The Appellate Division, First Department, in Almonte v. Consolidated Edison Co. of N.Y., Inc., 2023 NY Slip Op 02935, reversed the lower court's decision and order denying the plaintiff's motion for a protective order and granting defendant's cross-motion to compel to the extent of directing plaintiffs to provide authorizations to obtain medical records and testing records (including controls, standards, and calibrations) including from nonparties Dr. Michael Lipton, Dr. Mehrzad Golzad, Montefiore Medical Center, and Montefiore Advanced Imaging.

At issue here was the testing performed by or relied upon by plaintiffs' CPLR 3101(d) experts, including an MRI with Diffusion Tensor Imaging (DTI), FDG-glucose uptake PET Scan, and an MRI brain volume analysis based on the same MRI with DTI. The defendant maintained that these tests are not usually appropriate for initial imaging evaluation of acute head trauma. To that end, the defendant demanded that the plaintiff provide authorizations directing her designated experts, including Dr. Lipton, to produce records regarding controls, standards, and calibrations of these tests for purposes of a Frye challenge.

The lower court granted the defendant's motion to compel these authorizations and denied the plaintiff's motion for a protective order. The First Department reversed. The Court determined that the plaintiff had already provided significant discovery with respect to their designated experts, and this specific additional discovery was not warranted.

The Court held, "Under the circumstances here, the court improvidently exercised its discretion in compelling plaintiffs to provide such discovery. Plaintiffs demonstrated that they fully complied with all discovery demands and orders by making the disclosure required by CPLR 3101(d), as well as providing HIPAA-compliant authorizations for production of her medical records from all her medical providers, including Dr. Lipton, and Arons authorizations permitting ex parte interviews of her designated experts. Plaintiffs' responses to defendant's discovery demands asserted appropriate objections to the disclosure demanded of data underlying the MRI with DTI testing, including that the information demanded is not within her control and was proprietary information of Dr. Lipton or Montefiore."

Interestingly, the Appellate Division noted that the defendant never sought third-party disclosure directly from the medical providers and designated experts or Montefiore. Could that suggest that if the defendants sought this specific discovery directly from these experts rather than the plaintiff herself, they could potentially secure this discovery? Hard to say, but since the Court reversed the decision partly on the grounds that the plaintiff could not be forced to turn over that which it did not possess or have control over, (citing Calcados Samello, S. A. v Intershoe Inc., 78 AD2d 796, 796 [1st Dept 1980]), it is certainly possible, if not necessarily probable.

Whether defendants opt to go that route remains to be seen. According to e-Courts, the litigation is ongoing.