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FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020
STATE OF NEW YORK
SUPREME COURT : NIAGARA COUNTY
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife,
Fitzgerald Affidavit in
Plaintiffs. Support of Plaintiffs'
Motion to Compel
v.
BUFFALO SPINE SURGERY, PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH B. CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D., Index No.E159518/2016
EASTERN NIAGARA HOSPITAL, INC.,
RORERT E. LUTNICK, M.D., and
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDICINE ASSOCIATES, P.C.,
Defendants.
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
CITY OF NEW YORK )
Brian P. Fitzgerald, Esq., being duly sworn, deposes and says:
1. I am an attorney at law duly licensed to practice law in the State ofNew
York and a member of the law firm of Fitzgerald & Roller, P.C., attorneys for the
plaintiffs, Thomas and Cheryl Kausner. J make this Affidavit in support of plaintiffs'
Motion to Compel which seeks the following Orders:
1. An Order compelling defendant Eastern Niagara Hospital
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to produce Hany Fattouch, M.D. within 30 days for the
completion of his deposition which was unilaterally
terminated by Joseph McCarthy, Esq., attorney for defendant
Eastern Niagara, without cause, on September 24, 2019;
2. An Order compelling the defendants Buffalo Spine
Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean,
RPA-C, to produce Dr. Cappuccino's flight records within 10
days for his air flight of on or about September 1-4, 2015 to
and from Detroit, Michigan where he attended, as a Buffalo
Bills' team doctor, the Buffalo Bills' preseason games with
the Detroit Lions;
3. An Order compelling defendants Buffalo Spine Surgery,
PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to
produce phone records for phone calls made to, from and
among Andrew Cappuccino, M.D., Eric Dean, RPA-C, and
Eastern Niagara Hospital, Cheryl Kausner and Elad T,evy,
M.D. those phone numbers being as follows: Dr. Cappuccino
phone numbers: office -438-2973, home -438-3821, and
cell -- 812-6145; Dean's phone number: cell -984-5388;
Eastern Niagara's phone numbers: main line- 514-5700 and
ICU -514-1118; Cheryl Kausner's cell phone- 307-7783;
and Elad Levy, M.D.'s office phone -218-1000, cell phone -
4 79-6634; for the time period of September 1, 2015 to
September 16, 2015;
4. An Order compelling defendant Eastern Niagara Hospital
to produce the circulating nurse for the September 1, 2015
Kausner surgery hy the name of Christine Delgado and scrub
nurse for said surgery by the name of Suzanne Kessinger
within 30 days; and
5. An Order compelling defendant Eric Dean, RPA-C to
return to complete his deposition within 30 days on the
grounds that his previous deposition testimony was
unilaterally terminated by his attorney without cause.
2. This case arises out of surgery performed by the defendant Andrew
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Cappuccino, M.D. (hereinafter Cappuccino), assisted by his physician assistant defendant
Eric Dean, RPA-C (hereinafter Dean), at Eastern Niagara Hospital on September 1, 2015 .
The surgery was an anterior cervical discectomy and fusion at levels C-3 through C-7.
During that surgery, Thomas Kausner hemorrhaged. According to Cappuccino's
Operative Report, not dictated until 16 days later on September 17, 2015, and not signed
until December 2, 2015, defendant Cappuccino purportedly controlled the bleeding.
However, no repair of the bleeding site was performed, no vascular consult was obtained,
and no diagnostic films such as MRI, MRA, or CT angiogram were ordered September 1,
2015. He should have had a vascular consult and transfer to Gates Vascular Institute for
angiogram and repair of the bleeding site.
3. Despite the significant bleeding which had been encountered during
surgery, Mr. Kammer was repeatedly given Toradol (also known as Ketorolac) on
September 1, 2, and 3, 2015. Toradol is a non-steroidal anti-inflammatory drug which
can cause bleeding and should not have been given.
4. Mr. Kausner continued to deteriorate neurologically on September 2, 2015
and an Iv1Rl was ordered and done at approximately 2:27 p.m. This MRI demonstrated a
large mass compressing the spinal cord in the area of C-6 which was a neurological
emergency. By then, Mr. Kausner was demonstrating weakness in both arms and other
symptoms. An MRA (magnetic resonance angiogram) was not done until approximately
4:31 p.m. It did not rule out bleeding.
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5. Mr. Kausner continued to deteriorate neurologically on September 2, 2015.
He should have been transferred to Gates Vascular Institute for a vascular consult and
surgical intervention but was not.
6. During the night of September 2, 2015 to September 3, 2015, Mr. Kausncr
continued to further deteriorate neurologically, became stuporous, was unable to walk
(dragging his left leg), and was becoming paralyzed.
7. At approximately 10 :30 a.m. on September 3, 2015, defendant Cappuccino
decided to transfer Mr. Kausner to the Gates Vascular Institute. Defendant Cappuccino
was not at the hospital at that time and thus not there to sign the transfer order so the
transfer was further delayed until the early afternoon when another physician (Dr. Dyster)
was found to sign the transfer order. According to the testimony ofICU nurse Shelly
Jacubek, defendant Cappuccino told her that he was out of town. Cappuccino is a team
doctor for the Buffalo Bills and has admitted to attending the Buffalo Bills' preseason
game with the Detroit Lions which took place on Thursday evening, September 3, 2015.
The question is when did he fly there? September 2, 2015 or September 3, 2015? And
when did he return?
8. When Mr. Kausner was finally transferred to Gates Vascular Institute, he
was quadriplegic. He was seen by neurovascular interventionist Elad Levy, M.D. who
diagnosed a vertebral artery injury and spinal cord compression. A surgical team was
cmergently assembled to decompress the mass which was compressing Mr. Kausner's
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spinal cord. Surgeons John Pollina, M.D. and Joseph Kowalski, M.D. performed
emergency surgery at approximately 6:00 p.m. on September 3, 2015, removing all ofthe
hardware placed by defendant Cappuccino, removing Mr. Kausner's C6 vertebrae which
was fractured, removing a large hematoma which was found, and reconstructing the
fusion aspects of the surgery which defendant Cappuccino had performed.
9. The next day, September 4, 201 5, the injury to the vertebral artery (contrary
to defendant Cappuccino's Operative Report which had described the bleeding
encountered as venous) was repaired by Dr. Levy who placed two stcnts in the injured
vertebral artery.
10. After a lengthy hospitalization at Buffalo General, and a long period of
rehabilitation at ECMC, Mr. Kammer was left with loss of fine motor use of his hands
and fingers, loss of use of his right ann, was permanently disabled and unable to continue
his work and career as a pharmacist. He was just 61 years old.
11. This case was instituted by the filing of a Summons and Complaint on
September 12, 2016. The Summons and Complaint is annexed hereto as Exhibit A.
Thereafter, defendants answered and plaintiffs served Bills of Particulars, Exhibit B.
12. Thereafter, this deponent did his best to advance the case by scheduling and
conducting depositions of the defendants Cappuccino and Dean, numerous employees of
defendant Eastern Niagara, and defendants Hamath B. Clerk, M.D. and Robert E.
Lutnick, M.D. The Kausners were deposed on June 7, 8 and 9, 2017 and the depositions
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of defendants took place thereafter beginning with Cappuccino's testimony on April 19,
2018 and concluding with the deposition on September 25, 2019 of Alyssa Wendt
(fonnerly Vanthoff), an occupational therapist who saw Mr. Kausner on the morning of
September 3, 2015 who confirmed bilateral upper extremity flaccidity and significantly
decreased range of motion in all planes of movement. During this period of time, April
19, 2018 to September 25, 2019, this deponent conducted 25 days of depositions of 20
different party witnesses and non-party witnesses. This was accomplished despite the
substantial scheduling difficulties that a multiple party defendant case like this can
present with the schedules of doctor witnesses and defense counsel. The case was also
delayed by the automatic stay imposed because ofthe bankruptcy filing by defendant
Eastern Niagara on November 7, 2019 which was lifted on February 13, 2020. Of
course, since then the Covid-19 pandemic took place disrupting schedules and the
practice oflaw throughout Western New York.
13. On June 1, 2020, this Court's Confidential Law Clerk, Anthony Latona,
conducted a telephone conference on this case. Various issues were discussed including
defendant Cappuccino's production of flight records and production of the phone records
of defendants Cappuccino and Dean. Further depositions were discussed of the
circulating nurse in the first surgery of September 1, 2015, Christine Delgado, and scrub
nurse Suzanne Kessinger, as well as the potential for non-party depositions ofDrs. Levy
and Pollina. Mr. Latona scheduled this for a further conference on October 7, 2020 at
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10:30 a.m. and strongly suggested that all counsel get all further discovery completed by
that date.
ANESTHESIOLOGIST HANY FATTOUCH, M.D.
SHOULD BE COMPELLED TO RETURN FOR THE
COMPLETION OF HIS DEPOSITION WITHIN 30 DAYS
14. Hany Fattouch, M.D. is an anesthesiologist who works at defendant Eastern
Niagara. His name is referenced and appears in the Post-Anesthesia Care Unit (PACU)
records where Thomas Kausner was after the completion of his surgery on September 1,
2015. PACU nurse Barbara Cronshaw testified that she received orders from Dr.
Fattouch. During this deponent's questioning of him, he denied "being involved." A
copy of Dr. Fattouch's testimony is annexed hereto as Exhibit C. Although Mr.
McCarthy does not represent him, he voluntarily produced him for deposition. Please
note that the transcript does not reflect that Mr. McCarthy was appearing for him. As
the Court will see near the conclusion of this deponent's questioning of Dr. Fattouch, Mr.
McCarthy began to make objections, direct the witness not to answer, and then
unilaterally announced "we're done". Obviously, Mr. McCarthy was not in compliance
with the Uniform Rules for the Conduct of Depositions and blatantly violated them. He
should not have been directing this non-party witness Fattouch, M.D. not to answer and
he certainly had no right to terminate his deposition.
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CAPPUCCINO'S FLIGHT RECORDS AND PHONE RECORDS
OF DEFENDNTS CAPPUCCINO, DEAN AND EASTERN
NIAGARA SHOULD BE PRODUCED WITHIN IO DAYS
15. Plaintiff served a Fourth Notice to Produce upon Brian Weidner, Esq.,
attorney for defendants Cappuccino and Dean on April 25, 2019. (Exhibit D)
Thereafter, this deponent has made multiple and repeated attempts to get Mr. Weidner to
produce these records. The flight records arc critical as they may demonstrate exactly
where and when defendant Cappuccino was on September 2, 3 and 4, 2015. For
example) defendant Cappuccino claims to have seen Mr. Kausner in the ICU on the
morning of September 3, 2015 while making rounds but the hospital record has no note
of that purported contact and ICU nurse Shelley Jacubek has testified that when she was
in contact with defendant Cappuccino at approximately 10:00 to 10:30 a.m., he told her
that he was out of town.
16. Likewise, these phone records are certainly relevant and might reveal who
called who and when regarding Thomas Kausner's condition on the dates of September 1,
2 and 3, 2015. The phone records would be for the following telephones: Cappuccino's
phone numbers: office -438-2973, home - 438-3821, and cell- 812-6145; Dean's phone
number: cell - 984-5388; Eastern Niagara's phone numbers: main line - 514-5700 and
ICU -514-1118; Cheryl Kausner's cell phone -307-7783; and Elad Levy, M.D.'s office
phone -218-1000, cell phone - 479-6634; for the time period of September 1, 2015 to
September 16, 2015.
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17. During the June 1, 2020 conference with Mr. Latona, the issue of these
flight records and these phone records was discussed but despite this Mr. Weidner has
continued to fail to produce these records. This deponent's emails to him of July 2, 2020
and August 3, 2020 have similarly proved fruitless. These records must be produced.
DEFENDANT EASTERN NIAGARA'S CHRISTINE DELGADO
AND SUZANNE KESSINGER SHOULD BE COMPELLED
TO TESTIFY WITHIN 30 DAYS
18. Christine Delgado and Suzanne Kessinger were present and involved
during Mr. Kausner's surgery of September 1, 2015. They would have relevant
information as to how much bleeding took place and when such bleeding took place.
The need to conduct their depositions was discussed at the Court conference of J unc 1,
2020. This deponent followed up with a letter to Mr. McCarthy of July 2, 2020 and an
email of August 3, 2020 but Mr. McCarthy, counsel for Eastern Niagara, has not
proposed dates and continues to fail to propose dates for these witnesses. A date certain
for their testimony must be compelled.
DEFENDANT DEAN SHOULD BE COMPELLED TO RETURN FOR
THE COMPLETION OF HIS TESTIMONY WITHIN 30 DAYS
19. Defendant Dean was deposed on April 30, 2018 and August 24, 2018.
Although his testimony was quite extensive, and spanned two days, the Court should be
mindful that the testimony of the plaintiff Cheryl Kausncr, a retired ICU nurse, spanned
three days. This is an extremely fact intensive case involving Thomas Kausner's stay in
the ICU of Eastern Niagara over a three-day period where he came in contact with over
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20 to 30 medical professionals.
20. As defendant Dean's testimony wore on on the second day of August 24,
2018, Mr. Weidner announced, at approximately 5:00 p.m., that this deponent had one
hour to complete Dean's testimony. This deponent indicated that he was uncertain as to
how long further questioning of Mr. Dean would take but that he would attempt to
complete the testimony and was willing to stay as long as it would take to complete his
testimony. Relevant pages of defendant Dean's testimony are annexed hereto as Exhibit
E. As can be seen, Exhibit E, p.641, Mr. Weidner abruptly announced "we're done."
This was at 6:00 p.m. Mr. Weidner's only stated reason for his unilateral termination of
Dean's testimony is as follows:
Mr. Weidner: I will indicate for the records it's now
6:00. I indicated to Mr. Fitzgerald before
we started this last series of questions that
I would give him 45 minutes. I gave him
an hour and five minutes.
Interestingly, a number of the documents
that he's questioned my client about today
are things he could have questioned about
much earlier today but chose not to. So
it's my position that he's had more than
ample time to ask any questions he wanted
to ask. His failure to do so is at his own
peril.
21. What right does Mr. Weidner have to make such a unilateral determination?
He has no right to dictate to this deponent how to conduct a deposition and what
documents this deponent should question a witness about and when. There were and are
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further areas of questioning Dean, particularly in light of inconsistencies in the testimony
of Mr. Dean. For example, he claims to have seen Thomas Kausner on September 3,
2015 at approximately 8:30 a.m. However, he failed to make any note in the record at
that time. He did electronically sign a progress note at 10:24 a.m. but when questioned
about that he had no explanation as to how he could have made the note or even
electronically signed the note at that time since he also testified that he was at his office
by that time.
22. This deponent need not spedfy additional areas of questioning. That
would be giving the defendant Dean an advantage which he does not deserve and which
is unwarranted under New York's liberal rules of discovery and deposition questioning.
Consequently, Dean must be compelled to return for the completion of his testimony.
WHEREFORE, it is respectfully requested that the Court issue Orders as follows:
1. An Order compelling defendant Eastern Niagara Hospital
to produce Hany Fattouch, M.D. within 30 days for the
completion of his deposition which was unilaterally
terminated by Joseph McCarthy, Esq., attorney for defendant
Eastern Niagara, without cause, on September 24, 2019;
2. An Order compelling the defendants Buffalo Spine
Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean,
RPA-C, to produce Dr. Cappuccino's flight records within 10
days for his air flight of on or about September 1-4, 2015 to
and from Detroit, Michigan where he attended, as a Buffalo
Bills' team doctor, the Buffalo Bills' preseason games with
the Detroit Lions;
3. An Order compelling defendants Buffalo Spine Surgery,
PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to
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produce phone records for phone calls made to, from and
among Andrew Cappuccino, M.D., Eric Dean, RPA-C, and
Eastern Niagara Hospital, Cheryl Kauaner and Elad Levy,
M.D. those phone numbers being as follows: Dr. Cappuccino
phone numbers: office - home - and
438-2973, 438-3821,
cell - Dean's phone number: ecil -
812-6145; 984-5388;
Eastern Niagara's phone numbers: main line - 514-5700 and
ICU - Cheryl Kausner's cell phone -
514-1118; 307-7783;
and Elad M.D.'s office phone - cell phone -
Levy, 218-1000,
479-6634; for the time period of September 1, 2015 to
September 16, 201 S;
4. An Order defendant Eastern Niagara Hospital
compelling
to produce the circulating nurse for the September 1, 2015
Kausner surgery by the name of Christine Delgado and scrub
nurse for said surgery by the name of Suzanne Kessinger
within 30 days; and
5. An Order compelling defendant Eric Dean, RPA-C to
return to complete his deposition within 30 days on the
grounds that his previous deposition testimony was
unilaterally terminated by his attorney without cause.
Brian P.h eral 'sq.
Sworn to before me this
27*
day of August, 2020.
Notary Public
ELLEN K. COYLE
NoTARY PUBLIC - STATE OF NEW YORK
NO. 01c06107591
QUAUFIED IN ERIE COUNTY
COMM)SSION EXPIRES APRIL5,20-
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FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 STATE OF NEW YORK SUPREME COURT : NIAGARA COUNTY THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, Fitzgerald Affidavit in Plaintiffs. Support of Plaintiffs' Motion to Compel v. BUFFALO SPINE SURGERY, PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH B. CLERK, M.D., P.C., HARNATH B. CLERK, M.D., Index No.E159518/2016 EASTERN NIAGARA HOSPITAL, INC., RORERT E. LUTNICK, M.D., and EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDICINE ASSOCIATES, P.C., Defendants. STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss.: CITY OF NEW YORK ) Brian P. Fitzgerald, Esq., being duly sworn, deposes and says: 1. I am an attorney at law duly licensed to practice law in the State ofNew York and a member of the law firm of Fitzgerald & Roller, P.C., attorneys for the plaintiffs, Thomas and Cheryl Kausner. J make this Affidavit in support of plaintiffs' Motion to Compel which seeks the following Orders: 1. An Order compelling defendant Eastern Niagara Hospital 1 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 to produce Hany Fattouch, M.D. within 30 days for the completion of his deposition which was unilaterally terminated by Joseph McCarthy, Esq., attorney for defendant Eastern Niagara, without cause, on September 24, 2019; 2. An Order compelling the defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to produce Dr. Cappuccino's flight records within 10 days for his air flight of on or about September 1-4, 2015 to and from Detroit, Michigan where he attended, as a Buffalo Bills' team doctor, the Buffalo Bills' preseason games with the Detroit Lions; 3. An Order compelling defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to produce phone records for phone calls made to, from and among Andrew Cappuccino, M.D., Eric Dean, RPA-C, and Eastern Niagara Hospital, Cheryl Kausner and Elad T,evy, M.D. those phone numbers being as follows: Dr. Cappuccino phone numbers: office -438-2973, home -438-3821, and cell -- 812-6145; Dean's phone number: cell -984-5388; Eastern Niagara's phone numbers: main line- 514-5700 and ICU -514-1118; Cheryl Kausner's cell phone- 307-7783; and Elad Levy, M.D.'s office phone -218-1000, cell phone - 4 79-6634; for the time period of September 1, 2015 to September 16, 2015; 4. An Order compelling defendant Eastern Niagara Hospital to produce the circulating nurse for the September 1, 2015 Kausner surgery hy the name of Christine Delgado and scrub nurse for said surgery by the name of Suzanne Kessinger within 30 days; and 5. An Order compelling defendant Eric Dean, RPA-C to return to complete his deposition within 30 days on the grounds that his previous deposition testimony was unilaterally terminated by his attorney without cause. 2. This case arises out of surgery performed by the defendant Andrew 2 2 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 Cappuccino, M.D. (hereinafter Cappuccino), assisted by his physician assistant defendant Eric Dean, RPA-C (hereinafter Dean), at Eastern Niagara Hospital on September 1, 2015 . The surgery was an anterior cervical discectomy and fusion at levels C-3 through C-7. During that surgery, Thomas Kausner hemorrhaged. According to Cappuccino's Operative Report, not dictated until 16 days later on September 17, 2015, and not signed until December 2, 2015, defendant Cappuccino purportedly controlled the bleeding. However, no repair of the bleeding site was performed, no vascular consult was obtained, and no diagnostic films such as MRI, MRA, or CT angiogram were ordered September 1, 2015. He should have had a vascular consult and transfer to Gates Vascular Institute for angiogram and repair of the bleeding site. 3. Despite the significant bleeding which had been encountered during surgery, Mr. Kammer was repeatedly given Toradol (also known as Ketorolac) on September 1, 2, and 3, 2015. Toradol is a non-steroidal anti-inflammatory drug which can cause bleeding and should not have been given. 4. Mr. Kausner continued to deteriorate neurologically on September 2, 2015 and an Iv1Rl was ordered and done at approximately 2:27 p.m. This MRI demonstrated a large mass compressing the spinal cord in the area of C-6 which was a neurological emergency. By then, Mr. Kausner was demonstrating weakness in both arms and other symptoms. An MRA (magnetic resonance angiogram) was not done until approximately 4:31 p.m. It did not rule out bleeding. 3 3 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 5. Mr. Kausner continued to deteriorate neurologically on September 2, 2015. He should have been transferred to Gates Vascular Institute for a vascular consult and surgical intervention but was not. 6. During the night of September 2, 2015 to September 3, 2015, Mr. Kausncr continued to further deteriorate neurologically, became stuporous, was unable to walk (dragging his left leg), and was becoming paralyzed. 7. At approximately 10 :30 a.m. on September 3, 2015, defendant Cappuccino decided to transfer Mr. Kausner to the Gates Vascular Institute. Defendant Cappuccino was not at the hospital at that time and thus not there to sign the transfer order so the transfer was further delayed until the early afternoon when another physician (Dr. Dyster) was found to sign the transfer order. According to the testimony ofICU nurse Shelly Jacubek, defendant Cappuccino told her that he was out of town. Cappuccino is a team doctor for the Buffalo Bills and has admitted to attending the Buffalo Bills' preseason game with the Detroit Lions which took place on Thursday evening, September 3, 2015. The question is when did he fly there? September 2, 2015 or September 3, 2015? And when did he return? 8. When Mr. Kausner was finally transferred to Gates Vascular Institute, he was quadriplegic. He was seen by neurovascular interventionist Elad Levy, M.D. who diagnosed a vertebral artery injury and spinal cord compression. A surgical team was cmergently assembled to decompress the mass which was compressing Mr. Kausner's 4 4 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 spinal cord. Surgeons John Pollina, M.D. and Joseph Kowalski, M.D. performed emergency surgery at approximately 6:00 p.m. on September 3, 2015, removing all ofthe hardware placed by defendant Cappuccino, removing Mr. Kausner's C6 vertebrae which was fractured, removing a large hematoma which was found, and reconstructing the fusion aspects of the surgery which defendant Cappuccino had performed. 9. The next day, September 4, 201 5, the injury to the vertebral artery (contrary to defendant Cappuccino's Operative Report which had described the bleeding encountered as venous) was repaired by Dr. Levy who placed two stcnts in the injured vertebral artery. 10. After a lengthy hospitalization at Buffalo General, and a long period of rehabilitation at ECMC, Mr. Kammer was left with loss of fine motor use of his hands and fingers, loss of use of his right ann, was permanently disabled and unable to continue his work and career as a pharmacist. He was just 61 years old. 11. This case was instituted by the filing of a Summons and Complaint on September 12, 2016. The Summons and Complaint is annexed hereto as Exhibit A. Thereafter, defendants answered and plaintiffs served Bills of Particulars, Exhibit B. 12. Thereafter, this deponent did his best to advance the case by scheduling and conducting depositions of the defendants Cappuccino and Dean, numerous employees of defendant Eastern Niagara, and defendants Hamath B. Clerk, M.D. and Robert E. Lutnick, M.D. The Kausners were deposed on June 7, 8 and 9, 2017 and the depositions 5 5 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 of defendants took place thereafter beginning with Cappuccino's testimony on April 19, 2018 and concluding with the deposition on September 25, 2019 of Alyssa Wendt (fonnerly Vanthoff), an occupational therapist who saw Mr. Kausner on the morning of September 3, 2015 who confirmed bilateral upper extremity flaccidity and significantly decreased range of motion in all planes of movement. During this period of time, April 19, 2018 to September 25, 2019, this deponent conducted 25 days of depositions of 20 different party witnesses and non-party witnesses. This was accomplished despite the substantial scheduling difficulties that a multiple party defendant case like this can present with the schedules of doctor witnesses and defense counsel. The case was also delayed by the automatic stay imposed because ofthe bankruptcy filing by defendant Eastern Niagara on November 7, 2019 which was lifted on February 13, 2020. Of course, since then the Covid-19 pandemic took place disrupting schedules and the practice oflaw throughout Western New York. 13. On June 1, 2020, this Court's Confidential Law Clerk, Anthony Latona, conducted a telephone conference on this case. Various issues were discussed including defendant Cappuccino's production of flight records and production of the phone records of defendants Cappuccino and Dean. Further depositions were discussed of the circulating nurse in the first surgery of September 1, 2015, Christine Delgado, and scrub nurse Suzanne Kessinger, as well as the potential for non-party depositions ofDrs. Levy and Pollina. Mr. Latona scheduled this for a further conference on October 7, 2020 at 6 6 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 10:30 a.m. and strongly suggested that all counsel get all further discovery completed by that date. ANESTHESIOLOGIST HANY FATTOUCH, M.D. SHOULD BE COMPELLED TO RETURN FOR THE COMPLETION OF HIS DEPOSITION WITHIN 30 DAYS 14. Hany Fattouch, M.D. is an anesthesiologist who works at defendant Eastern Niagara. His name is referenced and appears in the Post-Anesthesia Care Unit (PACU) records where Thomas Kausner was after the completion of his surgery on September 1, 2015. PACU nurse Barbara Cronshaw testified that she received orders from Dr. Fattouch. During this deponent's questioning of him, he denied "being involved." A copy of Dr. Fattouch's testimony is annexed hereto as Exhibit C. Although Mr. McCarthy does not represent him, he voluntarily produced him for deposition. Please note that the transcript does not reflect that Mr. McCarthy was appearing for him. As the Court will see near the conclusion of this deponent's questioning of Dr. Fattouch, Mr. McCarthy began to make objections, direct the witness not to answer, and then unilaterally announced "we're done". Obviously, Mr. McCarthy was not in compliance with the Uniform Rules for the Conduct of Depositions and blatantly violated them. He should not have been directing this non-party witness Fattouch, M.D. not to answer and he certainly had no right to terminate his deposition. 7 7 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 CAPPUCCINO'S FLIGHT RECORDS AND PHONE RECORDS OF DEFENDNTS CAPPUCCINO, DEAN AND EASTERN NIAGARA SHOULD BE PRODUCED WITHIN IO DAYS 15. Plaintiff served a Fourth Notice to Produce upon Brian Weidner, Esq., attorney for defendants Cappuccino and Dean on April 25, 2019. (Exhibit D) Thereafter, this deponent has made multiple and repeated attempts to get Mr. Weidner to produce these records. The flight records arc critical as they may demonstrate exactly where and when defendant Cappuccino was on September 2, 3 and 4, 2015. For example) defendant Cappuccino claims to have seen Mr. Kausner in the ICU on the morning of September 3, 2015 while making rounds but the hospital record has no note of that purported contact and ICU nurse Shelley Jacubek has testified that when she was in contact with defendant Cappuccino at approximately 10:00 to 10:30 a.m., he told her that he was out of town. 16. Likewise, these phone records are certainly relevant and might reveal who called who and when regarding Thomas Kausner's condition on the dates of September 1, 2 and 3, 2015. The phone records would be for the following telephones: Cappuccino's phone numbers: office -438-2973, home - 438-3821, and cell- 812-6145; Dean's phone number: cell - 984-5388; Eastern Niagara's phone numbers: main line - 514-5700 and ICU -514-1118; Cheryl Kausner's cell phone -307-7783; and Elad Levy, M.D.'s office phone -218-1000, cell phone - 479-6634; for the time period of September 1, 2015 to September 16, 2015. 8 8 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 17. During the June 1, 2020 conference with Mr. Latona, the issue of these flight records and these phone records was discussed but despite this Mr. Weidner has continued to fail to produce these records. This deponent's emails to him of July 2, 2020 and August 3, 2020 have similarly proved fruitless. These records must be produced. DEFENDANT EASTERN NIAGARA'S CHRISTINE DELGADO AND SUZANNE KESSINGER SHOULD BE COMPELLED TO TESTIFY WITHIN 30 DAYS 18. Christine Delgado and Suzanne Kessinger were present and involved during Mr. Kausner's surgery of September 1, 2015. They would have relevant information as to how much bleeding took place and when such bleeding took place. The need to conduct their depositions was discussed at the Court conference of J unc 1, 2020. This deponent followed up with a letter to Mr. McCarthy of July 2, 2020 and an email of August 3, 2020 but Mr. McCarthy, counsel for Eastern Niagara, has not proposed dates and continues to fail to propose dates for these witnesses. A date certain for their testimony must be compelled. DEFENDANT DEAN SHOULD BE COMPELLED TO RETURN FOR THE COMPLETION OF HIS TESTIMONY WITHIN 30 DAYS 19. Defendant Dean was deposed on April 30, 2018 and August 24, 2018. Although his testimony was quite extensive, and spanned two days, the Court should be mindful that the testimony of the plaintiff Cheryl Kausncr, a retired ICU nurse, spanned three days. This is an extremely fact intensive case involving Thomas Kausner's stay in the ICU of Eastern Niagara over a three-day period where he came in contact with over 9 9 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 20 to 30 medical professionals. 20. As defendant Dean's testimony wore on on the second day of August 24, 2018, Mr. Weidner announced, at approximately 5:00 p.m., that this deponent had one hour to complete Dean's testimony. This deponent indicated that he was uncertain as to how long further questioning of Mr. Dean would take but that he would attempt to complete the testimony and was willing to stay as long as it would take to complete his testimony. Relevant pages of defendant Dean's testimony are annexed hereto as Exhibit E. As can be seen, Exhibit E, p.641, Mr. Weidner abruptly announced "we're done." This was at 6:00 p.m. Mr. Weidner's only stated reason for his unilateral termination of Dean's testimony is as follows: Mr. Weidner: I will indicate for the records it's now 6:00. I indicated to Mr. Fitzgerald before we started this last series of questions that I would give him 45 minutes. I gave him an hour and five minutes. Interestingly, a number of the documents that he's questioned my client about today are things he could have questioned about much earlier today but chose not to. So it's my position that he's had more than ample time to ask any questions he wanted to ask. His failure to do so is at his own peril. 21. What right does Mr. Weidner have to make such a unilateral determination? He has no right to dictate to this deponent how to conduct a deposition and what documents this deponent should question a witness about and when. There were and are 10 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 further areas of questioning Dean, particularly in light of inconsistencies in the testimony of Mr. Dean. For example, he claims to have seen Thomas Kausner on September 3, 2015 at approximately 8:30 a.m. However, he failed to make any note in the record at that time. He did electronically sign a progress note at 10:24 a.m. but when questioned about that he had no explanation as to how he could have made the note or even electronically signed the note at that time since he also testified that he was at his office by that time. 22. This deponent need not spedfy additional areas of questioning. That would be giving the defendant Dean an advantage which he does not deserve and which is unwarranted under New York's liberal rules of discovery and deposition questioning. Consequently, Dean must be compelled to return for the completion of his testimony. WHEREFORE, it is respectfully requested that the Court issue Orders as follows: 1. An Order compelling defendant Eastern Niagara Hospital to produce Hany Fattouch, M.D. within 30 days for the completion of his deposition which was unilaterally terminated by Joseph McCarthy, Esq., attorney for defendant Eastern Niagara, without cause, on September 24, 2019; 2. An Order compelling the defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to produce Dr. Cappuccino's flight records within 10 days for his air flight of on or about September 1-4, 2015 to and from Detroit, Michigan where he attended, as a Buffalo Bills' team doctor, the Buffalo Bills' preseason games with the Detroit Lions; 3. An Order compelling defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D., and Eric Dean, RPA-C, to 11 11 of 12 FILED: NIAGARA COUNTY CLERK 08/27/2020 03:25 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 114 RECEIVED NYSCEF: 08/27/2020 produce phone records for phone calls made to, from and among Andrew Cappuccino, M.D., Eric Dean, RPA-C, and Eastern Niagara Hospital, Cheryl Kauaner and Elad Levy, M.D. those phone numbers being as follows: Dr. Cappuccino phone numbers: office - home - and 438-2973, 438-3821, cell - Dean's phone number: ecil - 812-6145; 984-5388; Eastern Niagara's phone numbers: main line - 514-5700 and ICU - Cheryl Kausner's cell phone - 514-1118; 307-7783; and Elad M.D.'s office phone - cell phone - Levy, 218-1000, 479-6634; for the time period of September 1, 2015 to September 16, 201 S; 4. An Order defendant Eastern Niagara Hospital compelling to produce the circulating nurse for the September 1, 2015 Kausner surgery by the name of Christine Delgado and scrub nurse for said surgery by the name of Suzanne Kessinger within 30 days; and 5. An Order compelling defendant Eric Dean, RPA-C to return to complete his deposition within 30 days on the grounds that his previous deposition testimony was unilaterally terminated by his attorney without cause. Brian P.h eral 'sq. Sworn to before me this 27* day of August, 2020. Notary Public ELLEN K. COYLE NoTARY PUBLIC - STATE OF NEW YORK NO. 01c06107591 QUAUFIED IN ERIE COUNTY COMM)SSION EXPIRES APRIL5,20- 12 12 of 12