Opinion
6843/99.
Decided June 23, 2005.
This court is once again faced with a request by plaintiff for substantive relief in a law suit brought to recover damages for personal injuries premised on the alleged failure of defendant New York Blood Center (NYBC) to properly test blood products administered to plaintiff. In sum, plaintiff seeks redress in the form of monetary damages charging defendants with negligently issuing tainted blood that was transfused to plaintiff. The relief sought by plaintiff, as outlined by this motion, is to preclude defendants NYBC from offering evidence that obviates NYBC's alleged negligence or striking NYBC's answer and granting plaintiff summary judgment on the issue of NYBC's liability, warranted according to the plaintiff, by the persistent failure of NYBC to comply with prior orders directing NYBC to produce records and documents germain to plaintiff's claim.
Defendant NYBC has cross moved pursuant to CPLR § 8106, CPLR § 8303(a) and 22 N.Y.C.R.R. § 130-1.1, for an order awarding costs to NYBC contending that plaintiff's motion is frivolous and to preclude plaintiff from making further discovery motions without leave of court.
Considering the long and tortured history of the discovery issues which have delayed the prosecution of plaintiff's action, it is in this court's view necessary to once again recite the prior orders issued by three separate judges in a futile attempt to obtain compliance with outstanding discovery. However, before this Court again reiterates the prior history, it is imperative to start with Judge Kaye's admonition to the bar in Kihl v. Pfiffer 94 NY2d 118, 700 NYS2d 87, where the Court affirming the dismissal of plaintiff's action stated:
"If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders . . . as are just,' including dismissal of an action (CLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully."
Judge Kaye emphasized that compliance with disclosure orders "requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully."
It is also worthwhile to repeat, as this court initially stated in its decision dated December 15, 2003, that failure to provide discovery "particularly where the court has issued one or more orders directing compliance, subjects that party to the penalties set forth in CLR § 3126" (see, Helms v. Gangemi, 265 AD2d 203, 696 NYS2d 441; Abreu v. St. Luke's Roosevelt Hospital Center, 247 AD2d 238, 668 NYS2d 365; Langer v. Miller, 281 AD2d 338, 722 NYS2d 515; Wolfson v. Nassau County Medical Center, 141, AD2d 815, 530 NYS2d 27; Zletz v. Wetanson, 67 NY2d 711, 499 NYS2d 933).
The history of the discovery phase of this action starts with the Preliminary Conference Order, dated March 24, 2000, which established the initial time frame for NYBC to respond to plaintiff's disclosure demands, dated March 9, 2000. This order was followed by a "So Ordered Stipulation" on August 14, 2000 directing NYBC to comply with plaintiff's discovery demand.
On October 5, 2000 Justice Victor again issued an order directing NYBC to provide information regarding test results with a warning that unless there is compliance with the courts prior order sanctions may be imposed.
On June 14, 2001 Justice Esposito after entertaining motions by plaintiff and NYBC specifically directed NYBC to comply with prior discovery orders which required NYBC to produce a copy of the contract entered into between NYBC and Our Lady of Mercy Medical Center (OLM) to supply blood products and in addition directed NYBC to produce what plaintiff described as records regarding the "source, screening, testing and evaluation of all blood products, manufactured blood products, IV solutions, packed cells and plasma used in the treatment of the plaintiff." Such records were previously requested by plaintiff in the demand dated March 9, 2000. Justice Esposito's decision and order also made reference to the demand served by plaintiff after the deposition of Donna Strauss, a witness produced by NYBC.
Six months later, in a decision dated December 1, 2001, Justice Esposito again was called upon to entertain further discovery motions made by plaintiff and NYBC. The court acknowledged that the affidavit submitted by Edwin W. Streun identified the three blood units which NYBC supplied to OLM that were in turn transfused to plaintiff. NYBC maintains that it duly performed all required serological testing of the voluntary donations made by various donors which are distributed to hospitals and that the blood units so identified were non reactive for HIV and therefore suitable for transfusion.
Plaintiff then called for the production of numerous records regarding the testing performed by NYBC which included records of the controls utilized and the calibrations or graduations of the instruments utilized for such testing, presumably to determine if such testing was properly performed. Here, plaintiff contended that this material was not provided by NYBC and the court, accordingly, directed such information to be provided to plaintiff.
Approximately ten months later Hon. Gerald Esposito issued a further decision and order (October 31, 2002) precluding both plaintiff and NYBC unless both parties "comply" with the discovery schedule set forth in the court's opinion. In addition, the court directed NYBC to provide "equipment calibrations and maintenance records and records of reagents used." This Order also required NYBC to turn over to plaintiff publications it possessed (as previously directed by the June 14, 2001 Order) 'relating to the evaluation, standard [s] and testing of blood products for communicable diseases.' In addition, the court reminded NYBC that it never complied with the prior order of June 14, 2001 which directed NYBC to provide plaintiff with the contract it had with OLM to supply blood products.
While it is true that the decision dated October 31, 2002 refers to both parties seeming inability to comply with prior disclosure orders, it is nevertheless clear that the next motion made by the plaintiff clearly identified the records or information previously ordered which NYBC failed to turn over to plaintiff. As a result, this Court found (see December 15, 2003 Order), inter alia, that the Streun affidavit which attempted to explain NYBC's failure to turn over its agreement with OLM was inadequate. Manifestly, the court's June 14, 2001 Order directed NYBC to produce the contract. NYBC's response was not only untimely but rejected by this Court as unresponsive. In other words, NYBC's response was not only eighteen (18) months late but unresponsive. This is an inordinate delay without explanation and demonstrates a lack of good faith on the part of NYBC to respond meaningfully.
Turning to plaintiff's current motion the following synopsis outlines the discovery items which plaintiff says were not provided by NYBC:
(a) Unredacted test run results for the following tests allegedly performed by NYBC,
1. Hepatitis B core antigen
2. Hepatitis C
3. P 24 antigen
4. CMV
5. Sickle cell
6. Syphilis
(b) unredacted test run calibrations and controls;
(c) equipment calibrations and maintenance records [with regard to this request plaintiff asserts that NYBC never provided calibration records and although maintenance records were provided by NYBC "there is no correlation between the maintenance records and the tests performed"];
(d) test procedure records;
(e) calibration and reagent certifications and the expiration dates regarding the tests performed regarding the units administered to plaintiff;
(f) protocols used with reference to tests performed;
(g) the contract in effect in 1995 between NYBC and OLM concerning the blood units supplied by NYBC.
Plaintiff also argues that the information outlined above should also be produced with regard to subsequent re-testing performed by NYBC of the original donors.
NYBC's opposition is supported by attorney's affirmation, affidavit of Edwin Streun, (previously submitted in opposition to plaintiff's prior motion), the decision rendered by Mr. Justice Sklar, approximately 179 pages of test results, each page identified and numerically stamped NYBC JOHNS 001-010, 065-147, 176-179, a second affidavit by Edwin Streun dated January 9, 2004, the affidavit of Donna Strauss dated March 20, 2003, laboratory reports (4) dated March and April 1995, batch tests numbered by NYBC "JOHN" 0800 through 0843, 0844 through 0850 and the affidavit of Dr. Jay Brooks Jackson dated February 14, 2001.
Several months after submission of both the motion and cross motion defendant's attorney without leave of the court delivered to this Court a second set of documents, Bates — stamped NYBC. JOHNS 858-1206, together with the affidavit of Donna Strauss, which documents counsel stated in his cover letter, were produced at the request made by plaintiff's counsel upon oral argument.
Subsequently, plaintiff's attorney submitted correspondence with a Sur Reply affidavit as a response to the data given to the Court long after the motions were submitted.
NYBC's attorney argues that plaintiff's persistent request for p24 antigen testing demonstrates that plaintiff's motion is frivolous. In support of this argument NYBC points to the Streun affidavit dated January 9, 2004 and Jackson's affidavit who avers that NYBC did not perform p24 antigen testing of the three units of blood products plaintiff received during a transfusion in 1995 and that such testing was not required for donor screening until March 1996. Plaintiff challenges this posture by asserting that Streun's assertions are inconsistent with her pre-trial testimony. Here plaintiff does not provide court with a copy of Streun's deposition testimony supporting this accusation. However, the affidavit submitted by Donna Strauss, NYBC's Senior Director of Manufacturing and Laboratory Operations dated March 20, 2003, is offered as a credible explanation regarding her prior testimony which indicated that p24 antigen testing was performed in 1995.
Her affidavit states:
"4.The question was asked in the present tense and I answered in the present tense. In other words, I was testifying about what tests would routinely be performed on blood tested in October 2000.
5.NYBC began p24 antigen testing on blood on March 14, 1996. Therefore, there are no p24 antigen tests for the units at issue or the one subsequent that were all tested by NYBC in 1995."
Consequently, this explanation, although unnecessarily delayed, obviously creates a credibility issue that cannot be resolved on the papers submitted.
The next argument raised by plaintiff regarding whether NYBC sufficiently complied with prior discovery orders centers on plaintiff's request for all available data on the test results performed by NYBC for other communicable diseases. For example, plaintiff wants NYBC to produce unredacted copies of tests performed for "Hepatitus, M V, sickle cell and syphilis". Plaintiff's need for this information is outlined in the affidavit submitted by plaintiff's forensic medical expert, Dr. Schwartz who opines that a positive test result for any of the transmittable diseases identified by plaintiff's counsel would raise a high probability of a positive finding for a communicable disease such as "HIV" or explain the occurrence of a false negative result. Plaintiff's forensic expert also theorizes that a negative result may occur if an insufficient amount of contaminant was present when the particular blood product was tested. This portion of the opinion advanced by plaintiff's expert as the basis for compelling NYBC to provide plaintiff with the results of all the "transfusion transmissible disease tests performed" would if carried to its logical conclusion compromise the validity of any test result that was negative. A fortiori, it is unclear whether plaintiff's expert opinion in the first instance meets the threshold standard for admissibility of novel scientific evidence (See Frye v. United States 293 F 1013).
Moreover, it is not entirely clear whether the data requested by plaintiff could identify the amount of contaminant present when tests were performed and even assuming this circumstance could be demonstrated plaintiff's expert do not indicate the quantity necessary to establish the validity of such test has been scientifically established.
The Frye rule requires the court to determine whether there is a consensus in the scientific community as to the reliability of the out-of-court material. (see People v. Wesley 83 NY2d 417, 422, 633 NE2d 451, 611 NYS2d 97). Nevertheless, this court will not at this stage of this lawsuit rule on the admissibility of the opinion offered by plaintiff's expert. Moreover, this Court's view of the opinion presented should not be construed as a denial of plaintiff's request for records regarding the controls employed by NYBC when the tests were performed. Consequently, while this court is not convinced as to the relevancy of information for tests for viruses and diseases other than HIV it appears that this information was provided. According to the affidavit of Donna Strauss, dated November 9, 2004 and the exhibits annexed to her affidavit, NYBC submitted the the complete testing packets performed on the blood units issued to the plaintiff. In addition, NYBC has annexed to its submission the tests performed on the units other than HIV. Thus, this issue regarding NYBC's compliance is rendered moot since the data requested by plaintiff has been provided.
Plaintiff's request for calibration and maintenance records for the period commencing January 1995 through June 1995 is granted to the extent only directing NYBC to provide such information, if such information has not already been provided for the two (2) month period proceeding May 26, 1995. The affidavit of Donna Strauss dated November 9, 2004 states that daily calibration and maintenance records for April and October 1995 for the equipment on which units were tested are annexed to her affidavit.
With respect to NYBC's failure to turn over the contract between NYBC and OLM that was admittedly in effect in 1995, the affidavit submitted by Edwin Streun and sworn to on January 9, 2004 acknowledges plaintiff's initial demand for this document was made "on or about October 25, 2000" NYBC's initial response did not deny possession of this contract instead NYBC objected to the production of its agreement with OLM.
The Streun affidavit then also admits undertaking a search for this contract after NYBC was served with the October 31, 2002 order which directed NYBC to produce this agreement. No explanation is made by Streun or by NYBC's attorney as to the basis for NYBC's initial objection to produce the contract with OLM and no explanation is presented regarding NYBC's failure to search for the OLM agreement until two and a half years after plaintiff's demand for this item. NYBC had to know that its agreement with OLM was relevant to the claim asserted by plaintiff.
Moreover, Streun's affidavit is again vague in that he does not identify precisely when the search for the OLM contract commenced, who undertook the search, where was the search conducted or what efforts were made to ensure and exhaustive search for the contract, nor did NYBC identify whether it had a retention policy in effect when the search was conducted. Therefore, the statement made by Streun that a diligent search was conducted is self serving. It is also evident that Streun's statement that NYBC "does not have any information whether the contract was destroyed or lost" is a oblique attempt by NYBC to extricate itself from potential punitive action by this Court. Consequently, a further deposition of Streun is required regarding when he learned that the contract was missing and the efforts undertaken to locate it.
Plaintiff's Sur Reply affidavit raises several additional discovery issues which again stresses non compliance with prior orders. For example, Plaintiff's counsel acknowledges the submission of "product inserts for CMV, Hep C, Hep B, Syphillis, HTLV 1, Hep core" but argues that the NYBC has not disclosed whether the "inserts" provided are the inserts for the tests actually performed on the units administered to the plaintiff. Moreover, plaintiff also claims that Strauss' deposition testimony conflicts with her affidavit which states that the units were never tested for "Hep A, CMV or sickle cell anemia." Whether such contradiction exists is not be discernable on the record before this Court. Additionally, plaintiff claims that NYBC has not produced the maintenance records for all the laboratory equipment and that there are references in the records provided identifying equipment as not used or not working.
It is evident, that the conflicting arguments as to whether NYBC has complied with the prior discovery orders cannot be resolved by the mere exchange of records in view of charges and counter charges exchanged by counsel.
Therefore, whether NYBC has complied with prior orders requires NYBC to appear at a further deposition that shall continue day to day until the records produced by NYBC are first properly identified and references set forth in each record are identified by NYBC, and also whether such records were produced in accordance with prior orders shall be demonstrated on the record. It is apparent to this Court that much of the controversy regarding whether NYBC has complied could have been avoided if NYBC had timely and meaningfully responded to the prior disclosure orders. Therefore, NYBC will appear for a continuation of its examination before trial, at the Supreme Court, room 118 at 9:30 a.m. on July 11, 2005, by Donna Strauss. In addition, upon completion of Strauss's deposition Edwin Streun shall appear for a continuation of his deposition in accordance with the issue identified in this opinion. Both plaintiff's motion and NYBC's cross motion are held in abeyance pending the completion of NYBC's deposition.
This constitutes the decision and order of this Court.