Opinion
# 2019-038-580 Claim No. 128055 Motion No. M-94124
08-20-2019
ADRIAN P. THOMAS v. THE STATE OF NEW YORK
No Appearance LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Defendant's motion by way of order to show cause for production of autopsy records denied to the extent it seeks production of autopsy slides not in the possession of the office of the Rensselaer County Medical Examiner. The motion is granted in all other respects.
Case information
| UID: | 2019-038-580 |
| Claimant(s): | ADRIAN P. THOMAS |
| Claimant short name: | THOMAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128055 |
| Motion number(s): | M-94124 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 20, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, whose conviction for the murder of his infant son was reversed by the New York Court of Appeals, filed this claim seeking compensation for unjust and wrongful conviction pursuant to Court of Claims Act § 8-b. Defendant moves by way of Order to Show Cause for an order compelling the County of Rensselaer to produce records maintained by the Office of the Rensselaer County Medical Examiner related to the autopsy of Matthew Thomas, claimant's deceased infant son, including slides created during the autopsy, reports of the autopsy, toxicology reports, color photographs taken during the autopsy, and any preliminary reports or notes taken during the autopsy (see Calabrese Affirmation, ¶ 8). The County of Rensselaer has not responded to the Order to Show Cause.
The Order to Show Cause is also directed to claimant and his wife, but they have not responded to the Order to Show Cause and, in any event, the parties previously "ha[d] discussed and jointly request[ed] that the Court issue [an] . . . order and subpoena to the Rensselaer County Coroner's office for all records related to the coroner's investigation of the death of Matthew Thomas" (Calabrese Correspondence, dated March 15, 2019). Thus, although the parties appear to have been in agreement regarding disclosure of Matthew Thomas's autopsy records, they were required to move by order to show cause to obtain them (see Email Correspondence of Nancy Schulman, dated March 18, 2019).
In October 2009, claimant was convicted of murder in the second degree and sentenced to a prison term of 25 years to life for the death of his 4-month-old son. In February 2014, the Court of Appeals reversed claimant's conviction on the ground that members of the Troy Police Department coerced claimant into falsely confessing to causing injuries that led to his son's death. Claimant was acquitted upon retrial in June 2014. The claim alleges that the attending physician who treated claimant's son at the hospital mistakenly concluded that his son had suffered a skull fracture as a result of child abuse, which led to claimant's coerced confession (see Calabrese Affirmation, Exhibit B [Claim No. 128055], ¶¶ 20-39). Rather, the claim alleges that the medical records show that claimant's son never sustained a skull fracture and that his death was caused by a bacterial infection that led to septic shock, as diagnosed by the emergency room doctor who treated him (see id., ¶ 19). The claim alleges that the prosecution at the first trial relied primarily on the testimony of the medical examiner, who conceded that claimant's son had been suffering from a bacterial infection at the time of his death, but failed to note it in his autopsy report, and who further testified that claimant's son had sustained subdural hematomas that were consistent with violent shaking, an assertion that claimant contends is disproved by the medical evidence (see Claim No. 128055, ¶¶ 47-48).
Coroners and medical examiners are required to maintain records of every autopsy performed (see County Law § 677 [3] [a]). County Law § 677 (3) (b) provides that:
"[u]pon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, . . . an order may be made by a court of record . . . that the record of that investigation be made available for [that person's] inspection, or that a transcript thereof be furnished to [that person], or both"
Notably, "questions concerning the physician-patient privilege" are not relevant to a request for autopsy records "because an autopsy of a corpse is not privileged" (Anderson v Commercial Travelers Mut. Acc. Assn., 73 AD2d 769, 769 [3d Dept 1979]).
Here, the question of the cause of death of claimant's infant son is central to his wrongful conviction claim, inasmuch as he contends that the attending physician's mistaken diagnosis of a skull fracture led to his interrogation by the Troy Police Department, his false confession and, ultimately, his conviction after the first trial. Therefore, defendant's potential liability may hinge on the allegedly mistaken diagnosis of the attending physician. Inasmuch as "[t]he results of an autopsy can confirm or disprove the diagnosis of the attending physician" (Matter of Central Gen. Hosp. v Lukash, 140 AD2d 113, 116 [2d Dept 1988], affd 74 NY2d 619 [1989]), the Court concludes that defendant, through its submissions, has demonstrated that it may be affected in claimant's wrongful conviction claim by the contents of the records of claimant's son's autopsy and, under County Law § 677 (3) (b), it is entitled to disclosure of those records.
Although no party served with the order to show cause has opposed defendant's motion for disclosure of the autopsy records, counsel for the Rensselaer County Medical Examiner, Dr. Michael Sikirica, has informed the Court that the autopsy slides that defendant seeks are maintained not by the Medical Examiner's Office but by Albany Medical Center (see Peck Correspondence, dated Aug. 5, 2019). Accordingly, to the extent defendant seeks re-cuts of the autopsy slides from the County of Rensselaer and/or the Office of the Rensselaer County Medical Examiner, the order to show cause must be denied (see Seale v Seale, 149 AD3d 1164, 1165 [3d Dept 2017] [noting that "it is axiomatic that a party cannot be compelled to produce documents that the party does not have"]).
Based on the foregoing, it is hereby
ORDERED, that defendant's motion number M-94124 is DENIED IN PART to the extent that the County of Rensselaer and/or Office of the Rensselaer County Medical Examiner shall not be compelled to produce re-cuts of Matthew Thomas's autopsy slides, which are in the possession of Albany Medical Center; and it is further
ORDERED, that defendant's motion number M-94124 is GRANTED in all other respects, and the County of Rensselaer and/or Office of the Rensselaer County Medical Examiner are directed to produce any and all records in their possession of the autopsy of Matthew Thomas, claimant's deceased infant son, including autopsy reports, toxicology reports, color photographs taken at the autopsy, preliminary reports, and notes taken at the autopsy.
August 20, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers Considered: 1. Claim number 128055, filed June 10, 2016; 2. Verified Answer, dated July 15, 2016; 3. Order to Show Cause, dated May 22, 2019; 4. Affirmation in Support, dated April 7, 2019, with Exhibits A-D; 5. Order, dated July 5, 2019; 6. Affidavits of Service of Tara K. Matthews, sworn to July 10, 2019; 7. Correspondence of Crystal R. Peck, Esq., dated August 5, 2019; 8. Correspondence of Christina Calabrese, AAG, dated March 15, 2019; 9. Email Correspondence of Nancy Schulman, Principal Law Clerk, dated March 18, 2019.