Spierer v Bloomingdale's

[*1] Spierer v Bloomingdale's 2006 NY Slip Op 52606(U) [18 Misc 3d 1138(A)] Decided on October 26, 2006 Supreme Court, Bronx County Green, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 26, 2006
Supreme Court, Bronx County

Christopher Spierer, MARION SPIERER, Plaintiff,

against

Bloomingdale's, a Division of FEDERATED DEPARTMENT STORES, INC., BLOOMINGDALE'S FEDERATED DEPARTMENT STORES, INC., SIMMONS USA, STERNBERGER WAREHOUSE, LTD., STERNBERGER MOTOR CORP., MILTON GORIS DELIVER SERVICE, a /k/a MILTON GORIS DELIVERY SERVICE, INC., Defendant.



8024/87



Ian Anderson, Esq., Attorney for Plaintiffs

11 Park Place, Suire 600, New York, NY 10007;

Burke, Lipton, Puleo and Mc Carthy, Attorneys for Bloomingdales

10 Bank Street, Suite 1040, White Plains, NY 10606

Herzfeld and Rubin, P.C., Attorney's for Simmons

40 Wall Street, New York, NY 10005

Stanley Green, J.

The motion by plaintiffs for an order pursuant to CPLR §3101 prohibiting any forensic psychiatric examination of plaintiffs and striking defendants' designation of Dr. Terr to perform physical examinations of plaintiffs is denied. The cross-motions by Simmons and Bloomingdales for an order dismissing the complaint on the grounds that plaintiffs refused to attend court ordered medical examinations and imposing sanctions on plaintiffs' counsel are granted to the extent that plaintiffs shall appear for mental examinations by Dr. Tuckman within 45 days after service of a copy of this order with notice of entry or they are precluded from offering evidence at trial in support of their claims that they developed multiple chemical sensitivities as a result of defendants' negligence.

Plaintiffs commenced this action to recover damages for personal injuries they allegedly sustained in January 1984, as a result of exposure to toxic chemicals in bedding manufactured by Simmons and sold by Bloomingdales. Plaintiffs claim that after sleeping on the mattresses for several hours, they awakened with a burning sensation in their eyes, noses and throats and that [*2]they later developed headaches and rashes. They remained in the apartment for approximately two weeks, sleeping in the living room, then moved in with relatives in Brooklyn. They subsequently relocated to Florida.

Plaintiffs allege that defendants negligently caused and/or allowed several different chemicals to permeate and/or remain in the bedding, creating a toxic condition which caused them to suffer various injuries, including: (1) toxic poisoning; (2) chronic blood poisoning; (3) severe chemical irritation to eyes, nasal passages, mucous membranes and throat; (4) pulmonary irritation and heart palpitations; (5) loss of coordination; (6) bile gastritis and other digestive disorders; (7) rectal bleeding; (8) induced chemical sensitivity to environmental chemicals; (9) liver dysfunction; (10) induced weakening of the immune system; (11) headaches, dizziness, disorientation and vertigo; (12) pain in the joints; (13) peripheral neuropathy arthritis and poly arthritis; (14) chronic dermatitis, rashes, blistering skin and other skin problems; (15) onset of numbness in the fingers and muscular weakness; (16) temporary light sensitivity; (17) biochemical abnormalities; (18) severe metabolic disturbances; and (19) oxidative stress with anti-oxidant depletion; (20) severe anxiety and depression; (21) acute fear of the carcinogenic nature and permanent effects of the chemicals in question; (22) impairment of normal sexual desires; and (23) a loss of enjoyment in their physical relationship "as a direct consequence of the adverse psychological reactions and anxiety due to the carcinogenic nature of the involved chemicals."

This action was commenced in 1987. The parties conducted discovery, including physical examinations by Dr. Terr in 1994. However, after Bloomingdales filed for bankruptcy protection, the case was stayed for several years and was not restored to active status until 2004.By order dated June 5, 2006, plaintiffs were directed to appear for physical examinations by doctors designated by defendants within 20 days from entry of the order, within forty-five days of receipt of said designations. In a letter dated June 27, 2006, defendants designated Dr. Abba Terr, the allergist who had examined plaintiffs in 1994, and Dr. Alan Tuckman, a Neurologist-Psychiatrist, to perform examinations of plaintiffs. The letter advised plaintiffs' counsel that Dr. Terr would travel from his office in California to New York to conduct examinations of plaintiffs at an office in New York City and that Dr. Tuckman's evaluation, which would take place at his office in Pomona, New York, would require two sessions with each plaintiff as well as a written test.

On July 6, 2006, plaintiffs' counsel served a Notice Pursuant to CPLR §3122(a), objecting to the examinations by Dr. Terr based on a claim by Mrs. Spierer that she suffered a seizure-type symptom as a result Dr. Terr's examination in 1994 and on the ground that Dr. Terr is biased because he has previously opined that "Multiple Chemical Sensitivities" (MSC) is a "pseudo-illness" that is a product of a person's mind or imagination. Plaintiffs also objected to the proposed examinations by Dr. Tuckman on the ground that their mental health is not in controversy.

Defendants contend that there is no factual basis for plaintiff's claim that Dr. Terr caused harm to Mrs. Spierer and that mental examinations are proper because plaintiffs' mental health is in controversy. Defendants point out that Lloyd Roberts, who represented plaintiffs in 1994, was present during the examinations by Dr. Terr and that there was no report or correspondence indicating that Dr. Terr did anything improper. [*3]

Following oral argument of the motions on July 26, 2006, this court determined that there was no competent evidence that Dr. Terr caused Mrs. Spierer's symptoms and ordered plaintiffs to submit to physical examinations by Dr. Terr. The parties were directed to make reasonable arrangement for the examinations and the court was recently advised that the parties have resolved this aspect of the motion.

With respect to the psychiatric examinations, defendants contend that plaintiffs have placed their mental health in controversy by alleging that they sustained "severe anxiety and depression" and "acute fear of carcenogenic [sic] nature and permanent effects of the chemicals in question." They also point out that plaintiffs underwent psychological testing and evaluation. In support of the cross-motion, defendants submit: (1) the report of Dr. Rea, which shows that he referred plaintiffs to Dr. Nancy Didriksen, a psychologist, for an evaluation; (2) the report of Dr. Didriksen, which shows that on February 17, 2004, she administered numerous tests and conducted a "Clinical Interview and Mental Status Examination" of each plaintiff; (3) the report of Dr. Robbins, dated November 25, 2002, which indicates that plaintiffs suffer from, among other things, Multiple Chemical Sensitivities (MCS) and neuro-cognitive dysfunction; and (4) the report of Dr. Terr, who opines that plaintiffs suffer from no disease or medical condition that can be attributed to any chemicals associated with the mattresses and box springs and their symptoms correspond to a state of "chemical phobia" that is reinforced by the diagnosis of MCS applied to them by their physicians.

In accordance with this court's directive, defendants have also submitted an affidavit by Dr. Tuckman concerning the proposed mental examinations and plaintiffs have submitted additional affidavits in response.

Dr. Tuckman's affidavit shows that he intends to evaluate whether or not plaintiffs are suffering from a psychiatric disorder that is manifesting itself in the symptoms plaintiffs claim to experience upon exposure to perfumes, soaps, pesticides, cleaning products, industrial products and many of the common materials that people come into contact with.

Plaintiffs contend that employing a forensic psychiatric evaluation to assess the cause of disorders previously diagnosed by standard diagnostic tools is "grossly inappropriate" and unreliable and that such a diagnostic method is not generally accepted by health care professionals. Plaintiffs point out that Dr. Rea's report shows that he did not specifically diagnose them as suffering from MCS and that testing of plaintiff's skin, blood, liver enzymes, etc., revealed that both plaintiffs had been exposed to toxic chemicals.

In addition to the reports and affidavits by Dr. Rea, plaintiffs submit the reports and affidavit of Dr. Didriksen, which show that she examined plaintiffs for purposes of "evaluating the degree of neuro-toxic impairment exhibited by them as a result of prior chemical exposure" and that in her opinion, Dr. Tuckman's proposed forensic psychiatric evaluation of the Spierers using the MMPI-2 test is inappropriate and unreliable. Plaintiffs also submit the affidavit of Dr. Robbins, which indicates that he does not believe the proposed forensic psychiatric evaluations are a valid substitute for the standard diagnostic tools already employed to assess the cause of the plaintiff's conditions.

CPLR §3101(a) provides that, "[there] shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action." CPLR §3121 provides that after commencement of an action in which the mental or physical condition ... is in controversy, any [*4]party may serve notice on another party to submit to a physical, mental or blood examination..." Discovery devices are to be liberally construed to enable the parties to secure information which may prove necessary for the prosecution or defense of an action (Allen v. Crowell-Collier Pub. Co., 21 NY2d 403).

Although plaintiffs' mental capacity to bring this action is not in dispute, the nature and extent of plaintiffs' alleged injuries and whether they are causally related to plaintiffs' alleged exposure to the subject bedding is in dispute. The allegations of "severe anxiety and depression" and "acute fear of carcinogenic nature and permanent effects of the chemicals in question" are mental injuries, as opposed to physical injuries. This is evident not only from the fact that plaintiffs underwent testing and evaluation by a psychologist, Dr. Didriksen, but also from the fact that due to their alleged intolerance to perfumes, cleaning products, industrial products and many of the common materials that people come into contact with everyday, they live in an apartment with aluminum foil sealing their doorways and windows and reside, at times, in "outgassed" automobiles.

While both Dr. Rea and Dr. Didriksen state that the psychological examinations of plaintiffs were solely to determine the "degree of neurotoxic impairment," Dr. Tuckman's affidavit, which shows that physical disorders (such as rashes) often have a psychiatric cause, coupled with Dr. Terr's opinion that plaintiffs' symptoms correspond to a state of chemical phobia, are sufficient to demonstrate that mental examinations are likely to yield information that is material and necessary to the defense of this action. Accordingly, plaintiffs shall appear for psychiatric examinations by Dr. Tuckman, which shall be held within 45 days from the date of service of a copy of this order with notice of entry, or they are precluded from offering evidence of damages at trial.

This constitutes the decision and order of the court.

Dated: October 26, 2006_______________________________

STANLEY GREEN, J.S.C.