The following e-filed documents, listed by NYSCEF document number (Motion 009) 321, 322, 323, 324, 325, 326, 327, 328, 329, 330, 331, 332, 333, 334, 335, 342, 343, 346, 347 were read on this motion to/for DISCOVERY.

The following e-filed documents, listed by NYSCEF document number (Motion 010) 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359 were read on this motion to/for QUASH SUBPOENA, FIX CONDITIONS.

Upon the foregoing documents, and after oral arguments having been heard, Defendants THE NEW YORK AND PRESBYTERIAN HOSPITAL, NEW YORK-PRESBYTERIAN HEALTHCARE SYSTEM, INC., PARUL SHUKLA, M.D., ALESHA PENNANT, R.N., PATRICIA KALNBERG, L.C.S.W., MORGAN ELIZABETH WHITE, R.N., and JESSICA THIESMEYER, M.D. (hereinafter "Defendants") move this Court for an Order:

1) Pursuant to CPLR §3124, compelling Plaintiff to provide witness statements by a date certain (motion sequence 009); and

2) Pursuant to CPLR§ 2304, quashing Plaintiff's so-ordered subpoena duces tecum on New York State Department of Health because it fails to protect against disclosure of statutorily privileged information pursuant to New York State Public Health Law 2805-j/k/1/m and New York State Education Law 6527; and

3) Pursuant to CPLR§ 2304, quashing Plaintiff's so-ordered subpoena duces tecum on New York State Department of Health because the law of the case is that Defendants' have protective order overall Quality Assurance materials including those sent to the New York State Department of Health; or, in the alternative,

4) Modifying the subpoena such that any response is sent directly to Judge King's chambers under seal for an in-camera inspection to prevent any inadvertent disclosure of statutorily privileged information to Plaintiff's counsel (motion sequence 010).

This medical malpractice and wrongful death action arises from the treatment of Roz De La Rosa ("decedent") for diverticulitis at The New York and Presbyterian Hospital ("NYPH") and his subsequent death in July 2016. Plaintiff, on behalf of her decedent, alleges that Defendants' care was negligent and that they failed to prevent decedent's elopement from the facility on June 29, 2016, which resulted in a suicide attempt at a nearby subway station and his death several days later. This matter consists of two actions, originally filed in 2017 and 2018, which were consolidated by Court Order on August 28, 2019 (NYSCEF Document No. 69).

Discovery has resulted in two primary disclosure disputes currently before the Court. The first involves written statements provided by non-party witnesses Katy Traversi, Guninder Singh, and Patrick Regan. While Plaintiff produced these witnesses for depositions between November 2024 and January 2025, the witnesses testified to having previously signed affidavits or statements prepared by Plaintiff's counsel. Defendants moved to compel the production of these "Witness Statements," arguing they are entitled to the documents following the witnesses' testimony. Plaintiff opposes the motion, asserting that the statements constitute privileged attorney work product and material prepared for litigation, and cross-moves for a protective order.

The second dispute concerns a "so-ordered" subpoena duces tecum served by Plaintiff on [*2]October 20, 2025, upon the New York State Department of Health ("DOH"). The subpoena seeks statements made by the individually named Defendants regarding the 2016 incident. This request follows a prior Order by this Court (Rakower, J.) granting a protective order in favor of Defendants over internal Quality Assurance ("QA") materials and Morbidity and Mortality ("M&M") reviews pursuant to Public Health Law 2805-l and Education Law 6527.

Defendants now move to quash the DOH subpoena, contending that the materials sought are statutorily privileged and that the subpoena represents an improper attempt to circumvent the existing protective order. Conversely, Plaintiff maintains that the subpoena is narrowly tailored to reach only the factual statements of the named party Defendants—which Plaintiff argues are specifically exempted from QA privilege—and asserts that the DOH file may be the only source for these statements as they were not recorded in ordinary business records.

In support of their motion to compel, Defendants contend that the non-party witness statements are "material and necessary" to the defense of this action under the liberal disclosure standards of CPLR 3101, as they contain personal observations regarding the decedent's treatment and the circumstances surrounding his elopement. Defendants argue that Plaintiff has failed to meet the burden of establishing that these statements are protected by the attorney work product privilege, asserting that the mere transcription of a witness's narrative by an attorney does not transform factual observations into a product of legal expertise or strategy.

Furthermore, Defendants maintain that the statements are not shielded by the conditional immunity for materials prepared in anticipation of litigation under CPLR 3101(d)(2). Specifically, Defendants argue that any claim of privilege is purely conclusory and, in any event, is overcome by their substantial need for the documents; they assert that because Plaintiff's counsel blocked questioning regarding the statements during depositions and because the statements were recorded significantly closer in time to the underlying events than the subsequent testimony, the documents are essential to their defense and cannot be duplicated without undue hardship.

In opposition to the motion and in support of their cross-motion for a protective order, Plaintiff argues that the witness statements are immune from disclosure as both absolute attorney work product and material prepared in anticipation of litigation under CPLR 3101(c) and (d)(2). Plaintiff asserts that these statements were not mere transcriptions of narratives but were drafted and crafted through counsel's professional labor, prompts, and editorial selection, thereby revealing the legal strategy and mental impressions of the attorney. Furthermore, Plaintiff contends that Defendants cannot satisfy the statutory requirements of "substantial need" or "undue hardship" necessary to overcome the conditional privilege for trial preparation materials. Plaintiff emphasizes that because Defendants have already conducted exhaustive, multi-hour depositions of each of the three witnesses, they have already obtained the substantial equivalent of the information contained in the statements.

The Court finds that Plaintiff has established that the signed witness statements constitute material prepared in anticipation of litigation under CPLR 3101(d)(2). While the Court rejects Plaintiff's contention that these statements are absolute attorney work product—as the "mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement 'work product'" (People v Consolazio, 40 NY2d 446, 453 [1976]. The statements remain "trial preparations" subject to conditional immunity (People v Kozlowski, 11 NY3d 223, 245 [2008]).

Further, the Court finds that Defendants have failed to demonstrate the "undue hardship" required by CPLR 3101(d)(2) to overcome this privilege, as they had "access to the same witnesses" and conducted extensive, multi-hour depositions of all three individuals (Kozlowski, 11 NY3d at 245). Having secured the "substantially equivalent" testimony of these witnesses through the deposition process, Defendants cannot establish a substantial need for the attorney-prepared materials based on mere speculation regarding potential impeachment. Consequently, to compel disclosure where the substantial equivalent has already been, or could have been obtained, by way of multi-hour depositions, would contravene the protections of CPLR 3101(d)(2).

Thus, Defendants' motion to compel the production of non-party witness statements is denied, and Plaintiff's cross-motion for a protective order regarding said statements is granted.

Defendants move to quash the subpoena duces tecum served upon the DOH, contending that the materials sought—specifically records within the New York Patient Occurrence Reporting and Tracking System (NYPORTS)—are unequivocally protected by the "complete confidentiality" conferred by Public Health Law 2805-j, k, l, and m and Education Law 6527(3). Defendants argue that because these reports are statutorily mandated for quality assurance and malpractice prevention purposes, they are de facto privileged to encourage candid self-review without fear of legal reprisal. They further assert that the subpoena's demand for "references to statements" is impermissibly overbroad and threatens to disclose privileged root cause analyses and investigative conclusions that are barred from discovery under CPLR Article 31.

Furthermore, Defendants argue that the "Law of the Case" doctrine precludes this discovery, as a prior protective order issued by this Court (Rakower, J.) already determined that the hospital's quality assurance materials, including those reported to the DOH, are immune from disclosure (NYSCEF Doc. No. 165). Defendants characterize the subpoena as an improper attempt to circumvent that prior ruling and a "ruse" to obtain documents that do not contain any discoverable party statements. They maintain that deposition testimony from the named defendants confirms the absence of any statements falling under the narrow statutory exception of Public Health Law 2805-m(2). In the alternative, Defendants request that the subpoena be modified to require an in-camera inspection to prevent the improper release of privileged information.

In opposition, Plaintiff argues that while New York law provides a broad quality assurance privilege, both Public Health Law 2805-m(2) and Education Law 6527(3) contain a "party-statement exception" that mandates the disclosure of statements made by any person in attendance at a quality review meeting who is a party to the action. Plaintiff emphasizes that because the named Defendants (including Dr. Shukla and various nursing staff) were involved in the treatment and subsequent investigation of the decedent's elopement, any statements they provided during Root Cause Analysis committee meetings or Morbidity & Mortality ("M&M") conferences are discoverable as a matter of law.

Plaintiff further contends that the "Law of the Case" doctrine does not bar the current subpoena because the prior protective order issued by Judge Rakower addressed a broad demand for all QA materials, whereas the current subpoena is "surgically precise," seeking only the non-privileged party statements. Plaintiff argues that Defendants' claim that "no discoverable statements exist" is a tautology, noting that deposition testimony has already confirmed the decedent's case was discussed at a departmental M&M meeting where Dr. Shukla was present. [*3]Consequently, Plaintiff maintains that if any doubt remains regarding the content of the Department of Health files, the appropriate remedy is not to quash the subpoena but to conduct an in-camera review to redact privileged committee evaluations while disclosing the factual statements made by the named Defendants.

While the materials sought from the Department of Health are generally shielded by the quality assurance privilege under Public Health Law 2805-m and Education Law 6527(3), this protection is subject to the statutory "party-statement exception" for statements made by named defendants during peer-review or quality assurance meetings. Although a prior protective order limited the broad disclosure of the hospital's internal quality assurance records, that ruling does not preclude a narrowly tailored search for statements that the Legislature has explicitly exempted from the privilege. To balance the hospital's interest in maintaining the confidentiality of its self-review process with the Plaintiff's right to discover party admissions, the Court declines to quash the subpoena and instead directs Plaintiff to modify it to require that the responsive records be produced for an in-camera inspection. This review will allow the Court to identify and redact privileged committee evaluations and non-party narratives while ensuring that any discoverable statements made by the named Defendants are properly disclosed to the parties.

Accordingly, it is hereby

ORDERED that Defendants' motion to compel the production of non-party witness statements is denied, and Plaintiff's cross-motion for a protective order regarding said statements is granted; and it is further

ORDERED that Defendants' motion to quash the subpoena duces tecum served upon the DOH is granted only to the extent that the subpoena is modified as follows:

1. The DOH is directed to produce the records responsive to the subpoena under seal directly to this Court for an in-camera inspection to Judge Kathy J. King, 60 Centre Street, Room 351, New York, NY 10007;

2. Upon receipt, the Court will review the materials to determine whether they contain statements made by the individually named Defendants regarding the incident of June 29, 2016;

3. The Court will redact all privileged Quality Assurance committee evaluations, conclusions, recommendations, and statements made by non-party individuals before providing the discoverable party statements to the parties; and

4. The DOH shall comply with this modified subpoena within forty-five (45) days of service of a copy of this Order with Notice of Entry; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order with Notice of Entry upon all parties, and upon the New York State Department of Health, within twenty (20) days of the date of this Order.

This constitutes the Decision and Order of the Court.