Carlson v. Tappan Zee Constructors, LLC
| Decision Date | 04 March 2022 |
| Docket Number | Index No. 58719/2019 |
| Citation | 75 Misc.3d 259,167 N.Y.S.3d 300 |
| Parties | John CARLSON, Plaintiff, v. TAPPAN ZEE CONSTRUCTORS, LLC, and Welsbach Electric Corp., Defendants. Welsbach Electric Corp., Third-Party Plaintiff, v. Schupp's Line Construction, Inc., Third-Party Defendant. Tappan Zee Constructors, LLC, Second Third-Party Plaintiff, v. Schupp's Line Construction, Inc., Second Third-Party Defendant. |
| Court | New York Supreme Court |
For Plaintiff, John P. Dearie, Esq., The Dearie Law Firm, P.C., 515 Madison Avenue, 16th Floor, New York, New York 10022
For Defendant, Christopher M. Petrossian, Esq., London Fischer LLP, 59 Maiden Lane, New York, New York 10038
Damaris E. Torrent, J. Motion by defendant/third-party plaintiff Welsbach Electric Corp. (hereinafter "Welsbach Electric") for an order pursuant to CPLR 3124, 3126 and 2308, compelling plaintiff to provide complete responses to outstanding discovery within twenty days, or precluding plaintiff from testifying or offering any evidence at trial on each issue for which outstanding discovery remains; compelling nonparty IME Watchdog, Inc. (hereinafter IME Watchdog) to provide responses to the so ordered subpoena dated September 28, 2021;1 precluding IME Watchdog, Inc. from testifying at trial or offering any affidavit or documentation it prepared in connection with this matter; and for such other and further relief as this Court deems just and proper.
Plaintiff seeks to recover damages for injuries allegedly sustained on July 30, 2018 at a worksite located at the Tappan Zee Bridge. Plaintiff, an employee of third-party defendant/second third-party defendant Schupp's Line Construction, Inc., was allegedly injured while using an unsecured articulating man-lift when the safety device failed to prevent his injury. Plaintiff alleges that Tappan Zee Constructors, LLC retained Welsbach Electric to perform labor and services at the worksite. Plaintiff asserts claims pursuant to Labor Law 200, 240(1), and 241(6) (Petrossian Affirmation, Exhibit A).
Plaintiff was produced for physical examinations by Dr. Bazos, Dr. Elkin, Dr. Getreu, and Dr. Ramnauth. The examinations were observed by IME Watchdog. Welsbach Electric served plaintiff with a notice for discovery dated August 5, 2021, demanding any and all documents and/or communications received from IME Watchdog, including but not limited to all documents, notes, records, communications, statements, photographs, videos and/or other recordings in any format concerning the physical examinations of plaintiff performed by Dr. Bazos, Dr. Elkin, Dr. Getreu, and Dr. Ramnauth (Petrossian Affirmation, Exhibit C). Plaintiff served an August 9, 2021 response objecting to the demand, on the grounds that the material is protected by the attorney work product privilege under CPLR 3101(d)(2), and Welsbach Electric failed to show it has a substantial need for the discovery and it is unable to obtain the substantial equivalent by other means without undue hardship (Petrossian Affirmation, Exhibit D).
On August 26, 2021, Welsbach Electric served IME Watchdog with an attorney subpoena seeking its file regarding John Carlson, including but not limited to all documents, communications, notes, records, statements, reports, photographs, videos and other recordings in any format concerning the physical examinations of Mr. Carlson performed by Dr. Bazos, Dr. Elkin, and Dr. Ramnauth (Petrossian Affirmation, Exhibit E). On October 6, 2021, Welsbach Electric served IME Watchdog with a so ordered subpoena seeking the same discovery. The subpoena indicates that this information is necessary for the defense of this action (Petrossian Affirmation, Exhibits F).
It is undisputed that plaintiff attended physical examinations noticed by defendants, and plaintiff's counsel hired IME Watchdog to attend the examinations. Welsbach Electric argues that neither plaintiff nor IME Watchdog have provided the discovery demanded. Welsbach Electric contends that in the event plaintiff and IME Watchdog fail to provide such discovery, plaintiff should be precluded from introducing any evidence or testimony at trial regarding the observations or conclusions of IME Watchdog. Welsbach Electric argues the discovery sought impacts its defense. IME Watchdog may have provided plaintiff's counsel with a third-party account of the examinations, which could be used to impeach the credibility of the examining physicians or to argue there were deficiencies in the examinations.
In opposition, plaintiff argues IME Watchdog was hired to serve as the "eyes and ears" for plaintiff's counsel, observing what occurred during the physical examination and reporting that information back to plaintiff's counsel in preparation for trial. The IME observers reportedly did not have formal medical training and they do not qualify as experts. Plaintiff argues that such observers are typically hired to assist plaintiffs in filling out forms at the examining doctor's office and their presence deters examining physicians from inquiring about matters beyond the scope of the action. Plaintiff argues that any such observer is an agent of plaintiff's counsel. Plaintiff's discovery response asserts the attorney work product privilege (Petrossian Affirmation, Exhibit D). In plaintiff's opposition papers, plaintiff contends that the observers’ notes and other materials constitute materials prepared for litigation which are subject to a qualified privilege under CPLR 3101(d)(2). Plaintiff contends that Welsbach Electric cannot show it has a substantial need for the discovery, or that it cannot obtain the substantial equivalent without undue hardship. Plaintiff argues that Welsbach Electric's examining physicians can provide it with information regarding the physical examinations and have provided it with comprehensive reports regarding the examinations (Dearie Affirmation, p. 5, 7).
As an initial matter, on November 18, 2021, this motion was served eight days late on IME Watchdog by personal service to an agent authorized to receive service pursuant to CPLR 311(a)(1) (NYSCEF doc No. 57, Affidavit of Service). As the motion was returnable on December 6, 2021 and the manner of service was proper, IME Watchdog was on notice of the motion and failed to submit opposition papers. Welsbach Electric provided nonparty IME Watchdog with notice of the circumstances or reasons the discovery is sought by serving the nonparty with its motion papers (see CPLR § 3101[a][4] ; Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp. , 151 A.D.3d 667, 53 N.Y.S.3d 554 [2d Dept. 2017] ).
CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" is ( Allen v. Crowell-Collier Publishing Co. , 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ; Foster v. Herbert Slepoy Corp. , 74 A.D.3d 1139, 902 N.Y.S.2d 426 [2d Dept. 2010] ). Although the discovery provisions of the CPLR are to be liberally construed, "a party does not have the right to uncontrolled and unfettered disclosure" ( Merkos L'Inyonei Chinuch, Inc. v. Sharf , 59 A.D.3d 408, 873 N.Y.S.2d 145 [2d Dept. 2009] ; Gilman & Ciocia, Inc. v. Walsh , 45 A.D.3d 531, 845 N.Y.S.2d 124 [2d Dept. 2007] ).
The party seeking disclosure has the burden to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims ( Foster v. Herbert Slepoy Corp. , 74 A.D.3d 1139, 902 N.Y.S.2d 426 [2d Dept. 2010] ). This burden exists regardless of whether discovery is sought from another party pursuant to CPLR 3101(a)(1), or a nonparty pursuant to CPLR 3101(a)(4) ( Forman v. Henkin , 30 N.Y.3d 656, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; Matter of Kapon v. Koch , 23 N.Y.3d 32, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ). "The statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" ( Forman v. Henkin , 30 N.Y.3d 656, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] (internal citations and quotations omitted). "If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered [matter] material in the action" ( Matter of Metro-North Train Acc. of February 3, 2015 , 178 A.D.3d 931, 116 N.Y.S.3d 55 [2d Dept. 2015] ; Vargas v. Lee , 170 A.D.3d 1073, 96 N.Y.S.3d 587 [2d Dept. 2019] ).
When a plaintiff puts his or her physical condition in controversy, any party may serve a notice on the plaintiff requiring him or her to submit to a physical examination by a designated physician ( CPLR § 3121[a] ). It is not disputed that a plaintiff is entitled to have his or her attorney, a nonlegal representative, or a third-party observer, such as IME Watchdog, present during a physical examination as long as that individual does not interfere with the conduct of the examination ( Gonzalez v. Red Hook Container Term., LLC , 186 A.D.3d 1331, 128 N.Y.S.3d 897 [2d Dept. 2020] ). Any notes and materials prepared by the third-party observer related to the conduct or findings of a physical examination would clearly be relevant to the prosecution or defense of the action under CPLR 3101(a)(4).
The question regarding whether the third-party observer's notes and materials are discoverable turns on whether the discovery is protected by privilege. CPLR 3101 carves out three categories of privilege, two of which are asserted by plaintiff with regard to the discovery sought herein. In p...
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