Thomas v. Alleyne

302 A.D.2d 36, 752 N.Y.S.2d 362, 2002 N.Y. App. Div. LEXIS 12343
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 16, 2002
StatusPublished
Cited by7 cases

This text of 302 A.D.2d 36 (Thomas v. Alleyne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Alleyne, 302 A.D.2d 36, 752 N.Y.S.2d 362, 2002 N.Y. App. Div. LEXIS 12343 (N.Y. Ct. App. 2002).

Opinion

OPINION OF THE COURT

Prudenti, P.J.

Pursuant to CPLR 3101 (d) (1) (i), the plaintiff in a medical malpractice case must, upon demand, disclose the qualifications of his or her prospective expert witness. In this case, the plaintiff argues that full compliance with this statutory mandate would enable the defendants to learn the identity of her expert, and that she should therefore be required to disclose none of her expert’s qualifications other than (1) whether her expert is “board certified,” and, if so, by what board or boards, and (2) the identity of all states in which her expert is licensed to practice (see e.g. Duran v New York City Health & Hosps. Corp., 182 Misc 2d 232). The plaintiff argues that our decision in Jasopersaud v Tao Gyoun Rho (169 AD2d 184) should be overruled to the extent that it requires disclosure of any additional information concerning her expert’s qualifications, such as, for example, the institutions attended by her expert in connection with his or her medical education, internship, and residency.

We agree with the plaintiff that our decision in Jasopersaud v Tao Gyoun Rho (supra) should be reexamined in light of current conditions. However, while we agree with the plaintiff that the holding of the Jasopersaud case must be reconsidered, we believe that the holding of that case was, if anything, unduly restrictive of the discovery authorized under New York law in respect to the qualifications of the experts proposed to be called at trial by the various parties. Under the approach taken in Jasopersaud (supra), defendants were foreclosed from obtaining disclosure to which they would otherwise have had a statutory right, merely because such disclosure would have, or at least might have, led to revelation of the identity of the plaintiff’s expert. We now abandon that approach as being both unworkable and inconsistent with the terms of the governing statute, and hold that defendants in medical malpractice actions are presumptively entitled to a statement of the plaintiff’s [38]*38expert’s qualifications in “reasonable detail” (CPLR 3101 [d] [1] [1] ), as the statute commands, and that the plaintiffs in such cases may avoid compliance with this obligation only upon production of proof sufficient to sustain findings (a) that there is a reasonable probability that such compliance would lead to the disclosure of the actual identity of their expert or experts, and (b) that there is a reasonable probability that such disclosure would cause such expert or experts to be subjected to “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice” (CPLR 3103 [a]).

By notice dated November 27, 2000, the respondent Interfaith Medical Center (hereinafter Interfaith) demanded that the plaintiff provide, among other things, a statement of the qualifications of each person whom the plaintiff expects to call as an expert witness at the trial of this action. The data requested includes: (1) in the case of a board-certified expert, the name of the certifying board and the year of certification, (2) the states in which the expert is licensed, (3) the title of any text authored, contributed to, or edited by, the expert, together with an appropriate citation (by name of publication, volume number, date, or other appropriate identifying matter), (4) the undergraduate school attended by such expert, with year of graduation, (5) the medical school attended by such expert, with the year of graduation, and (7) the institutions attended by the expert in connection with any internship, residency, fellowship, or other specialized training, and the dates of such attendance.

In a less-detailed notice dated August 22, 2001, the respondent Erskine Alleyne, M.D., demanded that the plaintiff state the qualifications of each expert witness that the plaintiff intends to call at trial.

By notice of motion dated October 9, 2001, the plaintiff sought a protective order with respect to these demands. In his affirmation in support of the motion, counsel asserted that he, or someone under his guidance, entered into a computer terminal various data relating to the plaintiff’s expert’s (1) state of licensing, (2) board certifications, (3) medical school background, (4) place of internship, and (5) place of residency. According to counsel, the processing of this information by the computer, in accordance with an appropriate program, was sufficient for the operator of the computer terminal to discover, with relative ease, the identity of one single physician who was, in fact, the plaintiff’s proposed expert.

Based on this experiment, and based on similar experiments conducted by entering into the computer certain data derived [39]*39from the curriculum vitae of a presumably typical physician taken as a model, counsel argued that the plaintiffs compliance with the discovery demands made by Interfaith, would permit the defendants to identify the plaintiffs expert “with a few simple key strokes.” Counsel asserted that the plaintiff should be compelled to disclose no more than her proposed expert’s states of licensing and board certification status, because this, according to counsel, “is all that trial lawyers need to prepare for trial.” Based on counsel’s computer-based experiments, at least 1,000 physicians share the board certification status and state of licensing status particular to the plaintiffs chosen expert.

The defendants opposed the plaintiffs motion for a protective order. Interfaith cross-moved to compel compliance with its demand. In large measure, the affirmations submitted by counsel focus on the proper interpretation to be given to this Court’s prior decision in Jasopersaud v Tao Gyoun Rho (supra) in light of the simplification and proliferation of computer technology that has occurred since the date of that decision. The expansion of this technology, according to the plaintiffs counsel, now permits anyone, or at least anyone possessing the will and the modest amount of expertise necessary, to determine, based on a full and accurate statement of a particular physician’s credentials, exactly who that physician is.

The Supreme Court, following Jasopersaud, granted Interfaith’s cross motion to compel disclosure only to the extent of directing that the plaintiff would be required to disclose (1) the medical school attended by the expert, (2) the board or boards, if any, that have certified the expert, (3) the area of the expert’s specialty, (4) the jurisdiction or jurisdictions in which the expert is licensed to practice, and (5) the location of the expert’s internships, residencies, and fellowships. The Supreme Court granted the plaintiffs motion for a protective order to the extent of, in effect, vacating so much of the defendants’ notices as called for the production of any additional information concerning the qualifications of the plaintiffs expert. In its decision, the Supreme Court explained that, in making the foregoing dispositions, it was following the decision of this Court in Jasopersaud even though the continued vitality of that case has been called into question. The Supreme Court stated, in part:

“Plaintiff now seeks to revise the Jasopersaud decision to further limit disclosure to essentially only [40]*40the licensing state and board certifications. Current computerized search engines utilizing the minimal amount of information that Jasopersaud authorizes can often apparently compromise or render futile protecting an expert’s identity.

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Cite This Page — Counsel Stack

Bluebook (online)
302 A.D.2d 36, 752 N.Y.S.2d 362, 2002 N.Y. App. Div. LEXIS 12343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-alleyne-nyappdiv-2002.