Opinion
524909
05-10-2018
Christopher LASHER et al., as Legal Guardians of Jennifer Lasher Tinsmon, Appellants, v. ALBANY MEMORIAL HOSPITAL et al., Respondents.
Featherstonhaugh, Wiley & Clyne, LLP, Albany (James Featherstonhaugh of counsel), for appellants. Maguire Cardona, PC, Albany (Richard R. Maguire of counsel), for Albany Memorial Hospital and another, respondents. Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for Linda S. Olsen and another, respondents.
Featherstonhaugh, Wiley & Clyne, LLP, Albany (James Featherstonhaugh of counsel), for appellants.
Maguire Cardona, PC, Albany (Richard R. Maguire of counsel), for Albany Memorial Hospital and another, respondents.
Phelan, Phelan & Danek, LLP, Albany (Timothy S. Brennan of counsel), for Linda S. Olsen and another, respondents.
Before: Devine, J.P., Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeals from two judgments of the Supreme Court (Connolly, J.), entered January 17, 2017 and February 1, 2017 in Albany County, upon a verdict rendered in favor of defendants.
On February 17, 2011, Jennifer Lasher Tinsmon spent the evening with her boyfriend, Daniel Despart, with the two ultimately returning to Despart's home around midnight. At some point thereafter, Tinsmon allegedly exited the residence to retrieve items from her car. According to Despart, Tinsmon did not return for several minutes and, when he went outside to investigate, he discovered Tinsmon lying unconscious on the ground. Despart carried Tinsmon inside and then proceeded to call his parents to help transport her to the nearest hospital. Tinsmon arrived at defendant Albany Memorial Hospital, a subsidiary of defendant Northeast Health, Inc. (hereinafter collectively referred to as AMH), shortly before 3:00 a.m. on February 18, 2011, still unconscious. There, Tinsmon was treated by defendant Linda Olsen, an emergency room physician and an employee of defendant Emergency Medicine Physicians of Albany County, PLLC (hereinafter collectively referred to as the Olsen defendants). A CT scan of Tinsmon's brain showed severe brain injuries, and she was transported to Albany Medical Center Hospital (hereinafter AMCH) for further treatment at 5:19 a.m. Tinsmon ultimately suffered permanent brain damage and now requires around-the-clock care.
Plaintiffs, Tinsmon's parents, commenced this medical malpractice action in May 2013 alleging, among other things, that Olsen failed to timely consult a neurosurgeon about Tinsmon's injuries and failed to timely arrange for her transfer to AMCH. Following joinder of issue and extensive discovery, the matter proceeded to a jury trial, where the main factual issues surrounded the timing of the sequence of events that occurred after Tinsmon was admitted to AMH. Approximately one week into the trial, plaintiffs attempted to call a geographical information systems (hereinafter GIS) expert to present testimony regarding "the location and function of cell phone towers, their receipt of data from individual cell phones, and the operation of that system," for the purpose of explaining the cell phone records of Marie Stark, a respiratory therapist called to help transport Tinsmon to AMCH. Defendants immediately objected and moved to preclude plaintiffs from offering such expert testimony, citing plaintiffs' failure to provide the required expert disclosure (see CPLR 3101[d][1][i] ) and asserting undue prejudice as a result of the significant delay in doing so. Supreme Court granted the motion. Following its presentation of evidence, AMH moved pursuant to CPLR 4401 to dismiss any claims of direct negligence against it. Supreme Court granted the application, and AMH remained in the trial on the basis of its potential vicarious liability for Olsen's alleged negligence (see Mduba v. Benedictine Hosp., 52 A.D.2d 450, 452–454, 384 N.Y.S.2d 527 [1976] ). The jury ultimately returned a verdict in favor of defendants, finding that Olsen did not negligently fail to timely consult a neurosurgeon once she learned of Tinsmon's CT scan results and, further, that Olsen did not depart from accepted standards of medical care in failing to transfer Tinsmon to AMCH without waiting for Stark to arrive. Judgments were thereafter entered in favor of each set of defendants. Plaintiffs now appeal, challenging certain rulings made by Supreme Court during the course of the trial.
Plaintiffs commenced a separate action against Despart and his parents. Such action was settled shortly before the commencement of trial in the instant action.
Claiming that AMH and the Olsen defendants were united in interest in this lawsuit, plaintiffs assert that it was error for Supreme Court to permit the full participation of both sets of attorneys throughout the trial. CPLR 4011 vests the trial court with the authority to "regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum." "Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his [or her] own choosing.... This right is not restricted to criminal actions; it is equally applicable to civil actions" ( Schulman v. Consolidated Edison Co. of N.Y., 85 A.D.2d 186, 188, 447 N.Y.S.2d 722 [1982] [internal quotation marks and citations omitted]; see Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1 [1984] ). While "a party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged," it is not without limit ( Scopin v. Goolsby, 88 A.D.3d 782, 784, 930 N.Y.S.2d 639 [2011] [internal quotation marks, brackets and citations omitted]; see Greene v. Greene, 47 N.Y.2d 447, 453, 418 N.Y.S.2d 379, 391 N.E.2d 1355 [1979] ; Schulman v. Consolidated Edison Co. of N.Y., 85 A.D.2d at 188, 447 N.Y.S.2d 722 ). Nevertheless, "any restriction imposed on that right will be carefully scrutinized," and such right "will not yield unless confronted with some overriding competing public interest" ( Matter of Abrams [John Anonymous], 62 N.Y.2d at 196, 476 N.Y.S.2d 494, 465 N.E.2d 1 ; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ; Rosenzweig v. Blinshteyn, 149 A.D.2d 280, 283, 544 N.Y.S.2d 865 [1989] ).
Prior to trial, plaintiffs sought to limit AMH and the Olsen defendants to representation by one attorney or, alternatively, to moderate the participation of AMH's counsel, claiming that the two sets of defendants had "identical defenses." While it is true that the primary allegations of negligence were directed at Olsen and that liability on the part of AMH for Olsen's negligence, if any, would be purely vicarious, plaintiffs' theory of liability against AMH was not so limited. To the contrary, plaintiffs' bill of particulars sets forth various claims of direct negligence on the part of AMH, including allegations that AMH deviated from acceptable standards of care or was otherwise negligent by "failing to have adequate and/or appropriate policies and/or procedures for the transfer to AMCH of traumatic head injury patients"; "failing to have adequate and/or appropriate policies and/or procedures for neurosurgical consultation"; and "failing to have adequate and/or appropriate policies and/or procedures for availability of a respiratory therapist for the transfer of patients to AMCH." Given the separate and distinct liabilities of AMH and the Olsen defendants at this juncture of the litigation, there was simply no basis upon which to limit the participation of AMH's attorney (see Chemprene, Inc. v. X–Tyal Intl. Corp., 55 N.Y.2d 900, 901, 449 N.Y.S.2d 23, 433 N.E.2d 1271 [1982] ; Phillips v. Chevrolet Tonawanda Div. of General Motors Corp., 43 A.D.2d 891, 892, 352 N.Y.S.2d 73 [1974] ; Lyman v. Fidelity & Cas. Co., 65 App.Div. 27, 28, 72 N.Y.S. 498 [1901] ).
Following the dismissal of all claims of direct negligence asserted against AMH, plaintiffs renewed their motion to have the role of AMH's counsel limited. While the dismissal of the direct negligence claims rendered AMH's potential liability purely vicarious in nature, we are unable to conclude that Supreme Court's refusal to limit the role of AMH's counsel during the remainder of the trial to essentially that of a spectator was in error. Because AMH's liability would be determined by the jury's findings in relation to plaintiffs' claims of negligence against Olsen, AMH was entitled to participate in the efforts to defeat those claims (cf. Phillips v. Chevrolet Tonawanda Div. of General Motors Corp., 43 A.D.2d at 892, 352 N.Y.S.2d 73 ). Supreme Court promised to exert control over the cross-examination of the remaining witnesses by AMH's counsel, indicating its intent to prevent any attempt by AMH to "reiterate or to plow ground that has already been plowed by one side or the other," and the record reflects that counsel's cross-examination of these witnesses, if any, was limited and dealt primarily with different material than that explored on direct examination. The balanced approach taken by the court served to ensure defendants' valued right to representation by counsel of their choosing while also protecting plaintiffs against the possibility of unduly cumulative and duplicative proof (see Newark v. Pimentel, 117 A.D.3d 581, 581, 986 N.Y.S.2d 89 [2014] ). Under these circumstances, we find no "clear abuse of discretion" in the course of action taken by Supreme Court nor any prejudice to plaintiffs as a result thereof ( Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 [1980] ; see CPLR 4011 ; cf. Salm v. Moses, 13 N.Y.3d 816, 817, 890 N.Y.S.2d 385, 918 N.E.2d 897 [2009] ; Matter of Aniya L. [Samantha L.], 124 A.D.3d 1001, 1002, 1 N.Y.S.3d 527 [2015], lv denied 25 N.Y.3d 904, 2015 WL 2032963 [2015] ; Newark v. Pimentel, 117 A.D.3d at 581, 986 N.Y.S.2d 89 ; compare Mars Assoc. v. New York City Educ. Constr. Fund, 126 A.D.2d 178, 193, 513 N.Y.S.2d 125 [1987], lv dismissed 70 N.Y.2d 747, 519 N.Y.S.2d 1033, 514 N.E.2d 391 [1987] ).
Nor are we persuaded that a new trial is warranted because Supreme Court permitted evidence, in the form of a patient log and treatment records, showing that a cardiac arrest patient was being treated by Olsen on the same night as Tinsmon. With regard to the patient log, it was plaintiffs' own attorney who opened the door to testimony concerning that subject. During his cross-examination of an expert witness called by the Olsen defendants, counsel asked, "This was not a busy night in the emergency department, was it, Doctor? There's no evidence in this record that Dr. Olsen was diverted from treating [Tinsmon] for one second due to another patient, is there?" In response, the expert answered, "I reviewed some of the emergency department log and there was a cardiac arrest during the time period [Olsen] was working." Plaintiffs' counsel immediately objected to the expert's response on the basis that defendants had failed to disclose the patient log in response to their discovery requests but, after a brief recess to allow counsel to review the patient log and the various discovery demands, counsel withdrew such objection. By so doing, plaintiffs waived any challenge to the expert's testimony concerning the cardiac arrest patient (see Dean v. Security Mut. Ins. Co., 21 A.D.3d 658, 660, 799 N.Y.S.2d 670 [2005] ; Matter of James E., 17 A.D.3d 871, 873, 793 N.Y.S.2d 265 [2005] ; Calix v. New York City Tr. Auth., 14 A.D.3d 583, 585, 789 N.Y.S.2d 219 [2005] ; see also Matter of Reed v. Annucci, 155 A.D.3d 1193, 1194, 63 N.Y.S.3d 259 [2017] ; People v. Brooks, 26 A.D.3d 596, 597, 811 N.Y.S.2d 131 [2006] ). Counsel for plaintiffs then continued to question the expert about the patient log and, thereafter, offered that document into evidence. Accordingly, plaintiffs cannot now object to the admission of the patient log into evidence (see CPLR 5501[a][3] ; cf. People v. Green, 92 A.D.3d 953, 954, 939 N.Y.S.2d 520 [2012], lv denied 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435 [2012] ; Elnakib v. County of Suffolk, 90 A.D.3d 596, 597, 934 N.Y.S.2d 223 [2011] ).
Later in the trial, the Olsen defendants subpoenaed the cardiac arrest patient's treatment records from Albany Memorial Hospital. Plaintiffs acknowledged that the document did not fit into any of their disclosure demands, thereby waiving any current contention that the treatment records should have been disclosed in response thereto (cf. Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, 946, 675 N.Y.S.2d 734 [1998], lv denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443 [1998] ; see generally People v. Ahmed, 66 N.Y.2d 307, 311, 496 N.Y.S.2d 984, 487 N.E.2d 894 [1985] ). Contrary to plaintiffs' further contention, Supreme Court did not err in admitting such treatment records into evidence. "Evidence is relevant if it tends to prove the existence or nonexistence of a material fact, i.e., a fact directly at issue in the case" ( Johnson v. Ingalls, 95 A.D.3d 1398, 1399, 944 N.Y.S.2d 654 [2012] [internal quotation marks, brackets and citation omitted] ). Here, plaintiffs' cross-examination of the Olsen defendants' expert raised the possibility that, given the time stamps on the patient log, the cardiac arrest patient was not treated contemporaneously with Tinsmon. In response, the Olsen defendants sought admission of the cardiac arrest patient's treatment records in order to show that Olsen's treatment of this patient was contemporaneous with her treatment of Tinsmon. The treatment records were thus relevant to a fact at issue in the case (see People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 [2001] ; Johnson v. Ingalls, 95 A.D.3d at 1399, 944 N.Y.S.2d 654 ), and cannot be said to have unfairly surprised plaintiffs inasmuch it was introduced in response to their cross-examination of the expert (compare People v. Shaulov, 25 N.Y.3d 30, 35, 6 N.Y.S.3d 218, 29 N.E.3d 227 [2015] ). In any event, upon our review of the record, we are satisfied that any error in the admission of the patient log and treatment records of the cardiac patient "would not have substantially influenced the outcome of the trial" ( Anderson v. Dainack, 39 A.D.3d 1065, 1067, 834 N.Y.S.2d 564 [2007] ; see CPLR 2002 ; Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705 [2014], lv denied 24 N.Y.3d 905, 2014 WL 4637016 [2014] ; Brown v. County of Albany, 271 A.D.2d 819, 820, 706 N.Y.S.2d 261 [2000], lv denied 95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653 [2000] ; Khan v. Galvin, 206 A.D.2d 776, 777, 615 N.Y.S.2d 111 [1994] ).
Finally, Supreme Court did not abuse its discretion in denying plaintiffs' mid-trial application to present the testimony of a GIS expert. CPLR 3101(d)(1)(i) requires a party to disclose his or her expert witness and certain expert information prior to trial when served with a proper demand. The statute further provides that, "where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph" ( CPLR 3101[d][1][i] ). The expert disclosure requirements of CPLR 3101(d) are "intended to provide timely disclosure of expert witness information between parties for the purpose of adequate and thorough trial preparation" ( McColgan v. Brewer, 84 A.D.3d 1573, 1576, 923 N.Y.S.2d 276 [2011] [internal quotation marks and citation omitted]; see Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d 788, 788, 736 N.Y.S.2d 758 [2002] ; Bauernfeind v. Albany Med. Ctr. Hosp., 195 A.D.2d 819, 820, 600 N.Y.S.2d 516 [1993], lv dismissed and denied 82 N.Y.2d 885, 610 N.Y.S.2d 140, 632 N.E.2d 450 [1993] ), and a trial court is vested with considerable discretion to preclude expert testimony "where the non-complying party fails to show good cause for its delay and/or that disclosure was not intentionally withheld" ( Douglass v. St. Joseph's Hosp., 246 A.D.2d 695, 696, 667 N.Y.S.2d 477 [1998] ; see Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d at 788, 736 N.Y.S.2d 758 ; Tleige v. Troy Pediatrics, 237 A.D.2d 772, 774, 654 N.Y.S.2d 486 [1997] ). "Only a clear abuse of that discretion will justify our intervention" ( McMahon v. Aviette Agency, 301 A.D.2d 820, 821, 753 N.Y.S.2d 605 [2003] [citations omitted]; see DG & A Mgt. Servs., LLC v. Securities Indus. Assn. Compliance & Legal Div., 78 A.D.3d 1316, 1318, 910 N.Y.S.2d 242 [2010] ; Doherty v. Schuyler Hills, Inc., 55 A.D.3d 1174, 1175, 866 N.Y.S.2d 410 [2008] ).
Here, plaintiffs first notified defendants of their intention to call a GIS expert more than three years after defendants' respective demands for expert disclosure and during the midst of the trial. Notably, Stark's cell phone number was provided to plaintiffs during a pretrial deposition more than a year and a half earlier and, thus, plaintiffs possessed the essential facts necessary to investigate the matter—and, if necessary, to retain an expert—long before trial. Plaintiffs' claim that they did not realize the significance of the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as Supreme Court found, constitute good cause for the delay (see Lucian v. Schwartz, 55 A.D.3d 687, 688, 865 N.Y.S.2d 643 [2008], lv denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] ; Amodeo v. Town of Marlborough, 307 A.D.2d 507, 509, 763 N.Y.S.2d 132 [2003] ; Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257, 257, 604 N.Y.S.2d 248 [1993] ). Moreover, we agree with Supreme Court that, given the complex and technical issues presented by the proposed GIS testimony, the mid-trial disclosure of this expert would have prejudiced defendants (see Marwin v. Top Notch Constr. Corp., 50 A.D.3d 977, 977–978, 856 N.Y.S.2d 238 [2008] ; Fava v. City of New York, 5 A.D.3d 724, 724–725, 773 N.Y.S.2d 603 [2004] ). Under these circumstances, we cannot conclude that Supreme Court abused its discretion in precluding plaintiffs from offering the testimony of their GIS expert (see Colucci v. Stuyvesant Plaza, Inc., 157 A.D.3d 1095, 1098–1099, 69 N.Y.S.3d 410 [2018], lv denied 31 N.Y.3d 906, 79 N.Y.S.3d 95, 103 N.E.3d 1242, 2018 WL 2055723 [May 3, 2018] ; Lucian v. Schwartz, 55 A.D.3d at 688, 865 N.Y.S.2d 643 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 463, 464, 813 N.Y.S.2d 734 [2006] ; Fava v. City of New York, 5 A.D.3d at 724–725, 773 N.Y.S.2d 603 ; Amodeo v. Town of Marlborough, 307 A.D.2d at 509, 763 N.Y.S.2d 132 ; Karney v. Arnot–Ogden Mem. Hosp., 251 A.D.2d 780, 784, 674 N.Y.S.2d 449 [1998], lv dismissed 92 N.Y.2d 942, 681 N.Y.S.2d 470, 704 N.E.2d 223 [1998] ; Quinn v. Artcraft Constr., 203 A.D.2d 444, 445, 610 N.Y.S.2d 598 [1994] ; Vigilant Ins. Co. v. Barnes, 199 A.D.2d at 257, 604 N.Y.S.2d 248 ).
Plaintiffs' remaining contentions, to the extent not specifically addressed herein, have been reviewed and found to be without merit.
ORDERED that the judgments are affirmed, with one bill of costs.
Devine, J.P., Aarons and Pritzker, JJ., concur.