Adamski v Schuyler Hosp., Inc.
Annotate this CaseDecided on April 13, 2005
Supreme Court, Schuyler County
A.J. Adamski, M.D., Plaintiff,
against
Schuyler Hospital, Inc., Defendant.
98-188
Judith F. O'Shea, J.
Plaintiff commenced this action on or about October 9, 1998 for alleged personal injuries he sustained on March 12, 1998 due to a slip and fall on snow and ice in defendant's parking lot. Defendant has moved for dismissal of the complaint pursuant to CPLR § 3126 due to plaintiff's continuing failure to respond to discovery demands and to abide by prior Court Orders compelling discovery dated August 30, 2000, July 11, 2002 and April 26, 2004.
By way of background, plaintiff was employed as an orthopedic surgeon at Schuyler Hospital pursuant to a three-year contract entered into in 1994. Prior to the expiration of the three-year term, the parties were involved in litigation concerning plaintiff's obligations under the employment contract. Just prior to a trial of that action and during settlement negotiations, plaintiff claims to have slipped and fell in the parking lot, injuring his shoulder. Approximately four days after this incident, the litigation over his employment contract was settled and the settlement contained a confidentiality clause concerning its terms. The parties settled the action by agreeing that plaintiff was to receive three $50,000 payments in return for closing his medical practice by October 1, 1998, and plaintiff also agreed that he would not practice medicine in [*2]Schuyler County in the future.
Plaintiff's complaint in this action alleges that due to the injuries sustained in the slip and fall, he can no longer engage in his profession as an orthopedic surgeon. Defendant contends that in order to assess plaintiff's economic damages, they have repeatedly demanded his tax records, medical records, insurance records and financial records from his orthopedic practice. Defendant complains that despite two motions to compel and three Court Orders directing disclosure of the requested information, plaintiff has failed to produce nearly every material record. Defendant maintains that of the very little information that plaintiff has provided, it is incomplete, unverifiable and not responsive as to the specific discovery demands. As a result, defendant has brought this third motion concerning the outstanding discovery and now seeks dismissal of the complaint in its entirety as the appropriate remedy for plaintiff's willful and contumacious conduct.
Defendant has summarized the context of the previous motions to compel, the outstanding discovery that still exists and the numerous demands made to obtain discovery.
On January 3, 2000, defendant brought a motion to compel the production of the records detailing plaintiff's earnings that were first demanded in October 1998 as well as photographs taken by plaintiff depicting the site of his purported fall. Additionally, defendant's motion also sought to strike the note of issue filed by plaintiff since discovery was not yet complete. As a result of the motion, the Court issued an August 30, 2000 Order which vacated the note of issue and directed plaintiff to produce all relevant economic information pertaining to his earnings for the years 1997 and 1998. The Order also required both parties to execute releases in order to obtain any and all economic information pertaining to the plaintiff's medical practice which was in the possession of the attorney who represented defendant in the unrelated contract dispute action which was settled in 1998. Defendant contends that despite the order, plaintiff produced almost no records with the exception of incomplete tax returns. The records in the possession of defendant's former counsel in the unrelated action only covered information dating back to 1994 through 1996. Plaintiff's deposition testimony apparently revealed that there was a "volume" of other evidence relating to issues of liability and damages that he had failed to produce. As a result, defendant brought a second motion to compel and/or preclude on June 10, 2002.
Defendant's second motion to compel resulted in a July 11, 2002 Order compelling the plaintiff to produce the following information: authorizations and releases for medical records pertaining to treatment he received from an unnamed doctor in Poland as well as a physician named "Trent" in Oklahoma; photographs of the location of the alleged accident; copies of radiological, x-ray and MRI films; copies of plaintiff's liability and disability insurance policies; authorizations to obtain tax returns executed by plaintiff since 1994; a list of the medical academies and societies which plaintiff belonged to; and the employment records of plaintiff's secretary from 1998 until the date of plaintiff's termination. Despite the July 11, 2002 Order, plaintiff only produced the following information: authorizations for two of the named physicians, but nothing for the unnamed doctor from Poland or the doctor from Oklahoma only [*3]identified by plaintiff as "Trent"; no photographs of the accident site were produced by plaintiff, on the account that they could not be found; the MRI films taken after the accident in Syracuse, New York in 1998 were not produced, but rather, plaintiff produced new MRI films taken in 2002 in Sugarland, Texas; plaintiff only produced blank surveys that he did not fill out pertaining to his liability insurance; plaintiff only executed authorizations for his federal and state tax returns for the years 1998-2000 and failed to return the authorizations for his tax records for the years 1994-1997; plaintiff produced nothing as to the list of his medical societies, employment records to prove the type of business engaged in prior to the accident, and personal notes made by plaintiff regarding his alleged fall. After still not having received the information detailed in the July 11, 2002 Order, defendant's counsel wrote to plaintiff's counsel on September 9, 2002 reminding him of the need to complete disclosure. However, the outstanding discoverable information was still not provided.
On April 20, 2004, the Court held a preliminary conference of this matter wherein defendant submitted a detailed statement as to the outstanding discovery as well as the background as to the prior motions to compel and the plaintiff's noncompliance. Essentially, defendant's preliminary conference statement explained that plaintiff failed to produce photographs, tax records, economic records, office records, medical records, and the names and addresses of his treating physicians. Defendant also explained that plaintiff failed to mitigate his damages by having surgery to repair his shoulder, which plaintiff claimed that he could not afford. Defendant also points out that plaintiff testified at his examination before trial that since the closure of his medical practice, he has had virtually no income. However, defendant was able to rebut this assertion by discovering (independently) that plaintiff receives $5,000 a month tax free under a disability insurance policy. Thus, defendant explained in this preliminary conference statement that plaintiff's testimony has been misleading, inaccurate and false. Defendant also indicated to the Court that dismissal of the complaint was warranted due to plaintiff's continued non compliance with discovery compliance orders.
Following the preliminary conference, the Court issued an April 26, 2004 Order which granted plaintiff's new counsel (his third in this matter) sixty (60) days to produce responses to all of the aforementioned outstanding discovery demands. Defendant provided to plaintiff's new counsel copies of all the prior orders issued by the Court and wrote to plaintiff's new counsel on May 18, 2004 detailing the outstanding discovery. However, at the expiration of the sixty (60) day period, plaintiff still did not produce any of the outstanding discovery. Defendant claims that the only responses received from plaintiff pertained to the 1998 MRI films which he claimed he was unable to procure. Plaintiff then filed a note of issue and certificate of readiness on or about October 7, 2004.
In support of the motion, defendant explains that plaintiff has consistently frustrated their ability to obtain necessary discovery. Specifically, defendant takes issue with plaintiff's responses, which essentially amount to the claim that defendant either has all this information in their possession or that they can obtain this evidence by using their own devices. Moreover, defendant rejects the plaintiff's argument that the information that has already been provided is [*4]sufficient and should be relied upon.
In opposition, plaintiff opines that defendant already has in their possession all documents requested in their discovery demands. Moreover, plaintiff argues that defendant has failed to show that he has willfully and deliberately failed to comply with the prior Court Orders. Plaintiff also states that he has recently obtained all of the requested information from a private investigator and that he never filed federal income tax returns during the years 2000, 2001, 2002 or 2003. Plaintiff also claims that defendant can obtain on their own his economic records and the names and addresses of his treating physicians. Plaintiff also argues that defendant has brought this motion with unclean hands, claiming that defendant has still not responded to his discovery demands in 1999. To support this claim, plaintiff relies on a 1999 letter issued by his first attorney to defendant, which seeks responses to his discovery demands, namely insuring agreements.
Defendant's counsel has served a reply affirmation, which reiterates that despite plaintiff's attestations, they do not have, nor have they ever received, the economic records relating to plaintiff's medical practice through the time of its closure in 1998. Of the records that plaintiff has produced, defendant argues that they are scant, unreliable and collateral. Additionally, defendant argues that plaintiff's belated attempt to now provide authorizations for his tax records (which he admitted were incomplete, or not completed at all in recent years), are now worthless in light of the fact it will take at least sixty (60) days to obtain them from the IRS and that this matter has once again been scheduled for a jury trial, this time on June 1, 2005. Defendant also takes issue with the medical authorizations provided by plaintiff, since he has been unable to give the full name and addresses of the physicians. Also still outstanding is the 1998 MRI film which defendant argues was sent directly to plaintiff after the procedure, but yet plaintiff has only been unable to produce an MRI he had taken in 2002. Defendant claims that this is yet one example of the inability to obtain necessary and relevant discovery that relate to the key issues of liability and damages. Finally, defendant's counsel avers that all of plaintiff's discovery demands have since been answered.
At Special Term, plaintiff's counsel reiterated that some of the requested items simply do not exist. Without going in to detail as to the items that plaintiff claims he has already provided (or that do not exist), plaintiff's counsel offered to hand to the Court approximately 1100 pages of documents. However, the Court rejected this proffer of evidence since the purported evidence was not only unduly voluminous, but also because the documents were neither described nor particularized in relation to the outstanding discovery demands. Defendant argued to the Court that plaintiff still has not provided any economic records or financial documents relating to plaintiff's medical practice from 1996-1998. Without this information, defendant asserts that plaintiff's request for damages are untenable. Moreover, defendant stressed that this information, among other requested items, have not been provided in approximately four years.
Recently, after the instant motion was argued, plaintiff provided the Court and defendant with expert disclosures of several physicians he intends to call at trial, along with black and white [*5]photocopies of the MRI taken in 2002. Defendant contends that the experts are relying on medical records never produced. Defendant also objects to a treating physician never disclosed, as well as an economic expert who relies on records and information not disclosed.
CONCLUSIONS OF LAW
In Cavanaugh v. Russell Sage College, 4 AD3d 660 (3rd Dept. 2004), the Court explained:
"CPLR 3126 authorizes a court to fashion an appropriate
remedy when a party refuses to obey an order of disclosure
or willfully fails to disclose information. The choice of
remedy lies within Supreme Court's discretion and is not
disturbed absent clear abuse, despite a general policy which
favors resolution of disputes on their merits. (See, Biggs v.
O'Neill, 309 AD2d 1110, 1111 [3rd Dept. 2003]; Kinge v.
State of New York, 302 AD2d 667 [3rd Dept. 2003])."
This is especially true when a party disobeys a court order and "by his [or her] conduct frustrates the disclosure scheme provided by the CPLR . . . " (Martin v. Brooks, 270 AD2d 538 [3rd Dept. 2000], citing Zletz v. Wetanson, 67 NY2d 711, 713 [1986]; Kihl v. Pfeffer, 94 NY2d 118 [1999]; Reynolds Securities, Inc. v. Underwriters Bank & Trust Co., 44 NY2d 568, 571-572 [1978]).
In the case at bar, the record is clear that plaintiff's overall pattern of noncompliance over a four-year period gives rise to an inference of willful and contumacious conduct on his part. See, Cippitelli v. County of Schenectady, 284 AD2d 823 (3rd Dept. 2001); Martin v. Brooks, supra at 539; Robinson Saw Mill Works Inc. v. Speilman, 265 AD2d 604 (3rd Dept. 1999). As explained by the Court in Kihl v. Pfeffer, supra at 123, "if the credibility of court orders and the integrity of judicial system are to be maintained, a litigant cannot ignore court orders with impunity."
An overall examination of the record reflects that plaintiff has frustrated the discovery process by failing to produce economic and medical evidence that has been repeatedly requested for more than four years. Defendant's conduct in failing to produce (as well as providing scant, incomplete and irrelevant information)this material and necessary evidence has caused the defendant to bring three motions and the Court to issue three compliance orders. Although plaintiff maintains that defendant already has the requested discovery in their possession, there has been no sufficient showing to support this claim and this assertion is belied by the record. Also important to note is that plaintiff's conduct and attempts to cure by providing to the Court and defendant's counsel belated "discovery" has resulted in prejudice to the defendant, since this action is set down for a jury trial to commence on June 1, 2005. Defendant's ability to assess, evaluate, and examine this newly produced "evidence" (as well as the 1100 pages of documents [*6]offered by plaintiff's counsel at Special Term) has been stymied by the fact that long delayed trial of this action is less than 45 days away. The failure of plaintiff to produce even the slightest information as to his economic records concerning his practice, or the names of at least two of his treating physicians, not only substantially impairs his ability to present a prima facie case, but forestalls defendant's ability to present an effective and meaningful defense. Accordingly, defendant's motion pursuant to CPLR § 3126(3) dismissing the complaint is hereby granted in its entirety.
It is therefore,
ORDERED, that Defendant Schuyler Hospital, Inc.'s motion pursuant to CPLR § 3126(3) is hereby granted and the complaint is dismissed in its entirety.
This shall constitute the Decision and Order of The Court.
ENTER
Dated: April 13, 2005.
____________________________
Hon. Judith F. O'Shea
Supreme Court Justice
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