& Kelner, New York, NY (Gerard K. Ryan, Jr., of counsel),
Keller, O'Reilly & Watson, P.C., Woodbury, NY
(Vincent J. Petrozzo of counsel), for respondent.
M. LEVENTHAL, J.P., L. PRISCILLA HALL, SANDRA L. SGROI,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Ralph T.
Gazzillo, J.), dated July 1, 2014. The order, insofar as
appealed from, denied the plaintiff's motion for leave to
renew his opposition to a prior motion of the defendant
Charles Rothberg for a protective order, which had been
granted in an amended order of the same court dated June 5,
that the order dated July 1, 2014, is reversed insofar as
appealed from, on the law and the facts, with costs, the
plaintiff's motion for leave to renew is granted, upon
renewal, the amended order dated June 5, 2012, is vacated,
and the prior motion of the defendant Charles Rothberg for a
protective order is denied.
medical malpractice action arises out of two cataract
procedures performed on the plaintiff by the defendant
Charles Rothberg (hereinafter the defendant). In May 2011,
the defendant moved for a protective order denying the
plaintiff's notice to produce certain correspondence
between the defendant and Alcon Research, Ltd. (hereinafter
Alcon), relating to the Alcon intraocular lenses used in the
plaintiff's cataract procedures (hereinafter the Alcon
documents). The defendant contended that the Alcon documents
constituted voluntary adverse event reports by a physician,
entitled to be protected from disclosure pursuant to 21 USC
§ 360i(b)(3)(C). In an amended order dated June 5, 2012,
the Supreme Court, after an in camera review of the
documents, granted the defendant's motion for a
protective order, finding that the Alcon documents were
protected from disclosure pursuant to 21 USC § 360i(b).
The plaintiff did not appeal from that order.
defendant was then deposed, after which the plaintiff moved
for leave to renew his opposition to the defendant's
prior motion, contending that the defendant's deposition
testimony revealed new facts demonstrating that the Alcon
documents were not protected from disclosure. In an order
dated July 1, 2014, the Supreme Court, inter alia, denied the
plaintiff's motion for leave to renew. The plaintiff
motion for leave to renew shall be based upon new facts not
offered on the prior motion that would change the prior
determination' and shall contain reasonable justification
for the failure to present such facts on the prior
motion'" (Matter of Defendini, 142 A.D.3d
500, 502, quoting CPLR 2221[e], ).
relevant to this appeal, the plaintiff demonstrated new facts
unavailable to him at the time of the defendant's motion
for a protective order; to wit, the defendant's testimony
at his deposition that he did not recall submitting the Alcon
documents to anyone other than Alcon, and had "no
idea" whether the documents were submitted to the
Secretary of Health and Human Services. The defendant further
testified to his opinion, with a reasonable degree of medical
certainty, that the first lens implanted did not cause
serious illness or injury to the plaintiff; the
defendant's counsel stipulated that if the lens did not
cause a serious injury or condition, it did not contribute to
it. The defendant had no opinion with regard to the second
lens. The defendant's testimony constituted new facts
that would have changed the prior determination protecting
the Alcon documents from disclosure, as the testimony
demonstrated that the Alcon documents do not fall within the
ambit of 21 USC § 360i(b), which protects certain
documents from disclosure. Specifically, the Alcon documents
do not constitute "user reports, " as that term is
used in 21 USC § 360i(b). In fact, the defendant's
testimony demonstrated that the Alcon documents do not
"reasonably suggest[ ]" that the implants caused or
contributed to a serious illness or injury (21 USC §
360i[b][B][i]). Thus, contrary to the defendant's
contention, the Alcon documents do not qualify as
"report[s] made under paragraph (1) [of 21 USC §
360i(b)]" (21 USC § 360i[b]), which addresses
reports a user device facility is required to make regarding
"information that reasonably suggests that a device has
or may have caused or contributed to the serious illness of,
or serious injury to, a patient of the facility, or... other
significant adverse device experiences as determined by the
Secretary by regulation to be necessary to be reported"
(21 USC § 360i[b][B]; see generally Kubicki on
behalf of Kubicki v Medtronic, 307 FRD 291, 298 [D DC]).
the Supreme Court should have granted the plaintiff's
motion for leave to renew (see Matter of Defendini,
142 A.D.3d at 502; Matter of Surdo v Levittown Pub.
School Dist., 41 A.D.3d 486, 486).
party seeking to preclude discovery, the defendant had the
burden of proving that the Alcon documents were not
discoverable (see Jacaruso v Keyspan Energy Corp.,
109 A.D.3d 585, 586; Vivitorian Corp. v First Cent. Ins.
Co., 203 A.D.2d 452, 452-453; see also Matter of
Kapon v Koch, 23 N.Y.3d 32, 39). In light of the
defendant's failure to meet that burden, upon renewal,
the Supreme Court should have denied the defendant's
motion for a protective order (see Matter of
Defendini, 142 A.D.3d at 502; Friedman, Harfenist,
Langer & Kraut v Rosenthal, 79 A.D.3d 798, 801).
This Court takes no position, however, regarding the
admissibility of the Alcon documents.
plaintiff's remaining contentions are not properly before
this Court and, in any event, need not be ...