McPhillips v State of New York

[*1] McPhillips v State of New York 2013 NY Slip Op 52290(U) Decided on December 17, 2013 Ct Cl DeBow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2013
Ct Cl

John C. McPhillips, M.D., Claimant,

against

The State of New York

[FN1], Defendant.

121137



For Claimant:

OLIVER LAW OFFICE

By: Lewis B. Oliver, Jr., Esq.

For Defendant:

ERIC T. SCHNEIDERMAN, Attorney General

of the State of New York

By: Anthony Rotondi, Assistant Attorney General

W. Brooks DeBow, J.

Claimant, a physician who worked at a state correctional facility, filed this claim sounding in defamation per se on April 6, 2012. Specifically, the claim alleges that on April 10, 2011, an article appeared in the print and on-line versions of the New York Daily News which included statements attributed to a State official that referred to claimant's claims as "crazy" and that he "demonstrat[ed] biases against the incarcerated" (see Oliver Affirmation, Exhibit J). Defendant answered the claim, and then moved to dismiss it on the ground that the claim failed [*2]to state a cause of action because the published statements constituted non-actionable opinion (see id. Exhibit X [Rotondi Affirmation in Support of Motion to Dismiss, at ¶¶ 10-19]). Defendant also sought summary judgment on the ground that Dr. Phyllis Harrison-Ross, a Commissioner of the State Commission of Correction and the Chairwoman of the Medical Review Board who was the state actor alleged in the claim to have made the statements to the Daily News had not, in fact, done so (see id. at ¶¶ 20-23). Defendant's motion was withdrawn without prejudice for the purpose of allowing claimant to learn the source of the allegedly defamatory statements (see id. Exhibits Z-CC). Claimant ultimately learned that the offending statements were initially set forth in a memorandum dated November 30, 2010 from Janet E. Judge to Dr. Harrison-Ross (see id. Exhibit H [the "Judge memorandum"]), a copy of which had been acquired by a non-State actor who gave it to the Daily News reporter. Claimant now moves for permission to amend the claim "to conform to the facts regarding publication of the defamatory statements about claimant by State employees" (Notice of Motion to Amend Claim Pursuant to CPLR 406 and 3025). Claimant also moves to compel defendant to respond to his discovery demands. Defendant opposes the motion.

The following underlying facts are gathered from the allegations in the claim and the exhibits to claimant's motion. An inmate known as Michael Fox entered a Shock Incarceration Program on August 5, 2009. On that date, claimant determined upon a medical examination of Fox that his "lungs were clear, he had no current asthma symptoms and had used his inhaler" (Verified Claim No. 121137, ¶ 17). Claimant recommended that Fox continue taking Claritin for allergy symptoms, but he did not provide Fox with a new Albuterol inhaler or other treatment for asthma. On August 12, 2009, Fox collapsed during a two-mile run that was part of the Shock program, and he died two days later. An autopsy report concluded that Fox "died of irreversible shock with multi-organ failure as a result of massive heat shock," and further stated that Fox's "obesity, history of asthma and cardiomegaly [enlarged heart] should have disqualified him from being forced to participate in strenuous activity in the heat of August" (id. Exhibit A, Lourdes Hospital Pathology Report Autopsy Addendum]).

A final report on the death of Michael Fox by the New York State Commission of Correction ("the Commission") is dated June 18, 2010 (see id. Exhibit B; see also Oliver Affirmation, Exhibit A). The Commission's report can be fairly characterized as being critical of claimant's diagnosis and treatment of Fox regarding his asthma. Claimant, who had been personally interviewed during the investigation into Fox's death, was given a copy of the Commission's report by Assistant Attorney General (AAG) Wesley Bauman under cover letter dated November 19, 2010 (see Oliver Affirmation, Exhibit F). On November 23, 2010, claimant wrote to Bauman a "point by point" rebuttal to certain statements in the report, and a copy of that correspondence was sent by claimant to the Commission, among others (see id. Exhibit G). The aforementioned November 30, 2010 Judge memorandum discusses claimant's correspondence and comments regarding the Commission's report (see id. Exhibit H), and it includes the following paragraph: As a medical provider with the NYS Department of Correctional Services, it would be expected that Dr McPhillips adhere compliance with their asthma treatment guidelines. Dr. McPhillips refused to renew Albuterol MDI, Fox's rescue inhaler. This is [*3]because Dr. McPhillips' writes in the correspondence to the Attorney General's Office in his own words "Mr. Fox hid inhaler over-use which was his drug substitute and was unrelated to asthma." This is pure nonsense and demonstrates biases against the incarcerated. Mr. Fox never tried to hide his Albuterol use; he in fact requested more Albuterol inhalers because he was having difficulty breathing. In instead of trying [a recommended asthma medication] Dr. McPhillips did not even prescribe Fox his rescue Albuterol inhaler. As far alleging that Fox was abusing Albuterol as an illicit drug substitute is completely crazy and to my knowledge there are no drug treatment programs for Albuterol abuse.

(Oliver Affirmation, Exhibit H, ¶ 21 [errors in original, emphasis added]). The emphasized language was quoted in the Daily News article dated April 10, 2011 (see id. Exhibit J).

Learning from defendant's motion for summary judgment that Dr. Harrison-Ross was not the source of the comments that appeared in the Daily News article, claimant assembled the following information. In August 2010, Michael Fox's family had commenced an action for damages against certain officials and employees of the Department of Correctional Services, entitled Clark v Fischer, in Supreme Court, Bronx County, in which the plaintiffs were represented by Morton Buckvar, Esq. (see id. Exhibit C), with AAG Bauman appearing for the defendants. Clark v Fischer was removed to Federal District Court in September 2010 (see id. Exhibit D). Sometime prior to April 10, 2011, AAG Bauman provided a copy of the Judge memorandum dated November 30, 2010 to Attorney Buckvar in the context of the federal court proceedings (see id. ¶ 17; Exhibit DD, ¶ 34). On April 4, 2013, claimant's counsel learned from the attorney for the Daily News that the reporter who wrote the article that was published in the Daily News on April 10, 2011 had been given a copy of the Judge memorandum by Attorney Buckvar (see id. ¶ 41).

On June 16, 2011, claimant served a "Notice of Claim" on the Attorney General, in which he alleged that Dr. Harrison-Ross made the allegedly defamatory statements to the Daily News reporter on April 10, 2011, and that the Daily News published the defamatory article on that same date (see id. Exhibit N). On April 6, 2012, claimant filed the instant claim specifically alleging that the false and defamatory statements were verbally made by Dr. Harrison-Ross to the Daily News (see Claim No. 121137, ¶¶ 35-39, 49-50, 53-58, 63-68, 73-76, 85-86, 89-91, 97-102). The claim asserts two causes of action sounding in defamation, the first arising from the comment that claimant's position on Albuterol abuse was "crazy," and the second from the comment that he "demonstrat[ed] biases against the incarcerated." Claimant now moves to amend the claim to remove references to Dr. Harrison-Ross having made statements to the Daily News, and to include allegations that Janet E. Judge, R.N. sent the memorandum that included the offending statements to Dr. Harrison-Ross on November 30, 2010 (see id. Exhibit DD [Proposed Amended Claim], ¶ 33), and that "[a]t some point during the proceedings" in the federal action, AAG Bauman provided the Judge memorandum to plaintiffs' counsel, Attorney Buckvar (id. ¶ 34), who provided the memorandum to the Daily News (id. ¶ 39). The proposed [*4]amended claim, rather than alleging a direct publication by Dr. Harrison-Ross to the Daily News, asserts that the statements from the Judge memorandum were "republished" by AAG Bauman when he provided the Judge memorandum to Attorney Buckvar, and that the statements were "again published" in the Daily News on April 10, 2011 (id. ¶¶ 41, 75). The proposed amended claim alleges that it was foreseeable to AAG Bauman that Attorney Buckvar would release a copy of the Judge memorandum to the media (id. ¶¶ 63, 93).

In opposition to the motion, defendant argues that claimant is seeking to amend the claim to avoid fatal jurisdictional timeliness and statute of limitations problems that arise if claimant's causes of action are found to accrue on the Judge memo's original publication date of November 30, 2010 (see Rotondi Affirmation, ¶¶ 9-11). Defendant contends that application of the "single publication" rule requires a determination that the claim accrued on November 30, 2010, the date of the Judge memo, and that claimant's invocation of the "republication" rule to trigger a later date of accrual upon AAG Bauman's transmission of the Judge memorandum is unavailing (see id. at ¶¶ 16-26). Defendant also contends that the facts in the proposed amended claim differ so significantly from the facts alleged in the initial claim that claimant's reliance on the "relation back" doctrine is misplaced (see id. at ¶¶ 28-29). Defendant further asserts that the factual allegations in the proposed amended claim are insufficient to meet the substantive pleading requirements of Court of Claims Act § 11 (b) (see id. at ¶¶ 12-15). Finally, defendant argues that the proposed amended claim should not be permitted because it is without merit inasmuch as AAG Bauman's conduct in transmitting the Judge memorandum to Attorney Buckvar is cloaked with absolute privilege because the document was provided to Bucknar in the context of a judicial proceeding (see id. at ¶¶ 32-36). In reply, claimant refutes each of these arguments, and contends that discovery is required to enable claimant to gather the information necessary to plead all pertinent facts with specificity (see generally Oliver Reply Affirmation).

A claim which alleges intentional torts will be timely if it was served and filed within 90 days of its accrual, or if a notice of intention to file the claim was served upon the Attorney General within that same 90-day period (see Court of Claims Act § 10 [3-b]). "Failure to comply with the statutory filing and service requirements deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Office of Children and Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). Here, a notice of intention to file a claim was served upon the Attorney General on June 16, 2011 (see Oliver Affirmation, Exhibit N), and thus, the claim may be timely only with respect to any causes of action that accrued during the preceding 90 days, or no earlier than March 18, 2011. Defendant asserts without refute by claimant that the causes of action stated in the initial claim accrued on the date of publication of the Judge memorandum on November 30, 2010. Accordingly, it appears that the initial claim is jurisdictionally defective because the notice of intention was untimely served more than 90 days after that date.[FN2] Thus, the proposed amended claim asserts causes of action that may have accrued on the unspecified date when AAG Bauman gave the Judge memorandum to Attorney Buckvar, giving rise to such issues as whether the amended claim satisfies the pleading requirements of Court of Claims Act § 11 (b), whether AAG Bauman's production of [*5]the Judge memorandum to Attorney Buckvar was a "republication" of the Judge memo, and whether AAG Bauman's conduct in providing the Judge memorandum to Attorney Buckvar is shielded from liability by absolute privilege.

Defendant correctly acknowledges that leave to amend a claim should be freely given (see Rotondi Affirmation, ¶ 11; CPLR 3025 [b]), but a motion for leave to amend a claim should be denied if the proposed amendment is devoid of merit or is not viable (see Trupia v Lake George Central School Dist., 62 AD3d 67, 68 [3d Dept 2009], affd 14 NY3d 392 [2010]; see also Waddell v Boyce Thompson Institute for Plant Research, Inc., 92 AD3d 1172, 1174-1175 [3d Dept 2012], lv denied 19 NY3d 805 [2012]).

Assuming without deciding that the proposed amended claim satisfies the threshold jurisdictional requirements of timely filing and service and that it is within the one-year statute of limitations, and further assuming that it satisfies the substantive pleading requirements of Court of Claims Act § 11 (b), the motion to amend the claim will be denied because the alleged tortious conduct — AAG Bauman's publication (or republication) of the Judge memorandum to Attorney Buckvar — is not actionable because it was absolutely privileged.

"Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives' " (Sexter & Warmflash, PC v Margrabe, 38 AD3d 163, 171 [1st Dept 2007], citing Prosser and Keeton, Torts § 114, at 816; see Toker v Pollak, 44 NY2d 211, 219 [1978]). Statements made in the course of judicial proceedings are absolutely privileged (see Sexter & Warmflash at 171 [1st Dept 2007]), and absolute privilege will attach if the allegedly defamatory statements were "pertinent" to the questions involved in the judicial proceeding (see id. at 172). "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" (id. at 173 [internal quotations and citations omitted]; see also Black v Green Harbour Homeowners' Assn. Inc., 19 AD3d 962, 963 [3d Dept 2005] ["test of pertinency . . . is extremely liberal so as to embrace anything that may possibly or plausibly be relevant or pertinent" (internal quotations and citation omitted)]). "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame' " (Sexter & Warmflash, at 173, quoting Martirano v Frost, 25 NY2d 505, 508 [1969]). Whether a statement is privileged is a question of law that is "properly determinable on a motion to dismiss addressed to the pleadings and documentary evidence" (id. at 173; see also Klein v McGauley, 29 AD2d 418, 419-420 [2d Dept 1968]), and when determining whether a statement has any pertinence to the judicial proceeding, "any doubts are to be resolved in favor of pertinence" (Sexter & Warmflash, at 173).

Claimant contends that Ms. Judge's statements are not entitled to absolute privilege because she was not a judge, juror, attorney, party or witness in Clark v Fischer and therefore, she was not a participant in that proceeding (see Oliver Reply Affirmation, ¶¶ 42-43, citing Park Knoll Assoc. v Schmidt, 59 NY2d 205, 209 [1983]). This argument misses the point because the two causes of action in the proposed amended claim are not based upon Judge having made the statements in the memorandum dated November 30, 2010, but upon the allegedly tortious conduct of AAG Bauman in "republishing" the allegedly defamatory statements by giving the Judge memorandum to Attorney Buckvar (see Oliver Affirmation, Exhibit DD, ¶¶ 34, 39, 41, 63, 75, 93). The precise question presented is thus whether an attorney's production to another [*6]attorney during the course of litigation of a document that contains alleged defamatory comments written by another individual is shielded by absolute privilege. The Court finds no precedent directly on point, but determines that such conduct is entitled to the absolute privilege.

The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of "clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander" (Youmans v Smith, 153 NY 214, 220 [1897]). "The [absolute] privilege is not limited to statements made or documents used in open court. In the course of' has been broadly construed to embrace letters between litigating parties or their attorneys or sent to the court concerning a pending proceeding (Simon v Potts, 33 Misc 2d 183), unsolicited offers of settlement (Zirn v Cullom, 187 Misc 241), briefs on appeal and statements made during an examination of corporation books and records at a hotel pursuant to an order of discovery (Kraushaar v Lavin, 39 NYS 2d 880)"

(Klein v McGauley, at 420 [comments directed to plaintiff in the office of the Clerk of the Court]; see also Caplan v Winslett, 218 AD2d 148, 152 [1st Dept 1996] [comments made on courthouse steps]). The absolute privilege has recently been applied to allegedly defamatory statements in a pleading subscribed by an attorney (see Hadar v Pierce, 111 AD3d 439 [1st Dept 2013]) and statements made by an attorney in correspondence issued in the context of "prospective litigation" (see Front, Inc. v Khalil, 103 AD3d 481, 483 [1st Dept 2013]). Where, as here, AAG Bauman produced a document to the attorney for another party in litigation, it would be in direct contravention of the policy underlying the absolute privilege, and inconsistent with prior determinations of the scope of absolute privilege, to hold that AAG Bauman's transmission of the allegedly defamatory document penned by Ms. Judge does not fall within the scope of absolute privilege. Thus, AAG Bauman's actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation.

Here, both causes of action in the proposed amended claim arise because "[a]t some point during the proceedings in Clark v Fischer, wherein the family of Mr. Fox sued the Department of Correctional Services for wrongful death, Assistant Attorney General Wesley E. Bauman, Esq., provided the above-mentioned [Judge memorandum] . . . to Morton Buckvar, the attorney for the Fox family" (Oliver Affirmation, Exhibit DD, ¶ 34). The face of the proposed pleading leads to the ineluctable conclusion that the content of the Judge memorandum and the allegedly defamatory statements are pertinent to the litigation in Clark v Fischer. Nevertheless, claimant disputes this conclusion.

Claimant argues that the Judge memorandum was not pertinent or necessary to the Clark v Fischer judicial proceeding because the memorandum was released by AAG Bauman before discovery had been conducted in that litigation (see Oliver Reply Affirmation, ¶ 39). However, the Clark v Fischer litigation was allegedly commenced in August 2010, and thus it was underway at the time of AAG Bauman's production of the Judge memorandum. Claimant does [*7]not explain how the timing of the production of the memorandum affects its pertinence, and the fact that formal discovery in Clark v Fischer may not as yet have occurred does not ipso facto mean that the Judge memorandum was not pertinent to or not exchanged within that litigation. Indeed, the memorandum and Judge's statements regarding claimant's views about Fox's alleged Albuterol abuse are clearly pertinent to the Clark v Fischer litigation, which sought to attribute liability for Fox's death.

Claimant further asserts that the Judge memorandum was not pertinent to the Clark v Fischer litigation because it was "an internal memorandum, analyzing whether the Commission of Corrections Report on the death of Michael Fox was correct in placing the blame on [claimant] instead of the correction officers [who supervised the run during which Fox collapsed]" (Oliver Reply Affirmation, ¶ 38), and that "[s]uch an internal analysis had nothing to do with the litigation by [Fox's] family" (id.). Claimant does not explain how a finding of pertinence to the Clark v Fischer litigation would be defeated by his assertions that the Judge memorandum was an "internal" document or that it may not have been obtainable by the public pursuant to FOIL, and the argument is simply without merit. In litigation that seeks to hold the State liable for the death of an incarcerated person, any statements made in an investigation and related information that addresses the cause(s) of the death would be pertinent to the judicial proceeding, especially when viewed with the broad definition afforded to "pertinence" in the context of an assertion of absolute privilege.

Finally, claimant asserts that Judge's defamatory language — the terms "crazy and biased against inmates" — was not pertinent because she could have used other, less pejorative terms, or because AAG Bauman could have redacted those phrases from the Judge memorandum before providing it to Attorney Buckvar (see id. ¶ 40). However, as stated above, the absolute privilege applies to materials that are pertinent to judicial proceedings to foster the "obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives" (Sexter & Warmflash, at 171). Thus, the implicitly necessary inquiries such as whether Judge was careless or malicious in her choice of terms, or whether AAG Bauman had a reason for not redacting the offending terms from the memorandum are not applicable to the question of pertinence.

In sum, even if the Court were to find that the proposed amended claim overcame all of the jurisdictional and statute of limitations issues that are presented, the proposed amended claim does not state a viable cause of action because any allegedly libelous or defamatory publication by AAG Bauman is entitled to absolute privilege because it occurred within the scope of a judicial proceeding and was pertinent thereto, and thus, claimant's motion to amend the claim will be denied.

That part of claimant's motion that seeks an order compelling defendant to produce discovery materials will also be denied. To the extent that claimant seeks to gather information related to AAG Bauman's conduct so that the amended claim may be pleaded with greater particularity, such discovery is unnecessary in light of this decision. Defendant's lack of response to claimant's outstanding discovery requests has been occasioned by the parties' motion practice, and not by any articulated objection or willful failure to respond or comply (see CPLR 3124). Thus, a motion to compel discovery responses is premature Accordingly, it is

ORDERED, that motion number M-83897 is DENIED.

Albany, New York

December 17, 2013

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Claim number 121137, filed April 6, 2012;

(2) Verified Answer, filed May 14, 2012;

(3) Notice of Motion to Amend Claim Pursuant to CPLR 406 and 3025, dated August 21, 2013;

(4) Affirmation of Lewis B. Oliver, Jr., Esq., in Support of Motion to Amend Claim Pursuant to

CPLR 406 and 3025, dated August 21, 2013, with Exhibits A-DD;

(5) Memorandum of Law in Support of Motion to Amend Claim Pursuant to

CPLR 406 and 3025, dated August 21, 2013;

(6) Affirmation of Anthony Rotondi, AAG, in Opposition to Motion to Amend the Claim, dated

September 11, 2013;

(7) Reply Affirmation of Lewis B. Oliver, Jr., Esq., in Support of Motion to Amend Claim

Pursuant to CPLR 406 and 3025, dated September 26, 2013. Footnotes

Footnote 1:The caption has been amended sua sponte to reflect the State of New York as the only proper defendant in this claim.

Footnote 2: This claim was filed on April 6, 2012, and thus, any causes of action that accrued prior to April 6, 2011 would be outside the one-year statute of limitations (see CPLR 215 [3]).