Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Asaf Ben Oz v. Harry Lorowitz

March 7, 2011


The opinion of the court was delivered by: Pitman, United States Magistrate Judge



I. Introduction

By notice of motion dated September 16, 2010 (Docket Item 29), plaintiff moves for an Order pursuant to Rule 37 of the Federal Rules of Civil Procedure striking defendant's answer or, in the alternative, precluding defendant's three expert witnesses from testifying or otherwise offering evidence in this matter, and awarding plaintiff the costs and attorney's fees he incurred in making this motion. For the reasons set forth below, plain-tiff's motion is granted to the extent that it seeks (1) to preclude defendant's experts from testifying or offering evidence and (2) the fees and costs plaintiff incurred in making this motion; the motion is denied to the extent it seeks other relief.

II. Facts

This is a diversity action arising out of an automobile accident in which plaintiff alleges he sustained personal injuries when his car was allegedly rear-ended by defendant's car. At defendant's request, plaintiff has been examined by three physicians that defendant intends to call at trial. Subsequent to the examinations of plaintiff, plaintiff's counsel subpoenaed defendant's physicians, seeking both testimony and documents. The parties had a dispute concerning the documents plaintiff requested from the experts, and I conducted a conference call on August 20, 2010 to resolve the dispute. As a result of that conference call I issued an Order which provided, in pertinent part:

1. Plaintiff's application to compel defendant's examining physicians to produce documents is granted in part and denied in part as follows:

(a) For the two-year period preceding the date on which each of the physicians completed his report concerning plaintiff, each physician is to produce all other reports concerning a claimant asserting a spinal injury that were prepared at the direct or indirect request of a liability insurance company. The physicians may redact all identifying information other than age and gender.

(b) For calendar years 2008 and 2009, all Form 1099's received by each physician from a liability insurance company, law firm retained by a liability insurance company or service company retained by a liability insurance company.

Plaintiff's application to compel production of documents is denied with respect to all other categories of documents to which the defendant[] and [his] physicians object. (Order dated August 20, 2010 (Docket Item 26)).

In an effort to obtain defendant's compliance with my August 20, 2010 Order, plaintiff's counsel wrote to defendant's counsel on August 23, September 3 and September 7, 2010 seeking the documents that were ordered produced and seeking deposition dates; defendant, however, failed to produce the documents and also failed to offer deposition dates (Declaration of David Jaroslawicz, Esq., dated September 16, 2010 ("Jaroslawicz Decl.") (Docket Item 30), ¶ 10 and Ex. H thereto). On September 13, 2010, plaintiff's counsel wrote to the undersigned, with a copy to defense counsel, seeking sanctions as a result of defendant's failure to comply with my August 20, 2010 Order. In light of the severity of the relief sought, I directed plaintiff to proceed by way of formal motion (Endorsed Order dated September 14, 2010 (Docket Item 28)). Plaintiff subsequently served the present motion on September 16, 2010.

On or about October 5, 2010, defendant produced some of the reports prepared by two of defendant's three examining physicians (Drs. Berkowitz and Rosenblum) and a statement prepared by one of the agencies for which those physicians work reflecting what that agency has paid the two physicians.*fn1 Nothing was produced with respect to defendant's third physician (Dr. Carter). The defendant's excuse for the limited and untimely production by Drs. Berkowitz and Rosenblum was, in essence, that they were too busy to comply with my Order; Dr. Carter refused to make any production, claiming that the records ordered produced were confidential (Affirmation of Cesar O. Bilbao, Esq., dated October 5, 2010 ("Bilbao Aff.") (undocketed) ¶¶ 3-9 and Exs. A-D thereto).

On March 2, 2011, more than six months after my August 20, 2010 Order, defendant produced an additional 190 pages of reports from Dr. Rosenblum. Defendant also produced what appears to be a list of cases in which Dr. Carter testified. However the only information on this list is a date, the name of a court and the name of an individual. The list of courts, in most cases, merely identifies the type of court (e.g., "NY Supreme," "Federal Court") and does not provide sufficient information to identify the specific court in which the action was pending. In ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.