Opinion
Index No. 805253/2021 MOTION SEQ. No. 003
10-10-2024
GIANNA SPIRIO Plaintiff, v. NEW YORK PRESBYTERIAN MORGAN STANLEY CHILDREN'S HOSPITAL, Defendant.
Unpublished Opinion
MOTION DATE 07/19/2024
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
John J. Kelley Judge:
The following e-filed documents, listed by NYSCEF document number (Motion 003) 43, 44, 45, 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 57, 58, 59, 60, 61,62, 63, 64, 65, 66, 67 were read on this motion to/for _STRIKE PLEADINGS.
In this action to recover damages for medical malpractice, the plaintiff moves pursuant to CPLR 3126 to strike the defendant's answer for its alleged failure timely to provide her with a copy of written or recorded statements that she had made that were adverse to her claims herein. The defendant opposes the motion, and cross-moves pursuant to 22 NYCRR 130-1.1 for the imposition of sanctions upon the plaintiff for making a frivolous motion.
The motion and the cross motion are denied.
The crux of the plaintiff's claim against the defendant hospital is that it committed malpractice by failing adequately to preserve a fragment of her skull that had been removed during the implantation of a Responsive Neurostimulator (RNS), which stimulated neurons in plaintiff's brain to treat her refractory epilepsy. The RNS was eventually removed, and a piece of titanium mesh was placed into the plaintiff's skull. Thereafter, the plaintiff underwent a laser ablation procedure at New York-Presbyterian Hospital that, according to the defendant, "successfully cured her epilepsy." According to the plaintiff's attorney, however,
"[a]t some time during the calendar year 2023, most probably early in the year, the defendant hospital through its administrators, physicians and/or staff directly and without my knowledge interviewed the plaintiff and published an article about her positive experience with the hospital and its staff relative to the implantation of the seizure preventing device [that is the subject of this action]. They also elicited information from the plaintiff relative to how she is doing now in life and what great medical treatment she received. Never once do they mention that they destroyed her skull fragment and left her with a hole in her skull that had to be covered with a metal plate. ... I only found out about the article recently when my unsuspecting client informed me that she was contacted by the hospital and enticed to be interviewed for the article."
In a preliminary conference order dated August 31,2022, this court had directed the parties to "exchange names and addresses of all FACT WITNESSES concerning liability and/or damages (other than expert witnesses) no later than 60 (sixty) days before trial. Parties shall also exchange adverse party statements within that same period." The plaintiff alleged in this motion that the defendant failed to produce written notes an interview that it had conducted with her that were prepared in anticipation of the published article, or the final article itself. In response, the defendant alleged that the interview and article only involved the issue of whether the laser ablation treatment was successful, and had nothing to do with its alleged failure to preserve the plaintiff's skull fragment. It further argued that the plaintiff already is in possession of the published article, and that there is no basis for imposing a discovery sanction upon it for failing to produce the article during the course of disclosure proceedings.
In the first instance, a note of issue has yet to be filed in this action and, hence, it is far longer than 60 days before any trial in this action may be conducted. Consequently, the defendant has not missed the deadline for producing adverse party statements and, thus, is not in violation of the terms of preliminary conference order.
The court, however, notes that,
"Rule 4.2 of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that an attorney may not communicate with a represented party regarding the subject of the representation (paragraph [a]) [or] permit his or her client to do so (paragraph [b]) unless opposing counsel has consented or the communication is authorized by law"(Matter of Madris [Oliveira], 97 A.D.3d 823, 824 [2d Dept 2012]). Although the court expresses its concern about the propriety of the communication between the defendant and the plaintiff, the court further notes that there is no proof here that the defendant's attorneys "permitted]" the defendant to communicate with the plaintiff without her attorney's consent; rather, it appears that the defendant and the plaintiff independently engaged in the subject communication. The court concludes that the defendant should produce, in the course of discovery, all written notes and recordings generated during the interview, as well as the article itself. Under the circumstances of this case, however, the court further concludes that there is no basis upon which to strike the defendant's answer, inasmuch as the plaintiff now is in possession of the article, and the defendant's conduct does not appear to be willful and contumacious (see Butler v Knights Collision Experts, Inc., 165 A.D.3d 406, 407 [1st Dept 2018]; Tanriverdi v United Skates of Am., Inc., 164 A.D.3d 858, 860 [2d Dept 2018]; Walter B. Melvin, Architects, LLC v 24 Aqueduct Lane Condominium, 51 A.D.3d 784, 785 [2d Dept 2008]; Chamberlain, D Amanda, Oppenheimer & Greenfield v Beauchamp, 247 A.D.2d 858, 859 [4th Dept 1998]).
Nonetheless, on or before November 12, 2024, the defendant shall produce copies of all written notes and audio or video recordings of the plaintiff that it had generated or made during her interview for the subject article. The court expresses no opinion as to whether the article itself, or the notes or recordings, will be admissible in evidence at the trial of this action.
The court rejects the defendant's contention that the plaintiff's motion was frivolous within the meaning of the applicable court rules and, hence, denies its cross motion for the imposition of sanctions.
Accordingly, it is, ORDERED that the plaintiff's motion is denied; and it is further, ORDERED that the defendants' cross motion is denied; and it is further, ORDERED that, on the court's own motion, the defendant is directed, on or before November 12, 2024, to produce copies of all written notes, and all audio or video recordings of the plaintiff, referable to its interview with the plaintiff that formed a basis for any published articles in which the plaintiff is quoted or in which her case was one of the subjects thereof.
This constitutes the Decision and Order of the court.