CHIRICO v. BERNARD (2018)

The principal question for the court is whether to impose sanctions upon the plaintiff under Rule 3126 of the New York State Civil Practice Law and Rules (CPLR 3126).

The plaintiff commenced this action on June 30, 2009 to recover damages for injuries she suffered when her passenger vehicle was struck by a commercial truck. The truck was operated by defendant Felton Bernard and owned by defendant Black Lake Ventures, Inc. The plaintiff filed a Verified Bill of Particulars on September 9, 2009. It notified the defendants of damage claims for pain-and-suffering and medical expenses (including potential treatment for neurological deficits) in connection with alleged spinal injuries. The original Verified Bill of Particulars also placed the defendants on notice that the plaintiff had missed thirteen months of work and was entitled to recover for lost wages, including overtime.

A Request for Judicial Intervention was filed on September 29, 2009. The case has been assigned to five different judges and has been the subject of numerous disputes over the course of its long and contentious history. In addition to repeatedly seeking disclosure by demands and correspondence, the defendants have brought at least six motions to compel disclosure and/or to compel compliance with court orders which had previously ordered disclosure.

The defendants brought their first such motion on March 5, 2012. The motion was preceded by three correspondence requesting disclosure. The plaintiff apparently ignored these requests. The motion was withdrawn shortly before it was due to be heard because the plaintiff eventually provided the sought-after disclosure.

Trial was scheduled to commence on January 21, 2016, beginning with the selection of a jury. The court directed the parties to submit so-called “bench briefs” in advance of jury selection.

The defense submitted their bench brief -- in the form of a detailed five-page correspondence -- on December 28, 2015. It outlined the defense case theory and summarized their anticipated proof. It also emphasized that the plaintiff's claimed injuries were limited to her cervical spine; that she had a long, pre-accident history of treatment to the cervical spine; and, that the plaintiff refused medical assistance and drove home from the accident scene. The defense brief ended by seeking the court's assistance in securing updated authorizations for medical records. Defense counsel advised the court that plaintiff's counsel had ignored no less than seven requests, made over the course of the previous six months, for the records.

The plaintiff did not submit a bench brief despite the court's directive. The plaintiff instead submitted a “Supplemental Bill of Particulars” and an “Expert Disclosure” (the supplemental pleadings) on January 22, 2016. The former set forth additional injury claims, including those for neurological and brain injuries. The latter set forth additional damages claims, including, claims for future economic loss, such as future lost wages (estimated to be $ 152,053), loss of past household services (estimated to be $ 98,825) and loss of future household services (estimated to be $ 229,108).

The case was transferred to the Hon. Deborah A. Chimes, J.S.C. The trial was re-scheduled for May 2, 2017. The defendants again moved to compel disclosure, this time by way of an Order to Show Cause. The court issued a Discovery Order on April 17, 2017. It directed the plaintiff to disclose much of the sought-after information, including wage information from the plaintiff's employer, the Buffalo Psychiatric Center (BPC) dating back to 2006. The trial was adjourned, and the case returned to the previous judge, the Hon. Thomas P. Franczyk, A.J.S.C.

The defendant made another motion to compel disclosure -- which included all the BPC wage information that Justice Chimes had ordered disclosed -- returnable on August 30, 2017. It appears that proceeding went unrecorded and no Court Order was issued. Defense counsel instead memorialized the court's directives in a correspondence dated August 31, 2017. That correspondence indicates that the defendants' request for a second IME of the plaintiff (regarding her newly particularized neurological injury claims) was granted; that the defendants' request for another plaintiff deposition was denied; and, that the defendants would finally be permitted access to all the BPC wage information and employment records, which apparently were in the court's possession. Defense counsel reviewed the BPC records sometime in November of 2017. The records revealed that the plaintiff had suffered several work-related injuries that had never been disclosed. The injuries occurred both before and after the motor vehicle accident. The injuries must have been known to the plaintiff and should have been disclosed years before-hand.

The BPC records, at least from the defense point of view, undermine the plaintiff's claims -- including those for economic loss -- as set forth in her supplemental pleadings. The defendants, to no surprise, wished to explore these previously non-disclosed injuries. The defendants twice requested additional disclosure by means of correspondence to opposing counsel. These requests were apparently ignored and/or denied. It was at about this time that the case was transferred here.

A status conference was held on January 12, 2018. Defense counsel complained of their repeated and thwarted efforts to obtain disclosure. Plaintiff's counsel maintained that all of plaintiff's complaints had been fully litigated, addressed and ruled upon by Justice Franczyk and Justice Chimes. Then unfamiliar with the detailed history of the case, but mindful of its age, the court issued a Trial Scheduling Order, directing that trial would commence on March 30, 2018. Counsel was also advised that any motions, including motions relative to disclosure, should be made returnable before the final pre-trial conference, scheduled for March 27, 2018.

The defendants' filed motions, including a motion to compel the plaintiff to provide speaking authorizations and for the plaintiff to undergo a second deposition. It is now claimed that “the plaintiff submitted to a second deposition in an effort to move this matter forward” and “to move this case along” (July 18, 2018 Affidavit of Attorney William A. Quinlan, paragraphs 6 and 78). These claims suggest that plaintiff's counsel was attempting to be conciliatory at the time the motion was heard. In truth, the plaintiff vigorously opposed the defendants' motions, including their motion for a second deposition, and filed a cross-motion for a protective order. Opposition was so fierce that plaintiff's counsel had to twice be admonished by the court for her inappropriate conduct during oral argument.

The court heard the parties' arguments on March 15, 2018. The court denied the plaintiff's motion for a protective order and granted the defendants' motions for speaking authorizations and another plaintiff deposition. As to the latter, the court generally limited the scope of inquiry to the claims set forth in the plaintiff's supplemental pleadings, namely: head, brain, cranial and neurological injuries and/or damage claims; any work-related injuries, not limited to those damage claims; alleged loss of expenses; and, alleged future economic loss. No restrictions were placed upon the actual questioning, as-long-as the examiner confined the scope of inquiry to the foregoing areas. The court also granted the defendants' motion to strike the Note of Issue. A formal written Order, which also incorporated the court's March 15, 2018 Amended Scheduling Order, was signed on March 23, 2018. The court directed that the second deposition was be completed by June 15, 2018 and that the Note of Issue was to be filed by July 12, 2018.

The court trusted the above directives would put an end to the wrangling over disclosure. Such confidence was misplaced, as the defendants were to bring another two motions to compel not only disclosure, but also to compel compliance with the March 23, 2018 Court Order.

The court heard the defendant's next motion to compel on June 22, 2018. The underlying dispute this time was occasioned by the plaintiff's effort to unilaterally place conditions upon the speaking authorizations. The court made its rulings, in excruciating detail, on critical issues like how many attorney names could be listed on an authorization and the size and boldness of its fonts. The court scheduled another return date for the argument of motions when informed that there was yet another discovery dispute, this time concerning the plaintiff's court-ordered deposition.

As previously noted, the court had ordered that the plaintiff's deposition be conducted by June 15, 2018 but had left it up to the parties to select a mutually convenient date. Defense counsel proposed nine dates for the court-ordered deposition. Plaintiff's counsel was non-responsive to these proposals. Tellingly, even the selection of a deposition date required the court's intervention. A Second Amended Scheduling Order was therefore issued on May 8, 2018. It directed that the court-ordered deposition would take place on June 4, 2018.

The court-ordered deposition began with the usual stipulations, including, “all objections, except as to the form of questions, are to be reserved until the time of trial.” Some objections to form were raised, followed by an answer to the question asked. More-often-than-not, plaintiff's counsel disregarded the stipulation and raised substantive objections. Most of them were improper and accompanied by a directive to the plaintiff that she was not to answer the question. Many of these fifty-nine objections were of the speaking variety and were punctuated by reprimands on the meaning and scope of the court's directives. Plaintiff's counsel repeatedly grafted her own limitations upon the court's directives; presumptuously took-it-upon-herself to rule on several of the defendants' inquiries; repeatedly challenged defense counsel to explain the rationale for her questions; and, admonished defense counsel for her “failure to stick to the issues at hand” (Tr. p.135) and for “taking this to an absurd level” (Tr. p.236). Although later efforts to elicit testimony about the plaintiff's brain and neurological symptoms (e.g. migraine headaches, photophobia, inability to exercise, etc.), went relatively unobstructed, attempts to explore the plaintiff's economic loss claims were continually thwarted. Indeed, plaintiff's counsel made it clear that her client would not answer any questions in this regard, unless they were strictly related to the plaintiff's loss of overtime at the BPC (Tr. p.44). No such condition had been imposed by the court.

The defendants' latest motion takes issue with the conduct of plaintiff's counsel at the court-ordered deposition. The motion, initially brought under CPLR 3124, sought to compel a third plaintiff deposition and/or relief that the court found to be just. During the July 22, 2018 oral argument, the court took note of the obstructionist tactics of plaintiff's counsel and asked whether defendants' application for “just relief” included sanctions under CPLR 3126. Defense counsel asked for a dismissal of the lawsuit and/or monetary sanctions as well as an opportunity to make additional written submissions. Plaintiff's counsel offered a fauxpology -- “I'm sorry that you feel I was obstructionist in my actions in preserving my client's rights” -- and opposed the defendants' motion. The court reserved decision and provided the parties time to submit additional pleadings. Those voluminous submissions have been received and reviewed.

The defendants urge the court to dismiss the lawsuit in its entirety for the willful and contumacious failure of the plaintiff and/or her attorney to comply with court orders and directives regarding disclosure. Alternatively, the defendants request preclusion of all new damage claims set forth in the plaintiff's supplemental pleadings as well as monetary sanctions. The defendants' principal contention is that the obstructionist tactics of plaintiff's counsel at the court-ordered deposition, far from being an isolated incident, were merely the latest and most egregious example of the plaintiff's efforts to prevent discovery into the new claims raised in her supplemental pleadings.

The plaintiff urges the court to deny all the relief requested by the defendants. The plaintiff's principal contentions are as follows: that the supplemental pleadings did not set forth any new claims; that the defendants were “well-aware” of the plaintiff's injury claims and medical issues, as well as her economic loss claims, before the supplemental pleadings were filed; that the plaintiff has “diligently” prosecuted the case, “diligently” complied with all court directives and “diligently” complied with defense demands that were “properly” made; that any delay has been occasioned by the defendants' improper and “never-ending” demands; that the court labors under a mistaken “perceived impression” about the history of this case; that plaintiff's counsel was merely attempting to enforce the court's directives at the deposition; and, that the deposition never should have taken place, as it was barred by the “law of the case.”

As a threshold matter, the plaintiff's court-ordered deposition was not barred by the law of the case. Here, the plaintiff contends that Justice Franczyk's denial of defendant's request for a second plaintiff deposition -- which was never reduced to a written order or placed upon-the-record -- remains binding, regardless of whether a formal order was entered (see, Spahn v. Griffith, 101 AD2d 1011). Assuming, arguendo, that it should be recognized as binding, Justice Franczyk's August 2017 ruling preceded the defendant's November 2017 access to and review of the plaintiff's BPC records. That subsequent event revealed additional evidence and raised further issues, justifying another deposition (see, Milligan v. Bifulco, 153 AD3d 1624). Consequently, the court was not bound by the law of the case from ordering another deposition.

Regarding the question of sanctions, CPLR 3126 provides that if a party refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed, the court may make such orders as are just -- i.e. fashion just relief -- including an order that dismisses the action, strikes out pleadings or precludes the introduction of evidence supporting a party's claim or defense. The court is also empowered to impose monetary sanctions upon the attorney for the offending party (see, Maxim, Inc. v. Feifer, 161 AD3d 551). The nature and degree of the penalty is left to the trial court's discretion but should be commensurate with the particular disobedience it is designed to punish but go no further (Chowdhury v. Hudson Val. Limousine Serv., LLC, 162 AD3d 845, 846). “Dismissal of a pleading” is warranted when a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR (Hall v. Integrity Real Estate Properties, Inc., 124 AD3d 1270, 1271). It is within the court's discretion to dismiss an action or to strike an entire pleading when the offending party's misconduct is shown to be willful, contumacious or in bad faith. The willful or contumacious character of an offending party's conduct can be inferred by a repeated refusal to respond to disclosure demands or failure to comply with court-ordered discovery (Lagretta v. Neal, 108 AD3d 1067, 1071; Flynn v. City of New York, 101 AD3d 803, 805).

Considering the nine-year litigation history of this case, the conduct of plaintiff's counsel at the court-ordered deposition appears less an isolated incident and more the culmination of a pattern of conduct designed to thwart discovery into the plaintiff's economic loss claims, thus frustrating the disclosure scheme set forth in the CPLR.

Instead of complying with a court directive to supply bench briefs, the plaintiff filed the supplemental pleadings six-and-a-half years after the filing of her Summons and Complaint and on a day scheduled for jury selection. The January 2016 supplemental pleadings included new claims, which minimally entitled the defense to additional discovery. Attempts to do so amicably and without court intervention were ignored or rebuffed, necessitating defense motions to compel disclosure. It was not until November 2017 that the defendants finally had access to the BPC records. They revealed several incidents that should have been disclosed months, if not years, earlier. Once again, the defense attempted to address still unresolved disclosure issues without resort to formal litigation. Once again, they were rebuffed. Once again, they had to bring a motion. The defendants fourth motion to compel resulted in a Court Order that directed, inter alia, that the plaintiff execute speaking authorizations and that she present herself for another deposition regarding several topics, including her economic loss claims. Soon thereafter, the defense had to bring its fifth motion to compel the issuance of speaking authorizations, which had already been compelled just weeks beforehand.

The court had also ordered that depositions take place but left it up to the parties to schedule them at a mutually convenient time. The defendant's nine proposals went unrequited and the court was made to schedule the deposition. Having vigorously opposed it, then having attempted to evade it, plaintiff's counsel now sought to sabotage it. Her repeated objections, peppered by patronizing jibes at opposing counsel, undoubtedly were designed to prevent any inquiry (other than questions regarding loss of overtime) into the plaintiff's economic loss claims. Plaintiff's counsel rendered her client constructively absent from part of the court-ordered deposition. She also left the defendants with little choice but to bring their sixth motion, which once again sought compliance with a court order.

The disobedience of the court's mandates demonstrates the contumaciousness of the misconduct in question. The tactics employed at the deposition further demonstrate the willfulness of the misconduct in question. It would therefore be within the court's discretion to dismiss the plaintiff's lawsuit or to strike pleadings in their entirety. The court is also cognizant that the penalty imposed should be commensurate with the disobedience it is designed to punish. Accordingly, the plaintiff is precluded from introducing any evidence at trial, including any expert testimony, concerning the plaintiff's “economic loss,” including future lost wages, loss of past household services and loss of future household services. The plaintiff shall be permitted to offer evidence concerning her “past” lost wages -- i.e. the income and associated benefits she lost as-a-result of being unable to work from December 8, 2008 to January 8, 2009 -- as set forth in the plaintiff's original Verified Bill of Particulars.

Trial, beginning with jury selection, is scheduled to commence on September 20, 2018 at 9:30 a.m. A final pre-trial conference shall take place on September 17, 2018 at 1:00 p.m. Counsel should be prepared to discuss the following: all theories of liability as well as the proof supporting those theories; all damages claims as well as the proof supporting those claims; all likely defenses to liability and damages; the identity of all witnesses likely to be called at trial as well as the sum and substance of their anticipated testimony; and, the anticipated order of proof.

The foregoing shall constitute the decision and order of this court.

Frank A. Sedita III, J.