United States District Court, E.D. New York
MICHAEL J. KATZ, M.D., MICHAEL J. KATZ, M.D., P.C., Plaintiffs,
TRAVELERS its relevant servants, agents or employees and relevant associated, affiliated or subsidiary corporations a/k/a Travelers Insurance Company a/k/a The Travelers Companies, Inc., EXAM WORKS, INC. and its relevant servants, agents or employees and relevant associated, affiliated or subsidiary corporations, Defendants.
Zisholtz & Zisholtz, LLP Attorneys for the Plaintiffs,
Gerald Zisholtz, Esq., Stuart S. Zisholtz, Esq., Meng Cheng,
Esq., Of Counsel
Piper LLP Attorneys for the Defendant Travelers, Brett
Ingerman, Esq., Colleen Michelle Gulliver, Esq., Of Counsel
& Williams LLP Attorneys for the Defendant Exam Works,
Inc., Andrew I. Hamelsky, Esq., Jenifer Ann Scarcella, Esq.,
MEMORANDUM OF DECISION & ORDER
D. SPATT United States District Judge
diversity action was originally brought by the Plaintiffs
Michael J. Katz, M.D. and Michael J. Katz, M.D., P.C. (the
“Plaintiffs” or “Dr. Katz”) against
the Defendants Travelers (“Travelers”) and Exam
Works, Inc. (“Exam Works”) (collectively, the
“Defendants”) in New York State Supreme Court,
Nassau County, alleging various contract and tort claims
under New York State common law. Travelers removed the case
to the United States District Court for the Eastern District
of New York (the “EDNY”) based on the diversity
jurisdiction of the Court pursuant to 28 U.S.C. §
before the Court are motions from the Defendants, brought
pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.” or “Rule”) 12(b)(6), to dismiss
the Plaintiffs' complaint for failure to state a claim.
For the following reasons, Exam Works' motion is granted
in its entirety, and Travelers motion is granted in part and
denied in part.
A. Factual Background
following facts are drawn from the Plaintiff's complaint
unless otherwise noted, and, for the purposes of the instant
motion, are accepted as true.
Katz is a medical doctor licensed to practice medicine in New
York State, and is a resident of Nassau County. Michael J.
Katz, M.D., P.C. is a professional corporation. Travelers is
a corporation with its principal place of business in
Connecticut, (Travelers' Notice of Removal at 2), that
issues insurance policies. Exam Works is a corporation with a
principal place of business in Georgia, (Id.), that
is “in the business of providing physicians or names of
physicians to conduct independent medical examinations (IME)
in connection with claims for personal injury that were
instituted against clients and customers of Travelers and
other insurance companies.” (Complaint at ¶ 7).
Exam Works allegedly keeps two lists of physicians: one of
eligible physicians and another list called “Do Not
Use.” For more than 20 years, Dr. Katz was on Exam
Works' eligible list and Dr. Katz conducted IMEs for
Travelers, and other insurance companies.
action stems from proceedings that occurred during a trial in
New York State Supreme Court, Queens County in July 2013. The
case, Bermejo v. Amsterdam & 76th
Associates, LLC, et.al., Index No. 23985/2009, was tried
before the late Justice Duane Hart (“Justice
Hart”). Travelers insured one of the Defendants in that
case, Ibex Construction, and engaged Dr. Katz through Exam
Works to conduct an IME of the Plaintiff in Bermejo.
Dr. Katz conducted two IMEs-the first allegedly lasted 45
minutes, and the length of time of the second was a matter of
great dispute at the trial.
trial in Supreme Court, on direct examination, Dr. Katz
testified that he performed seven tests during the second
IME. On cross examination, Patrick Hackett
(“Hackett”), the counsel for Bermejo asked Dr.
Katz how long it took him to conduct the second IME. Dr. Katz
replied several times, and in different ways, that he did not
know how long the second IME lasted. Justice Hart told Dr.
Katz that he could not “accept an [answer of] ‘I
don't know.' You have been doing this for a while
(sic). I will have to insist on what your custom and practice
would be as to what type of, the length of exam of this
type.” (Id. at ¶ 55). Dr. Katz stated
that he thought “a range of between 10 and 20 minutes
would be appropriate.” (Id.).
Dr. Katz testified, Hackett called a paralegal from his
office, Yury Ramirez (“Ramirez”), who testified
that Dr. Katz' evaluation of Bermejo lasted five minutes
and his exam only lasted three minutes. On re-direct
examination of Bermejo, Hackett brought the existence of a
video of the second IME to the court and counsel's
attention. The jury was dismissed for the day.
Hart reviewed the video and adopted Hackett's
interpretation that the video showed that Dr. Katz's
examination lasted only one minute and fifty-six seconds. The
Plaintiffs maintain that the video did not show the entire
physical examination, and that Dr. Katz's review of
Bermejo's medical records was part of the IME.
Hart directed Dr. Katz to reappear in his part with counsel.
During an extended colloquy wherein Justice Hart entertained
motions for a mistrial, he encouraged the parties to settle,
and said that Dr. Katz should contribute to the settlement.
This was done off the record. Even though Dr. Katz was not a
party to the suit, Justice Hart said that Dr. Katz lied; and
that his career doing IME work was over. On the record,
Justice Hart said that he would unseal the record so that
other attorneys, insurance companies, the New York State
Health Department, Dr. Katz' insurance carrier and the
public could see what happened; and that he would send the
transcript to the Queens County District Attorney to pursue
Hart repeatedly said on the record that Dr. Katz lied under
oath. He said that Dr. Katz lied about the amount of time
spent on the IME, and later said that the lie was actually
that he did not perform or could not have possibly performed
the tests that he said he performed during the second IME.
Justice Hart further stated that he was going to sanction the
attorneys who retained Dr. Katz $10, 000 because he could not
sanction Dr. Katz. He did eventually sanction them, but
quickly changed his mind and vacated the sanctions. Justice
Hart also contemplated holding a contempt hearing against Dr.
Katz, but did not do so. Justice Hart called Dr. Katz a liar
no less than 25 times on the record. He encouraged the
attorneys who retained Dr. Katz to sue him for causing what
was eventually declared a mistrial.
Dr. Katz stated that he would not contribute to a settlement
of the Bermejo case, Justice Hart encouraged him to instead
retire, and said that he would hold a “special
proceeding” to “determine whether Dr. Katz
committed perjury; and that the penalty imposed would be the
revocation of Dr. Katz's license to practice
medicine.” (Id. at ¶ 116).
Justice Hart never commenced such a special proceeding, he
repeatedly said that Dr. Katz lied; that he committed
perjury; and said that no insurance company would go near him
after reading the transcript of the Bermejo
proceedings. Justice Hart told Dr. Katz and his counsel that
Bermejo's attorneys had all agreed with the court's
view that Dr. Katz lied, but the record showed that they did
not agree-it showed that they did not object to the
court's findings. Dr. Katz said that he would not testify
further in the proceedings, and Justice Hart would not allow
Ibex Construction or Travelers to retain another medical
expert for another IME. Justice Hart declared a mistrial.
Bermejo parties appealed various aspects of Justice
Hart's ruling to the New York State Supreme Court
Appellate Division, Second Department (the “Second
Department”). The Plaintiffs attached to their
complaint a copy of the Second Department's November 18,
2015 decision. The Plaintiffs state that the Second
Department “totally exonerated” Dr. Katz.
(Id. at ¶ 148). The Second Department stated
we dispel the premise that underlies the plaintiff's
arguments on these appeals, and the actions taken by the
Supreme Court after declaring the mistrial, namely, the
notion that Dr. Katz lied. The record does not reflect that
Dr. Katz committed perjury. Dr. Katz was asked how long the
second IME took, and his answer was that he did not know.
There is no evidence in this record that, at the time Dr.
Katz gave that testimony, he actually did know how long the
second IME took. Thus, that answer (or series of answers) has
not been shown to be untruthful. When Dr. Katz was then
asked, by the court, “what [his] custom and practice
would be” as to the length of an examination of this
type, as noted, Dr. Katz's answer was that he thought
that “in the range of between 10 and 20 minutes would
be appropriate.” There is no support in this record for
the proposition that this answer was false. Moreover, even
aside from the fact that the Supreme Court did not actually
ask Dr. Katz about the length of the particular IME in
question, it was improper to force him to specify an exact
duration when his answer repeatedly was “I don't
know.” Accordingly, the record does not reflect a lie
that would support a declaration of perjury by the Supreme
Court. The plaintiff's attorneys insist that Mr.
Hackett's video recording shows that the examination
lasted one minute and 56 seconds. However, the recording is
approximately five minutes in length, and it cannot be
determined, from a viewing of the recording, whether the
recording captured the entire examination. In other words, it
cannot be determined what happened before Mr. Hackett turned
his recording device on, and what happened after he turned it
off. Moreover, the recording does not account for the time
Dr. Katz spent reviewing the plaintiffs fairly extensive
medical records, which could arguably be considered part of
Bermejo v. N.Y.C. Health and Hosp. Corp., 135 A.D.3d
116, 148 (N.Y.App.Div. 2015) (annexed to Plaintiff's
complaint as Ex. A). The Second Department found that Justice
Hart had said on the record that Dr. Katz “lied”
or “committed perjury” more than 60 times. The
Court further recognized that several trial courts in the
Second Department had been presented with requests for new
IMEs where Dr. Katz had originally been retained to perform
is allegedly Exam Works “most important and influential
client, ” (Complaint at ¶ 134), and after the
Bermejo mistrial, purportedly directed Exam Works to place
Dr. Katz' name on the “Do Not Use” list. The
Plaintiffs allege that “[t]he [D]efendants, jointly and
severally, devised a plan and scheme to ruthlessly and
aggressively disseminate throughout the negligence defense
industry, the false and irresponsible allegations and
accusations leveled against Dr. Katz by Justice Hart so that
anyone and everyone in the industry knew that Dr. Katz was on