Opinion
Index No. 160918/2018
10-18-2024
Wilson Coakley, JAMES GLOVER, Plaintiffs, v. New York City Transit Authority, METROPOLITAN TRANSPORTATION AUTHORITY, ABDUL B. ASAD, JENNIFER J. MICHAELS, Defendants.
Romina Tominovic, Esq. The Law Offices of Michael S. Lamonsoff, PLLC. Attorneys for Plaintiff Philip W. Coleman, Esq. Law Office of Philip W. Coleman, LLC Attorneys for Defendant MTA Richard A. Reinstein, Esq. Cheven, Keely, and Hatzis Attorneys for Defendant Jennifer J. Michaels
Unpublished Opinion
Romina Tominovic, Esq. The Law Offices of Michael S. Lamonsoff, PLLC. Attorneys for Plaintiff
Philip W. Coleman, Esq. Law Office of Philip W. Coleman, LLC Attorneys for Defendant MTA
Richard A. Reinstein, Esq. Cheven, Keely, and Hatzis Attorneys for Defendant Jennifer J. Michaels
JAMES G. CLYNES, J.S.C.
Upon the foregoing documents, the motion by Plaintiff James Glover to preclude Defendants from cross-examining Plaintiff Glover's treating orthopedic surgeon, Steven Touliopoulos, MD as well as anyone affiliated with him; including Thomas Kolb, MD and the doctors from Lenox Hill Radiology concerning allegations contained in a recently filed lawsuit by a re-insurance company and an insurance agency, and from making any reference to the lawsuit is granted.
Plaintiffs seek recovery for injuries allegedly sustained as a result of a March 20, 2018 motor vehicle accident between a vehicle owned and operated by Defendant Michaels within which Plaintiffs were passengers, and a vehicle owned and operated by Defendants New York City Transit Authority, Metropolitan Transportation Authority, and Asad. As a result of the subject accident, Plaintiff Glover treated with orthopedic surgeon, Steven Touliopoulos, MD for injuries to his right shoulder. In a separate federal lawsuit filed on March 1, 2024, Roosevelt Road Re, LTD, and Tradesman Program Managers, LLC allege that Dr. Touliopoulos and other healthcare providers, including Dr. Thomas Kolb, and Lenox Hill Radiology, engaged in fraudulent practices relating to unnecessary treatments. However, these claims have not been heard before any court, the lawsuit has not been fully adjudicated, and as such, the veracity of these allegations has not been determined. In light of this, Plaintiff moves to preclude any reference to the federal lawsuit and contends that it is irrelevant to the issues in this case and that its introduction would unfairly prejudice the jury by distracting them from the central issues of liability and damages. The Court further notes that the subject federal complaint was discontinued with prejudice as to Dr. Touliopoulos
Collateral matters, particularly those concerning unproven allegations, are inadmissible when their sole purpose is to impeach the credibility of witnesses (Mazella v Beals, 27 N.Y.3d 694, 711 [2016]; Badr v Hogan, 75 N.Y.2d 629, 635 [1990]). The Court of Appeals in Badr v Hogan found that evidence of collateral matters relevant only to credibility must be excluded to prevent prejudice. In Mazella v Beals, the Court of Appeals ruled that it was an abuse of discretion for a trial court to admit evidence of a consent order from an unrelated disciplinary proceeding, determining that the evidence was collateral and prejudicial. In McGill v Whitney Museum of Am. Art, 2024 NY Slip Op 51271[U] [Sup Ct, NY County 2024], the trial court granted Plaintiff's motion to preclude Defendants from cross-examining medical professionals affiliated with Lenox Hill Radiology concerning the unproven allegations in the same federal lawsuit at issue here. In Olvera v. New York City Transit Authority, et al. (New York Supreme Court Kings County Index No 512829/2015), where Plaintiff made a motion in limine to preclude Defendants from using the pending federal lawsuit against some of the noticed expert physicians for impeachment purposes, in which the Defendants in the federal lawsuit are being sued for, among other things, violation of 18 USC 1962 Racketeer Influenced and Corporate Organizations (RICO) Act, the trial court held that in the absence of a finding, conviction, or determination by any administrative or judicial body of any impropriety by Defendants in the federal lawsuit, the lawsuit itself cannot be used for impeachment purposes, since it does not constitute a bad act. It is well settled that it is improper to use unrelated bad acts as a basis for impeaching a witness' credibility unless those acts have been proven and have a direct bearing on the issues being litigated.
The allegations of misconduct at issue here are unproven and have no direct bearing on any issue in this case other than credibility. The lawsuit is irrelevant to the issues being tried here. The matter is collateral and, under the settled rule, cannot not be pursued by the Defendants. Further, the fact that a lawsuit has been filed against the doctors and others, is not probative of the issues in the subject matter, namely the liability of Defendants and the extent of Plaintiffs' injuries. The federal lawsuit that previously involved Dr. Touliopoulos has no relevance to these issues and its introduction would unfairly bias the jury against Plaintiff. Defendants lack a good faith basis to refer to the allegations within the federal lawsuit, as they have failed to demonstrate that the allegations are significantly relevant to the present matter and have not demonstrated that the probative value would outweigh potential prejudice to Plaintiff.
The Court further notes that all of the treatments were approved by the New York State workers' compensation board. As pointed out in McGill v Whitney Museum of Am. Art, within the workers' compensation system, multiple medical professionals, including those hired by insurance carriers, had access to Plaintiff's medical records and films (Id. at 7). The federal lawsuit ignores this context, is speculative, and should not serve as the basis for questioning Dr. Touliopoulos and his colleagues about his care of Plaintiff.
Introducing the federal lawsuit would present a significant risk of undue prejudice, as it could lead the jury to assume that due to Dr. Touliopoulos' previous involvement in an unrelated fraud case, with still unproven allegations, he must be guilty in this case. Such reasoning is precisely what the collateral evidence rule seeks to prevent, as it would unfairly skew the jury's perception of the Plaintiff based on irrelevant and speculative claims. Accordingly, it is
ORDERED that the motion by Plaintiff James Glover to preclude Defendants from cross-examining Plaintiff Glover's treating orthopedic surgeon, Steven Touliopoulos, MD as well as anyone affiliated with him; including Thomas Kolb, MD and the doctors from Lenox Hill Radiology concerning allegations contained in a recently filed lawsuit by a re-insurance company and an insurance agency, and from making any reference to the lawsuit is granted; and it is further
ORDERED that the parties are directed to refrain from reference to the federal lawsuit during the trial; and it is further
ORDERED that Defendants may, however, cross-examine these witnesses about the contents of their reports, the care that they rendered, or examinations they prepared in conjunction with this case.
This constitutes the Decision and Order of the Court.