Gruberger v Ford Motor Co.
Annotate this CaseDecided on August 3, 2006
Supreme Court, Richmond County
Herbert B. Gruberger and Diane F. Gruberger, Plaintiffs,
against
Ford Motor Company, Defendant.
10645/01
Philip G. Minardo, J.
Defendant Ford Motor Company moves for an order 1) precluding plaintiff from offering any testimony at the time of trial or any evidence based upon the purported psychological examination of Dr. Hirsch, PhD on May 19, 2006 as the report raises new injuries not previously plead and the report of same was untimely exchanged pursuant to 22NYCRR 202.17 and 202.21, or 2) precluding the examining expert from testifying or, alternatively, 3) striking this matter from the trial calendar so that a further deposition of the plaintiff Herbert B. Gruberger and physical examination can be performed after receiving the medical records that form the basis of the examining expert's opinion. The Plaintiffs cross move for an order to permit them to amend their bill of particulars to include the additional manifestations described in the report of Dr. Benjamin Hirsch, PhD dated May 19, 2006, and for an Order directing that an additional deposition and medical examination of the plaintiff be taken expeditiously.
This action was commenced as a result of a fire in the home of Herbert and Diane Gruberger in the middle of the night on February 13, 1999. The fire is alleged to be the result of a 1992 Lincoln Town Car and/or components thereof, garaged in the plaintiff's home, exploding and/or igniting, thereby incinerating itself, the plaintiff's home, and its contents. This fire allegedly then caused repressed emotional distress and psychological injuries to Herbert and Diane Gruberger, which have progressed over the past several years since the fire. [*2]
The original bill of particulars was served on January 15, 2002 alleging negligence and breach of express and implied warranty on the part of the defendant that resulted in defects in the 1992 Lincoln Town Car, which developed a resistive short in the electrical circuit that caused overheating and an underhood fire that subsequently burned down the plaintiffs' home. This fire subsequently caused the plaintiffs Herbert and Diane Gruberger depressive disorders and serious psychological symptoms as the result of the loss of their home and precious items. The supplemental bill of particulars was served on June 8, 2005 alleging further psychological impairment and continuing deterioration of emotional health.
The Note of Issue and certificate of readiness were filed by the plaintiffs on December 29, 2004.
This case is currently in the jury coordinating part, and was scheduled to select a jury in July 2006. Now, on the eve of trial, the plaintiff Herbert Gruberger is moving to amend his bill of particulars to add a new injury. Dr. Benjamin Hirsch, PhD's May 19, 2006 report and the plaintiff's proposed amended bill of particulars shows an exacerbation of Bell's Palsy, Herpes Zoster, "Shingles" and failure to recover therefrom, with permanent partial facial paralysis, as an additional consequence of the psychological injuries previously claimed. The court notes the plaintiff's failure to make this motion for leave to amend until after the defendant filed its motion to preclude, which resulted from the plaintiffs sending a copy of Dr. Hirsch, PhD's May 19, 2006 medical report to the defendant. When there has been an inordinate delay in seeking leave to amend a bill of particulars, the plaintiff must establish a reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment. Dimino v. Rosenfeld, 306 AD2d 371 (2d Dept. 2003). Herbert Gruberger's excuse for the delay in diagnosis stems from his employment as a livery cab driver where his clients conveyed to him that his Bell's Palsy / Herpes Zoster / Shingles could be exacerbated by his psychological illness from the fire. Plaintiff Herbert Gruberger did not believe there was any connection until he consulted with his psychologist Dr. Hirsch, PhD. This is not a sufficient reason for the lateness of the bill of particulars, as the diagnosis of this new injury was made as early as December 29, 2003, and, therefore, the plaintiff had sufficient time and opportunity to arrive at this conclusion and amend his bill of particulars.
In addition, the court finds that the delay in asserting this claim for new injuries is both prejudicial and inexcusable, as it is not only on the eve of trial, but the injury was initially diagnosed over two years ago. Boland v. Koppelman, 251 AD2d 176 (2d Dept 1998) (Denies leave to amend a bill of particulars two months before the trial was set to begin as prejudicial and inexcusable when the requesting party has knowledge of the information sought to be admitted.).
Finally, the affidavit of merit by Dr. Hirsch, PhD that indicates the causal connection between the exacerbation of the Bell's Palsy / Herpes Zoster / Shingles and the psychological problems that were a result of the 1999 fire is legally insufficient. There was no competent showing that this physical condition was causally linked to psychological distress alleged as a result of the house fire. The expert's affidavit that was submitted on behalf of the plaintiff with the apparent purpose of demonstrating such causation "provided no data to indicate the basis for [the expert's] conclusion [and] was speculative, conclusory, and lacking probative value" Itkowitz v. King Kullen Grocery Co., Inc., 22 AD3d 636 (2d Dept 2005). It appears that this medical conclusion is based on plaintiff Herbert Gruberger's conversation with his psychologist at the suggestion of some of his livery clientele, and not based on valid medical evidence. Therefore, this motion to amend the bill of [*3]particulars on the eve of trial is inappropriate and prejudicial, and the court finds no reason to allow such a tardy amendment.
Accordingly, the Defendant's motion to preclude the plaintiff Herbert Gruberger from offering testimony based on the additional injuries of exacerbation of Bells Palsy, Herpes Zoster, and "Shingles" from Dr. Hirsch, PhD's May 19, 2006 examination is granted. In addition, Dr. Hirsch, PhD is precluded from testifying as an expert concerning these new injuries. The motion to strike this matter from the trial calendar for post-Note of Issue discovery is denied. The plaintiff's motion to permit an amended bill of particulars and post-note of issue discovery is also denied.
This shall constitute the decision and order of the Court
E N T E R,
___________________________
J. S. C.
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