Kowalski v Ritterband
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Kowalski v Ritterband 2012 NY Slip Op 30197(U) January 26, 2012 Supreme Court, New York County Docket Number: 116846/08 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 113012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART , Anewering Affldmvltr - Exhlbhr - A f f i d ~ t t r- bhbh Raplying Affidavltr - MOTION C A L NO. CY&, Notlco of Motlonl Order to Show /& 14r c r NEW YORK COUNTY CLERKS ClFFlCE THIS MOTION IS DEClDED.IN ACCORDANCE W 1TH TH E ACCO MPANY I P:G h! E ii it 14DUh.i i)EC IS I0N i0 A ,1 J. S C. . Chauk one: FINAL DISPOSITION NON-FINAL DISPOSITION [ 1 REFERENCE 1 0 DO NOT POST 0 SETTLE ORDER/ JUDG. 0 SUBMIT ORDER/ JUDO. Cheuk if appropriate: [* 2] Index No. 1 16846108 Plaintiffs, d Orda -against- DAVID C. RITTERBAND,M.D., OPHTHALMIC and CONSULTANTSKORNEAL AND REFRACTWE SURGERY ASSOCIATES, P.C., Defendants. FILED JAN 30 2012 JOAN B. LOBIS, J.S.C.: In Motion Sequence Numbtr 005, defendants David C. R@~&f##!!k,b O I M UFF,CE Ophthalmic Consultants/Corneal and Refractive Surgery Associates, P.C. move, by order to show cause, for a court order, pursuant to C.P.L.R. §Q 3 10 I , 3 121, and 3 126, precluding plaintiffs Elaina and Joseph Kowalski from offering expert testimony or evidence at the time of trial as to Ms. Kowalski s physical condition, as described either in reports issued by any examining physician after the filing of the note of issue or by m examining physician at trial, on the grounds that plaintiffs y failed to timely complete their physicaVophthdmologicalexamination and exchangethe physician s report. Plaintiffs oppose defendants motion and cross-move for an order protecting the qualifications of their expert from fbrthtr disclosure. This action sounding in medical malpractice and lack of informed consent arises out of D .Mttcrband sperformance ofa LASIK eye surgery procedure on Ms.Kowalski on September r 27,2007. Plaintiffs bill of particulars and two supplemental bills of particulars set forth that they arc alleging that D .Ritterband failed to diagnose Ms.Kowalski s preoperative conditions, such BS r cornea disease and pellucid marginal degeneration ( PMD ), the presence of which are [* 3] contraindications to LASIK surgery. Plaintiffscontendthat as a result ofthe alleged negligence, Ms. Kowalski suffers f o a permanent ectatic disorder involving the progrcssivc thinning of her rm corneas, including permanent loss of vision and the need for a corneal transplant. The parties proceeded through discovery and on or about July 8,201 1, plaintiff filed a note of issue. On August 2,201 1, the parties appeared in court for a pre-trial conference, wherein, the trial date was set for January 30,2012; plaintiffs and defendants were ordered to exchange C.P.L.R. 3 IO1(d) disclosures no later than forty-five(45) and thirty (30) days before trial, 5 respectively; and the outstanding medical examinationswere set to be completed, and reportsof such examinations exchanged, at least ninety (90) days and sixty (60) days prior to trial, respectively. On or about December 16,201 I, plaintiffs served their C.P.L.R 4 3101(d) expert witness disclosum. As pertains to this dispute, plaintiffs intend to call two ophthalmologists; a doctor who performs visual simulation testing, Roger Davis, Ph.D.; and an economist. As to the ophthalmologists, plaintiffs expect to call an (unidentified) ophthalmologist licensed to practice ophthalmology with postdoctoral fellowship training in cornedexternal disease and refractive surgery. The ophthalmologist is expected to testify, amongst other things, that Ms.Kowalski has been diagnosed with keratoconus, PMD, and post-LASIK ectasia; that w e e her prior optometrisls hr and D .Rltterband diagnosed Ms.Kowalski with keratoconus, it w s a departure from the standard r a of care to perform LASIK surgery; and that as a result of the LASIK surgery, Ms.Kowalski suffers from post-LASIK ectasia, a permanent partial disability. The basis for the expert's opinions is his/hcr review of, amongst other things, the medical records, the deposition transcripts, the legal papam from the case, the report ofdefendants' independent medical examination ("ME") July dated -2- [* 4] 14, 2010, and the exmination note of Elizabeth A. Davis, M.D.,dated December 5, 201 1. Additionally, plaintiffs expect to call Elizabeth A. Davis, M.D., F.A.C.S., as an expert witness in ophthalmology. Dr. Elizabeth Davis expected testimony and the basis of such is similar to that ih expected fromthe unidentified ophthalmologist. Together w t their section 3 101(d) disclosure as to D . Elizabeth Davis, plaintiffs provided defendants with a HIPAA-compliant authorization r permitting them to obtain copies of Dr. Elizabeth Davis records far Ms.Kowalski. At this juncture, defendants argue that plaintiffs failed to obtain an ophthalmological examination of Ms. Kowalski prior to ninety (90) days before trial, therefore they should be precluded from offering evidence at trial related to this late examination. They maintain that plaintiffs are unable to show that this examination was needed in order to avoid substantial prejudice arising out of unusual or unanticipated circumstances. Defendants maintain that plaintiffs never disclosed Dr. Elizabeth Davis report of December 5,201 1, but that if plaintiffs arc proposing to serve a report of a physical examination on the eve of trial, they are attempting to add a new theory of recovery, which amounts to an improper and belated attempt to amend their pleadings. As to plaintiffs disclosure of Dr. Roger Davis expected testimony, defendants state that he also performed testing of Ms.Kowalski on the eve of Gal, although this fact is not clear. Defendants argument for precluding Dr. Roger Davis testimony is not well articulated; their focus is primarily on precluding any wc of D . Elizabeth Davis examination of Ms.K w l k at trial. r oasi In opposition, plaintiffs argue that Ms. Kowalski is entitled to seek continuing treatment for her injuries, and the mere fact that she sought treatment f o her expert should not rm preclude reference to those findings. Plaintiffs sct forth that since M r h 2010, due to prior motion ac -3- [* 5] practice, defendants have known that plaintiffs liability expert is D .Elizabeth Davis. Plaintiffs r rm argue that they have good c a w as to why Ms.Kowalski sought treatment f o Dr. Elizabeth Davis so late, as Ms. Kowalski could not obtain an appointment with D .Elizabeth Davis for treatment r until December 5,201 1, due to scheduling conflicu and the need for Ms.Kowalski lo travel with her husband due to her impaired vision (Dr. Elizabeth Davis practice is apparently in Bloomington, r Minnesota). They maintain that they cxchanged copies of D .Elizabeth Davis treatment notes once they received them on January 3,2012, prior to defendants service of the motion (the notes are annexed to plaintiffs papers). They fbrther argue that defendants have failed to articulate any prejudice From reference at trial to Dr. Elizabeth Davis treatment notes, and imply that there is no surprise as Dr. Elizabeth Davis treatment notes allegedly reflect the Same findings that defendants 1,MEphysician Wing Chu, M.D., set forth in his July 14,2010 report. The December 5, 201 1 report is actually the medical record of Ms.Kowalski s single presentation before Dr. Elizabeth Davis. While plaintiffs characterize thisappointment as for treatment and not for their expert to evaluate Ms. Kowalski, this characterization is fairly disingenuous. Plaintiffs concede that they have expected Dr. Elizabeth Davis to tcstify as their ac expert since M r h 2010, and there is no plausible explanation EU to why they failed to obtain her physical examination ofMs. Kowalski prior to the 90-day deadline before trial ofNovember 2,201 1, nearly nineteen months later. This late examination and exchange of records certainly violates the dcadlincs imposed in the pre-trial conference stipulation and order that physical cxaminetions be completed prior to ninety (90) days before trial, and r p of such exchanged prior to sixty (60) e& days before trial. Nevertheless, in that the parties clcarly agreed that physical examinations could be conducted post-note of issue, plaintiffs delay in complying with the 90160day deadline i only s 4- [* 6] significant if it caused prejudice to defendants. Defendants state that plaintiffs delay deprived them of their ability to adequately evaluate plaintiffs physical condition and irreparably prejudiced them in having a full and fair opportunity to defend the claims set forth in the pladings. Defendants fail to articulate in what way the delay caused this alleged prejudice, especially when they exercisedtheir own right to conduct an IME and they have hid the pleadings for years. Further, Dr. Elizabeth Davis notcs from this examination indicate that Ms.Kowalski has post-LASIK ectasia, which hardly differs f o the alleged injuries in plaintiffs bills of particulars. Accordingly, precluding rm plaintiffs from referencing Dr. Elizabeth Davis notes during trial irr not warranted at this time. a As to plaintiffs cross motion, they seek a protective order shielding plaintiffs unidentified ophthalmologist squalifications from further disclosure. They maintain that any fiuther disclosure of their expert s qualifications would lead to defendants inevitable identification of the name of this person, which plaintiffs argue they are entitled to protect. They aver that the disclosure of the identity of their liability expert puts himher at risk of professional harm and retribution. Plaintiffs claim that this harm was potentially realized when, in October 201 1, an anonymous sender wrote a letter to this ophthalmologist s supervisor, stating that the expert is a highly paid professional witness for the plaintiff bar and asking that the supervisor put an end to this. Defendants object to the protective order and ask that plaintiffs be required to disclose information regarding their expert s qualifications in satisfaction with Yablon v, Coburn, 219 A.D.2d 560 (1st Dep t 1995). Defendants maintain that plaintiffs failed to attach any evidence of fear or retaliation anticipated by their unidentified expert. -5- [* 7] while, in New York, parties are not obligated to disclose their expert s name, they must disclose the expert s qualifications. C.P.L.R. 8 3101(d)(l)(i). If they are seeking to protect those qualifications from disclosure, they must show that the information disclosed would likely lead to the Identification of the witness, and that there is a real risk that the witness would be subject to threats or harassment if his or her identity were revealed. The court agrees that plaintiffs have failed to meet their burden in showing that a real risk of threats or harassment exists as to their expwt in this particular case. Plaintiffs point out two other cases in which the plaintiffs were granted e protective orders for their experts credentials in LASIK cases. WSchifftrv. S - Slip Op. S1768(U) (Sup. ct, N.Y. Co. 2004) (Schlednger, J.). Motion Sequence Number 003, pcv& 2008) (Carey, J.) (unpublished), a ,2004 N.Y. decision and order on v. Niksarlr. Index No. 107637/2007 (Sup. Ct. N.Y. Co. * a http://iapps.courts.statt.ny.us/iscroll (enter index number and follow hyperlink to decision and short form order on Sequence Number 003). However, in both of those cases, the plaintiffs provided affidavitsfrom their unidentified experts indicatingthat they feared professional repercussions would result from their identities being disclosed. Plaintiffs provide no such affidavit, but rather rely on materials that arc not specific to this case and are not clcarly contemporaneous. Plaintiffs fail to make a factual showing that there exists a concrete risk, under the special circumstances of [this] particular casa, that [their] prospective expert medical witness would be subjected to intimidation or threats if his or her name were revealed before trial . . . . v. A u , 302 A.D.2d 36,46 (2d Dep t 2002). Additionally, plaintif& failed to seck this relief prior to the time for sewice of their expert disclosures, Given the fact that thiscase At oral tugument, plaintiffs attorney offered to providu an aflidavit from the unidentified ophthalmologist, but the court declined to accept these papers as they were not offered with plaintiffs initial motion papers. I -6- [* 8] is proceeding to trial in a matter of days, when the identity of the expert shall bc revealed, the harm that plaintiffs seck to prevent with the protective order is so minimal as to render it unnecessary. The protective order is denied, and plaintiffs shall immediately disclose this expert's medical school, residency, and fellowships, and the states in which the witness is licensed to practice medicine. Accordingly, it is hereby ORDERED that defendants' motion and plaintiffs' cross motion are d FrtE7 entirety. JAN 30 2012 Dated: January& NEW \ ,2012 I -7-
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