Ropel et al v. The Bank of New York Company, Inc. et al
ORDER AND OPINION DENYING PLAINTIFFS' MOTION TO COMPEL THE DEPOSITION OF EXPERT WITNESSES AND TO SERVE AMENDED EXPERT DISCLOSURES PURSUANT TO FRCP 26(a)(2)(C) re: (392 in 1:06-cv-01521-AKH, 5549 in 1:21-mc-00102-AKH, 358 in 1:06-cv-01520-AKH, 280 in 1:07-cv-11291-AKH, 349 in 1:06-cv-05285-AKH) MOTION to Compel physicians designated as expert witnesses to Appear for deposition and other relief as the court provides filed by Various plaintiffs represented by Cannata/Grocho w: For the foregoing reasons, Plaintiffs' motion is DENIED. The Clerk shall mark the following motions as terminated: Doc. No. 5549 in 21 MC 102, Doc. No. 294 in 09 Civ. 680, Doc. No. 349 in 06 Civ. 5285, Doc. No. 392 in 06 Civ. 1521, Doc. No. 280 in 07 Civ. 11291, Doc. No. 358 in 06 Civ. 1520. (Signed by Judge Alvin K. Hellerstein on 1/15/2015) Filed In Associated Cases: 1:21-mc-00102-AKH, 1:06-cv-01520-AKH, 1:06-cv-01521-AKH, 1:06-cv-05285-AKH, 1:07-cv-11291-AKH, 1:09-cv-00680-AKH. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN RE WORLD TRADE CENTER LOWER
MANHATTAN DISASTER SITE LITIGATION
ORDER AND OPINION
MOTION TO COMPEL
THE DEPOSITION OF
EXPERT WITNESSES AND
TO SERVE AMENDED
PURSUANT TO FRCP
MAREK SOCHA, ET AL.,
Case Number: 09-cv-00680
110 CHURCH, LLC, ET AL.,
Case Number: 06-cv-5285
-againstVERIZON NEW YORK, INC., ET AL.,
TADEUSZ KOWALEWSKI, ET AL.,
Case Number: 06-cv-1521
DEUTSCHE BANK TRUST CORP., ET AL.,
WLADYSLA W KWASNIK,
Case Number: 07-cv-11291
160 WATER ST., INC., ET AL.,
WALDEMAR RO PEL, ET AL.,
Case Number: 06-cv-1520
THE BANK OF NEW YORK COMPANY, INC.,
ALVIN K. HELLERSTEIN, U.S.D.J.:
The claims of 9/11 plaintiffs Marek Socha, Jerzy Muszkatel, Tadeusz
Kowalewski, Wladyslaw Kwasnik, and Waldemar Ropel (together, "Plaintiffs") are ready for
trial. They will have to prove that the injuries they incurred were caused by their having
breathed, or ingested, the dust arising from the collapse of the Twin Towers of the World Trade
Center on that date in 2001. Plaintiffs assert that certain physicians associated with the Mt. Sinai
World Trade Center Medical Monitoring Program ("Mt. Sinai WTC Health Program"), and one
Workers' Compensation treating physician (together, the "Non-Retained Experts"), 1 have
unique knowledge of the effects of the World Trade Center dust, but are unwilling to produce
data or to serve as expert witnesses on their behalf. Because Plaintiffs have failed to show that
the Non-Retained Experts' testimony is unique, I deny their motion. However, I find that the
research data accumulated by the Mt. Sinai WTC Health Program is unparalleled in its scope and
order it disclosed by Mt. Sinai Health System ("Mt. Sinai") pursuant to the protocol previously
established in In re World Trade Center Disaster Site Litigation, 21-mc-100.
In June 2014, after the close of fact discovery, Plaintiffs notified Defendants that
they intended to call the Non-Retained Experts as expert witnesses. 2 Plaintiffs, however, were
unable to serve expert reports for the Non-Retained Experts because Mt. Sinai has refused to
permit its physicians to cooperate with the Plaintiffs. Mt. Sinai has done so out of concern for
the amount of time the physicians would be required to spend away from their duties treating
patients and conducting research. See Mt. Sinai Mem. Law Opp'n Pls.' Mot. Compel Deposition
Expert Witnesses ("Mt. Sinai Opp'n Br.") at 5. In addition, Mt. Sinai is concerned that expert
testimony provided on behalf of the Plaintiffs would compromise the institution's desired
neutrality in the World Trade Center litigation. See id. at 6. Dr. Friedman has similarly refused
to cooperate with Plaintiffs for fear that doing so would result in a conflict of interest with
respect to the insurance companies that hired him to conduct examinations pursuant to the New
The Non-Retained Experts include Dr. Laura A. Bienenfeld, Dr. Aboaba Afilaka, Jr., Dr. Elizabeth Wilk-Rivard,
Dr. Malgorzata Land, and Dr. Carl Friedman.
Several of the Mt. Sinai physicians were previously deposed during fact discovery but the scope of their
depositions was limited to the treatment of specific plaintiffs. Counsel for Mt. Sinai objected to, and instructed the
witnesses not to answer, questions calling for expert knowledge.
York Workers' Compensation Law. See Mem. Law Supp. Pls.' Mot. Compel Deposition Expert
Witnesses ("Pls.' Br.") at 4.
Because they were unable to secure the Non-Retained Experts' cooperation,
Plaintiffs provided abbreviated expert disclosures pursuant to Federal Rule of Civil Procedure
26(a)(2)(C). These abbreviated disclosures consisted of generic summaries of the Non-Retained
Experts' anticipated opinions. Specifically, the disclosures anticipate that the Non-Retained
Experts would testify that the Plaintiffs "sustained injuries as a result of ... exposure to toxic
matter at the work site(s)." See Deel. Richard Leff Supp. Defs.' Mot. Preclude Unretained
Expert Testimony Because oflnadequate Disclosures, Exhs. A-E, 21-mc-102, ECF No. 5513
(Oct. 14, 2014). The disclosures did not identify any particular studies upon which Plaintiffs
expected the Non-Retained Experts to rely. See id.
By Order dated November 5, 2014, I held that Plaintiffs' abbreviated disclosures
did not satisfy the requirements of Rule 26(a)(2) and ordered Plaintiffs to provide Defendants
with expert reports pursuant to Rule 26(a)(2)(B) prior to any deposition. See Order and Op.
Granting Defs.' Mot. Preclude Unretained Experts' Testimony Because oflnadequate
Disclosures ("Nov. 5th Order") at 10, 21-mc-102, ECF No. 5542 (Nov. 5, 2014). Acknowledging
that the Plaintiffs' compliance with the Nov. 5th Order required the Non-Retained Experts'
cooperation, I granted Plaintiffs leave to file a motion to compel Mt. Sinai to produce the NonRetained Experts and the data underlying their opinions. See id. at 10.
Plaintiffs now move for an order compelling the Non-Retained Experts to appear
for depositions. In their moving papers, Plaintiffs state that they intend that the Non-Retained
Experts provide expert testimony at trial that plaintiffs' injuries were proximately caused by their
work in buildings close to the World Trade Center site. Specifically, Plaintiffs anticipate the
(i) To testify concerning the plaintiffs' treatment, testing, and medication
for their respiratory and digestive illnesses; (ii) To testify concerning the
relationships between exposure to the World Trade Center dust, and
respiratory and digestive illnesses based upon the physicians' experiences
treating plaintiffs and tens of thousands of World Trade Center responders
and their knowledge of studies of the World Trade Center population; (iii)
To testify concerning their first-hand research studies and peer-reviewed
publications concerning World Trade Center-related illnesses; and (iv) To
testify concerning the Mount Sinai WTC Health Program.
Pls.' Br. at 8. In addition, Plaintiffs seek to supplement their abbreviated Rule 26(a)(2)(C)
disclosures after the depositions in lieu of serving expert reports pursuant to Rule 26(a)(2)(B)
prior to depositions.
Power of Court to Compel Non-Retained Expert Witnesses
Whether to compel a non-retained expert witness to produce documents or testify
at a deposition is within the sound discretion of the District Court. See Fed. R. Civ. P.
45(d)(3)(C). A Court may do so upon a showing of a "substantial need for the testimony or
material that cannot be otherwise met without undue hardship" and assurance "that the
subpoenaed person will be reasonably compensated." Id; see also Carter-Wallace, Inc. v. Otte,
474 F.2d 529, 536 (2d Cir. 1972) ("The weight of authority holds that, although it is not the usual
practice, a court does have the power to subpoena an expert witness and ... require him [or her]
to state whatever opinions he [or she] may have previously formed."). Courts generally consider
the following five factors in determining whether to exercise such discretion:
(1) "[T]he degree to which the expert is being called because of his
knowledge of facts relevant to the case rather than in order to give opinion
testimony"; (2) "the difference between testifying to a previously formed
or expressed opinion and forming a new one"; (3) "the possibility that, for
other reasons, the witness is a unique expert"; (4) "the extent to which the
calling party is able to show the unlikelihood that any comparable witness
will willingly testify"; and (5) "the degree to which the witness is able to
show that he has been oppressed by having continually to testify[.]"
Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976). I consider these factors in turn.
It is not disputed that Plaintiffs seek to elicit the expert opinion of the Non-
Retained Experts as to the cause of Plaintiffs' alleged injuries. Although some factual testimony
may be elicited regarding the studies and data developed through the Mt. Sinai WTC Program,
which form the basis of the Non-Retained Experts' opinions, see Fed. R. Evid. 703, 705, the
primary purpose of the testimony would be to present expert opinion evidence on specific and
general causation. See Pls.' Br. at 8. Accordingly, the first factor weighs against compelling the
deposition and trial testimony of the Non-Retained Experts.
The second factor weighs in favor of compelling the Non-Retained Experts'
testimony. Plaintiffs seek to have the Mt. Sinai Physicians testify to opinions previously formed
during their research regarding the effects of the World Trade Center dust on recovery workers,
including the treatment of several thousands of such workers. See Pis.' Br. at 9. Similarly,
Plaintiffs seek to have Dr. Friedman testify to his previously formed conclusions "regarding the
pulmonary injuries, treatment, disability, and causation" for approximately a thousand 9111
workers he evaluated, including Plaintiffs Ropel and Socha. Id. at 4. Plaintiffs are not asking
the Non-Retained Experts to form new opinions but, rather, to relate their previously formed, and
in many cases published, opinions regarding causation.
The third and fourth factors weigh against compelling the testimony of the NonRetained Experts. First, Plaintiffs have retained experts in epidemiology and occupational
medicine who will testify that the World Trade Center dust was both capable of causing
Plaintiffs' various respiratory disorders (i.e., general causation) and that the World Trade Center
dust did cause Plaintiffs' disorders (i.e., specific causation). For example, Dr. Tee Guidotti will
testify on Plaintiffs' behalf that he evaluated numerous 9111 workers as part of a Washington
D.C.-based program for screening and treating patients exposed to the World Trade Center dust.
See Deel. Richard Leff Supp. Defs.' Supplemental Submission, Exh. A at 30: 16-33: 18. Dr.
Guidotti' s testimony will encompass opinions on both general and specific causation-the very
opinions Plaintiffs seek to elicit from the Non-Retained Experts. Second, it is not in dispute that
the methodologies employed by the Mt. Sinai WTC Health Program, and conclusions reached,
have been widely available in numerous publications. Indeed, retained experts for both Plaintiffs
and Defendants intend to rely on such publications. For these reasons, Plaintiffs have failed to
show that the testimony of the Non-Retained Experts, beyond that appropriately given by a
treating physician, is unique or that comparable expert witnesses are unwilling to testify.
Turning to the fifth factor, there is no doubt that requiring the Non-Retained
Experts to testify and produce documentation imposes a burden on Mt. Sinai and the NonRetained Experts. The Non-Retained Experts will be taken away from their primary treatment
and research responsibilities for a substantial period of time. Significant time will be required to
prepare for depositions and trial. Such preparation may entail the review of studies and data of
which they may have only limited familiarity. In addition, testimony by the Non-Retained
Experts on behalf of the Plaintiffs will compromise Mt. Sinai's and Dr. Friedman's desired
neutrality in the 9/11 litigation. It is equally undesirable that the Non-Retained Experts be
appointed by the Court because the jury will likely afford the Non-Retained Experts undue
deference to the detriment of the parties' retained experts.
Four of the five Kaufman factors weigh against compelling the testimony of the
Non-Retained Experts. For this reason, I hold that plaintiffs have failed to demonstrate a
"substantial need" for the Non-Retained Experts' testimony that "cannot be otherwise
without undue hardship," Fed. R. Civ. P. 45(d)(3)(C), and I deny their motion.
However, it is undisputed that the scope and detail of the research conducted by
the Mt. Sinai WTC Health Program is unparalleled. This litigation can only benefit from a full
record and the inclusion of the relevant data underlying the research conducted by the Mt. Sinai
WTC Health Program is appropriate. Accordingly, Mt. Sinai is ordered to produce all Mt. Sinai
WTC Health Program data pursuant to the protocol established in In re World Trade Center
Disaster Site Litigation, 21-mc-100, accounting for the redaction of personal identifying
information and other sensitive patient material.
For the foregoing reasons, Plaintiffs' motion is DENIED. The Clerk shall mark
the following motions as terminated: Doc. No. 5549 in 21 MC 102, Doc. No. 294 in 09 Civ. 680,
Doc. No. 349 in 06 Civ. 5285, Doc. No. 392 in 06 Civ. 1521, Doc. No. 280 in 07 Civ. 11291,
Doc. No. 358 in 06 Civ. 1520.
New York, New York
January 15, 201f
ALVIN K. HELLERSTEIN
United States District Judge
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