Meyers v. Epstein

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Gorenstein
• Citation: Meyers v. Epstein, 232 F.Supp.2d 192 (S.D. N.Y. 2002)
• Decision Date: 14 November 2002
• Docket Number: No. 01-Civ. 1754(GWG).,01-Civ. 1754(GWG).
• Parties: Gary MEYERS, Individually and Guardian ad litem for Samara Meyers (a minor) and Patricia Meyers, Plaintiffs, v. Fred EPSTEIN, M.D., Ira Richmond Abbott, III, M.D., John Does 1-10, Jane Does 1-10, ABC Corporations 1-10 Defendants.

232 F.Supp.2d 192

Gary MEYERS, Individually and Guardian ad litem for Samara Meyers (a minor) and Patricia Meyers, Plaintiffs, v. Fred EPSTEIN, M.D., Ira Richmond Abbott, III, M.D., John Does 1-10, Jane Does 1-10, ABC Corporations 1-10 Defendants.

No. 01-Civ. 1754(GWG).

United States District Court, S.D. New York.

November 14, 2002.

Bruce H. Nagel, Robert H. Solomon, Nagel Rice Dreifuss & Mazie, LLP, Livingston, New Jersey, for Plaintiffs.

Elliot J. Zucker, Aaronson Rappaport Feinstein & Deutsch, LLP, New York, New York, for Defendants.

OPINION AND ORDER

GORENSTEIN, United States Magistrate Judge.

This case arises out of brain surgery performed on Samara Meyers, who was eleven years old at the time. Plaintiffs, Samara and her parents, allege that a doctor who had no authority to operate on Samara performed her surgery — a situation that is colloquially described as "ghost surgery." The defendants are the doctor who is alleged to have told the Meyers that he alone would be performing the surgery, Dr. Fred Epstein, and the doctor who in fact performed the surgery, Dr. Ira Richmond Abbott, III. The parties have consented to this matter being adjudicated by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

The defendants now move for summary judgment as to all claims pursuant to Fed. R.Civ.P. 56. In considering the defendants' motion for summary judgment, the Court accepts the plaintiffs' version of the facts where supported by admissible evidence and draws all factual inferences in plaintiffs' favor. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999). For the reasons stated below, the defendants' motion is granted in part and denied in part.

I. FACTUAL BACKGROUND

In the summer of 1995, Samara Meyers, the daughter of plaintiffs Gary and Patricia Meyers, was diagnosed with a brain tumor. Later that year, Dr. Alan Gardner evaluated Samara and discussed with the Meyers family the possibility of removing the tumor and certain risks associated with that procedure. The Meyers family then sought a second opinion from Dr. Epstein. Dr. Epstein recommended surgery for resection of the brain tumor and, on August 21, 1995, Samara was admitted to New York University Medical Center to undergo this operation.

Prior to the surgery, Patricia Meyers signed two consent forms on behalf of Samara. One form authorized "such diagnostic procedure and hospital care and such medical treatment by Dr. Epstein, his assistant or his designees as is necessary in his judgment." The second form authorized "Epstein/Abbott and those whom he may designate as associates or assistants to perform [the operation] upon Samara Meyers."

According to the Meyers, Dr. Epstein told them prior to the surgery that he would be performing the surgery on Samara and that Dr. Abbott would be assisting him. See Certification of Patricia Meyers, dated April 25, 2002, at ¶ 2. Patricia Meyers allegedly told Dr. Epstein: "I know this is a teaching hospital, but I want to make sure that no one is touching my daughter but you." Transcript of the January 3, 2002, Deposition of Patricia Meyers at 58. Dr. Epstein allegedly responded: "Of course I will be the only one. I will be the one performing, I will be the one operating on her." Id. at 59.

Samara's operation took place on August 22, 1995 and was performed by Dr. Abbott. Dr. Epstein did not participate in the operation at all. Moreover, Dr. Abbott does not remember discussing anything with Dr. Epstein during the course of the operation, nor does he remember if Dr. Epstein was even present during the operation. See Transcript of the January 16, 2002, Deposition of Ira Richmond Abbott, M.D. ("Abbott Dep.") at 74-75. In fact, Dr. Epstein had never performed the type of surgery involved in Samara's operation, at least from the period that Dr. Abbott started working at the hospital. See id. at 44.¹ Following the operation, Dr. Epstein came to Samara's parents in the waiting room, where he told them the surgery went fine and that Dr. Abbott was going to be coming up also. Transcript of the January 3, 2002, Deposition of Patricia Meyers at 86-87.

The Meyers have alleged that the surgery caused Samara to experience left side paralysis, cognitive impairments, and a loss of left side peripheral vision in both eyes. Joint Pretrial Order, dated April 9, 2002, at 7. They have abandoned their claim, however, that the operation was improperly performed.

The instant action was filed on February 28, 2001, and the First Amended Complaint was filed on July 2, 2001. The First Amended Complaint invokes the Court's diversity jurisdiction, 28 U.S.C. § 1332, and sets forth a number of claims against the defendants. By virtue of the Meyers' statements in the Pretrial Order and their briefing on the present motion, they are now pursuing only the following claims: (1) a claim for battery against Dr. Abbott; (2) a claim for malpractice against Dr. Epstein; and (3) a claim for fraud against Dr. Epstein. The claim for malpractice against Dr. Epstein, however, relates only to the statements he made about who would be performing the operation. The Meyers do not assert a claim of medical malpractice with respect to the performance of the operation itself.

II. DISCUSSION

A. Summary Judgment Standard

A district court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); McPherson v. Coombe, 174 F.3d at 280. A material issue is a "dispute[ ] over facts that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Thus, "`[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson, 174 F.3d at 280 (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996)). When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. McPherson, 174 F.3d at 280. Nonetheless, "mere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.2001).

B. Applicable Law

Because the jurisdiction of this Court is premised exclusively on diversity, the forum state's choice of law rules govern as to which State's substantive law applies. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Krock v. Lipsay, 97 F.3d 640, 645 (2d Cir.1996). Where tort claims are made, New York's choice of law rules apply an "interest analysis" under which the law of the jurisdiction having the greatest interest in the litigation is applied. Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). In determining which state has the greatest interest in this litigation, the domicile of the parties and the locus of the tort are "almost exclusively" the deciding factors. Id.; see Cooney v. Osgood, 81 N.Y.2d 66, 73-74, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993). In this case, the Meyers are domiciled in New Jersey and the defendants in New York. The alleged torts took place in New York. Under these circumstances —and because neither party has argued that another state has a greater interest in the litigation — the Court will apply New York substantive law.

In a diversity case, the federal court must determine what the substantive state law is. See McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir.1997). "Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity." Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994); accord Elliott Assocs., L.P. v. Banco de la Nacion, 194 F.3d 363, 370 (2d Cir.1999). When the highest court of the forum state has not spoken, "the best indicators of how it would decide are often the decisions of lower [New York] courts." In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850 (2d Cir.1992). Nonetheless, a court may also consider any authorities that the highest court of the state might consider, including cases from jurisdictions outside the forum state on the same or similar issues. Elliott Assocs., L.P., 194 F.3d at 370; accord Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir.2000) (in deciding how highest court would rule, courts should consider "relevant case law from other jurisdictions on the same or analogous issues ..."). This Court's goal, therefore, is to predict "[w]hat would be the decision of reasonable intelligent lawyers, sitting as judges of the highest New York court, and fully conversant with New York jurisprudence." Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.1994) (internal quotation marks and citations omitted).

C. Plaintiffs' Claims

1. Battery

The Meyers assert a claim of battery against Dr. Abbott. In New York, battery is an "intentional wrongful physical contact with another person without consent." United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir.1993); Micalizzi v. Ciamarra, 206 F.Supp.2d 564, 581 (S.D.N.Y.2002); accord Messina v. Matarasso, 284 A.D.2d 32, 34-35, 729 N.Y.S.2d 4 (1st Dep't 2001) ("[t]o establish a battery, ... it need only be shown that the defendant made bodily contact with the plaintiff and that the contact was either offensive in nature or without his or her consent") (citations...