Motion by nonparty medical examiners to quash, modify and fix conditions upon plaintiff’s subpoenas for certain records, and cross-motion by plaintiff to compel compliance with said subpoenas. Plaintiff commenced this action against defendants for damages arising from a personal injury that she sustained in an automobile accident. Defendants have joined issue and conceded liability. Plaintiff has agreed to cap damages at the limits of defendants’ automobile insurance policy. The remaining issue in the case is whether plaintiff’s injuries qualify as serious injuries under Insurance Law §5102 (d). Nonparties Robert McCaffrey, Ph.D., a neuropsychologist, and Daniel Silverman, M.D., a neurologist, were retained by defendants to perform examinations of plaintiff in exploration of this remaining issue. Plaintiff thereafter served each nonparty with a subpoena duces tecum directing production of three classes of documents: (1) All billing records, invoices, payment records, checks and 1099 statements for independent medical examination (IME) services performed on behalf of insurance companies and defense attorneys for the years 2014 through 2020; (2) All reports, expert disclosures, and written memoranda for each examination or record review for which they received payment as reported in item (1), i.e., for IMEs in years 2014 through 2020; and (3) The title and location of the court and the docket number of each case for which they received payment as reported in item (1), i.e., for years 2014 through 2020. The nonparties now move pursuant to CPLR 2304 to quash, modify and fix conditions upon the subpoenas and for protective orders pursuant to CPLR 3103. They seek to modify the subpoena as to item (1) by limiting the disclosure to the requested documents from the period of 2016 through 2020. They seek to quash the subpoena to the extent of its demands in items (2) and (3) or, alternatively, to limit the disclosure thereunder to the period of 2016 through 2020. They seek a protective order permitting redaction of identifying information from any material disclosed, deeming such materials confidential, directing their destruction at the conclusion of this litigation without redisclosure, and directing plaintiff’s counsel to file an affirmation attesting to such destruction and nondisclosure at the conclusion of litigation. They also seek reimbursement for costs of production in response to the subpoena. Plaintiff opposes the nonparties’ motion and cross-moves to compel compliance with the subpoena or, alternatively, for an order striking the nonparties’ expert disclosures and precluding their testimony at trial (see CPLR 2308 [b]). The nonparties replied and opposed the cross-motion and plaintiff replied to the nonparties’ opposition to the cross-motion. Counsel for defendants was heard at oral argument on the motion, as his clients have an interest in the outcome. Upon the court’s reading of the affidavit of Donald P. Ford, Jr., Esq. sworn to March 18, 2021 and the exhibits attached thereto; the affidavit of Daniel J. Silverman, M.D. sworn to March 12, 2021 and the exhibits attached thereto; the affidavit of Robert J. McCaffery, Ph.D. sworn to March 22, 2021 and the exhibits attached thereto; the nonparties’ memorandum of law dated March 19, 2021; the affirmation of Paul H. Wein, Esq. sworn to June 21, 2021; plaintiff’s memorandum of law dated June 21, 2021; the affidavit of Donald P. Ford, Jr. in reply and opposition to cross-motion sworn to June 29, 2021; the affidavit of Robert J. McCaffery, M.D. in reply and opposition to cross-motion sworn to June 22, 2021; and the affirmation of Paul H. Wein, Esq. in reply to the opposition to the cross-motion sworn to August 3, 2021; oral argument on the motion having been held August 6, 2021; and the court having duly deliberated upon all the foregoing, decision is hereby rendered as follows. “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action” (CPLR 3101 [a]). “‘[M]aterial and necessary’ as used in [CPLR 3101 (a)] must ‘be interpreted liberally to require disclosure…of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity’” (Matter of Kapon v. Koch, 23 NY3d 32, 38 [2014], quoting Allen v. CrowellCollier Publ. Co., 21 NY2d 403, 406 [1968]). Thus, “‘[a]n application to quash a subpoena should be granted only where the futility of the process to uncover anything legitimate is inevitable or obvious…or where the information sought is utterly irrelevant to any proper inquiry’” (Matter of Kapon, 23 NY3d at 38, quoting Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 331-332 [1998]; accord Matter of Dairymen’s League Coop. Assn., Inc. v. Murtagh, 274 App Div 591, 595 [1948]). The burden to establish that a subpoena should be vacated, modified or conditioned is on the proponent of the motion to quash (see Matter of Kapon, 23 NY3d at 39). “The test is one of usefulness and reason” (Allen, 21 NY2d at 406). On the authority of Loiselle v. Progressive Cas. Ins. Co. (190 AD3d 17 [3d Dept 2020]), the nonparties concede that the financial documents that plaintiff seeks in its first demand, to the extent that they exist and are under their control, are discoverable and the proper subject of the subpoenas duces tecum with which they were served. In Loiselle, the Third Department held that such documents “may reveal a financial incentive that the [nonparties] have in testifying [and such] incentive is a relevant consideration in ‘ascertain[ing] any possible bias or interest on the part of [the nonparties]‘” (at 20, quoting Porcha v. Binette, 155 AD3d 1676, 1677 [4th Dept 2017]). The nonparties have sought to limit the disclosure of the financial documents to a five-year period (i.e., 2016 through 2020, not 2014 through 2020 as demanded). Though they purported in their papers to ground their request for this relief in Porcha, at oral argument, they conceded that the basis for the request was their arbitrary preference. They have not set forth an adequate basis to explain why the disclosure of financial records for the additional two-year period would present an undue burden or otherwise be abusive (see CPLR 3103 [a]), when producing five years of records is apparently not. As such, the nonparties’ motion to quash must be denied as to the first class of documents identified in the subpoenas, and plaintiff’s motion to compel must commensurately be granted. The court turns now to the second class of documents sought by the subpoenas — examination reports from prior IMEs that the nonparties had conducted on behalf of insurance companies or defense attorneys. In seeking to quash, the nonparties aver that the purpose for which these reports and memoranda are sought is to impeach their general credibility — i.e., a defense-oriented disposition — which has been held to be improper (see Fazio v. Federal Express Corp., 272 AD2d 259, 260 [1st Dept 2000]). They conclude, therefore, that the material sought is irrelevant and not discoverable under CPLR art 31. Plaintiff, on the other hand, insists that the contents of the reports are likely to reveal the very same bias that the financial information would, which has been ruled a proper subject of inquiry and, therefore, discovery (see Loiselle, 190 AD3d at 20).1 The nonparties argue that the reports would not be probative of bias, noting that their assessments are based upon standardized testing, some of which is administered and scored by computer, and that plaintiff fails to identify any erroneous interpretation or assessment of the raw data gleaned from such testing on the parts of the nonparties, such as would indicate their bias. They further assert that a mere difference of opinion between two physicians (i.e., a treating physician and a physician performing an IME) does not indicate a bias in either one of them. In response, plaintiff once again insists that a review of the examination reports will reveal that the nonparties’ medical opinions are overwhelmingly unfavorable to personal injury plaintiffs and moreover, drafted in boilerplate or, as plaintiff’s counsel put it, “cookie cutter” language. This assertion is reportedly based upon plaintiff’s counsel’s “briefcase full of transcripts” of the nonparties’ prior testimony, none of which has been provided to the court. Plaintiff further asserts that insurance “carriers are paying [the nonparties]…to come into court and say this guy isn’t hurt” and that to believe otherwise is “silly” (Aug. 6, 2021 tr at 39). She further asserts that, since examination reports are discoverable under Federal Rules of Civil Procedure rule 26 (a) (2) (b), such reports must be considered material and necessary under New York law. The nonparties and defendants respond to these assertions by observing that counsel — not insurance carriers — select physicians for medical examinations and do so for the purpose of obtaining an honest medical opinion in furtherance of accurately assessing the strength and value of their clients’ cases; and that plaintiff’s counsel’s perspective on the nonparties’ bias is skewed because cases in which their reports are favorable to plaintiffs never reach litigation and would be unknown to him. They also note, in answer to plaintiff’s “cookie cutter” assertion, that the nonparties’ examination reports, like most medical reports, follow the patterns of their examinations. Thus, the fact that the reports may have common structures or use common language is not indicative of bias or a predetermined conclusion. They further poignantly observe that this issue presents larger policy considerations involving the role of medical examinations in litigation that are best addressed by a deliberative rulemaking body, as was apparently the case in the federal system, rather than on a case-by-case basis by the state’s trial courts. The court notes that plaintiff’s arguments are largely conjecture, ostensibly borne of cynicism arising from plaintiff’s counsel’s palpable animus toward the nonparties; his “guarantees” about the contents of the examination reports are based on no more than that opinion. The court is also constrained to note that, though the nonparties and defendants have provided good reasons to doubt whether release of the examination reports would actually indicate any bias or be otherwise useful in the prosecution of this action, the standard clearly favors disclosure, the burden of proof is on the nonparties and they may yet have failed to establish that the examination reports are utterly irrelevant (see Matter of Kapon, 23 NY3d at 38-39; Melfe v. R.C. Diocese of Albany, 196 AD3d 811, 813-814 [3d Dept 2021] [deliberate and repetitive practice]; Loiselle, 90 AD3d at 20). However, cognizant of the nonparties’ policy argument, the court declines to decide this question since the disposition of these motions may be reached upon nonparties’ alternative argument. Even a subpoena that seeks material and necessary facts may be subject to quashing or limitation “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103 [a]). “‘[L]itigants are not without protection against unnecessarily onerous application of the discovery statutes. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by [the target of the subpoena]‘” (Forman v. Henkin, 30 NY3d 656, 662 [2018]; see Perez v. Fleischer, 122 AD3d 1157, 1158 [3d Dept 2014], lv dismissed 25 NY3d 985 [2015]; Tener v. Cremer, 89 AD3d 75, 79-82 [1st Dept 2011]). The nonparties submit that compliance with the subpoenas would present undue burdens on them, their prior examinees and the court. They claim that the time and expense necessary to identify, review and redact the requested information would be onerous, and would likely necessitate their hiring additional staff or retaining third-party vendors to assist them with compliance. They estimate the costs of compliance to be in excess of $30,000 each. Plaintiff counters that production of the reports would not be as costly or time consuming as the nonparties claim — that compliance is as simple as pressing a button on a computer. The nonparties and defendants contest this conclusory assertion, noting that many of the records sought are stored in paper form, in boxes that someone would have to manually search, at considerable time and expense. The nonparties also plead the privileges of their prior examinees and their duties of confidentiality to them, and assert privacy protections for them in state and federal law. They aver that the prior examinees’ waivers of privilege and confidentiality operated only within their own litigation and do not extend to extraneous matters. They state that the prior examinees are both implicitly and explicitly assured of the privacy of their health information outside of the litigation in which they are involved. Plaintiff counters that the prior examinees enjoy no privilege because their relationships with the nonparties are not for the purpose of obtaining medical treatment, and that the information in their reports is not confidential because much of it has been laid upon the public record in the courses of their own litigation. At oral argument, defendants vigorously contested that examination reports are ever laid upon the public record. While neither party has provided the court with any authority to support their position on this question, the parties do seem to agree that an examination report would only reach the court’s trial record as an exhibit, which would be returned to the proponent of the evidence and be accessible to the public only in those cases that went to appeal. The nonparties also assert that disclosure of the reports would constitute an undue burden within the litigation and present the danger that the litigation would become unnecessarily prolix. Specifically, they claim that the preparation necessary to discuss the myriad reports and memoranda that they have authored over the seven years of their practices that are subject to subpoena would be both incredibly time-consuming for them and costly for defendants. Moreover, inquiry at trial into each of these many reports would present a series of minitrials that would unduly prolong the trial. Their burden would also include the time and expense necessary to inform prior examinees that their health information is being disclosed in unrelated litigation, as, they claim, is consistent with their professional obligations. Plaintiff counters that minitrials are inevitable in the cross-examination of any medical examiner and, citing her counsel’s “briefcase full of transcripts” with which he already intends to cross-examine the nonparties, the use of the reports sought for that purpose would present no additional burden on them and no delay in trial beyond what would be attendant to such cross-examination. The court finds that the nonparties have established that it is appropriate to quash the subpoenas as to the second class of documents that they seek, “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice” to the nonparties, their prior examinees and the court (CPLR 3101 [d]). The nonparties’ allegations as to the time and expense that they would incur by complying with the subpoenas are particularized, detail an unquestionably burdensome onus, and are not meaningfully controverted by plaintiff’s wholly speculative claim that the examination reports are available at the push of a button. Notwithstanding plaintiff’s intent to cross-examine the nonparties with the many transcripts that are already in her counsel’s possession, disclosure of the reports and memoranda sought presents the dangers of delay and prolixity within this litigation. Even adopting plaintiff’s somewhat tenuous assertion that the time and cost associated with the nonparties’ preparation for trial would not be unduly burdened by the need to prepare to address each of the potentially hundreds of reports to be disclosed, and that the number of minitrials attendant to their cross-examinations would not be meaningfully increased, this court is presented with the very likely prospect of dozens of prior examinees, upon receiving notice of the disclosure of the reports that reveal their health information, filing motions to quash or for in limine relief with respect to the reports, especially from those whose litigation remains pending. Relatedly, even if plaintiff’s assertion that prior examinees enjoy no privilege or confidentiality in the health information included within or attached to their reports were true, it misses the mark. Disclosure of the health information in the reports would nonetheless be likely to cause “embarrassment…to [such] person[s]” (CPLR 3103 [a]; see Perez, 122 AD3d at 1158-1159). It is apparent from the comments at oral argument from counsel for both parties that the vast majority of examination reports are not available for public consumption, and the proposition that prior examinees, many of whom may have shared secret and intimate details of their mental and medical histories with the nonparties, forfeit all privacy in these matters when they avail themselves of the courts to vindicate an injury that they have wrongfully received is anathema to common notions of fundamental fairness and justice. Finally, plaintiff’s need for the examination reports is not compelling enough to justify the foregoing substantial burdens that compliance with the subpoenas would present to the nonparties, the prior examinees and this court — the “cost/benefit analysis” weighs in favor of the nonparties (Tener, 89 AD3d at 81; see Forman, 30 NY3d at 662; Perez, 122 AD3d at 1158). For the nonparties’ reasons stated above, it is questionable whether the contents of the reports will be as plaintiff speculates and, even if they are, whether that would be probative of bias. Further, as plaintiff tacitly concedes, the same inference of bias that may arise from the examination reports’ contents may also arise from the contents of the financial reports that are subject to disclosure and plaintiff’s counsel’s “briefcase full of transcripts” which contain much of the same information that is sought in the reports. Thus, it may fairly be said that the subpoenas are directed at minimally relevant information. As such, the motion to quash the subpoenas as to the second class of documents should be granted and the cross-motion to compel compliance should be denied. The third class of documents sought by the subpoenas — the title and location of the court and the docket number of each case for which the nonparties received payment for medical examination services performed on behalf of insurance companies and defense attorneys for the years 2014 through 2020 — received little treatment in the papers before the court or at oral argument. It appears that plaintiff seeks this information so as to obtain examination reports from counsel for prior examinees in the event that she cannot obtain them directly from the nonparties, which, in the court’s view, raises many of the same concerns that lead it to quash the subpoena as to the second class of documents. It further appears that the nonparties claim that identifying and producing this information would present many of the same burdens that would be attendant to identifying and producing the examination reports. As such, the court deems it appropriate to quash the subpoena as to the third class of documents sought, except to the extent that such information may appear in the financial documents that are to be disclosed. Turning, finally, to the nonparties’ application for a protective order, the court directs the redaction of any personal identifying information of any natural person that appears within any record to be disclosed, including but not limited to such person’s name, address, telephone number, date of birth, social security number, and any information that would reveal such person’s medical or mental health condition. The court declines to order the parties to enter into a confidentiality or nondisclosure agreement with respect to the records to be disclosed, as redacted, but noting plaintiff’s willingness to enter into such agreement, the parties and nonparties are free to explore that issue between themselves. In light of the foregoing, the court declines to impose the costs of compliance with the subpoenas upon plaintiff. Any arguments not specifically addressed herein have been examined and determined to be without merit, or academic in light of the decision herein. Based upon the foregoing, it is hereby ORDERED that the motion of nonparties Robert McCaffrey, Ph.D. and Daniel Silverman, M.D., is granted to the extent stated herein and otherwise denied; and it is further ORDERED that plaintiff’s cross-motion is granted to the extent stated herein and otherwise denied. The within constitutes the Decision and Order of this Court. Signed this 18th day of October 2021, at Lake George, New York. Dated: October 18, 2021
