NELSON v. RXR 196 WILLOUGHBY OWNER LLC (2021)

Pursuant to the so-ordered stipulation dated March 3, 2021, the parties were permitted to submit letter briefs on the issue of Arons authorizations (see NYSCEF Doc. No. 17).

Plaintiff objected to providing the defendant with Arons authorizations on the grounds that plaintiff intends to call some of his treating physicians as expert witnesses. Accordingly, plaintiff claims that the discovery relating to those witnesses is governed exclusively by CPLR 3101(d)(1).

The Court of Appeals clearly held in Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345, 880 N.E.2d 831 (2007) that defendants are entitled to authorizations permitting the defendants’ to speak to plaintiff's treating physicians. Plaintiff's grounds for objecting and/or withholding the authorizations are premature and unavailing.

First, it is unclear whether plaintiff has formally designated any of the treating physicians as expert witnesses pursuant to CPLR 3101(d)(1)(i). Although plaintiff claims that he does not have to comply with CPLR 3101(d)(1) in order to have a treating physician testify and provide expert testimony, it does not mean that plaintiff shouldn't actually comply with the rule or that plaintiff is somehow barred from doing so.¹ Accordingly, the plaintiff should not have it both ways by finding “protection” under CPLR 3101(d) but not actually designating those physicians as experts (see Patrick M. Conners, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3101:29A [“A party should not be able to completely cut off what the Arons court designated as ‘avenues of informal discovery of information’ by simply designating the subsequent treating dentist as an expert”]).

Second, even if all the doctors set forth in plaintiff's letter brief were actually noticed as experts, plaintiff claims that it is “black letter law in New York that expert discovery is prohibited” (NYSCEF Doc. No. 21). While it is true that CPLR 3101(d)(1)(iii) does not authorize “further disclosure” of an expert, such as his or her deposition, without a showing of “special circumstances,” it is worthy to note here that the defendants are not seeking any formal discovery — rather, they are seeking informal discovery as articulated by the Arons court. The rationale set forth in Arons acknowledges and promotes such use of informal devices (see Arons, 9 N.Y.3d at 407, 850 N.Y.S.2d 345, 880 N.E.2d 831 [noting that it is undesirable to close off “informal discovery of information that [might] serve both the litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of disputes”; id. at 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [“Attorneys have always sought to talk with nonparties who are potential witnesses as part of their trial preparation. Article 31 does not ‘close[ ] off’ these ‘avenues of informal discovery,’ and relegate litigants to the costlier and more cumbersome formal discovery devices”], quoting Niesig v. Team I, 76 N.Y.2d 363, 372, 559 N.Y.S.2d 493, 558 N.E.2d 1030 [1990]).²

The rationale in Arons, taken together with ethics opinions finding that it is not improper to talk to an unrepresented adversary's expert, leads to the conclusion that “conducting ‘informal disclosure’ to obtain information from an opponent's expert cannot reasonably be viewed as an attempt to circumvent the disclosure process in a New York State action [and] the limitations on obtaining formal disclosure from experts under CPLR 3101(d)(1) should not necessarily shut off areas of informal disclosure, which act as an important supplement to the information available under Article 31” (Patrick M. Conners, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3121:10A, citing NY State Bar Ass'n Comm. on Prof'l Ethics Op 577, 1986 WL 68786 [1986]); NY State Bar Ass'n Comm. on Prof'l Ethics Op 735, 2001 WL 670914 [2001]; ABA Comm. on Ethics & Prof'l Responsibility Formal Op. 93-378, 1993 WL 558304 [1993]). As another court has held, “any limitation” to accessing a treating physician for an informal interview, “such as a designation of [the] same as an expert[,] would vitiate the clear direction ․ set forth by the Court of Appeals” (Maher v. Palazzolo, 24 Misc. 3d 1216[A], 2009 N.Y. Slip Op. 51467[U], *1-2,*4, 2009 WL 2005231 [Sup. Ct., Nassau County 2009]; see Sommer v. Pierre, 2008 N.Y. Slip Op. 31407[U] [Sup. Ct., N.Y. County May 15, 2008]).

Finally, “it bears repeating that the treating physicians remain entirely free to decide whether or not to cooperate with defense counsel” (Arons, 9 N.Y.3d at 415-16, 850 N.Y.S.2d 345, 880 N.E.2d 831). The fact that the defendants will have the authorizations does not mean that plaintiff's doctors actually will speak to them.

Accordingly, it is hereby ORDERED that plaintiff is directed to provide Arons authorizations for all treating physicians as requested by defendants within 20 days; and it is further

ORDERED that the Court declines to set forth any limitations pursuant to CPLR 3103(a) or otherwise, as they have not been requested by the parties and would be premature at this juncture (cf. Sommer, 2008 N.Y. Slip Op. 31407[U] [where the Court [Kaplan, J.] directed defendant to provide an Arons authorization to plaintiffs with the limitation that plaintiffs “may not question him in his capacity as an expert”]).

This constitutes the decision and order of the Court.

FOOTNOTES

1.   One of the many cases cited by plaintiff, Hamer v. City of New York, 106 A.D.3d 504, 508-09, 965 N.Y.S.2d 99 (1st Dept. 2013), simply held that the failure to comply with CPLR 3101(d) was not a ground to preclude the treating physician's testimony as to causation where there was full disclosure of that physicians’ records and the defendant had sufficient notice of the proposed testimony and therefore could not claim prejudice or surprise.

2.   Indeed, if/when plaintiff actually complies with providing expert disclosure pursuant to CPLR 3101(d)(1), the same purpose would similarly be furthered (see generally Patrick M. Conners, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, C3101:29A [“As noted in the legislative memorandum accompanying the bill that enacted CPLR 3101(d)(1)(i), ‘[s]ince the testimony of expert witnesses is often the single most important element of proof in medical malpractice and other personal injury actions, sharing information concerning these opinions encourages prompt settlement by providing both parties an accurate measure of the strength of their adversaries’ case’ ”], quoting Salander v. Cent. Gen. Hosp., 130 Misc. 2d 311, 313, 496 N.Y.S.2d 638 [Sup. Ct., Nassau County 1985]).

Alexander M. Tisch, J.