Supreme Court, Erie County, February 28, 2022

John J. Fromen, Attorneys at Law, P.C. (John J. Fromen, Jr. and Frederick G. Attea, Jr. of counsel) for plaintiffs.

Barth Condren LLP (Dominic M. Chimera of counsel) for defendant.

This motion once again places a court's attention on the balance between a party's choice to designate an examining physician under CPLR 3121 (a) and the right of the opposing party not to be examined by a physician who is objectionable. This motion having been brought by notice of motion dated January 5, 2022; affidavit of John J. Fromen, Jr., Esq., sworn to January 5, 2022, with exhibits A through GG, in support of the motion; the affidavit of Dominic M. Chimera, Esq., counsel for defendant, affirmed to January 26, 2022, in opposition to the motion; and the reply affidavit of Frederick G. Attea, Jr., Esq., counsel for plaintiffs, sworn to January 31, 2022, with exhibits A to B, in further support of the motion (identified as NY St Cts Elec Filing [NYSCEF] Doc Nos. 61-99), all having been reviewed by the court, and oral argument having been held on February 2, 2022, with Frederick G. Attea, Jr., Esq., counsel for plaintiffs, in support of the motion, and Dominic M. Chimera, Esq., counsel for defendant, in opposition to the motion, and the motion having regularly come on to be heard, this court hereby issues the following decision and order granting plaintiffs' motion.

Procedural History

Plaintiffs commenced this action seeking compensation for injuries claimed to have been sustained in a motor vehicle collision with defendant. By way of history, during the course of discovery in this action, defendant served a CPLR 3121 (a) notice for plaintiff Jennifer A. Hasfurter to submit to physical examinations performed by Daniel Carr, M.D. (orthopedist), and Michael Landi, M.D. (neurosurgeon). Plaintiffs sought a{**75 Misc 3d at 224} protective order regarding Dr. Landi based upon a claim of animus held by the doctor specifically against plaintiffs' counsel, the law office of John J. Fromen, Jr. The previous IAS judge, Hon. Paul Wojtaszek, J.S.C., ordered plaintiff to "appear for a physical examination with a neurosurgeon of Defendant's choosing, [*2]with the exception of Michael Landi, M.D." (NYSCEF Doc No. 59.) No motion was brought against Dr. Carr.

While the transcript of oral argument for that motion is not in the record before this court, defense counsel's affidavit makes a reference to colloquy in which Douglas B. Moreland, M.D., was mentioned as defendant's alternate neurosurgeon designated to perform a physical exam of plaintiff should a protective order be issued against Dr. Landi. Per defense counsel's affidavit, plaintiffs' counsel indicated that plaintiffs would bring a similar motion should defense counsel designate Dr. Moreland as the examining physician.

In response, defense counsel issued a CPLR 3121 (a) notice dated January 3, 2022, choosing Douglas B. Moreland, M.D., as the designated physician to examine Ms. Hasfurter. Plaintiffs timely filed this motion on January 7, 2022, seeking relief including a protective order pursuant to CPLR 3103 (a). The court notes that while CPLR 3121 (a) is a remedy available to plaintiffs, a party is not obligated to first present such objections before filing a motion pursuant to CPLR 3103 (a). (See Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3103:2.) Plaintiffs' position is that Dr. Moreland is objectionable due to a demonstrated bias based on statements in prior reports and testimony which indicate hostility toward plaintiffs seeking compensation for pain and suffering.

For the reasons set forth below, the court grants plaintiffs' request and finds that plaintiffs have made an unrebutted prima facie showing that Douglas B. Moreland, M.D., is objectionable as a physician designated to perform a physical examination pursuant to CPLR 3121 (a) and he shall be precluded from examining plaintiff Jennifer A. Hasfurter.

Interplay of CPLR 3103 (a), 3121 (a), and 22 NYCRR 202.17 (a)

The authority for a party to compel another party to submit to a physical examination by a designated physician is a discovery device created by statute in CPLR 3121 (a), and subject to application and limitations in 22 NYCRR 202.17. Typically, the notice is served by defense counsel directing an{**75 Misc 3d at 225} injured plaintiff to submit to an exam performed by a physician designated by defense counsel ostensibly to determine the scope of injuries relevant to plaintiff's claim and whether any such injuries were caused by the events giving rise to the lawsuit. The exercise of that option is not unfettered and is subject to modification upon a proper showing by a party objecting to part, or all, of the notice. The language of section 202.17 (a) specifically allows for a party to seek to modify or vacate a notice with respect to the time, place, or examining physician on the grounds that any one of the elements is objectionable to the party who must comply with the notice. Regarding the examination itself, it has been noted that

"[t]hese exams, far from being independent in any ordinary sense of the word, are paid for and frequently controlled in their scope and conduct by legal adversaries of the examinee. They are emphatically not occasions for treatment, but are most often utilized to contest the examinee's claimed injury and to dispute the need for any treatment at all." (Bazakos v Lewis, 12 NY3d 631, 638 [2009, Lippman, Ch. J., dissenting].)

The sweeping power of CPLR 3103 to issue a protective order may be invoked by the court "on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought" to deny, limit, condition, or regulate "the use of any disclosure device." (CPLR 3103 [a].) Further, pursuant to section 202.17 (a), a party may move to modify or vacate a notice of medical exam on the basis that "the medical provider named is objectionable." This court has not [*3]found a definition of "objectionable" in Black's Law Dictionary, the CPLR, or NYCRR. It is defined as "undesirable, offensive" by Merriam-Webster, new edition 2016, and "causing people to be offended" per The Britannica Dictionary, online at https://www.britannica.com/dictionary/objectionable. A concededly low bar that is not being applied to this motion but does provide guidance to the extent that section 202.17 (a) allows for input by the party to be examined when a CPLR 3121 (a) physical exam is noticed.

There are several Appellate Division decisions on the issue of a court's ability to issue a protective order respecting a section 3121 (a) notice for physical examination. This decision will not parade them all for it suffices to note that in Parsons v Hytech Tool & Die (227 AD2d 896 [4th Dept 1996]), the Appellate Division, Fourth Department, held that Supreme Court did not{**75 Misc 3d at 226} abuse its discretion in issuing a similar protective order upon a plaintiff's showing that a defendant's expert was objectionable. The Parsons Court made clear that a defendant would not be prejudiced if permitted the opportunity to designate a different physician to examine plaintiff (Parsons, 227 AD2d at 896). So it was in the previous decision in this action when defense counsel designated Michael Landi, M.D., and so it is now when defense counsel has designated Douglas B. Moreland, M.D., because defense counsel maintains the opportunity to designate an examining physician.

Prima Facie Showing and Burden of Proof

In seeking a protective order, plaintiffs must overcome the burden of establishing as a matter of law that Dr. Moreland is objectionable. This can be shown by establishing a demonstrated history which indicates a bias or prejudice, which includes a hostility toward plaintiffs seeking compensation for personal injuries, including pain and suffering (see Hagmeier v Consolidated Rail Corp., 154 AD2d 893 [4th Dept 1989]; Parsons, 227 AD2d at 896).

Physicians are typically precluded from testifying on the issue of credibility, regardless of whether it is to the benefit or detriment of the specific witness, limited to exceptions not presented here.

"When credibility is at issue, however, expert testimony has been held to a higher standard than is normally true for other types of expert testimony and is admissible only if the methodology applied by the expert is so reliable that he or she can testify that the results are conclusive and not merely accurate within a reasonable degree of certainty" (Kravitz v Long Is. Jewish-Hillside Med. Ctr., 113 AD2d 577, 580-581 [2d Dept 1985] [citations omitted]).

Plaintiffs submitted over 1,100 pages of exhibits, much of it reflecting work product of Dr. Moreland including sworn testimony and medical reports affirmed pursuant to CPLR 2106. In response, defense counsel submitted an attorney affirmation without exhibits. No affirmation or affidavit from Dr. Moreland was submitted on his own behalf, nor did his counsel point to any such affirmation or affidavit that may have been filed in any of the unrelated matters in which a protective order or preclusion was sought against Dr. Moreland.

Plaintiffs have met their burden by establishing prima facie that Dr. Moreland is objectionable through a demonstrated{**75 Misc 3d at 227} bias in favor of those who hire him to conduct a physical examination and prejudice against plaintiffs who bring personal injury claims seeking compensation for pain and suffering. Dr. Moreland's reports are replete with gratuitous comments that denigrate the people he examines under the veil of addressing credibility, neither of which are relevant to his task as a designated physician under CPLR 3121, a fact that has [*4]been made clear to him time and again through multiple court proceedings and rulings.

Dr. Moreland is well-known to the civil trial courts of the 8th Judicial District; in addition to his practice as a treating physician for traumatic injuries he has provided medical examination reports and expert testimony in personal injury matters for many years. The exhibits in support of this motion include a report dated November 13, 2008 (NYSCEF Doc No. 72, affirmation in support, exhibit J). Dr. Moreland has been the subject of motions seeking protective orders from his examination of injured parties, or preclusion orders seeking to limit the scope of his testimony based upon those examinations, dating back to at least October 8, 2013 (see Gomez-Brock v Kubiak, Sup Ct, Erie County, Oct. 8, 2013, NeMoyer, J., index No. 2671/2011).

In Lasota v Toenniessen (Sup Ct, Niagara County, Nov. 28, 2017, Caruso, J., index No. E159076/2016), a protective order was granted precluding Dr. Moreland from testifying about plaintiff's lack of credibility, or that plaintiff is a malingerer because that would be invading the province of the jury; precluding him from testifying about biomechanical engineering or the physics of the collision citing that both areas were beyond his expertise; and precluding him from offering testimony of the future work plans and what he believed the future held for plaintiff.

Dr. Moreland was the CPLR 3121 examining physician in Dunn v Garrett and his testimony on the issue of plaintiff's credibility based on plaintiff's "drug use history" contributed, along with defense counsel's violation of a pretrial ruling, to the Appellate Division, Fourth Department, reversing the jury verdict on a determination that plaintiff was denied a fair trial (Dunn v Garrett, 138 AD3d 1387, 1388 [4th Dept 2016]). The affidavit of Colin Campbell, Esq., submitted as plaintiffs' exhibit D (NYSCEF Doc No. 66), with exhibits, devotes several pages to describe the events of the Dunn v Garrett trial and Dr. Moreland's testimony regarding credibility.{**75 Misc 3d at 228}

Further at Campbell, exhibit K (NYSCEF Doc No. 66 at 104-120) is a report dated August 18, 2014, and affirmed by Dr. Moreland regarding an examination he performed of plaintiff Deborah Kalbfleish on March 25, 2014. Ms. Kalbfleish was employed full-time without restrictions as a registered nurse when she was in a vehicle that was struck from behind by another vehicle. Dr. Moreland noted that her past medical records showed no history of treatment for cervical disc disease or spinal cord injury. She underwent cervical fusion surgery at C5-6 and C6-7. She left the hospital in a wheelchair and had been wheelchair-bound ever since. Ms. Kalbfleish had essentially lost the use of the left side of her body. Dr. Moreland expressed his opinion that the motor vehicle collision "played a role" in her cervical spine injury but it was his "opinion that her spine was in such a precarious state before the motor vehicle accident that there was a greater chance than not that she would have developed this condition at some point in time in the near future even if the motor vehicle accident had not occurred" (NYSCEF Doc No. 66 at 107 [emphasis supplied]). When faced with a plaintiff whom he noted had "no complaints or symptoms before the motor vehicle accident" (id.), Dr. Moreland's opinion ran contrary to the evidence before him and engaged in gratuitous speculation. The Appellate Division, Fourth Department, described such opinion testimony as "speculative at best" when offered by defense that a plaintiff's progressive medical condition would have eventually led to the same loss of mobility proved to have been caused by the claimed negligence (see Monahan v Weichert, 93 AD2d 984, 984 [4th Dept 1983]).

In exhibit H (NYSCEF Doc No. 70; Lee v Modaffari, Sup Ct, Erie County, Mar. 13, 2018, Ogden, J., index No. 804076/2015), Dr. Moreland was precluded from testifying at trial about a plaintiff's credibility.

In exhibit L (NYSCEF Doc No. 74 at 4), report on Diane Victor, dated January 5, 2015, Dr. Moreland commented that plaintiff showed "obvious signs of malingering, fabrication and symptom magnification." He recorded his observations of "histrionic behavior and exaggerated facial grimacing as well as exaggerated sighing throughout the exam." (Id.) His report continues to note several allegations of criminal history (including altered narcotic prescription, and shoplifting) against plaintiff to support his conclusion that she has "extremely poor" credibility. (Id.) What role those observations have in a medical{**75 Misc 3d at 229} exam to determine the scope of injuries sustained in a car crash is not clear to the court nor could case law be found to support the inclusion of such observations in a physical exam noticed pursuant to CPLR 3121 (a).

In exhibit M (NYSCEF Doc No. 75 at 3), report of Anthony Salhab, dated April 16, 2018, after already having been precluded from offering opinion testimony on credibility in the Appellate Division, Fourth Department's reversal in Dunn v Garrett and in Lasota, he offered the observation that plaintiff "showed multiple signs of malingering, the most conspicuous of these being on his motor testing." Dr. Moreland went on to offer his opinion on credibility for range of motion of plaintiff's neck as "misrepresented" and sensory examination was "fabricated" with demonstrations of "histrionic behavior all exaggerated." (Id.)

In exhibit N (NYSCEF Doc No. 76 at 4), report on Latashia Robinson, dated January 29, 2015, Dr. Moreland included in his report that plaintiff had tattoos including the letters "MGB" which he claimed plaintiff defined as "money gittin bitch." Dr. Moreland reported various distraction techniques he used to support his conclusion plaintiff was a "malinger[er]" who fabricated symptoms. (Id. at 5.) He repeated in his conclusion what plaintiff's MGB tattoo stood for as valid support for his opinion plaintiff has poor credibility.

In exhibit O (NYSCEF Doc No. 77 at 3-4), report on Danielle Taylor, dated March 13, 2017, he noted plaintiff's "parents were both age 15 when she was born . . . [h]er step-father was murdered in a random shooting [and] [h]er biological father struggled with drugs." Dr. Moreland offered the opinion that plaintiff's mental health was very poor and she had a history of poor coping skills. "The words she used to describe her pain are also characteristic of hysterical, fabricated or malingering conditions." (Id. at 4.) However, he notes that her cervical MRI "[d]oes show a moderate central C4-5 disc herniation" (id.) and that despite plaintiff having undergone a cervical disc fusion surgery by her treating physician for that very condition, it was Dr. Moreland's opinion that it was not indicated and was not related to the car crash. He attributed her cervical disc herniation to genetics and "her morbid obesity" though he did not offer an opinion on the weight of her head, which is the only weight borne by the cervical spine. (Id.)

Beyond the established hostility directed to plaintiffs seeking compensation for personal injury, Dr. Moreland's writings{**75 Misc 3d at 230} and testimony call into question his fidelity to the underpinning of the very reason for the examination. He appears to have confused his role as a physician charged with performing a medical exam and reporting the relevant factual findings of the physical exam, with being an advocate seeking to arm defense with ad hominem ammunition against a party seeking compensation.

It is difficult to fathom the circumstances that would exist for Dr. Moreland to be unaware of the consequences of offering opinions on credibility of the people he has examined in light of the protective orders and decisions issued by courts where he is scheduled to testify at trial as a CPLR 3121 witness, including the Dunn v Garrett reversal of a jury verdict based, in part, on his testimony regarding a plaintiff's credibility.

Based on the foregoing, this court finds plaintiffs have met their burden of establishing prima facie that Dr. Moreland is objectionable under 22 NYCRR 202.17 (a).

Defense Arguments

Defense offers procedural arguments in opposition to plaintiffs' motion.

Defense contends that the prior order of Hon. Paul Wojtaszek, J.S.C. (NYSCEF Doc Nos. 59, 98), is the law of the case and explicitly permits defense to use Dr. Moreland to perform an examination of plaintiff because the language of the order only precludes the use of Dr. Landi. That reading of the order employs a logical fallacy that would permit defense to choose the most partisan, odious, and objectionable individual to examine plaintiff without recourse. That simply cannot be. Defense concedes that it had not submitted a CPLR 3121 (a) notice to plaintiff naming Dr. Moreland as the physician designated to conduct a physical exam at the time the previous motion was brought or when the order was issued. That being established, any effort by plaintiffs for a protective order would be denied as premature. Further, there was no evidence before Justice Wojtaszek upon which a decision could be made regarding whether Dr. Moreland was objectionable.

Defense also argues that plaintiffs' papers exceed the word limit under new rule section 202.8-b. (Uniform Rules for Trial Cts [22 NYCRR] § 202.8-b.) This court notes that such reliance is a rather slender reed upon which to deny relief, and in any event, it is a defect curable sua sponte by the court waiving the word limit, nunc pro tunc, pursuant to section 202.1 (b). In any{**75 Misc 3d at 231} event, if the court were to stop at 7,000 words into plaintiffs' papers, it should be noted that plaintiffs would have met their burden by making a prima facie showing that Dr. Moreland is objectionable under applicable case law and rules.

Defense further argues that at the oral argument of the previous motion addressing Dr. Landi's involvement, defense counsel mentioned that he "would in turn schedule an independent neurosurgical examination with Dr. Moreland." (NYSCEF Doc No. 96, Chimera affirmation ¶ 15.) Urging the court to deem this proper notice to plaintiffs, the defense would have this court rule that plaintiffs were obligated to seek preclusion of Dr. Moreland at that time before Justice Wojtaszek. However, defense counsel also reported that plaintiffs' counsel "advised at that time that if the Defendant proceeded to notice an examination with Dr. Moreland, that a similar motion for preclusion would be brought before the Court." (Chimera affirmation ¶ 17.) It can hardly be said plaintiffs acquiesced to having Dr. Moreland conduct the examination. Further, there was nothing before Justice Wojtaszek for him to make a determination whether Dr. Moreland was "objectionable" under applicable case law, rules, or statutes. Any order that would have been issued by Justice Wojtaszek on the matter now before this court would likely have been reversed on appeal due to the absence of competent proof.

In the absence of an affidavit or other competent proof submitted on behalf of Dr. Moreland on the issue of whether he is objectionable, this court is constrained to grant plaintiffs' relief without taking the extra step of holding a hearing on an issue that is unrebutted.

For all the reasons set forth above, it is therefore ordered that plaintiffs' motion seeking a protective order pursuant to CPLR 3103 (a) is granted and that defense counsel is precluded from designating Douglas B. Moreland, M.D., as an examining physician under CPLR 3121 (a), and it is further ordered that defense counsel may designate a different neurosurgeon not previously precluded in this action to examine plaintiff Jennifer A. Hasfurter.