Gendal v Billotti

[*1] Gendal v Billotti 2006 NY Slip Op 51501(U) [12 Misc 3d 1189(A)] Decided on July 31, 2006 Supreme Court, Suffolk County Burke, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 15, 2006; it will not be published in the printed Official Reports.

Decided on July 31, 2006
Supreme Court, Suffolk County

Scott Gendal, Plaintiff,

against

Thomas J. Billotti, Ph.D., Defendant and Third-Party Plaintiff.

Jay Gendal, M.D., Third-Party Defendant.



019926/2004



BAUMAN, KUNKIS

& OCASIO-DOUGLAS, PC

Attorneys for Plaintiff

225 West 34th Street

New York, New York 10122

KAUFMAN, BORGEEST & RYAN

Attorneys for Defendant/3rd Party Plaintiff

99 Park Avenue, 19th Floor

New York, New York 10016

CHARLES X. CONNICK, PLLC

Attorneys for Third-Party Defendant

114 Old Country Road

Mineola, New York 11501

Edward D. Burke, J.

ORDERED that this motion (#

006) by the defendant/third-party plaintiff for an order vacating the plaintiff's Notice for Discovery and Inspection dated, April 17th, 2006 and a protective order authorizing the defendant/third-party plaintiff to withhold disclosure of the names and addresses of certain clients of the defendant/third-party plaintiff and the cross-motion (#

007) by the plaintiff for an order precluding the defendant from offering the testimony of certain witnesses at the trial of this action are decided as follows:

Plaintiff commenced this action to recover damages for the personal injuries he purportedly sustained by reason of the negligent conduct and acts of malpractice committed by the defendant/third-party plaintiff, a licensed psychologist, during the course of his psychotherapy treatments of the plaintiff which began in July of 2000 and ended in or about October of 2002. The claims interposed by the plaintiff against defendant/third-party plaintiff include charges that defendant/third-party plaintiff prescribed the use of marijuana and engaged the plaintiff to join the defendant in smoking same during the plaintiff's last treatment session in late September or early October of 2002. By his answer, the defendant/third-party plaintiff vigorously denies all of the factual assertions interposed by the plaintiff and all liability for the damages sued upon.

In April of 2006, counsel for the defendant/third-party plaintiff (hereinafter defendant) [*2]served opposing counsel with copies of appointment diary pages purportedly maintained by the defendant for certain days on which he treated the plaintiff. These diary appointment pages were redacted to delete the names of all clients listed therein, except for the name of the plaintiff. In addition, defendant's counsel submitted copies of three letters purportedly written by other clients of the defendant, redacted so as to delete the names and addresses of the purported authors thereof, who met with the defendant on the evening of October 2, 2002, after the defendant and the plaintiff allegedly smoked the marijuana supplied by the defendant. The three letters all recite that they were written at the request of the defendant and the content of each of said letters supports the defendant's position in this litigation by factually disputing the defendant's engagement in any conduct which would result in the impairment of the defendant's physical and/or mental abilities in October of 2002 and/or otherwise. After plaintiff's counsel demanded that the defendant disclose the names and addresses of the witnesses who authored the subject letters and the names of addresses of all of the clients whose names were redacted from the appointment diary pages furnished by the defendant's counsel, the instant motion and cross-motion were served and filed.

In his motion-in-chief, the defendant seeks an order vacating the Notice for Discovery and Inspection dated April 17, 2006 in which the plaintiff demanded the names and addresses of the clients listed in the redacted diary pages and the names and addresses of the purported client/witnesses who authored the letters supporting the defendant' denial of engagement in tortious conduct. While acknowledging that the opposing parties are entitled to some disclosure of the three letter writing, client/witnesses, the defendant claims that disclosure of the names and addresses of said witnesses and those of the clients whose names were redacted from the appointment diary pages furnished by the defendant is precluded by the psychologist/client privilege codified under CPLR 4507. The plaintiff and third-party defendant oppose the defendant's motion and the plaintiff cross-moves for an order precluding the defendant from offering the trial testimony of any witnesses whose names and addresses have not been disclosed prior to the filing of the note of issue.

The statutory privilege afforded confidential communications between a psychologist/client under CPLR 4507 differs significantly from the privilege afforded physician/patient communications under CPLR 4504(a). Case law interpreting the latter privilege has clearly established the general rule that disclosure of the name and address of non-party patient who may have been a witness to an alleged act of negligence or malpractice does not violate the confidentiality privilege afforded the patient under CPLR 4504 unless said disclosure would identify the patient by reference to the medical treatment he or she received and revelation of the patient's location in the hospital or other place of treatment would reveal the patient's medical status (Rabinowitz v St. John's Episcopal Hospital, 24 AD2d 530, 808 NYS2d 280 and the cases cited therein; see also, Vassell v Magno, ___AD2d ___, 2006 WL 1541448 (N.Y.A.D. 2nd Dept.[6/6/2006]; Cf., Gunn v Sound Shore Medical Center of Westchester, 5 AD2d 435, 772 NYS2d 714). This rule has not been altered by the recent [*3]concern over patient confidentiality embodied in the enactment of the Federal Health Insurance Portability and Accountability Act (HIPAA) and other similar statutes (Sanders v St. Charles Hospital and Rehabilitation, 12 Misc 3d 1175, 2006 WL 1789148; Rogers v NYU Hospitals Center, 8 Misc 2d 730, 795 NYS2d 438).

The psychologist/client privilege afforded under CPLR 4507, by its terms, relates to the confidential relations and communications between a psychologist and his or her client and mandates that said privilege be measured by and considered coextensive with the attorney/client privilege codified in CPLR 4503. It has thus been held that the psychologist/client privilege is broader than the physician/patient privilege (People v Wilkins, 65 NY2d 172, 490 NYS2d 759). Application of the attorney/client privilege requires that the communication between the attorney and client must be made in confidence for the purpose obtaining legal advice. Consequently, the psychologist/client privilege afforded under CPLR 4507 will attach only to communications between the psychologist and the client that are made in confidence and for the purpose of obtaining the psychologist's professional services (People v Wilkins, 65 NY2d 172, 490 NYS2d 759, supra ; Priest v Hennessy, 51 NY2d 62, 431 NYS2d 511).

Disclosure of the names and addresses of the clients of an attorney during the course of pending civil litigation is, in general, not considered violative of the attorney/client privilege afforded by CPLR 4503 ( Banco Frances e Brasileiro S.A. v Doe, 36 NY2d 592, 370 NYS2d 534; In re Kaplan, 8 NY2d 214, 203 NYS2d 836). However, the rule permitting disclosure is generally applied only where the client whose identity is sought is a party to the pending civil litigation and the circumstances otherwise warrant such disclosure (see, Matter of Jacqueline F., 47 NY2d 215, 417 NYS2d 884).

There are, however, cases in which a civil litigant may invade the attorney/client privilege held by another. First, the attorney/client privilege existing between an attorney and a testator or testatrix may be invaded in cases within the purview of CPLR 4503(b) which involve the probate, validity or construction of a will. Second, a civil litigant, upon a showing of good cause, may successfully invade the attorney/client privilege of one who owes that litigant a fiduciary duty (see, Hoopes v Carota, 74 NY2d 716, 544 NYS2d 808). Third, a civil litigant may, under limited circumstances, invade the attorney/client privilege of another where the subject communication was made for the purpose of furthering a future crime, fraud or other wrongdoing (Surgical Design Corp v Correa 284 AD2d 528, 727 NYS2d 462; Tierney v Flower, 32 AD2d 392, 302 NYS2d 640; Tierney v Flower, 32 AD2d 392, 302 NYs2d 640 ). Finally, a civil litigant may invade the attorney/client privilege of another where such invasion is justified by strong public policy considerations (Matter of Jacqueline F., 47 NY2d 215, 417 NYS2d 884; see also, Spectrum Systems International Corp. v Chemical Bank , 78 NY2d 371, 575 NYS2d 809).

[*4]

In addition, case law emanating from this court and others concerning the psychologist/client privilege has established that the disclosure of the names and addresses of non-party clients of a psychologist who may have witnessed an event that is the subject of litigation is not subject to disclosure (Frederick R.C. v Helene C., 153 Misc 2d 660, 582 NYS2d 926; see also, Silvan v Silvan 93 AD2d 790, 461 NYS2d 826; Lora v NYC Board of Education, 74 F.R.D. 565 [E.D.NY;1977]; Arena v Sapier, 201 N.J. Super. 79, 492 AD2d 1020; Scull v Superior Court, 206 Cal. App.3d 784). In making such determinations, all but one of these courts relied heavily upon the notion that a stigma continues to attach to those suffering from mental disease and that knowledge of psychotherapy treatments is likely to reveal both the existence and nature of the malady afflicting the client.

This court finds, however, that the circumstances of this case warrant the disclosure of the names and addresses of the three, non-party clients of the defendant who were enlisted as fact and/or character witnesses on behalf of the defendant. The communications made by these three, non-party, letter writers do not constitute relations or communications with a psychologist made in confidence and for the purpose of obtaining the psychologist's professional services as required by CPLR 4507. Instead, these statements made by these purported witnesses were given, voluntarily, in an effort to aid the defendant in defeating the allegations of fact which underlie the claims interposed against him in this action by the plaintiff. The contents of these communications are thus not protected by the psychologist/client privilege.

Nor are the identities of the three, non-party witnesses privileged from disclosure. It is clear upon a reading of the statements of said non-party witnesses that they were written by the authors, not as clients of the defendant, but only in the capacities of such persons as either fact witnesses, by reason of their observation of the defendant's demeanor on the evening of October 2, 2002, and/or as character witnesses to the defendant's demeanor, generally. The fact that these witnesses may be clients of the defendant should not prevent release of their names and addresses to the other litigants in this action as discovery of said witnesses shall be limited to their observations and/or opinions as witnesses of the defendant's demeanor and not to the contents of any confidential communications they may have engaged in for treatment purposes with the defendant. Under these circumstances, the rule precluding disclosure of the names and addresses of clients of psychotherapists, which is premised upon the existence of a stigma purportedly attaching to those suffering from mental disease and that mere knowledge of psychotherapy treatments is likely to reveal both the existence and nature of the malady afflicting the client, is not applicable.

The court further finds that even if the psychologist/client privilege afforded under CPLR 4507 were applicable to protect against the discovery of the identity of the three, non-party witnesses who authored the letters disclosed by the defendant, said witnesses must be deemed to have waived any privilege that might have attached thereto. This implied [*5]waiver arises from the fact that the communications authored by said witnesses are not privileged as they were not made in confidence for the purpose of obtaining psychological treatment but, instead, were issued voluntarily by the authors thereof to aid the defendant's position in this litigation. It is well established that the attorney/client privilege, by which the psychologist/client privilege at issue here must be measured, operates as an exception to the general requirement that all persons give testimony upon facts within their personal knowledge when inquired of in a court of law and that invocation of the privilege should be cautiously employed to ensure that its application is consistent with its purpose, which is to ensure the frank revelation of pertinent information between attorney and client (Priest v Hennessy, 51 NY2d 62, 431 NYS2d 511, supra ; Matter of Jacqueline F., 47 NY2d 215, 417 NYS2d 884, supra ). Clients who voluntarily testify to otherwise privileged matter, who publicly disclose same and/or who permit the attorney to testify or reveal confidential material are deemed to have impliedly waived the privilege (Jakobleff v Cerrato, Sweeney and Cohn, 97 AD2d 834; 468 NYS2d 895).

Here, the three, non-party witnesses interjected themselves into this litigation by voluntarily executing statements intended to aid the defendant in defeating the claims interposed in this action against him. Any privileges that may have attached to said statements or to the identities of any of the authors thereof, which identities, were clearly disclosed in said letters in their original, unredacted form, are deemed waived. The defendant is thus directed to disclose the names and addresses of the three, non-party witnesses to the opposing parties in this action within thirty-days after receipt of this order. All depositions of these non-party witnesses shall be limited in their scope to the witnesses' observations of the defendant's demeanor, generally, and/or on the specific days set forth in their letters, if any.

The defendant need not disclose the names and addresses of the clients listed on the appointment diary pages furnished to counsel for adverse parties. Unlike the letter writing witnesses, the clients listed on the appointment diary pages have not yet interjected themselves into this litigation. The plaintiff's demands for disclosure of the names and addresses of these clients would violate the rule which precludes the disclosure of the identities of psychotherapy clients because of the stigma that continues to attach to those suffering from mental disease and that knowledge of psychotherapy treatments is likely to reveal both the existence and nature of the malady afflicting the client (see, Frederick R.C. v Helene C., 153 Misc 2d 660, 582 NYS2d 926, supra ; see also, Lora v NYC Board of Education, 74 F.R.D. 565 [E.D.NY;1977, supra ]; Arena v Sapier, 201 N.J. Super. 79, 492 AD2d 1020, supra ; Scull v Superior Court, 206 Cal. App. 3d 784, supra ). Disclosure of the names and addresses of these clients also appears to violate the rules of non-disclosure developed under the physician/patient privilege set forth in CPLR 4504 and the recently enacted confidentiality statutes such as the Federal Health Insurance Portability and Accountability Act ( HIPAA) and Public Health Law 2803-c which are applicable whenever said disclosure would identify the patient by reference to the medical treatment he or she received and revelation of the patient's [*6]location in the hospital or other place of treatment would reveal the patient's medical status (Gunn v Sound Shore Medical Center of Westchester, 5 AD2d 435, 772 NYS2d 714, supra ; see also, Rabinowitz v St. John's Episcopal Hospital, 24 AD2d 530, 808 NYS2d 280, supra ; Vassell v Magno, ___AD2d___, 2006 WL 1541448 (N.Y.A.D. 2nd Dept.(6/6/2006), supra ; Sanders v St. Charles Hospital and Rehabilitation, 12 Misc 3d 1175, 2006 WL 1789148; Rogers v NYU Hospitals Center, 8 Misc 2d 730, 795 NYS2d 438). While these case authorities are not directly controlling since they apply to confidential communications between physicians and their patients, the reasons underlying the non-disclosure of the names of medical patients who witnessed transactions and occurrences that are the subject of civil litigation are nearly identical to those underlying the rules, above cited, which preclude disclosure of the names and addresses of clients of psychologists.

Nevertheless, should the defendant convert one or more of the clients listed in the subject appointment diary pages into willing witnesses on his behalf and should said clients, in their capacities as witnesses, be called by the defendant to testify at the trial of this action, the plaintiff and third-party defendant must be afforded the opportunity to depose or otherwise obtain disclosure from said witnesses prior to trial. Accordingly, the defendant must furnish to counsel for adverse parties a witness list on or before the date on which this action is certified as trial ready (see, Hunter v Tryzbinski, 278 AD2d 844, 719 NYS2d 422). Adverse parties shall be entitled to discovery from all said witnesses provided all such discovery is completed thirty days prior to trial. The defendant shall be precluded from calling any witnesses not identified as trial witnesses in the notice he must supply to all adverse parties as herein directed. Nothing contained herein shall preclude any witnesses called to testify under force of subpoena from asserting any rights they may have to quash said process or to otherwise challenge their obligation to testify thereunder.

In view of the foregoing the motion-in-chief (#

006) by the defendant to vacate the plaintiff's notice for discovery and inspection is denied except to the extent set forth above. The plaintiff's cross-motion (#

007) for an order precluding the defendant from calling any witnesses to testify at the trial of this action whose names and addresses have not been disclosed is granted to the extent set forth above. All other relief demanded by the parties on the instant applications is denied.

Dated: July , 2006.

EDWARD D. BURKE, a.j.s.c. [*7]