Watkins v Hospital for Special Surgery PHO, Inc.

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Watkins v Hospital for Special Surgery PHO, Inc. 2011 NY Slip Op 33414(U) December 14, 2011 Supreme Court, New York County Docket Number: 402027/10 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. NNEDON I212312011 [* 1] ru. Upon tho .fbrej$DIhgpmpn, I b.ordorod that t b motlon t h S ON - FILED NEW YORK COUNTY CLERK'S OFFICE Dated: J.S. C. :heck one: 0 FCNAls DlSPO$lTlON 6 O W - P I N R L DISPQSJTION Check if appropriate: 0 60 NOT POST 0 REPEREhIQ6 [J SUBMlt'O$4PER/ JUDQ. r] 8ETTL6 ORDER/ JUDG. [* 2] SUPFWME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: I A S PART 6 .. CHERYL WATKINS and JOSEPH WATKINS, Index No. 402027110 Plaintiffs, -against- THE HOSPITAL FOR SPECIAL SUROERY PHO, lNC., MICHAEL J. MAYNARD, M.D., and JOHN KARWOWSKI, M.D., Defendants. -----.. 1 _1-311__--1-------1_---II----- JOAN B. LOBIS, J.S.C. 1-1- -3.1 ----X DEC 14 2011 NEW YORK COUNTY CLERKS OFFICE Defendant, John Karwowski, M.D., seeks an order compelling a further deposition of plaintiff, Cheryl Watkins,pursuant to C.P.L.R. 3 101 and 3124. Plaintiffs oppose this motion. $5 Plaintiff, Cheryl Watkins, commenced this medial malpracdcc action on February 22,2010, seeking to recover damages far physical pain and suffering and loss of enjoyment of life, and asserting B derivative claim for loss of services on behalf of her husband, Joseph Watkins. Counsel for Dr. Karwowski states that plaintiffs w t d e the claim for loss of consortium during ihrw the deposition of Joseph Watkins. On May 21, 2008, Ms. Watkins underwent a hip resurfacing procedure at co- defendant Hospital for Special Surgery Pho, Inc., with co-defendant Michael J. Maynard, M.D., performing the surgery. During the surgery, Dr. Karwowski w s called to assist in closing a blood a vcsscl. After the surgery, D .Karwowski performed a grafting proccduro and a calf fasciotomyon r the leg on which Dr. Maynard operated. As to Dr. Karwowski,plaintiffs allege that the grafting [* 3] procedure and calf fmciotomy were performed negligently. Plaintiffs allege in their verified bill of particulars that Ms.Watkins suffered permanent injuries including headaches wt facial pain; left ih lower leg ischemia; extensive nerve damage and swelling to the lower extremity with loss of feeling and numbness in areas of the fasciotomy and below; muscle necrosis; chronic pain in the affected extremity; deficits in strength, balance, and stability; and loss of eqioymcnt for life. During Ms.Watkins deposition on May23,2011, plaintiffs counsel objected to four of Dr. Katwowski scounsel s questions and directed Ms. Watkins not to answer those questions. Ms.Wetkins was asked to identify the kind of facility where she participated in physical activities; whother she was a rnembur of a country club; whether she has taken any vacations after her procedure; and whether anyone, other than her attorney, has criticized the care she received by Dr. Karwowski. Dr. Karwowski scounsel arguesthat Ms. a k n should bc compelled to appear for Wtis further deposition on the grounds that it was impermissible fat plaintiffs counsel to instruct his client not to a s e the four aforementioned questions. Defendant asserts that plaintiffs counsel nwr acted in violation of 22 N.Y.C.R.R. 221.1, which states, in rclcvant part, that no objection shall 4 be made at a deposition except those which, pursuant to subdivision @), (c), or (d) of [C.P.L.R.5 31 151, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. The rule further states that all objections shall be noted by the officer beforc whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the -2- [* 4] C.P.L.R." 22 N.Y.C.R.R.221.l.D .Karwowski also argues that plaintiffs' counsel's objections Q r violate the stipulation entered into by all parties at the commencement of the deposition on May 24, 201 1, which provides "that a deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation sct forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, could c w significant a prejudice to a person." &g 22 N.Y.C.R.R. 221.2. Defendant's counsel states that none of the four 5 questions posed to Ms.Watkins is privileged or falls into any of the exceptions. Additionally, he argucs that the questions are material and necessary, as Ms.Watkins' activity level and vacations relate to her slleged damages and claims for loss of feeling and numbness to her left lower extremity; deficits in strength, balance, and stability; and loss ofeqjoymtnt of life. These questions, defendant further states, seek to elucidate the manner in which Ms.Watkins' lifestyle has been altered since the May 2 I, 2008 procedure. As to the question regarding whether anyone besides Ms.Watkins' counsel has criticized the care provided by D .Karwowski, defendant's counsel alleges that it seeks r to discover names of potential witnesses, which can only be learned f o Ms.Watkins' deposition. rm Plaintiffs oppose this motion, arguing that defendant merely seeks to portray Ms. Watklns as a wcll-to-do person of means and that the question regarding the criticism of care provided by Dr. Kanvowski sccks the names of potential medical experts, which violates C.P.L.R. 5 3 lOl(d). Plaintiffs further argue that there is no relationship between the kind of facility in which Ms. Watkins participated in physical activity and the claims alleged in this action, and, as such, the questions about the kind of facility to which Ms.Watkins belongs and her vacation schedule are irrelevant. -3- [* 5] Parties in a civil action arc cntitlcd 10 full disclosure of d l inattcrs iiiatcrid a i d ncccssq (C.P.L.R. $ 3101 I n ] ) , and sucli discovcry provisions are lo bc liberally conslrued to rccluirc disclosure ofany fncls bearing 011 thc casc. Allcn v. C rowcll-Collier Pub., 21 N.Y.2d 403. 406 (1 968). I-lcrc, plnintiffs counsel hns not ariiculakd that [tic qtiestions posed by dckndant s counsel arc privilcgcd, or thrii mswcring Ihc questions would cause his client significnni prcjudicc. I-lowevcr, as lo whclhcr niiyone, other than Ms. Watkins attorney, has criticized the care that M s . Walkins reccived by Dr. Kat-wmvski, this ques(ion should bc limited to cxclude any medical prol essional hircd by Ms. Wnlkins or Iicr attorney solely ns a11cspcrt witiiess in this malm. In nthcr ivords, if defendant s qucstioii is nor limited in this capacity. plaintifr shall bc pcniiitted lo not answer this question, i n ;iccurclancc \vith C.P.L.R. 9 3101. As such, Ms. Walkins shall nppcnr for further deposition rugurdi ng tho row ii forementionedqucst ions and thosc queslions which reasonably flow Vrom hcr responses to Iliosc qircsiions, tu thc cstciit limited by this order. The length or tlic deposition shall 1101 cscwd onc (1 ) hour unlcss good causc is shown to extend thc time. Accordingly, i t is hereby ORDERED that dcrendnnt John Kanvowski, lv1.D. ~motion to compcl further deposition of plainti l Clicryl Watkins is grantcd, la the cslent set Iortli rtbovc. r A FILED DEC 14 2051 NEW YORK COUNTY CLERKS OFFICE -4 - JOAN sl/LOB[S, J.S.C.

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