Schoolcraft v. The City Of New York et al

Filing 448

FILING ERROR - DEFICIENT DOCKET ENTRY - MEMORANDUM OF LAW in Opposition re: 440 LETTER MOTION for Conference addressed to Judge Robert W. Sweet from Nathaniel B. Smith dated June 2, 2015. . Document filed by Jamaica Hospital Medical Center. (Radomisli, Gregory) Modified on 7/7/2015 (db).

GJR/DA
82-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
■X

ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005 (RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.’s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are presently
unknown) (collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their
Official Capacity (the name John Doe being fictitious, as the
true names are presently unknown).
Defendants.
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MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFF’S MOTION FOR RECONSIDERATION
Of Counsel:

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Gregory J. Radomisli (GJR- 2670)

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PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted on behalf of defendant
JAMAICA HOSPITAL MEDICAL CENTER (“JHMC”) in opposition to plaintiffs motion
for reconsideration regarding this Court’s decision to preclude Dr. Daniel Halpren-Ruder
from testifying at trial.
Plaintiffs counsel advances a single argument: That this Court misapprehended the
underlying basis for Dr. Halpren-Ruder’s opinion regarding the JHMC staffs alleged failm-e
to conduct a toxicology screen and that, as a result, this Court erroneously precluded Dr.
Halpren-Ruder from testifying at trial (Plaintiffs letter motion, p. 3). Significantly, plaintiffs
counsel does not object to this Court’s decision to preclude Dr. Halpren-Ruder from testifying
about any other issues—he is solely seeking reconsideration to allow Dr. Halpren-Ruder to
testify that the failure to conduct a toxicology screen was a departure from accepted standards
of care. For the reasons discussed below, plaintiffs motion should be denied.
POINT I
PLAINTIFF DOES NOT ESTABLISH GROUNDS FOR RECONSIDERATION
As this Court recently held in Ferring B.V. v. Allergan, Inc., 2013 U.S.Dist. LEXIS
111374 (S.D.N.Y. Aug. 5, 2013), the standards governing motions under Local Rule 6.3
along with Fed. R. Civ. P. 59 are the same, and a court may grant reconsideration where the
party moving for reconsideration demonstrates an "intervening change in controlling law, the
availability of new evidence, or the need to coiTect a clear error or prevent manifest injustice.
Henderson v. Metro. Bank & Trust Co., 502 F. Supp. 2d 372, 375-76 (S.D.N.Y. 2007)
(quotation marks and citations omitted); Parrish v. Sollecito, 253 F. Supp. 2d 713, 715
(S.D.N.Y. 2003) ("Reconsideration may be granted to coiTect clear error, prevent manifest
injustice or review the court's decision in light of the availability of new evidence.") {citing

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Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
As this Court recently confirmed, reconsideration of a court's prior order under Local
Rule 6.3 or Rule 59 "is an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources." Sikhs for Justice v. Nath, 893 F.
Supp.2d 598, 605 (S.D.N.Y. 2012) (citations omitted). Accordingly, the standard of review
applicable to such a motion is "strict." Shrader v. CSXTransp., Inc., 70 F.3d 255, 257 (2d Cir.
1995).
The burden is on the movant to demonstrate that the Court overlooked controlling
decisions or material facts that were before it on the original motion, and that might
lU

materially have influenced its earlier decision.’" Anglo Am. Ins. Group v. CalFed, Inc., 940

F. Supp. 554, 557 (S.D.N.Y. 1996) (quoting Morser v. AT&T Information Sys., 715 F. Supp.
516, 517 (S.D.N.Y. 1989)). "[MJatters, in other words, that might reasonably be expected to
alter the conclusion reached by the court." Sikhs for Justice, 893 F. Supp. 2d at 605 (citing
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Plaintiffs counsel has not made any effort to demonstrate that the Court needs to
'correct a clear error” or “prevent manifest injustice.

See Henderson, supra. Nor has

plaintiff made any effort to demonstrate that if the Court had considered the information
plaintiff is now presenting, the information would “materially have influenced its earlier
decision'" See Anglo Am. Ins. Group v. CalFed, Inc., supra, or would have altered “the
conclusion reached by the court.” Sikhs for Justice, supra. Indeed, as discussed below, even
if this Court determines that Dr. Halpren-Ruder’s opinion was based on something other than
the New Jersey guidelines. Dr. Halpren-Ruder’s testimony regarding the toxicology screening
would still be inadmissible at trial because Dr. Halpren-Ruder admitted at his deposition that

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the alleged failure to perform a toxicology screen did not cause any harm to the plaintiff
Accordingly, this Court should deny plaintiffs motion for reconsideration.

POINT II
DR. HALPREN-RUDER ADMITTED THAT THERE WAS NO
PROXIMATE CAUSE ATTRIBUTABLE TO THE ALLEGED
FAILURE TO CONDUCT A TOXICOLOGY SCREEN, AND THAT
THE PLAINTIFF DID NOT INCUR ANY INJURIES AS A RESULT
To maintain an action for medical malpractice under New York law, a plaintiff must
prove that the defendant breached the standard of care, and that the breach proximately
caused the plaintiffs injuries. See Berk v. St. Vincent’s Hospital and Medical Center, 380
F.Supp.2d 334 (S.D.N.Y. 2005); DeCesare v. Kaminski, 29 AD3d 379, 815 NYS2d 60 (1st
Dept. 2006); Perrone v. Grover, 212 AD2d 312, 707 NYS2d 196 (2d Dept. 2000). In the
absence of proof of such breach, or that such breach proximately caused the plaintiffs
injuries, a medical malpractice action must be dismissed as a matter of law.
Although Dr. Halpren-Ruder criticized the failure of the JHMC staff to perform a
toxicology screen, he admitted at his deposition that that alleged failure did not cause any
harm to the plaintiff:
Q:
A:

And a toxicology screen would be used to weed out illicit drugs?
Or routine drugs that are in fact used under a principle.

Q:
A:

Now, if he had some kind of substance in his body, would that not have
manifested itself later on?
In very deleterious ways. For instance, he may have withdrawn on the
psychiatric unit, a unit which is not designed to deal with withdrawal
symptoms.

Q:

Did you see any indication that he suffered any withdrawal symptoms
while he was on the psych ED?

Mr. Smith: Objection to form.

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A:

Well, as you have done in the past, you’ve given me hypotheticals and I
would give you the hypothetical that there was a great—^there was
significant chance that that might have occurred.

Q:
A:

But it didn’t, did it. Doctor?
But it did not.

Q:

OK. In fact, the absence of doing a toxicology screening had no effect
in this case, correct?

Mr. Smith: Objection to form.
A:

It falls outside of the standard of care.

Q:
A:

But it didn’t cause any injury, correct?
By fortune.

Q:
A;

Am I correct?
It did not.

(Exhibit DD, p. 61-62, attached to the 12/22/14 Declaration of Gregory J. Radomisli).*
Therefore, even if the failure to perform a toxicology test could be considered a
departure from accepted standards of care. Dr. Halpren-Ruder opined that that alleged failure
did not cause injury and, consequently, his testimony is not sufficient to establish a basis for a
medical malpractice action. See Berk; DeCesare; Perrone.

Because plaintiffs expert’s

opinion on the standard of care is meaningless if the breach from that standard did not cause
injury. Dr. Halpren-Ruder’s opinion has no probative value. Accordingly, there is no reason
for this Court to reconsider its decision precluding Dr. Halpren-Ruder from testifying because
even if it determined that Dr. Halpren-Ruder’s opinion regarding the alleged failure to
perform a toxicology screen had a proper foundation. Dr. Halpren-Ruder admitted that the
alleged departure did not cause any injury and, accordingly, he should be precluded from

All references to Exhibits refer to the 12/22/14 Declaration of Gregory J. Radomisli

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testifying, as this Court had initially ruled?

POINT III
DR. HALPREN-RUDER’S OPINION LACKS THE APPROPRIATE FOUNDATION
With respect to his opinion in his report that the “usual and customary evaluations'
did not occur in the Jamaica Hospital Medical Center Emergency Department, Dr. HalprenRuder cited a Consensus Statement on Medical Clearance Protocols for Acute Psychiatric
Patients Referred for Inpatient Admissions (Exhibit CC). He specifically testified that he
cited those Protocols to support the opinion in his report that the personnel in the emergency
room in this case fell short (Exhibit DD, p. 49). Significantly, he admitted that he did not
review anything regarding the standard of care that pertained to the running of emergency
departments in effect in 2009 (Exhibit DD, pp. 132-133).
In classic fashion, while plaintiffs counsel argues in his letter-motion that Dr.
Halpren-Ruder based his opinion on his experience as a Board Certified emergency room
doctor, he has not presented any evidence that Dr. Halpren-Ruder relied upon anything other
than the New Jersey Guidelines. Indeed, in his report, Dr. Halpren-Ruder never states
that his opinion is based upon his experienee as an emergency room physician. Instead,
when opining about “what medical evaluations should be accomplished in the ED so as to be
certain that a psychiatric condition is clearly differentiated from a medical condition,” he only

^ It should be noted that in the Memorandum of Law submitted in support of defendants’ summary
judgment motion, defendants specifically argued that Dr. Halpren-Ruder’s opinion regarding the
alleged failure to perform a toxicology screen was flawed because he admitted that that alleged failure
did not cause injury (p. 36). Plaintiffs counsel did not address that argument in his opposition, and
therefore plaintiffs motion for reconsideration is improper. See Schonberger v. Serchuk, 742 F.Supp.
108, 119 (S.D.N.Y. 1990) (A party seeking reconsideration may not advance new facts, issues or
arguments not previously presented to the Court); see also Polsby v. St. Martin’s Press, Inc., 2000 WL
98057, *1 (S.D.N.Y. Jan. 18, 2000).

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referred to a single piece of literature: the New Jersey Guidelines (Exhibit CC). Moreover,
Dr. Halpren-Ruder was not even working in an Emergency Room in 2009 (Exhibit DD, p.
71), and he had not worked in an Emergency Room at any time between 2006 and 2011
(Exhibit DD, pp. 71-72). Therefore, he could not have loiown what the standard of care for a
physician in an Emergency Room was in 2009 based upon his “experience.
As he has before in other submissions to this Court, plaintiffs counsel simply invents
testimony. At no point did Dr. Halpren-Ruder ever discuss “the general practice” under
which he operates as having “imiversal applications” (plaintiffs letter motion, p. 2). To the
extent that Dr. Halpren-Ruder said anything remotely similar, he was referring solely to
transporting a patient to the hospital against her will—^not the treatment of patients in an ER
(Exhibit DD, pp. 84-85). Similarly, while Dr. Halpren-Ruder was “actively practicing” in
2009, he was practicing in an urgent care center, not in an Emergency Department (Exhibit
DD, p. 71). It is respectfully requested that this Court refuse to countenance plaintiffs
counsel’s attempts at obfuscation, and deny plaintiffs motion.

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CONCLUSION
For the foregoing reasons, it is respectfully requested that this Court deny plaintiffs
motion in its entirety, together with such other and further relief as this Court deems just and
proper.
Dated: New York, New York
July 6, 2015
Respectfully submitted,
Martin Clearwater & Bell LLP

By:

f

Gregory J. Radomisli (GJR 2670)
Attorneys for Defendant
JAMAICA
HOSPITAL
MEDICAL
CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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