The opinion of the court was delivered by: MOTLEY
Plaintiff, Carl A. Coppolino, was indicted on July 25, 1966, by the Circuit Court of Sarasota, Florida and charged with the first degree murder of his wife in that state. The indictment is presently pending and the date of trial will be set in the near future.
Plaintiff's defense counsel in the Florida case moved to dismiss the indictment. In September, 1966, a hearing on this motion was held in the Florida court.
A defendant in the instant action, Dr. Milton Helpern, the Chief Medical Examiner of the City of New York, testified on the hearing in September 1966 that, in his opinion, the death of the plaintiff's wife was caused by an injection of succinylcholine chloride, a chemical muscle relaxant which induces apnea, or inability to breathe.
Dr. Halpern's opinion was based upon his own autopsy and certain toxicological examinations and tests conducted by the other defendant in the instant action, Dr. C. Joseph Umberger. Dr. Umberger is a toxicologist employed by the City of New York in the office of the Medical Examiner. He subjected the brain, liver, kidneys and stomach of the deceased to certain chemical and other examinations and made certain findings, all of which are unknown to plaintiff.
Dr. Halpern performed an autopsy in New York City on December 17, 1965 on the exhumed body of the deceased at the request of the New Jersey and Florida police and investigative authorities. The body had been buried in New Jersey. This autopsy had been performed by Dr. Helpern as a courtesy to New Jersey and was one of many autopsies similarly performed by Dr. Helpern at the request of other states over a period of many years. Both Dr. Helpern and Dr. Umberger used the facilities of the City of New York in performing their tests and examinations. They acted at all times in their official capacities.
The motion to dismiss the indictment was denied by the Florida court. Thereafter, plaintiff's Florida defense counsel filed a discovery motion. The relief sought was the production of several items for inspection, examination, copying or photographing by plaintiff's counsel. These items included certain physical evidence, i.e. the body and body organs of the deceased and photographs made by defendant Helpern's office. The items sought also included the recorded data and information obtained during the course of and as a result of the New York tests and reports pertaining to these tests. Production of these latter items was denied.
By order dated January 17, 1967, the Florida court ordered the production of: 1) the body, organs, tissues and other materials removed from the body of the deceased, 2) any residuals of the body, organs, tissues aud other materials removed from the deceased, 3) any photographs, motion pictures or slides of the body of the deceased or any organs, tissues or other materials taken from the body which the State intends to use as evidence on the trial of the murder indictment.
The foregoing was produced at the New York office of defendant Helpern on January 27, 1967. Thereafter, another discovery motion was filed which advised the Florida court that on January 27, 1967 plaintiff's defense counsel and experts sought to examine Dr. Helpern's autopsy report which was refused. Florida defense counsel also requested, on that occasion, small samples of the same body materials used by Dr. Umberger in his examination in order that plaintiff's medical experts might examine these materials in their laboratories at Montefiore Hospital in New York City. This was agreed to by Dr. Umberger but denied by Dr. Helpern who refused to have the materials removed from his office but offered the use of his facilities to plaintiff's experts.
The second discovery motion also advised that plaintiff's experts attempted to interview Dr. Umberger, in Dr. Helpern's office, on January 27, 1967, concerning the tests which he had utilized and his specific findings from these tests. Dr. Umberger indicated a complete willingness to discuss the entire subject and provide a copy of his report. Florida's prosecuting attorney and Dr. Helpern repeatedly attempted to stop this discussion by advising Dr. Umberger that he was not required to participate in an interview under the discovery order of January 17, 1967. When Dr. Umberger insisted that he wanted to continue his discussion, although not required, he was directly advised by his superior, Dr. Helpern, in the presence of the Florida prosecutor, that he could not engage in such discussions. The Florida court was advised in the second discovery motion filed on January 30, 1967 that for a period of four hours Florida defense counsel attempted to interview Dr. Umberger over the repeated objections of Dr. Helpern and Florida's prosecutor. Finally, Dr. Umberger announced that based upon instructions from Dr. Helpern he could not continue the interview or produce a copy of his report.
The relief sought by the second discovery motion was the autopsy report and the small samples. In addition, Florida defense counsel sought by that motion an order as follows:
"Prohibiting Prosecutor Schaub and Dr. Helpern from interfering with, obstructing, and frustrating defense efforts to interview witnesses, particularly the chief prosecution witness, Dr. Joseph Umberger, by either direct or indirect advice, pressure, intimidation and coercion exercised upon such witness."
The second discovery motion resulted in an order dated February 2, 1967 which denied the autopsy report. That order required the Florida prosecutor to produce the small body samples ...