Referee Rejects Compensation for Kidney in Divorce Case

New York Law Journal

Vesselin Mitev

February 26, 2009

A Long Island, N.Y., surgeon’s bid to seek $1.5 million for the kidney he donated to his estranged wife “not only runs afoul” of public policy, but may expose him to criminal prosecution, a Nassau County, N.Y., court referee ruled Wednesday.

“At its core, the defendant’s claim inappropriately equates human organs with commodities,” Referee A. Jeffrey Grob wrote in Batista v. Batista, Jr., 201931/05. Grob noted that while the term “marital property” is “elastic and expansive … its reach, in this Court’s view, does not stretch into the ether and embrace, in contravention of this State’s public policy, human tissues or organs.”

The four-year-old divorce case between vascular surgeon Richard J. Batista Jr. and his wife, Dawnell C. Batista, gained worldwide notoriety in January when Dr. Batista and his attorney, Garden City, N.Y.’s Dominick Barbara, held a press conference announcing their intentions to seek compensation for the organ. Barbara petitioned the court for a stay to produce an expert who could testify as to the value of the organ.

Dr. Batista, who donated the kidney in 2001, claims his wife has hindered his efforts to see the couple’s three children, a charge she denies. Ms. Batista’s kidney failed as a “direct result” of her three pregnancies and she filed for divorce in 2005, according to a press release issued by her attorney, Douglas R. Rothkopf of Garden City.

Dr. Batista’s application to put a price on the kidney violated state law, Grob held, citing Public Health Law §4307, which makes it a felony for “any person to knowingly acquire … for valuable consideration any human organ for use in human transplantation.”

Thus, Dr. Battista’s effort to pursue “monetary compensation” for the kidney, expressed in an affirmation by Barbara, “may expose the defendant to criminal prosecution.”

A spokesman for Nassau County District Attorney Kathleen M. Rice said the office has not received any complaint regarding the case and said any comment would be “premature.”

The referee rejected Dr. Battista’s request to call an expert witness to value the kidney. He said the application also lacked a “chronology of the efforts made to retain an expert … and the lack of specificity is compounded by the absence of documentary corroboration,” citing Winslow v. Pyramid Company/Aviation Mall, 248 AD2d 922.

But, Grob held, barring Dr. Batista from offering economic proof of the value of his organ gift does “not suggest that the sacrifices, magnanimity and devotion, which arguably and logically attend, are beyond the pale or lack relevancy.”

In a statement, Barbara called the ruling a “complete victory” for his client, as such proof would be taken into account in deciding the remaining issues at trial, he said.

The referee also declined to disqualify law guardian Jill C. Stone, an application predicated on “an apparent fundamental misconception of the proper role and function of an attorney appointed … to represent the interests of the children whose parents are embroiled in matrimonial litigation.”

Here, there was “no indication” Stone, of Bellmore, N.Y., had failed to diligently represent the children’s interests, engaged in intentional misconduct, or that a conflict of interest had developed, Grob wrote.

Stone did not return calls for comment.

The decision was “not a surprise to any right-thinking person,” Rothkopf said in an interview, lauding the ruling as “an excellent one.”

Rothkopf declined to comment further, only saying that the “facts will speak for themselves” at the upcoming divorce trial, also in front of Grob. The issues will be limited to division of the marital assets, maintenance and child support.

Supreme Court Justice Vito M. DeStefano is presiding over several related matters, including a contempt motion against Mr. Batista for allegedly failing to pay child support and whether to close the courtroom for the divorce trial if a media blackout would be in the best interests of the children.

Those requests are still pending.