NICHOLAS V. MIDEY JR.
Synopsis
Defendant's motion for an order disqualifying one of claimants' expert witnesses and the law firms representing claimants was denied.
Case information
UID: 2013-009-030 TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER, KELLY SPRINGER Claimant(s): and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Infant Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated Claimant short SPRINGER name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number 111361 (s): Motion number M-79517 (s): Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. UNDERBERG & KESSLER, LLP BY: Paul V. Nunes, Esq. Of Counsel. MARLER CLARK, LLP, PS Claimant's BY: Bruce T. Clark, Esq., attorney: Of Counsel. DREYER BOYAJIAN, LLP BY: Donald W. Boyajian, Esq. and James R. Peluso, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General Defendant's attorney: BY: Edward F. McArdle, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: October 9, 2013 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant has brought this motion seeking an order disqualifying Jennifer Clancy, Ph.D. as an expert witness for the claimants, and also for an order disqualifying the law firms representing the claimants in this claim. Specifically, defendant contends that Dr. Clancy has a conflict of interest prohibiting her from serving as an expert witness for the claimants, and further contends that Dr. Clancy provided claimants' attorneys with privileged or confidential information and/or documents. The Court has considered the following papers in connection with this motion:
Notice of Motion; Affirmation in Support of Edward F. McArdle, Esq., Assistant Attorney General; Affirmation of Thomas R. McCarthy, Esq.; with Exhibits 1-3
Memorandum of Law in Support 4
Affirmation of Paul V. Nunes, Esq., in Opposition, with Exhibits 5
Claimants' Memorandum of Law in Opposition 6
Affidavit of Jennifer L. Clancy, Ph.D. 7
Reply Affirmation in Support of Edward F. McArdle, Esq., Assistant Attorney General; Reply Affidavit of Thomas R. McCarthy, Esq., with Exhibits. 8-9
Defendant's Reply Memorandum of Law in Support 10
Correspondence from Paul V. Nunes, Esq., dated January 24, 2012, in Rebuttal 11
On August 15, 2005, the Spraypark located at Seneca Lake State Park (hereinafter referred to as Spraypark) was closed by the New York State Department of Health following an outbreak of cryptosporidosis, a highly contagious parasitic disease. Following this cryptosporidium outbreak at the Spraypark, the New York State Office of Parks, Recreation and Historic Preservation retained Malcolm Pirnie, an engineering firm, to evaluate the water treatment and circulation system at the Spraypark in an attempt to determine the possible cause of the outbreak.
During the course of discovery, claimants demanded copies of all reports prepared by Malcolm Pirnie in connection with its evaluation of the Spraypark. Pursuant to the Demand, the State produced a "Draft Professional Consultation Report" and a "Draft Study of Sprayground Report", both dated November 2005. Claimants' attorneys subsequently deposed one Dr. Michael J. MacPhee, Ph.D., an engineer who contributed to the Malcolm Pirnie Report. The State did not raise any objection to this deposition.
During the course of Dr. MacPhee's deposition, it was revealed that Dr. Clancy had also participated in the preparation of the Malcolm Pirnie Report. Subsequent to Dr. MacPhee's deposition, one of claimants' attorneys (Paul V. Nunes, Esq.) contacted Dr. Clancy regarding her participation in the Malcolm Pirnie Report, and at some point thereafter made arrangements for Dr. Clancy to serve as an expert witness for the claimants.
By this motion, defendant contends that through her involvement in the Malcolm Pirnie evaluation and Report, Dr. Clancy had a pre-existing confidential, expert re