Cordts v Fiege

[*1] Cordts v Fiege 2018 NY Slip Op 28112 Decided on March 28, 2018 Supreme Court, Monroe County Frazee, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on March 28, 2018
Supreme Court, Monroe County

Jill Cordts, Plaintiff,

against

Julie Fiege, Defendant.



2017/08104



APPEARANCES:

THE WRIGHT FIRM, LLC

16 West Main Street, Suite 212

Rochester, New York 14614

Appearing on behalf of Plaintiff Jill Cordts

By: Ron F. Wright, Esq., of Counsel

LAW OFFICES OF JOHN TROP

100 Meridan Centre Boulevard, Suite 220

Rochester, New York 14618

Appearing on behalf of Defendant Julie Fiege

By: Thomas P. Durkin, Esq., of Counsel
Evelyn Frazee, J.

DECISION

FRAZEE, J.

Plaintiff Jill Cordts (Cordts) submits an order to show cause seeking an order quashing the subpoenas of defendant Julie Fiege seeking the depositions of plaintiff's treating doctors, Zair Fishkin, M.D., and Joshua Rittenberg, D.C., and further seeking a protective order pursuant to CPLR §3103(a).

Plaintiff commenced this action for injuries arising out of a motor vehicle accident on October 16, 2015, when defendant's vehicle allegedly struck the vehicle being operated by Christian Cordts and in which plaintiff was a belted passenger.

On December 19, 2017, defendant served subpoenas for the depositions of Joshua Rittenberg, D.C. and Zair Fishkin, M.D. The subpoenas both state the grounds as follows: You are being subpoenaed as a fact witness to give testimony as you may have personal information and knowledge about the accident in question, and about business or financial relationships with plaintiff's other medical providers or other persons. Your deposition is necessary and material to help defendant prepare for trial and to defend this [*2]action. Addition [sic] information may be found in the attached Arons authorization...

(Attorney Affirmation of Ron F. Wright, Esq., Ex. E). Plaintiff notes that depositions of the parties have not occurred.

Plaintiff argues that these are treating doctors who have no personal information or knowledge about the accident. Zair Fishkin, M.D. is plaintiff's treating orthopedic spine surgeon and Joshua Rittenberg, D.C. is plaintiff's treating chiropractor. Plaintiff asserts that there are no discrepancies between information in the doctors' records and anything plaintiff has provided during discovery to warrant these depositions. Plaintiff argues that a protective order should be granted prohibiting the depositions in light of other available discovery devices, such as ex parte interviews or reading the treating physician's records. Plaintiff claims that permitting these depositions will open the flood gates for deposing defense medical examiners and courts will be faced with countless motions and disputes. Plaintiff asserts that these subpoenas are a continuation of an ongoing vendetta against medical providers who treat people who are injured.

Defendant concedes that it may be true that these doctors have no personal knowledge about the accident in question. Defendant, however, seeks to depose these medical providers as fact witnesses regarding their interests, biases, and financial motivations, in order to prepare for trial. In support of her position, defendant relies upon Matter of Kapon v Koch, 23 NY3d 32 [2014]; Porcha v Binette, 155 AD3d 1676 [4th Dept. 2017]; and Dominicci v Ford, 119 AD3d 1360 [4th Dept. 2014]. Defendant also relies upon information from prior trial testimony regarding financial interests of Dr. Fishkin. Defendant asserts that biases, motives and financial interests are always relevant. Defendant also questions whether plaintiff has standing to bring this motion to quash. Defendant points out that the offices of both medical providers who were subpoenaed were in contact to schedule the deposition with defendant's attorney.

DISCUSSION

Standing to Quash Subpoena

"A motion to quash . . . a subpoena shall be made promptly in the court in which the subpoena is returnable" (CPLR Rule 2304). On discovery issues

[t]he court may at any time on its own initiative, or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.

(CPLR §3103[a]). Based upon these statutory provisions, the attorney for plaintiff, as a party to the action, may bring a motion to quash a subpoena of a nonparty (see Bianchi v Galster Management Corp., 131 AD3d 558 [2nd Dept. 2015]). Counsel for plaintiff has standing to bring this motion.

Motion to Quash

The subpoenas issued by defendant are to the treating doctors of plaintiff, Joshua Rittenberg, D.C. and Zair Fishkin, M.D. Defendant concedes on this motion that these treating doctors may have no personal knowledge about the accident in question. There is no argument presented that these treating doctors have any personal knowledge or information about the accident. Defendant fails to provide any evidence showing a viable basis for deposing them as to facts about the accident. The motion of plaintiff to quash the subpoenas with regard to the [*3]request "to give testimony as you may have personal information and knowledge about the accident in question" is granted.

Defendant asserts that the subpoenas seek to depose these two treating doctors as fact witnesses regarding their interests, biases, and financial motivations in order to prepare for trial. Defendant attaches an Arons authorization to the subpoena, however, defendant advised at oral argument that an Arons interview had not been attempted with either of the doctors.

The subpoenas meet the requirement of Matter of Kapon v Koch to set forth the circumstances or reasons such disclosure is sought or required (Matter of Kapon v Koch, 23 NY3d 32,38-39 [2014]). When the subpoena provides the notice of the circumstances or reasons for the disclosure then "[i]t is the one moving to vacate the subpoena who has the burden of establishing that the subpoena should be vacated . . . " (Id. at 39).

The basis to quash a subpoena was articulated by the Court of Appeals in Matter of Kapon v Koch:

An application to quash a subpoena should be granted '[o]nly where the futility of the process to uncover anything legitimate is inevitable or obvious' .. . or where the information sought is 'utterly irrelevant to any proper inquiry' (citations omitted).

(Matter of Kapon at 38). The Court of Appeals also set forth the standard for liberal discovery: The words "material and necessary" as used in section 3101 must "be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (citation omitted).

(Matter of Kapon at 38).

The information sought from the plaintiff's treating doctors by the subpoenas - their "business or financial relationships with plaintiff's other medical providers or other persons" - does not bear on the underlying controversy.[FN1] There are no inconsistencies in the medical records of the plaintiff and notations of skepticism as to plaintiff's claims to support the need to depose the treating doctors on this basis (see, e.g., Bianchi at 559). Rather, in support of the subpoenas, defendant relies upon cases that allow discovery of physicians conducting independent medical examinations (IME) at the request of defendants' insurance carriers' to determine if there is any bias, interest or financial motivation that could influence their reports (see, e.g., Porcha v Binette, 155 AD3d 1676 [4th Dept. 2017; Dominicci v Ford, 119 AD3d 1360 [4th Dept. 2014]).

As a general proposition, a treating doctor's marketing and building relationships with others in order to obtain referrals to treat injured patients is significantly different than a doctor hired by an insurance company to conduct an IME for a defendant in a lawsuit. Indeed, the IME doctor is often referred to as "a hired gun". On the other hand, a treating physician is hired by an injured party to take care of his/her medical needs without regard to any litigation that might ensue or be pending.

The Appellate Division, Fourth Department has recognized that a subpoena duces tecum is proper to obtain information on bias, motive or interest to prepare for cross-examination with regard to a physician who conducts an IME for an insurance company on behalf of a defendant [*4]because the nature of the relationship raises impartiality into question (see Porcha v Binette; Dominicci v Ford). The issue before the Court is whether this recognition should extend to treating doctors.

Here, defendant points to information about Dr. Fishkin's practice and requirements that raise an issue whether he was principally engaged to treat the medical needs of plaintiff or whether a significant component of his retention is to provide testimony and other litigation assistance. If the latter situation exists, Dr. Fishkin's bias, motive or interest may be relevant. Specifically, Dr. Fishkin has testified in other matters as follows: in the approximate five years he has been acquainted with plaintiff's counsel he has treated several dozen of counsel's clients; plaintiff's counsel does legal work for Dr. Fishkin and his practice; billing records indicate fees incurred for testimony and providing assistance to professionals in other fields, e.g., healthcare planning, vocational rehabilitation, and economics, with the preparation of their reports; before performing surgery he requires patients and their attorneys to sign a "doctor's lien" form allowing payment of his fees for surgery from any settlement, judgment or verdict that might occur.

In light of this information, defendant's request to obtain further information from Dr. Fishkin about his financial relationship with others is not "utterly irrelevant to any proper inquiry" (Matter of Kapon at 38). Indeed, "questions concerning the bias, motive or interest of a witness are relevant and should be freely permitted and answered'" (Dominicci v Ford at 1361 [citation omitted]).

The threshold issue for which discovery is appropriate is to ascertain the nature of Dr. Fishkin's practice, his relationship with plaintiff's counsel, and how plaintiff became his patient. This can effectively be done through interrogatories or a notice to produce that is narrower in scope than the subject subpoena. Therefore, the subject subpoena which seeks Dr. Fishkin's testimony and does not identify documents to be produced is quashed. The motion of plaintiff to quash defendant's subpoena to Zair Fishkin, M.D. seeking to depose him "about business or financial relationships with plaintiff's other medical providers or other persons" is granted.

This ruling does not foreclose the availability to defendant of other discovery devices regarding Dr. Fishkin. Nor should this determination be interpreted as a blanket authorization of discovery of treating physicians beyond that which is common custom and practice. As a matter of policy, treating physicians should be allowed to devote their time to the treatment of patients and not to have their time unnecessarily taken up with the litigation process. Further, physicians should not be discouraged from taking as patients those individuals who may have been injured in an accident by potential involvement in the litigation process. The discovery as authorized herein is only appropriate after an initial showing that a treating physician may not be retained by the patient principally to treat but also for his/her assistance with litigation.

With regard to Dr. Rittenberg, defendant merely contends that his relationship with Dr. Fishkin raises questions about his bias, interest or financial motivation to justify the subpoena without providing any substantiation. Associations among professionals for referrals is not inherently suspect and, indeed, is a traditional way to procure patients or clients. The subpoena served on Dr. Rittenberg is, therefore, utterly irrelevant to proper inquiry. The motion to quash defendant's subpoena to Joshua Rittenberg, D.C. seeking to depose him "about business or financial relationships with plaintiff's other medical providers or other persons" is granted.

Plaintiff also seeks a protective order pursuant to CPLR §3103. This statutory provision [*5]allows the Court to issue a protective order limiting, conditioning or regulating the use of any disclosure device. A protective order is appropriate to the extent that defendant may not issue a subpoena for the deposition of Zair Fishkin M.D. and Joshua Rittenberg D.C. in this action. Defendant may proceed with an Arons request with these treating doctors. The Court will supervise document discovery of Zair Fishkin, M.D. Accordingly, plaintiff's motion is granted in part, and denied in part.

Plaintiff is directed to submit an order for the Court's signature.

Dated at Rochester, New York

this 28th day of March 2018.

Honorable Evelyn Frazee

Justice Supreme Court Footnotes

Footnote 1:At oral argument counsel for defendant asserted that the "other persons" stated in the subpoena could be counsel for plaintiff.