A state appeals court has reinstated a medical malpractice and wrongful death lawsuit that was dismissed for willful failure to provide discovery, citing an incomplete lower-court record on the discovery, including why it was sent to the wrong counsel, and “the strong public policy in favor of resolving disputes on the merits.”
An Appellate Division, Second Department panel has ruled that the Suffolk County Supreme Court must hold further proceedings on the branch of the defendants’ motion that had successfully sought to strike the complaint of plaintiff Damon Strong for willful failure to provide discovery.
Strong, the administrator of the estate of Latoya Williams, had lodged his action for medical malpractice and wrongful death in 2010 against two physicians, Michelle Delemos and Louis Merriam, according to court records.
The unanimous Second Department appeals panel and an underlying lower-court decision explained that Strong contends the defendant doctors cleared Williams for surgery while failing to diagnose a cardiac condition and, as a result of their negligence, Williams died.
Delemos is an anesthesiologist while Merriam is a general surgeon, according to online records, including from U.S. News & World Report.
The Second Department panel, examining Strong’s appeal of a 2016 order by Suffolk County Supreme Court Justice Paul Baisley striking his complaint, laid out a number of discovery disputes and discovery-focused court orders that have been handed down during the litigation.
The panel of Justices John Leventhal, Sheri Roman, Joseph Maltese and Angela Iannacci first explained that after certain discovery disputes occurred, the lower court issued compliance conference orders directing Strong to provide complete responses to a July 11, 2012, compliance conference order, and to the doctors’ supplemental notices for discovery and inspection dated January 23, 2013, and March 7, 2013, respectively.
Then in an April 2015 order, the Supreme Court vacated the note of issue filed by Strong and determined that he failed to show that he had fully complied with the July 11, 2012, order and the notices. It also directed the parties to cooperate in disclosure proceedings, the justices wrote.
After Strong filed another note of issue, the lower court directed him to furnish adequate responses to outstanding discovery demands within 20 days of its order and notice of entry, said the panel.
The doctor defendants then moved to both vacate the new note of issue and strike the complaint for willful failure to provide discovery.
In an August 2016 oral argument on that motion, Strong’s lawyer “represented” that he had recently served the defendants with responses to the outstanding discovery demands, the justices said. But they also noted that the Supreme Court, at the time, pointed out that Strong’s lawyer had served the discovery responses on the doctors’ former attorneys of record even though Strong had informed the defendants about substitution of counsel.
Later that month, the Supreme Court struck Strong’s complaint, the panel said.
In analyzing Strong’s appeal of the striking of his complaint, the justices wrote that “on the record before this court, it cannot be determined whether the plaintiff’s failure to comply with discovery demands was willful and contumacious.”
They added that “in particular, the record does not reflect the circumstances under which the plaintiff provided his responses to the defendants’ previous attorneys of record, whether those responses were complete, and whether this information was before the Supreme Court when the court made its determination.”
“Under these circumstances,” the justices said in their May 8 opinion, “and in light of the strong public policy in favor of resolving disputes on the merits, the matter should be remitted to the Supreme Court, Suffolk County, for further proceedings.”
Brian Isaac of Pollack, Pollack, Isaac & DeCicco, who represented Strong in the appeal, could not be reached for comment.
David Zegarelli, a partner at Bartlett, was counsel to the defendant doctors in the appeal and also could not be reached.