Knight et al v. New York State Department of Corrections et al

Filing 205

MEMO ENDORSEMENT on re: 203 Reply to Response to Motion, filed by Shannon Dickinson, Hugh Knight, Wayne Stewart. ENDORSEMENT : Application to all the limited discovery discussed herein is granted. Plaintiffs' counsel has been diligent and strategic in discovery thus far and Defendants will not be unduly prejudiced from the application. Plaintiff is given 30 days to complete this discovery. So Ordered. (Signed by Judge Kenneth M. Karas on 4/27/21) (yv)

case 7:18-cv-07172-KMK Document 203 Filed 04/26/21 Page 1 of 3

- MEMO ENDORSED
LAW OFFICE OF AMY JANE AGNEW, P.C.

Honorable Kenneth M. Karas
United States Courthouse
300 Quarropas Street
White Plains, NY 10601-4150
April 26, 2021

VIAECF
Re:

Knight, et al. v. Lee, et al, 18-cv-7172
Reply - Motion to Reopen for Limited Purpose

Dear Judge Karas:
Plaintiffs write in reply to their motion to re-open discovery for very limited purpose. (Dkt.
No. 198-199.) Defendants have opposed the motion arguing that Plaintiffs have not been diligent
in pursuit of their case. (Dkt. No. 201.) In support, Defendants' counsel offers the Court Plaintiffs'
initial Rule 26 disclosures, as well as the fact that Plaintiffs' counsel chose to not bother several
witnesses with depositions who will ultimately have to appear for trial. Defendants have offered
no case law in support of the proposition that a voluminous initial disclosure for an intended class
action case or strategic decisions about deposition testimony mandate a finding oflack of diligence
by a court.
Defendants mislead the Court by suggesting Plaintiffs' initial disclosures were a
"haphazard and indiscriminate collection of names intended to bury the providers who actually
treated Plaintiffs." (Dkt. No. 201 at 2.) That is utter nonsense. This case was filed as a class action,
intended to cover patients over all DOCCS ' facilities. This office was working with an initial list
of 23 putative class members for whom we already had medical records. Mr. Amer is well aware
that the intention was to cover class action witnesses. When he suggested that Plaintiff's counsel
was trying to hide the ball, I immediately explained that it was tendered for class purposes, but
that I would highlight and bold all witnesses who might be relevant to the named Plaintiffs.
(Exhibits 1 and 2.) Mr. Amer thanked me for my effort and added, "We will reassess where things
stand based on what happens with class certification." (Exhibit 1.) When Plaintiffs determined
not to pursue this case as a class action, we removed all witnesses not directly implicated in the
named Plaintiffs' claims. Our initial disclosures were a result of extreme diligence, not a lack of
diligence.
Defendants also suggest that we displayed a lack of diligence in failing to depose Nurses
Childress and Scofield after subpoenaing them -- suggesting they could have supplied us with the
names of the dozens of nurses who treated Plaintiffs. (Dkt. No. 201 at 2-3.) Mr. Amer
overestimates the desire of a current DOCCS employee to freely offer information to opposing
counsel in a deposition. We have learned that the only medical personnel who will be forthcoming
are former employees or those very close to retirement. As in all industries, people are afraid of

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case 7:18-cv-07172-KMK Document 203 Filed 04/26/21 Page 2 of 3

losing their jobs. (Exhibit 3 (Deposition excerpt of Dr. John Bendheim ("Well, I've seen the
officers beat up inmates. I've seen them smash a guy ' s face into the comer of a concrete brick
wall because he punched an officer, and I didn't do anything about it because I knew they were
probably going to slash my tires or I was going to get fired so I kept my mouth shut.").) Our office
is mindful of this sad reality and tries to act accordingly. We also learned from another witness
already disclosed the sum of the nurses ' intended testimony. There was no reason to depose them
and run up costs.

Mr. Amer also suggests we should have asked questions of Nurse Greener at her April 7,
2021 deposition. Had Mr. Amer attended the deposition (or read the documents) he might have
noted that Nurse Greener worked a very short stint at Shawangunk (a few months in 2019) before
transferring to NYS Office of Mental Health. In fact, she got to know Plaintiff Hugh Knight by
treating him at Sullivan Correctional Facility and started treating Plaintiff Wayne Stewart at
Downstate Correctional Facility. Mr. Amer' s argument also belies rationale. Had Nurse Greener
divulged the names of Vacca and Lazier on April 7, 2021 , Plaintiffs still would have missed the
March 26, 2021 paper deadline and this application would still, no doubt, be necessary. In fact,
Plaintiffs served Nurse Greener in late February, but Defendants were only able to schedule a
deposition in early April - after the paper discovery deadline. (Exhibit 4.)
Plaintiffs have hired two experts, taken several strategic depositions and, unfortunately,
had to recall Defendant Lee after procuring a very expensive translator to start the deposition over.
Plaintiffs are entitled to make strategic decisions about their case without having those decisions
recast as a lack of diligence. Plaintiffs have produced thousands of pages of medical records to
establish that Plaintiffs were never asked to reuse catheters other than in the custody of DOCCS
and we have diligently created work product timelines of thousands of pages of medical records
to put the events and medical diagnoses in context. (Exhibit 5.) We are confident our efforts will
redound to our benefit at trial. We have also produced the medical records of other patients of Dr.
Lee and established that they were treated the exact same way - with no individualized assessments
of need and utter disregard for their requests for more catheters.
We subpoenaed and chose not to depose Doctors White, Howe, Stellato and Chang-Kit
because we were able to speak with them all and are confident of the contents of their testimony.
Defendants ' counsel bas their contact information and can do the same. There is no reason to
bother a bunch of very busy doctors with two appearances - especially when summary judgment
is highly unlikely. These are strategic decisions, not ones that exhibit a lack of diligence.
As to Mr. Amer' s concern that Plaintiffs request will open the floodgates to more paper
discovery, that is not a concern. We have learned that the CO who worked in the infirmary has
passed away. While we may locate another former nurse, we will commit to requesting no
additional paper discovery from Defendants. The nurses have indicated that the universe of
documents regarding catheter ordering and supplying is now know to us.
Defendants' counsel further suggests that Nurses Vacca and Lazier might not provide
authorizations for their personnel files . (Dkt. No. 201 at 3.) Mr. Amer is well aware this office

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case 7:18-cv-07172-KMK Document 203 Filed 04/26/21 Page 3 of 3

represents Nurses Vacca and Lazier for purposes of their depositions. (Exhibit 6.) If Mr. Amer
needs releases, we will get them to him promptly. Why Defendants would need to "redact" the
nurses' own identifying information from their personnel files is unknown to us; Plaintiffs' counsel
may not produce the personal information of present or former DOCCS' employees to incarcerated
plaintiffs, nor would we do so. Both nurses have been advised that the files (including the writeups for not following Dr. Lee's orders and the letter challenging his choice to make patients re-use
catheters) would be open for public consumption.
It is also worth noting that that the entire personnel files do have probative value. Not only
will they establish the fitness, professionalism and exceptional evaluations of both nurses over
their tenures with DOCCS, but the records will clearly show the history of their training and
commitment to their patients. The "write ups" were for deviating from Dr. Lee's orders when the
best interests of patients demanded it. The notion that Defendants should the personnel files for
impeachment purposes, but the witnesses cannot have access for themselves smacks of rough
justice.

In sum, denials based on lack of diligence are generally for egregious lapses in seeking
modification of the discovery schedule. Forte v. City of New York, 16-cv-560, 2021 U.S. Dist.
LEXIS 43836, *9 (March 8, 2021)(denying request because Defendants "opted to scout for and
retain an expert witness to produce a report without Plaintiffs knowledge, and only ask for license
to do so after the fact"); Saray Dokum Ve Madeni Aksam Sanayi Turizm A.S. V MTS Logistics,
Inc., 335 F.R.D. 50, 52 (S.D.N.Y 2020)(denying motion to reopen to depose witness as plaintiff
did not act diligently to schedule it): Fetisov v. Ay Builders, Inc., 10-cv-3683, 2011 U.S. Dist.
LEXIS 136020, *5 (E.D.N.Y. Nov. 28, 201 l)(denying addition of new witness because
Defendants would be prejudiced if the Court permitted plaintiffs to conduct the deposition of a
party long known to them but whose role as a potential witness was withheld). Plaintiffs have not
committed such a lapse. Plaintiffs very promptly let Defendants know the identity of the witnesses,
very promptly alerted them to potential related discovery and willingly agreed to schedule
depositions to smite any potential prejudice to Defendants. 1 Defendants do not even provide
authority for extending the timeline for depositions of newly identified witnesses, while denying
paper discovery related to the very same depositions.
Plaintiffs respectfully request that the Court allow the very limited discovery related to the
depositions of Nurses Vacca and Lazier and allow Defendants to take those depositions after the
deadline set by the Court. All other deadlines should not be affected.
Application to all the limited discovery discussed herein is granted. Plaintiffs' counsel has

Very truly yours,
been diligent and strategic in discovery thus far and Defendants will not be unduly
prejudiced from t a plication~PI given 30 days to complete this discovery.
intiff is
Isl Amy Jane Agnew
Amy Jane Agnew, Esq. So Ordered.
4---'=-i;~
4/27/21
1

Any suggestion that Plaintiffs' counsel is being difficult about scheduling is woefully unfair. I
happen to have a very busy few weeks due to a trial in New Jersey state court and some other
depositions (hence, the after 5pm submission). Plaintiffs have never been anything but gracious
in scheduling. We are all very busy and do our best.
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