Lang v West Babylon Elec., Inc.
Annotate this CaseDecided on August 14, 2012
Supreme Court, Nassau County
Douglas Lang, JOAN LANG, JOHN STUDDERT and TARA STUDDERT, Plaintiffs,
against
West Babylon Electric, Inc. and FRIENDS OF FARMINGDALE ATHLETICS, INC., Defendants.
011948/08
Counsel for Plaintiffs John Studdert and Tara Studdert:
The Greenberg Law Firm, LLP
2929 Purchase Street
Purchase, New York 10577
(914) 694-1880
Counsel for Defendant West Babylon Electric, Inc.:
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Esqs.
The OMNI
333 Earle Ovington Boulevard - Suite 502
Uniondale, New York 11553
(516) 542-5900
Counsel for Defendant Friends of Farmingdale Athletics, Inc.:
Leonard B. Symons, Esq.
2 Hillside Avenue - Building C
Williston Park, New York 11596
Randy Sue Marber, J.
Papers Submitted:
Order to Show Cause (Mot. Seq. 02)...............x
Notice of Cross-motion [FN1]...................................x
Affirmation in Opposition................................x
Upon the foregoing papers, the Defendant, WEST BABYLON ELECTRIC, INC.'s motion, brought pursuant to CPLR § 3043 (b) (Mot. Seq. 02), seeking to compel the Plaintiff, JOHN STUDDERT (STUDDERT), to appear for a further Examination Before Trial [FN2] and to appear for an additional independent medical examination is decided as hereinafter provided.
The Plaintiff, JOHN STUDDERT, commenced this action seeking to recover monetary damages for personal injuries allegedly sustained as a result of an electrical shock he received on July 9, 2007. While in the employ of the Farmingdale School District, Mr. Studdert entered the press box near the football field and sustained the electrical shock. It is alleged that the electrical shock was due to the negligent installation of the stadium lighting by the Defendant, West Babylon.
This action was certified ready for trial on January 6, 2010. It then appeared on the trial calendar until it was marked "settled before trial" on May 10, 2011. Apparently, the Plaintiffs, Douglas Lang and Joan Lang, settled their causes of action with the Defendant. However, despite believing the Studdert plaintiffs had also agreed to a settlement, they decided to continue their action and the matter was restored to the trial calendar.
On or about February 15, 2012, the Studdert plaintiffs served a Supplemental Verified Bill of Particulars and Combined Demands. On or about April 9, 2012, the Studdert plaintiffs served two Expert Disclosures, one identifying Dr. Bruce A Levine as a possible expert witness. Within the disclosure, it states: "It is anticipated that Dr. Levine will testify regarding his psychological care and treatment of the plaintiff, John Studdert, from the dates of March 10, 2010 through November 10, 2011."
The second expert disclosure identified Dr. William James as a possible witness. Within that disclosure, it states: "It is anticipated that Dr. James will testify regarding his psychological care and treatment of the plaintiff, John Studdert, from the January 9, 2012 up to the present time."
At no time prior to the service of the Expert Disclosures were the identity or treatment of the Plaintiff ever mentioned in any deposition testimony or exchange of pleadings.
Upon demanding a further examination before trial and a psychological independent medical examination, the Defendant's counsel states that the Plaintiffs' counsel conditioned the psychological independent medical examination upon its length being limited to fifty (50) minutes and not to include the administration of the Minnesota Multiphasic Personality Inventory (MMPI-2). As a result of the Plaintiff's refusal to undergo testing which included the MMPI-2, this application [*2]ensued.
In support of the Defendant's request to compel the Plaintiff to appear for the psychological examination including the administration of the MMPI-2 test, the Defendant attaches the Affidavit of Dr. Laurence Abelove, a psychologist licensed to practice psychology in the State of New York, sworn to on May 15, 2012.
In his Affidavit, Dr. Abelove states that the MMPI-2 is "one of the most frequently used personality tests in the field of mental heath". Dr. Abelove states that he typically uses the MMPI-2 as part of his psychological evaluation and it is used "to accomplish the goals of thoroughness and ethicalness". Dr. Abelove indicates that the Plaintiff's treating physicians may not have administered the test due to the fact that they have multiple other ways to collect information over a longer period of time. He is not the Plaintiff's treating physician and must collect data in one visit. As such, he asserts his evaluation needs to take a longer period of time. Further, the MMPI-2 test serves as an "objective, standardized, scientific psychological test" which would enable him to "gain an objective and thorough understanding of Mr. Studdert's condition".
In opposition to the Defendant's Order to Show Cause, the Plaintiff's counsel contends that the Plaintiff's Bill of Particulars did set forth the claim of "severe emotional trauma" thereby making this application meritless. Additionally, the Plaintiff's counsel contends that the Plaintiff has never undergone an MMPI-2 examination and should not be subjected to one in the course of a voluntary IME. He argues that the administration of the MMPI-2 test would be a "particularly painful and excruciating exercise for one already suffering for RSD-likely why his treating psychologists have never directed him to undergo such testing". Notably, there is no mention as to whether the Plaintiff is right-handed or left-handed. The RSD claimed herein involves the Plaintiff's left hand and/or arm. Furthermore, no expert support for the Plaintiff's counsel's assertions in opposition to the administration of the MMPI-2 or the length of the examination has been proffered.
Pursuant to CPLR § 3101, there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action. The purpose of disclosure proceedings is to advance the function of trial, to ascertain truth and to accelerate disposition of suits. The CPLR directs full disclosure of all relevant material. The test is one of "usefulness and reason". CPLR § 3101 (a); Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 (1968); Andon v. 302-304 Mott Street Assoes., 94 NY2d 740 (2000); Hoenig v. Westphal, 52 NY2d 605 (1981) (pre-trial discovery is to be encouraged, limited only by the test of materiality of "usefulness and reason"); Spectrum Sys. Int'l. Corp. v. Chemical Bank, 78 NY2d 371, 376 (1991). In light of the applicable law, the information sought by the Defendant satisfies the test of materiality of "usefulness and reason" as it is necessary in order to defend the Defendants against the claims of the Plaintiff.
The Defendant has submitted sufficient support for this Court to order the Plaintiff, John Studdert, to submit to an independent medical examination which includes the administration of the MMPI-2 test. The Plaintiff's counsel has failed to provide any argument or proof in the form of an expert opinion to lead this Court to conclude that the administration of the MMPI-2 test would be harmful to the Plaintiff. No time limitation will be imposed as requested by the Plaintiff's counsel.
Accordingly, it is hereby
ORDERED, that the Defendant's motion, pursuant to CPLR § 3043 (b), seeking to compel the Plaintiff, John Studdert to undergo an independent medical examination which includes the administration of a MMPI-2 test, is GRANTED; and it is further [*3]
ORDERED, that the Plaintiff, John Studdert, shall be produced for an independent medical examination which includes the administration of a MMPI-2 test within twenty-one (21) days of the date of this Order.
This constitutes the decision and order of this Court.
DATED:Mineola, New York
August 14, 2012
___________________________
Hon. Randy Sue Marber, J.S.C.
Footnotes
Footnote 1:The Plaintiff's Cross-motion (Mot. Seq. 03) was resolved by a So-Ordered Stipulation dated June 25, 2012 and the papers serve as the Plaintiffs' opposition to the Defendant's Order to Show Cause.
Footnote 2:The branch of the Defendant's Order to Show Cause seeking to compel the Plaintiff to appear for a further Examination Before Trial was resolved in a So-Ordered Stipulation dated June 25, 2012.
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