Ardolic v New Water St. Corp.
Annotate this CaseDecided on February 25, 2005
Civil Court of the City of New York, New York County
Naslije Ardolic and RASIM ARDOLIC, Plaintiffs,
against
New Water Street Corporation and CENTRAL ELEVATOR, Defendant. NEW WATER STREET CORPORATION, Third-Party Plaintiff, ARCADE BUILDING SERVICES, INC., Third-Party Defendant. CENTRAL ELEVATOR, INC., Second Third-Party Plaintiff, PARIS MAINTENANCE COMPANY, INC. Second Third-Party Defendant. CENTRAL ELEVATOR, INC., Third Third-Party Plaintiff, GILBERT INTERNATIONAL, INC. and GILBERT INTERNATIONAL MAINTENANCE, INC., Third Third-Party Defendants.
690TSN02
Jeffrey K. Oing, J.
Defendant and second third-party plaintiff, Central Elevator, Inc. ("Central Elevator"), Second Third-party defendant, Paris Maintenance Company, Inc. ("Paris Maintenance"), defendant and third-party plaintiff, New Water Street Corporation ("New Water Street"), and third-party defendant, Arcade Building Services, Inc. ("Arcade") separately move and cross-move for virtually the same relief. Central Elevator, Paris Maintenance, New Water Street, and Arcade are collectively referred to as "defendants". They seek an order compelling plaintiff, Naslije Ardolic, to submit to a second psychiatric examination at plaintiff's cost. In the alternative, they seek an appropriate order of preclusion or dismissal of the action.
Background
Plaintiff commenced this personal injury action for injuries she allegedly sustained in a trip and fall while exiting an elevator on September 23, 1999 (Moving Papers, Ex. A, Verified Complaint, ¶ 38). In connection with her claim, plaintiff submitted to a neuro-psychiatric examination before Dr. William Head on September 10, 2002, and for an additional session on May 13, 2004. Plaintiff was accompanied to the psychiatric examination by a paralegal, Alexandria Garner, from plaintiff's law firm, to the second session. Ms. Garner was also present during Dr. Head's evaluation of plaintiff. During the evaluation, Ms. Garner instructed plaintiff to not respond to certain questions.
Discussion
Defendants argue that Ms. Garner obstructed Dr. Head's evaluation of plaintiff by instructing her not to answer certain questions during the examination.
Plaintiff's counsel claims that it is the practice of the [*2]law firm to have clients accompanied by a paralegal (Roberts Affirm., ¶ 4). In that regard, counsel claims the following:
Paralegals are required to take notes and make observations during the examination, and to record (in writing) all communications by and between the examining physician and the plaintiff, as well as those that take place between the physician and the paralegal.
(Id.). Counsel further asserts:
Ms. Garner particularly paid careful attention to those questions, posed by Dr. Head when he asked the plaintiff to essentially give testimony regarding the mechanism (i.e. specific account of the happening) of the accident, as if the plaintiff were being re-deposed on issues of liability.
(Id., ¶ 5).
This Court finds plaintiff's counsel's arguments unavailing. Ms. Garner did not merely take notes and make observations on the course of the examination as plaintiff's counsel claims paralegals are instructed to do when accompanying clients. Instead, Ms. Garner became an active participant in the examination when she instructed plaintiff not to answer questions being posed by Dr. Head during the psychiatric examination.
In his May 13, 2004 report, Dr. Head stated the following:
Ms. Ardolic's paralegal, Ms. Garner, will not allow the patient to provide a history of her September 23, 1999 accident. The history will be obtained from her medical records and my prior report.
* * *
Her paralegal would not allow me to discuss with Ms. Ardolic why her husband is not working, what affect his not working is having on the family finances, how she feels about his not working and what affect this whole situation is having on her psyche, and whether or not it is making her nervous or depressed.
* * *
On the advice of her paralegal, Ms. Garner, Ms. Ardolic refuses to answer any questions relative to any prior, present or subsequent work history.
* * *
On the advice of her paralegal, Ms. Garner, Ms. Ardolic refuses to answer any questions relative to her school history.
[*3]
* * *
On the advice of her paralegal, Ms. Garner, Ms. Ardolic refuses to answer any questions relative to her past medical history.
* * *
On the advice of her paralegal, Ms. Garner, Ms. Ardolic refuses to answer any questions relative to her family medical history.
* * *
On the advice of her paralegal, Ms. Garner, Ms. Ardolic refuses to answer any questions relative to her personal history.
(Paris Maintenance Moving Papers, Ex. Ex. H). Under these circumstances, Ms. Garner's interference was not appropriate. Assuming her objections were proper, Ms. Garner is not a physician, and, as such, did not have the ability to make determinations on the appropriateness of Dr. Head's questions. Furthermore, simply because certain evidence is produced during the discovery process, does not necessarily mean that the evidence will be admissible at trial. Any objections plaintiff's counsel may have to Dr. Head's questioning or his psychiatric report may be made at the time of trial, not during the evaluation itself.
As to the contention that Dr. Head was able to obtain all of plaintiff's history from his prior report, this Court finds that contention equally unavailing. The record indicates that Dr. Head conducted a psychiatric evaluation of plaintiff on September 10, 2002, almost two years before the evaluation at issue (Opp'n Papers, Ex. B). As for his conclusions with respect to plaintiff's depression in the May 2004 report, Dr. Head provided the following:
After a careful review of the available medical documentation, a review of Ms. Ardolic's narrative history, and a review of the results of my clinical psychiatric examination of Ms. Ardolic, I would conclude that Ms. Ardolic is mildly depressed. She was not able to provide much history, on the direction of her paralegal, so I am not sure why she is depressed. It is my opinion that her mild depression is due to her concern over the proposed right knee replacement and likely also in response to her husband, who lost his job. Ms. Ardolic was not able to discuss with me why her husband was not working or how this may have affected the family finances, or how she feels about this whole situation and whether or not it is causing her to feel nervous or depressed, which it would be anticipated to do.
[*4]
* * *
I am unable to determine the cause of her current mild, non-disabling, depression, due to her paralegal not allowing me to obtain a detailed history. I would note that I suspect that at least part of her mild depression is due to her husband being out of work.
(Paris Maintenance Moving Papers, Ex. Ex. H [emphasis added]).
Clearly, based on his report, the cause of plaintiff's depression has not been sufficiently diagnosed.
Accordingly, defendants' respective motions and cross-motions are granted to the extent of precluding plaintiff from offering evidence at trial on issues concerning her mental, emotional or psychological nature unless plaintiff submits to a psychiatric evaluation, answering all questions, within 30 days after service of a copy of this order with notice of entry.
This memorandum opinion constitutes the decision and order of the Court.
Dated: February 25, 2005
____________________________
HON. JEFFREY K. OING, C.C.J.
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