Opinion
Index No. 008958/2018 Motions Nos. 4 5 6 7
02-23-2023
KRISTEN M. ZIMMER, Plaintiff. v. ROBIN J. THOMAS, CORA A. ALSANTE, as Deputy Public Administrator of the ESTATE OF HOWARD L. DAVIS a/k/a HOWARD DAVIS, SR., and HVH CONSTRUCTION CORP., Defendants.
Unpublished Opinion
Presiding: Hon. Danielle M. Fogel, Justice.
DECISION AND ORDER
Honorable Danielle M. Fogel, Justice of the Supreme Court.
This action arises out of injuries plaintiff sustained in two separate car accidents that occurred one week apart: September 21. 2016 and September 28. 2016. The matter is trial-ready, and a trial is scheduled to commence on February 27, 2023. Presently before the court are four separate motions related to the evidence to be presented at trial: (1) Defendants' Cora A. Alsante, as Deputy Public Administrator of the Estate of Howard L. Davis a/k/a Howard Davis, Sr., and HVH Construction ("Davis Defendants") Motion for a protective order (Motion #4) precluding production of certain materials pursuant to trial subpoena; (2) Plaintiffs Motion in Limine (Motion #5) to preclude Davis Defendants" experts from testifying outside of the four corners of their expert reports and defendants' expert disclosure; (3) Davis Defendants' Motion in Limine (Motion #6) to preclude the introduction of certain testimony from plaintiffs treating physicians, to preclude testimony or documents regarding plaintiffs disability determination, to preclude testimony or commentary regarding the previously decided motion for summary judgment, to preclude testimony regarding any conversations with the deceased defendant, and to preclude all testimony from plaintiffs vocational expert, Karen Simone: and (4) Plaintiffs Motion in Limine (Motion #7) precluding testimony or evidence regarding plaintiffs purported unrelated medical conditions. Each motion will be addressed separately herein.
Motion #4
The Davis Defendants move for a protective order pursuant to CPLR §3103 precluding disclosure of certain subpoenaed records from Dr. Mikesell (who performed a defense IME and served a report dated May 11, 2022). The subject January 11, 2023 subpoena served upon Dr. Mikesell seeks production of a number of items, and Davis Defendants object to items numbered 2 and 4. Item 2 is a request for complete and comprehensive copies of any and all books, booklets, pamphlets, forms, packets, cards, and other materials constituting or containing the examination protocols, criteria, rules, and/or steps for the forensic psychological examination completed by Dr. Mikesell on plaintiff as set forth in his report. Item 4 is a request for complete and comprehensive copies of any and all scoring rubrics, protocols, and the like utilized by Dr. Mikesell in his examination of plaintiff or the preparation of the report. The basis for the relief sought is that these items are privileged as material prepared in anticipation of litigation and constitute proprietary (trade secret), copyrighted, and trademarked materials. No objection has been made to paragraphs 1. 3, and 5 of the subject subpoena, which include demands for Dr. Vlikesell's raw testing data.
In opposition to Motion #4, plaintiff withdraws her demand for references (books and articles) to the extent they are listed in Dr. Mikesell's report. Plaintiff argues she is entitled to the testing protocols and raw data resulting from Dr. Mikesell's exam for the purposes of trial preparation and cross-examination,
1. Raw Test Data
While no objection has been made to the production of this material pursuant to plaintiffs subpoena, moving defendants argue against its production in their motion papers. Thus, the court will consider this argument, and finds that such raw testing data is discoverable, and plaintiffs counsel is entitled to review these materials in preparation for trial and for use during cross examination. (See Jessica H. ex rel. Arp v Spagnolo. 41 A.D.3d 1261 [4th Dept 2007]; Drago v. Tishman Const. Corp. of New York. 4 Misc.3d 354 [Sup Ct 2004]). Further, at the time of oral argument, defendants had no objection to the production of the subject raw data. Accordingly. Dr. Mikesell is directed to respond to plaintiffs January 11, 2023 subpoena, Item #3, on or before close of business Friday, February 24, 2023.
2. Test Manuals, Test Forms, and Scoring Protocols
In support of Davis Defendants' motion, no affidavit from Dr. Mikesell is submitted, nor are the position statements and ethical rules purportedly governing the release of the demanded testing protocols, forms, and manuals submitted to the court. Nonetheless, the court finds that. similar to the raw data discussed above, the subject testing manuals, forms, and protocols are discoverable. The issues raised by moving defendants regarding the proprietary nature of the testing materials themselves can be addressed by the execution of an appropriately tailored confidentiality stipulation, to which plaintiff has agreed. Such stipulation, which the court will so-order, shall provide inter alia that the testing protocols, forms, and manuals shall only be utilized for the purposes of this litigation, shall only be reviewed by counsel and/or any designated agent. shall not be released to any third party outside of plaintiff s counsel's office, shall not be copied or filed with the court, and shall be returned to counsel or destroyed at the conclusion of this litigation.
Accordingly, the Davis Defendants* Motion #4 is hereby DENIED. Counsel for plaintiff is directed to provide a settled stipulated confidentiality order in the form discussed above for execution by the court by 4:00 pm on Friday. February 24, 2023. Pending the execution of said stipulation, Dr. Mikesell is directed to provide a response to plaintiffs January 11, 2023 subpoena Item 4 on or before Tuesday, February 28, 2023 at 10 am. Because there were no objections to the remainder of the subject subpoena. Dr. Mikesell is ordered to provide a response to the remaining items (which have not been withdrawn) on or before close of business on Friday, February 24, 2023.
Motion #5
Plaintiff moves in limine to preclude trial testimony from defense experts Dr. Mikesell, Dr. Molinari. and Dr. Cohen which is outside the four corners of their respective reports. Specifically. with regard to each expert, plaintiff argues that absent from defendants* disclosure is any mention of plaintiffs employability or the necessity of her past and future medical treatment, and such failure to disclose warrants a complete preclusion of testimony on these issues. In opposition, defendants argue that inherent in each expert's opinion that plaintiff did not sustain a lasting injury is the conclusion that plaintiffs treatment was not necessary or required. Further, defendants refer to their disclosures which include a general statement that each is expected to respond to the plaintiffs trial testimony as well as the testimony of plaintiff s expert witnesses. Thus, it is the defendants' position that their experts should be permitted to testify to the reasonableness or necessity of plaintiffs post-accident medical treatment as well plaintiffs ability to work post-accident.
Upon the court's review of the subject expert disclosures, each sets forth that defense experts are expected to testify concerning: "the injuries, causation, pre-existing conditions, and/or treatment of Kristen M. Zimmer, prior to and/or following the incidents that are the subject of this action.'" (Dkt. No. 144, 145, and 146 {emphasis added)). This disclosure is sufficient to allow testimony concerning plaintiffs medical treatment prior to and following the subject accidents, including the reasonableness and necessity of future treatment. Whether defense experts may testify to the plaintiffs ability to work is a closer question.
Upon this court's review, none of the defendants' expert disclosures or reports contain any specific reference to plaintiffs employability or ability to work. Arguably, whether the plaintiff has any limitations or injuries that would prevent plaintiff from working may logically flow from, and is not inconsistent with, the defense experts' opinions and reports. (See Ruzvcki v Baker, 9 A.D.3d 854 [4th Dept 2004]; Neumire v Kraft Foods. Inc.. 291 A.D.2d 784 [4th Dept 2002]). The court notes, however, that defendants' expert disclosure should have been more detailed on this issue. The court acknowledges that 'CPLR 3101(d)(1)(i) was intended to provide timely disclosure of expert witness information between parties for the purpose of adequate and thorough trial preparation . . ." (Silverberg v Community Gen. Hosp. of Sullivan County, 290 A.D.2d 788. 788 [3d Dept 2002]), however, "[preclusion for failure to comply with CPLR 3101(d) is improper where there is no evidence of intentional or willful failure to disclose and no prejudice to the party-seeking disclosure." (Ruzycki v Baker, 9 A.D.3d 854, 855 [4th Dept 2004]; see also Sisemore v Leffler. 125 A.D.3d 1374 [4th Dept 2015]). While generally an expert's testimony is limited to the scope of the party's expert disclosure, the court is not persuaded that plaintiff would be prejudiced from general testimony regarding her ability to work in light of her claims in this action or that defendants' failure to delineate this expected testimony was intentional or willful such that an outright preclusion of this potential testimony is warranted at this time. At this time, any ruling on preclusion would be premature until such time as expert testimony is actually offered at trial. Accordingly, plaintiffs Motion #5 is DENIED without prejudice for plaintiff to assert any objections to proffered expert testimony at the time of trial.
Motion #6
The Davis Defendants move in limine to (1) preclude testimony of plaintiff s unidentified treating physicians beyond the four corners of their medical reports previously exchanged, as well as any testimony relating to the issues of causation, serious injury threshold, or alleged future medical treatment: (2) preclude evidence or testimony concerning plaintiffs social security disability findings; (3) prelude plaintiff from engaging in commentary regarding this court's prior ruling on defendants" motion of summary judgment; (4) preclude introduction of testimony or documentary evidence of post-accident communications with deceased defendant Howard Davis: and (5) preclude Dr. Simone"s testimony in its entirety. Each request for relief will be addressed individually herein.
(1) It is well established in this department that the disclosure requirements of CPLR 3101(d)(1)(i) do not apply to treating physicians and "a failure to serve a CPLR 3101(d) notice regarding that doctor does not warrant preclusion of that expert's testimony on causation, since the defendant has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice." (Harris v Campbell. 155 A.D.3d 1622. 1622 [4th Dept 20171; see also Casey v Tan. 255 A.D.2d 900 [4th Dept 1998]; Andrew v Hurh. 34 A.D.3d 1331 [4th Dept 2006]; Stark v Semeran. 244 A.D.2d 894 [4th Dept 1997]). This is true even where the treating physician expressed no opinion as to causation in the previously exchanged records or reports. (See Hamer v City of New York. 106 A.D.3d 504, 509 [1st Dept 2013]). Accordingly, this portion of the moving defendants' motion in limine is DENIED.
(2) This portion of defendants' motion DENIED as moot in thai plaintiff has submitted she has no intention of offering such evidence. This is without prejudice for defendants to make any objections at the time of trial.
(3) This portion of defendants' motion DENIED as moot in that plaintiff has submitted she has no intention of offering such evidence. This is without prejudice for defendants to make any objections at the time of trial.
(4) This portion of defendants' motion DENIED as moot in that plaintiff has submitted she has no intention of offering such evidence. This is without prejudice for defendants to make any objections at the time of trial.
(5) At the time of oral argument, Davis Defendants withdrew their motion to preclude the testimony of plaintiffs vocational rehabilitation expert on the grounds that her disclosed report is speculative and lacks foundation. Accordingly, this portion of defendants' motion is DENIED as withdrawn without prejudice for defendant to raise specific objections at the time of trial, Motion #7
Finally, plaintiff moves in limine to prohibit defendants from offering into evidence any testimony or medical records concerning any of plaintiff s allegedly unrelated medical conditions. injuries, illnesses, or ailments not claimed in plaintiffs Supplemental Verified Bill of Particulars. Specifically, plaintiff seeks to preclude the introduction of any evidence of the following medical conditions: lupus, systemic lupus erythematosus, immune deficiency disorder, asthma, respiratory failure, encephalopathy, Barrett's esophagus, scleroderma, GERD, esophageal dysmotility disorder, dysphagia, aspiration, hearing loss, gastric bypass, hidradenitis. kidney stones, chronic UTI, right rotator cuff injury, Lyme disease, fibromyalgia, osteopenia, abdominal pain. hypertension, obesity, Sjogren's disease, thiamine deficiency and rheumatoid arthritis.
Plaintiffs supplemental verified bill of particulars limited her claims for injuries and removed plaintiffs claims of exacerbation of pre-existing injuries. Nonetheless, plaintiffs supplemental bill of particulars remains broad, and alleges that all of the injuries are associated with further soft tissue injury to the areas affected and damage to surrounding muscles and structures. Plaintiff leaves open the argument for claims of aggravation of preexisting injuries and alleges that "said injuries have directly adversely affected Plaintiffs nerves, tissues, blood vessels, muscles, ligaments, cartilages, tendons, bones, and soft parts in and about the sites of the above-mentioned areas of the injury, including the central nervous system, muscular system and skeletal system." (Dkt. No. 152). Plaintiff also alleges that her claimed injuries "have and will continue in the future to affect every facet of the Plaintiffs pre-accident way of life with resultant damages." (Id.)
Generally, the court finds that because plaintiffs allegations of injury are so broad, evidence of her pre-existing conditions that may have caused or contributed to her current condition are relevant. The scope of what is relevant is not limitless, however. Whether such pre-existing conditions and injuries are admissible is premature until such time as plaintiffs proof is entered. At the time of oral argument, plaintiff requested time to work out a stipulation on the instant motion. Accordingly, plaintiffs Motion #7 is DENIED without prejudice to renew any objections at the time of trial.
PAPERS CONSIDERED
1. Notice of Motion filed 1/27/2023 (Motion #4) (Dkt. No. 133)
2. Attorney Affirmation of Lauren M. Miller, Esq. dated January 27, 2023 with attached exhibits A-C in support of Motion #4 (Dkt. Nos. 134-137)
3. Notice of Motion filed 2/10/2023 (Motion #5) (Dkt. No. 142)
4. Attorney Affirmation of Michael P. Kenney, Esq. dated February 10, 2023 with attached exhibits A-E in support of Motion #5 (Dkt. Nos. 143-148)
5. Notice of Motion filed 2/10/2023 (Motion #7) (Dkt. No. 149)
6. Attorney Affirmation of Michael P. Kenny, Esq. dated February 10. 2023 with attached exhibits A-B in support of Motion #7 (Dkt. Nos. 150-152)
7. Notice of Motion filed 2/10/2023 (Motion #6) (Dkt. No. 153)
8. Attorney Affirmation of Lauren M. Miller, Esq. dated February 10, 2023 with attached exhibits A-C in support of Motion #6 (Dkt. Nos. 154-157)
9. Attorney Affirmation of Lauren M. Miller, Esq. dated February 17, 2023 in opposition to Motion #5 (Dkt. No. 158)
10.Attorney Affirmation of Lauren M. Miller, Esq. dated February 17. 2023 in opposition to Motion #7 (Dkt. No. 159)
11.Attorney Affirmation of Michael P. Kenny, Esq. dated February 17, 2023 in opposition to Motion #6 (Dkt. No. 160)
12.Attorney Affirmation of Michael P. Kenny, Esq. dated February 17. 2023 in opposition to Motion #4 (Dkt. No. 161)
13. Memorandum of Law in Opposition dated February 17, 2023 with attached exhibit A (Dkt. Nos. 162-163)
14.Attorney Affirmation of Lauren M. Miller, Esq. dated February 20, 2023 in further support of Motion #6 (Dkt. No. 166)