Prutzman v Albany Med. Ctr. Hosp.
Annotate this CaseDecided on April 28, 2016
Supreme Court, Warren County
Mollie Prutzman, Plaintiff,
against
Albany Medical Center Hospital, Albany Medical College, and John Doe, an unknown Individual and agent of one or more of the defendants, Defendants.
60046
LaFave, Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for plaintiff.
Maguire Cardona, P.C., Albany (Randall J. Ezick of counsel), for defendants Albany Medical Center Hospital and Albany Medical College.
Robert J. Muller, J.
This is a motion in limine in a medical malpractice action for an order pursuant to CPLR §3101(d)(1)(I) precluding the plaintiff from offering any testimony of her hospitalist expert at the trial of this action unless the plaintiff serves a further expert response to the moving defendants' demand including the names of the undergraduate, medical, and post graduate medical school from which the expert graduated; also where the expert attended and completed internships, residencies and, or, fellowship programs; and the hospitals at which the expert has worked or been affiliated. The plaintiff has disclosed that her expert is a hospitalist licensed in this state and board certified by the American Board of Internal Medicine, with an undergraduate degree "from a university in New England ... [and] a medical degree from a university in the northeast." Plaintiff also discloses this expert received postgraduate training from "a medical school in the northeast." Plaintiff has cross moved for a protective order and provided the court, in camera, the full curriculum vitae of her expert. The momentum here is the defendants' understandable desire for the fullest of disclosure squared against the plaintiff's equally appreciated interest in preserving the anonymity of their expert.
CPLR § 3101(d)(1)(I) provides that each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose, among other things, the qualifications of each expert. With respect to medical malpractice actions this section is [*2]narrowed to provide that a party responding to a request may omit the names of the medical, dental or podiatric expert but shall be required to disclose all other information concerning such experts otherwise required by the section. The phrase "all other information" is the focus of the motion and cross motion and the extent to which the "qualifications of [this] expert" have been disclosed. While the term "qualifications" as used in CPLR 3101(d)(1) is not statutorily defined an expert "should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable" (Matott v. Ward, 48 NY2d 455, 459 [1979].
This analysis begins with the premise that "virtually all information regarding expert witnesses and their anticipated testimony is discoverable under CPLR 3101(d)(1)(I), unless judicially transmogrified where the request is so detailed that disclosure would have the net effect of disclosing the experts' identities'" (Mead v. Rajadhyax Dental Group, 34 AD3d 1139 [2006]; Morris v. Clements, 228 AD2d 990, 991[1996], quoting Pizzi v. Muccia, 127 AD2d 338, 340, [1987]). It is in this posture that plaintiff moves for a protective order pursuant to CPLR 3103, necessarily carrying the burden of demonstrating that the items sought are immune from disclosure (see, Koump v. Smith, 25 NY2d 287 [1969].
More recent commentators have noted that in 1985 when this statute was enacted the Advisory Committee on the CPLR was "concerned with unique problems' that mandatory pretrial identification of expert witnesses in malpractice cases would pose, reasoning that disclosure of the names of expert witnesses would allow doctors impermissibly to dissuade colleagues from testifying for plaintiffs." (see Note [Richard S. Basuk, M.D.]: "Expert Witness Discovery for Medical Malpractice Cases in the Courts of New York: Is it Time to Take Off the Blindfolds?" 76 NYU L Rev 1527, 1528 n 6 [2001]) An additional consideration for concealing identity was undoubtedly the locality rule with roots long set in Pike v. Honsinger, 155 NY 201 [1898] within which the Court of Appeals articulated the requirement that the medical expert was required to possess "that reasonable degree of learning and skill...ordinarily possessed by physicians and surgeons in the locality where he practices" (id., at 209 ).[FN1] Doubtless, a local physician testifying against a local physician was certainly next to impossible to coordinate when faced with disclosure amongst that local community's practitioners. In 1985 such nondisclosure - simply the omission of a name - carried a sufficient guarantee that an expert's identity was effectively shielded. Since that time, however, has come the internet of many things.
Commercial internet service providers began to emerge in the very late 1980s and by the mid 1990s their traffic went from a trickle to a tsunami, pushing at its crest wide-ranging and easily accessible research tools in all of the disciplines - not envisioned three decades ago -including the fee-based service "Board Certified Docs" which the plaintiff sufficiently demonstrates would easily come close to, if not precisely landing upon, their expert's identity if the defense were given the further details it seeks. The Advisory Committee could not then have [*3]been aware of these for better - or worse - advances in information technology which, in 2016, are telegraphed (to use an archaic metaphor) into numerous preclusion and protective order applications throughout this state. Being guided here, however, by the Mead standard plaintiff's in camera affirmation of counsel presents proof sufficient to support a finding of the reasonable probability that the further information sought would lead to the disclosure of the actual identity of the expert. Until CPLR 3101(d)(1) is freed from the ether of 1985 when it was enacted it shall remain possible for defendants to seek to preclude and for plaintiffs to move for protective orders in which the burden to demonstrate the need for nondisclosure must be carefully carried, as has happened here.
It cannot be left unobserved that one of the primary reasons for the 1985 legislation, far from attained in 2016 as this decision demonstrates, was to expedite the resolution of malpractice claims in order to reduce litigation costs. (Memorandum of the State Executive Department in support of L. 1985, ch. 294, 1985 McKinney's Session Laws of New York, at 3019, 3025.)
Defendants' motion to preclude is denied. Plaintiff has sufficiently disclosed her expert's qualifications for the limited purposes of this CPLR 3101(d)(1) analysis. Plaintiff's cross motion for a protective order is granted.
The original of this Decision and Order has been filed by the Court. The Notice of Motion dated January 13, 2016 and the Notice of Cross Motion dated January 25, 2016 have been filed by the Court together with the submissions referenced below. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.
It is SO ORDERED.
Dated: April 28, 2016
Lake George, New York
____________________________________
ROBERT J. MULLER, J.S.C.
ENTER:
Papers Reviewed:
1. Notice of Motion in Limine dated January 13, 2016;
2. Affidavit of Randall J. Ezick, Esq. sworn to January 13, 2016 together with Exhibits "A" through "G";
3. Defendants' Memorandum of Law dated January13, 2016;
4. Notice of Cross Motion dated January 25, 2016;
5. Affirmation of Matthew T. Fahrenkopf, Esq. contained within the cross motion and dated January 25, 2016 together with Exhibits "A" through "C";
6. Plaintiff's Memorandum of Law dated January 25, 2016;
7. Further in camera Affirmation of Matthew T. Fahrenkopf, Esq. dated January 25, 2016 together with in camera Exhibits "A" through " H";
8. Reply Affidavit of Randall J. Ezick, Esq. sworn to February 1, 2016;
9. Reply Affirmation of Matthew T. Fahrenkopf, Esq. dated February 4, 2016 and
10. In camera Reply Affirmation of Matthew T. Fahrenkopf, Esq. dated February 4, 2016 together with Exhibits "A" and "B". Footnotes
Footnote 1:See Payant v. Imobersteg, 256 AD2d 702 (3d Dep't 1998); (Although the "locality rule" was promulgated 100 years ago, it is still extant (citations omitted) however, the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for the rule.)
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