Hogdahl v. LCOR 55 Bank St., LLC
| Decision Date | 23 March 2021 |
| Docket Number | Index 70223/2017 |
| Citation | 2021 NY Slip Op 32087 (U) |
| Parties | DAVID HOGDAHL, Plaintiff, v. LCOR 55 BANK STREET, LLC, WHITE PLAINS NORTH TOWER, LLC, LRC CONSTRUCTION, LLC, and BAKER CONCRETE CONSTRUCTION, INC., Defendants. BAKER CONCRETE CONSTRUCTION, INC., Third-Party Plaintiff, v. REBAR REINFORCEMENT PLACERS, Third-Party Defendant. |
| Court | New York Supreme Court |
The following papers were read on these motions by third-party defendant Rebar Reinforcement Placers ("RRP") (sequence 6) for an order compelling plaintiff to testify as to his drug and alcohol use, by defendants LCOR 55 Bank Street, LLC, LRC Construction, LLC, and WP North Tower, LLC s/h/a White Plains North Tower LLC (collectively referred to as "LCOR")(sequence 7) compelling plaintiff to provide discovery and testimony regarding his drug and alcohol use, and by defendant/third-party plaintiff Baker Concrete Construction, Inc. ("Baker") (sequence 8) compelling plaintiff to provide testimony regarding his drug and alcohol use and any related criminal or medical issues the production of documents related to his claim for future lost earnings including the production of all job applications sent or filed since the date of loss and all responses from prospective employers, a copy of plaintiff's resume submitted to prospective employers and authorizations for plaintiff's current and prior treating mental health providers, and for such other and further relief as this Honorable Court may deem just and proper:
Motion Sequence 6:
Notice of Motion; Affirmation in Support, Exhibits A-I; Affirmation of Good
Affirmation in Opposition, Exhibit 1
Affirmation in Reply
Affidavit of Service
Motion Sequence 7:
Notice of Motion; Affirmation in Support, Exhibits A-G; Affirmation of Good
Affirmation in Opposition, Exhibit 1
Affirmation in Reply
Affidavits of Service
Motion Sequence 8:
Notice of Motion; Affirmation in Support; Exhibits A-J; Affirmation of Good
Affirmation in Opposition, Exhibit 1
Affirmation in Reply
Upon the foregoing papers, these motions are decided as follows:
Plaintiff commenced this action on December 11, 2017 by the filing of a summons and verified complaint (Ex. A).[1] Plaintiff seeks damages resulting from personal injuries allegedly suffered as the result of a construction site accident occurring on September 9, 2016 where he was working as an ironworker/ lather (Ex. A). Baker and LCOR filed their answers on January 29, 2018 and February 14, 2018, respectively (Exs. B and C respectively). On or about November 13, 2019 Baker filed a third-party summons and complaint against RRP (Ex. D). RRP served its verified answer on or about February 7, 2020, (Ex. E). Plaintiff's bills of particulars (sequence 6, Ex. F; sequence 7, Ex. D, and sequence 8, Ex. E) claim injuries to his lumbar spine, including a June 2018 lumbar laminectomy, as well as a lacerated liver and that he "has been incapacitated as an ironworker to date." Plaintiff claims, inter alia, that as a result of the accident he cannot return to his prior work as an ironworker/ lather, nor any work in the construction field that requires physical labor. He claims future economic loss in the range of $7, 686, 150 and $9, 393, 818, including loss of future wages, pension, annuity, and health insurance coverage (plaintiff's Economic Assessment, dated July 9, 2020, Ex. G).
During discovery movants received a preoperative toxicology report dated May 31, 2018 prepared in connection with plaintiff's June 2018 lumbar laminectomy (Ex. H). The toxicology report shows that plaintiff tested positive for cocaine, cannabinoids, and benzodiazepines. Under the "Social & Psychosocial Habits" heading of the report the "Alcohol" subsection indicates that plaintiff drank beer one to two times per week and the subsection for "Substance Abuse" states "Marijuana."
Plaintiff appeared for a deposition conducted by counsel for LCOR and Baker on March 11, 2019. During that deposition, he testified that at the time of the deposition he was considered 75% disabled, was unable to work as an ironworker/lather, and that he had unsuccessfully applied for about a dozen jobs (Deposition transcript, sequence 8, Ex. F).
Plaintiff appeared for a further deposition conducted by counsel for RRP on October 20, 2020. During the deposition plaintiff's counsel objected to and instructed plaintiff not to answer certain questions concerning his drug and alcohol use as follows.
Plaintiff's counsel objected to this line of questioning as being palpably irrelevant to plaintiff's claims and directed plaintiff not to answer (Deposition transcript, Ex. I, pp. 49-53). Plaintiff's counsel also directed him not to answer questions about his "illicit" drug use and whether he had a history of drug addiction or substance abuse (id. at pp. 53-54). Plaintiff's counsel further objected and directed plaintiff not to answer questions concerning the toxicology report and plaintiff's drug use (id. at pp. 82- 85). Plaintiff's counsel directed plaintiff not to answer questions concerning the parts of the toxicology report that reflected plaintiff's alcohol and marijuana use at the time of the report (id. at p. 93).
During the deposition, plaintiff was shown portions of the surveillance video and was questioned as follows:
At this point plaintiff's counsel directed plaintiff not to answer the question. Plaintiff then testified to having smoked marijuana five days later. Plaintiff's counsel objected and directed plaintiff not to answer when asked how often he smoked marijuana (id. at p. 137).
On or about November 10, 2010 Baker served a notice for discovery and inspection seeking, inter alia, plaintiff's resume, copies of plaintiff's indeed.com job applications confirmation emails, and plaintiff's job applications filed since the date of the loss (id.).
Movants argue that plaintiff's drug and alcohol use is relevant as it impacts plaintiff's health and life expectancy. Movants argue that plaintiff's health is a factor to be considered when assessing the extent of plaintiff's loss of future earning capacity. Movants further contend that since plaintiff's medical records indicate his use of drugs and alcohol days prior to his 2018 lumbar surgery, his drug use is also relevant to his physical recovery from his alleged injuries. Movants state that plaintiff's testimony relating to his drug and alcohol use is relevant and necessary. Baker and LCOR argue that authorizations to obtain records related to treatment pertaining to his drug and/or alcohol abuse are also necessary. Movants contend that without the foregoing discovery they will be unable to adequately defend this lawsuit and will be prejudiced thereby. Baker argues that it is also entitled to records related to plaintiff's efforts to seek alternative employment since the accident and are related to plaintiff's ability to work as a lather or in an alternative field.
In opposition plaintiff argues that movants seek authorizations and testimony for conditions not placed in controversy and which are protected by the physician-patient privilege. Plaintiff relies on Brito v Gomez, 33 N.Y.3d 1126 [2019] for the proposition that a litigant in a personal injury action claiming lost earnings and loss of enjoyment of life does not waive the physician-patient privilege with respect to injuries not claimed in the bill of particulars unless those injuries directly impact upon the injuries claimed by the litigant. With respect to Baker's motion which seeks production of job applications responses from respective employers and plaintiff's resume, plaintiff refers to his November 23, 2020 response providing authorizations for those records (Plaintiff's Ex. 1).
In reply, RRP argues that by claiming future earning capacity and benefits plaintiff has placed his general health into controversy. RRP contends that plaintiff's reliance on Brito v Gomez is misplaced because that court allowed defendants in that case to obtain records for conditions that were not affirmatively placed in controversy because they were relevant to plaintiff's claims for lost earnings and loss of enjoyment of life. RRP argues that plaintiff's history of drug and...
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