M.F. v. Albany Med. Ctr.
| Docket Number | 536157 |
| Decision Date | 20 July 2023 |
| Citation | 2023 NY Slip Op 03896 |
| Parties | M.F., an Infant, by her Mother and Guardian, Cassandra Durivage, Appellant, v. Albany Medical Center, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Calendar Date: June 5, 2023
Powers & Santola, LLP, Albany (Michael J. Hutter of counsel) for appellant.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Lia B. Mitchell of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Ceresia, JJ.
Appeals (1) from an order of the Supreme Court (Christina L. Ryba, J.), entered August 31, 2022 in Albany County, which, among other things, granted defendant's motion to preclude expert testimony pursuant to CPLR 3126, and (2) from an order of said court, entered October 13, 2022 in Albany County, which granted defendant's motion for summary judgment dismissing the complaint.
In April 2018, plaintiff commenced the instant action on behalf of her infant daughter (born in 2017), alleging medical malpractice by defendant's staff which led to various injuries to the infant upon birth. Defendant answered and, in May 2018, filed a demand for a bill of particulars. Plaintiff served defendant with a verified bill of particulars in August 2018 and, after various depositions were held, defendant sought an amended bill of particulars, which plaintiff did not provide. In September 2019, plaintiff served defendant with an expert disclosure setting forth an expert in obstetrics and gynecology, another in pediatric orthopedics and another in pediatric neurology. Defendant objected, asserting that the disclosure failed to provide the experts' qualifications or any details regarding the substance to which they would testify. After extensive unsuccessful exchanges and various court conferences and extensions, plaintiff served defendant with an amended expert disclosure in June 2021. Defendant objected to the sufficiency of the disclosure and continued to seek discovery but, after those attempts were unsuccessful, defendant moved to compel plaintiff to comply with discovery requirements. Plaintiff opposed the motion. In February 2022, Supreme Court granted the motion, finding that the responses provided in the bill of particulars response Nos. 5, 7, 8, 9 and 10 were deficient and that the amended expert disclosure was overtly general and lacked the experts' qualifications. As such, the court ordered plaintiff to correct these issues and turn over an amended bill of particulars and a second amended expert disclosure to defendant within 30 days of the decision. Plaintiff failed to do so.
Following that missed deadline, defendant was granted leave to make a motion pursuant to CPLR 3126 seeking preclusion of the information related to plaintiff's discovery shortfalls. Plaintiff opposed the motion, attaching an attorney affirmation, an affidavit of merit, an amended bill of particulars and a second amended expert disclosure. Through an order entered August 2022, Supreme Court found that the conduct by plaintiff's trial counsel was willful and contumacious and, as a result, declined to consider the potentially meritorious nature of the action. The court granted the motion in its entirety, precluding plaintiff from supporting her medical malpractice claim with expert testimony or with any other evidence that would have been responsive to the defective bill of particulars. Defendant then moved for summary judgment dismissing the complaint, which plaintiff opposed. In October 2022, Supreme Court granted defendant's motion for summary judgment and dismissed the complaint. Plaintiff appeals from the August 2022 and the October 2022 orders. [1]
When a party "refuses to obey an order for disclosure or wil[l]fully fails to disclose information which the court finds ought to have been disclosed," a court may impose just discovery sanctions to punish the disobedient party; such sanctions may include monetary sanctions or an order precluding evidence or witnesses, striking a pleading or defense or dismissing a cause of action (CPLR 3126; see Moak v Raynor, 28 A.D.3d 900, 903 [3d Dept 2006]; Altu v Clark, 20 A.D.3d 749, 750 [3d Dept 2005]). As relevant here, sanctions pursuant to CPLR 3126 are equally available when a party fails to respond to a demand for a bill of particulars (see CPLR 3042 [d]) as when a party fails to provide appropriate expert disclosure pursuant to CPLR 3101 (d). Whether to impose a sanction and the nature and degree of said sanction are matters first committed to the sound discretion of the trial court, and such sanctions generally remain undisturbed absent an abuse of discretion (see Bruno v Peak Resorts, Inc., 190 A.D.3d 1132, 1134 [3d Dept 2021]; Pangea Farm, Inc. v Sack, 51 A.D.3d 1352, 1354 [3d Dept 2008]). However, when reviewing discovery determinations and their associated sanctions, this Court "is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse" (Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 N.Y.3d 843, 845 [2008]; see Andon v 302-304 Mott St. Assoc., 94 N.Y.2d 740, 745 [2000]; County of Warren v Swan, 203 A.D.3d 1504, 1506 [3d Dept 2022]). Where we undertake such discretionary review, our decision may be reviewable by the Court of Appeals to determine whether we abused our discretion as a matter of law (see Andon v 302-304 Mott St. Assoc., 94 N.Y.2d at 745).
Here, Supreme Court found that plaintiff's trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. [2] Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff's trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff's trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available (see Jurlina v Town of Brookhaven, 215 A.D.3d 936, 937 [2d Dept 2023]; Hubbell, Inc. v Lazy Swan Golf & Country Club LLC, 187 A.D.3d 1448, 1450-1451 [3d Dept 2020]; BDS Copy Inks, Inc. v International Paper, 123 A.D.3d 1255, 1256-1257 [ 3d Dept 2014]). Ultimately, the preclusion of plaintiff's experts left her unable to support her medical malpractice claim with the requisite competent expert medical opinion(s), or to defend the same against summary judgment (see e.g. Doe v Langer, 206 A.D.3d 1325, 1330 [3d Dept 2022]).
In determining the appropriate sanction, courts should consider the facts on a case-by-case basis, balancing the strong public policy favoring resolution of cases on the merits with the court's interest in ensuring efficient litigation through court orders, deadlines and sanctions (see generally Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 81-82 [2010]; Mesiti v Weiss, 178 A.D.3d 1332, 1334 [3d Dept 2019]). Supreme Court expressly declined to consider the potential merits of plaintiff's claim, and we exercise our corresponding power to substitute our discretion in its place. Plaintiff, in her opposition to the preclusion motion, attached an amended bill of particulars, a second amended expert disclosure and an expert's affidavit of merit. Although the supplemental discovery disclosures were made well beyond the deadlines set by the court, we note that the record does not reveal any prejudice to defendant, other than the protracted delay (see Mesiti v Weiss, 178 A.D.3d at 1335; Gokey v DeCicco, 24 A.D.3d 860, 862 [3d Dept 2005]; Altu v Clark, 20 A.D.3d at 751). Further, our review of response Nos. 5, 7, 8, 9 and 10 in the amended bill of particulars satisfied the outstanding demands (see CPLR 3042 [a]; Graves v County of Albany, 278 A.D.2d 578, 579 [3d Dept 2000]). Likewise, plaintiff's second amended expert disclosure regarding the experts in obstetrics and gynecology (labeled as "A"), orthopedics ("B") and pediatric neurology ("C") disclosed, "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 for each expert's opinion" (CPLR 3101[d] [1]; see A.J. v Canastota Cent. Sch. Dist., 214 A.D.3d 67, 73-74 [3d Dept 2023]). By contrast, plaintiff's disclosures regarding plaintiff's proffered experts in vocational training ("D") and economics ("E") lack information regarding those experts' qualifications.
The affidavit of merit, which was sworn to by plaintiff's expert in obstetrics and gynecology, was premised on the expert's review of reports prepared by defendant's staff in connection with plaintiff's pregnancy and the child's birth, as well as various deposition transcripts and medical examination reports prepared in connection with the litigation. The expert detailed the actions that defendant's staff undertook preceding and during the birth, as well as the omissions during that same time frame, which deviated from accepted standards of care and led to the child's injuries. Further, the expert explained that, due to such injuries, the child will be permanently disabled for her entire life and will likely require future medical interventions, including surgical care.
Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August...
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