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Engel v. Defeo

Other Lower Courts

September 28, 2001

Marie Engel et al., Plaintiffs,
v.
Joanne Defeo et al., Defendants.

COUNSEL

Rivkin Radler L. L. P. (Howard M. Merkrebs of counsel), for Mitchell Goldstein, defendant.

Feder, Goldstein, Tanenbaum, D'Errico & Arnedos, L. L. P. (Ted J. Tanenbaum of counsel), for plaintiffs.

OPINION

Stephen A. Bucaria, J.

This motion, by defendant Goldstein, for an order: (a) precluding plaintiff from adducing expert testimony by the

Page 674

proposed orthopedic surgeon; (b) staying the trial of this action pending plaintiff's proper compliance with CPLR 3101 (d) (1) (i); and (c) for such other, further and different relief as this court deems just and proper, is determined as hereinafter set forth.

In this action to recover damages for alleged medical malpractice by the defendant Goldstein, the matter has been on the trial calendar since October 4, 2000. This defendant made his CPLR 3101 (d) (1) (i) demand on February 22, 1999 and the plaintiffs' attorney responded on May 12, 2000. The instant application was made by notice of motion, on August 16, 2001, after five adjournments of the trial. No application for temporary relief for a stay has been made (although one part of the relief sought is a stay of the trial), with the potential for the matter to be trial ready and the instant issue to be raised in limine, on the scheduled trial date of September 28, 2001.

With that procedural backdrop, this court examines the parties' respective positions.

The defendant's counsel relies upon the prevailing case law in the Second Department, Jasopersaud v Rho (169 A.D.2d 184 [2d Dept. 1991]), which he interprets to mandate fuller disclosure of the identity of the plaintiff's expert's educational and professional background. The defendant's counsel argues the inappropriate approach of the case law in the Third and Fourth Departments of the Appellate Division and unchanged applicability of this Department's interpretation of CPLR 3101 (d) (1) (i).

The plaintiff's opposition (revealed and discussed in large part in defendant's moving affirmation) asserts that case law in the First, Third and Fourth Departments recognizes the existence of computer resources available for use to medical malpractice litigators to identify a plaintiff's medical expert. He also asserts that such identification is protected by statute. He argues, as well, that the defendant's delay of 15 months, 10 months of which was while the action was on the trial calendar, should require this motion to be ruled upon by the trial judge and denied because of the delay alone. He also makes note of his offer to provide all the disclosure demanded by the defendant if counsel for the defendant " agrees to sign an affidavit stating that he and his representatives will not use this information in order to obtain the name of the physician."

Page 675

The clear directive of the Appellate Division, Second Department, in Jasopersaud v Rho (supra at 188) lies in the following language:

" While each case will necessarily vary upon the particular circumstances involved and the nature of the demands made, a Trial Judge assessing the propriety of a request for expert witness information must weigh the relevant policy interests involved, i.e., the Legislature's intent to materially expand discovery relating to experts and the competing concern reflected ...


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