Friedrich v Blasz

[*1] Friedrich v Blasz 2006 NY Slip Op 50432(U) Decided on March 2, 2006 Supreme Court, Erie County Peradotto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2006
Supreme Court, Erie County

CHRISTOPHER FRIEDRICH, Plaintiff,

against

DONALD F. BLASZ, FUEL SYSTEMS, LLC, and RENAE MARTINELLI, Defendants.



SF2002/2497



Eric Shelton, Esq.

Campbell & Shelton, LLP

8558 North Main Street

Eden, New York 14057

Attorney for Plaintiff

Philip B. Abramowitz, Esq.

Barth, Sullivan, & Behr, LLP

43 Court Street, Suite 600

Buffalo, New York 14202-3196

Attorney for Defendant Fuel Systems, LLC

William J. Kita, Esq.

Burgio, Kita & Curvin

2150 Main Place Tower

Buffalo, New York 14202

Attorney for Defendant Donald F. Blasz

Erin M. Peradotto, J.

I. Background

The parties filed motions and cross-motions seeking various relief in this action. This Decision and Order addresses the motion by the defendant Fuel Systems, LLC ("Fuel Systems"), to disqualify the plaintiff's expert, W. Alan Bullerdiek, from testifying at trial. [*2]

The underlying case arises from a motor vehicle accident occurring December 21, 2001 at approximately 7:20 p.m. on Route 20 in the Town of Hamburg, New York. The plaintiff alleges that he was injured because defendant Donald F. Blasz ("Blasz"), an employee of Fuel Systems, did not secure a propane tank in the back of his truck before leaving work. Blasz stopped at a tavern on his way from work and thereafter called his girlfriend Renae Martinelli to drive him home. As Martinelli drove from the parking lot, the propane tank rolled off the truck and onto Route 20. The plaintiff, who was driving eastbound on Route 20, struck the propane tank, which ignited.

The plaintiff commenced this action against Blasz, Fuel Systems, and Martinelli on March 1, 2002. Answers were interposed on behalf of the defendants, and the parties conducted discovery. The plaintiff filed the Note of Issue on August 12, 2003. The case was scheduled for jury selection on December 8, 2005. On November 7, 2005, the plaintiff served expert disclosure identifying, inter alia, that Mr. Bullerdiek would provide testimony as an expert regarding propane tanks and other explosive materials. Fuel Systems timely moved to disqualify Mr. Bullerdiek on the basis that a conflict of interest existed because defense counsel previously consulted with Mr. Bullerdiek concerning this case. The plaintiff opposed the motion contending that Fuel Systems failed to establish that a conflict of interest would exist if Mr. Bullerdiek testified at trial.[FN1] During oral argument, defense counsel was directed to supplement the motion papers with two submissions.[FN2] The first, to be submitted only to the Court, was to provide the substance of the confidential/protected conversation or conversations that occurred between defense counsel and Mr. Bullerdiek. The second, to be submitted to the Court and all counsel, was to provide the mechanics of each conversation, such as when and how each occurred, and whether money was paid to Mr. Bullerdiek.

Upon reading and filing the Notice of Motion to Disqualify Expert Witness, dated November 21, 2005, the Affirmation of Laurence D. Behr, Esq., dated November 21, 2005, the redacted Affirmation of Laurence D. Behr, Esq., dated December 12, 2005, and redacted attachments, and the un-redacted Affirmation of Laurence D. Behr, Esq., dated December 12, 2005, and un-redacted attachments, on behalf of Fuel Systems and in support thereof, and the Affidavit in Opposition of Eric M. Shelton, Esq., sworn to November 23, 2005, and the letter of Eric M. Shelton, Esq., dated January 10, 2006, on behalf of the plaintiff and in opposition thereto, and having heard oral argument on November 30, 2005 from Philip B. Abramowitz, Esq., on behalf of Fuel Systems and in support of the Motion, and Eric M. Shelton, Esq., on behalf of the plaintiff and in opposition to the Motion, this Court decides as follows:

II.Decision

"Although as a general proposition, a party has the right to present the testimony that best [*3]supports its position, it has been recognized that a court has inherent power to disqualify an expert witness to preserve the fairness and integrity of the judicial process" (Roundpoint v VNA, Inc, 207 AD2d 123, 125 [citations omitted]). Where a party has sought to disqualify an expert on the basis of a purported conflict of interest, the following two-prong analysis has been applied. First, the court must determine whether "it was objectively reasonable for the party claiming to have initially retained the expert to conclude that a confidential relationship existed between them" (Id). Second, the court must "ascertain if any confidential or privileged information was disclosed by the moving party to the expert" (Id). A paramount concern throughout this analysis is "the court's interest in protecting and preserving the integrity and fairness of the judicial proceedings before it" (Great Lakes Dredge & Dock Co v Harnischfeger Corp, 734 F Supp 334, 337). Undergoing this two-step inquiry "adequately protects confidentiality within the lawyer-consultant relationship while, at the same time, it effectively prevents lawyers from engaging in the impermissible practice of retaining consultants merely to preclude opposing counsel from doing so" (Wang Laboratories, Inc v Toshiba Corp, 762 F Supp 1246, 1249).

After reviewing the submissions in their entirety, this Court finds that Fuel Systems has met the second prong of the test by establishing that confidential and privileged information was disclosed by defense counsel to Mr. Bullerdiek with the intention of hiring the expert, and that the expert rendered a verbal report during the consultation. There is more than sufficient detail in the record demonstrating the nature of the confidential and privileged communications exchanged between defense counsel and Mr. Bullerdiek to support this conclusion.

Likewise, this Court has been persuaded that Fuel Systems has shown that it was objectively reasonable for counsel representing Fuel Systems to conclude that a confidential relationship existed between him and Mr. Bullerdiek, thereby meeting the first prong of the test (see Roundpoint, 207 AD2d at 125-26 [citing Wang Labs, 762 F Supp at 1249]). It is undisputed that defense counsel did not receive a bill from Mr. Bullerdiek relative to the consultation nor was payment made for the services rendered. However, despite the plaintiff's assertions to the contrary, the lack of a formal retainer is not dispositive of this inquiry (See Great Lakes Dredge & Dock Co, 734 F Supp at 336). Rather, the determination as to whether a confidential relationship existed must be based on the trial court's evaluation of all of the evidence presented concerning the interaction between counsel and the expert.

This Court is satisfied that it was reasonable for defense counsel to conclude that a confidential relationship existed between him and the expert and that defense counsel disclosed confidential information to the expert. Overall, when considering the content and circumstances encompassing the consultation between defense counsel and the expert here, this Court finds that "the court's interest in protecting and preserving the integrity and fairness of the judicial proceedings before it" necessitates precluding the testimony of Mr. Bullerdiek (See Great Lakes Dredge & Dock Co, 734 F Supp at 337). Accordingly, W. Alan Bullerdiek is precluded from testifying at trial.

After the various motions were filed by the parties shortly before the trial was to commence, jury selection was rescheduled to commence on July 24, 2006. Counsel for all parties are directed to appear before this Court on March 16, 2006 at 9:00 a.m., at Part 32, 50 Delaware Avenue, Buffalo, New York, for a pre-trial conference.

Accordingly, it is hereby [*4]

ORDERED, that the motion by defendant Fuel Systems to disqualify W. Alan Bullerdiek as the plaintiff's expert is granted.

The foregoing Decision constitutes the Order of this Court. No further Order need be submitted.

March 2, 2006

___________________________________

Hon. Erin M. Peradotto

Justice of the Supreme Court

GRANTED: Footnotes

Footnote 1: While plaintiff's counsel averred that Mr. Bullerdiek does not recall any communication or consultation with defense counsel concerning this case, an affidavit from the expert was not submitted (see Affidavit in Opposition, paragraph 7). However, even if such an affidavit had been submitted, this Court's determination of this motion would not differ.

Footnote 2: This procedure was implemented to enable this Court to fully evaluate all of the communications between defense counsel and Mr. Bullerdiek, while protecting the well-established privilege as to those confidential communications (see Wang Laboratories Inc v Toshiba Corp, 762 F Supp 1246, 1248).