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FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 EXHIBIT 4 FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 .. u 1. N W KK 'OUNTY O. N EW YURK . x REINAi,DO MERCED , .Topreg py- £500MF MANAGEMENT CORP,, Defendants. .. p he S Bh- ace Of fork ane an 6 at 125-10 Queens Bou evard K y NY 415. âVG 6 SPCL tile dt,t-ached ndt r atly rd:p ;rt : at,Ori S 14 202I a d ea an ì ew of .he :ord in SU5 an ed by DA ONNA HOWELL were s a resul of the automobile -2CC deGL 11 i 2 20l7 and Flave Ca Sed ci 3rmaG8Gt. ]Dartié(1 ciiash Ot.her: Dated: Mk , 2021 / V NaSSau. eW YOrk - BlWLh McCul iGCh FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 Kenneth McCulloch, M.D. , SPORTS 9 JO$NTS Board CertifiedOrthopaedic Surgeon Founder & Director July 1, 2021 TO: Dominick W. Lavelle Attorney at Law 100 Herricks Rd., Suite 201 Mineola, NY 11501 RE: Howell, Dayonna DATE OF ACCIDENT: November 12, 2017 Dear Sir/Madam, The is a narrative report the orthopedic evaluation and treatment ofthe above- following reviewing named patient. The patient was originally seen in my office at 110 Duane St., New York, NY 10007 on January 3, 2018 HISTORY: Ms. Howell is a 28-year-old female, who was in her usual state of health, until she was involved in a motor vehicle accident on November 12, 2017, resulting in multiple injuries, including to her left knee. She was asymptomatic prior to the accident in question. January 3, 2018. Ms. Howell presented to our office as a25-year-old, right-hand-dominant female, with injuries to her leftshoulder and both knees, including injuries to her neck and back, resulting from a motor vehicle accident on November 12, 2017, in which the patient was a restrained, front seat passenger. There was airbag deployment. The vehicle was totaled from the scene. She did have a previous injury to the left shoulder which was treated surgically and recovered well. Bilateral shoulder pain was 7/10 and increased with lifting,pushing, and pulling and overhead movement. Bilateral knee pain increased with stairs with an inability to squat or kneel and painful popping and clicking. On physical examination, the patient ambulated with an antalgic gait 60° pattern. Right shoulder forward elevation was to 100°, external rotation was to and internal rotation was to S1. There is tenderness over the anterior humeral head with a positive Neer's test, positive Hawkins test,pain with resisted external rotation and painful supraspinatus stress testand painful, positive, and weak O'Brien's test. Left shoulder forward elevation was to 120°, external 60° rotation was to and internal rotation was to L5. There is anterior humeral head tenderness. Positive Hawkins. Pain with resisted external rotation. Pain with supraspinatus stress testing. 80° Painful, positive O'Brien's test. Normal shoulder range of motion for reference is 180°, and T8, respectively. Bilateral knee range of motion was 0-130°. Normal is 0-150°. There was retropatellar tenderness greater in the left than the right. Positive swelling in the left knee. Bilaterally positive medial and lateral joint line tenderness to palpation with an equivocal McMurray's test. Assessment was right shoulder traumatic intrasubstance rotator cuff injury with Page 1 of4 FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 Kenneth McCulloch, M.D. ) SPORTS OINTS Board CertifiedOrthopaedic Surgeon Founder & Director possible SLAP tear, leftshoulder traumatic intrasubstance rotator cuff injury with possible SLAP tear and bilateral knee traumatic internal derangement with meniscal injury. MRI evaluation of the patient's bilateral shoulders and bilateral knees was ordered. We also recommended continuing with physical therapy, activity modification and local modalities. March 28, 2018. MRI evaluation of the left knee demonstrated oblique tear of the body and posterior horn of the medial meniscus with effusion. March 28, 2018. MRI evaluation of the right knee demonstrated oblique tear of the body of the medial meniscus with small popliteal cyst and moderate joint effusion. May 27, 2018. MRI evaluation of the right shoulder demonstrated partial thickness rotator cuff tear with long head biceps tenosynovitis. May 27, 2018. MRI evaluation of the left shoulder demonstrated posterior superior labral tear with rotator cuff tendinosis and joint effusion. April 25, 2018. Ms. Howell presented for follow-up evaluation as a 25-year-old female with ongoing bilateral knee pain that began with a motor vehicle accident in which she was involved on November 12, 2017. Left knee was worse than the right. She had also injured both shoulders in this accident but the MRIs for the shoulders were pending at this time. There is no change on examination. MR[ results of both knees were reviewed. Assessment was bilateral knee traumatic meniscus tearing for which we recommended continued conservative measures at this time including bracing, cortisone injection, icing, elevation, anti-inflammatories and continued physical therapy. Activity modification was also recommended. The corticosteroid injection was provided to the leftknee under sterile conditions consisting of 1% lidocaine and 40 mg of Depo-Medrol. May 21, 2018. Ms. Howell presented forfollow-up evaluation is a 25-year-old female with severe leftknee pain, 9/10, intermittently with aggressive activities with painful popping and clicking, instability on stairs, inability to squat or kneel, not improving with conservative measures since she was injured as a restrained front seat passenger in a motor vehicle accident on November 12, 2017. She had been provided a corticosteroid injection which provided only a few days of temporary relief. At thistime, the patient's leftknee pain was interfering and negatively impacting allof her activitics of daily living including work. She did wish to proceed with arthroscopic intervention. Right knee pain was 7/10. The patient also continued to have bilateral shoulder pain. Examination of the left knee demonstrated range of motion of 0-130°. Normal is 0-150°. Positive retropatellar tenderness to palpation and l÷ swelling. Lateral patellar tenderness. McMurray maneuver produced anxiety. She ambulated with a left antalgic gait pattern. We did discuss arthroscopic intervention for the leftknee and the patient wished to proceed. Risks, benefits, and recovery time were alldiscussed. May 30, 2018. Ms. Howell presented to our office for follow-up evaluation of her bilateral knees and bilateral shoulders. She was having some improvement in her shoulders. However, both knees, especially the left,continued to cause her symptoms. Once again, we discussed with the patient arthroscopic surgical intervention for the leftknee given her ongoing signiñcant pain and Page 2 of4 FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 Kenneth McCulloch, M.D. SPORTS O NTS Board CertifiedOrthopaedic Surgeon . Founder & Director lack of improvement with conservative measures. The risks, benefits, recovery time and postoperative course were all reviewed. June 14, 2018. Ms. Howell underwent surgical intervention for her left knee in the form of left knee arthroscopic partial lateral meniscectomy, arthroscopic synovectomy, and arthroscopic lysis of adhesions. Intraoperative findings included no evidence of articular damage or degeneration. Tearing of the lateralmeniscus was identified and surgically debrided back to a stable border. June 22, 2018. Ms. Howell presented for her first postoperative visitat approximately 8 days. She was utilizing a cane. She complained of pain and stiffness. She was utilizing ice at home. Her incisions were clean. Stitches were removed. There is expected postoperative swelling. Range of motion of the leftknee was 0-115°. She had an antalgic gait favoring the left side with a cane. She had decreased quadriceps strength. Physical therapy was initiated. August 6, 2018. Ms. Howell presented for her second postoperative visit at approximately 2 months. Pain level was 4/10. She self-reported 60% improvement as compared to preoperatively. Kneeling and squatting remained painful. Physical therapy was helping. She had pain with weather changes. On physical examination, the incisions were clean and well-healed. Range of motion ofthe leftknee was 0-125°. She continued to have decreased quadriceps strength. Physical therapy was continued. July 22, 2019. Ms. Howell presented to our office as a 26-year-old female who had sustained injury to her left knee on November 12, 2017, which required surgical intervention on June 14, 2018. The patient was involved in a second motor vehicle accident on June 2, 2019, again as a passenger, in which she felt acute onset of left knee pain. Her left knee had been improving postoperatively with an acute onset of symptoms related to the June 2 accident with painful popping, clicking, and cracking, inability to squat or kneel with random sharp pain in the knee. She was utilizing anti-inflammatories and pain medication. Pain level in the left knee was 7/10. On physical examination, she ambulated with a mildly left antalgic gaitpattern. Range of motion of left knee was 0-125°. She had medial and lateral joint line tenderness to palpation and retropatellar tenderness to palpation. We recommended continued physical anti- therapy, inflammatories, and activity modification. MRI was recommended, as well. May 14, 2021. Ms. Howell presented to our office as a 28-year-old female, who was in her usual state of health, until she was involved in a motor vehicle accident occurring on November 12, 2017, resulting in multiple injuries, including to her leftknee. She ultimately required surgical intervention for the leftknee which was performed on June 14, 2018. However, at the time of this visit she noted littleto no benefit with the arthroscopic procedure continued to have pain in the left knee with prolonged standing and walking. She complained of clicking in the front of the knee and pain with stairs. On physical examination, the left knee range of motion was 0-130°. Normal is 0-150°. She had mild joint line tenderness to palpation and positive retropatellar tenderness to palpation. We recommended symptomatic management with activity modification, local modalities, medical management, and periodic physical therapy. It was discussed with her that her residual symptoms are permanent. Page 3 of4 FILED: NEW YORK COUNTY CLERK 08/23/2021 02:45 PM INDEX NO. 156925/2018 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/23/2021 / Kenneth McCulloch, M.D. ) SPORÝS JOINTS Board Certified Orthopaedic Surgeon Founder & Director IMPRESSION: Ms. Howell continues to reveal evidence of unresolved injury to her left knee. Ms. Howell is status post-surgical intervention for her left knee, on June 14, 2018, in the form of left knee arthroscopic partial lateral meniscectomy, arthroscopic synovectomy and arthroscopic lysis of adhesions. Intraoperative findings included no evidence of articular damage or degeneration. Tearing of the lateral meniscus was identified and surgically debrided back to a stable border. Ms. Howell has a moderate impairment due to the injury sustained to her left knee. She is recommended to work in a sedentary capacity only. She is recommended to avoid activities such as prolonged standing, prolonged walking, heavy lifting, kneeling, squatting, climbing and exertion. It ismy opinion, within a reasonable degree of medical certainty that, based on the history as has been provided to me by the patient, areview of the medical records, physical examination findings, radiographic findings, and intraoperative findings, the injuries in question are directly causally related to the accident in which Ms. Howell was involved on November 12, 2017. It is also my opinion, within a reasonable degree of medical certainty, that Ms. Howell has sustained a permanent disability. As of her most recent visitto our office, Ms. Howell continued to have ongoing pain and loss of range of motion in the left knee. At this time, we have recommended continued symptomatic treatment with medical management, local modalities, activity modification and periodic physical therapy. We did discuss with the patient that her residual symptoms are permanent. She will require ongoing treatment indctinitely. My prognosis for Ms. Howell is guarded as she remains still substantially symptomatic and will have permanent restrictions on activity and will require ongoing and future treatment for her left knee. I, Kenneth McCulloch, being a physician duly licensed to practice in the State of New York, pursuant to CPLR Section 2106, hereby affirm under the penalties of perjury that the statements contained herein are true and accurate. I declare under the penalties of perjury that the information contained within this document was prepared and is the work product of the undersigned and is true to the best of my knowledge and information. Sincerely, Kennet 1 McCulloch. M.fL FAAOS Diplomate of the American Board of Orthopaedic Surgery Board Certified Orthopaedic Surgeon Page 4 of4
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Knox vs. Mohamud, et al.
Aug 22, 2024 |23CV-0202275
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Aug 19, 2024 |19CV03844
19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
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