Preview
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
1 STATE OF NEW YORK
SUPREME COURT - PART II : COUNTY OF NIAGARA
2
3 THOMAS and CHERYL KAUSNER,
Individually and as Husband and Wife,
4 Plaintiffs,
5 -against- Index No. E159518/2016
Virtual Proceedings
6 BUFFALO SPINE SURGERY, PLLLC,
ANDREW CAPPUCCINO, M.D.,
7 ERIC DEAN, RPA-C,
HARNATH CLERK, M.D., P.C.,
8 HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
9 ROBERT E. LUTNICK, M.D.,
EASTERN NIAGARA RADIOLOGY &
10 NUCLEAR MEDICINE ASSOCIATES, P.C.,
Defendants.
11
775 Third Street
12 Niagara Falls, New York
June 30, 2022
13
B e f o r e:
14
HONORABLE FRANK A. SEDITA, III
15 Supreme Court Justice
16 A p p e a r a n c e s:
17 BRIAN P. FITZGERALD, P.C.,
By: BRIAN P. FITZGERALD, ESQ.,
18 509 Liberty Building,
Buffalo, New York 14202,
19 Appearing for the Plaintiffs.
20 THE TARANTINO LAW FIRM, LLP,
By: ERICA GASIEWICZ, ESQ.,
21 1500 Rand Building,
Buffalo, New York 14203,
22 Appearing for the Defendants,
Buffalo Spine Surgery, PLLC,
23 Andrew Cappuccino, M.D.
and Eric Dean, RPA-C.
24
25
1 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
1 A p p e a r a n c e s: (C o n t i n u e d)
2 CONNORS LLP
By: BRYAN KROETSCH, ESQ.,
3 1000 Liberty Building,
Buffalo, New York 14202,
4 Appearing for the Defendants,
Harnath Clerk, M.D.
5 and Harnath Clerk, M.D., P.C.
6 ROACH, BROWN, McCARTHY & GRUBER, P.C.,
By: J. MARK GRUBER, ESQ.,
7 1920 Liberty Building,
Buffalo, New York 14202,
8 Appearing for the Defendants,
Eastern Niagara Hospital, Inc.,
9 Robert E. Lutnick, M.D.
and Eastern Niagara Radiology &
10 Nuclear Medicine Associates, P.C.
11 AMY E. COGHLAN
Senior Court Reporter
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
3
KAUSNER vs. BUFFALO SPINE, ET AL.
1 THE COURT: The next matter before the Court is
2 Thomas Kausner and Cheryl Kausner vs. Buffalo Spine
3 Surgery, PLLC, Andrew Cappuccino, M.D., Eric Dean, RPA,
4 Harnath Clerk M.D., Eastern Niagara Hospital, Inc. and
5 Robert Lutnick, M.D., Index Number E159518/2016. Counsel,
6 would you note appearances for the record, please?
7 MR. FITZGERALD: Brian Fitzgerald for the
8 Kausners.
9 THE COURT: Go ahead.
10 MR. FITZGERALD: I'm sorry. Brian Fitzgerald
11 for the Kausners.
12 MR. KROETSCH: Bryan Kroetsch on behalf of Dr.
13 Clerk and his PC.
14 MR. GRUBER: Mark Gruber on behalf of Eastern
15 Niagara Hospital, Robert Lutnick, M.D., Eastern Niagara
16 Radiology & Nuclear Medicine Associates, P.C.
17 MS. GASIEWICZ: Erica Gasiewicz for Buffalo
18 Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric
19 Dean.
20 THE COURT: Counsel, spell your last name for
21 me, please.
22 MS. GASIEWICZ: Sure. G-A-S-I-E-W-I-C-Z.
23 THE COURT: Thank you. Okay. So a couple of
24 preliminary matters, basically the game plan. Number one,
25 recordation warnings. You are not permitted -- same rules
3 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
4
KAUSNER vs. BUFFALO SPINE, ET AL.
1 apply as though we were in an in person proceeding. You
2 couldn't whip out your cell phone and start recording
3 what's going on in the courtroom and you can't do the same
4 thing on-line, so you are prohibited from any audio or
5 visual recording of these proceedings. If you do so, you
6 are in contempt of court. Please note that everything
7 that is said here today is being stenographically
8 transcribed by a professional court reporter. Secondly,
9 when you are not speaking, please mute. The Teams
10 platform works better this way. I'm crossing my fingers,
11 Mr. Gruber, that -- we always seem to have difficulties
12 with your law firm for some reason on the Teams platform.
13 I don't know what it is. I hope whatever the problem was
14 is fixed.
15 Also, my process is to make a record, frame the
16 issues, invite you to make oral argument if you feel you
17 need to make oral argument. I'm familiar with your
18 papers, with your arguments, with the law. You don't need
19 to repeat what's in your papers. I'm gonna cap any oral
20 argument at ten minutes.
21 And, thus, without further ado, before the Court
22 are motions for summary judgment brought by Defendants
23 Eastern Niagara Hospital and Dr. Lutnick and Dr. Clerk.
24 The other named Defendants are not participants in the
25 pending motions.
4 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
5
KAUSNER vs. BUFFALO SPINE, ET AL.
1 This is a med mal, medical malpractice case. By
2 way of background, on September 1st of 2015, Plaintiff
3 Thomas Kausner underwent a cervical surgery at Eastern
4 Niagara Hospital performed by Dr. Andrew Cappuccino, who
5 was assisted by Eric Dean, who apparently is a physician's
6 assistant.
7 On September 2nd of 2015, Dr. Cappuccino ordered
8 an MRI of the cervical spine. The MRI was completed at
9 Eastern Niagara Hospital by a radiology technician and the
10 films were reviewed by Dr. Lutnick, who was a radiologist.
11 Dr. Lutnick reported his findings to physician assistant
12 Eric Dean and Dr. Cappuccino. Following this report, Dr.
13 Cappuccino ordered more diagnostic imaging in the form
14 this time of an MRA. The MRA was conducted and a report
15 generated by Dr. Lutnick. It is alleged that throughout
16 September 2nd, 2015 and into September 3rd of 2015, that
17 Mr. Kausner was exhibiting signs of neurological decline
18 due to cervical cord compression. One of the symptoms was
19 an increase in blood pressure, which was monitored and
20 treated by Dr. Clerk at Eastern Niagara Hospital. On
21 September 3rd, 2015, Dr. Cappuccino ordered Plaintiff
22 transferred to Gates Vascular Institute to address the
23 spinal cord compression issues.
24 A lawsuit was filed, Answers were made,
25 discovery proceeded, so on, and so on. Here we are today
5 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
6
KAUSNER vs. BUFFALO SPINE, ET AL.
1 for summary judgment motions.
2 In support of their motion for summary judgment,
3 Defendants Eastern Niagara Hospital and Dr. Lutnick submit
4 the attorney affirmation of J. Mark Gruber, along with 21
5 exhibits, including medical records and 18 deposition
6 transcripts, expert affirmation of Dr. Douglas Moreland,
7 who I guess is a neurosurgeon, and the expert affirmation
8 of Dr. Lutnick.
9 Defendants Eastern Niagara Hospital and Dr.
10 Lutnick principally contend that there was no deviation
11 from the accepted standards of care provided to Plaintiff
12 following his cervical spine surgery.
13 In support of his motion for summary judgment,
14 Dr. Clerk submits the attorney affirmation of Bryan
15 Kroetsch, along with 18 exhibits, including relevant
16 pleadings, medical records, deposition transcripts, and
17 the expert affirmation of Dr. Martin Stallone, who
18 purportedly specializes in internal medicine. Defendant
19 Clerk principally contends that he did not deviate from
20 the accepted standard of care provided to the Plaintiff
21 following his cervical spine surgery.
22 In opposing the motion, Plaintiff submits -- all
23 the motions, Plaintiff submits the attorney affirmation of
24 Brian Fitzgerald, along with nine exhibits, including
25 medical records, deposition exhibits and some deposition
6 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
7
KAUSNER vs. BUFFALO SPINE, ET AL.
1 testimony, the expert affirmation of an unnamed
2 radiologist and the expert affirmation of an unnamed
3 neurologist.
4 Plaintiff contends that Dr. Lutnick did not
5 adequately read the MRI and MRA films and did not
6 appreciate or communicate the medical emergency occurring
7 due to the spinal cord compression. Plaintiff
8 additionally contends essentially that Plaintiff was
9 exhibiting symptoms of neurological decline that were not
10 adequately treated or addressed by the Eastern Niagara
11 Hospital and its staff, and that Dr. Clerk's failure to
12 properly treat Mr. Kausner's increased blood pressure all
13 contributed to the injuries that Mr. Kausner alleges.
14 That is my summary. I would invite oral
15 argument. I'm not sure who was first in line, whether
16 that was you, Mr. Kroetsch, or you, Mr. Gruber. It
17 doesn't matter to me which one of you wants to go first,
18 but one of you can go first. And, again, you're capped at
19 ten minutes. Go ahead.
20 MR. GRUBER: Thank you, your Honor. Mark Gruber
21 on behalf of the hospital and Dr. Lutnick. We submit to
22 the Court that we've proven a prima facie case in support
23 of summary judgment in that the opposition to summary
24 judgment totally is insufficient on a legal basis. That
25 if the opinions offered in response to the motion are
7 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
8
KAUSNER vs. BUFFALO SPINE, ET AL.
1 based upon uncertified medical records, a lack of personal
2 knowledge, lack of knowledge of the testimony of the named
3 parties, hearsay statements, and that the opinions are
4 nothing more than surmise, contradictory and conclusory
5 opinions. And, otherwise, we rest on our papers, your
6 Honor.
7 THE COURT: Thank you, Mr. Gruber. Mr.
8 Kroetsch?
9 MR. KROETSCH: Good morning, your Honor. Thank
10 you. Bryan Kroetsch on behalf of Dr. Clerk. Your Honor,
11 I'll be brief. We submitted the affidavit of a board
12 certified internist, Dr. Stallone, who opines that Dr.
13 Clerk's care was at all times in keeping with the standard
14 of care. There was no causal relationship between Dr.
15 Clerk's alleged negligence and the Plaintiffs' claimed
16 injuries and damages. And, moreover, Dr. Stallone
17 explained that Dr. Clerk played a limited role as a
18 consultant in the care and treatment of Mr. Kausner
19 vis-a-vis the attending surgeon Dr. Cappuccino, who
20 performed the surgery in question.
21 And I would just highlight that in opposition,
22 Plaintiffs' expert did not review the deposition testimony
23 of Mrs. Kausner, who is an ICU nurse herself, and of Dr.
24 Cappuccino or Eric Dean. And by not reviewing those
25 materials, the expert's affidavit lacked the foundation
8 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
9
KAUSNER vs. BUFFALO SPINE, ET AL.
1 necessary to oppose the motion. By reviewing Dr.
2 Cappuccino's testimony, it's clear that he was in charge
3 of when the discharge should occur and, you know, he was
4 essentially waiting and when there was a change in status
5 he decided to order the discharge. That's something that
6 was outside of Dr. Clerk's purview, as we explain in our
7 papers and the prevailing case law that we cited. As well
8 as that Mrs. Kausner testified that Dr. Clerk was managing
9 the blood pressure and Dr. Cappuccino wanted to leave some
10 time for steroids to work.
11 Beyond that, the Plaintiffs' expert's opinion
12 misconstrues Dr. Clerk's limited role and does not raise
13 an issue of fact with respect to causation. It's
14 conclusory and speculative that an earlier transfer would
15 have made a difference, but does not cite any reason why
16 for that.
17 And beyond that, your Honor, we would rest on
18 our papers, unless court has any questions for us
19 regarding this matter.
20 THE COURT: Thank you, Mr. Kroetsch. Mr.
21 Fitzgerald?
22 MR. FITZGERALD: Thank you, your Honor. May it
23 please the Court. I'd like to just first highlight the
24 certain aspects of Plaintiffs' opposition to Defendants'
25 motions.
9 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
10
KAUSNER vs. BUFFALO SPINE, ET AL.
1 THE COURT: Just so you know, you better do it
2 within ten minutes, so go ahead.
3 MR. FITZGERALD: I'm gonna try, your Honor.
4 First of all, in connection with Dr. Lutnick's motion, he
5 offers no independent expert affidavit or opinion. Simply
6 relies on Dr. Lutnick's self-serving affidavit.
7 What's interesting about that also is that Dr.
8 Lutnick and Eastern Niagara are represented by the same
9 law firm and that law firm had Dr. Moreland review the
10 case on behalf of the hospital. And obviously, as we put
11 out in our papers, Dr. Moreland, local neurosurgeon, well
12 qualified to review this type of neck surgery and also
13 radiological studies, he proffers no opinion in support of
14 Dr. Lutnick, which I think is telling. Eastern Niagara
15 and Dr. Lutnick have cross-claimed against each other in
16 the case. So we essentially have a Dr. Moreland affidavit
17 that does not support Mr. Gruber's client, Dr. Lutnick.
18 Secondly, your Honor, I don't know what to do.
19 I see this kind of a conflict all the time in these
20 medical case. They're clearly in conflict. They assert
21 cross-claims against each other. That means Dr. Lutnick
22 is saying and Eastern Niagara is saying -- they're saying
23 to each other that they were negligent.
24 Plaintiff has proffered in opposition to these
25 motions two expert affidavits. Your Honor has the names
10 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
11
KAUSNER vs. BUFFALO SPINE, ET AL.
1 of the experts disclosed in those affidavits or
2 affirmations. Both experts have expertise in radiology.
3 Both have opined that the MRA was essentially useless and
4 not diagnostic. So for Lutnick to say that he properly
5 interpreted that and reported its findings to Dr.
6 Cappuccino and to Mr. Dean is clearly, Lutnick's position
7 is clearly contradicted by that ex -- those expert
8 opinions. At the very least, a question of fact is
9 created.
10 Lutnick next argues that somehow he's just a
11 radiologist and he plays no role in what the Plaintiff's
12 treatment would then be, but our experts, although they
13 claim we didn't review Lutnick's testimony, they reviewed
14 Lutnick's affidavit in opposition to the motion, so they
15 reviewed what Lutnick is claiming he did or didn't do in
16 his affidavit.
17 Lutnick in his affidavit admits that after he
18 saw the MRI and discussed it with Dean, he suggested an
19 MRA, yet Defendants claim he had no duty to suggest
20 anything. That suggestion of the MRI is his participation
21 in the plan of treatment. He's going beyond just
22 interpreting films.
23 At paragraph eight of the Lutnick affidavit, he
24 admits discussing the options to decompress the nerves
25 with Dr. Cappuccino. That indicates he's involved in the
11 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
12
KAUSNER vs. BUFFALO SPINE, ET AL.
1 plan of care and treatment. He's discussing options to
2 decompress.
3 At paragraph 16 of Lutnick's affidavit, he
4 claims that there was no need for a repeat angiogram once
5 the MRI was done. That's not true, because our experts
6 have indicated the MRA was essentially useless to assess
7 the vertebral artery injury. Lutnick's affidavit is
8 directly contradicted by that.
9 He then at paragraph 20 claimed it is not his
10 role to recommend studies to another facility, but if that
11 MRI was essentially useless, as Plaintiffs' experts have
12 opined, then he had an obligation to recommend an
13 angiogram. And that type of angiogram which Mr. Kausner
14 needed could not be done at Eastern Niagara. He had to be
15 transferred to Gates and Buffalo General for the type of
16 angiogram he needed. This caused delay. He was not being
17 properly assessed.
18 And I have to say that Rachel Napoleon, the
19 radiology tech, this is her requisition in connection with
20 the MRA, it's deposition Exhibit 85, it's annexed as
21 Exhibit 3 to my affidavit, when she wrote up the
22 requisition for the MRA, she specifically noted on it that
23 Tom Kausner had right and left upper extremity weakness.
24 That signified a significant change in his condition as of
25 that afternoon that is undisputed. Lutnick fails to
12 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
13
KAUSNER vs. BUFFALO SPINE, ET AL.
1 comment on that. Lutnick claimed he didn't know about
2 progression of the weakness to the other side, to the
3 other, to the other arm. There it is. So -- and Rachel
4 Napoleon testified -- and excerpts of her testimony are
5 attached and were reviewed by our experts -- and Rachel
6 Napoleon is saying you put in information about right and
7 left upper arm weakness on that form so the radiologist
8 knows what to look for. So he should be looking for
9 evidence of compression of the cord, not just to assess
10 what's happening on one side, one arm, but both arms. And
11 he should be telling Dean and Cappuccino that this man's
12 neurological condition is progressing.
13 Now, one of the most interesting things about
14 this case is that -- and we tried to outline this in a
15 general way -- Dr. Cappuccino -- it took us many years to
16 find this out -- Dr. Cappuccino left Eastern Niagara
17 Hospital that day about 3:00 p.m. And he left to get on a
18 Buffalo Bills flight to Detroit -- this was a Wednesday --
19 for a Detroit Lions preseason game Thursday night. Your
20 Honor knows that quite often that the Bills play the Lions
21 on Thursday nights in a preseason game. A lot of times I
22 think it's in Detroit. So Cappuccino's left town. He
23 testifies, no, he was in town. He testifies he's in
24 Detroit and nobody --
25 THE COURT: Hold on, Mr. Fitzgerald. The court
13 of 27
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016
NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022
14
KAUSNER vs. BUFFALO SPINE, ET AL.
1 reporter couldn't get what you were saying. Repeat it,
2 please.
3 MR. FITZGERALD: He testifies that he came and
4 s
Preview
FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 1 STATE OF NEW YORK SUPREME COURT - PART II : COUNTY OF NIAGARA 2 3 THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, 4 Plaintiffs, 5 -against- Index No. E159518/2016 Virtual Proceedings 6 BUFFALO SPINE SURGERY, PLLLC, ANDREW CAPPUCCINO, M.D., 7 ERIC DEAN, RPA-C, HARNATH CLERK, M.D., P.C., 8 HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., 9 ROBERT E. LUTNICK, M.D., EASTERN NIAGARA RADIOLOGY & 10 NUCLEAR MEDICINE ASSOCIATES, P.C., Defendants. 11 775 Third Street 12 Niagara Falls, New York June 30, 2022 13 B e f o r e: 14 HONORABLE FRANK A. SEDITA, III 15 Supreme Court Justice 16 A p p e a r a n c e s: 17 BRIAN P. FITZGERALD, P.C., By: BRIAN P. FITZGERALD, ESQ., 18 509 Liberty Building, Buffalo, New York 14202, 19 Appearing for the Plaintiffs. 20 THE TARANTINO LAW FIRM, LLP, By: ERICA GASIEWICZ, ESQ., 21 1500 Rand Building, Buffalo, New York 14203, 22 Appearing for the Defendants, Buffalo Spine Surgery, PLLC, 23 Andrew Cappuccino, M.D. and Eric Dean, RPA-C. 24 25 1 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 1 A p p e a r a n c e s: (C o n t i n u e d) 2 CONNORS LLP By: BRYAN KROETSCH, ESQ., 3 1000 Liberty Building, Buffalo, New York 14202, 4 Appearing for the Defendants, Harnath Clerk, M.D. 5 and Harnath Clerk, M.D., P.C. 6 ROACH, BROWN, McCARTHY & GRUBER, P.C., By: J. MARK GRUBER, ESQ., 7 1920 Liberty Building, Buffalo, New York 14202, 8 Appearing for the Defendants, Eastern Niagara Hospital, Inc., 9 Robert E. Lutnick, M.D. and Eastern Niagara Radiology & 10 Nuclear Medicine Associates, P.C. 11 AMY E. COGHLAN Senior Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 3 KAUSNER vs. BUFFALO SPINE, ET AL. 1 THE COURT: The next matter before the Court is 2 Thomas Kausner and Cheryl Kausner vs. Buffalo Spine 3 Surgery, PLLC, Andrew Cappuccino, M.D., Eric Dean, RPA, 4 Harnath Clerk M.D., Eastern Niagara Hospital, Inc. and 5 Robert Lutnick, M.D., Index Number E159518/2016. Counsel, 6 would you note appearances for the record, please? 7 MR. FITZGERALD: Brian Fitzgerald for the 8 Kausners. 9 THE COURT: Go ahead. 10 MR. FITZGERALD: I'm sorry. Brian Fitzgerald 11 for the Kausners. 12 MR. KROETSCH: Bryan Kroetsch on behalf of Dr. 13 Clerk and his PC. 14 MR. GRUBER: Mark Gruber on behalf of Eastern 15 Niagara Hospital, Robert Lutnick, M.D., Eastern Niagara 16 Radiology & Nuclear Medicine Associates, P.C. 17 MS. GASIEWICZ: Erica Gasiewicz for Buffalo 18 Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric 19 Dean. 20 THE COURT: Counsel, spell your last name for 21 me, please. 22 MS. GASIEWICZ: Sure. G-A-S-I-E-W-I-C-Z. 23 THE COURT: Thank you. Okay. So a couple of 24 preliminary matters, basically the game plan. Number one, 25 recordation warnings. You are not permitted -- same rules 3 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 4 KAUSNER vs. BUFFALO SPINE, ET AL. 1 apply as though we were in an in person proceeding. You 2 couldn't whip out your cell phone and start recording 3 what's going on in the courtroom and you can't do the same 4 thing on-line, so you are prohibited from any audio or 5 visual recording of these proceedings. If you do so, you 6 are in contempt of court. Please note that everything 7 that is said here today is being stenographically 8 transcribed by a professional court reporter. Secondly, 9 when you are not speaking, please mute. The Teams 10 platform works better this way. I'm crossing my fingers, 11 Mr. Gruber, that -- we always seem to have difficulties 12 with your law firm for some reason on the Teams platform. 13 I don't know what it is. I hope whatever the problem was 14 is fixed. 15 Also, my process is to make a record, frame the 16 issues, invite you to make oral argument if you feel you 17 need to make oral argument. I'm familiar with your 18 papers, with your arguments, with the law. You don't need 19 to repeat what's in your papers. I'm gonna cap any oral 20 argument at ten minutes. 21 And, thus, without further ado, before the Court 22 are motions for summary judgment brought by Defendants 23 Eastern Niagara Hospital and Dr. Lutnick and Dr. Clerk. 24 The other named Defendants are not participants in the 25 pending motions. 4 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 5 KAUSNER vs. BUFFALO SPINE, ET AL. 1 This is a med mal, medical malpractice case. By 2 way of background, on September 1st of 2015, Plaintiff 3 Thomas Kausner underwent a cervical surgery at Eastern 4 Niagara Hospital performed by Dr. Andrew Cappuccino, who 5 was assisted by Eric Dean, who apparently is a physician's 6 assistant. 7 On September 2nd of 2015, Dr. Cappuccino ordered 8 an MRI of the cervical spine. The MRI was completed at 9 Eastern Niagara Hospital by a radiology technician and the 10 films were reviewed by Dr. Lutnick, who was a radiologist. 11 Dr. Lutnick reported his findings to physician assistant 12 Eric Dean and Dr. Cappuccino. Following this report, Dr. 13 Cappuccino ordered more diagnostic imaging in the form 14 this time of an MRA. The MRA was conducted and a report 15 generated by Dr. Lutnick. It is alleged that throughout 16 September 2nd, 2015 and into September 3rd of 2015, that 17 Mr. Kausner was exhibiting signs of neurological decline 18 due to cervical cord compression. One of the symptoms was 19 an increase in blood pressure, which was monitored and 20 treated by Dr. Clerk at Eastern Niagara Hospital. On 21 September 3rd, 2015, Dr. Cappuccino ordered Plaintiff 22 transferred to Gates Vascular Institute to address the 23 spinal cord compression issues. 24 A lawsuit was filed, Answers were made, 25 discovery proceeded, so on, and so on. Here we are today 5 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 6 KAUSNER vs. BUFFALO SPINE, ET AL. 1 for summary judgment motions. 2 In support of their motion for summary judgment, 3 Defendants Eastern Niagara Hospital and Dr. Lutnick submit 4 the attorney affirmation of J. Mark Gruber, along with 21 5 exhibits, including medical records and 18 deposition 6 transcripts, expert affirmation of Dr. Douglas Moreland, 7 who I guess is a neurosurgeon, and the expert affirmation 8 of Dr. Lutnick. 9 Defendants Eastern Niagara Hospital and Dr. 10 Lutnick principally contend that there was no deviation 11 from the accepted standards of care provided to Plaintiff 12 following his cervical spine surgery. 13 In support of his motion for summary judgment, 14 Dr. Clerk submits the attorney affirmation of Bryan 15 Kroetsch, along with 18 exhibits, including relevant 16 pleadings, medical records, deposition transcripts, and 17 the expert affirmation of Dr. Martin Stallone, who 18 purportedly specializes in internal medicine. Defendant 19 Clerk principally contends that he did not deviate from 20 the accepted standard of care provided to the Plaintiff 21 following his cervical spine surgery. 22 In opposing the motion, Plaintiff submits -- all 23 the motions, Plaintiff submits the attorney affirmation of 24 Brian Fitzgerald, along with nine exhibits, including 25 medical records, deposition exhibits and some deposition 6 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 7 KAUSNER vs. BUFFALO SPINE, ET AL. 1 testimony, the expert affirmation of an unnamed 2 radiologist and the expert affirmation of an unnamed 3 neurologist. 4 Plaintiff contends that Dr. Lutnick did not 5 adequately read the MRI and MRA films and did not 6 appreciate or communicate the medical emergency occurring 7 due to the spinal cord compression. Plaintiff 8 additionally contends essentially that Plaintiff was 9 exhibiting symptoms of neurological decline that were not 10 adequately treated or addressed by the Eastern Niagara 11 Hospital and its staff, and that Dr. Clerk's failure to 12 properly treat Mr. Kausner's increased blood pressure all 13 contributed to the injuries that Mr. Kausner alleges. 14 That is my summary. I would invite oral 15 argument. I'm not sure who was first in line, whether 16 that was you, Mr. Kroetsch, or you, Mr. Gruber. It 17 doesn't matter to me which one of you wants to go first, 18 but one of you can go first. And, again, you're capped at 19 ten minutes. Go ahead. 20 MR. GRUBER: Thank you, your Honor. Mark Gruber 21 on behalf of the hospital and Dr. Lutnick. We submit to 22 the Court that we've proven a prima facie case in support 23 of summary judgment in that the opposition to summary 24 judgment totally is insufficient on a legal basis. That 25 if the opinions offered in response to the motion are 7 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 8 KAUSNER vs. BUFFALO SPINE, ET AL. 1 based upon uncertified medical records, a lack of personal 2 knowledge, lack of knowledge of the testimony of the named 3 parties, hearsay statements, and that the opinions are 4 nothing more than surmise, contradictory and conclusory 5 opinions. And, otherwise, we rest on our papers, your 6 Honor. 7 THE COURT: Thank you, Mr. Gruber. Mr. 8 Kroetsch? 9 MR. KROETSCH: Good morning, your Honor. Thank 10 you. Bryan Kroetsch on behalf of Dr. Clerk. Your Honor, 11 I'll be brief. We submitted the affidavit of a board 12 certified internist, Dr. Stallone, who opines that Dr. 13 Clerk's care was at all times in keeping with the standard 14 of care. There was no causal relationship between Dr. 15 Clerk's alleged negligence and the Plaintiffs' claimed 16 injuries and damages. And, moreover, Dr. Stallone 17 explained that Dr. Clerk played a limited role as a 18 consultant in the care and treatment of Mr. Kausner 19 vis-a-vis the attending surgeon Dr. Cappuccino, who 20 performed the surgery in question. 21 And I would just highlight that in opposition, 22 Plaintiffs' expert did not review the deposition testimony 23 of Mrs. Kausner, who is an ICU nurse herself, and of Dr. 24 Cappuccino or Eric Dean. And by not reviewing those 25 materials, the expert's affidavit lacked the foundation 8 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 9 KAUSNER vs. BUFFALO SPINE, ET AL. 1 necessary to oppose the motion. By reviewing Dr. 2 Cappuccino's testimony, it's clear that he was in charge 3 of when the discharge should occur and, you know, he was 4 essentially waiting and when there was a change in status 5 he decided to order the discharge. That's something that 6 was outside of Dr. Clerk's purview, as we explain in our 7 papers and the prevailing case law that we cited. As well 8 as that Mrs. Kausner testified that Dr. Clerk was managing 9 the blood pressure and Dr. Cappuccino wanted to leave some 10 time for steroids to work. 11 Beyond that, the Plaintiffs' expert's opinion 12 misconstrues Dr. Clerk's limited role and does not raise 13 an issue of fact with respect to causation. It's 14 conclusory and speculative that an earlier transfer would 15 have made a difference, but does not cite any reason why 16 for that. 17 And beyond that, your Honor, we would rest on 18 our papers, unless court has any questions for us 19 regarding this matter. 20 THE COURT: Thank you, Mr. Kroetsch. Mr. 21 Fitzgerald? 22 MR. FITZGERALD: Thank you, your Honor. May it 23 please the Court. I'd like to just first highlight the 24 certain aspects of Plaintiffs' opposition to Defendants' 25 motions. 9 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 10 KAUSNER vs. BUFFALO SPINE, ET AL. 1 THE COURT: Just so you know, you better do it 2 within ten minutes, so go ahead. 3 MR. FITZGERALD: I'm gonna try, your Honor. 4 First of all, in connection with Dr. Lutnick's motion, he 5 offers no independent expert affidavit or opinion. Simply 6 relies on Dr. Lutnick's self-serving affidavit. 7 What's interesting about that also is that Dr. 8 Lutnick and Eastern Niagara are represented by the same 9 law firm and that law firm had Dr. Moreland review the 10 case on behalf of the hospital. And obviously, as we put 11 out in our papers, Dr. Moreland, local neurosurgeon, well 12 qualified to review this type of neck surgery and also 13 radiological studies, he proffers no opinion in support of 14 Dr. Lutnick, which I think is telling. Eastern Niagara 15 and Dr. Lutnick have cross-claimed against each other in 16 the case. So we essentially have a Dr. Moreland affidavit 17 that does not support Mr. Gruber's client, Dr. Lutnick. 18 Secondly, your Honor, I don't know what to do. 19 I see this kind of a conflict all the time in these 20 medical case. They're clearly in conflict. They assert 21 cross-claims against each other. That means Dr. Lutnick 22 is saying and Eastern Niagara is saying -- they're saying 23 to each other that they were negligent. 24 Plaintiff has proffered in opposition to these 25 motions two expert affidavits. Your Honor has the names 10 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 11 KAUSNER vs. BUFFALO SPINE, ET AL. 1 of the experts disclosed in those affidavits or 2 affirmations. Both experts have expertise in radiology. 3 Both have opined that the MRA was essentially useless and 4 not diagnostic. So for Lutnick to say that he properly 5 interpreted that and reported its findings to Dr. 6 Cappuccino and to Mr. Dean is clearly, Lutnick's position 7 is clearly contradicted by that ex -- those expert 8 opinions. At the very least, a question of fact is 9 created. 10 Lutnick next argues that somehow he's just a 11 radiologist and he plays no role in what the Plaintiff's 12 treatment would then be, but our experts, although they 13 claim we didn't review Lutnick's testimony, they reviewed 14 Lutnick's affidavit in opposition to the motion, so they 15 reviewed what Lutnick is claiming he did or didn't do in 16 his affidavit. 17 Lutnick in his affidavit admits that after he 18 saw the MRI and discussed it with Dean, he suggested an 19 MRA, yet Defendants claim he had no duty to suggest 20 anything. That suggestion of the MRI is his participation 21 in the plan of treatment. He's going beyond just 22 interpreting films. 23 At paragraph eight of the Lutnick affidavit, he 24 admits discussing the options to decompress the nerves 25 with Dr. Cappuccino. That indicates he's involved in the 11 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 12 KAUSNER vs. BUFFALO SPINE, ET AL. 1 plan of care and treatment. He's discussing options to 2 decompress. 3 At paragraph 16 of Lutnick's affidavit, he 4 claims that there was no need for a repeat angiogram once 5 the MRI was done. That's not true, because our experts 6 have indicated the MRA was essentially useless to assess 7 the vertebral artery injury. Lutnick's affidavit is 8 directly contradicted by that. 9 He then at paragraph 20 claimed it is not his 10 role to recommend studies to another facility, but if that 11 MRI was essentially useless, as Plaintiffs' experts have 12 opined, then he had an obligation to recommend an 13 angiogram. And that type of angiogram which Mr. Kausner 14 needed could not be done at Eastern Niagara. He had to be 15 transferred to Gates and Buffalo General for the type of 16 angiogram he needed. This caused delay. He was not being 17 properly assessed. 18 And I have to say that Rachel Napoleon, the 19 radiology tech, this is her requisition in connection with 20 the MRA, it's deposition Exhibit 85, it's annexed as 21 Exhibit 3 to my affidavit, when she wrote up the 22 requisition for the MRA, she specifically noted on it that 23 Tom Kausner had right and left upper extremity weakness. 24 That signified a significant change in his condition as of 25 that afternoon that is undisputed. Lutnick fails to 12 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 13 KAUSNER vs. BUFFALO SPINE, ET AL. 1 comment on that. Lutnick claimed he didn't know about 2 progression of the weakness to the other side, to the 3 other, to the other arm. There it is. So -- and Rachel 4 Napoleon testified -- and excerpts of her testimony are 5 attached and were reviewed by our experts -- and Rachel 6 Napoleon is saying you put in information about right and 7 left upper arm weakness on that form so the radiologist 8 knows what to look for. So he should be looking for 9 evidence of compression of the cord, not just to assess 10 what's happening on one side, one arm, but both arms. And 11 he should be telling Dean and Cappuccino that this man's 12 neurological condition is progressing. 13 Now, one of the most interesting things about 14 this case is that -- and we tried to outline this in a 15 general way -- Dr. Cappuccino -- it took us many years to 16 find this out -- Dr. Cappuccino left Eastern Niagara 17 Hospital that day about 3:00 p.m. And he left to get on a 18 Buffalo Bills flight to Detroit -- this was a Wednesday -- 19 for a Detroit Lions preseason game Thursday night. Your 20 Honor knows that quite often that the Bills play the Lions 21 on Thursday nights in a preseason game. A lot of times I 22 think it's in Detroit. So Cappuccino's left town. He 23 testifies, no, he was in town. He testifies he's in 24 Detroit and nobody -- 25 THE COURT: Hold on, Mr. Fitzgerald. The court 13 of 27 FILED: NIAGARA COUNTY CLERK 07/21/2022 09:56 AM INDEX NO. E159518/2016 NYSCEF DOC. NO. 274 RECEIVED NYSCEF: 07/21/2022 14 KAUSNER vs. BUFFALO SPINE, ET AL. 1 reporter couldn't get what you were saying. Repeat it, 2 please. 3 MR. FITZGERALD: He testifies that he came and 4 s