D., in reference to the above entitled action is quashed. Plaintiff's counsel, if he has not done so already, is to provide defense counsel with copies of the reports, dated June 24, 2003, July 3, 2003 and September 2, 2003, of Dr. Shields regarding the plaintiff within 10 days of the date of this order.

Dated: December 20, 2004 J.S.C.