COVER NL 09_06.qxd - Nassau County Bar Association

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14 n July/August 2012 n Nassau Lawyer DEENA ... Continued From Page 2 unexpected occurred. “If ever there was a test of tolerance, it had to be during my tenure as President, when Domus was confronted by Court rules regulating the conduct of matrimonial lawyers, switching to a new publisher for the Nassau Lawyer, and inaugurating a trip to London, among other things,” remarked Past President Joe Ryan (1993-94), who calls her the “Queen of Tolerance.” “Despite the enormous pressures exerted on Deena, she remained calm, collected and supportive of our objectives. We cleared through those storms, enjoyed the new publisher generating ‘non-dues revenue,’ and toasted Domus in London’s Middle Temple Great Hall.” “Good heavens. I couldn’t have been president without her,” added Past President Hon. Susan Kluewer (2004-05). The seemingly never-ending parking lot situation at Supreme Court was a major issue during her term. “We ended up suing Nassau County. Deena nudged me when I needed to be nudged. She made me the best NCBA President I could be.” “We didn't always agree. However, we always found common ground,” pointed out Past President Lance Clarke (2007-08). “She helped me to become a better listener than talker. I realized that if I listened, she would never steer me wrong.” During Clarke’s presidency, NCBA tackled issues including diversity, judicial salaries, a new Family Court facility and mortgage foreclosure. But he, along with most others, came to a profound understanding and appreciation for what Deena had to offer. “I call her ‘Mom’ because she has been a mother to every LAW YOU SHOULD KNOW Hosted by: Kenneth J. Landau, Esq. Shayne Dachs, Mineola LAW YOU SHOULD KNOW LAW YOU SHOULD KNOW celebrating 20 years! Diversity in the Law Monday, July 30 • 4 p.m. Tuesday, July 31 • 12 noon Sunday, August 5 • 7 a.m. Starting and Building a (Law) Practice Part 1 — Monday, August 13 • 4 p.m. Tuesday, August 14 • 12 noon Sunday, August 19 • 7 a.m. on 90.3 FM WHPC What a Notary Needs to Know Monday, August 6 • 4 p.m. Tuesday, August 7 • 12 noon Sunday, August 12 • 7 a.m. Part 2— Monday, August 20 • 4 p.m. Tuesday, August 21 • 12 noon Sunday, August 26 • 7 a.m. on 90.3 FM WHPC radio, live voicestream at www.ncc.edu/whpc or free podcast from www.itunes.ncc.edu president since her arrival,” Clarke said. “She wants you to succeed more than you do yourself. Her unending support for her presidents, even when she disagreed, was unwavering.” The Heart of NCBA If the membership of nearly 6,000 attorneys, judges and law students are the body of the NCBA, and the Board of Directors the head, then the Executive Director Deena Ehrlich is the heart. “She had great insight into people’s personality, not only with the staff, but the members as well. She helped me keep my perspective and continuity. She would always suggest a variable alternative. She let you make the choice, but presented it with tact and grace,” noted Frank Yanelli. “Deena knew her people. She kept us focused.” “I remember Deena as always having a smiling, upbeat, ‘can-do’ attitude in all she did during my tenure,” added Past President Owen Walsh (2001-02). “The best of Deena was when a member was in need,” observed Past President Chris McGrath (2005- 06). “If a member was having hard times, dues were never a problem. If a member or the member’s family needed anything, Deena was always on the phone reaching out for assistance.” Deena worked hard to make the President look good, but she credits the incredible staff as the true backbone of NCBA. “When I first met her 25 years ago, I knew she was going to be my friend,” noted Barbara Kraut, who coordinates the Nassau Academy of Law. “On her first day, she brought in a chocolate rose for everyone on the staff. That just shows what type of person she is.” “Deena made us look forward to coming to work Make a difference in someone’s life– Be a Mentor! S S A N B A R A A S each day,” she went on. “Deena has the talent to be able to encourage each staff person to work to his or her full potential, and she promoted a spirit of teamwork at the Bar.” This month, at her final staff luncheon at Domus before she retired, Deena enjoyed reviewing her Domus career in pictures put together by Hector Herrera, and laughed along with the staff singing a special rendition of “Thanks for the Memories” written by Caryle Katz, Administrator of Community Relations and Public Education (“Thanks for the memory/Of nail lacquer hues, changing your hairdo’s/ We’ll miss your style, we’ll miss your smile/And annual reviews/How much fun it was!). A beautiful necklace was presented from the staff, “I couldn’t have done it without all of you,” Deena said to staff members through her tears. “Some think it’s me, but it is really all of you who make me look good. This organization has really done a lot of good things over the years that I’m really proud of, and have made us the leading Bar Association in the country. We’ve been together for highs and lows, and I could not have gotten through the lows without all of you.” So as the sun sets on the “Deena Dynasty” at the Nassau County Bar Association, and Deena heads into the enjoyment of her well-deserved retirement, mixed feelings are left behind. Domus will never be the same. Although the physical person will no longer be here, the spirit of Deena Ehrlich’s warmth and caring will be forever entwined in the bricks and mortar of the Bar Association’s headquarters, and in the hearts of the many attorneys, judges, law students, staff, wives and husbands, community leaders and residents, whose lives she touched. She will always be with us when we ... The Nassau County Bar Association Board of Directors wishes Deena a fond farewell at her final Annual Meeting held in June. (Photo by Hector Herrera) U CO U A I S O C N T Y Founded 1899 N O I T Come Home to Domus! ATTORNEYS & JUDGES NCBA is looking for additional mentors for Middle School students. 8 a.m. to 8:45 a.m. one day every other week Oct. 2012 through May 2013 Students in (y)our following communities are awaiting mentors. Hempstead • Uniondale • Jericho Westbury • East Meadow Please contact Elaine Leventhal at 516-747-4070 x.212
DOCTORS ... Continued From Page 3 Johnson: Onto Depositions Eleven years later, the Second Department, in Johnson v. New York City Health & Hospitals Corp., extended the McDermott holding to depositions. 9 At the deposition, questions were not permitted of the doctor produced by the defendant on the grounds that it called for an expression of an opinion and the doctor was not a party defendant in the lawsuit. The Court framed the question as follows: “The issue is whether the rule of McDermott v. Manhattan Eye, Ear & Throat should be extended to examinations before trial. Finding that every evidentiary expansion touching the trial touches the pretrial deposition as well, and that the scope is even greater at a deposition, McDermott must be held to affect both, citing as well CPLR 3113. Carvalho: But Hold On, There Are Limits Two years later, however, the same Court, in Carvalho v. New Rochelle Hospital, qualified the rule somewhat, by holding that one defendant physician may not be examined before trial about the professional quality of care by another defendant physician if the questions “bear solely on the alleged negligence of the co-defendant and not on the practice of the witness.” 10 In Carvalho, the plaintiff underwent an appendectomy performed by a Dr. Mannix; the pathology report revealed purulent exudate on the specimen. Dr. Cappelletti, who performed subsequent surgeries on the defendant, was questioned concerning the significance of this finding with respect to developing a post operative abscess and whether a doctor (i.e., Mannix) should have gotten a culture and sensitivity on the material. 11 Citing both McDermott and Johnson for the proposition that a defendant may not be question about the professional quality of the services rendered by a codefendant if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness. The Court went on to hold that it is proper, however, if the opinion sought refers to the treatment rendered by the witness, even if it also refers to the treatment by the co-defendant. 12 Having read, and re-read both McDermott and Johnson, I have been unable to find anything in the language in these decisions supporting the main holding of the case, or even the sentiment above expressed. 13 Ithier: Authoritative Text In Ithier v. Solomon – one year after Carvalho – the ability to inquire of the defendant-doctor concerning what text books he considered “authoritative” was all but eliminated. 14 In Ithier, where plaintiff alleged the doctor misdiagnosed the plaintiff’s ailment as tuberculosis, the defendant was asked whether he recognized “any books as authoritative in the field of tuberculosis,” as well as what text books he had studied in medical school or subsequent thereto dealing with tuberculosis. The Court, without citing any authority, declared these questions “altogether too broad.” 15 In a similar situation, defendants in medical malpractice action were not required to disclose to the patient the medical literature that the defendant doctor referenced, but was allegedly unable to specifically recall, during his deposition; it could not be determined whether the failure to identify the medical literature was either willful or in bad faith, and the doctor was not appearing as defendants’ expert, the alternative theory of causation the doctor proffered was not posited with a reasonable degree of medical certainty, and defendants could not be compelled to produce information which they did not possess. 16 Bubar: The New Light The only case which discusses Carvalho since the “New Rules” (Part 221 of the Uniform Rules for the Trial Courts Relating to the Conduct of Depositions became effective October 1, 2006) is Bubar v. Brodman. 17 The case involved a cardiac bypass and aortic valve replacement, where there was a bleeding complication requiring re-exploration; the operative report did not include the re-exploration surgery. The subsequent treating cardiologist was not otherwise made aware of the complication. The patient later developed sepsis leading to a stroke. During the cardiologist’s deposition, he In practice, however, the line between permissible factual testimony and impermissible expert opinion testimony is not always clear. was instructed not to answer, on the grounds that it was a hypothetical question, a number of questions concerning the significance of the post-operative bleeding complication. 18 Justice Neymoyer directed the doctor to answer the questions blocked at the prior deposition. A close analysis of the McDermott and Johnson, so reasons the Judge, in light of the current law, suggests that the holding in Carvalho is no longer valid, and the questions and answers should be permitted. If the deponent knows the standard of care, whether or not it bears on the treatment of another doctor, he should be required to state it. 19 Does this case, while merely a lower court decision, mark the death of Carvalho? This is a very reasoned decision, which is totally consistent with the letter and spirit of the New Rules and existing case law, Carvalho not with standing. Reason suggests that Carvalho is indeed dead. If the doctor knows the standard of care, then he must answer the question at a deposition. Depositions of Non-party Doctors Generally, expert opinions are not permitted of doctors at non-party depositions. In People ex rel. Kraushaar Broos. & Co. v. Thorpe it was noted: “the rule in England holding that an expert witness cannot be compelled to give expert testimony but may contract to do so for an adequate consideration, “was also the rule in New York; it is still the rule. 20 An examiner cannot compel a non-party expert to answer questions, which seek expert opinion; he may only ask “fact” questions. 21 In practice, however, the line between permissible factual testimony and impermissible expert opinion testimony is not always clear. In Horowitz v Upjohn Co. the trial judge had made a prospective ruling concerning the scope of the deposition of the non-party, partner, and physician. 22 There the Court held: “Moreover, the witness, in his capacity as a physician, may possess knowledge of discoverable facts which goes beyond that which is derived from his direct contact with the infant plaintiff's mother. The Supreme Court therefore improvidently exercised its discretion when it, in effect, prospec- tively limited the scope of examination to the witness’s treatment of the infant plaintiff's mother.” 23 In an interesting case, counsel for non-party physicians-witness was precluded from objection during or otherwise participating in his client’s videotaped deposition. 24 The court reasoned that CPLR 3113(c) provides that the examination and cross-examination of deposition witnesses “shall proceed as permitted in the trial of actions in open court.” Clearly, the witness’s attorney would not be permitted to object to questions posed at the time of trial. 25 An interesting issue arises when a nonparty witness subpoena is served on a former employee of one of the parties. In Rivera v. Lutheran Medical Center the attorneys for defendant contacted former employee witnesses and advised them that they would represent them, without fee, in pending nonparty depositions. 26 Most of the witnesses were not in a position to bind Lutheran. 27 There, the Court disapproved of the attorneys “soliciting” the clients, in violation of Rules of Professional Conduct, 22 NYCRR 1200, Rule 7.3, and disqualified the firm from representing the witnesses. The Court held that the law firm was attempting to get a tactical advantage to prevent informal interviews of the employees by representing them, without fee. 28 Conclusion As the Court of Appeals noted almost a half century ago in McDermott, “the issue of deviation from the standard of care is assuredly pertinent and relevant to a malpractice action.” The two prong standard found in the Uniform Rules for the Conduct of Depositions, 221.3 (iii) requires the witness to answer all questions unless the question is “plainly Nassau Lawyer n July/August 2012 n 15 improper and would, if answered, cause significant prejudice to any person.” The use of the conjunction “and” eliminates a Carvalho objection; if the witness knows the standard of care, and it is relevant to the case, he is required to give the answer. W. Russell Corker, Esq. with offices in Garden City and Huntington, represents plaintiffs in medical malpractice, personal injury, labor law, and products liability cases. He can be reached at rcorker@corkerlaw.com. 1. See McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20 (1964); Orner v. Mount Sinai Hosp., 305 A.D.2d 307 (1st Dept. 2003); Johnson v. New York City Health & Hosps. Corp., 49 A.D.2d 234, 236 (2nd Dept. 1975). 2. See Lacerenza v. Rich, 39 A.D.2d 716 (2nd Dept. 1972). 3. 15 N.Y.2d at 29–30. 4. Id. at 23. 5. Id. at 26. 6. Id. at 27. 7. Id. at 28. 8. 53 A.D.2d 635 (2nd Dept. 1976). 9. 49 A.D.2d 234 (2nd Dept. 1975). 10. 53 A.D.2d at 635. 11. Id. 12. Id. at 635–36. 13. See also Harley v. Catholic Medical Center, 57 A.D.827 (2nd Dept. 1977). 14. 59 A.D.2d 935 (2nd Dept. 1977). 15. Id. 16. Sagiv v. Gamache, 26 A.D.3d 368 (2nd Dept. 2006). See also Forgays v. Merola, 222 A.D.2d 1088 (4th Dept. 1995). 17. 30 Misc.3d 324 (Sup. Ct., Erie Co. 2010). 18. Id. at 326. 19. Id. at 330–34. 20. 296 N.Y. 223 (1947). 21. See Fristrom v. Peekskill Co. Hosp., 239 A.D.2d 315 (2nd Dept. 1997); Piervinanzi v. Bronx Cross County Med. Gp., 244 A.D.2d 396 (2nd Dept. 1997); Jones v. Cummings, 55 A.D.3d 677 (2nd Dept. 2008). 22. 149 A.D.2d 467 (2nd Dept. 1989). 23. Id. at 468. 24. Thompson v. Mather, 70 A.D.3d 1436 (4th Dept. 2010). 25. Id. at 1438. 26. 73 A.D.3d 891 (2nd Dept. 2010). 27. See Neisig v. Team I, 76 N.Y.2d 363 (1990). 28. Id. at 372–74. Who’s getting all the best leads? ...people who understand how to use networking to their advantage. It’s about relationships, guidance, giving and support. We are all faced with new challenges. Why not join the organization where it all started? Under the guidance of a professional facilitator, you’ll exchange expertise, experiences, and business information of every type. And of course, new business leads. At ABA, learn what genuine networking is all about. The atmosphere is friendly but the approach is strictly business. For more information, please contact Ellen at 631-425-9585 or visit us at aba-ny.com. Business to business networking councils Manhattan • New Jersey • Nassau • Suffolk
Page 1 and 2: THE JOURNAL OF THE NASSAU COUNTY BA
Page 3 and 4: By Christopher J. DelliCarpini and
Page 5 and 6: Personal Injury Focus The Emergency
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Page 9 and 10: Let the Buyer Beware Historically,
Page 11 and 12: School was just the beginning N BOT
Page 13: REVEL IN YOUR ACCOMPLISHMENTS SEPTE
Page 17 and 18: EMERGENCY DOCTRINE ... Continued Fr
Page 19 and 20: LAWYER TO LAWYER DIVORCE MEDIATION

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