Pants on Fire!

Courtroom Drama as Judge Calls IME Doctor a “Liar,” Sanctions Attorneys, Threatens Criminal Prosecution

Appellate Court Clears Doctor

Bermejo v New York City Health & Hosps. Corp.
2015 NY Slip Op 08374
Decided on November 18, 2015
Appellate Division, Second Department

At a personal injury trial, it came out during the cross-examination of the IME doctor that the plaintiff’s attorney had surreptitiously videotaped the IME on his iPhone. The attorney then attempted to use the video to impeach the IME doctor about how long the IME exam took. When the doctor testified that he could not recall, the judge forced him to come up with an estimate. The judge then used that answer not only to call the doctor a liar in open court but to threaten him with criminal prosecution, and announced that he, the judge, wanted to end the doctor’s career as an IME physician. The judge also imposed sanctions on the plaintiff’s attorney for taking the secret video, and on the defense attorneys for putting a “liar” on the witness stand. A mistrial was also declared. Both sides appealed to the Appellate Division, which announced a new rule: no videotaping of IMEs without court permission; ruled that the IME doctor did not commit perjury, and ordered a new IME and a new trial before a different judge.

“These appeals require us to determine whether a plaintiff’s attorney must obtain approval from the court before making a video recording of an IME of the plaintiff, and whether CPLR 3101 requires that such a recording be disclosed to opposing counsel before trial. We answer both questions in the affirmative. We further conclude that the declaration of a mistrial in this case was attributable to the conduct of the plaintiff’s trial attorney. Moreover, we find that the orthopedist was unwilling to testify voluntarily at the new trial because of that conduct and because the Supreme Court repeatedly, without any basis in fact, accused the orthopedist of lying during his cross-examination. The court also repeatedly threatened to recommend that the District Attorney’s office prosecute the orthopedist for perjury.”

The plaintiff, Manuel Bermejo, fell from a scaffold at a construction site.  Plaintiff was awarded summary judgment against the appellants on the issue of liability on the cause of action alleging a violation of Labor Law § 240.

Prior to the trial on the issue of damages, an orthopedic physician, Michael J. Katz, conducted an IME of the plaintiff. The plaintiff was accompanied at the IME by his trial attorney, Patrick J. Hackett, who was of counsel to Constantinidis & Associates, the law firm representing the plaintiff, as well as Yury Ramirez, a paralegal employed by same firm.  In the report he prepared after conducting the IME, Dr. Katz noted that “the evaluation took place between the hours of 6:00 p.m. and 6:45 p.m.” Dr. Katz interviewed the plaintiff, took various measurements, examined his spine, right foot and ankle, and reviewed approximately 30 medical reports generated by various physicians since the time of his accident. Dr. Katz’s report stated that Mr. Hackett “had a series of nasty outbursts regarding the history of this injury.” The report asserted that Mr. Hackett refused to allow the plaintiff to answer any questions relating to the happening of the accident, the medical treatment he received afterward, or his present complaints, and instead advised Dr. Katz, among other things, that he should get the information from defense counsel. The report also contained the following comments:

“Mr. Hackett presented quite a nasty and obstructive front toward getting a proper history…. Mr. Hackett just became nastier as questions were asked…. It is highly unusual for an individual’s attorney to behave as Mr. Hackett did in order to mislead the examiner and try to get them (sic) to believe that these changes were acute and not chronic.”

Later, after surgery on the plaintiff’s shoulder, Dr. Katz performed a second IME, which focused on the plaintiff’s shoulder. Once again, Mr. Hackett and Ms. Ramirez were with the plaintiff in the examining room.

In April 2013, the damages trial commenced in the Supreme Court. The plaintiff was represented at the trial by Mr. Hackett and Gus J. Constantinidis, and Ms. Ramirez was also present in the courtroom.

Dr. Katz testified regarding the IMEs he performed and the findings he made. During the cross-examination of Dr. Katz by Mr. Hackett, the testimony that lies at the heart of the controversy presented on these appeals was given. Dr. Katz was questioned as follows:

“Q: Doctor, on that first exam I believe you said you took 45 minutes; is that correct?

“A: Right.

“Q: And on that second exam of the shoulder, how long did that take?

“A: That’s uncertain.

“Q: Uncertain?

“A: I don’t think I have a record. I don’t think I have it recorded, no. I don’t think it’s recorded.

“Q: Or would you say it’s more or less than 30 minutes?

“A: I don’t really recall at this point.

“Q: Well, how long do you have a custom and practice when you’re doing a shoulder exam as to how long you generally take?

“A: I don’t really have, you know, an allocated time.

“Q: Well, would you believe in at least your experience that it would be more or less than 15 minutes?

“A: Quite frankly, I don’t know.

“THE COURT: Excuse me, Doctor, I cannot accept an ‘I don’t know.’ You have been doing this for awhile. I will have to insist on what your custom and practice would be as to what type of, the length of an exam of this type.

“THE WITNESS: I think in the range of between ten and 20 minutes would be appropriate.”

After Dr. Katz’s testimony was concluded, Mr. Hackett called Ms. Ramirez as a witness. With regard to the first IME of the plaintiff, Ms. Ramirez was asked how much time transpired “from the time that Dr. Katz came into the room until Dr. Katz left the room,” and she responded: “About ten minutes.” According to Ms. Ramirez, several minutes were consumed by arguments between Mr. Hackett and Dr. Katz, and then the plaintiff “was examined. It was about three minutes or four minutes tops.” When asked whether she recalled anything else about that IME, Ms. Ramirez testified: “I don’t recall the details. I just know that he examined his foot. I’m not sure but I believe he examined his back. I’m not really sure. I can’t tell you.” With regard to the second IME, Ms. Ramirez testified as follows:

“Q: And how long did that exam take?

“A: The actual exam was three minutes. The total evaluation was like five.

“Q: And how do you know that it was three minutes?

“A: I pretty much timed it.

“Q: And how did you time it?

“A: With my phone.”

On cross-examination, Ms. Ramirez admitted that, when she attended the first IME, she was not present when Dr. Katz was reading the plaintiff’s medical records, so she did not know “how long he spent reviewing any records or anything like that.” No questions regarding the duration of the second IME were asked of Ms. Ramirez on cross-examination.

When the cross-examination of Ms. Ramirez concluded, Mr. Hackett stated that he had “just one” question to ask on redirect examination. That questioning proceeded as follows:

“Q: Other than using your phone to determine how much time Dr. Katz spent on the second exam, do you have any other information regarding how long that took?

“A: Yes.

“Q: And what is that?

“A: A video.

“Q: A video of the examination?

“A: Yes.

At that point, the judge asked Mr. Hackett when he had provided notice of the video to defense counsel, and Mr. Hackett responded: “We didn’t because there’s no need to do that, your Honor.”  It then turned out that Mr. Hackett had taken the video on his cell phone.

Defendants moved for a mistrial.

The Supreme Court advised Mr. Hackett that “there is a prohibition from you acting as a witness or becoming a witness that I tried to skirt and that’s a problem and the person who can certify that video is you Mr. Hackett.”

The Supreme Court directed the attorneys to appear on the next business day to present arguments as to whether a mistrial should be declared. The court characterized the matter as “an issue of first impression,” and remarked that the law requires a party to disclose video to the other side.

The parties submitted memoranda of law addressing the appellants’ motion for a mistrial.  Defendants argued that a mistrial was necessitated by plaintiff attorney’s misconduct in surreptitiously making a video recording of the second IME and then not giving defendants notice of it.

In opposition, plaintiff’s attorney stated that there was no obligation to disclose the video recording because it was a recording of a non party, Dr. Katz, and that there was no obligation to disclose the recording because he had no intention of using it until Dr. Katz “lied on the stand about the amount of time the physical examination took.”

When the parties appeared before the Supreme Court to present arguments on the mistrial motion, the court ruled that “…the tape should have been turned over. … All tapes are supposed to be turned over. The question is, who caused the problem? … My belief is all three parties caused the mistrial. All three caused the mistrial.”

The Supreme Court then said to the attorneys, “I’m not letting the doctor take the stand again unless he has counsel. The doctor’s career doing IMEs might be over. If he gets caught in a lie on something that’s material at trial his future use to anyone is useless, correct?  That will follow the doctor forever.  Unless you can figure out a way to settle it, I will declare the mistrial and post mistrial I will have a sanctions hearing and I will, Doctor, be turning the record over to the district attorney. So, you got a choice. You can collectively get yourselves out of this problem or I will do what I will do.”

The Judge then, addressing Dr. Katz, said, “I suggest you not say anything until you are dealing with an attorney.  I would strongly suggest you not do anything because you’re in more trouble than you think. It’s probable that your career doing IMEs is over…  If I find out or if I even suspect something is going on I have a duty to get in touch with the district attorney, and getting in touch with the district attorney is not a good thing for you in this case. Is that understood?”

Defendants asked the judge for leave to conduct a new IME, and asked the judge to disqualify plaintiff’s attorney because he was now a potential witness, as he had taped the IME.

The Judge said, “I think it would be prudent again, Counsel, for you to explore Dr. Katz’s participation in future court matters, whether they be workers comp, whether they be in this building or any other building where somebody has to take an oath….  Parties can be sanctioned, people can go to jail.  Am I making it up?  No.”

When Dr. Katz’s personal attorney asked the Judge whether Dr. Katz’s appearance would be necessary the next day, the judge responded: “I would think you and the doctor would be the first ones to open up this building in the morning…because, again, I am not making the determination at this point if he is lying or not, but if someone determines that the doctor was lying or if I think that there is a hint that he was lying, I’m going to be the least of his problems. My friends in my former office in the district attorney, they might have a conversation with you, Counsel, his malpractice carrier will have a conversation, the State Department of Health would have a conversation with him, the other defendants would have a conversation with him, and I don’t think any of these conversations are going to be beneficial to him.”

After settlement negotiations proved unsuccessful, the Supreme Court granted the motion for a mistrial and advised the jury that it was declaring a mistrial. After excusing the jury, the court announced: “I’m also scheduling a sanctions hearing against plaintiff’s law firm or plaintiff’s counsel, the defendants and the carriers for hiring Dr. Katz, and Dr. Katz.” The court noted that it would “vacate the sanctions and the trial date” if the case were settled that day. The case was not settled that day.

Afterwards, defendants made a motion for a new IME and to disqualify plaintiff’s attorneys, and the Court held a hearing. At the outset of the hearing, the Judge asserted that: “During the trial, it was determined that the expert witness, one Dr. Katz, lied about a material fact, i.e., the length of his second IME, which was recorded by plaintiff’s counsel Mr. Hackett, not disclosed, but it basically required that I declare a mistrial.”

When defense counsel argued that the events that led to the mistrial were set in motion by plaintiff’s improper recording of the second IME, the court responded: “And what is the bigger problem? Mr. Hackett’s recording or your witness lying his whatever off?” The court later remarked that “nothing beats a witness getting caught red-handed in an out-and-out lie. Always, always everybody’s favorite.” At that point, the following exchange took place between the court and Dr. Katz’s attorney:

“MR. LENIHAN: Your Honor, if I may, the characterization of Dr. Katz’s testimony as an outright lie I think is unfair.

“THE COURT: I’m sorry, when did you learn how to tell time?

“MR. LENIHAN: He testified—after he originally testified, your Honor, he did not know, he did not remember, your Honor was not satisfied with that and wouldn’t let that go. You pressed him to give an answer….  If anything, you forced him to perjure himself, if you’re going to characterize it.

“THE COURT: By asking him what happened?

“MR. LENIHAN: When asked the question, your Honor, he said he didn’t remember. You weren’t satisfied with that. You said he had to give an answer.

“THE COURT: Because he is a witness at trial. So by asking him what happened, that’s forcing him to perjure himself?

“MR. LENIHAN: If what he is saying is not from his own memory, yes.

“THE COURT: Now I’ve heard everything. I thought I heard everything. But asking the witness what happened and him lying, that’s forcing him to perjure himself.

“MR. LENIHAN: He told what he thought the time frame was. He told you I have no recollection of that.”

During a discussion of whether Dr. Katz would be testifying at the retrial, the Supreme Court commented that “Dr. Katz might not come in, because if Dr. Katz comes in somebody might call the district attorney and say indict this guy for perjury. Why would I do that? Oh, because he’s not telling the truth.” Later, the court advised defense counsel that “if Dr. Katz wants to come in at the risk of his future freedom, you’re stuck with him.”

At the next court appearance, the Supreme Court opened the proceedings with the following remarks:  “I cannot sanction Dr. Katz. He is not a party. I can sanction the attorneys that called him up to $10,000.00, which is my plan because you called him. Based on the conduct that he displayed in doing this IME, somebody should have known. The interesting thing is if I sanction the attorneys that called him, they will appeal it. There will be a public record. Dr. Katz’s future doing IMEs because he lied in this one will probably be finished. I can and it is a shame Dr. Katz’s attorney is not here. I can hold him in civil contempt for causing the state to expend thousands of dollars on a trial and then coming in here to lie about what he did, causing a mistrial…. On the other hand, again I am not happy with the non-notice of recording. I can sanction the plaintiff, but it would only be a nominal sanction…. The worst thing is that we have a doctor who clearly lied about the length of time he took to do an IME, clearly. No matter how you slice it, 10, 15, 20 minutes. It turns out he took one minute and 56 seconds. He testified as to findings that he obviously could not have had in a minute and 56 seconds…. We are wasting our time trying cases over and over and over again because a doctor who is making millions of dollars doing IMEs decides that he is going to lie. I would hope frankly that the Law Journal and everybody else that covers the news sees this…. Dr. Katz lied. I am finding that he lied. He clearly, his clear unequivocal testimony that his IME took 10, 20 minutes…. Now, he gets caught lying. There is no other way to put it. He lied. There is no other way to make it nice. He said the IME took between 10 to 20 minutes. It took a minute and 56 seconds…. Mr. Mendelsohn, I am sanctioning your law firm $10,000.00…. There is no doubt about the finding that Dr. Katz lied. I want you to appeal that finding so that every lawyer in the state that looks at the Law Journal and looks at the record will be able to see what went on during this trial.”

Mr. Reilly and Mr. Mendelsohn argued that they and their law firms and their clients did not suborn perjury, had no way of knowing that Dr. Katz would give any untruthful testimony, and should not be held responsible for any untruthful testimony he may have given. The Supreme Court inquired as to how frequently the attorneys’ firms and the insurance carriers with which they worked had retained Dr. Katz. The attorneys responded that although they had retained Dr. Katz from time to time in the past, they had no reason to believe that he would give untruthful testimony. The court remarked that there had been “one lie here, a huge lie.” The court then made the following comments:

“THE COURT: I am less interested in the money. I will eventually order your firm and Mr. Mendelsohn’s firm to pay. It is the scarlet letter that I am interested in. This gentleman is still doing IMEs. He is still being used by defense firms…. I can’t imagine the amount of extra trials and extra litigation and extra costs and extra everything that is occasioned by having this gentleman part of the system…. I can’t sanction him, but I can hold him in civil contempt after a hearing. Your firm, because you called him and you are responsible for him and you relied on him. That I could sanction…. I want you to appeal me. I want you to appeal the finding that two of the carriers caused this gentleman to testify and he lied. And he lied. And he lied badly.”

The Judge also said he “would like to put Dr. Katz out of the business of doing IMEs, period.”

Plaintiff’s attorney observed that a sanction against him may need to be reported to the Appellate Division and bar associations, and may affect his legal malpractice insurance. After hearing from Mr. Hackett, the Supreme Court stated: “I am sanctioning your firm $250. I want you to appeal.”

The Supreme Court then decided to vacate the $10,000 sanction it had imposed upon each of the appellants’ attorneys for calling Dr. Katz as a witness, as well as the $250 sanction it had imposed upon plaintiff’s counsel for failing to disclose the video recording of the IME. However, the court noted that it was “still not finished with Dr. Katz,” and suggested that counsel’s insurance carriers “reinforce their efforts to never use him again.” The Judge said to Dr. Katz’s attorney, “I am going to refer this to the Administrative Judge and the District Attorney of Queens County so that they can do whatever they want to do. Perjury is a D felony….  He will not be doing business with Travelers or AIG anymore. I have a feeling that any attorney or adjustor within earshot or who reads this transcript will not be dealing with Dr. Katz much anymore.”

And then, after a recess, the Judge said, “Let the record reflect that I gave Dr. Katz the option of and I would institute a special proceeding to retire from the medical/legal business. Retire at the time and he has declined. What I am now going to do, I am going to order a full transcript of everything, the trial and the subsequent proceedings. I will present that to both the administrative judge of Queens County and the District Attorney. I would recommend to the District Attorney that they explore prosecuting Dr. Katz for perjury. Again counsel, it is not the time so much if the doctor thinks that he can explain the time. It is not the time problem. It is that there are tests that he testified to that he didn’t do. That is the perjury…. Again, I am making it very clear on this record, the insurance companies here are not going to go near him. I unsealed the record. Everybody from now on when he testifies as to the tests that he performed, it is always going to be questioned from now on.” The Judge went on to say, “He is still doing IMEs…. It is like a wound that is festering. Every time he does another IME. When is it going to stop? He is making seven figures a year doing IMEs. Then he comes to my part and lies….”

At the next court appearance, the Judge stated that it was sending a copy of Dr. Katz’s testimony in this case to an assistant district attorney, and then remarked: “The man is basically out of the business of testifying…. $500,000 to a million dollar income that he got doing IMEs and the like, that is over. As soon as the State finds out about it, he is not going to do any Workers Comp exam.”

And in colloquy with Dr. Katz’s lawyer, the Judge said, “Maybe I will have the contempt hearing here. He is denying that he lied. He should be happy to get away with me just saying that he lied. Let it go at that. Yes, we will have a finding forever more that a Justice of the Supreme Court of the State of New York said that he lied because he did it. I would suggest that you let it go at that.”

Finally, the trial judge denied defendants’ motion for a new IME.

On appeal, the Appellate Division held, first, that “In the present case, unusual and unanticipated circumstances warranting a new IME abound. Foremost among them is Dr. Katz’s unavailability to the appellants as a witness at a retrial, due to his refusal to appear voluntarily, which, in turn, resulted from the Supreme Court’s repeated accusation that Dr. Katz ‘lied’ or committed ‘perjury’ at the first damages trial. These extraordinary circumstances were set in motion when the plaintiff’s attorney chose to surreptitiously videotape Dr. Katz’s second IME of the plaintiff, and chose to withhold that recording from defense counsel despite the requirements of CPLR 3101(i). Thus, at the outset, we address whether that conduct was appropriate or justifiable.”

“As appellate courts in other departments have recognized, there is no express statutory authority for the videotaping of medical examinations, either in the discovery statute authorizing physical examinations of parties (CPLR 3121) or in the court rule governing such examinations (22 NYCRR 202.17) … Requests for permission to videotape IMEs have been made on a case-by-case basis, and videotaping has not been allowed in the absence of special and unusual circumstances.'”

“A plaintiff is generally entitled to have his or her attorney present at a physical examination … Although counsel should be permitted to be present at the examination, the attorney’s function is limited to the protection of the legal interests of his client, and in regard to the actual physical examination, he has no role.”

“Thus…a plaintiff will normally be entitled to have his or her attorney present at an IME, but that permission to employ the additional measure of videotaping the examination will be granted only where the plaintiff establishes the existence of special and unusual circumstances. The latter proposition presupposes that a request for the court’s permission to engage in videotaping will be made. What the law of this state does not contemplate is plaintiffs’ attorneys taking it upon themselves to surreptitiously videotape an IME, without the knowledge of the examining physician, without notice to the defendants’ counsel, and without seeking permission from the court. Contrary to the assertions made by the plaintiff’s attorneys in the Supreme Court, surreptitious videotaping of IMEs, without court approval or even notice to the court or opposing counsel, cannot be regarded as an ‘appropriate tool’ or an activity that attorneys should feel free to engage in ‘all the time.'”

“The plaintiff argues the recording was made to preserve the statements and actions of the plaintiff’s counsel, so as to protect him from the same sort of false attacks previously made by the defendants’ expert. However, the plaintiff’s attorney was not a party to this action, and was not in need of ‘protection.’ In any event, this argument is belied by the fact that plaintiff’s counsel did seek to utilize the recording at trial, precisely for the purpose of attacking the examination’s validity and effectiveness and the conduct of the examination itself. The record reveals that the attorney contemplated that the recording would be used at trial.”

“For the foregoing reasons, the failure of plaintiff’s counsel to seek and obtain the Supreme Court’s permission to videotape the second IME was, by itself, a sufficient reason to prohibit the use of the recording at trial. Further compounding the improper conduct of plaintiff’s counsel in making the recording without procuring the court’s approval in advance was the failure to disclose the recording to defense counsel prior to trial, which was a clear violation of CPLR 3101. That statute provides that: ‘There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party.”

“CPLR 3101(i)…requires disclosure of ‘any films, photographs, video tapes or audio tapes’ of a party, regardless of who created the recording or for what purpose…[and] requires ‘full disclosure,’ without regard to whether the party in possession of the recording intends to use it at trial.”

Rejecting plaintiff’s argument that the video was intended to depict the IME doctor, who was not a party to the lawsuit, the Appellate Division responded, “The videotape is a recording of a medical examination, and the person being examined is the plaintiff. Indeed, the individual who is most prominently depicted in the recording, and toward whom the recording device is directed for the greatest amount of time, is the plaintiff. Thus, the recording featured, or, at the very least, ‘involved’ the plaintiff, a party to the action.”

“Thus, the failure of the plaintiff’s attorneys to disclose to defense counsel the videotape depicting the plaintiff being examined by Dr. Katz violated CPLR 3101. It also violated the spirit of New York’s open disclosure policy, which, to a large extent, was intended to mark an end to the presentation of totally unexpected evidence and to substitute honesty and forthrightness for gamesmanship.”

“The circumstances under which the existence of the secret recording was revealed at trial were unusual and unanticipated…. Dr. Katz was asked how long the second IME took. His response was ‘that’s uncertain.’ Under further questioning by Mr. Hackett on that subject, Dr. Katz responded ‘I don’t think I have it recorded,’ and then ‘I don’t really recall,’ and then ‘quite frankly, I don’t know.’ At this point, the court interjected: ‘I cannot accept an I don’t know.’ This remark was improper, since it is beyond the province of a court to direct from the bench that a witness change an answer to a question because the court does not like the answer or does not find it believable. After stating that it could not accept Dr. Katz’s answer, the court directed the following question to Dr. Katz: ‘I will have to insist on what your custom and practice would be.’ Dr. Katz’s answer was: ‘I think in the range of between 10 and 20 minutes would be appropriate.'”

“At this point, we dispel the premise that underlies the plaintiff’s arguments on these appeals, and the actions taken by the Supreme Court after declaring the mistrial, namely, the notion that Dr. Katz lied. The record does not reflect that Dr. Katz committed perjury. Dr. Katz was asked how long the second IME took, and his answer was that he did not know. There is no evidence in this record that, at the time Dr. Katz gave that testimony, he actually did know how long the second IME took. Thus, that answer (or series of answers) has not been shown to be untruthful. When Dr. Katz was then asked, by the court, what his custom and practice would be as to the length of an examination of this type, as noted, Dr. Katz’s answer was that he thought that ‘in the range of between 10 and 20 minutes would be appropriate.’ There is no support in this record for the proposition that this answer was false. Moreover, even aside from the fact that the Supreme Court did not actually ask Dr. Katz about the length of the particular IME in question, it was improper to force him to specify an exact duration when his answer repeatedly was ‘I don’t know.’  Accordingly, the record does not reflect a lie that would support a declaration of perjury by the Supreme Court.”

“The plaintiff’s attorneys insist that Mr. Hackett’s video recording shows that the examination lasted one minute and 56 seconds. However, the recording is approximately five minutes in length, and it cannot be determined, from a viewing of the recording, whether the recording captured the entire examination. In other words, it cannot be determined what happened before Mr. Hackett turned his recording device on, and what happened after he turned it off. Moreover, the recording does not account for the time Dr. Katz spent reviewing the plaintiff’s fairly extensive medical records, which could arguably be considered part of the IME. In any event, Dr. Katz did not testify as to the actual duration of the second IME, but only as to what his custom and practice would be.”

“At the hearing on the appellants’ post-mistrial motions, the Supreme Court apparently shifted its theory as to what was false about Dr. Katz’s testimony, advancing a new theory that Dr. Katz had lied about the quantity or nature of the tests he had performed. This theory had never been proffered by plaintiff’s counsel, either as a justification for revealing the secret video recording for the first time in the presence of the jury, or for any other purpose. In any event, this alternate theory was likewise not supported by the video recording.”

“Furthermore, unusual and unanticipated circumstances warranting a new IME certainly arose from the Supreme Court’s accusation, repeated more than 60 times on the record before us, that Dr. Katz ‘lied’ or committed ‘perjury’ during his cross-examination, the court’s repeated threats to refer Dr. Katz to the District Attorney’s office with a recommendation that he be prosecuted for perjury, and the court’s extraordinary efforts to end Dr. Katz’s career in the ‘medical/legal business.’ The court’s efforts in this regard intensified to the point that it apparently resorted to the unorthodox measure of conditioning the vacatur of a $10,000 sanction against each of the appellants’ attorneys upon their willingness to adopt the court’s view that Dr. Katz had committed perjury. The court also represented to Dr. Katz’s counsel that at least one of the appellants’ attorneys had ‘agreed’ with the court’s view that the doctor had lied, when, in fact, the attorney stated only that he had ‘no objection’ to the court’s finding, and that statement was made under circumstances in which the court had been threatening that attorney with sanctions. Under these conditions, it is not surprising that Dr. Katz refuses to testify voluntarily at a retrial.”

“These circumstances, particularly when viewed collectively, clearly satisfy the requirement that a party seeking an additional IME after the filing of a note of issue must demonstrate the development of unusual and unanticipated circumstances subsequent to the filing of the note of issue. The appellants have been effectively deprived of their expert orthopedic witness in the event of a retrial. Indeed, the Supreme Court’s conduct toward Dr. Katz was so thoroughly intimidating, and the manner in which the video recording was made, concealed, and then revealed to the jury had such a chilling effect, that regardless of any corrective measures that might be taken at a retrial, it is likely that Dr. Katz will remain unwilling to testify. Neither the appellants nor their counsel are in any way responsible for the occurrence of these events, which could not possibly have been anticipated.”

“Additional examinations have been permitted where the prior examining physician has become unavailable. For instance, in Galdi v Kaliya (32 Misc 3d 128), the Appellate Term held that the unexpected death of the defendants’ orthopedist subsequent to his examination of the plaintiff constituted an unusual and unanticipated condition warranting a further physical examination of the plaintiff. In Rosado v A & P Food Store (26 Misc 3d 935, 940 [Sup Ct, Westchester County]), the court concluded that the abrupt retirement and relocation out of state of the defendants’ examining physician, which occurred after the filing of the note of issue, was an unanticipated circumstance warranting a further physical examination of the plaintiff by a new physician.”

“Although Dr. Katz is physically available to testify, his unwillingness to testify voluntarily renders him effectively unavailable to the appellants. Dr. Katz’s unwillingness to appear at a retrial is the direct result of the Supreme Court’s conduct, which included repeatedly and baselessly accusing him of being a liar, insisting that he retain an attorney, threatening to refer him to the District Attorney’s office with a recommendation that he be prosecuted for perjury, and expressly stating that it was the court’s objective to end his career in the ‘medical/legal business.’ Under these circumstances, where Dr. Katz is not at fault—and the appellants and their attorneys are most certainly not at fault—for his unwillingness to testify, Dr. Katz must be deemed unavailable to the appellants, and the circumstances must be deemed unusual and unanticipated, thus warranting a new IME by a different orthopedist of the appellants’ choosing.”

“Notably, as the Supreme Court anticipated, its condemnation of Dr. Katz has had an effect on other cases. In several recent cases in which Dr. Katz was retained to perform IMEs, courts have been presented with requests for new IMEs based on the events that transpired in the present case.”

“In sum, given the avalanche of errors that occurred in this case, we find that the appellants satisfied their burden of demonstrating unusual and unanticipated circumstances justifying an additional medical examination of the plaintiff by an orthopedist to be designated by them. Under the particular circumstances of this case, a second examination by a different physician is necessary ‘to ensure that the focus of the medical testimony will be on the nature and extent of plaintiff’s alleged injuries, rather than on any taint or irregularity surrounding the prior examination.'”

“The necessity for a mistrial was created by the conduct of plaintiff’s counsel, and was not to any extent attributable to any conduct of the appellants or their counsel. Plaintiff’s counsel surreptitiously created a video recording of the second IME without providing any notice to the court or defense counsel, much less obtaining the court’s approval, as is required. Had counsel obtained approval, or at least provided notice, of the videotaping, the mistrial would not have occurred. Second, as discussed above, plaintiff’s counsel compounded the prejudice to the appellants by improperly failing to disclose the video recording to defense counsel, as was clearly required under CPLR 3101(i). Had counsel disclosed the recording, the mistrial would not have occurred. Third, plaintiff’s counsel chose to reveal the existence of the recording to the jury in a way that maximized its dramatic effect, and was unfair to the appellants.”

Plaintiff argues “that the mistrial was caused by Dr. Katz’s act of lying during his cross-examination. The Supreme Court appears to have ultimately adopted this view. This position is unsupportable since, as discussed above, Dr. Katz did not lie. Moreover, even if Dr. Katz had lied, that act would not be the proximate cause of the mistrial.”

As for sanctions against plaintiff’s attorneys, the defendants “are entitled to recover” from them “the costs they incurred in participating in the first trial on the issue of damages, as well as the costs they incurred in making and litigating the motions at issue on these appeals and in pursuing these appeals.”

But the Appellate Division denied defendants’ request that plaintiff’s attorneys be disqualified:  “We have concluded that it was improper to make the recording and to fail to disclose it. Accordingly, that recording was not admissible at the original trial, and would not be admissible at any retrial. Indeed, even if the plaintiff could still provide adequate notice of the recording, as required by CPLR 3101(i), in time for a retrial, the fact that the recording was improperly made in the first instance would require its exclusion from evidence. Thus, since the video recording would not be admissible at any retrial, there is no possibility that Mr. Hackett would be called upon to authenticate the recording.”

In conclusion, held the Appellate Division, “The mistrial that was declared in this case, as well as the effective unavailability of Dr. Katz as a witness for the appellants at a retrial, was caused by the conduct of plaintiff’s counsel in making and failing to disclose the video recording of the second IME, as well as the conduct of the Supreme Court, and was not caused, to any extent, by any conduct of the appellants or their counsel. Consequently, the appellants are entitled to an additional medical examination of the plaintiff, to be conducted by an orthopedist designated by them, as well as the costs they incurred in the first trial, and the costs they incurred in making and litigating the motions at issue on these appeals and in pursuing these appeals, to be paid by plaintiff’s attorneys. All further proceedings in this case should be conducted before a different Justice of the Supreme Court.”

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Comment:  Only a trial attorney, and in particular an insurance defense attorney, could fully appreciate the nightmare that this trial must have been — not only for Dr. Katz, but for all attorneys involved.  The trial judge could have simply ruled that the video of the IME was not admissible because it was done without court permission, and the trial could have proceeded.  Instead, the trial judge, for reasons unknown, took over the questioning of the IME doctor and morphed into a prosecutor — and a vindictive one at that.  As the Appellate Division stated, it was wrong for the judge to force the doctor to give an answer after he said he didn’t know.  And then, after giving an estimate of his “usual” amount of IME time, the judge was dead wrong to call him a liar and start threatening him, much less demand that the doctor’s career come to an end.  An estimate cannot be a lie and therefore cannot be perjury.  Despite the Appellate Division vindicating him, Dr. Katz has probably suffered a grievous injury to his career.  But he cannot sue the judge because the judge has official immunity.  However, Dr. Katz could, theoretically, sue the State of New York (the judge’s employer).  The attorneys involved in the trial were browbeaten by the trial judge and had sanctions imposed on them, and although those sanctions were later vacated, the experience had to be traumatic.  All of this being public record, the malpractice carriers for the attorneys involved, as well as Dr. Katz, will certainly take these events into account, and they will all have to answer “yes” in the future whenever they are asked whether they have been sanctioned by a court.  Lost in all this turmoil is the injured plaintiff, whose injuries will not be compensated until some date in the distant future.