Hill v. Albany Med. Ctr. Hosp.
| Decision Date | 11 April 2016 |
| Docket Number | INDEX NO. A00017/2010 |
| Citation | 2016 NY Slip Op 32800 (U) |
| Parties | JOSEPH HILL and MARLENE HILL, Plaintiffs, v. ALBANY MEDICAL CENTER HOSPITAL, ALBANY MEDICAL COLLEGE, ALBANY MEDICAL CENTER, YU-HUNG KUO, M.D., FARHAD BAHRASSA, M.D., TYLER KENNING, M.D., MICHAEL GRUENTHAL, M.D., GARY BERNARDINI, M.D., DZINTRA CELMINS, M.D., EARL ZIMMERMAN, M.D., JAMES THOMAS, M.D., and COMMUNITY CARE PHYSICIANS, P.C., Defendants. |
| Court | New York Supreme Court |
POWERS AND SANTOLA, LLP
Attorneys for Plaintiffs
(John K. Powers, Esq. and
Adam P. Powers, Esq., of Counsel)
39 North Pearl Street
Albany, New York 12207
MAYNARD, O'CONNOR, SMITH &
CATALINOTTO, LLP
Attorneys for Defendants
Dzintra Celmins, M.D., and Earl Zimmerman, M.D.
MALONEY & LAIRD, P.C.
Attorneys for Defendant James Thomas, M.D.
(Jonathan E. Hansen, Esq., of Counsel)
20 Corporate Woods Boulevard
Albany, New York 12211
THORN, GERSHON, TYMANN & BONANNI, LLP
Attorneys for Defendant Community Care Phyicians, P.C.
(Erin Mead, Esq., of Counsel)
5 Wembley Court, P.O. Box 15054
Albany, New York 12212-5054
In this medical malpractice action, defendants Albany Medical Center Hospital ("AMCH"), Albany Medical College ("AMC"), Albany Medical Center ("Albany Med"), Yu-Hung Kuo, M.D. ("Dr. Kuo"), Farhad Bahrassa, M.D. ("Dr. Bahrassa"), Tyler Kenning, M.D. ("Dr. Kenning"), Michael Gruenthal, M.D. ("Dr. Gruenthal"), Dzintra Celmins, M.D. ("Dr. Celmins"), Earl Zimmerman, M.D. ("Dr. Zimmerman") (collectively "AMCH defendants"), James Thomas, M.D. ("Dr. Thomas"), and Community Care Physicians, P.C. ("CCP") move, by three separate applications, for various relief based upon plaintiffs Joseph Hill ("plaintiff") and Marlene Hill's (collectively "plaintiffs") alleged failure to comply with certain discovery rules. Plaintiffs separately oppose the motions, and have cross-moved for protective orders.
Trial courts have broad discretion in supervising the discovery process, controlling disclosure, and determining compliance with discovery demands (see Hameroff & Sons, LLC v. Plank, LLC, 108 A.D.3d 908, 909 [3d Dep't 2013]; Premo v. Rosa, 93 A.D.3d 919, 920 [3d Dep't 2012]); Cochran v. Cayuga Med. Ctr. at Ithaca, 90 A.D.3d 1227, 1227 [3d Dep't 2011]; Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 66 A.D.3d 1286, 1286 [3d Dep't 2009]; Graves v. County of Albany, 278 A.D.2d 578, 578 [3d Dep't 2000]; see also Andon ex rel. Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 745 [2000]). If a party "fails to respond to or comply with any[discovery] request, notice, interrogatory, demand, question, or order," the party seeking disclosure may seek court intervention "to compel compliance or a response" (CPLR 3124). Furthermore, a court may preclude a party from "supporting or opposing designated claims or defenses, from producing evidence[,] designated things[,] or items of testimony, or . . . from using certain witnesses" if such party "willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR § 3126[2]).
Notably, "'[t]he purpose of a bill of particulars is to amplify the pleadings, limit proof and prevent surprise at trial'" (Niessel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881, 881-882 [3d Dep't 2006], quoting Twiddy v. Standard Mar. Transp. Servs., Inc., 162 A.D.2d 264, 265 [1st Dep't 1990]; accord Graves v. County of Albany, 278 A.D.2d at 578; Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d 772, 773 [3d Dep't 1999]; Hayes v. Kearney, 237 A.D.2d 769, 769 [3d Dep't 1997]). While "responses to a demand for a bill [of particulars] must clearly detail the specific acts of negligence attributed to each defendant" (Hayes v. Kearney, 237 A.D.2d at 769 [internal quotation marks and citation omitted]), "[t]hey need not . . . provide evidentiary material or information to be gleaned from expert testimony" (Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d at 773; see Graves v. County of Albany, supra at 578). Moreover, "in a medical malpractice action, as in any action for personal injuries, the bill of particulars requires only a [g]eneral statement of the acts or omissions constituting the negligence claimed" (Felock v. Albany Med. Ctr. Hosp., supra at 773 [internal quotation marks and citation omitted]; see CPLR 3043[a][3]; Da Biere v. Craig, 268 A.D.2d 875, 876 [3d Dep't 2000]; Rockefeller v. Hwang, 106 A.D.2d 817, 818 [3d Dep't 1984]).
CPLR 3101(d)(1)(i) obligates a party to:
[i]dentify each person whom the party expects to call as an expert witness at trial and . . . disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds foreach expert's opinion (see also Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 97 A.D.3d 1030, 1031-1032 [3d Dep't 2012]).
"The expert disclosure requirements 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 [3d Dep't 2011], quoting Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d 788, 788 [3d Dep't 2002]). "'[V]irtually all information regarding expert witnesses and their anticipated information is discoverable under CPLR 3101(d)(1)(i), unless the request is so detailed that disclosure would have the net effect of disclosing the experts' identities'" (Mead v. Dr. Rajadhyax' Dental Group, 34 A.D.3d 1139, 1140 [3d Dep't 2008], quoting Morris v. Clements, 228 A.D.2d 990, 991 [3d Dep't 1996] and Pizzi v. Muccia, 127 A.D.2d 338, 340 [3d Dep't 1987]). Where a party fails to comply with a request for expert disclosure, preclusion may be appropriate provided there is a showing of prejudice and evidence of a willful failure to disclose (see McColgan v. Brewer, 84 A.D.3d at 1576; Mead v. Dr. Rajadhyax' Dental Group, 34 A.D.3d at 1140; Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d at 788-789).
The AMCH defendants seek an order: (1) precluding plaintiffs' medical experts from testifying at trial unless they amend/supplement their expert disclosure to conform to the requirements of CPLR 3101(d); (2) striking certain portions of plaintiffs' amended supplemental expert disclosure; and (3) striking certain portions of plaintiffs' second supplemental amended bill of particulars, and precluding them from offering evidence on those issues at trial.
The AMCH defendants argue that plaintiffs' amended supplemental expert disclosure fails to satisfy the requirements of CPLR 3101(d)(1)(i) in that it does not adequately distinguish the deviations from the standard of care being alleged against each defendant, and does not adequatelydisclose the substance of their experts' proposed testimony on causation and injury. According to the AMCH defendants, plaintiffs' amended supplemental expert disclosure is impermissibly vague as it does not disclose when plaintiffs' experts will claim that plaintiff's empyema should have been diagnosed or by whom, and how the alleged deviations of each individual defendant caused or contributed to plaintiff's alleged injuries.
The AMCH defendants further assert that plaintiffs' amended supplemental expert disclosure is vague and conclusory on matters of liability and damages, and contains a completely new theory of liability against AMCH, AMC, and Albany Med with respect to the alleged departures of Dr. Thomas and CCP, "notwithstanding the fact that they have been provided a copy of the contract between [CCP] and [AMCH] which clearly delineates that [CCP] is an independent contractor."
In addition, the AMCH defendants submit that plaintiffs' amended supplemental expert disclosure improperly alleges that AMCH, AMC, and Albany Med violated 10 N YCRR § 405.7 and § 405.9, since they did not assert any violation of any law, statute, ordinance, rule or regulation in their verified bills of particulars, supplemental verified bills of particulars, and 2nd supplemental amended verified bills of particulars, and have provided no disclosure on how these defendants allegedly violated such regulations. Moreover, the AMCH defendants claim that the plaintiffs' disclosure of their medical experts' qualifications fails to satisfy the requirements of CPLR 3101(d)(1)(i).
The Court has reviewed plaintiffs' amended supplemental expert disclosure and finds, "under the particular circumstances of this case," that it "sufficiently disclose[s] the subject matter on which the experts intend to testify, the substance of the facts and opinions on which they are expected to testify and a summary of the grounds of their opinion" (Mary Imogene Bassett Hosp. v. Cannon Design, Inc., 97 A.D.3d at 1031-1032; cf. Brossoit v. O'Brien, 169 A.D.2d 1019, 1020-1021[3d Dep't 1991]). Plaintiffs were not obligated to set forth the specific facts and opinions upon which their experts are expected to testify, but rather only the substance of those facts and opinions (see Mary Imogene Bassett Hosp. v. Cannon Design, Inc., supra at 1032; see Barrowman v. Niagara Mohawk Power Corp., 252 A.D.3d 946, 946-947 [4th Dep't 1998]; Foley v. Am. Ind. Paper Mills Supply Co., 222 A.D.2d 401, 402 [2d Dep't 1995]; Krygier v. Airweld, Inc., 176 A.D.2d 700, 700-701 [2d Dep't 1991]). Since plaintiffs' amended supplemental expert disclosure sets forth more than "a mere statement of the ultimate conclusion reached" (...
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