`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`EXHIBIT A
`EXHIBIT A
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`STATE OF NEW YORK : COUNTY OF ORLEANS
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`SUPREME COURT
`_____________________________________________
`AB-511 DOE,
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` PLAINTIFF, INDEX #20-46602
`
` -VS-
` MOTION
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`LYNDONVILLE CENTRAL SCHOOL DISTRICT, et al,
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` DEFENDANTS.
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`_____________________________________________
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` 25 Delaware Avenue
` Buffalo, New York 14202
` February 15, 2024.
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`HELD BEFORE: HONORABLE DEBORAH A. CHIMES,
` SUPREME COURT JUSTICE.
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`APPEARANCES: LEAH COSTANZO, ESQ.,
` Appearing for the Plaintiff.
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` RYAN SMITH, ESQ.,
` SHANNON B. VANDERMEER, ESQ.,
` Appearing for the Defendants.
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`
` LISA G. PAZDERSKI,
` Supreme Court Reporter.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`THE CLERK: AB-511 Doe versus Lyndonville
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`Central School District. Counselors, please state
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`your appearances for the record.
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`MS. COSTANZO: Leah Costanzo for the
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`plaintiff.
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`MR. SMITH: Ryan Smith and Shannon Vandermeer
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`on behalf of the Lyndonville Central School
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`District.
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`THE COURT: All right. So, there's two
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`motions pending.
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`MR. SMITH: There are.
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`THE COURT: Defendant brought both of them, I
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`believe, right?
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`MR. SMITH: Correct.
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`THE COURT: Okay. So you may have your oral
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`argument.
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`MR. SMITH: Thank you, Your Honor. Is there
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`any you prefer to deal with first? Is there a
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`particular motion you would like first?
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`THE COURT: No, no, no. Whichever one you
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`want to argue first.
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`MR. SMITH: Okay. Starting with the -- we
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`filed two orders to show cause. The first one
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`seeking to compel the production of the test data
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`that was generated by Dr. Warren Keller.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`As the Court knows, we have a pending motion
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`in limine seeking to preclude Dr. Keller. And I
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`won't get into that now, except to point out that
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`this whole issue stems from his untimely and late
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`disclosure.
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`If he is permitted to testify in this case --
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`and we just learned about him on January 22nd. We
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`need to be able to have an expert look at the
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`data, notes, the reports that were generated in
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`the course of his evaluation of plaintiff. His
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`opinions, according to his expert disclosure, are
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`based on that test data and the test results. And
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`we have not had much time to even look at what we
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`could possibly need in terms of an expert because
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`we don't have the data to even look at it.
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`We received two pages -- two documents
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`totaling two pages from counsel for three
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`different tests that Dr. Keller administered. One
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`of them is a single page that has a variety of
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`numbers on it. They mean absolutely nothing to
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`me.
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`And we received, I believe it was the PCL-5
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`test. So one of the three tests we appear to have
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`what there is to disclose, but the PAI and the
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`MMPI-2, we have virtually nothing on those tests
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`that were administered to the plaintiff late
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`January.
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`THE COURT: And the PAI, I think the argument
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`is that there was one page that was disclosed, but
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`presumably, there are 15 other pages?
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`MR. SMITH: Correct. It was paginated 15 or
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`16, and there's presumably more. And looking up
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`sample PAIs on Google, you can clearly see they
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`are 10-to-20 pages long.
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`THE COURT: Okay. Keep going.
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`MR. SMITH: Counsel has taken the position
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`that the MMPI cannot be shared. I'm not sure how
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`you can take the position that this can't be
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`shared as opposed to trying to figure out a way to
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`share it given the timing of Dr. Keller's
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`disclosure here.
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`Your Honor, expert disclosure deadlines are
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`staggered for a reason. And plaintiff's deadline
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`was back in May of '23, and then we had until June
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`to do our expert disclosure. By all intents and
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`purposes, expert disclosure was finished, and then
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`we get this disclosure on January 22nd of 2024
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`identifying an entirely new expert who ran a
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`number of tests on the plaintiff and presumably is
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`going to come in and testify about those tests.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`And now we are having disagreements about even
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`getting our eyes on this data.
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`So, for those reasons, we filed this order to
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`show cause seeking that and related relief so
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`we can properly defend our client at this trial.
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`THE COURT: All right. So here's a question
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`I have, I presume Dr. Keller is going to speak on
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`damages? This goes to the issue of damages,
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`right?
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`MS. COSTANZO: Yes, Your Honor.
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`THE COURT: So do you have an expert on the
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`issue of damages? I thought you did.
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`MR. SMITH: We have Dr. Sorrentino, who we
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`properly disclosed back in June of '23, whose
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`review is based on the various documents,
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`transcripts in this file. We also have
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`Dr. Jeglic, but she's more on the standards of
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`care.
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`THE COURT: She's a liability expert.
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`MR. SMITH: Correct.
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`THE COURT: Dr. Sorrentino is your damages
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`expert?
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`MR. SMITH: Correct.
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`THE COURT: Now, Dr. Keller, in his
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`affidavit, indicates the reason why it could not
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`be disclosed, A, to attorneys; and B, when he
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`looked at the CV of your expert, she did not
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`appear to be qualified to have that information
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`disclosed to her as well.
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`MR. SMITH: That's what Dr. Keller refers to
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`in his affidavit. I would submit it is a closely
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`related field. You are talking about a
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`psychiatrist with respectable credentials. I
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`don't understand the issue with disclosing it to
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`her. And frankly, we are aware of another CVA
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`case where Judge Furlong issued a subpoena
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`directing that Dr. Keller produce his data to the
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`law firm representing the defendant.
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`I mean, this -- I don't know how we can go to
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`trial and not have this data and not have an
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`opportunity to evaluate a potential expert to
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`address this.
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`THE COURT: And I don't have the papers in
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`front of me because everything is online, but what
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`is the background of Dr. Sorrentino again? I know
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`I looked at it, but I was kind of a little
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`confused. She has a doctorate?
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`MR. SMITH: I believe she does.
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`Dr. Sorrentino does.
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`THE COURT: In what field?
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`RECEIVED NYSCEF: 03/14/2024
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`MR. SMITH: Psychiatry.
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`THE COURT: Okay. Anything further on this
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`particular issue?
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`MR. SMITH: No, Your Honor.
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`THE COURT: Okay. I'm going to hear from
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`plaintiff's counsel.
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`MS. COSTANZO: Thank you. Your Honor, some
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`of the issues that were raised are issues for a
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`motion in limine relative to the timeliness of the
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`expert disclosure which weren't part of this
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`motion.
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`However, relative to Dr. Keller's affidavit
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`or affirmation, I'm not really taking a position
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`as to them receiving the data since the ethical
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`claim that he is making, he's making pursuant to
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`the information that is found on the
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`administration of the test website indicating that
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`you have to have specific Level 3 qualifications
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`in order to even perform the test.
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`So, as far as Dr. Keller's representations
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`relative to who he could disclose the information
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`to, that's in his affirmation, which I really take
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`no position on, other than the fact that the
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`reason that the MMPI-2 is specifically given by a
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`licensed psychologist is because the reliability
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`of the test is based upon those who are licensed,
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`certified, and have the requisite qualifications
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`to read the test, administer it.
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`And I guess my only concern would be that if
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`he's indicating that the materials can only be
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`turned over to a licensed psychologist because
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`they are the only ones entitled to read it, my
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`issue is on trial examination, if an expert is
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`coming in to take one sentence out of context
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`because they are reading a question with one
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`answer without knowing how the test works itself,
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`and how you were supposed to read not specifically
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`the results, but the overarching theme with the
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`events in line with the clinical evaluation to
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`give reliability testimony. My concern is really
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`the reliability of the testimony given.
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`THE COURT: Sounds like it would be great
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`cross-examination material.
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`MS. COSTANZO: And I guess I would request a
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`voir dire of Dr. Sorrentino's -- assuming the
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`information is going to be turned over to
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`Dr. Sorrentino, which is the request that has been
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`made in this motion, I would request a voir dire
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`of Dr. Sorrentino relative to her certifications,
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`her licenses, and the multiple times that she's
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`ever performed an MMPI-2 test so that we could
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`properly determine that if she is reviewing the
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`test results, she understands their meaning.
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`As counsel appropriately stated, when we
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`received the test results from Dr. Keller, I have
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`no way of knowing what that material means because
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`we are not the experts who rely on that material,
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`so I can understand why he is under this ethical
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`obligation only to provide it to those individuals
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`who are certified in administering it.
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`The only other thing I would like to mention
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`is that if the Court is inclined to issue a
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`judicial subpoena for the records that -- pursuant
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`to Dr. Keller's request it be directly to
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`Dr. Sorrentino, which I think Dr. Keller was
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`willing to do, just not directly to the law firm.
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`From what I understand, the way that the test is
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`issued, you can't print the answers separate from
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`the questions, which creates sort of a copyright
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`issue for those individuals who do not perform the
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`test at risk of disseminating the information.
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`So, the issue is that he felt comfortable, based
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`on his ethical obligations and what he understands
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`in his practice, to release it directly to the
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`expert.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`Also, I'm not in a position to accept a
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`judicial subpoena on behalf of Dr. Keller. While
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`he is our expert, I do not represent him and I did
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`not provide him any legal advice relative to his
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`remedies assuming that the Court rules in
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`defense's favor.
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`THE COURT: All right. And what about the
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`pages that seem to not have been disclosed on the
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`PAI.
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`MS. COSTANZO: My understanding from
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`Dr. Keller is that the information that he
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`provided us is the PAI and PCL-5. The MMPI-2 is
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`the only thing he did not provide.
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`THE COURT: I understand that, but counsel
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`indicated in the moving papers that he received
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`Page 16, and presumably there would be Pages 1
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`through 16. So, at least 1 through 15 have not
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`been provided. I'm assuming they were provided to
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`you.
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`MS. COSTANZO: They were not. Everything
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`that was provided to me was turned over to
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`counsel. My understanding is that was the raw
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`data from the answers to the test, it wasn't the
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`test itself. I don't believe the test itself was
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`ever requested, nor is it proper pursuant to the
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`arguments we make in our motion. However,
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`assuming the Court orders, Dr. Keller can turn
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`that directly over to their expert relative to any
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`subpoena.
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`THE COURT: Is the PAI related to the MMP --
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`MS. COSTANZO: My understanding is that the
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`PAI is separate, but the PCL-5 is related to the
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`MMPI-2.
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`THE COURT: The PAI is the pages that you are
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`claiming are missing?
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`MR. SMITH: Yes, Your Honor. This is the one
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`page of the PAI that we received. It is just a
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`bunch of numbers and letters with a Page 16 at the
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`bottom.
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`THE COURT: Do you have --
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`MS. COSTANZO: Dr. Keller's affirmation
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`indicates that the documents that he turned over
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`is the raw data for those two tests. Again, my
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`understanding is he does have the actual test
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`questions, which I think are different than the
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`raw data.
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`THE COURT: All right.
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`MR. SMITH: Your Honor, if I may?
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`THE COURT: Yes.
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`MR. SMITH: To be clear, we have no idea at
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
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`this time if Dr. Sorrentino is going to be the
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`expert to address this testing. When expert
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`disclosure was done back in May of '23, there was
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`no expert identified by plaintiff who was
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`conducting any kind of testing on the plaintiff.
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`So, in turn, when we identified our experts,
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`we picked our experts based on the information
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`known to us at that time.
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`Now that Dr. Keller has been disclosed, and
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`now that it has been disclosed that had he ran
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`these evaluations and tests, we need to be
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`afforded an opportunity to potentially retain an
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`expert to address these tests and evaluations.
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`And now that the trial is starting on March 6th,
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`we are now in a bit of a quagmire in terms of
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`timing.
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`THE COURT: All right. So, understood. Did
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`you have anything further to argue?
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`MS. COSTANZO: Well, I guess, if I may, I
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`don't want to get into the motion in limine.
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`THE COURT: We are not because I haven't
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`looked at it yet.
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`MS. COSTANZO: I haven't responded yet.
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`THE COURT: Jill kind of briefed me, but I
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`don't have it ready yet.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`MS. COSTANZO: The motion actually only
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`requests an extension for Dr. Sorrentino to get
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`the raw data and full and complete interpretive
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`reports of the testing, so, this is the first I'm
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`hearing that there needs to be an additional
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`expert.
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`MR. SMITH: It is in our affirmation, Your
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`Honor.
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`THE COURT: Okay. So -- right. On this
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`motion, there was no request; at least I don't
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`remember seeing it.
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`MR. SMITH: There is in our affirmation, Your
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`Honor. It specifically says that we need an
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`opportunity to have and potentially retain an
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`additional expert to address this.
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`THE COURT: All right. So, my reading of the
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`motion was that you are looking for documents,
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`right. I don't know if your expert at this time
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`is qualified or not to review or assess.
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`MR. SMITH: Correct.
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`THE COURT: But what I'm going to do, because
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`I think based on your representation that her --
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`she is a Doctor of Psychiatry. I do think it is a
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`closely related field, and so I'm going to order
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`Dr. Keller to provide all of the materials of the
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`MMPI directly to Dr. Sorrentino.
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`And also, if there are pages -- there's an
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`indication of a Page 16. Page 1 through 15 to be
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`provided as well, and if there's something after
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`16, everything needs to be provided.
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`MS. COSTANZO: Judge, if I may, in light of
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`the Court's determination they are going to issue
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`the judicial subpoena, I would feel comfortable
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`that the Court indicate all three tests in the
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`subpoena so that there's no question what is
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`missing.
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`THE COURT: I'm issuing a court order. I'm
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`ordering it.
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`MS. COSTANZO: No, I understand. You mean a
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`judicial subpoena I thought.
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`THE COURT: Well, there's a motion, and I'm
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`ordering it under the motion. So, there's going
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`to come an order to me, and I'm going to sign it
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`by way of an order.
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`MS. COSTANZO: No, I understand. I thought
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`the order was that you are issuing a judicial
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`subpoena to Dr. Keller.
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`THE COURT: Do you want a judicial subpoena?
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`MR. SMITH: Your Honor, we just want it done
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`as quickly as possible with the trial coming.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`THE COURT: So court order, they submit it to
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`me by tomorrow, I sign it, it gets uploaded, and
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`then however you requested the documents of
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`Dr. Keller, you can attach it to -- and attach the
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`order to it and you can advise Dr. Keller as your
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`expert that by court order, he must provide
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`Dr. Sorrentino that MMPI-2.
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`MR. SMITH: Your Honor, I think if I may,
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`what counsel is getting at is this court order is
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`not required to be served on Dr. Keller in
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`Florida, correct?
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`THE COURT: I didn't realize --
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`MS. COSTANZO: If I may, Dr. Keller is a
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`nonparty witness.
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`THE COURT: Understood.
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`MS. COSTANZO: The motion was seeking the --
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`a judicial subpoena to serve on Dr. Keller
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`ordering that he turn over the test results and
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`the raw data.
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`THE COURT: Does he still have an office
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`locally?
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`MS. COSTANZO: He has offices in two places.
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`He practices in both. My understanding is that
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`counsel served a subpoena on him I think last week
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`in Naples, Florida.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`THE COURT: Okay. And there was nothing to
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`quash, so you can continue to serve him in Naples
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`since there was no motion to quash the first time,
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`but you want an order with it because he's already
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`objected to it?
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`MR. SMITH: Your Honor, the issue with
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`service is it was quite costly and time consuming
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`to go properly serve someone outside of the state.
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`Now, we did it because plaintiff's counsel
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`refused to accept service on his behalf when I
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`asked. And if the Court is requiring us to do
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`that process again and properly serve him, that is
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`going to take time, and our time for trial to
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`start is shortening. We simply want this done as
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`quickly as possible to get the data.
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`THE COURT: Counsel?
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`MS. COSTANZO: Again, I guess I'm not trying
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`to make it difficult --
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`THE COURT: I understand.
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`MS. COSTANZO: -- for defense counsel. I
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`just don't represent him.
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`THE COURT: I understand.
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`MS. COSTANZO: So I don't want my
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`representations through his affidavit that he
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`provided it to me to indicate that I somehow --
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`17
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`the purpose of a judicial subpoena is to give him
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`notice that if he wants to move to quash it, he
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`can. I haven't given him that ability, nor have I
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`advised him on it. I think that's the issue. I
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`don't know. I could ask Dr. Keller if he would be
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`agreeable to getting it emailed to him to avoid
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`the cost of service, but I think he still needs to
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`be served with a judicial subpoena. I can't
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`accept service on his behalf.
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`THE COURT: Let's go off the record.
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`(Discussion off the record.)
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`THE COURT: The records are to be provided to
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`Dr. Sorrentino no later than February 22nd, 2024.
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`(Discussion off the record.)
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`THE COURT: We have another motion, this is
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`Motion Number 7.
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`MR. SMITH: Just one minute, Your Honor.
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`Your Honor, this order to show cause concerns the
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`trial subpoenas that were sent to -- by
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`plaintiff's counsel to the District's experts,
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`Dr. Sorrentino and Dr. Jeglic.
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`As you can tell from the papers, counsel had
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`discussions about the substance of those
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`subpoenas. There wasn't an agreement reached on
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`them. The primary issues with the subpoenas
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`18
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`concern the breadth of the financial information
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`being requested, the communications between
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`attorneys and experts and --
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`THE COURT: Well, I think that's been
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`conceded, the whole -- so we are not addressing
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`the communication between counsel and experts.
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`MR. SMITH: Correct. And draft reports, I
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`believe, is the other ones. These subpoenas were
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`not originally served properly on our experts.
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`They both reside out of state. I know counsel had
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`them personally served recently, but there's no
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`indication that those were served properly either
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`because they don't appear to have been
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`domesticated in the state or otherwise gone
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`through the proper court in their jurisdictions to
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`issue those subpoenas.
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`So as we stand right now, I'm not sure that
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`there are any valid subpoenas that have actually
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`been served on our experts. But that said --
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`THE COURT: Hold on. I thought that issue
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`was addressed and remedied?
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`MS. COSTANZO: Both experts were personally
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`served.
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`MR. SMITH: They were personally served with
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`a New York State subpoena. You can't serve
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`someone -- that's the argument, Your Honor.
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`THE COURT: Okay.
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`MR. SMITH: So, even assuming that, you know,
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`the Court issues some order directing that, you
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`know, the experts produce the information, you
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`know, draft expert reports, the material prepared
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`in anticipation of litigation, it is in our
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`memorandum of law. I don't believe those are
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`turned over. The subject of discovery is part of
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`preparation for trial.
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`And the financial information, I have no
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`problem, Your Honor, with disclosing whatever
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`these experts have been paid in connection with
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`this case. There's no issue there. The issue is
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`that counsel is asking for any and all -- and it
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`ranges from W-2, 1099s, billings, invoices,
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`statements, changes and accountings for any
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`engagement, consultation or trial testimony for
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`the past four years.
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`For example, one of our experts, Dr. Jeglic,
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`who actually frequently testifies for the
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`plaintiff's side engages in a number of
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`consultations, trainings, that have absolutely
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`nothing to do with child sex abuse, grooming or
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`anything that is going to come up in this case.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`The predominant amount of her work lately has been
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`for pharmaceutical companies helping to train
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`people to administer tests properly to detect
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`certain symptoms and diagnoses. I mean, there's
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`no relevance to this data, and there's obviously a
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`lot of it from what I've gathered in talking with
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`Dr. Jeglic and the various engagements that she
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`has in those matters. I mean, we have no issue
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`disclosing what has been paid here.
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`The Dominici case clearly stands for the
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`proposition that, you know, if there's an
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`insurance carrier retaining someone, opposing
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`counsel can find out how often that carrier
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`retains them and how much they pay them. I'm fine
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`with that, too. But that's not what is being
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`asked for here, and that's the reason for the
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`motion.
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`THE COURT: Okay. That's one issue. And the
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`direct expert reports, you are saying that --
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`explain to me how you are arguing that the
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`doctor's drafts of her reports --
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`MR. SMITH: Sure.
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`THE COURT: -- are work product.
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`MR. SMITH: They are -- not work product,
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`Your Honor, they are privileged as material
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`21
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`prepared for litigation.
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`THE COURT: Well, you make a draft, and then
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`I presume, because I think everybody who writes
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`makes their draft, whatever it may be, and then
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`they formalize it to a final report.
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`MR. SMITH: Sure.
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`THE COURT: They are entitled to the report.
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`MR. SMITH: Correct.
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`THE COURT: How is that draft any different?
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`MR. SMITH: Well, Your Honor, it is not the
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`final report.
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`THE COURT: Right.
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`MR. SMITH: It is a draft. It is a
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`work-in-progress that you are working on, and it
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`is material prepared for litigation. It is
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`material used in the engagement between counsel
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`and an expert. For those reasons, we don't
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`believe it is discoverable in a trial subpoena of
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`a trial.
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`THE COURT: All right. And let's see if
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`there's anything else here that -- okay.
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`Plaintiff's counsel.
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`MS. COSTANZO: Yes, Your Honor. I would cite
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`that in the Porsche and the Dominici cases, both
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`Fourth Department cases indicate that the
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`22
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`financial records we are seeking are not so broad.
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`I'm not seeking all of that information. If she's
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`a physician in her own practice, I'm not asking
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`her to provide me with her practice --
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`THE COURT: But that's not what your
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`request -- your request was pretty broad. It
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`wasn't limited.
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`MS. COSTANZO: It was limited to the time she
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`was retained as an expert in all cases in the last
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`year relative to these cases, only with respect to
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`her retention as an expert or testifying as an
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`expert or being deposed as an expert. So her
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`expert retention, as well as anything that she's
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`done for the specific law firm in the last four
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`years relative to being retained as an expert.
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`I'm only interested in the amount of times
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`that she has testified in -- as an expert in these
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`cases and her financial interest in those cases.
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`It goes to bias, it goes to interest, and the
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`Courts have routinely indicated that they are
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`pretty standard for trial in cross-examing a
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`witness on those very issues.
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`THE COURT: Okay. Anything further on the --
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`MS. COSTANZO: As for the draft reports, we
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`did cite a case that also indicates that the draft
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`reports should be disclosed. They are akin to
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`notes of experts indicating how they came to their
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`conclusions. They are not prepared by the
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`attorneys, should not be prepared by the
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`attorneys, and should be included in the rest of
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`the file that is provided by the expert. Thank
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`you.
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`THE COURT: Okay.
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`MR. SMITH: Your Honor, we have no issue if
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`that request is limited to the amount of time
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`someone has testified as an expert in these cases
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`and how much they are paid for it. Fine. I
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`proposed that weeks ago to counsel and I didn't
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`hear back. I wouldn't have brought the motion if
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`that's the case. That's not what the request
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`says, and we never came to an agreement on it. So
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`that was the reason for the motion.
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`And I mentioned that the Dominici and the
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`other Fourth Department cases, those clearly
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`involved examining physicians, which neither of
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`our experts were. I'm not sure if that was part
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`of the bases for the Courts' decisions on those
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`cases.
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`And last thing I mentioned, it was the only
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`other request we didn't talk about was in the
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
`
`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`trial subpoenas, there was a request for the
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`number of Education Law cases, and maybe that was
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`what Your Honor was looking for before on
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`something else to ask about. But, the subpoenas
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`clearly seek the number of cases.
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`And, you know, to the extent that our experts
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`might have a list of cases that they testified in,
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`we would produce that, but, obviously, the
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`subpoena can't direct the experts or the attorneys
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`to prepare something. It is a subpoena duces
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`tecum, and that was the other argument in our
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`motion.
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`THE COURT: Counsel, one last thing.
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`MS. COSTANZO: Yes, Your Honor. At the end
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`of our subpoena, it indicates that the records, I
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`think it is underlined, it says this subpoena is
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`for records only. I'm not seeking that she total
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`up the number of cases, but to provide me with any
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`records she would have that show a number of
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`cases, if she was she has a list by index number
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`or title name, plaintiff's name, or -- I don't
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`know if she keeps a list or a spreadsheet. I just
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`didn't want to limit the request to just those
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`financial subpoenas, assuming the expert keeps
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`some other records that qualify under that
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`particular request.
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`THE COURT: Just so -- I want to make sure,
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`because, quite frankly, your last request, I
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`thought, isn't that the same or very similar
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`duplicative of the financials. You are asking her
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`about her financials, and, you know, where she's
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`getting her money from relative to, you know, I'll
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`leave it to cross-examination, how many cases are
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`plaintiffs, how many times have you testified for
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`defense, and I understand that. How much money
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`you've made. I get it. I understand that part.
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`But how is the request for a list of referrals
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`or -- I mean, you're asking her to go through all
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`of her files over the past four years to make a
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`list, or are you asking that if she has one?
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`MS. COSTANZO: Correct. Yes, Your Honor.
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`And in past cases, occasionally, an expert will,
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`you know, sometimes has like an internal system
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`that they keep records where they either keep it
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`by attorney name or case name or type of case
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`name. I have sometimes received spreadsheets. I
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`just didn't want to limit them to the -- just the
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`financial records, assuming Dr. Jeglic does keep
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`other records which may indicate that information.
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`I'm not asking her to create anything new, but if
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PM
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024
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`she does already have it, I request that she
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`provide it to me.
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`THE COURT: All right. Counsel, I'm just
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`trying here. If it is limited in its scope, are
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`you saying you don't have an objection to
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`providing that information?
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`MR. SMITH: Not at all.
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`THE COURT: Okay. So, here is what I'm --
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`I've decided. On the financial