FILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
`NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/19/2024
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF ORLEANS
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`AB 511 DOE,
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`v.
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`LYNDONVILLE CENTRAL SCHOOL DISTRICT;
`LYNDONVILLE ELEMENTARY SCHOOL.
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`Plaintiff,
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`Defendants.
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` Index No.: 20-46602
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`ORDER
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`WHEREAS, Defendants Lyndonville Central School District and Lyndonville
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`Elementary School (collectively the “District”) filed an Order to Show Cause seeking an
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`order (1) quashing Plaintiff’s trial subpoenas duces tecum directed to Dr. Jeglic and Dr.
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`Sorrentino in their entirety or deeming them unenforceable; (2) quashing all requests that
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`seek financial records unrelated to the case at hand, all requests seeking draft expert
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`reports, all requests seeking communications between the experts and Defendants’
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`counsel, and all requests seeking information as to opposed to records; (3) limiting all trial
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`subpoena duces tecum requests to all experts to those items set forth in the District’s
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`counsel’s January 23, 2024 email to Plaintiff’s counsel (see Smith Aff., Ex. B, pg. 1) or, in
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`the alternative, directing that all experts produce the same items in response to trial
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`subpoenas duces tecum; and (4) such other or additional relief deemed appropriate by
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`the Court; and
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`
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`WHEREAS, in support of that application, the District, by and through its
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`attorneys Webster Szanyi LLP, filed an Order to Show Cause that was signed by the Hon.
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`Deborah A. Chimes on February 6, 2024 (Doc. 171, 181), along with a supporting
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`Affirmation of Ryan G. Smith dated February 5, 2024, with Exhibits A-D (Doc. 172, 173,
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`FILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
`NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/19/2024
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`174, 175, 176), supporting Affirmation of Dr. Elizabeth Jeglic dated February 2, 2024, with
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`exhibit (Doc. 177, 178), and supporting memorandum of law dated February 5, 2024; and
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`
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`WHEREAS, Plaintiff AB 511 Doe opposed the application by Affirmation of
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`Leah Costanzo dated February 13, 2024, with exhibit (Doc. 220, 221); and
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`WHEREAS, the Court having heard oral argument on this matter on
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`February 15, 2024, a transcript of which is attached as Exhibit A; and
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`NOW, upon consideration of all the papers, pleadings, and materials
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`submitted by the parties, and due deliberation having been had, it is hereby:
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`ORDERED, that all experts served with trial subpoenas duces tecum shall
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`disclose: (1) 1099s, billings, invoices or other statements that reflect all compensation
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`paid or owed to the expert in connection with the engagement of expert witness services
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`in litigation of child sex abuse cases only, and specifically excluding child and family
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`matters, for the years 2020 through 2023; (2) any draft reports prepared by the expert;
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`and (3) a list of all child sex abuse litigation cases in which the expert has been retained,
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`if the expert is in possession of same; and it is further
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`ORDERED, that any requests that seek or encompass correspondence
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`exchanged between the expert and legal counsel are hereby quashed; and it is further
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`ORDERED, that to the extent that any trial subpoena duces tecum served
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`upon an expert seeks information that is contrary to or inconsistent with the foregoing,
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`such requests are hereby quashed; and otherwise, the requests contained in the
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`subpoena shall remain in force;
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`ORDERED, that service of trial subpoenas duces tecum on experts may be
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`effectuated by personal service, regardless of where the expert resides; and it is further
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`2
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`2 of 32
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`xx
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`and
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`XXX
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`criminal
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`their entire file including
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`DAC
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`DAC
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`excluding any matters involving family or criminal matters
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` from 2020 through 2023
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`DAC
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`

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`FILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
`NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/19/2024
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`ORDERED, that counsel shall be allowed the opportunity to serve expert
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`witnesses with a trial subpoena duces tecum that is consistent with this Order, and it is
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`further
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`ORDERED, that all materials responsive to trial subpoenas duces tecum on
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`expert witnesses shall be forwarded to and received by the Hon. Deborah A. Chimes,
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`Orleans County Courthouse, 1 South Main Street, Suite 3, Albion, NY 14411, at least
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`seven (7) days prior to jury selection.
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`GRANTED:
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`ENTERED:
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`______________________________
`Hon. Deborah A. Chimes
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`3
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`3 of 32
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`March 19, 2024
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`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
`FILED: ORLEANS COUNTY CLERK 03/20/2024 08:02 BM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
`NYSCEF DOC. NO. 293
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`INDEX NO. 20-46602INDEX NO. 20-46602
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`INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024RECEIVED NYSCEF: 03/19/2024
`RECEIVED NYSCEF: 03/19/2024
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`EXHIBIT A
`EXHIBIT A
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`4 of 32
`4 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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`RECEIVED NYSCEF: 03/14/2024RECEIVED NYSCEF: 03/19/2024
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`1
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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
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` -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.
`
` RYAN SMITH, ESQ.,
` SHANNON B. VANDERMEER, ESQ.,
` Appearing for the Defendants.
`
`
` LISA G. PAZDERSKI,
` Supreme Court Reporter.
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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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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`6 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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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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`7 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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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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`8 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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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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`9 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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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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`10 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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`MR. SMITH: Psychiatry.
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`THE COURT: Okay. Anything further on this
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`7
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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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`11 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX NO. 20-46602
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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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`12 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`INDEX NO. 20-46602INDEX 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
`
`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
`
`the questions, which creates sort of a copyright
`
`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
`
`on his ethical obligations and what he understands
`
`in his practice, to release it directly to the
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`expert.
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`13 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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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
`
`Dr. Keller is that the information that he
`
`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
`
`indicated in the moving papers that he received
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`Page 16, and presumably there would be Pages 1
`
`through 16. So, at least 1 through 15 have not
`
`been provided. I'm assuming they were provided to
`
`you.
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`MS. COSTANZO: They were not. Everything
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`that was provided to me was turned over to
`
`counsel. My understanding is that was the raw
`
`data from the answers to the test, it wasn't the
`
`test itself. I don't believe the test itself was
`
`ever requested, nor is it proper pursuant to the
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`14 of 32
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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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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
`
`claiming are missing?
`
`MR. SMITH: Yes, Your Honor. This is the one
`
`page of the PAI that we received. It is just a
`
`bunch of numbers and letters with a Page 16 at the
`
`bottom.
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`THE COURT: Do you have --
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`MS. COSTANZO: Dr. Keller's affirmation
`
`indicates that the documents that he turned over
`
`is the raw data for those two tests. Again, my
`
`understanding is he does have the actual test
`
`questions, which I think are different than the
`
`raw data.
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`THE COURT: All right.
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`MR. SMITH: Your Honor, if I may?
`
`THE COURT: Yes.
`
`MR. SMITH: To be clear, we have no idea at
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`15 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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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
`
`disclosure was done back in May of '23, there was
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`no expert identified by plaintiff who was
`
`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
`
`timing.
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`THE COURT: All right. So, understood. Did
`
`you have anything further to argue?
`
`MS. COSTANZO: Well, I guess, if I may, I
`
`don't want to get into the motion in limine.
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`THE COURT: We are not because I haven't
`
`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
`
`don't have it ready yet.
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`16 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`MS. COSTANZO: The motion actually only
`
`requests an extension for Dr. Sorrentino to get
`
`the raw data and full and complete interpretive
`
`reports of the testing, so, this is the first I'm
`
`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
`
`Honor.
`
`THE COURT: Okay. So -- right. On this
`
`motion, there was no request; at least I don't
`
`remember seeing it.
`
`MR. SMITH: There is in our affirmation, Your
`
`Honor. It specifically says that we need an
`
`opportunity to have and potentially retain an
`
`additional expert to address this.
`
`THE COURT: All right. So, my reading of the
`
`motion was that you are looking for documents,
`
`right. I don't know if your expert at this time
`
`is qualified or not to review or assess.
`
`MR. SMITH: Correct.
`
`THE COURT: But what I'm going to do, because
`
`I think based on your representation that her --
`
`she is a Doctor of Psychiatry. I do think it is a
`
`closely related field, and so I'm going to order
`
`Dr. Keller to provide all of the materials of the
`
`17 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`MMPI directly to Dr. Sorrentino.
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`And also, if there are pages -- there's an
`
`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
`
`the Court's determination they are going to issue
`
`the judicial subpoena, I would feel comfortable
`
`that the Court indicate all three tests in the
`
`subpoena so that there's no question what is
`
`missing.
`
`THE COURT: I'm issuing a court order. I'm
`
`ordering it.
`
`MS. COSTANZO: No, I understand. You mean a
`
`judicial subpoena I thought.
`
`THE COURT: Well, there's a motion, and I'm
`
`ordering it under the motion. So, there's going
`
`to come an order to me, and I'm going to sign it
`
`by way of an order.
`
`MS. COSTANZO: No, I understand. I thought
`
`the order was that you are issuing a judicial
`
`subpoena to Dr. Keller.
`
`THE COURT: Do you want a judicial subpoena?
`
`MR. SMITH: Your Honor, we just want it done
`
`as quickly as possible with the trial coming.
`
`18 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`THE COURT: So court order, they submit it to
`
`me by tomorrow, I sign it, it gets uploaded, and
`
`then however you requested the documents of
`
`Dr. Keller, you can attach it to -- and attach the
`
`order to it and you can advise Dr. Keller as your
`
`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,
`
`what counsel is getting at is this court order is
`
`not required to be served on Dr. Keller in
`
`Florida, correct?
`
`THE COURT: I didn't realize --
`
`MS. COSTANZO: If I may, Dr. Keller is a
`
`nonparty witness.
`
`THE COURT: Understood.
`
`MS. COSTANZO: The motion was seeking the --
`
`a judicial subpoena to serve on Dr. Keller
`
`ordering that he turn over the test results and
`
`the raw data.
`
`THE COURT: Does he still have an office
`
`locally?
`
`MS. COSTANZO: He has offices in two places.
`
`He practices in both. My understanding is that
`
`counsel served a subpoena on him I think last week
`
`in Naples, Florida.
`
`19 of 32
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`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`THE COURT: Okay. And there was nothing to
`
`quash, so you can continue to serve him in Naples
`
`since there was no motion to quash the first time,
`
`but you want an order with it because he's already
`
`objected to it?
`
`MR. SMITH: Your Honor, the issue with
`
`service is it was quite costly and time consuming
`
`to go properly serve someone outside of the state.
`
`Now, we did it because plaintiff's counsel
`
`refused to accept service on his behalf when I
`
`asked. And if the Court is requiring us to do
`
`that process again and properly serve him, that is
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`going to take time, and our time for trial to
`
`start is shortening. We simply want this done as
`
`quickly as possible to get the data.
`
`THE COURT: Counsel?
`
`MS. COSTANZO: Again, I guess I'm not trying
`
`to make it difficult --
`
`THE COURT: I understand.
`
`MS. COSTANZO: -- for defense counsel. I
`
`just don't represent him.
`
`THE COURT: I understand.
`
`MS. COSTANZO: So I don't want my
`
`representations through his affidavit that he
`
`provided it to me to indicate that I somehow --
`
`20 of 32
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`

`

`
`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
`
`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`the purpose of a judicial subpoena is to give him
`
`notice that if he wants to move to quash it, he
`
`can. I haven't given him that ability, nor have I
`
`advised him on it. I think that's the issue. I
`
`don't know. I could ask Dr. Keller if he would be
`
`agreeable to getting it emailed to him to avoid
`
`the cost of service, but I think he still needs to
`
`be served with a judicial subpoena. I can't
`
`accept service on his behalf.
`
`THE COURT: Let's go off the record.
`
`(Discussion off the record.)
`
`THE COURT: The records are to be provided to
`
`Dr. Sorrentino no later than February 22nd, 2024.
`
`(Discussion off the record.)
`
`THE COURT: We have another motion, this is
`
`Motion Number 7.
`
`MR. SMITH: Just one minute, Your Honor.
`
`Your Honor, this order to show cause concerns the
`
`trial subpoenas that were sent to -- by
`
`plaintiff's counsel to the District's experts,
`
`Dr. Sorrentino and Dr. Jeglic.
`
`As you can tell from the papers, counsel had
`
`discussions about the substance of those
`
`subpoenas. There wasn't an agreement reached on
`
`them. The primary issues with the subpoenas
`
`21 of 32
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`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`concern the breadth of the financial information
`
`being requested, the communications between
`
`attorneys and experts and --
`
`THE COURT: Well, I think that's been
`
`conceded, the whole -- so we are not addressing
`
`the communication between counsel and experts.
`
`MR. SMITH: Correct. And draft reports, I
`
`believe, is the other ones. These subpoenas were
`
`not originally served properly on our experts.
`
`They both reside out of state. I know counsel had
`
`them personally served recently, but there's no
`
`indication that those were served properly either
`
`because they don't appear to have been
`
`domesticated in the state or otherwise gone
`
`through the proper court in their jurisdictions to
`
`issue those subpoenas.
`
`So as we stand right now, I'm not sure that
`
`there are any valid subpoenas that have actually
`
`been served on our experts. But that said --
`
`THE COURT: Hold on. I thought that issue
`
`was addressed and remedied?
`
`MS. COSTANZO: Both experts were personally
`
`served.
`
`MR. SMITH: They were personally served with
`
`a New York State subpoena. You can't serve
`
`22 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`someone -- that's the argument, Your Honor.
`
`THE COURT: Okay.
`
`MR. SMITH: So, even assuming that, you know,
`
`the Court issues some order directing that, you
`
`know, the experts produce the information, you
`
`know, draft expert reports, the material prepared
`
`in anticipation of litigation, it is in our
`
`memorandum of law. I don't believe those are
`
`turned over. The subject of discovery is part of
`
`preparation for trial.
`
`And the financial information, I have no
`
`problem, Your Honor, with disclosing whatever
`
`these experts have been paid in connection with
`
`this case. There's no issue there. The issue is
`
`that counsel is asking for any and all -- and it
`
`ranges from W-2, 1099s, billings, invoices,
`
`statements, changes and accountings for any
`
`engagement, consultation or trial testimony for
`
`the past four years.
`
`For example, one of our experts, Dr. Jeglic,
`
`who actually frequently testifies for the
`
`plaintiff's side engages in a number of
`
`consultations, trainings, that have absolutely
`
`nothing to do with child sex abuse, grooming or
`
`anything that is going to come up in this case.
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`23 of 32
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`

`

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`FILED: ORLEANS COUNTY CLERK 03/14/2024 03:04 PMFILED: ORLEANS COUNTY CLERK 03/20/2024 08:42 AM
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`NYSCEF DOC. NO. 293NYSCEF DOC. NO. 294
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`The predominant amount of her work lately has been
`
`for pharmaceutical companies helping to train
`
`people to administer tests properly to detect
`
`certain symptoms and diagnoses. I mean, there's
`
`no relevance to this data, and there's obviously a
`
`lot of it from what I've gathered in talking with
`
`Dr. Jeglic and the various engagements that she
`
`has in those matters. I mean, we have no issue
`
`disclosing what has been paid here.
`
`The Dominici case clearly stands for the
`
`proposition that, you know, if there's an
`
`insurance carrier retaining someone, opposing
`
`counsel can find out how often that carrier
`
`retains them and how much they pay them. I'm fine
`
`with that, too. But that's not what is being
`
`asked for here, and that's the reason for the
`
`motion.
`
`THE COURT: Okay. That's one issue. And the
`
`direct expert reports, you are saying that --
`
`explain to me how you are arguing that the
`
`doctor's