Koump v. Smith’s Empirical Analysis

Citation profile

3 district · 20 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 29 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““As a practical matter, a plaintiff or a defendant, who affirmatively asserts a mental or physical condition, must eventually waive the privilege to prove his case or his defense. To uphold the privilege would allow a party to use it as a sword rather than a shield. A party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition.” Koump v. Smith, 25 N.Y.2d 287, 294 , 250 N.E.2d 857, 861 , 303 N.Y.S.2d 858, 864 (1969).”

   2 later decisions quote this exact passage
   e.g. Gadeco, LLC v. Grynberg · Clark v. District Court, Second Judicial District, City & County of Denver

2. ““defendant’s physical condition at the time of the accident is ‘in controversy’ within the meaning of [the statute] and thus potentially subject to discovery. The information sought by plaintiffs, however — hospital records relating to defendant’s physical condition and blood alcohol content following the accident — indisputably falls within the scope of the physician-patient privilege as information acquired by a physician ‘in attending [defendant] in a professional capacity, and which was necessary to enable him to act in that capacity’ [Citation]. Defendant cannot be said to have waived the privilege simply by denying the allegations in the complaint or by testifying that she cannot remember any details of the incident where the fact of her memory loss is not being advanced to excuse her conduct [citation]. Nor has she waived the privilege by asserting the defenses of comparative negligence and the failure of plaintiffs to wear seat belts since neither defense seeks to excuse the conduct complained of by asserting a mental or physical condition. Moreover, the mere fact that the privilege presents an obstacle to plaintiffs’ discovery of legally pertinent information that would assist them in proving their claim is not, as the dissent seems to suggest, evidence that the privilege is not properly recognized in this case. Indeed, it is inherent in the very nature of an evidentiary privilege that it presents an obstacle to discovery and it is precisely in those situations where”

   1 later decision quote this exact passage
   e.g. 216 Ill. App. 3d 108 - Maxwell v. Hobart Corp.