A Divisive Decision -- Arons v. Jutkowitz & Kish v. Graham -- Which Side Are You On?

Most of you have already trudged through the New York Court of Appeals' 32-page decision in Arons v. Jutkowitz and Kish v. Graham.  For those who didn't, the Court held that defense counsel may conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  A plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  The defense attorney need not hand over to the plaintiff's attorney notes, memoranda or recordings of the informal interview; the treating physician is not compelled to cooperate.  Judge Pigott dissented, arguing that Article 31 of the CPLR does not provide for this type of discovery and its silence on the matter indicates that the Legislature did not authorize it.

Numerous bloggers have weighed in on this case:  this post at New York Personal Injury Law Blog (with comments), this post at A Buffalo Lawyer, this post at Outside Counsel, this post at HealthBlawg, and this post at Drug and Device Law.

I'm trying to shed my "defense attorney mind-frame," but I just don't see how the absence of a provision in the CPLR reflects that such ex-parte interviews are disallowed (a la Judge Pigott's reasoning in his dissent).  Informal discovery devices exist that both parties use to gain information, most of which are not set forth in the CPLR.  What's the justification for precluding this discovery device where the plaintiff has already put his or her physical or mental condition at issue (especially where the physician can refuse to cooperate and can testify at trial about what the defense counsel asked)? 

I'd really value your opinion and encourage your comments.

Comments

[Bill Altreuter]

This decision impressed me most of all as a departure from the Court of Appeals recent literalist bent. And "informal discovery"- what the hell is that? Does it mean "investigation"? "Discovery", as I understand the term, is a defined process that contemplates participation by all parties, and includes concepts like "notice" and the right to object, or seek a protective order.

I'm beginning to think that the whole idea of discovery is in dire need of revisiting. In many ways, and for a long time, discovery has driven the litigation process, and it is now on its way to becoming a new tort. Arons amounts to saying that process and procedure aren't necessary parts of what we mean by discovery, and I find that a very damaging notion.

[David Gottlieb]

http://www.newyorkpersonalinjuryattorneyblog.com/2007/12/new-york-defendant-demands-76-private.html

Do you think this is an anomaly or will it become standard goings.

[Matt]

Bill: You correctly point out a misnomer. Perhaps "informal discovery" is the incorrect term -- i.e., discovery is a process that New York sets forth with laws and rules. However, you have to concede that plaintiffs' and defense attorneys both investigate the facts through processes not dictated by the CPLR.

As to Dave's question, I don't it is an anomaly.