Opinion
# 2021-015-040 Claim No. 132189 Motion No. M-96414
04-13-2021
KATHRYN M. ROGERS, as Administrator of the Estate of MARLO L. COLLIER, Deceased v. THE STATE OF NEW YORK
VanDette Penberthy LLP By: James M. VanDette, Esq. Honorable Letitia James, Attorney General By: Thomas P. Carafa, Esq., Assistant Attorney General
Synopsis
Defendant's motion to obtain a copy of the claimant's expert's autopsy report was denied as an earlier autopsy was performed at the defendant's request, and the results were memorialized in a report. As a result, the defendant failed to show a substantial need for the claimant's expert's autopsy report .
Case information
| UID: | 2021-015-040 |
| Claimant(s): | KATHRYN M. ROGERS, as Administrator of the Estate of MARLO L. COLLIER, Deceased |
| Claimant short name: | ROGERS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132189 |
| Motion number(s): | M-96414 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | VanDette Penberthy LLP By: James M. VanDette, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Thomas P. Carafa, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 13, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves, pursuant to CPLR 3101 (d) (1) (iii), to compel claimant to produce a copy of the autopsy report prepared by the claimant's consulting expert.
While defendant's notice of motion seeks production of the claimant's forensic pathologist's autopsy report, defense counsel's affirmation appears to limit his request to the pathologist's findings (Carafa affirmation, ¶¶ 7,11). Whether all or a part of the report is requested, the analysis is the same.
Claimant, Kathryn M. Rogers (claimant), as administrator of the estate of Marlo L. Collier (decedent), seeks damages for the pain and suffering and wrongful death of decedent on November 1, 2016, when it is alleged medical staff at Mohawk Correctional Facility failed to consider decedent's medical history and thus misdiagnosed his condition in the days preceding his death. Claimant alleges, and the defendant does not dispute, that the Onondaga County Health Department performed an autopsy and determined the cause of death to be atherosclerotic and hypertensive cardiovascular disease (defendant's Exhibit A, Claim, ¶ 10).
CPLR 3101 (d) (1) (i) does not require disclosure of an expert's report, only reasonable detail regarding "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." The report itself is exempt from discovery as material prepared in anticipation of litigation unless the requesting party demonstrates a "substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means" (CPLR 3101 [d][2]; see Martinez v KSM Holding, 294 AD2d 111 [1st Dept 2002]; Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946 [4th Dept 1998], lv denied 92 NY2d 817 [1998]; Matter of Love Canal Actions, 161 AD2d 1169 [4th Dept 1990]). Although defendant acknowledges a separate autopsy of the decedent was performed on its behalf, it nevertheless requires a copy of the claimant's expert's autopsy report because the State's autopsy was performed "prior to the private autopsy and without knowledge or regard to any litigation . . . . [T]he State does not have the opportunity to duplicate the methods used or findings obtained in the private autopsy " (Carafa affirmation, ¶ 13).
Given that defendant conducted its own autopsy, defense counsel's assertion that the "methods used or findings obtained in the private autopsy" can no longer be duplicated do not constitute the type of special circumstances necessary to warrant the exchange of an expert witness' report (id.; see Martinez, supra; Barrowman, supra; Matter of Love Canal, supra). The purpose underlying both autopsies was a determination of the decedent's cause of death. Indeed, County Law § 677 (2) requires with respect to a county coroner or medical examiner that "[t]he report of any autopsy or other examination shall state every fact and circumstance tending to show the condition of the body and the cause and means or manner of death." Defendant's physician had every opportunity to utilize whatever means he or she deemed appropriate to determine the cause of death during the performance of the State's autopsy. This being the case, defendant cannot now be heard to complain that it can no longer duplicate the same means and methods utilized by claimant's physician in reaching his conclusions (see Martinez v KSM Holding, supra [defendant failed to show substantial need for claimant's expert's report where it had the opportunity to inspect but failed to do so]). Having obtained the substantial equivalent of the requested autopsy report by arranging for the performance of its own autopsy, defendant failed to demonstrate a substantial need for a copy of the claimant's forensic pathologist's autopsy report (cf. Breslauer v Dan, 150 AD2d 324 [2d Dept 1989] [expert's report was subject to disclosure as the vehicle had been sold]). As a result, the circumstances do not warrant the exchange of otherwise privileged material. Accordingly, defendant's motion is denied.
April 13, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion dated January 22, 2021;
2. Affirmation in Support dated January 22, 2021, with Exhibits A-F;
3. Affirmation in Opposition dated February 18, 2021.