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Laura MARAZITA, Plaintiff, v. The CITY OF NEW YORK and the New York City Department of Education, Defendants.
It is ordered that the motion and cross-motion are decided as follows:
Motion by plaintiff, pursuant to CPLR 3101(e), for an order compelling defendants to provide complete raw data, including testing data, testing manuals and all documents generated by neuropsychological testing conducted upon plaintiff on April 4, 2018 by their examining neuropsychologist, David Erlanger, is denied. That branch of the motion for an award of attorneys fees and sanctions to plaintiff's counsel personally is also denied.
Cross-motion by defendants for an order compelling plaintiff to provide complete raw data, including testing data, testing manuals and all documents generated by neuropsychological testing conducted on plaintiff on May 14 and May 18, 2018 by her examining neuropsychologist, Wayne A. Gordon, is denied. That branch of the cross-motion for a protective order requiring any documents provided by defendants' examining neuropsychologist, David Erlanger, to be kept confidential is granted, there being no opposition to this branch of the cross-motion. That branch of the cross-motion to compel plaintiff to comply with their demands for discovery and inspection dated May 4 and June 27, 2018 is also granted.
Plaintiff allegedly sustained traumatic brain injury (TBI), spinal injury and psychological injury on February 4, 2014 as a result of being struck by a piece of falling ice at P.S. 63 in Queens County where she was a teacher. Plaintiff was examined in connection with her TBI and psychological injury claims at an independent medical examination (IME) conducted by Dr. Erlanger on April 4, 2018. Plaintiff's counsel accompanied plaintiff to the IME, and it is undisputed that counsel demanded that Dr. Erlanger give him a copy of his raw data immediately upon the conclusion of the examination and that Dr. Erlanger gave him a copy of the non-proprietary data at that time. Plaintiff's counsel represents that Dr. Erlanger would only give him a copy of the non-proprietary raw data but refused to give him the proprietary raw data, and that he told counsel to wait while he photocopied the non-proprietary raw data, and that after he did so he placed the photocopies into counsel's backpack and counsel left with those copies. Counsel states that Dr. Erlanger has yet to disclose the proprietary raw data.
Dr. Erlanger, in his affirmed neuropsychological evaluation report annexed to the cross-moving papers, states that “Mr. Nguyen [plaintiff's counsel] misled the examiner in regard to his agreement with attorneys for the City of New York, stating at the end of the examination that the attorneys representing the city had agreed to his demand that he be provided with copies of non-proprietary test forms and notes, when in fact they had not agreed to this demand”.
Plaintiff's counsel, in his affirmation in support of the motion, illuminates this Court as to what “proprietary raw data” and “no-proprietary raw data” are in connection with neuropsychological tests. Citing an article published in the National Psychologist, counsel informs, respecting neuro-psychological testing, “These tests are designed to show how well or poorly a person's cognitive function is working. The testing process consists of the selection of an appropriate array of tests (which can include writing, drawing diagrams or images, finding paths through mazes, and other activities by the subject), the administration of those tests to a subject by the examiner, and the interpretation of the test results. The things that are written by the subject are called ‘non-proprietary raw data’, the materials prepared by the testing company are called ‘test data’, sometimes called ‘proprietary raw data’ unless they have been written on by the subject in which case they are considered ‘non-proprietary raw data’.” Defendants' counsel does not dispute the accuracy of this statement. Dr. Erlanger relates in his affirmation that the basis for his refusal to allow plaintiff's counsel to transcribe the test questions administered to plaintiff on his laptop computer which he brought with him to the examination and his initial refusal to give them to counsel until counsel purportedly misrepresented to him that the City had agreed to provide this material to him was that these questions were the copyrighted property of the test publishers.
Thus, it is undisputed that plaintiff's counsel walked away from the IME with a copy of Dr. Erlanger's non-proprietary raw data, which is, according to his explanation, whatever plaintiff wrote, including the otherwise proprietary copyrighted forms upon which he wrote. Dr. Erlanger also related in his report that among the non-proprietary data he gave counsel were “notes”, which are presumably the notes Dr. Erlanger took during the examination, which, not being material of the test publisher, are not proprietary but would be included in the non-proprietary category.
Defendants' counsel does not oppose providing a complete copy of Dr. Erlanger's file containing all his raw data and testing data and manuals, but only contends that it would not be fair to require them to do so unless plaintiff also furnishes to them their examining neuropsychologist's, Dr. Gordon's, raw data and materials. Defendants' counsel, at the two conferences prior to the submission of this motion and cross-motion, agreed to resolve the dispute by way of a stipulation of respective counsel whereby defendant would provide the raw data of Dr. Erlanger's IME and plaintiff would likewise provide the raw data of Dr. Gordon's IME. Plaintiff's counsel refused to stipulate to provide Dr. Gordon's raw data to defendants' counsel upon the ground that such data is material prepared for litigation and thus not subject to disclosure under CPLR 3101(d)(2). It is plaintiff's counsel's position that although the raw data generated by both IME physicians is material prepared for litigation and, ordinarily, may not be disclosed, there is an exception with respect to Dr. Erlanger's raw data in that it constitutes plaintiff's own statement which plaintiff has an absolute right to obtain. Therefore, argues plaintiff's counsel, plaintiff is entitled to the raw data of defendants' examining neuropsychologist but defendant is not entitled to the raw data of plaintiff's examining neuropsychologist.
CPLR 3101(a) requires that “there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action”. This broad injunction, however, is limited, inter alia, by the restriction in CPLR 3101(d)(2) which provides that “[s]ubject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party's representative․may be obtained only upon a showing that the party seeking discovery has 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(e), however, provides, without qualification or further elaboration, “Party's statement. A party may obtain a copy of his own statement.”
Neither plaintiff's nor defendants' counsel disputes that the raw data generated by the neuropsychological testing, being the data that the respective neuropsychologists interpreted in reaching their findings and conclusions, is material and “necessary to the prosecution and defense of this case”. It is also undisputed that the raw data of both IME neuropsychologists is material prepared solely for litigation and, as such, would ordinarily not be obtainable under the broad discovery mandate of CPLR 3101(a).
Moreover, the basis of plaintiff's counsel's demand for Dr. Erlanger's raw data is not under the exception to CPLR 3101(d)(2) that counsel has substantial need of it for the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of it by other means. Indeed, this Court notes that plaintiff's counsel, in his affirmation in opposition to the cross-motion, contends that defendants are not entitled to plaintiff's expert's, Dr. Gordon's, raw data under this exception because “defendants here have already done the best they could do to obtain the substantial equivalent of Dr. Gordon's raw data by having an examiner who they presumably trust perform his own examination”. Since plaintiff has also performed her own examination by her expert, Dr. Gordon, then by the same token, she has also obtained the substantial equivalent of defendants' expert's, Dr. Erlanger's, raw data and would consequently, by plaintiff's counsel's own concession, not meet the exception to disclosure of Dr. Erlanger's raw data under CPLR 3101(d)(2).
This Court is unaware of any Second Department authority indicating what “the substantial equivalent of the materials by other means” might include. However, the Appellate Division, First Department, in affirming the denial of the defendants' motion to compel plaintiffs to disclose the raw data of plaintiffs' examining neuropsychologist, stated, in Martinez v. KSM Holding Ltd., 294 A.D.2d 111, 111-112, 741 N.Y.S.2d 519 (1st Dept. 2002),“While the ‘raw data’ that defendants claim to need may be open to interpretation, the substantial equivalent thereof can be obtained by means other than turning over plaintiffs' experts' files. Indeed, defendants failed to take advantage of a preliminary conference order giving them the right to conduct neuro-psychological testing, and then, while attempting to compel disclosure of the files, declined plaintiffs' offer to submit to examinations by a neuro-psychologist, who, it appears, could have conducted tests equivalent to those performed by plaintiffs' experts.” (emphasis added.) In our case, both sides did conduct neuropsychological testing which enabled them, based upon the findings of their respective neuropsychologists, to prepare the prosecution and defense of the case, and no argument is made that the tests performed by Drs. Erlanger and Gordon were not equivalent.
Therefore, disclosure of Dr. Erlanger's raw data is not being sought by plaintiff under the exception to CPLR 3101(d)(2) that disclosure of the raw data was necessary to prepare plaintiff's case and that the substantial equivalent of Dr. Erlanger's raw data was unobtainable by the opposing party by any other means. Rather, the basis for plaintiff's motion is the contention that the raw data consisting of plaintiff's responses or input to the test questions or tasks administered by Dr. Erlanger constituted his “statement” and, therefore, that plaintiff has the absolute right to obtain Dr. Erlanger's raw data pursuant to CPLR 3101(e) as being a request for his own statement, even though it was prepared for litigation. And the basis for his opposition to the cross-motion is that defendants are not entitled to obtain the raw data of Dr. Gordon, and what “is the sauce for the plaintiff [is] not the sauce for the defendant”, because defendants are not seeking to obtain their own statements and thus the bar to disclosure of material prepared for litigation, pursuant to CPLR 3101(d)(2), remains applicable to prevent defendants' from obtaining plaintiff's examining neuropsychologist's raw data and defendants cannot avail themselves of CPLR 3101(e), as plaintiffs could.
Defendants' counsel does not articulate in his affirmation in support of the cross-motion the basis for his request for Dr. Gordon's raw data, other than to cite several cases that granted both the plaintiff's and the defendant's motions for disclosure of the other side's raw data. However, this Court extrapolates from a perusal of those cases that Dr. Gordon's raw data is being sought under CPLR 3101(d)(2)'s exception that defendants have a substantial need of the raw data for the preparation of their defense and are unable without undue hardship to obtain the substantial equivalent of it by other means, based upon the argument that the moving party needs the raw data of the other side's examining neuropsychologist so as to be able to evaluate the accuracy his interpretations in preparation for cross-examination and voir dire. Indeed, counsel contends that plaintiff is also entitled to Dr. Erlanger's raw data under the same exception, based upon the cited decisions, and further argues that these cases do not establish that only plaintiff is entitled to defendant's raw data.
No Second Department authority, however, is cited by either defendants' or plaintiff's counsel granting either a plaintiff's or a defendant's motion for disclosure of raw neuropsychological testing data to the other side. The only Second Department case, cited by defendants, Anderson v. Seigel, 255 A.D.2d 409, 680 N.Y.S.2d 587 (2nd Dept. 1998), merely stated without explanation that the trial court's granting of a third-party plaintiff's motion requiring the third-party defendant to furnish “certain raw data” was affirmed. There is no indication in that decision what raw data was requested, no indication that any neuropsychological testing was performed, and there is nothing informing what the basis for the granting of such discovery was.
Plaintiff's counsel does inform this Court of the single Second Department holding that is directly apposite to the instant matter, which this Court is bound to follow, Giordano v. New Rochelle Municipal Housing Auth., 84 A.D.3d 729, 922 N.Y.S.2d 518 [2nd Dept. 2011] ). The plaintiffs in that case sought to compel the defendants to produce the raw data generated by defendants' IME physicians and psychologists. The Second Department held, “The plaintiffs served subpoenas duces tecum on the defendants' examining physicians and psychologists, seeking, inter alia, the medical records relied on by the defendants' experts, copies of the injured plaintiff's records which were reviewed by the defendants' experts, writings and other recordings created by the injured plaintiff at or during his examinations, test results, measurements, any scales or other documents necessary to interpret the results of the defendants' experts, and notes of the examining physicians. The Supreme Court correctly determined that the information subpoenaed was not discoverable because it was privileged as material prepared for litigation, and the plaintiffs failed to demonstrate that they had a substantial need for the materials, or that they were unable, without undue hardship, to obtain the substantial equivalent of the materials by other means (see CPLR 3101[d]; see also Daniels v. Armstrong, 42 A.D.3d 558, 558-559, 840 N.Y.S.2d 409 ; Martinez v. KSM Holding, 294 A.D.2d 111, 741 N.Y.S.2d 519  )” (84 A.D.3d at 732, 922 N.Y.S.2d 518).
Thus, the Second Department has ruled that raw data, including, inter alia, “scales or other documents necessary to interpret the results of the defendants' experts” (i.e., proprietary raw data) and “writings and other recordings created by the injured plaintiff at or during his examinations” (i.e., non-proprietary raw data) is barred from disclosure pursuant to CPLR 3101(d)(2) as being material prepared for litigation absent a showing of a substantial need for such material and that the substantial equivalent of it could not be obtained by other means without undue hardship.
Moreover, the Appellate Division, Second Department, cited Martinez, supra in support of its holding, wherein, as heretofore noted, the Appellate Division, First Department, denied defendants' request for the raw data of plaintiffs' examining neuropsychologist upon the basis that they failed to establish that they could not have obtained the substantial equivalent of that data other than from plaintiffs' experts' files because that defendants declined plaintiffs' offer to submit to an IME by a designated neuropsychologist on behalf of defendants who could have conducted tests equivalent to those performed by plaintiffs' neuropsychologist. In this regard, implicit in the holding of the Appellate Division, Second Department, in Giordano is that the raw data generated by the movant's examining neuropsychologist is the substantial equivalent of the neuropsychological raw data of the opposing side's examining IME expert, thus mandating denial of the movant's motion to compel the production of the opposing party's raw data.
Plaintiff's counsel concedes, in his opposition to the cross-motion, that such is the precedent set in the Second Department in Giordano and that this Court is bound by that holding under stare decisis. However, counsel argues that it is only defendants who are barred from obtaining plaintiff's expert's raw data under Giordano, notwithstanding that it was plaintiff's motion in Giordano to compel the disclosure of the defendant's neuropsychological raw data, that included the non-proprietary “writings and other recordings created by the injured plaintiff at or during his examinations”. Counsel's seemingly contradictory argument may only be reconciled by noting, again, that plaintiff is not proceeding under the exception to CPLR 3101(d)(2), but under CPLR 3101(e).
However, there is no support in the Second Department for plaintiff's novel and imaginative argument that plaintiff's responses to the tests administered by defendants' examining neuropsychologist constituted his own “statement” to which he was entitled under CPLR 3101(e). On the contrary, since the Second Department, in Giordano, held that “writings and other recordings created by the injured plaintiff at or during his examinations” was barred from disclosure under CPLR 3101(d)(2) unless the exception thereto was met, such holding indicates that the Second Department does not perceive a plaintiff's responses to neuropsychological tests administered in an IME as a “statement” within the meaning of CPLR 3101(e) such that she would be entitled to obtain the non-proprietary raw data consisting of her responses to neuropsychological testing without having to satisfy the substantial need and inability to obtain the substantial equivalent without undue hardship exception to CPLR 3101(d)(2).
Plaintiff's counsel cites as the only support for his argument a trial court decision by a court of coordinate jurisdiction (Nakasato v. 331 West 51st St., 2012 WL 10043362 [Sup. Ct. N.Y. County, August 3, 2012] ) granting the plaintiff's motion to compel the production of the defendant's examining neuropsychologist's raw data upon the ground that such data constituted the plaintiff's own statement which he had the unconditional right to obtain pursuant to CPLR 3101(e). This Court must decline to follow that opinion. That court specifically cited and declined to follow the Second Department's holding in Giordano, which it acknowledged was at odds with its analysis. In doing so, that trial court in Nakasato relied upon Sands v. News America Pub. Inc., 161 A.D.2d 30, 560 N.Y.S.2d 416 (1st Dept. 1990), in which the Appellate Division, First Department, observed that the right of a party to his own statement pursuant to CPLR 3101(e) creates an exception to the rule that material prepared for litigation is ordinarily not discoverable, and that such right is not restricted to negligence actions or to statements made to the opposing party or his agent. The trial court in Nakasato interpreted Sands as supporting the granting of disclosure to a plaintiff of the raw data of his responses to neuropsychological testing under CPLR 3101(e).
Sands, however, did not involve a demand by the plaintiff for raw data of an IME examination of him by the defendant's examining medical expert. That case was a defamation action against a magazine and its undercover investigative reporter, and the plaintiff sought, inter alia, to compel the magazine and journalist to answer his interrogatory to disclose statements made by him to the reporter's confidential sources. The Appellate Division, First Department, affirmed the trial court's denial of that branch of the motion, holding that the interrogatory was overbroad in that it was not limited to statements made by plaintiff that were shown to be material and necessary in the prosecution of the action and that the disclosure of his statements would necessarily also divulge the reporter's confidential sources of information and, therefore, any right of plaintiff to his own statements under CPLR 3101(e) would be subordinated to the superior policy interests of the Shield Law.
Nothing in the opinion of the Appellate Division, First Department, in Sands may be interpreted as constituting support for plaintiff's position that responses of a plaintiff to neuropsychological tests conducted by the defendant's examining medical expert are the equivalent of a “statement” within the meaning of CPLR 3101(e).
It is clearly not within the contemplation of the Appellate Division, Second Department, to interpret raw data of a plaintiff's responses to neuropsychological testing as being the plaintiff's statement within the meaning of CPLR 3101(e) entitling only the plaintiff to obtain the defendant's examining medical expert's raw data but not entitling the defendant to obtain the plaintiff's examining medical expert's raw data. As the Court in Giordano, observed, although the mandate of CPLR 3101(a) for full disclosure of all that is material and necessary is broad and should be interpreted liberally, “the test is one of ‘usefulness and reason’ ” (84 A.D.3d at 731, 922 N.Y.S.2d 518). As further observed, the Court has the discretion to limit or deny disclosure to “prevent․disadvantage or other prejudice to any person or the courts” (id., citing CPLR 3103[a] ). An interpretation of CPLR 3101(e) as encompassing responses by plaintiff to neuropsychological testing so as to afford plaintiff's expert and counsel the opportunity to examine defendant's expert's data in preparation for trial while allowing plaintiff to deny defendant the same opportunity by invoking CPLR 3101(d)(2) would clearly result in disadvantage and prejudice to defendant. What plaintiff's counsel seeks amounts to more than just what he euphemistically characterizes as “the assymetry of our obtaining Dr. Erlanger's raw data and defendants' not obtaining Dr. Gordon's”. It amounts to an attempt to obtain an unfair advantage over defendants.
Finally, notwithstanding any of the foregoing, the motion is moot, insofar as it seeks disclosure of plaintiff's responses to Dr. Erlanger's testing under CPLR 3101(e) as being his own statement, since plaintiff's counsel acknowledges that he has, in fact, already been given by Dr. Erlanger the non-proprietary raw data which included plaintiff's responses to Dr. Erlanger's testing, and which would, according to counsel, constitute plaintiff's “statement”. Thus, even if, arguendo, plaintiff's responses to Dr. Erlanger's neuropsychological testing could be considered to be his “statement” within the meaning of CPLR 3101(e), plaintiff has already obtained that statement.
To the extent that plaintiff is seeking the balance of the raw data consisting of the proprietary raw data which includes the testing data and testing manuals, such raw data clearly does not constitute plaintiff's statement. Moreover, since it is not subject to disclosure as plaintiff's statement under CPLR 3101(e), then it is barred from disclosure under CPLR 3101(d)(2), as plaintiff's counsel has failed to demonstrate that he has substantial need of these materials in the preparation of the case and is unable without undue hardship to obtain their substantial equivalent by other means. Thus, there is was no basis for plaintiff's counsel's demand of entitlement to Dr. Erlanger's entire file and not just the non-proprietary raw data which Dr. Erlanger already provided. Consequently, there is no basis for counsel's remaining branch of his motion for sanctions under 22 NYCRR 130-1.1 against defendants' counsel for failing to provide such remaining raw data. If anything, it was clearly improper of plaintiff's counsel, who was merely an observer at plaintiff's IME, to have engaged Dr. Erlanger at the IME and demanded of him his entire file on the spot, and not have proceeded by way of the proper discovery demands to plaintiff's counsel thereafter.
In any event, since defendants' counsel has not argued that they have been disadvantaged and prejudiced by plaintiff's counsel's obtaining of the non-proprietary raw data, and since there has been no showing whether any of plaintiff's non-proprietary raw data responses that plaintiff's counsel walked away with in his backpack could be interpreted or analyzed in the absence of the testing manuals and other proprietary raw data, and thus, whether it was of any use to plaintiff's expert in the absence of the corresponding proprietary raw data, defendants' cross-motion for Dr. Gordon's raw data must also be denied, for the foregoing reasons.
That branch of the cross-motion requiring any material from Dr. Erlanger to be exchanged pursuant to a confidentiality agreement and protective order is granted, there appearing no opposition to this branch of the cross-motion, to the extent that it is hereby ordered that the copies of all raw data, notes and documents of Dr. Erlanger's IME conducted on April 4, 2018 which were given to plaintiff's counsel by Dr. Erlanger on said date shall remain confidential, and plaintiff's counsel shall not disseminate or show, or allowed to be disseminated or shown, said material to any person other than to plaintiff, plaintiff's expert, plaintiff's counsel and to this Court and the jury, and shall not further copy by photocopy or otherwise, or electronically store said information on any device, except for use at the trial of this action. Any such data that may be marked as a court exhibit shall not be retained by the Court and filed, but shall be returned to defendants' counsel at the conclusion of the trial.
Finally, that branch of the cross-motion to compel plaintiff to comply with defendants' demands for discovery and inspection dated May 4 and June 27, 2018 is also granted. Plaintiff shall comply with defendants' demands for discovery and inspection dated May 4 and June 27, 2018 within 45 days after entry of this order.
Kevin J. Kerrigan, J.
Response sent, thank you
Docket No: 16846/14
Decided: November 16, 2018
Court: Supreme Court, Queens County, New York.
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