Whitehurst v Gandy

[*1] Whitehurst v Gandy 2004 NY Slip Op 51882(U) Decided on September 16, 2004 Supreme Court, Oneida County Shaheen, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2004
Supreme Court, Oneida County

Mario Whitehurst and Jalisa Whitehurst, Infant(s), by their Parent and Natural Guardian, Celeste Collins, Plaintiff(s),

against

Charles E. Gandy, Marilyn Y. Gandy and Mario Bevivino, Defendant(s).



CA2002-002644



for Plaintiffs:Athari Law Office

Mo Athari, Esq., of counsel

258 Genesee Street, Suite 500

Utica, NY 13502

for Defendants Gandy:Mitchell, Goris, Stokes & Knych, LLC

Mark D. Goris, Esq., of counsel

5 Mill Street

P. O. Box 312

Cazenovia, NY 13035

for Defendant Bevivino:Allen, Johnson & Lonergan, LLP

Thomas J. Johnson, Esq., of counsel

Two Tower Place

P. O. Box 3585

Albany, NY 12203-0585

Anthony F. Shaheen, J.

Infant plaintiffs Mario and Jalisa Whitehurst, by their parent Celeste Collins, allege that between the years of 1989 and 1995 they were subjected to lead poisoning while they lived at five (5) different residences owned by these defendants and other defendants who are no longer in this case. As a result of this lead poisoning, plaintiffs allege they sustained neurological damage, diminished cognitive function and intelligence, irreversible brain damage, neuro-behavioral injuries, behavioral problems, development deficiencies, ADHD, learning disabilities, memory deficits, speech and language delays, and cognitive disturbances.

The County of Oneida was originally named as a party-defendant; however, by Order of this Court dated July 21, 2004, this action was dismissed as against the County pursuant to the holding in Pelaez v. Seide and County of Putnam (2 NY3d 186 [3-25-04]). Prior to that dismissal, the County had filed a motion seeking educational, employment and psychological records of the parents of these infant plaintiffs. Defendants Charles and Marilyn Gandy also filed a motion for disclosure of these records, adopting and incorporating the reasoning and rational and motion papers submitted by the County. The defendants seek discovery of these records in order to rule out genetic and environmental factors as a cause of these children's condition, relying on the affidavits of Robert J. McCaffrey, Ph.D. (which was part of Oneida County's motion). The plaintiffs oppose this motion and cross-move for a protective order to prevent the release of these records, relying on the affidavit of Rosita Kirshman, M.D.. The plaintiffs further assert that since Oneida County was dismissed from this action before its discovery motion was decided, the remaining defendants may not rely on Dr. McCaffrey's affidavit to support their discovery motions.

Initially, the Court will not preclude the defendants from relying on Dr. McCaffrey's affidavit, since these defendants specifically incorporated his affidavit into their motion for disclosure of these records before the County was dismissed from this case. The Court finds nothing improper in the defendants' continued use of Dr. McCaffrey's expert affidavit.

Turning to defendants' motions for disclosure of educational, employment and psychological records of the parents of the infant plaintiffs, such discovery determinations are discretionary and each request must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure (Andon v. 302-304 Mott Street Associates et al., 94 NY2d 740 [5-11-00]). CPLR §3101[a] entitles a party to full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. What is "material and necessary" is left to the sound discretion of the trial court and includes any facts bearing on the controversy which will assist in sharpening the issues and reducing delay; the test is one of usefulness and reason (Andon, id.). Absent an abuse of discretion as a matter of law, appellate courts will not disturb such determinations of the trial court. The Second [*2]Department has held that the New York City Housing Authority was entitled to academic records of the infant plaintiff's mother and siblings, as well as employment records of the infant plaintiff's mother, as well as an order permitting IQ testing of the mother, since this information was "likely to lead to the discovery of admissible or relevant evidence," although that Court ordered an in camera review of the academic records, since there may be some privileged information contained in those records (Anderson v. Seigel, 255 AD2d 409, 410 [11-16-98]). The Fourth Department denied disclosure of the academic records of an infant plaintiff's siblings in a lead-paint case, since the siblings did not share the infant plaintiff's neurological condition and the defendant failed to make any factual showing that the requested materials, which are confidential and private in nature, were relevant and material to the issue in controversy (Alexander v. Westminster Presbyterian Church et al., 267 AD2d 1102 [12-20-99]). The Second Department held in Montgomery v. Taylor (275 AD2d 698 [9-11-00]) that the defendant/landlord was entitled to the academic records of the infant plaintiff's siblings in a lead-paint case, since those records were "likely to lead to the discovery of admissible or relevant evidence." In Monica W. v. Milevoi (252 AD2d 260 [2-18-99]), the First Department held that infant plaintiffs who are seeking a recovery due to lead-paint exposure have necessarily placed their mental and physical conditions in issue and waived their privilege against disclosure of their medical records; however, the same cannot be said of their parents and siblings. The First Department held that such material from parents and siblings is privileged and cannot be defeated by a defendant merely asserting that it is material and necessary to the defense. In the Monica W. case, the defendant's demand was overbroad and the relevance had not been established; that is, the defendant presented no expert affidavit to show that the effects of lead exposure cannot be ascertained by looking to objective clinical criteria and expert testimony alone, and presented no proof to show how the information sought from the infant's parent pertains to any disability or developmental impairment of the infant plaintiff. Citing to Andon (id.), Alexander (id.), Anderson (id.), Montgomery (id.) and Monica W. (id.), the Third Department denied a defendant/landlord's request for medical and education records of an infant plaintiff's non-party siblings in a lead-paint case, because he had not made a sufficient factual showing of the relevance and materiality of those records to the case before that Court (Mele v. Travers, 293 AD2d 950 [4-25-02]).

The infant plaintiffs in this lead-paint case are alleging various damages, including diminished cognitive function and intelligence, behavior problems, hyperactivity, aggressiveness, speech and language delays, and irritability. The defendants have shown through Dr. McCaffrey's affidavit, the relevance and materiality of the parents' educational, employment and psychological records, relying on his experience and research and on very specific scientific and medical research, citing to specific articles and their authors. Dr. McCaffrey shows that the effects of lead exposure and the causal nexus to the infant [*3]plaintiffs' claimed disabilities cannot be ascertained by looking solely to objective clinical criteria and expert testimony, and explains how the information sought from the infant's parent pertains to the claimed disability or developmental impairment of the infant plaintiffs. The plaintiffs disagree with Dr. McCaffrey's findings, analysis and conclusions, and they submit an expert affidavit from Dr. Kirshman to support their position that there is no scientific basis for review of parental records. However, those objections will go to the weight to be accorded the testimony of the respective experts at trial.

On the motions before this Court, the defendants have only sought records from the infant plaintiffs' parents, not from any non-party siblings, and defendants have established, to this Court satisfaction, the relevance and materiality of those parental records. If there are any psychological records which Ms. Collins and Mr. Whitehurst are alleging to be privileged, then they should specifically identify those psychological records and the reason for claiming a privilege, and this Court will review those records in camera to determine whether they are indeed privileged.

For the reasons stated, defendants' motion for disclosure of the parents' educational, employment and psychological records is granted, and plaintiffs' motion for a protective order is denied, except to the extent that plaintiffs can specifically identify psychological records which are entitled to privilege; and as to those documents, plaintiffs shall submit those records to the Court within thirty (30) days with an explanation of the alleged privilege, and the Court will review the documents in camera and make a determination as to whether they are entitled to privileged-status.

This constitutes the Decision of the Court, and no costs are awarded to any party. Defense counsel is directed to submit a single proposed order, incorporating both motions, with this original Decision appended thereto, after submitting same to plaintiffs' counsel for approval as to form.

Dated: September 16, 2004

/s/ ANTHONY F. SHAHEEN ANTHONY F. SHAHEEN, J.S.C.