ADDITIONAL CASES John Carlson, Plaintiff v. Tappan Zee Constructors, LLC, and Welsbach Electric Corp., Defendants; 58719/2019 Welsbach Electric Corp., Third-Party Plaintiff v. Schupp’s Line Construction, Inc., Third-Party Defendant Tappan Zee Constructors, LLC, Second Third-Party Plaintiff v. Schupp’s Line Construction, Inc., Second Third-Party Defendant The following papers numbered 1 to 18 were read on the motion by defendant/third-party plaintiff Welsbach Electric Corp. (hereinafter “Welsbach Electric”) for an order pursuant to CPLR 3124, 3126 and 2308, compelling plaintiff to provide complete responses to outstanding discovery within twenty days, or precluding plaintiff from testifying or offering any evidence at trial on each issue for which outstanding discovery remains; compelling nonparty IME Watchdog, Inc. (hereinafter IME Watchdog) to provide responses to the so ordered subpoena dated September 28, 2021;1 precluding IME Watchdog, Inc. from testifying at trial or offering any affidavit or documentation it prepared in connection with this matter; and for such other and further relief as this Court deems just and proper. PAPERS NUMBERED Notice of Motion / Affirmation in Support / Affirmation of Good Faith / Exhibits / Affidavits of Service 1-12 Amended Briefing Schedule 13 Affirmation in Opposition / Affidavit of Service 14-15 Affirmation in Reply / Exhibit / Affidavit of Service 16-18 DECISION AND ORDER Plaintiff seeks to recover damages for injuries allegedly sustained on July 30, 2018 at a worksite located at the Tappan Zee Bridge. Plaintiff, an employee of third-party defendant/second third-party defendant Schupp’s Line Construction, Inc., was allegedly injured while using an unsecured articulating man-lift when the safety device failed to prevent his injury. Plaintiff alleges that Tappan Zee Constructors, LLC retained Welsbach Electric to perform labor and services at the worksite. Plaintiff asserts claims pursuant to Labor Law 200, 240(1), and 241(6) (Petrossian Affirmation, Exhibit A). Plaintiff was produced for physical examinations by Dr. Bazos, Dr. Elkin, Dr. Getreu, and Dr. Ramnauth. The examinations were observed by IME Watchdog. Welsbach Electric served plaintiff with a notice for discovery dated August 5, 2021, demanding any and all documents and/or communications received from IME Watchdog, including but not limited to all documents, notes, records, communications, statements, photographs, videos and/or other recordings in any format concerning the physical examinations of plaintiff performed by Dr. Bazos, Dr. Elkin, Dr. Getreu, and Dr. Ramnauth (Petrossian Affirmation, Exhibit C). Plaintiff served an August 9, 2021 response objecting to the demand, on the grounds that the material is protected by the attorney work product privilege under CPLR 3101(d)(2), and Welsbach Electric failed to show it has a substantial need for the discovery and it is unable to obtain the substantial equivalent by other means without undue hardship (Petrossian Affirmation, Exhibit D). On August 26, 2021, Welsbach Electric served IME Watchdog with an attorney subpoena seeking its file regarding John Carlson, including but not limited to all documents, communications, notes, records, statements, reports, photographs, videos and other recordings in any format concerning the physical examinations of Mr. Carlson performed by Dr. Bazos, Dr. Elkin, and Dr. Ramnauth (Petrossian Affirmation, Exhibit E). On October 6, 2021, Welsbach Electric served IME Watchdog with a so ordered subpoena seeking the same discovery. The subpoena indicates that this information is necessary for the defense of this action (Petrossian Affirmation, Exhibits F). It is undisputed that plaintiff attended physical examinations noticed by defendants, and plaintiff’s counsel hired IME Watchdog to attend the examinations. Welsbach Electric argues that neither plaintiff nor IME Watchdog have provided the discovery demanded. Welsbach Electric contends that in the event plaintiff and IME Watchdog fail to provide such discovery, plaintiff should be precluded from introducing any evidence or testimony at trial regarding the observations or conclusions of IME Watchdog. Welsbach Electric argues the discovery sought impacts its defense. IME Watchdog may have provided plaintiff’s counsel with a third-party account of the examinations, which could be used to impeach the credibility of the examining physicians or to argue there were deficiencies in the examinations. In opposition, plaintiff argues IME Watchdog was hired to serve as the “eyes and ears” for plaintiff’s counsel, observing what occurred during the physical examination and reporting that information back to plaintiff’s counsel in preparation for trial. The IME observers reportedly did not have formal medical training and they do not qualify as experts. Plaintiff argues that such observers are typically hired to assist plaintiffs in filling out forms at the examining doctor’s office and their presence deters examining physicians from inquiring about matters beyond the scope of the action. Plaintiff argues that any such observer is an agent of plaintiff’s counsel. Plaintiff’s discovery response asserts the attorney work product privilege (Petrossian Affirmation, Exhibit D). In plaintiff’s opposition papers, plaintiff contends that the observers’ notes and other materials constitute materials prepared for litigation which are subject to a qualified privilege under CPLR 3101(d)(2). Plaintiff contends that Welsbach Electric cannot show it has a substantial need for the discovery, or that it cannot obtain the substantial equivalent without undue hardship. Plaintiff argues that Welsbach Electric’s examining physicians can provide it with information regarding the physical examinations and have provided it with comprehensive reports regarding the examinations (Dearie Affirmation, p. 5, 7). Discussion As an initial matter, on November 18, 2021, this motion was served eight days late on IME Watchdog by personal service to an agent authorized to receive service pursuant to CPLR 311(a)(1) (NYSCEF doc # 57, Affidavit of Service). As the motion was returnable on December 6, 2021 and the manner of service was proper, IME Watchdog was on notice of the motion and failed to submit opposition papers. Welsbach Electric provided nonparty IME Watchdog with notice of the circumstances or reasons the discovery is sought by serving the nonparty with its motion papers (see CPLR §3101[a][4]; Alumil Fabrication, Inc. v. F.A. Alpine Window Mfg. Corp., 151 AD3d 667 [2d Dept 2017]). CPLR 3101(a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The phrase “material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (Allen v. Crowell-Collier Publishing Co., 21 NY2d 403 [1968]; Foster v. Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]). Although the discovery provisions of the CPLR are to be liberally construed, “a party does not have the right to uncontrolled and unfettered disclosure” (Merkos L’Inyonei Chinuch, Inc. v. Sharf, 59 AD3d 408 [2d Dept 2009]; Gilman & Ciocia, Inc. v. Walsh, 45 AD3d 531 [2d Dept 2007]). The party seeking disclosure has the burden to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (Foster v. Herbert Slepoy Corp., 74 AD3d 1139 [2d Dept 2010]). This burden exists regardless of whether discovery is sought from another party pursuant to CPLR 3101(a)(1), or a nonparty pursuant to CPLR 3101(a)(4) (Forman v. Henkin, 30 NY3d 656 [2018]; Matter of Kapon v. Koch, 23 NY3d 32 [2014]). “The statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise” (Forman v. Henkin, 30 NY3d 656 [2018](internal citations and quotations omitted). “If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered [matter] material in the action” (Matter of Metro-North Train Acc. of February 3, 2015, 178 AD3d 931 [2d Dept 2019]; Vargas v. Lee, 170 AD3d 1073 [2d Dept 2019]). When a plaintiff puts his or her physical condition in controversy, any party may serve a notice on the plaintiff requiring him or her to submit to a physical examination by a designated physician (CPLR §3121[a]). It is not disputed that a plaintiff is entitled to have his or her attorney, a nonlegal representative, or a third-party observer, such as IME Watchdog, present during a physical examination as long as that individual does not interfere with the conduct of the examination (Gonzalez v. Red Hook Container Term, LLC, 186 AD3d 1331 [2d Dept 2020]). Any notes and materials prepared by the third-party observer related to the conduct or findings of a physical examination would clearly be relevant to the prosecution or defense of the action under CPLR 3101(a)(4). The question regarding whether the third-party observer’s notes and materials are discoverable turns on whether the discovery is protected by privilege. CPLR 3101 carves out three categories of privilege, two of which are asserted by plaintiff with regard to the discovery sought herein. In plaintiff’s discovery response, plaintiff asserts the material is attorney work product, which is absolutely privileged from discovery pursuant to CPLR 3101(c). In plaintiff’s opposition papers, plaintiff asserts the subject discovery constitutes material prepared for litigation, which is conditionally privileged and subject to disclosure only upon a showing of substantial need and undue hardship pursuant to CPLR 3101(d)(2). “In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation” (CPLR §3101[d][2]). Attorney Work Product The burden of establishing that a particular document is privileged as attorney work product or material prepared for litigation is on the party asserting the privilege (Cioffi v. S.M. Foods, Inc., 142 AD3d 520 [2d Dept 2016]; Kellner v. GMC, 273 AD2d 444 [2d Dept 2000]; Wasserman v. Amica Mut. Ins. Co., 193 AD3d 795 [2d Dept 2021]). Attorney work product under CPLR 3101(c) is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her opinion, analysis, conclusions, theory or strategy (Geffner v. Mercy Med. Ctr., 125 AD3d 802 [2d Dept 2015]). The attorney work product privilege extends to consultants retained by counsel to assist in preparing the case for litigation. Where a consultant prepares a document for litigation which is “an adjunct to the lawyer’s strategic thought processes,” it qualifies for complete exemption from disclosure under the attorney work product privilege, as well as conditional immunity as material prepared for litigation (see Oakwood Realty Corp. v. HRH Constr. Corp., 51 AD3d 747 [2d Dept 2008]; Delta Fin. Corp. v. Morrison, 14 Misc3d 428 [Sup Ct, Nassau County 2006]). Here, plaintiff concedes that the information contained in an IME observer’s notes and other materials may not be protected by the attorney work product privilege (Dearie Affirmation, p. 4). Although the attorney work product privilege is asserted in plaintiff’s discovery response, plaintiff does not clearly assert the privilege in opposition to this motion. To the extent plaintiff’s responsive papers could be construed to assert the attorney work product privilege, the Court finds that the IME observers were not akin to “consultants,” as they were only retained by plaintiff’s counsel to attend plaintiff’s physical examinations. Plaintiff’s opposition specifically states that IME Watchdog was hired for the purpose of observing what occurred during the physical examinations, reporting that information back to plaintiff’s counsel, and deterring the examining physicians from inquiring about matters beyond the scope of the action (Dearie Affirmation, p. 2, 4). There is no indication on this motion that the documents or other materials prepared by the IME observers contributed to any of the lawyer’s strategic thought process on the issue of damages. Moreover, in the absence of contrary authority, this Court is constrained to apply the First Department’s determination in holding that IME observer’s notes and other materials are not protected from disclosure as privileged attorney work product. In Markel v. Pure Power Boot Camp (171 AD3d 28 [1st Dept 2019]), the Court determined the notes, reports, memoranda, photographs and other materials prepared by an individual hired by plaintiff’s attorney to be an observer or “watchdog” at an IME were protected from discovery under the qualified privilege applicable to materials prepared for litigation. These materials, however, were not protected as attorney work product. In this regard, the First Department held as follows: “The information contained in the IME observer’s notes and other materials are not protected by either the attorney-client or work product privileges (CPLR 3101 [a][4]). The materials were not generated by plaintiff’s attorney, nor were they used to communicate with the client or convey legal advice to her” (Markel v. Pure Power Boot Camp, supra, 171 AD3d 28, 31, citing Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 NY3d 616 [2016]). This Court is constrained to follow this holding in the absence of any contrary Second Department precedent. Material Prepared for Litigation With respect to the claim that a document or other discoverable thing is material prepared for litigation, plaintiff’s burden is met “by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” (Wasserman v. Amica Mut. Ins. Co., 193 AD3d 795 [2d Dept 2021]). An attorney affirmation containing conclusory assertions that the subject document is material prepared for litigation, without more, is insufficient to sustain this burden (Wasserman v. Amica Mut. Ins. Co., 193 AD3d 795 [2d Dept 2021]; Ligoure v. City of New York, 128 AD3d 1027 [2d Dept 2015]). Once this showing has been made, the burden shifts to the party seeking discovery to demonstrate it has a substantial need for the materials in the preparation of the case and it is unable without undue hardship to obtain the substantial equivalent of the materials by other means (CPLR §3101[d][2]). The statutory language of CPLR 3101(d)(2) specifically protects materials prepared in anticipate of litigation or for trial by or for a party’s representative, including an attorney, consultant, or agent. In the present case, at the time of the subject physical examinations the IME observer in attendance was an agent of plaintiff’s counsel. As noted above, the First Department in Markel v. Pure Power Boot Camp (171 AD3d 28 [1st Dept 2019]) held that an IME observers’ notes, reports, memoranda, photographs, and any other relevant material in her possession were protected as material prepared for litigation (see also Anderson v. Singh, ___ Misc3d ___, 2019 NY Slip Op 34209 [Sup Ct, Westchester County 2019] [denying deposition of employee of IME Advocates, Inc., who attended IME on behalf of plaintiff]; Bent-Anderson v. Singh, ___ Misc3d ___, 2018 NY Slip Op 34037 [Sup Ct, Westchester County 2018] [notes and reports prepared by employee of IME Advocates, Inc., as an agent retained by plaintiffs' counsel, were exempt from disclosure under the work product privilege]). Consequently, the documents or other materials prepared by the IME observers related to the physical examinations are subject to the conditional privilege of material prepared for litigation (CPLR §3101[d][2]; Markel v. Pure Power Boot Camp, 171 AD3d 28 [1st Dept 2019]). On the instant motion, Welsbach Electric does not identify any information related to plaintiff’s physical examination that it cannot obtain from its own examining doctors. As such, Welsbach Electric fails to demonstrate a substantial need for the subject documents and materials and that it cannot obtain the substantial equivalent by other means (CPLR §3101[d][2]). The analysis of this issue was made plain in Markel, where the Court held as follows: “Key to this analysis is that the defendants’ doctor conducted plaintiff’s examination and can provide defendants with any information concerning what generally occurred and what he did at the IME…There is no claim by defendants that they are unable to communicate with their own doctor about what transpired at the IME. In general, under these circumstances, defendants’ access to their own doctor will seriously undermine any argument that there is a substantial need for the IME observer’s materials because the information contained therein is not otherwise available without undue hardship” (171 AD3d at 32 [1st Dept 2019]). It must be noted that Markel applies when the IME observer is not expected to testify at trial. The Markel Court declined to rule on whether the same reasoning would apply if the IME observer were to be called as a trial witness. Thus, the Court stated: “An important consideration in the Court’s analysis is plaintiff’s representation that the IME observer will not be testifying at trial on plaintiff’s affirmative case. We are not deciding whether a different result would obtain were the IME observer expected to be, or actually is, called as a witness at any time during the case…In order to obtain discovery where an IME observer is not expected to testify at trial, there must be a showing that the substantial equivalent of the information is not otherwise available without undue hardship” (171 AD3d at 32 [emphasis added]). The Markel Court referred to an earlier case in which the Court ordered depositions of IME watchdogs. In Santana v. Johnson (154 AD3d 452 [1st Dept 2017]), the First Department affirmed the determination of the trial court in holding that IME observers would be precluded from testifying only in the event that they failed to appear for a deposition within sixty days. An examination of the on-line Bronx County Court records in that case indicates that plaintiff had identified and disclosed the IME observers as trial witnesses. In the present case, it is far from clear if plaintiff intends to call IME Watchdog as a trial witness. At most, the plaintiff has reserved the right to do so. As stated by the movant in reply: “WELSBACH has repeatedly told Plaintiff’s counsel (including within the presence of the Court) that if he agrees in writing not to call the observer as a witness at trial or use the notes or documents at trial, WELSBACH would not pursue IME WATCHDOG’s file. However, Plaintiff wants it both ways. Plaintiff wants to reserve his right to call IME WATCHDOG as a witness at trial, while simultaneously claiming that their notes are nothing more than “trial preparation” notes. This is an inconsistent position. Since Plaintiff has reserved the right to call IME WATCHDOG, WELSBACH is entitled to its file.” (Petrossian Affirmation, p. 4). Reserving the right to call a witness is not tantamount to stating an intent to call a witness. Plaintiff’s position may amount to no more than an understandable litigation strategy that if the physician makes statements found to be untenable, plaintiff may seek to call IME Watchdog — which is clearly part of the reason why IME Watchdog was retained in the first instance. If this is issue is raised at trial, it can be addressed by the trial judge. This Court declines to consider at this time whether the determination would be different if any of the IME observers, or the documents and materials at issue, will be produced at trial by plaintiff on plaintiff’s direct case. Of course, under those circumstances, it would hardly seem to accord with notions of fairness that the defendants should not be permitted to see the underlying documents. In the event that plaintiff intends to or does call a witness from IME Watchdog at trial, or seeks to introduce any documents or materials prepared by IME Watchdog, plaintiff is directed to advise the defendant and the Court without delay so that the Court can fashion an appropriate remedy, if warranted. Accordingly, it is hereby ORDERED that Welsbach Electric’s motion is denied with leave to renew if plaintiff’s counsel states he intends to call a witness from IME Watchdog at trial or introduce any documents or materials prepared by IME Watchdog at trial, or in facts attempts to do so; and it is further ORDERED that insofar as counsel specifically reported no other outstanding discovery at the November 10, 2021 compliance conference (NYSCEF doc #54), plaintiff’s counsel is directed to upload to NYSCEF on or before March 14, 2022 a fully executed Trial Readiness Stipulation and Order to be so ordered by the Court; and it is further ORDERED that plaintiff shall serve a copy of this order with notice of entry upon all parties and IME Watchdog, Inc. within five (5) days, and shall file proof of service on NYSCEF within five (5) days. The foregoing constitutes the decision and order of this Court. Dated: March 4, 2022
