CANTWELL v. JEWISH HOME LIFECARE (2023)

The following papers numbered 1 to 3 read on this order to show cause dated April 13, 2023.

PAPERS, NUMBERED

ORDER TO SHOW CAUSE & AFFIRMATION 1

ANSWERING AFFIDAVIT 2

REPLY AFFIDAVIT 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

Order to show cause by defendant, Jewish Home Lifecare, Manhattan, d/b/a The New Jewish Home (Jewish Home), for a protective order prohibiting plaintiffs from obtaining the nonparty deposition of Elizabeth Weingast is granted. As Jewish Home correctly notes, the crux of plaintiffs' complaint, which alleges medical malpractice, negligence, wrongful death and violation of Public Health Law, is that defendants deviated from the standard of care when they failed to prevent and treat decedent's pressure ulcers. At the time in question, Ms. Weingast was the Vice President of Clinical Excellence at Jewish Home, and according to plaintiffs, her testimony is material and necessary because she was the architect of the policies and procedures. However, according to Jewish Home, Ms. Weingast's testimony bears no relevance to the allegations raised in this action as she did not provide any care or treatment to decedent, nor was she involved in the application of the policies and procedures to decedent's care. In response to the initial request to depose Ms. Weingast, Jewish Home had suggested that plaintiffs designate an alternate witness who was actually involved in the care of decedent, which plaintiffs rejected.

Although CPLR § 3101 provides that there shall be full disclosure, it is only for matters that are material and necessary to the prosecution of an action. (Hudson v 59 Sands, 153 AD3d 611 [2d Dept 2017].) Therefore, in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice, the Court is empowered to issue a protective order denying, limiting, conditioning or regulating the use of any disclosure device. (CPLR § 3103; Bycomp v NY Racing, 126 AD2d 815 [3d Dept 1987].) In an attempt to explain why Ms. Weingast's testimony is relevant, plaintiffs argue that they need “to know how the policies and procedures were developed, why they were developed, how they were implemented and how the facility ensured they were implemented.” However, as previously mentioned, plaintiffs commenced this action on the premises that Jewish Home deviated from the standard of care when it failed to prevent and treat decedent's pressure ulcers. There is no allegation in the complaint that the policy and procedures established by Jewish Home somehow failed to conform with the standard of care, and therefore, how and why they were developed and implemented is not material to plaintiffs' prosecution of this action.

The fact that Ms. Weingast was an author of the policy and procedures in question bears no relevancy to the allegations in this action, as she did not treat and/or care for decedent, and did not apply or misapply the policy and procedures to decedent's care. (Tuzzolino v Consolidated Edison, 135 AD3d 447 [1st Dept 2016] (information from nonparty physician readily available from records, and no showing that deposition of said physician was necessary to prove facts unrelated to diagnosis and treatment); Carson v Hutch, 110 AD3d 468 [1st Dept 2013] (subpoena quashed where testimony sought was not related to diagnosis and treatment, and was not the only means of discovering information sought); Matter of New York City Asbestos v Brookfield, 87 AD3d 467 [1st Dept 2011] (disallowing deposition of nonparty physician where information sought was available from other sources).) The complaint does not allege that the policy and procedures in question failed to conform with the standard of care. Instead, the relevant issues in this action pertain to the care and treatment rendered to decedent. Plaintiffs are already in possession of the policy and procedures, in addition to the medical records which reveal the physicians and nurses who actually rendered care to decedent during the time in question. Ms. Weingast was neither a treating physician nor nurse, and as such, she cannot offer any personal knowledge that would be relevant to the issues raised by plaintiffs in this action.

Based on the aforementioned, the instant order to show cause by Jewish Home for a protective order prohibiting plaintiffs from deposing Elizabeth Weingast is granted. This is without prejudice to plaintiffs designating an alternate witness who was involved in the care of decedent. Jewish Home is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Joseph E. Capella, J.