Kaplan v. New York State Department of Labor et al

Filing 94

MEMO ENDORSEMENT on 93 terminating 92 Letter Motion to Compel; terminating 92 Letter Motion for Local Rule 37.2 Conference. ENDORSEMENT: The Court is in receipt of Defendants' letter regarding the identification ofmental health practiti oners (Dkt. #92), and Plaintiff's response (Dkt. #93).The Court accepts, on the record before it, that Plaintiff did not hide thefact that he received mental health treatment from healthcare professionalsother than the two for whom HIPAA-complia nt authorizations were disclosed inMarch 2020, and that the issue was instead one of Plaintiff's inability torecall the names of these professionals. (See Dkt. #93 at 1 ("As wasconveyed to counsel on numerous occasions - both during Plainti ff'sdeposition and in later communications - Plaintiff is unable to recall frommemory the names of two (2) psychiatrists with whom he claims to have soughttreatment for a finite time after his termination.")). Plaintiff has, as ofyesterday, provided the name of one of these psychiatrists and the relevantpaperwork to enable Defendant to obtain the records. The Court will extenddiscovery until June 1, 2020, for the sole and limited purpose of permittingDefendant to serve the release and obtain those records.The Court rejects, out of hand, Plaintiff's counsel's assertion that "therewas no delay in exchanging this information with Defendant." (Dkt. #93 at2). There was absolutely a delay, and Plaintiff's only r efuge is in anargument that the delay was justified because of his deficiencies inrecollection. The Court reminds Plaintiff that he brought this case, andthat he is responsible for substantiating his claims of injury. The Courtexpects no further surp rises from Plaintiff in this regard.Finally, the Court notes that Defendant's concern of prejudice may beoverstated. As a matter of practice, the Court does not permit counsel tosuggest a specific figure for non-economic damages to the jury, and so the$10 million figure remains with the Court and the parties. See generallyConsorti v. Armstrong World Indus., 72 F.3d 1003, 1016 (2d Cir. 1995) ("Suchsuggestions anchor the juror's expectations of a fair award at a place setby counsel, rather than by the evidence."), vacated on other grounds, 518U.S. 1031 (1996). (Signed by Judge Katherine Polk Failla on 4/8/2020) (rro)

Counseling and Advising Clients Exclusively on Laws of the Workplace

Zabell & Collotta, P.C.
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Bohemia, New York 11716
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Fax. [phone]
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Saul D. Zabell
Email: [e-mail]

April 8, 2020

VIA ELECTRONIC MAIL: [e-mail] &
VIA ELECTRONIC CASE FILING
The Honorable Katherine Polk Failla
United States District Judge
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 11722
Re:

MEMO ENDORSED

Kaplan v. NYS Dep’t. of Labor
Case No.: 18-CV-3629 (KPF)

Your Honor:
This firm is counsel to Plaintiff in the above-referenced matter. We
respectfully submit the foregoing opposition to Defendant’s pending application
[ECF Doc. No. 92], seeking the preclusion of evidence related to Plaintiff’s mental
health records or, in the alternative, to compel production of all mental health
records from March 1, 2015 to the present. Defendant’s application should be
denied. Plaintiff has already provided HIPAA-compliant authorizations to all
healthcare providers whom he is able to identify and no information has been
withheld.
On March 22, 2020, Plaintiff produced two (2) HIPPA-compliant
authorizations for healthcare providers referenced during his deposition. As was
conveyed to counsel on numerous occasions – both during Plaintiff’s deposition
and in later communications – Plaintiff is unable to recall from memory the names
of two (2) psychiatrists with whom he claims to have sought treatment for a finite
time after his termination. To overcome the obstacles posed by memory, Plaintiff
has attempted to ascertain the names of these individuals through insurance
records.

April 8, 2020
Page 2 of 2
On April 7, 2020, Plaintiff recalled the name of one (1) psychiatrist with
whom he sought treatment and is in his insurer’s network. As with the prior
HIPAA authorizations, there was no delay in exchanging this information with
Defendant, and counsel has already been provided with the necessary paperwork
to retrieve records. The name of the second psychiatrist remains unknown. This
individual is outside of his insurer’s network and does not appear on related
documentation. It is unlikely that an Order directing Plaintiff to produce this
name will affect his ability to do the same.
Plaintiff has complied with his discovery obligations to the extent he is able.
Put differently, Plaintiff has in no measure failed to disclose evidence. No
information is or has been withheld from Defendant. Counsel has been kept
apprised of Plaintiff’s efforts since the initial requests were made. Plaintiff has
provided three (3) HIPAA-compliant authorizations to Defendant which relate to
medical and psychiatric issues, two (2) of which predate the pending application.
Defendant is in no manner prejudiced under these circumstances. Indeed,
Defendant devoted substantial time to questioning Plaintiff about his claimed
damages during deposition. These facts obviate a finding of prejudice, let alone
any true justification for evidence preclusion.
Accordingly, we respectfully request Defendant’s application be denied in
its entirety. Plaintiff has identified the medical care providers which he is able to
identify and provided Defendant with HIPPA-compliant authorizations for the
same. Nothing is withheld. In no meaningful sense can Defendant claim prejudice.
Respectfully submitted,
ZABELL & COLLOTTA, P.C.

Saul D. Zabell
cc:

Client
All Counsel of Record (via Electronic Case Filing)

The Court is in receipt of Defendants' letter regarding the identification of
mental health practitioners (Dkt. #92), and Plaintiff's response (Dkt. #93).
The Court accepts, on the record before it, that Plaintiff did not hide the
fact that he received mental health treatment from healthcare professionals
other than the two for whom HIPAA-compliant authorizations were disclosed in
March 2020, and that the issue was instead one of Plaintiff’s inability to
recall the names of these professionals. (See Dkt. #93 at 1 (“As was
conveyed to counsel on numerous occasions — both during Plaintiff’s
deposition and in later communications — Plaintiff is unable to recall from
memory the names of two (2) psychiatrists with whom he claims to have sought
treatment for a finite time after his termination.”)). Plaintiff has, as of
yesterday, provided the name of one of these psychiatrists and the relevant
paperwork to enable Defendant to obtain the records. The Court will extend
discovery until June 1, 2020, for the sole and limited purpose of permitting
Defendant to serve the release and obtain those records.
The Court rejects, out of hand, Plaintiff’s counsel’s assertion that “there
was no delay in exchanging this information with Defendant.” (Dkt. #93 at
2). There was absolutely a delay, and Plaintiff’s only refuge is in an
argument that the delay was justified because of his deficiencies in
recollection. The Court reminds Plaintiff that he brought this case, and
that he is responsible for substantiating his claims of injury. The Court
expects no further surprises from Plaintiff in this regard.
Finally, the Court notes that Defendant’s concern of prejudice may be
overstated. As a matter of practice, the Court does not permit counsel to
suggest a specific figure for non-economic damages to the jury, and so the
$10 million figure remains with the Court and the parties. See generally
Consorti v. Armstrong World Indus., 72 F.3d 1003, 1016 (2d Cir. 1995) (“Such
suggestions anchor the juror’s expectations of a fair award at a place set
by counsel, rather than by the evidence.”), vacated on other grounds, 518
U.S. 1031 (1996).
Dated:

April 8, 2020
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE