Opinion
Index No. EF2020-68403
12-20-2022
De Caro & Kaplen, LLP, New York City (Michael V. Kaplen, of counsel), for plaintiff. Burke, Scolamiero & Hurd LLP, Albany, (Steven V. DeBraccio, of counsel), for defendants.
Unpublished Opinion
De Caro & Kaplen, LLP, New York City (Michael V. Kaplen, of counsel), for plaintiff.
Burke, Scolamiero & Hurd LLP, Albany, (Steven V. DeBraccio, of counsel), for defendants.
Martin D. Auffredou, J.
Motion by defendants for a protective order precluding plaintiff from having an observer present for her neuropsychological independent medical exam (IME) and obtaining the IME neuropsychologist's raw testing data in discovery.
The facts of this case are more fully set forth in this court's decision and order dated November 24, 2021. Such order granted plaintiff partial summary judgment on the issue of defendants' liability for injuries that she sustained when her vehicle was rear-ended by a dump truck that was owned by defendant Bruce Stevenson, individually and doing business as Walt Stevenson Excavation, and operated by defendant Edward H. Akins in the course and scope of his employment with Walt Stevenson Excavation. Plaintiff's injuries are alleged to include traumatic brain injuries, with the attendant loss of certain cognitive and occupational capabilities.
This motion comes before the court to resolve a discovery dispute that has arisen with respect to a neuropsychological IME of plaintiff. Plaintiff has agreed to undergo the IME but seeks to have an observer attend the IME with her. This observer, plaintiff's counsel attests, will be a licensed psychologist who specializes in neuropsychology and has no prior professional relationship with plaintiff, and will not interfere with the IME in any way. Plaintiff also seeks disclosure of all scoring protocols, test manuals, and raw data generated during the IME directly to her counsel, with said material to be kept confidential by counsel. Defendants, asserting that an observer would inappropriately skew the results of the IME, is unwilling to consent to the observer's attendance. Defendants also assert that they have no obligation to turn over the scoring protocols, test manuals, and raw data generated during the IME, but are nonetheless willing to disclose them to a neuropsychologist of plaintiff's choice, arguing that such disclosure must be adequate if there is no obligation to disclose the material at all in the first place. The parties being unable to bridge these gaps in their positions, defendants now move for the aforesaid protective order.
Upon consideration of the affirmation of Steven V. DeBraccio, Esq. dated July 20, 2022, with exhibits; the affidavit of Robert J. McCaffrey, Ph.D., sworn to July 19, 2022, with exhibits; the affirmation of Michael V. Kaplen, Esq. dated August 4, 2022, with exhibits; and the reply affirmation of Steven V. DeBraccio, Esq. dated August 11, 2022; oral argument having been held before the court on September 30, 2022; and the court having duly deliberated upon all the foregoing, decision is hereby rendered as follows.
In general, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]). However, materials prepared by an expert "in anticipation of litigation or for trial" are exempt from disclosure, unless the party seeking disclosure can demonstrate that it "is unable without undue hardship to obtain the substantial equivalent of the materials by other means" (CPLR 3101[d] [2]). Moreover, this court is empowered to "deny[ ], limit[ ], condition[ ], or regulat[e]" the disclosure and use of otherwise discoverable material "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103 [a]). The court has "broad discretion in [its] supervision of expert disclosure" (Rivera v Montefiore Med. Ctr., 28 N.Y.3d 999, 1002 [2016]).
Turning first to the branch of the motion that seeks to preclude plaintiff's observer from attending the IME, plaintiff is entitled to have the observer present unless defendant makes a positive showing that the observer's presence would interfere with or otherwise impair the IME (see Gonzalez v Red Hook Container Term., LLC, 186 A.D.3d 1331, 1333 [2d Dept 2020]; Markel v Pure Power Boot Camp, 171 A.D.3d 28, 29 [1st Dept 2019]; F lores v Vescera, 105 A.D.3d 1340, 1340-1341 [4th Dept 2013]; Lamendola v Slocum, 148 A.D.2d 781, 781-782 [3d Dept 1989], lv dismissed 74 N.Y.2d 714 [1989]; see also Matter of Alexander L., 60 N.Y.2d 329, 331, 336-337 [1983]). The court finds that defendant has not met this burden. The IME doctor's concerns regarding his ethical and contractual duties to keep testing methodologies and the proprietary information of test publishers in confidence are obviated by plaintiff's concession that the only observer in the room be a licensed psychologist with a specialization in neuropsychology and, it follows, the same professional obligations as the IME doctor.
Further, the court is not convinced that the observer's mere presence will impair the IME. The positions of plaintiff's expert-that the observer's presence would not affect the relationship between plaintiff and the IME doctor because injured plaintiffs already view such doctors as agents of their adversaries in litigation; that having someone there for support is likely to improve a plaintiff's performance in testing; and the presence of the observer may help ensure that no deviations from testing protocols take place during the IME-are compelling. Similar positions were noted by the Appellate Division, First Department in their recognition of the "well established" right to have a "representative of [a plaintiff's] choice" attend an IME (Markel, 171 A.D.3d at 29-30). Accordingly, that branch of defendants' motion that is for a protective order precluding an observer from attending the IME is granted to the extent that plaintiff is precluded from having anyone other than a licensed psychologist of her choice attend the IME, said psychologist to specialize in neuropsychology and have no prior professional relationship with plaintiff; and said branch of the motion is otherwise denied.
A similar analysis applies to the issue of whether defendants would have to disclose all scoring protocols, test manuals, and raw data generated during the IME to plaintiff. Such materials are materials prepared for litigation and exempt from disclosure as such, unless the party seeking disclosure can show a substantial need for the material and that the party "is unable without undue hardship to obtain the substantial equivalent of the materials by other means" (CPLR 3101[d] [2]; see Giordano v New Rochelle Mun. Hous. Auth., 84 A.D.3d 729, 732 [2d Dept 2011]; Marazita v City of New York, 62 Misc.3d 416, 420-421 [Sup Ct, Queens County 2018]). Assuming without deciding that the interest advanced by plaintiff-the need for meaningful cross-examination and to otherwise prepare to confront defendants' case-constitutes a substantial need, the need is satisfied by the court's permitting plaintiff's own expert to attend the IME, and defendants' offer to disclose the materials to a neuropsychologist of plaintiff's choice. The court infers in this offer the ability of such neuropsychologist to discuss and limitedly share the materials with plaintiff's counsel to the extent necessary to explain his or her expert opinion, as the offer would otherwise be a meaningless gesture. The court will not impute such cynicism to defendants or their counsel. Rather, good faith is presumed, and the court thus finds that the disclosure offered by defendants is intended to be useful to plaintiff. Defendants' offer, so construed, adequately accommodates plaintiff's need to prepare a defense.
On the other hand, the court is convinced that preserving the confidentiality of the materials in some measure is required, and plaintiff concedes as much. Accordingly, the neuropsychologist to whom the materials is disclosed may show those portions of the materials to plaintiff's counsel as are necessary to explain his or her expert opinion but may not provide copies of the materials to counsel or anyone else without leave of court on notice to defendants; the neuropsychologist must keep the records in confidence and return them to the IME doctor at the conclusion of the litigation without retaining copies thereof.
Any arguments not specifically addressed herein have been examined and found to be without merit.
Based upon the foregoing, it is hereby
ORDERED that the motion for a protective order is granted to the extent that plaintiff is precluded from having anyone attend her IME other than a licensed psychologist of her choosing, who specializes in neuropsychology and has no prior professional relationship with her, said licensed psychologist being enjoined from interfering with the conduct of the IME in any way; and to the extent that disclosure of all scoring protocols, test manuals, and raw data generated during the IME is precluded other than to a neuropsychologist of plaintiff's choosing; and the motion is otherwise denied; and it is further
ORDERED that the neuropsychologist to whom the scoring protocols, test manuals, and raw data generated during the IME are disclosed shall keep such materials in confidence, may not provide copies of such materials to any person or entity without leave of this court on notice to defendants, and must return said materials to the IME doctor at the conclusion of this litigation without retaining any copies thereof, but may discuss the materials with plaintiff's counsel and may show such portions of said materials or copies thereof to counsel as are necessary to explain the neuropsychologist's expert opinion during the pendency of this litigation; and it is further
ORDERED that any relief not specifically granted herein is denied.
The within constitutes the decision and order of this court.