Opinion
March 27, 1997
Michael Joseph J. Barnas, New York City, for plaintiffs.
Wallace D. Gossett, Brooklyn, for defendant.
DECISION/ORDER
This is an action for damages for personal injuries allegedly sustained due to a falling wood slab from a passing subway train. Pursuant to CPLR § 3126, plaintiffs move, inter alia, to strike defendant's answer for failing to produce a witness for examination before trial in accordance with a preliminary conference order dated February 2, 1995. Defendant has cross-moved to compel plaintiffs to provide various authorizations for medical records and formal responses to its discovery demands.
This motion and cross-motion present three issues for disposition: (1) whether the circumstances surrounding the defendant's failure to appear at a court-ordered deposition warrant the striking of defendant's answer; (2) whether plaintiffs were under a continuing obligation, pursuant to CPLR § 3101(h), to amend/supplement their responses to defendant's prior discovery demand for medical and hospital records; and (3) whether it is proper for a plaintiff in a personal injury action to shield records from her treating physician based on a claim that the material was prepared for litigation. The second issue is of apparent first impression.
Striking the Answer
In opposition to plaintiffs' motion, defendant's attorney has failed to supply the court with an excuse for its client's failure to appear at the previously court ordered examination before trial, scheduled to be held on May 4, 1995. Defendant also does not dispute plaintiffs' contention raised in the moving papers that defendant failed to appear at the rescheduled deposition on August 10, 1995. However, in its opposition defendant does indicate a current willingness to comply.
Striking the answer of a party is an "extreme and drastic penalty" warranted only where the conduct is "clearly deliberate or contumacious". Henry Rosenfeld, Inc. v. Bower and Gardner, 161 A.D.2d 374, 555 N.Y.S.2d 320 (1st Dept 1990). Even where there was an inexcusable and repeated failure to appear for a court ordered deposition, striking the answer for failure to appear for a deposition has been held to be too drastic a remedy. Davis v. City of New York, 205 A.D.2d 442, 613 N.Y.S.2d 898 (1st Dept 1994); see also In re Hunter Mechanical Corp. v. Salkind, NYLJ March 24, 1997, at 26 col 3 (App.Div. 1st Dept), 1997 WL 125997. Nevertheless, defendant's failure to follow the court's preliminary conference order directing that the deposition be held cannot be ignored by this court. Although the court is not satisfied that defendant and its counsel's actions in failing to comply with the preliminary conference order dated February 2, 1995 were so willful and contumacious as to warrant the extreme penalty of striking defendant's answer, they do warrant the imposition of reasonable attorneys fees to compensate plaintiffs for the additional time and expense incurred in seeking the previously ordered relief. See Oppenheim v. Macnow, 103 A.D.2d 687, 477 N.Y.S.2d 351 (1st Dept 1984); Heyward v. Benyarko, 82 A.D.2d 751, 440 N.Y.S.2d 21 (1st Dept 1981). Plaintiffs' request for attorneys fees is therefore granted. See Garfield v. Done Fashion, Inc., 227 A.D.2d 128, 641 N.Y.S.2d 301 (1st Dept 1996); Marotta v. Rood, 65 A.D.2d 807, 410 N.Y.S.2d 368 (2nd Dept 1978). Furthermore, a conditional order striking the answer is warranted as set forth below. See Garfield v. Done Fashion, Inc., 641 N.Y.S.2d at 302.
Accordingly, plaintiffs' motion to strike defendant's answer is granted to the extent it is ORDERED that defendant appear and submit for examination before trial by producing a witness or witnesses with knowledge of railroad operations, including operations of the No. 2, White Plains Road train at the time and site of the alleged accident, at a Special Term, Part II, of this Courthouse (Room 118M) on Wednesday, June 4, 1997 at 10:00 A.M., or at another date and location agreed to pursunat to written stipulation between the parties. The party to be examined shall produce all relevant books, records, documents and reports for use in connection with such examination; it is further
ORDERED that defendant pay plaintiffs $500.00 towards their attorney's fees in accordance with CPLR § 3126, within 45 days of service of a copy of this order; it is further
ORDERED that plaintiffs' time to file a notice of trial is extended through December 31, 1997.
Additionally, it appearing that defendant has failed to comply with the preliminary conference order dated February 2, 1995, upon defendant's failure to comply as ordered above, it is
ORDERED that defendant's answer is stricken in accordance with CPLR § 3126.
Additional Medical Authorizations/Records
Defendant cross-moves to compel plaintiffs to provide various medical authorizations to obtain medical records and formal responses to its discovery demands dated January 25, 1994. It is undisputed that defendant previously served upon plaintiffs a "Demand for Medical and Hospital Records" dated January 25, 1994, which includes a request for authorizations. It is also undisputed that prior to the deposition of plaintiff Michelle Dehaney, plaintiffs provided defendant with several authorizations to obtain various medical records. According to defendant, however, it is entitled to further medical records and authorizations because plaintiff Michelle Dehaney made references to Dr. Tarlin and Dr. Michael at her deposition for which authorizations were not previously provided.
Plaintiffs argue that all previously demanded discovery has been provided. Additionally, plaintiffs maintain that, as to defendant's request that this court order plaintiffs to provide original authorizations for Dr. Tarlin and Dr. Michael, defendant must serve a new demand for these additional authorizations. Plaintiffs argument that "[s]ince defendant has never requested by written notice, request or demand authorizations for new doctors, plaintiffs are not in default of any such production, there is no discovery due from them that is outstanding and this cross-motion is without foundation and groundless", is without merit.
This court holds that, pursuant to CPLR § 3101(h), plaintiffs are under a continuing obligation to amend/supplement their responses to defendant's prior discovery demands and that a new demand for these authorizations need not have been served by defendant. Although CPLR § 3101(h) is a relatively new section and there is little case law, it is clear on its face. CPLR § 3101(h) requires that a party amend/supplement its response to a request for disclosure promptly upon obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made is, no longer correct and complete, and that the circumstances are such that a failure to amend or supplement the response would be materially misleading. CPLR § 3101(h), effective January 1, 1994, was modeled after § 26(e) of the Federal Rules of Civil Procedure which explicitly requires that a party, under certain circumstances, promptly supplement or amend responses to disclosure requests. See 2 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3101.61;
Simply put, CPLR § 3101(h) imposes a "duty", and requires all parties to "assume the initiative" and correct discovery responses to disclosure requests under certain specified circumstances. See 2 Weinstein-Korn-Miller at 31-260. As plaintiffs concede that there are additional treating doctors, it would be materially misleading not to amend or supplement the previous discovery response and provide additional authorizations for these doctors' medical records. Although CPLR § 3101(h) does not specifically provide for motion practice, where one party knows that the opposing side has information but has not supplied it, the party seeking the information may move the court to force an amendment or supplementary response. Green v. S.I. Univ. Hospital., 161 Misc.2d 976, 615 N.Y.S.2d 856, affd 221 A.D.2d 416, 634 N.Y.S.2d 386 (2nd Dept 1995). Accordingly, defendant need not serve a new demand.
Plaintiffs' further opposition to providing the additional authorizations to obtain medical records, based on a claim that it is material prepared for litigation, is also misplaced. The issue of medical reports from treating physicians was dealt with by the Court of Appeals in Hoenig v. Westphal, 52 N.Y.2d 605 (1981). As stated by the Court of Appeals:
"CPLR 3101 defines the scope of disclosure and provides that '[t]here be full disclosure of all evidence material and necessary in the prosecution or defense of an action' * * * . and has been liberally construed to require disclosure where the matter sought will 'assist preparation for trial by sharpening the issues and reducing delay and prolixity', * * * restricted only by a test for materiality 'of usefulness and reason' * * *
Plaintiffs offer no reason to shield these doctors' reports from discovery . . . The procedures advance the truth-determining function of trial and speedy disposition of cases. With the advent of liberal disclosure rules, there was an abandonment of the notion that the results of trial would be based on tactics or surprise; the outcome is to be based on the facts as developed through meaningful preparation prior to trial. Plaintiffs have placed their physical condition in controversy and may not insulate from disclosure material necessary to the defense concerning that condition."
52 N.Y.2d at 608 (citations omitted, emphasis supplied). Similarly, in the case at bar, plaintiff Michelle Dehaney has placed her physical condition in controversy and therefore may not insulate from disclosure the material sought by defendant.
Additionally, § 208.13 of the New York City Civil Court Rules, titled "Exchange of medical reports in personal injury and wrongful death actions" and which is applicable where there is a request for a physical examination, provides in pertinent part in paragraph (g) that:
It is undisputed that a physical examination of plaintiff Michelle Dehaney was held.
"If any party desires at trial to offer the testimony of additional treating or examining physicians, other than whose medical reports have been previously exchanged, the medical reports of such physicians, complying with the requirements of paragraph (b)(1) of this section shall be served upon all parties at least 30 days before trial."
Furthermore, § 208.13(h) provides that:
"Unless an order to the contrary is made . . . the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hospital records and all other records . . . not made available pursuant to this rule, and no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining physicians whose medical reports have not been served as provided by this rule."
Rather than engaging in "trial by ambush", a plaintiff has an obligation to be forthcoming as to subsequent/additional medical providers. Unfortunately, all too often parties "discover" new medical providers on the eve of trial. See eg., Daguaro v. Bratke, 145 Misc.2d 904, 548 N.Y.S.2d 418 (Civil Ct, Queens County 1989). An earlier exchange may assist trial preparation and settlement negotiations. Accordingly, defendant's cross-motion to compel plaintiffs to comply with all outstanding discovery is granted to the extent it is
ORDERED that, within 30 days of service of this order, plaintiffs shall provide defendant with authorizations for Dr. Tarlin, Dr. Michael and any other medical providers who were seen by plaintiff Michelle Dehaney, after the date of deposition, for diagnosis and/or treatment in connection with the injuries claimed in the within action. Plaintiffs shall also provide authorizations to obtain any and all reports and tests concerning plaintiff Michelle Dehaney's diagnosis and treatment, which were not previously provided.
As to defendant's other discovery requests, plaintiffs have supplied proof in their opposition to the cross-motion, unrefuted by defendant, that the requested information was previously provided. Accordingly, defendant's additional requested relief is denied.