Plaintiffs, Defendants. X. Upon the annexed Affirmation of GERI B. HORENSTEIN, ESQ., dated October 9,

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1 GBH/oo PRESENT: HONORABLE J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DEBORAH LEWITTES STAMPFER and MORRIS STAMPFER, -against- Plaintiffs, X At an Part for the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse thereof, located at 60 Centre Street, New York, New York on the day of October ORDER TO SHOW CAUSE Index No.: /2015 THOMAS CAPUTO, M.D., DOUGLAS SCHERR, M.D., MICHAEL LIEBERMAN, M.D., WEILL CORNELL MEDICAL COLLEGE, THE NEW YORK AND PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER, Defendants. X Upon the annexed Affirmation of GERI B. HORENSTEIN, ESQ., dated October 9, 2015, upon the exhibits annexed thereto, and upon all prior pleadings and proceedings herein; and upon due consideration, it is hereby: ORDERED that plaintiff show cause before the Supreme Court of the State of New York, County of New York, at the Courthouse located at 60 Centre Street on the day of October, 2015, at 9:30 o clock of the forenoon of that day or as soon thereafter as counsel may be heard, as to why this Court should not issue an Order, pursuant to CPLR 3103, 3403 & 3407: (a) (b) Vacating plaintiffs Notice to Take Deposition Upon Oral Examination to Preserve Plaintiffs Testimony, dated October 1, 2015; Granting defendants THOMAS CAPUTO, M.D., DOUGLAS SCHERR, M.D., MICHAEL LIEBERMAN, M.D., CORNELL UNIVERSITY s/h/a WEILL CORNELL MEDICAL COLLEGE, THE NEW YORK AND PRESBYTERIAN HOSPITAL s/h/a THE NEW YORK AND PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER a protective order

2 precluding the use of videotape to conduct any part of the deposition of plaintiff DEBORAH LEWITTES STAMPFER; (c) (d) Precluding the testimony and video images to be taken of plaintiff on October 22, 2015 as unilaterally scheduled by plaintiffs coxmsel; and, Granting defendant such other and further relief as this Court may deem just and proper. SUFFICIENT CAUSE APPEARING THEREFORE, ORDERED that pending hearing and determination of this Order to Show Cause, and entry of an Order thereon, all further proceedings in the Supreme Court, New York County in the above-captioned action shall be stayed; and it is further, ORDERED that service of a copy of this order to show cause and the papers upon which it was made upon counsel for plaintiffs, THE JACOB D. FUCHSBERG LAW FIRM, LLP, 500 Fifth Avenue, 45th Floor, New York, New York, via overnight mail on or before the day of October, 2015, be deemed good and sufficient service. IT IS FURTHER ORDERED that opposition papers, if any, shall be served upon defendants counsel on or before the day of October 2015, via overnight mail. No previous application for the relief requested herein has been made to this or any other Court of competent jurisdiction. J.S.C. Dated: New York, New York October 8,

3 GBH/oc SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DEBORAH LEWITTES STAMPFER and MORRIS STAMPFER, Plaintiffs, AFFIRMATION Index No.: /2015 -against- THOMAS CAPUTO, M.D., DOUGLAS SCHERR, M.D., MICHAEL LIEBERMAN, M.D., WEILL CORNELL MEDICAL COLLEGE, THE NEW YORK AND PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER, Defendants. X GERI B. HORENSTEIN, an attorney duly admitted to praetice in the Courts of the State of New York, affirms the following to be true, under the penalty of perjury: 1. I am a member of the firm of Martin Clearwater & Bell llp, the attorneys of reeord for defendants THOMAS CAPUTO, M.D., DOUGLAS SCHERR, M.D., MICHAEL LIEBERMAN, M.D., CORNELL UNIVERSITY s/h/a WEILL CORNELL MEDICAL COLLEGE, THE NEW YORK AND PRESBYTERIAN HOSPITAL s/h/a THE NEW YORK AND PRESBYTERIAN HOSPITAL/WEILL CORNELL MEDICAL CENTER (hereinafter defendants ), and as sueh, I am familiar with the facts and circumstances herein. 2. This affirmation is submitted in support of the instant application, via Order to Show Cause, by defendants seeking an Order pursuant to CPLR 3103, 3403 & 3407: (a) (b) Vacating plaintiffs Notice to Take Deposition Upon Oral Examination to Preserve Plaintiffs Testimony, dated October 1, 2015; Granting defendants THOMAS CAPUTO, M.D., DOUGLAS SCHERR, M.D., MICHAEL LIEBERMAN, M.D., CORNELL UNIVERSITY s/h/a WEILL CORNELL MEDICAL COLLEGE, THE NEW YORK AND PRESBYTERIAN HOSPITAL s/h/a THE NEW YORK AND PRESBYTERIAN _1

4 HOSPITAL/WEILL CORNELL MEDICAL CENTER a protective order precluding the use of videotape to conduct any part of the deposition of plaintiff DEBORAH LEWITTES STAMPFER; (c) (d) 3. Precluding the testimony and video images to be taken of plaintiff on October 22, 2015 as unilaterally scheduled by plaintiffs counsel; and, Granting defendant such other and further relief as this Court may deem just and proper. As set forth in greater detail below, defendants motion for a protective order should be granted. Defendants would be severely prejudiced if plaintiffs deposition were taken for purposes of preserving her trial testimony before defendants have: 1) had an opportunity to obtain any of the discovery to which they are entitled, including, most importantly, the medical records of plaintiffs current and prior treating physicians and other health care providers, as well as relevant finanacial and employment records - to the extent that a loss of earnings claim will be made; 2) received Bills of Particulars; 3) appeared for a preliminary conference; and 4) conducted a discovery deposition. PROCEDURAL HISTORY 4. This is an action for medical malpractice. Plaintiffs commenced the action by filing the Summons and Verified Complaint on August 4, 2015 (Exhibit A ). 5. On September 21, 2015, all defendants joined issue by service of Verified Answers (Exhibit B ). 6. Plaintiffs complaint alleges that from February 7, 2013, and prior and subsequent thereto, defendants were negligent in their care and treatment of the plaintiff with regard to certain medical and pathological complaints, treatment, including but not limited to, necessity for exploratory surgery, biopsy of pelvic mass, diagnoses of samples taken from Plaintiff during exploratory surgery... and that the foregoing medical, radiological, diagnosis, treatment and services were rendered carelessly, unskillfully, negligently, and not in _1 2

5 accordance with accepted standards of medical and nursing care, diagnosis, treatment, and services in the community (Exhibit A ). 7. Served with the Verified Answers were various Discovery demands, including Demands for Authorizations for plaintiffs prior and subsequent treating physieians, and Demands for Verified Bills of Particulars (Exhibit B ). To date, plaintiffs have not filed an RJI, no preliminary eonference has been held, nor have plaintiffs provided the demanded authorizations for plaintiffs medieal records or provided Bills of Particulars. Therefore, absent the vague and non-specifie allegations eontained the Complaint, defendants are not aware of what the specific allegations of negligence will be as to each defendant. Further, defendants are not aware of what the specific claims that will be asserted, i.e. whether plaintiff will be claiming lost earnings, the identity of any physicians or other health care providers with whom plaintiff may have treated prior and subsequent to the events at issue, etc. 8. On October 5, 2015, your affirmant received correspondence from plaintiffs counsel, Allyson Stein, Esq., dated October 1, 2015, in which plaintiffs counse, enclosed a Notice to Take Plaintiffs Videotaped Deposition Upon Oral Examination, and which stated: Per our telephone eonversations earlier today, please let this letter confirm that we will be holding a videotaped deposition to preserve our client s testimony for trial. Per our Notice to Take Plaintiffs Video Deposition, dated October 1, 2015, the video deposition will take place on Oetober 22, We will proceed with the video deposition that day whether or not all sides appear... (Exhibit C ). 9. As a preliminary matter, it should be noted that the aetual Notiee to Take Plaintiffs Videotaped Deposition notices sueh Deposition for October 26th, not October 22nd as stated in Ms. Stein s letter (Exhibit C ). 10. Significantly, it must be also noted that your affirmant and Ms. Stein had never once spoken prior to your affirmant s reeeipt of Ms. Stein s October 1, 2015 correspondence I 3

6 on October 5, As such, immediately upon receipt of plaintiffs correspondence on Ocotber 5th, your affirmant called Ms. Stein, advising that not only was her letter factually inaccurate, but that defendants object to such deposition Notice as improper. During that conversation, Ms. Stein conceded that she and your affirmant had never before spoken. She i further advised that the plaintiff has Stage IV cancer and therefore, plaintiff would be proceeding with preserving her videotaped deposition testimony on October 22nd (though the actual Notice states that the deposition will proceed on October 26th (Exhibit C )). At no point did Ms. Stein state the plaintiff was terminal (although, and as addressed below, that statement alone would also be insufficient to warrant such an expedited videotaped deposition to preserve trial testimony). 11. Immediately after speaking with Ms. Stein on October 5th, your affirmant faxed a letter to her, confirming our conversation of that day, i.e., that she and I had never before spoken, that clearly any such telephone conversation she referenced in her October 1, 2015 correspondence had not occurred; that receipt of this con-espondence was the first time defendants had learned of plaintiffs intention to proceed with such a deposition; and that defendants object to plaintiffs Notice and will be seeking Court intervention on the basis that such deposition was improperly noticed, and that plaintiffs have failed to provide proper support for such preservation of testimony (Exhibit D ). 12. With her October 1st correspondence, Ms. Stein also included a disc containing some of plaintiff s medical records. That disc contains: 1) an incomplete copy of defendants own records referable to the plaintiffs February 2013 operative admission to The New York and Presbyterian Hospital - Cornell Campus (the disc plaintiff provided contains 170 pages from the subject admission - the record of the entire admission is 1,444 pages, and there were no outpatient records regarding the defendants care); 2) 8 pages of records from New

7 Rochelle Radiology, the most reeent report dated June 3, 2014, well over a year ago (Exhibit E ); and 3) 15 pages of records from The New York and Presbyterian Hospital - Columbia Campus, whieh contain a discharge summary dated Deeember 16, 2013; a Patient Record Summary from December 2, 2013 to Deeember 16, 2013; a Surgical Pathology Report dated December 9, 2013 with a Deeember 13, 2013 addendum; and, a two page Chemotherapy Log eontaining dates from January 13th through May 13th, though from what year is unelear (Exhibit F ). 13. Significantly, none of the records on that disc indicate what plaintiffs eurrent health status is, or her prognosis. The only relevant information contained in those reeords regarding her prognosis is the pathology report from December 2013, which states that Because the tumor invades thi-ough reetal mueosa, it is elassified as a stage IV eancer (Exhibit F ). Nowhere do the records state that her eondition is terminal, nor what her life expeetancy is. ARGUMENT I. 14. The Notice to Take Plaintiffs Videotaped Deposition Upon Oral Examination to Preserve Plaintiffs Trial Testimony is Proeedurally Defeetive and Should Be Vacated. Pursuant to CPLR 3407, a plaintiff seeking expedited discovery based on the terminal nature of an illness must submit a physician s Affidavit demonstrating: (1) that the party is terminally ill; (2) the nature of the terminal illness; and (3) the duration of life expeetancy of the party, if known. Here, no such application has been made by plaintiff, nor has such an affirmation been provided to the defendants. 15. Nor do the medieal records plaintiff provided to the defendants reveal any evidence that the plaintiffs condition is terminal. The impression of the most recent radiology report, from June 2014, shows no evidenee of new disease, and as discussed the above, the

8 most recent pathology provided, from December 2013, merely states that Because the tumor invades through rectal mucosa, it is classified as a stage IV cancer (Exhibits E and F ). 16. Instead plaintiffs seek preference to expedite the case, without first having disclosed all necessary information, documentation. Bills of Particulars, and authorizations to defense counsel, and further, without the parties even having the benefit of a Preliminary Conference. 17. If plaintiffs are seeking preference to expedite discovery based upon, amongst other things, her allegedly imminent death, the proper course is to seek such relief from the Court by sufficiently demonstrating her entitlement to same. See CPLR 3403 & However, here, plaintiffs have made no application to the Court for either expedited discovery, or even an expedited Preliminary Conference. In fact, plaintiffs have note ven filed a Request for Judicial Intervention. 19. Instead, plaintiffs seek to strong-arm defendants to expedite discovery without proper preparation and to unnecessarily preserve plaintiff s trial testimony on a whim that she may die sometime in the near future, without ever having conducted a discovery deposition and/or obtained the necessary medical records. 20. It is therefore respectfully requested that plaintiffs Notice to Take Plaintiffs Videotaped Deposition be vacated, and that an order be issued temporarily restraining plaintiffs counsel from proceeding with the deposition as unilaterally scheduled. II. 21. An Immediate Deposition to Preserve Trial Testimony Without Affording the Defendants an Initial Discovery Deposition and Onnortunitv to Review Medical Records Pertaining the Plaintiffs treatment Will Preclude the Defendants From Conducting Meaningful Cross Examination Thereby Unfairly Prejudicing the Defendants. While plaintiffs counsel has conveyed that this expedited videotaped deposition (which she intends to conduct) is necessary as to preserve trial testimony, the method by _1 6

9 which she seeks to do so is clearly improper. 22. Defendants are entitled to first obtain necessary discovery, prior to conducting the deposition of plaintiff, and prior to any proceedings to preserve trial testimony. Here, plaintiff has yet to provide Bills of Partieulars, or authorizations for relevant prior and subsequent medical providers and collateral sources. 23. This is a complex medical malpractice action involving three named individually named physician defendants and two institutional defendants. We know based on the discharge summary from The New York and Presbyterian Hospital Columbia (Exhibit F ), that the plaintiff had a signifieant gynecologic surgical history, as well as a history of urologic surgery. Presumably, this patient has also undergone a significant amount of medical treatment prior to and sinee her treatment at issue, and there is no question that the defendants are entitled to review these reeords to prepare a defense. To require the defendants to depose the plaintiff within two to three weeks, when Bills of Partieulars and medical records have yet to be reeeived would no doubt prejudice the defendants. At this point, the defendants do not even know what the claims in this case are, or what the alleged damages are. 24. Without the relevant medical records, defendants are not in a position to evaluate the issues of liability, the injuries claimed (which again, are as yet unknown), assess the impact, if any, of plaintiff s prior medical history and determine which of the presumably, numerous injuries and conditions will be alleged in the Bills of Particulars are causally related to the alleged delay in diagnosis. 25. In seeking a preservation deposition, plaintiffs make no mention of the provisions of CPLR 3407, whieh serves to balanee the eompeting interests of the plaintiff who requires an expedited diseovery schedule, and the defendant, who is entitled to eonduct discovery in order to avoid exeessive prejudice prior to the preservation deposition. Plaintiffs _1 7

10 failure to rely on these provisions of CPLR 3407 reflects an apparent attempt to circumvent the procedure designed to guide the process of expedited discovery in a balanced manner. 26. To conduct a deposition of the plaintiff without the benefit of the pertinent medical, employment, and earnings records is tantamount to denying the defendant the right to cross-examine the plaintiff It is fundamental that the defendants should have the benefit of reviewing the medical records from other treating physicians and medical care providers who treated the plaintiff before, during and after the alleged malpractice in question. Pizzo v. Bunora, 89 A.D.2d 1013, 454 N.Y.S.2d 455, N.Y.A.D. (2d Dept. 1982) (holding that medical records and reports pertaining to alleged injuries to patient and their diagnosis and treatment by physician were obviously material and necessary to defense and, hence, were discoverable absent a claim that they were prepared for litigation or privileged). 27. Without having so much as seen the plaintiffs records, let alone having the benefit of expert reviews, defendants cannot meaningfully cross-examine plaintiff or challenge her description of the injuries that she claims to have suffered. Nor, without a review of the records, can defendants determine whether she is suffering from any unrelated conditions which could have an impact on her life expectancy. The right to meaningful cross-examination is also fundamental and provides a further basis for denying plaintiffs application and granting the cross-motion. Cf. Matter of Ciraolo, 37 A.D.3d 461 (2nd Dept. 2007)(where deponent died prior to completion of deposition and before cross-examination, deposition was properly precluded from admission into evidence on the ground that the respondent was deprived of the opportunity to cross-examine him). 28. As noted previously, the action was commenced in August 2015, and despite prompt service of demands for HIPAA-compliant authorizations and Bills of Particulars together with their Answers, defendants have not yet received copies of the vast majority of

11 permitted to conduct a deposition for discovery purposes at least one week prior to any videotaped deposition. The benefit of the prior deposition is critical in preparing for crossexamination of the plaintiff. It is indisputable that the discovery deposition is a vital and arguably the most important discovery tool available to a litigant, and as such, it should not be denied to the defendants. The potential prejudice to the plaintiffs by submitting to a discovery deposition on a date prior to a videotaped deposition to preserve testimony is minute, as compared to the definite and severe prejudice to the defense if it is denied. If, for example, the plaintiff conducts her preservation deposition and then the plaintiff dies prior to the defendants discovery deposition, then the defense would have been prevented the opportunity to cross examine the plaintiff. plaintiffs medical records. Nor do defendants know whether lost earning or other economc damages will be claimed, and to the extent that such claims will be asserted, such records have also not been provided. Defendants would be severely prejudiced in their defense of this action at trial if plaintiffs attorneys were permitted to videotape her deposition to preserve her trial testimony before they have obtained her medical records. Such a one-sided deposition would inevitably emphasize the extent of plaintiffs pain and suffering and emotional distress as a means of eliciting sympathy from the jury in the event that the plaintiff is no longer alive at the time of trial. Such a deposition would also enable the plaintiff to present a unilateral and selfserving account of her prior medical history. Without having the opportunity of reviewing the relevant records, defendants would be unable to meaningfully challenge any aspect of such testimony. No matter how sympathetic the plaintiffs circumstances may appear to the Court, plaintiffs attempts to circumvent the defendants rights to a meaningful discovery deposition under the guise of preserving testimony for trial should not be condoned. 29. Based upon the foregoing it is also respectfully requested that the defendant be _1 9

12 CONCLUSION 30. Because of the substantial prejudice that would result to defendants if plaintiffs attorneys were allowed to preserve her testimony before defendants have obtained any of the relevant medical records or Bills of Particulars, the Court should grant the defendants motion for a protective order pursuant to CPLR 3103(a). That section, in pertinent part, permits the Court to make a protective order denying, limiting or condition the use of any disclosure device, in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage. or other prejudice to any person or the court, Plaintiff should not be allowed an end run around defendants rights to disclosure under Article 31 by arguing that her condition is so precarious that a deposition must proceed before defendants have obtained any of the relevant medical records or Bills of Particulars. 31. No prior application for any part of the requested release has been made. Dated: New York, New York October 8, 2015 reri B. Horenstein