Fazio v. Federal Express Corp.

272 A.D.2d 259, 708 N.Y.S.2d 71, 2000 N.Y. App. Div. LEXIS 6131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about October 7, 1999, which denied defendants’ motion to quash a judicial subpoena duces tecum issued to non-party witness Jerome Block, M.D., unanimously reversed, on the law, without costs, and the motion granted.

In a personal injury action that is now limited to the issue of damages, defense witness Block conducted an independent medical examination of plaintiff, and also offered expert opinion as to the medical records compiled by plaintiff’s physicians. Efforts were made, at Dr. Block’s deposition, to impeach him for his alleged proclivity for appearing as a defense witness in such cases. The challenged subpoena seeks Dr. Block’s financial records for the previous five years, “pertaining to all money earned for testimony regarding exams, and consults.”

The use of a judicial subpoena for the sole purpose of showing that an examining physician’s history of financial compensation indicates a defense-oriented predisposition — in other words, for the purpose of impeaching the witness’ general credibility — is improper. Such information is irrelevant and immaterial to the underlying facts at issue in the case, and the subpoena should have been quashed (Pernice v Devora, 238 AD2d 558). Concur — Sullivan, P. J., Tom, Mazzarelli, Wallach and Buckley, JJ.