Archives – October, 2017

Motion to Quash ‘Paranoia’-Driven Subpoena Filed by Expert Witness in Spinrilla Case

Originally published in the New Daily Report, an ALM Media publication, on September 28, 2017.

By: Colby Hamilton

A subpoena being driven by attorney “paranoia” in a Georgia-based copyright violations case should be quashed, according to a motion filed in the U.S. District Court for the Southern District of New York on Wednesday.

William Rosenblatt, an expert witness in digital music cases, is trying to keep a one-time potential client from deposing him in Manhattan, over what he alleges is “the very epitome of litigation paranoia.”

Rosenblatt, represented by New Jersey-based Tenaglia & Hunt name attorney James Hunt Jr., says he was approached by Georgia-based private attorney David Lilenfeld as a potential expert witness in an ongoing copyright violations case, Atlantic Recording v. Spinrilla, 17-cv-00431, in the U.S. District Court for the Northern District of Georgia.

Lilenfeld’s clients operate a music website, Spinrilla.com, which has been sued by four record companies, including Sony and Warner Bros., over copyright violations. The companies allege that the defendant, Spinrilla owner Jeffery Copeland, knowingly allowed users to upload music copyrighted by the defendants that were then downloaded for free.

 According to the motion filed in Manhattan federal court, Lilenfeld approached Rosenblatt in late August as a potential expert witness on behalf of the defendants. After initially expressing interest, Rosenblatt says that two matters that he’d already been engaged on, but which were unrelated to Lilenfeld’s litigation, arose shortly after their initial conversation. Given the new time constraints, Rosenblatt said he told Lilenfeld he wouldn’t be available, but went so far “as a courtesy to Lilenfeld” to make recommendations for other potential experts, according to the motion.

That’s when things took a turn, according to Rosenblatt. Allegedly believing Rosenblatt had been contacted and coerced by plaintiffs in the Georgia case—and refusing to believe Rosenblatt’s repeated denials to the contrary—Lilenfeld subpoenaed Rosenblatt for a deposition on Sept. 8 in New York City.

According to the motion, the subpoena demands copies of telephone records, emails and text messages over an eight-day period in August. Rosenblatt claims to have offered an affidavit that he wasn’t contacted by anyone, including the plaintiffs in the Georgia case, but was rebuffed by Lilenfeld. Through counsel, Rosenblatt says he then offered to provide the information under a series of conditions, including a promise that Lilenfeld would not contact any of the phone numbers, and that Lilenfeld never contact Rosenblatt again. Lilenfeld allegedly refused that offer as well.

Lilenfeld could not be reached for comment.

“Indeed, Lilenfeld’s invasion of Rosenblatt’s privacy knows no bounds,” the motion states.

Lilenfeld’s actions are an abuse of subpoena power, seeking irrelevant information that is private and confidential—including communications between Rosenblatt and third-party clients—while subjecting a nonparty in the original litigation to an undue burden, according to Rosenblatt.

Additionally, Rosenblatt asked the court for sanctions under Rule 45(d) for “this bizarre attempt to subpoena a person they sought to hire as an expert witness.”

“The subpoena served by defendants on non-party Rosenblatt is nothing more then a fishing expedition on an innocent non-party that has absolutely nothing to do with the underlying action and appears to have been pursued in bad faith,” Rosenblatt stated in the motion.

Rosenblatt’s counsel Hunt could not be reached for comment.

Leave a Comment October 23, 2017

Court Reinstates Med Mal Case Over Catheterization Gone Awry

Originally published in the New York Law Journal, an ALM Media publication, on October 10, 2017.

By: Jason Grant

An expert witness and a fellow physician raised triable issues of fact regarding whether a gastroenterologist departed from the standard of care when he catheterized a patient with an inflamed bile duct, a state appeals court ruled Tuesday.

An Appellate Division, First Department, panel found that despite Dr. Louis May providing experts who said that the plaintiff’s bile duct perforation occurred before his actions, triable issues of fact were raised “as to whether Dr. May caused the … perforation when he conducted the ERCP [endoscopic retrograde cholangiopancreatography] or exacerbated decedent’s injuries by advancing the catheter and performing excessive manipulation.”

The panel’s unanimous opinion reversed Bronx Supreme Court Justice Douglas McKeon’s 2015 decision granting summary judgment to May. The medical malpractice suit was lodged in 2003 by multiple plaintiffs, including Jean Philippe Cadichon, the patient, who was unnamed and later died. Cadichon suffered a perforation of the hepatic and/or common bile duct and, eventually, developed acute renal insufficiency and liver failure, the panel said.

The summary judgment question—and, in turn, the divergence between experts and two doctors who treated the patient at Good Samaritan Hospital—focused largely on evidence of who and what caused the perforation.

In 2002, Dr. Thomas Facelle removed the Cadichon’s gallbladder. She later returned to the hospital with pain and, after bile duct scans, May performed an ERCP to take X-rays of the area through an endoscope and possibly repair a duct leak, according to the decision.

The plaintiffs alleged both procedures were performed negligently.

In testimony, the two physicians diverged on who perforated the duct, wrote Justices Rosalyn Richter, Judith Gische, Barbara Kapnick, Marcy Kahn and Cynthia Kern in Cadichon v. Facelle, 16878/03. Facelle’s records indicated May advised him that a catheter he inserted perforated the duct and entered the abdominal cavity. May said he only advised Facelle of leakage from an existing perforation.

The panel wrote that “as an initial matter, Dr. May established his prima facie right to summary judgment” based on “his deposition testimony, decedent’s medical records and the affirmations of two experts who opined that there is no evidence of any departure from the standard of care.”

But the panel went on to find that, “plaintiff and Dr. Facelle raised triable issues of fact as to whether Dr. May caused the bile duct perforation.”

“Plaintiff’s expert opines that Dr. May departed from the accepted standard of care when he advanced the catheter knowing the decedent was at high risk for duct injury due to her post-surgical inflammation, and record evidence demonstrates that her bile duct was not healthy,” the panel wrote, adding that “Dr. Facelle testified that he was summoned to the ERCP procedure by Dr. May because it was Dr. May who perforated the bile duct.”

Brian Isaac of Pollack, Pollack, Isaac & DeCicco represented Cadichon in the appeal. Paul Weitz, of Paul Weitz & Associates, the attorney of record for the Cadichon family, said in an email, “The Cadichon family is extremely gratified by the court’s decision and they look forward to their day in court.” Neither Melinda Kollross, a shareholder at Clausen Miller who represented May, nor Barbara Goldberg, a partner at Martin Clearwater & Bell, Facelle’s lawyer, could be reached.

Leave a Comment October 23, 2017


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