Opinion
# 2015-049-031 Claim No. 123208 Motion No. M-86624
05-20-2015
VICTOR H. BARLETTA v. THE STATE OF NEW YORK
Sacks and Sacks, LLP By: Monty Doman, Esq. Cartafalsa, Slattery, Turpin & Lenoff By: Robert H. Fischler, Esq.
Synopsis
Case information
| UID: | 2015-049-031 |
| Claimant(s): | VICTOR H. BARLETTA |
| Claimant short name: | BARLETTA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123208 |
| Motion number(s): | M-86624 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Sacks and Sacks, LLP By: Monty Doman, Esq. |
| Defendant's attorney: | Cartafalsa, Slattery, Turpin & Lenoff By: Robert H. Fischler, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | May 20, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this case, claimant Victor Barletta asserts causes of action under Labor Law §§ 240(1) and 241(6) to recover for knee injuries he allegedly suffered when a scaffold collapsed at a construction project at the Hamilton Avenue Bridge in the Bronx. Defendant State of New York has conceded liability, and a trial on damages is scheduled to commence on June 15, 2015. In the present motion, claimant seeks an order precluding defendant from introducing at that trial the testimony of its vocational rehabilitation expert Joseph Pessalano. Claimant's application rests on two legal bases: Defendant failed to describe Pessalano's testimony in "reasonable detail" as required under CPLR 3101, and did not comply with two court orders regarding such disclosure. These assertions arise out of an extensive back-and-forth regarding Pessalano, which must be recounted in some detail before the merits of claimant's arguments may be addressed.
Claimant first requested expert disclosure from defendant in a Notice for Discovery and Inspection dated December 6, 2013, which sought, inter alia, "the subject matter 'in reasonable detail' of all expert testimony, including a summary of the facts upon which the expert relies, the "source or sources of the expert's knowledge," and all source material (Aff. in Supp. Ex. 1 ¶ 21). Defendant responded to this demand with a Notice of Vocational Exchange and Expert Witness dated October 23, 2014, which appended a copy of Pessalano's report (Aff. in Supp. Ex. 2). That report listed various materials the expert had reviewed, including certain of claimant's medical records and his bill of particulars. It also cited sources reviewed in relation to claimant's "vocational possibilities": "the U.S. Department of Labor information, the Occupational Outlook Handbook, the Dictionary of Occupational Titles, various State Department of Labor publications and other local job market data" (id., Ex. A at 1-2). The report analyzes Barletta's training, experience and physical circumstances, and ultimately provides a list of "representative alternative job areas [i.e., titles]" which Pessalano "deemed appropriate" for claimant, along with an "average New York City salary" for each (id. at 6).
The papers do not address the reasons for the delay between the initial discovery demand and the submission of the expert disclosure, nor does claimant assert in his present motion that such delay was improper, or serves as a basis for preclusion.
Claimant notes that the report does not state the basis for these salary estimates, and "failed to list the DOT [Dictionary of Occupational Titles] Codes of the occupations he claimed that Mr. Barletta can now perform" (Aff. in Supp. ¶ 4). On November 4, 2014, claimant served defendant with a demand for the materials Pessalano relied upon in creating his report (see id. Ex. 3). Defendant responded by producing the relevant medical records, as well as a "list of Department of Labor publications" consulted by Pessalano (Aff. in Supp. Ex. 4).
Neither party's submission, nor the attachments thereto, provide any information on the meaning of the term "DOT Codes" or its significance. Apparently, it refers to the codes listed in the "Dictionary of Occupational Titles," a volume once published by the United States Department of Labor that classifies various occupations (see http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTMESS.HTM ).
Barletta's counsel raised to the Court his concerns about deficiencies in this response, and in particular in regard to its disclosures regarding how defendant's expert determined claimant's job prospects. A conference call was conducted in response, and on March 6, 2015 I issued an order directing defendant to produce: (1) the "specific DOT codes for the occupations listed in the report of the defendant's vocational expert; and (2) "[t]he methodology used to estimate average New York City salaries for such occupations, and any supporting documents" (Aff. in Supp. Ex. 5).
Defendant responded to the Order with an e-mail to claimant's counsel on March 19, attaching a list of DOT codes "as to the alternate employment fields listed in his report" (id. Ex. 6). Further, the e-mail stated: "As to the salary range, [Pessalano] advised me that these are the mean numbers from the Bureau of Labor Statistics May 2014 publication for the NYC/White Plans area as to each title" (id.).
Claimant raises several issues with the latter assertion. He avers that the 2014 statistics had not yet been released at the time of the e-mail, and therefore defendant's expert used those from May 2013 (Aff. in Supp. ¶ 4). Further, he states that the document lists 725 occupations (referred to by Standard Occupational Classification, or "SOC" Codes), that do not correspond to the DOT Codes listed in the expert report. In other words, according to claimant defendant's report uses one set of classifications (the DOT Codes) to classify the jobs claimant can perform, and then another set of classifications (the SOC Codes) in calculating the average salary for each, without explaining the relation between the two.
Once again, claimant sought the Court's intervention, and after a conference call on the matter, I issued an order on March 24, 2015 directing claimant to "provide claimant with a supplemental writing by its vocational expert setting forth the methodology and materials used to estimate average New York City salaries for occupations listed in his report" (id. Ex. 8). Defendant produced a letter from Pessalano, in which he reiterated that the salary calculations were obtained from BLS statistics for the New York metropolitan area, set forth in the May 2013 publication as amended by updates through April 1, 2014 (id. Ex. 9).
Claimant wrote defendant's counsel, asserting that claimant had failed to comply fully with the Court's March 24 Order, since Pessalano had not set forth the methodology and materials used to produce his estimate of the New York City average salaries for various occupational titles, again stating that the SOC and DOT codes do not correspond (id. Ex. 10). Claimant therefore stated that Pessalano must indicate how the titles in the two compendia correspond.
Pessalano responded by letter stating: (1) the DOT Codes are not used in the BLS statistics for the New York City area, and thus he used SOC codes; (2) he attempted to provide DOT codes when one corresponded with the SOC code; and (3) there is no standard in the vocational rehabilitation field as to which code is used (id. Ex. 11).
This prompted one final letter from claimant, noting that Pessalano's prior response did not disclose which occupations lacked a DOT code. Pessalano closed out the parties' lengthy correspondence with a final letter dated April 6, 2015. He said that he had provided claimant's counsel "with DOT Codes that correspond to many of the occupational titles outlined in [his] report as well as others that are of a specific SOC category," although he did not give any detail in this regard (id. Ex. 12). He also noted that the SOC and DOT database are distinct and do not correspond. He updated the average New York City salaries to reflect a March 25, 2015 BLS circular. Finally, he summarized his evaluation of Mr. Barletta, and the reason Pessalano concluded that he could perform the work of the various occupational titles listed in his report (id.).
After claimant raised with the Court his concern that defendant had not fully complied with the Court's order, he was given leave to bring the present motion. He argues that the State has failed to provide Barletta with the basis for its expert's testimony, and to comply with the Court's two orders on the subject. In the motion, claimant's reiterates his central concern that the claimant has listed the DOT codes for the professions that he opines Barletta can perform, but has taken the salary data from the SOC codes, and has failed to perform a cross-walk between the two, such that it is impossible to divine which SOC codes were used to determine the average salaries for the DOT titles. Claimant contends that this violates the CPLR 3101(d) mandate that the a party disclose the subject matter of an expert report in "reasonable detail," and represented an "intentional and contumacious" violation of the Court's orders as well (see Aff. in Supp. at 5, 8). Claimant cited no caselaw in support of his argument.
Defendant submits an affirmation in opposition, in which it contends that Pessalano's initial report fully complied with the mandates of CPLR 3101(d), but defendant nonetheless provided significant additional information to claimant. Claimant maintains that the subject of the DOT and SOC codes is appropriate fodder for cross-examination, if claimant is dissatisfied with the response so far.
Discussion
CPLR 3101(d) provides in relevant part:
"Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion."
As noted, Barletta claims that defendant has failed to disclose the subject matter of Pessalano's testimony in "reasonable detail," because it has not revealed the methodology underlying the calculation of New York City salaries for the titles that defendant's expert believes Pessalano can perform.
The decision as to whether or not to preclude the testimony of an expert witness for inadequate compliance with the section 3101 disclosure provisions is within the Court's discretion (McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999] [citations omitted]). The caselaw provides no hard and fast rules as to when such testimony must be barred, but it does set forth some general guideposts. Preclusion has been found appropriate where the party seeking to introduce the expert's testimony has not revealed the substance of the testimony at all (see e.g. Hubbard v Platzer, 260 AD2d 605 [2d Dept 1999]), or the disclosure is "so general and nonspecific that the [opposing party] has not been enlightened to any appreciable degree about the content of the expert's anticipated testimony" (Chapman v State of New York, 189 AD2d 1075, 1075 [3d Dept 1993] [citation omitted]). In contrast, applications for preclusion have been rejected when "the expert witness [disclosure] statement was not so inadequate or inconsistent with the expert's testimony as to have been misleading or to have resulted in prejudice or surprise" (Rabonowitz v Elimian, 55 AD3d 813, 814 [2d Dept 2008]), and where "the noncompliance was not calculated to put plaintiff at an unfair disadvantage" (Putchlawski v Diaz, 192 AD2d 444, 445 [1st Dept 1993]).
Applying these standards to this case, I do not find preclusion to be an appropriate remedy. Defendant has presented extensive disclosure under CPLR 3101. It provided a list of the jobs its expert deemed available to Barletta, explained in detail the manner in which such titles were selected, listed the DOT codes for each, and cited the source for the salary information.
As noted, claimant argues that the categories in the BLS report relied upon by Pessalano do not correspond to the titles in the report, and defendant's expert has not, in response to claimant's inquiries, disclosed precisely which SOC codes were used to estimate the salaries for each title. And it is true that Pessalano's answers to claimant's follow-up letters were generally not responsive on this point. I do not, however, find that these gaps require preclusion of the report, either for violation of CPLR 3101 or of the Court's orders.
In particular, it is unclear why (as claimant maintains), defendant's expert will be able to "tak[e] claimant's counsel by surprise and not afford[] him an opportunity to analyze each SOC Code together with each of the . . . corresponding occupations for purposes of cross examination . . . ." (Aff. in Supp. at 8). Indeed, the record on the present motion belies claimant's argument that he will not be able to adequately cross-examine defendant's expert. To the contrary, to the extent claimant is correct in his contention that there is a divergence between the titles Pessalano lists and the data source used to assign average salaries for each would seem to provide fodder for a challenge to the expert's testimony. On the stand, Pessalano will have the opportunity to explain how each of the specific salaries he has cited can be found in the data sets he cites, while any gaps between such testimony and the BLS publications can be explored on cross-examination. To the extent Pessalano cannot tie the data from the SOC reports to the salaries calculated for the DOT classifications, claimant can argue that this provides a basis for discounting his conclusions. What claimant has failed to show, however, is that he has been so deprived of adequate notice of the substance of claimant's testimony, or the essence of his methodology, that preclusion would be the appropriate remedy.
CPLR 3101 does not require that an expert reveal every jit and jot of his testimony, nor must he footnote every data point with direct reference to a particular source and page number. Rather, the purpose of such disclosure is to apprise the adversary of the subject matter he will address, the conclusions he will draw, and the sources upon which he will rely. Despite the gaps in disclosure described above, defendant's expert has adequately met these standards in this case.
Nor do I find that claimant has disregarded the Court orders in a manner that compels preclusion. That argument is governed by CPLR 3126, which provides that "[i]f any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just," including "an order prohibiting the disobedient party . . . from using certain witnesses."
Here, there were two court orders concerning defendant's expert disclosure. First, defendant was directed to produce "[t]he specific DOT codes for the occupations listed in the report of the defendant's vocational expert," and "[t]he methodology used to estimate average New York City salaries for such occupations." Second, defendant was required to provide a "supplemental writing" by the vocational expert setting forth both the "methodology and materials" used to estimate such salaries.
For the same reasons as set forth above in regard to CPLR 3101, defendant adequately complied with these orders. The State provided the relevant DOT codes as directed (see Aff. in Supp. Ex. 6). Moreover, Pessalano cited the specific publication from which the salaries are derived (see id. Ex. 13). At trial, claimant will have the opportunity to show that the estimates are not supported by the data he alleges to be there source. For present purposes, I cannot find that defendant has not complied with the Court's directives, much less that it has "refused" to comply in the kind of "wilful" manner required before CPLR 3126 will apply.
In light of the foregoing, claimant's motion no. M-86624 is denied. Claimant shall file his note of issue on or before June 9, 2015. A separate pre-trial order shall issue following the filing of this opinion.
May 20, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, Affirmation of Good Faith and annexed Exhibits.
2. Defendant's Affirmation in Opposition and annexed Exhibits.