Adams v Rizzo
Annotate this CaseDecided on November 13, 2006
Supreme Court, Onondaga County
Susan Adams, as parent and natural guardian of Steffen Adams, an infant, Shane Adams and Justin Adams, Plaintiff,
against
David C. Rizzo, Vincent Scaravillo a/k/a Vincent Rizzo, Anthony Luttinger, Anthony T. Cifra and Mary C. Cifra, Defendants.
04-8469
For the Plaintiffs:
Athari & Nixon, LLP
By: James E. Nixon, Esq. of Counsel
For Defendants:
Burgio, Kita & Curvin
By: Steven P. Curvin, Esq. of Counsel for
for Defendants Rizzo and Scaravillo
Hancock & Estabrook, LLP
By: Walter L. Meagher, Esq.
Of Counsel for Defendant Luttinger
Edward D. Carni, J.
The defendants Rizzo and Scaravillo bring this motion pursuant to CPLR
§ 3124, CPLR § 3113(b), CPLR § 3104 and 22 NYCRR § 130-1.1 seeking an order compelling a "non-party" witness, Susan Adams, to appear and give testimony at a further deposition in regard [*2]to matters on which the witness was previously deposed but directed by counsel not to answer. [FN1] Moving defendants also seek an order appointing a Judicial Hearing Officer to supervise such follow-up deposition. Lastly, moving defendants seek an order imposing costs and sanctions on plaintiffs' counsel in the form of payment to the court for the expense for the Judicial Hearing Officer for supervision of said further deposition based upon the alleged frivolous conduct of plaintiffs' counsel at the earlier deposition of Susan Adams on January 3rd and 4th, 2006.
Defendants also move for an order pursuant to 22 NYCRR § 202.17[j] relieving them from compliance with plaintiffs' § 202.17(a) notice for physical examination.
Summary of the Court's Holding
As discussed at length herein, the court finds in this case that defendants have made a sufficient showing of the materiality and relevance of the subject matter about which they seek to further depose the infant plaintiffs' mother, Susan Adams, in this lead paint personal injury action. Defendants have submitted competent expert opinion, supported by authoritative treatises and studies (copies of which are annexed to the expert's affidavit) which demonstrate a sufficient scientific basis for the defendants to pursue the areas of deposition questioning at issue.
Plaintiffs have not demonstrated the application of any evidentiary privilege to the subject matter at hand. Plaintiffs have not competently challenged or rebutted defendants' showing through the application of any evidentiary privilege or with expert opinion disputing the medical relevance of the subject areas of deposition questioning sought by defendants. Defendants have made a sufficient showing of a medical, scientific and fact based need to depose Susan Adams notwithstanding the alleged "private" or "confidential" nature of the subject matter at issue.
The court has undertaken an extensive review and study of the statutes, decisional law and exhibits submitted by plaintiffs' counsel in opposition to what plaintiffs' counsel characterizes as simple and settled legal issues. The court, however, finds that the legal, scientific and medical bodies of knowledge involved in lead paint litigation and discovery present complex issues for the court's resolution. The court's lengthy decision attests to those complexities, necessitated in large part by plaintiffs' counsel's misleading and obfuscatory analysis of decisional law, statutory authority and the relative burdens of proof of the parties on numerous issues.
Untangling the Gordian knot of lead exposure specific injury causation presents a complex and wide reaching examination of numerous medical, scientific, socioeconomic and environmental variables. This examination is not subject to conclusory, superficial or artificial [*3]restriction on the scope of information that may be necessary for careful and just resolution by a jury.
Plaintiffs' counsel's conduct at the prior deposition of Susan Adams was obstructive and unprofessional which in turn resulted in an improper frustration of defendants' attempts to conduct discovery of information material and necessary to the defense of the injury and damage claims embraced within plaintiffs' pleadings. Accordingly, the undersigned will attend and preside over the further deposition of Susan Adams by defense counsel.
Because plaintiffs have failed to provide defendants with the type of records required in § 202.17(b)(1), defendants are relieved at this juncture from compliance with plaintiffs' § 202.17(a) notice.
Factual Background
This is an action for personal injuries allegedly sustained by the plaintiffs herein as a result of purported exposure to lead-based paint at premises owned by the moving defendants. Susan Adams is the plaintiffs' mother and she has commenced this action in her representative capacity as parent and natural guardian of Steffen Adams, an infant. The other plaintiffs, Shane Adams and Justin Adams, also the children of Susan Adams, have reached the age of majority.
In the Bills of Particulars verified by plaintiffs' counsel, the plaintiffs Shane Adams and Justin Adams allege multiple neurological, cognitive function, neuro-behavioral, developmental and psychological injuries including neurological damage, brain damage and Attention Deficit Hyperactive Disorder (ADHD) as a result of exposure to lead while residing at the defendants' premises. Significantly, the plaintiffs' Complaint alleges lead paint exposure during three (3) different time periods at three (3) different residential leasehold premises. Defendants Rizzo and Scaravillo were owners of premises known as 212 Seward Street at which plaintiffs resided between 1988 to 1990. The Cifra defendants owned 302 Mildred Avenue at which plaintiffs resided from 1991 to 1992. [FN2] Defendant Luttinger owned 501 John Street at which plaintiffs resided from 1990 to 1991. The allegations of injury advanced by Susan Adams on behalf of Steffen Adams are verbatim identical to those of Shane and Justin.
Susan Adams was first deposed on January 3, 2006. This deposition was continued on January 4, 2006. Upon commencement of this deposition, counsel for all parties stipulated, as is the custom and practice in this district, that all objections except those as to form were reserved until the time of trial and that the deposition would be held pursuant to the provisions of the Civil Practice Law and Rules. At the beginning of this deposition, plaintiffs' counsel, James Nixon, Esq., made certain pronouncements and imposed significant unilateral limitations on the scope of the questioning he would permit Susan Adams to answer. Almost immediately, Mr. Nixon undertook a course of conduct at the deposition whereby he restricted the witness from [*4]answering questions, made demands for production of records supporting the questioning counsel's "good faith" and otherwise engaged in conduct that, in this court's view, as discussed further herein, severely limited and unfairly and improperly obstructed the defendants' ability to conduct the deposition.
As a result, defendants brought this motion and, at the direction of the court, the issues and subject areas about which the defendants seek a further deposition have been narrowed and clarified by the parties.
Legal Analysis
CPLR § 3101(a) entitles parties 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 lower courts and includes "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Andon v 302-304 Mott Street, 94 NY2d 740, 746 [2000]).
In Andon, the Court of Appeals clarified the law in the area of discovery in lead- paint personal injury actions. The Andon court emphasized that in such cases, discovery determinations are discretionary; each request must be evaluated on a case by case basis with due regard for the strong policy supporting open disclosure. Moreover, the Andon court specifically rejected the plaintiff's claim that there was a "blanket rule" prohibiting certain types of discovery in lead-paint personal injury actions. The Andon court also noted that to the extent defendants relied upon cases permitting certain forms of discovery in lead-paint personal injury cases, (see, E.G. Anderson v Segal, 255 AD2d 409; Salkey v Mott, 237 AD2d 504), such reliance was misplaced in that each such request must be evaluated on a case by case basis.
In evaluating a discovery request in this context, and recognizing New York's policy favoring open disclosure as a means for discovering the truth, this court must consider defendants' need for the information requested against its possible relevance, the burden of subjecting Susan Adams to the disclosure and the potential for unfettered litigation on collateral issues. The court must evaluate competing interests and conduct a discretionary balancing of those interests (Andon v 302-304 Mott Street, 94 NY2d at 745-747).
It is significant to the analysis at hand that defendants are not seeking at this juncture the production of any of Susan Adams' medical, educational, psychological or social services records. The discovery presently at issue relates solely to the deposition questioning of Susan Adams.
In this case, the areas which defendants seek to conduct further deposition, and about which plaintiffs' counsel directed the witness not to answer, include, inter alia, the following:
1.Past history of any head trauma, striking or choking of one [*5]
or more of the plaintiffs;
2.The factual history of one or more of the plaintiffs insofar
as it relates to the development and continued existence
of asthma;
3.The factual history of a documented incident of possible
carbon monoxide poisoning of one or more of the plaintiffs;
4.The factual history of a documented incident of a past
exposure of one or more of the plaintiffs to chemicals involved
in photography;
5.Factors related to the development and cause of Attention Deficit Hyperactivity Disorder (ADHD) identified by the plaintiffs in their
Bills of Particulars as having been caused by the alleged lead
poisoning at defendants' premises;
6.The identification and factual history of Susan Adams as
"learning disabled" during her public school education;
7.Factual information relating to the witness's participation in
social services programs and in particular, rental assistance
programs at the premises where the alleged lead paint exposure occurred.
It is important to note that the court reviews these requests in the context of pretrial discovery. The standard for review of the discovery sought from Susan Adams, a non-party, is distinct from and not the equivalent of the defendants' burden, if any, at trial or upon a summary judgment motion. [FN3] [*6]
For example, in Walton v Albany Community Development Agency, 279 AD2d 93 [3rd Dept 2001], the defendants in a lead-paint injury case failed to meet their burden of making out a prima facie case for summary judgment where their experts affirmatively failed to exclude causal connections between lead exposure and other health conditions and simply minimized, but did not exclude, the causal role of the children's exposure to lead in the development of the alleged cognitive and neurological damage. [FN4]
Although the Walton court denied defendant's motion for summary judgment, it also noted that the expert evidence presented by defendants was relevant on the issue of damages notwithstanding that it failed in the summary judgment context to eliminate questions of fact as to whether the children sustained causally-related injuries from lead poisoning (Walton, 279 AD2d 93).
In this case, it is significant to note that the defendants are not at this time seeking the production of records which could be characterized as "confidential" and of a "private nature" (see, Ward v County of Oneida, 19 AD3d 1108 [4th Dept 2005]). In the Ward case the court held that "Defendants fail to make any factual showing that those records are relevant and material to the injuries sustained by plaintiffs and the court therefore erred in compelling their production" (Emphasis supplied).
Rather, the central focus of this motion is the nature and scope of certain areas of deposition questioning advanced by defense counsel and prohibited or obstructed by plaintiffs' counsel. However, because plaintiffs' counsel argues that the questioning should not be permitted because the records are "forbidden" and "out of bounds" (See, Athari Affirmation of 4/13/06 at Paragraph 7), the court addresses not only the deposition questioning but the potential discoverability of various documents and [*7]records as well. [FN5]
Generally a witness may not refuse to answer questions regarding matters of fact, such as those posed in this case, as to whether his or her children had any physical or congenital problems merely because those topics may relate to events that required medical care or advice from a physician (Monica W. v Milevoi, 252 AD2d 260 [1st Dept 1999]). In Monica v Milevoi, the court denied defendants' discovery of siblings' developmental and academic histories notwithstanding that defendants claimed that it may lead to the discovery of admissible evidence relevant to whether the infant plaintiff's condition was the result of a genetic disorder or some environmental factor other than lead. In so holding, however, the Monica W. court stated:
"Nor have defendants shown how the information sought to be
elicited at an examination before trial of the adult plaintiff pertains
to any disability or developmental impairment experienced by the
infant plaintiffs."
****
"Defendants have not established that the line of inquiry they seek
to pursue will avail them of any useful information relevant to the
cause of the infant plaintiff's impairment." (Emphasis provided).
The situation before this court is in marked contrast to those situations where courts have denied defendants certain types of discovery in lead poisoning cases. [FN6] [*8]
Here, defendants have submitted the expert affidavit of Margaret W. Paroski, M.D. Dr. Paroski is board certified in psychiatry and neurology and is licensed in the State of New York as a medical doctor. She presently serves as a professor of neurology at the SUNY at Buffalo School of Medicine and Biomedical Sciences. Dr. Paroski has an extensive and accomplished resume reflecting a wide variety of experiences, training, post-graduate education, teaching and publication.
Dr. Paroski has undertaken a study of the materiality and relevancy, from a medical point of view, concerning the questions posed to Susan Adams by defense counsel relating to the above identified areas. Dr. Paroski describes her review as addressing the issues of whether:
". . . certain questions posed to Susan Adams, whom I understand to
be the mother of the plaintiffs herein, might provide information
relevant to the potential causes of neurological damage, diminished
cognitive function and intelligence, brain damage, neuro-behavioral injuries, behavioral problems, mental and developmental impairments, decreased educational and employment opportunities, learning disabilities, memory deficits, speech and language delays, deficits in speech andlanguage processing, concentration and cognitive disturbances, irritability, memory language perception deficits, construction attention deficits,
speed of thought processing deficits, deficits in speech intelligibility,
severe articulation disorder and deficits in language skills such as that
being claimed by each of the plaintiffs herein as detailed in the plaintiffs' Bill of Particulars which I understand is attached to the September 24, 2006 affidavit of Steven P. Curvin, Esq."
Specifically, Dr. Paroski's opinion was also sought concerning whether information from plaintiffs' mother would be medically relevant as a potential cause of the injuries detailed in the plaintiffs' Bills of Particulars. The areas of inquiry include:
the mother's factual knowledge concerning her educational background and any learning disability that she may have; the striking of one or more of the plaintiffs in the head resulting in head trauma; the choking of one or more of the plaintiffs resulting in anoxia; the preexisting condition of asthma in one or more of the plaintiffs; exposure to carbon monoxide and poisoning; and exposure to certain chemicals involved in photo developing, all of which, according to Dr. Paroski, may be medically relevant as a potential cause of some of the injuries detailed in the plaintiffs' Bills of Particulars. [FN7]
[*9]
Thus, the task for the court is, following the guidance of Andon v 302-304 Mott St. Assocs., to determine whether in this case defendants have made a sufficient factual showing of the possible relevance of the information sought and the need for such discovery when weighed against any special burden to be borne by the opposing party.
The court begins this analysis with a consideration of the guidance provided by Andon.
Plaintiffs' Analysis of Andon v 302-304 Mott St. Assocs., 94 NY2d 740 (2000)
In analyzing the application of Andon to the issue at hand, plaintiffs' counsel states as follows:
"10.Then came the Seminole [sic] case of Andon v 302-304 Mott St.
Assocs, 94 NY2d 740 (2000) where the Court of Appeals
affirmed the First Department's denial of access to such information. According to Andon, in order to succeed on such a tenuous
request, defendants must overcome three separate and discrete
hurdles: (1) they must show that the material requested from non-
parties whom have not placed their mental or physical condition
in issue are not protected by statutory or common law privileges
and confidentiality barriers; (2) they must show that the material requested will be able to "scientifically" prove what it is intended
to prove and methodologically be verifiable and cross-examinable;
and (3) they must show that the material requested will sharpen the issues and reduce delay and prolixity." (See, Athari Affirmation
dated April 13, 2006 at ¶ 10)(Emphasis in original).
The court finds that plaintiffs' analysis of Andon is flawed. Plaintiffs' analysis adds terms and burdens not mentioned in the Andon decision and skews the Andon holding to create an unreasonable and unfair burden upon defendants in lead paint discovery disputes.
Initially, the characterization of the defendants' discovery requests in Andon as "tenuous" is misleading. The Andon court never used this term and there is nothing in the Andon decision to suggest that the defendants' discovery request was, in and of itself, "tenuous".
Secondly, the Andon court never used the term "privileged" in the decision and, contrary to plaintiffs' assertion that Andon addressed defendants' burden of overcoming [*10]"confidentiality barriers", Andon specifically stated that:
"IQ results, while not confidential, are private." (Andon, 94
NY2d at 747)(Emphasis supplied).
Thirdly, and most importantly, Andon never used the phrase "scientifically prove what it is intended to prove". Andon never used the terms "methodologically", "verifiable" or "cross-examinable." Rather, the genesis of these terms is plaintiffs' attempt to insert requirements and burdens into the lead paint discovery analysis that do not exist in Andon. Essentially, with this construction of Andon, plaintiffs are attempting to insert a Frye trial admissibility standard into the pretrial discovery analysis in lead paint cases. [FN8] Plaintiffs are attempting to create a heightened and insurmountable pre-discovery relevancy and admissibility burden of proof upon defendants where none exists in Andon or elsewhere.
In the passage quoted above, plaintiffs' counsel asserts that the discovery materials sought may be protected by "common law privileges." This is an incorrect statement of the law of privilege in New York. Although limited common law privileges are recognized in New York, there is no common law privilege which could conceivably apply to the type of information sought from Susan Adams in this and similar lead paint actions.
By way of example, New York does recognize a common-law public interest privilege in certain official confidential information in the care and custody of governmental entities. This privilege permits appropriate parties to protect information from ordinary disclosure, as an exception to liberal discovery rubrics (see, Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). Specifically this privilege envelopes confidential communications between public officers, and to public officers, in the performance of their duties, where the public interest requires that such confidential communications or the sources should not be divulged (World Trade Center Litig., 93 NY2d 1, 8 [1999]).
The identity of confidential informants in the criminal context is also enveloped with a "common-law privilege" from disclosure (Prince, Richardson on Evidence, § 5-803 at 306, [Farrell, 11th ed.]). However, even this common law privilege may give way to disclosure upon a sufficient showing made by defendant (People v Pena, 37 NY2d 642, 644 [1975]["However, as with most privileges, there are limitations."]).
The common law also recognizes the importance of trade secret information and [*11]the public benefit flowing from its protection (Mtr. Of NY Tel. Co. v PSC, 56 NY2d 213 [1982]).
In considering all of the foregoing, it is clear that there are no "common law privileges" that would prohibit disclosure of the information at issue in this motion or of family educational information in a lead paint personal injury case. The use of the term "privilege" in an inappropriate and indiscriminate fashion only serves to confuse and misdirect a court from a proper and focused analysis.
Notwithstanding plaintiffs' misconstruction, in this court's view, a fair reading of the Andon decision reveals the following:
1.There is no "blanket prohibition" - as a matter of law - against
discovery of maternal IQ in all lead-paint cases.
2.The defendant's expert affidavit in Andon, upon which defendant's request was based, was simply insufficient in that it failed to identify
or attach scientific literature upon which it relied.
3.Based upon the defendant's deficient expert affidavit, the Court of
Appeals held that the First Department in Andon was within its
discretion in determining that the information sought was speculative
and would delay the proceedings by turning the fact-finding process
into a series of mini-trials. [FN9]
4.The Court of Appeals did not find maternal IQ or any particular
areas of discovery to be "forbidden" or "out of bounds." Instead,
the Court of Appeals held that the Appellate Division, First
Department, appropriately evaluated defendant's request in light
of the evidence presented to it.
Plaintiffs also rely upon a series of cases which prohibited discovery of non-party siblings' academic records. However, rather than determining that these records were "forbidden", the Fourth Department held that "defendants failed to make any factual showing" that the requested materials were relevant and material (Alexander v Westminister Presbyterian Church, 267 AD2d 1102 [4th Dept 1999])(Emphasis supplied). [*12]
In McGuane v MCA, 182 AD2d 1081 [4th Dept 1992], the Fourth Department stated, "Defendants failed to show factually that the requested materials have any relevancy to this case." [FN10] (Emphasis supplied).
In Ward v County of Oneida, 19 AD3d 1108 [4th Dept 2005], the Fourth Department again stated: "Defendants failed to make any factual showing that those records are relevant and material to the inquiries sustained by plaintiffs" (Emphasis supplied). Additionally, in making this determination, the Fourth Department cited Andon, recognizing that a sufficient factual showing of relevancy and materiality to the injuries alleged by the plaintiffs would allow for discovery of the parents' educational records.
Causation and Proof of Damages and Disabilities in a Lead Paint Personal Injury Action
Initially, the primary focus of the issues before the court at this time deal with the nature and scope of the injuries claimed by plaintiffs and defendants' attempts to conduct discovery in furtherance of defending or minimizing these damage issues. Causation, within the negligence analysis, is not the predominate issue at hand. [FN11] Causation, in the sense of which of plaintiffs' claimed injuries and disabilities were proximately caused by the lead paint exposure, is the central focus at this juncture.
This court is mindful that it is well established that lead-based paint exposure presents a serious potential health hazard to children (See, Center for Disease Control and Prevention, Screening Young Children for Lead Poisoning: Guidance for State and Local Public Health Officials, at 13, Nov. 1997);(Juarez v Wavecrest Management Team, Ltd., 88 NY2d 628 [1996] [partial summary judgment for plaintiff on the issue of liability only]). [*13]
The court is also mindful that the Third Department has stated that "lead poisoning itself is an actionable injury" (Wynn v Tripp, 296 AD2d 176, 184 [3rd Dept 2002]). However, the observation that lead poisoning (an elevated blood lead level greater than or equal to 10 mcg/dl [Public Health Law § 1370 (6); see, 10 NYCRR 67-1.1[d]) is an "actionable injury" in itself does not give rise to the grand logical and evidentiary leap that every developmental, behavioral or neuropsychological problem experienced by a plaintiff has been proximately caused by a prior lead paint exposure.
In this regard, the court notes that plaintiffs' counsel, Mo Athari, Esq. submitted an affirmation dated April 5, 2006 annexed to which was a publication from the Centers for Disease Control and Prevention dated March 2002 from the Advisory Committee on Childhood Lead Poisoning Prevention entitled "Managing Elevated Blood Lead Levels Among Young Children" (See, Athari Affirmation at Exhibit G). In Chapter 5, Developmental Assessment and Interventions, the authors discuss the variability in neurodevelopmental problems between different children with a given EBLL and conclude: "This suggests that not all children with a given BLL should be considered at equivalent neurodevelopmental risk. In other words, an EBLL should be viewed as a risk factor for neurodevelopmental problems, not a diagnosis." (Id. at pg. 82) (Emphasis supplied).
This information from the plaintiffs' submissions is harmonious with the court's analysis of the plaintiffs' burden of proof and the areas of discovery available to the defense. Establishing elevated lead blood levels is not the end of the inquiry insofar as plaintiffs' burden of proof on the issue of damages and disabilities claimed (an EBLL is a "risk factor" for neurodevelopmental problems, "not a diagnosis").
Here, an EBLL establishes "an injury" (acute lead poisoning) but does not establish the universe of sequelae that may be associated with an EBLL. Rather, the plaintiffs continue to have the burden of proof on the issue of damages and the defense is entitled to pursue and submit evidence on the issue of the proximate cause of claimed sequelae flowing from the EBLL (see, e.g. Walton v Albany Dev. Agency, 279 AD2d 93, 97 [3rd Dept 2001] [Defendant's expert evidence submitted on the issue of whether the children sustained causally related injuries relevant on the issue of damages]).[FN12] [*14]
In Hill v City of New York, 201 AD2d 329 [1st Dept 1994], the First Department upheld a jury verdict in favor of the landlord defendants on the issue of whether the infant plaintiff's neurodevelopmental deficits were caused by the ingestion of lead paint chips at defendant's premises. In unanimously affirming the jury verdict, the First Department stated:
"A reasonable view of the evidence supports the conclusion that
the infant plaintiff's retardation was not caused by her claimed ingestion
of lead paint chips present in apartments owned and managed by
defendants (See, Hudes v 255 W. 98th St. Co., 162 AD2d 197, 198,
citing Derdiarian v Felix Cont. Corp., 58 NY2d 308, 315), including
evidence that the child was a high risk baby who was born with
meconium on her face and required antibiotics to ward off possible
meningitis, that she sustained a head injury at age 26 months when
struck by a swing, that she had been physically abused, and that
congenital or hereditary factors might also have affected her
condition. The record presents no reason to disturb the jury's
resolution of disputed facts in favor of defendants (supra)." (Hill v
City of New York, 201 AD2d 329)(Emphasis supplied).
In Stoves v City of New York, 293 AD2d 666 [2nd Dept 2002], a jury verdict in favor of an infant plaintiff in a lead paint case was upheld notwithstanding the defendant's trial evidence on the issue of injury causation. In Stove, the Second Department held:
"The defendant's presentation of evidence contrary to the opinions of
the infant plaintiff's experts merely raised issues of fact for the jury to
resolve.
***
In addition, the infant plaintiff's experts rendered the other possible
causes of the injuries sufficiently remote so as to enable the trier of
fact to reach a conclusion based upon the logical inferences to be
drawn from the evidence, and not upon speculation' (Babino v City
of New York, 234 AD2d 241, 242)." (Stove v City of New York, 293
AD2d at 667-668).
Taken together, Hill and Stove demonstrate that in lead paint personal injury [*15]cases, after the plaintiff makes out a prima facie case of specific causation, and when the defense makes a sufficient factual showing and is given an opportunity to conduct appropriate and meaningful discovery on injury causation, the issue of whether lead exposure at a defendant's premises actually caused the plaintiff's injuries can and should be placed before a jury - with varying results.
Plaintiffs have the burden of proving defendants' negligence and the damages
(personal injuries) caused by defendants' negligence (See, PJI 1:23, Burden of Proof). Plaintiff also has the burden of proving that the claimed injuries were proximately caused by defendants' negligence (See, PJI 2:70, Proximate Cause)("An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury, that is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury").
Contrary to plaintiffs' position, a defendant always has the opportunity to submit competent evidence that a particular injury was not caused by his negligent conduct (see, e.g., Bocci v Turkowitz, 255 AD2d 476 [2nd Dept 1998][Plaintiff failed to raise issue of fact after defendant made sufficient evidentiary showing that disc bulge was not caused by motor vehicle accident]).
In this regard, it is highly noteworthy that amongst the voluminous medical and educational records of the three plaintiffs disclosed by plaintiffs' counsel, there is not one opinion from a treating physician, psychologist, social worker or other professional that has identified lead poisoning as a substantial factor in the causation of any of the neurological, cognitive or behavioral deficits or syndromes alleged by the plaintiffs. In other words, as the record appears to the court at this juncture, the only persons that have correlated the plaintiffs' alleged injuries to lead exposure are Susan Adams, the plaintiffs and their attorneys.
Plaintiffs' counsel's approach to plaintiffs' burden of proof and causation, together with the obstruction of every attempt by defendants to pursue fact-based areas of deposition questioning on the potential causes of plaintiffs' alleged injuries, presents this court with a situation that the court finds to be fundamentally unfair.
Under plaintiffs' approach, the only way a defendant could ever pursue the lines of inquiry at issue would be, prior to depositions, retain an expert who provided essentially abstract opinions (shy of the facts that could only be obtained from the deposition) about the cause of the plaintiff's injuries apart from lead exposure.
The obvious problem with this approach is that the answers to the deposition questions are necessary to provide a sufficient factual basis to support expert analysis and opinion.
On the one hand, plaintiffs argue that defendants have not made a sufficient showing. On the other hand, plaintiffs' counsel directs witnesses not to answer [*16]questions that a qualified expert has opined could lead to information that could provide a sufficient factual basis for expert opinion favorable to the defense. Put simply, plaintiffs want to shut down discovery and preclude any reasonable examination into the cause of the plaintiffs' alleged cognitive, behavioral and neurodevelopmental injuries. Plaintiffs have essentially taken the position that once an elevated blood level is established, all that is left is assigning a dollar value to the universe of alleged injuries.
This analysis is fundamentally unfair, disregards plaintiffs' burden of proof and fails to recognize the multitude of causes (genetic, environmental, socioeconomic and traumatic) that can be the cause of cognitive deficits, behavioral abnormalities and learning disabilities.
Plaintiffs want to prevent the jury from being presented with what defendants' expert has opined and plaintiffs' own submissions demonstrate to be legitimate and scientifically recognized causes of these conditions, independent of lead poisoning, so as to create an unrebuttable presumption that lead paint exposure caused all of these conditions and deficits alleged to exist in the plaintiffs.
Remarkably, plaintiffs continue to adhere to this position notwithstanding presently undisputed evidence in this record that one or more of the plaintiffs may have sustained significant head trauma, carbon monoxide or other chemical exposure or have been born to a mother with learning disabilities. The record before the court is replete with references that indicate that during childhood and adolescence, the plaintiffs may have been exposed to or the subject of substance abuse, domestic violence, socioeconomic disadvantages and numerous environmental threats and insults. Plaintiffs have not attempted to address the proposition that the alleged ADHD and similar neurological and developmental deficits in these plaintiffs could have been caused by other variables beyond elevated blood lead levels.
Quite simply, plaintiffs have provided no evidence that every exposure to lead or every measured EBLL automatically and unfailingly results in the universe of neurodevelopmental injuries at issue herein.
Plaintiffs' task is to prove by a preponderance of the evidence that exposure to lead at the Rizzo-Scaravillo premises and the resulting EBLL's was a substantial factor in causing their alleged injuries (PJI 2:70). That showing, need not however, be made with absolute certitude nor exclude every other possible cause of injury. Rather, the proof must render those other causes sufficiently "remote" or "technical" to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence (1A NYPJI3d 2:70, at 369-370 [2006]).
However, in this court's view, something much more than historical EBLL's and the allegations in a Bill of Particulars verified by an attorney is required to make that case and effectively and artificially impose a unilateral discovery blackout on defendants' ability to explore and fairly present a defense. [*17]
Plaintiffs argue that in lead poisoning personal injury actions, "causation is a simple task" and "the injury is lead poisoning" (See, Athari Affirmation dated 4/5/06 at ¶9). According to plaintiffs:
"...once actual or constructive notice is shown (a very simple five
prong test), the proof becomes simple." (Id. at ¶ 7).
Judging from these statements and comments made by plaintiffs' counsel during depositions and at oral argument, it appears that plaintiffs hold the view that once constructive or actual notice is established together with "elevated blood lead levels" any and all injuries, disabilities, syndromes or cognitive-intellectual-behavioral problems are exclusively and dispositively linked to lead exposure and the defense is foreclosed from discovery on the issue of damages and neurodevelopmental problem causation. This court disagrees.
The issue is not resolved by the simplistic or conclusory assertion that "... there have been over a thousand studies and articles confirming the effects of lead poisoning on young children." (Athari Affidavit dated April 5, 2006 at ¶ 16). The issue is not that other children have been injured by lead exposure or that lead is generally recognized as a health hazard or "associated" with various neurodevelopmental injuries in other children. Plaintiffs appear to ignore, as if it did not exist, their burden of proving that exposure to lead at defendants' premises and the measured EBLL's were in fact a substantial factor in causing each and every injury alleged in the Bill of Particulars to these plaintiffs. There is a substantial difference between a finding that a toxic substance "can cause" a particular illness and proof that a toxic substance did cause a particular injury in a particular person.
In fact, the March 2002 CDC materials relied upon so extensively by plaintiffs herein indicate that parental intelligence and social class account for a much larger outcome variance than lead exposure in neurodevelopmental status (Id. at pg. 83). Moreover, other factors might help children to weather the potential developmental insult of early lead exposure, either preventing neurodevelopmental effects from being expressed or facilitating recovery of function (Id. at pg. 84). In other words, plaintiffs' own submissions demonstrate that there are children exposed to lead that do not develop or manifest the neurodevelopmental injuries alleged herein. The generally accepted view that lead is a health hazard and may have an association with the alleged injuries does not equate with prima facie proof that lead exposure was a substantial factor in causing the injuries alleged herein to these plaintiffs. [FN13] [*18]
In this lead paint exposure personal injury action plaintiffs have the burden of proving: 1) the plaintiffs' exposure to lead; 2) general causation, which is proof that the toxin in question (lead) can in fact cause the illness (the dose-response relationship); and 3) specific causation - meaning the likelihood that plaintiffs' illness was caused by lead, including eliminating other potential causes of the disease (see, Parks v Mobil Oil Corp., ____ NY3d ___, 2006 WL 2945397 [NY3 October 17, 2006]). That burden is not satisfied by the simple assertion that lead poisoning is associated with and has, can or may cause various neurodevelopmental injuries in other children.
Contrary to plaintiffs' theory, the court finds that the defense does not "misunderstand the injury" (See, Athari Affirmation at ¶ 14). Plaintiffs claim lead poisoning sequelae including cognitive deficits, brain damage, learning disabilities, loss of intelligence and behavioral deficits. To the extent that plaintiffs assert that these sequelae are dispositively established simply by showing that the children had EBLL readings misunderstands the plaintiffs' burden of proof and the potential defenses available to the defendants at this stage of the litigation.
Private, Privileged and Confidential Information
In this case, the terms "privileged", "confidential" and "private" are frequently utilized, often casually and interchangeably, to describe information, records or testimony that is presumed or asserted to be free from disclosure under CPLR Article 31. Plaintiffs allege that certain areas of discovery are "forbidden" in lead paint personal injury actions (See, Athari Affirmation dated April 13, 2006 at pg. 3).
This court is of the view that there are significant and legally dispositive differences between these terms and their casual and indiscriminate use and misuse has led to substantial confusion and misapplication by litigants. With this in mind, this court has undertaken a careful review of these terms, their definitions and the effect upon discoverability of information properly identified and categorized by one or more of these terms.
Private
New York does not recognize a common-law right of privacy (Messenger v Gruner, 94 NY2d 436, 441 [2000]). In New York, the right to privacy is governed exclusively by § 50 and 51 of the Civil Rights Law (Howell v New York Post Co., 81 NY2d 115 [1993] ["We have no common law of privacy."]. New York courts have not extended this right to create an evidentiary privilege (Condit v Dunne, 225 FRD 100 [SDNY 2004] [applying New York Law]). Further, § 50 and § 51 were drafted narrowly to encompass only the commercial use of an individual's name, portrait or picture and no more (see, Arrington v NY Times Co., 55 NY2d 433 [1988]).
Characterizing a certain type of information as "private" does not cloak it with a [*19]statutory or common law evidentiary privilege.
Evidentiary Privileges in New York
Under New York law an evidentiary privilege against disclosure of information (either in documentary or testimonial form) is generally a creature of statute (see, Camperlengo v Blum, 56 NY2d 251 [1982]). The frequently encountered statutorily created evidentiary privileges include, inter alia:
1.Self-incrimination (CPLR § 4501);
2.Spousal (CPLR § 4502);
3.Attorney-client (CPLR § 4503);
4.Physician, Dentist, Nurse-patient (CPLR § 4504);
5.Clergy-confidant (CPLR § 4505);
6.Psychologist-client (CPLR § 4507);
7.Social Worker-client (CPLR § 4508);
8.Professional Journalist or Newscaster-source
(Civil Rights Law § 79[h]);
9.Medical peer-review proceedings (Education Law § 6527)
10.Personnel records of police officers (Civil Rights Law § 50-a)
Simply because information may be "sensitive and personal" does not cloak it with a "privilege". In order for information to receive the statutory protection of "privileged", there must be more at stake and strong public policy favoring an evidentiary privilege must be at hand.
For example, there is no question that information conveyed to a physician or contained within a medical chart may be sensitive and personal, but it is the public policy of maximizing unfettered patient communication with medical providers and encouraging people to seek adequate diagnosis and treatment that is behind the privilege (see, In re Grand Jury Investigations, 98 NY2d 525, 529 [2002]). Additionally, the privilege encourages medical professionals to be candid in recording confidential information in patient medical records and thereby avert a choice "between their duty to testify and their professional obligation to honor their patients' confidences" (Id. at 529, citing, Dillenbeck v Hess, 73 NY2d 278 [1989]).
It is crucial to any discoverability analysis that one comprehends and accepts that privileges protect communications, not facts (Prince, Richardson on Evidence § 5-101 at 226 [Farrell, 11th ed]). Thus, the lay person may be compelled to testify about what he or she knows, even though the facts also may have been stated as part of protected confidential communication (Id. at 226; Williams v Roosevelt Hospital, 66 NY2d 391, 393 [1985]["A witness at an examination before trial in a medical malpractice action may invoke the physician-patient privilege (CPLR § 4504) to avoid revealing the substance of confidential communications made to her physician, but may not refuse to [*20]testify as to relevant medical incidents or facts concerning herself or her children".]). [FN14]
"Thus, just as a party cannot conceal a fact merely by
revealing it to his lawyer' (State ex rel. Dudek v Circuit
Ct., 34 Wisc 2d 559, 580, 150 NW2d 387, 399), a witness
may not refuse to answer questions regarding matters of
fact, such as those posed in this case, as to whether her
children had any physical or congenital problems, whether
she was in the care of a physician or was taking medication
during a certain period of time, or concerning the facts
surrounding an abortion merely because those topics relate
to events that required medical care or advice from a
physician. In determining whether certain information is
protected under the physician-patient privilege, the burden
is on the party asserting the privilege to show the existence
or circumstances justifying its recognition' (Bloodgood v
Lynch, 293 NY 308, 314) (Koump v Smith, 25 NY2d 287,
294, supra)." (Williams v Roosevelt Hospital, 66 NY2d at
396-397).
The burden of establishing any right of protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity (Spectrum System v Chemical Bank, 78 NY2d 371, 377 [1991][The CPLR § 4503 attorney-client privilege protects communications, not facts]).
Statutory privileges, as distinct from information that is confidential, private personal or sensitive, are absolute in the sense that, even in matters of public justice, a court may not compel disclosure of confidential communications thus made privileged (People v Keating, 286 AD 150 [1955]).
All statutory privileged communications are confidential, but not all forms of confidential information is privileged. The distinction is critical to the analysis in the lead-paint discovery arena.
Library records, for example, are "confidential" (CPLR § 4509) but not privileged in that their disclosure may be had pursuant to subpoena, court order or where [*21]otherwise required by statute (CPLR § 4509). Privileged communications on the other hand, unless waived or subject to a statutory exception (see, e.g. CPLR § 4508[a][3] [Child subject or victim of a crime]) may not be subject to disclosure by subpoena, court order or otherwise.
Family Educational Rights and Privacy Act of 1974 Does Not Create An Evidentiary Privilege
Plaintiffs assert that particular fields of inquiry by defendants into the educational background, history and records of Susan Adams are "out of bounds" and "forbidden" and not subject to disclosure. In support of this proposition, plaintiffs rely upon decisional law applying the Family Educational Rights and Privacy Act of 1974, 20 USC § 1232g (hereinafter "FERPA") (see, Ward v County of Oneida, 19 AD3d 1108 [4th Dept 2005] [educational and employment records of infant plaintiff's parents are of a "confidential and private nature"]). [FN15]
This court has undertaken a careful review of FERPA, and for the reasons set forth herein, finds that it does not create any statutory form of evidentiary privilege or absolute prohibition against the disclosure of an individual's educational background, history and records.
FERPA is a federal statute (20 USC § 1232g). State courts are bound by decisions of the United States Supreme Court when reviewing federal statutes (People v P.J. Video, 68 NY2d 296, 301-302 [1986]). Thus, a decision of the Supreme Court of the United States is binding upon New York State courts and supercedes any state court's decision at variance therewith.
FERPA prohibits the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons. In Doe v Gonzaga University, 536 US 273, 122 S.Ct 2268 [2002], the United States Supreme Court undertook a comprehensive analysis of FERPA for the purpose of determining whether this federal statute created any individual "rights, privileges or immunities", the violation of which would be actionable under 42 USC § 1983. In Gonzaga, the individual plaintiff alleged a violation of FERPA against the university based upon the alleged release of personal educational information to an "unauthorized person." [*22]
In analyzing FERPA, the Gonzaga court noted that Congress enacted FERPA under its spending power to condition the receipt of federal funds on certain requirements relating to the access and disclosure of student educational records. The Gonzaga court also noted that § 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. "To seek redress through § 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law" (Doe v Gonzaga, 536 US at 282). [Emphasis in original].
Accordingly, the Gonzaga court stated: "With this principle in mind, there is no question that FERPA's
nondisclosure provisions fail to confer enforceable rights" (Id. at 287).
***
"FERPA's provisions speak only to the Secretary of Education, directing that "[n]o funds shall be made available" to any "educational agency or institution" which has a prohibited policy or practice' 20 USC
§ 1232g(b)(1). This focus is two steps removed from the interests of
individual students and parents and clearly does not confer the sort
of individual entitlement' that is enforceable under § 1983" (Id. at 288).
FERPA has an institutional focus, is "not concerned with whether the needs of any particular person have been satisfied" and "cannot give rise to individual rights." (Gonzaga, 536 US at 288).
In concluding its analysis of FERPA, the Gonzaga court stated: "FERPA's non-disclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions. They therefore create no rights enforceable under § 1983." (Gonzaga, 536 US at 290).
Turning to the argument that an individual's educational background, history and records are "forbidden" because of some privilege or absolute prohibition contained in FERPA, this court finds that the United States Supreme Court has unequivocally determined that FERPA creates no individual rights or privileges which would give rise to a presumptive or statutory bar of the disclosure of these types of information.
This statute does not prohibit the disclosure of covered information - - it simply states that the federal government will not make funds available to responsible entities that fail to comply with the statute's privacy provisions (Frazier v Fairhaven School Comm., 276 F3d 52, 68 [1st Cir 2002] [FERPA uses a carrot and stick approach to [*23]obtain compliance]). FERPA does not provide a general statutory ban on publication of the covered information, instead relying on the power of the purse to induce the desired behavior. The statute does not use the word "privilege" and it expressly permits court-ordered disclosure of such information. FERPA does not create a privilege that protects educational records from disclosure during discovery (see, Rios v Reed, 73 FRD 589, 598 [EDNY 1977] [while FERPA does not provide a privilege against disclosure of student records, courts should weigh privacy interests against need for the information]).
Accordingly, to the extent that plaintiffs assert FERPA as some sort of dispositive authority in support of the proposition that an individual's educational background, history and records are privileged or "forbidden" from disclosure, that argument has no merit as a matter of law. [FN16]
New York Education Law § 4005 Does Not Create An Evidentiary Privilege
At oral argument, plaintiffs' counsel advanced the argument that Education Law § 4005 created a statutory privilege as to the disclosure of an individual's educational background and, in particular, special education records. Section 4005 of the Education Law is placed within the context of Article 81 of the Education Law which is entitled "Education of Children Residing in Child Care Institutions." [FN17]
Education Law § 4005 is entitled "Placement and evaluation of children." This section deals with the situation where a child with or thought to have a handicapping condition is to be placed in a child care institution and requires the family court judge ordering such placement (or the probation department as directed by the family court judge, as the case may be) to request the school district of residence to have its committee on special education undertake an evaluation of the child. The special education committee then makes recommendations for appropriate educational services and this information is used to determine the most appropriate placement in a "child care institution."
Section 4005 [1][e] provides in pertinent part as follows: "e. Any information obtained from a committee on special education pursuant to this section shall be considered confidential in accordance [*24]with regulations of the commissioner ...." (Emphasis supplied).
Contrary to the claim of absolute statutory privilege against disclosure of special education records asserted by plaintiffs' counsel, Education Law § 4005[1][e] requires the "child care institution" receiving such special education committee's report and recommendations to keep those types of records confidential. There is nothing in this section which controls the situation at hand where the issue is whether defendants may inquire at a deposition into the possible learning disability of the plaintiffs' mother. [FN18] This section is only applicable when placement in a child care institution is being made or considered by a family court judge and it has no applicability in this action. The court is at a loss to understand plaintiffs' reliance upon this section of law other than to observe that plaintiffs appear to be picking the term "confidential" out of context in an attempt to manufacture an argument that these areas of inquiry are "forbidden" or "out of bounds."
Federal and State Regulations Permit Disclosure of Special Education Records and Do Not Create An Evidentiary Privilege
The Offices of the Department of Education, Office of Special Education and Rehabilitative Services, Department of Education has promulgated regulations addressing the confidentiality of "education records" of special education students (see, 34 CFR 300.560, Definitions). Subpart [b], Education records, of part 300.560 defines education records as: ".... the type of records covered under the definition of "education records" in 34 CFR part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974)."
Generally an educational agency or institution subject to 34 CFR Part 300 may not release education records without parental consent (or consent of the student over the age of 18) "unless authorized to do so under [34 CFR] part 99" (34 CFR § 300.571[b], Consent).
34 CFR § 99.31, Under what conditions is prior consent not required to disclose information?, provides a specific list of conditions under which an educational agency or institution may disclose personally identifiable information from the "education records" of a student (including a special education student under 34 CFR 300.571[b]) without consent). [*25]
Pertinent to the court's analysis at hand is 34 CFR §99.31[a][9][I] which provides that education records may be disclosed without prior consent if: "(9)(I) The disclosure is to comply with a judicial order or lawfully issued subpoena."
CPLR § 3120 provides a mechanism for the issuance of subpoenas to a non -party for the production and copying of documents. Where the records are in the possession of a public school district, a subpoena duces tecum is to be obtained through CPLR § 3120 [4] and CPLR § 2307.
In other words, the federal regulations implementing FERPA anticipate and allow for the issuance of subpoenas for the production and disclosure of education records, including special education records, and no prior consent is required. This is entirely consistent with the FERPA statute itself which provides in pertinent part as follows:
"(2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless -
***
(B) except as provided in paragraph (1) (J), such information is furnished in compliance with judicial order, or pursuant to a lawfully issued subpoena, upon condition that parents and the students are notified of all such orders and subpoenas in advance of compliance therewith by the educational institution or agency." (20 USC § 1232g [2][B])[Emphasis supplied].
The New York State Commissioner of Education has promulgated regulations addressing the confidentiality of special education student education records in Title 8 NYCRR Part 200, Children with Handicapping Conditions.
8 NYCRR §200.2[b][6] requires an educational agency or institution to establish administrative practice and procedures for the purpose of ensuring the confidentiality of personally identifiable data, information or records pertaining to a student with a disability.
Such personally identifiable information shall not be disclosed: ".... except in accordance with sections 300.500 and 300.560 through 300.577 and part 99 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402: 1999 - available at [*26]the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)." (8 NYCRR § 200.2 [b][6]).
Accordingly, the New York State Commissioner of Education's regulations incorporate the provisions of 34 CFR Part 99 and thus expressly permit the disclosure of special education student "education records" pursuant to judicial order or lawfully issued subpoena.
Therefore, it is clear that education records, and special education records in particular, are not "privileged" and although "confidential", are discoverable via court order or subpoena. To the extent education records contain medical or psychological records these records would be privileged by statute and unless waived, the statutory privilege would require redaction of those records from the education records.
The Obstructed Deposition Questioning Concerning Susan Adams' Educational Background Was Not Privileged or "Forbidden" from Discovery in This Case
Prior to the depositions at issue, plaintiffs' counsel provided defense counsel with the plaintiffs' educational records from Madison Central School District dated August 1998. In these records, there are handwritten notes summarizing various academic, behavioral and social issues relating to the plaintiffs' educational experiences. In these notes, the following statement appears:
"Mom [Susan Adams] has learning disability" (See Ex. H-1 to
Curvin affidavit dated 2/24/06)[Emphasis Supplied].
At Susan Adams' deposition on January 3, 2006, defense counsel posed the following questions to the witness:
"Q. Were you ever advised that you were learning disabled?
Mr. Nixon: Don't answer.
Q. Did you ever tell anyone that you were diagnosed as learning disabled?
Mr. Nixon: Don't answer. Just for the record, do you have any documents to establish a good faith basis for these questions?" [FN19] (S. Adams EBT Tr at 8). [FN20] [*27]
Defense counsel identified the basis as a document provided by plaintiffs but plaintiff's counsel insisted it be produced on the spot (Adams EBT Tr at 9-10).
Given the nature and source of the statement concerning Susan Adams having a "learning disability", there is no question that Mr. Curvin had a good faith basis for this line of questioning.
Although plaintiffs' counsel argues that defendants may not pursue a "genetic argument" as a matter of law, this court can discern no such holding in any of the case law. While it is anticipated that plaintiffs may present expert testimony at trial in opposition to the "genetic argument", there certainly is no evidence to that effect in this record.
In this case, Dr. Paroski has extensively addressed and discussed the current state of the literature and research concerning a strong correlation between Attention Deficit Hyperactivity Disorder and genetics.
According to Dr. Paroski:
"Evidence showing that ADHD is strongly influenced by genes has emerged
as a direct result of recent advances in molecular genetics that came as a
result of the completion of the Human Genome Project. The details of these
advancements are well described and the results have been validated in
numerous other peer reviewed publications mentioned herein. Faraone
concluded that there is overwhelming evidence that ADHD is inherited and
that genetic factors play a significant role in its manifestation'."[Emphasis
supplied].
* * *
Twenty twin studies were reviewed and summarized with pooled results
estimating the heritability of ADHD to be in the 76% range or greater,
indicating that ADHD is among the most heritable of psychiatric disorders
[Emphasis supplied].
Indeed, Dr. Paroski relies upon and attaches a chapter from a book, recognized by Dr. Paroski as authoritative, entitled Frontal-Subcortical Circuits in Psychiatric and Neurologic Disorders, edited by Donald G. Lichter and Jeffrey L. Cummings, Guilford Press at pp. 334-371, 2001. Chapter 13 of this book, entitled "Attention-Deficit/Hyperactivity Disorder as a Frontal-Subcortial Disorder" contains the following [*28]entries:
"Most cases of ADHD have a genetic etiology" (Id. at p. 334)[Emphasis
supplied].
* * *
ETIOLOGICAL FACTORS
Genetic Studies
"The results of a number of twin and family studies have solidly
established the heritability of ADHD across several different
populations (Biederman et al., 1995; Faraone et al., 1991, 1993,
1995, 1999; Gjone Stevenson & Sundet, 1996; Goodman &
Stevenson, 1989; Levy, Hay, McStephen, Wood & Waldman,
1997; Sherman, Iacono & McGue, 1997; Stevenson, 1992).
The awareness that ADHD is an inherited disorder has provided
the impetus for the search for the responsible gene or genes
(See Swanson et al., 2000a, for a review). Because of the role
that the catecholamines play in this disorder, several dopaminergic
and noradrenergic genes have been identified as possible candidates."
(Id. at 355)[Emphasis supplied].
In light of the foregoing, the court finds that there is sufficient evidence, both factual, medical and scientific, in this record to support the defendants' deposition questioning of Susan Adams concerning her educational background based upon the document produced by plaintiffs which indicates that Susan Adams has a "learning disability."
Asthma and Student Academic Performance
During the course of Susan Adams' deposition on January 3, 2006, defense counsel, Steven Curvin, Esq., attempted to pursue a line of inquiry concerning whether one of the plaintiffs, Justin Adams, had an asthma condition. [FN21] Plaintiffs' counsel, Mr. Nixon, interrupted the questioning and prohibited this questioning on the ground that plaintiffs were not making a claim that asthma was one of the claimed injuries. The exchange between the attorneys took place as follows:
[*29]
"Q. And you mentioned earlier that Justin had some form of asthma condition?
A. Yes.
Mr. Nixon: Object to the form.
Q. When were you first advised of that?
Mr. Nixon: Object to the form. Did you miss where we didn't make a claim about asthma in the pleadings?
Mr. Curvin: I understand.
Mr. Nixon: Okay. Reread it then. I'm instructing her not to answer. There's no claim about asthma here.
Mr. Curvin: There's no claim by you about asthma. There might be a claim on the part of the defendant that the asthma problems might be causing the problems that he's having as far as learning difficulties.
Mr. Nixon: No, we put the injuries in issue, you don't, and we have not put asthma at issue. [FN22]
Mr. Curvin: Right. I'm looking at alternate cause for the injuries you're claiming, and I'm thinking that the asthma might be an alternate cause for the injuries you're claiming.
Mr. Nixon: Really. You're an expert? What do you have degrees in?
Mr. Curvin: I'm talking to other people who tell me things.
Mr. Nixon: Okay. I can't wait to see what they say about asthma causing brain [*30]damage. I'm not letting her answer the question." [FN23]
In the court's view, one need not be an "expert" or "have degrees" in any particular medical, scientific or educational field to discover that there is a well established correlation between asthma and learning difficulties. In fact, this correlation is clearly set forth in the Commissioner of Education's Regulations, Title 8, Education, Part 200, Children With Handicapping Conditions. Part 200.1 of these regulations, Definitions, states the following: "200.1 [zz][10]. Other health-impairment means having limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in a limited alertness with respect to the educational environment, that is due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or tourette syndrome, which adversely affects a student's educational performance." (Emphasis in bold type added)
Indeed, it would appear from this regulation that insofar as the categorizing of a "student with a disability" (8 NYCRR Part 200.1 [zz]) is concerned, the Commissioner of Education has placed asthma on equal footing with lead poisoning. The United States Court of Appeals for the Eleventh Circuit has recognized that chronic asthma is a condition encompassed within the ambit of the Individuals With Disabilities Education Act (IDEA) (Babicz v School Bd. Of Broward Co., 135 F3d 1420 [11th Cir 1998], certiori denied, 119 S.Ct 53, 525 US 818). [FN24] [*31]
Additionally, Dr. Paroski has opined that "asthma is known to potentially impact cognitive ability." In reliance upon an article in the Archives of Disease in Childhood identified by Dr. Paroski as authoritative, Dr. Paroski states:
"The authors of said article demonstrated that children with asthma
have more disturbed sleep, tend to have more psychological problems
and perform more poorly than their peers on some tests of memory and
concentration. Children with asthma with limitation had lower scores
on school readiness skills and a greater need for help with learning
compared to children without asthma."
Accordingly to the extent that plaintiffs' counsel directed the witness not to answer defense counsel's questions concerning one of the plaintiffs' asthma condition, that objection was palpably improper and inappropriate.
Head Trauma, Choking of a Child and Carbon Monoxide Poisoning
There is a record from Madison Central School District from 1992 concerning Shane Adams which contains the following entries:
"Child in with social worker. Bruise to right eye area. Says he was
whining and Mom hit him. Says Mom hits him other times with coat
hanger."
***
"Child complains that Dad picks him up by clothing and threw him
down. Says he hit left side of head - no bruises or pain noted. Also,
Dad hit elder brother in mouth." (See, Exhibit H2 to Curvin Affidavit
dated February 24, 2006).
Dr. Paroski opines that depending on the nature and severity of the striking or the choking (we don't know that here because plaintiffs' counsel refused to let defense counsel propound this line of questioning) the striking of a child could result in a concussion which would be neurologically damaging to the brain of the child and could be a potential cause of the injuries claimed by the plaintiffs herein. As regards to the choking, depending upon the nature and extent of the choking, the fact that a child was choked could cause a deprivation of oxygen ("anoxia") to the brain which in turn would be relevant as to the potential cause of some of the injuries claimed by the plaintiffs in the instant litigation.
Accordingly, to the extent that plaintiffs' counsel directed the witness not to answer defense counsel's questions concerning the striking or choking of one or more of the plaintiffs, that objection was palpably improper and inappropriate. [*32]
Defense counsel has submitted a hospital emergency room record dated June 8, 1991 reflecting that Justin Adams was brought to the hospital by his mother, Susan Adams, with a complaint of "possible carbon monoxide poisoning." The chart contains the following entries:
"Riding in car with hole in muffler. 6/7/91 1200. H/A [headache],
nausea, vomit."
"Vascular headache secondary fume exposure, monoxide."
"Assessment:? CO poisoning with late sequelae. Consider hydro-
carbon exposure as etiology also."
"Possible carbon monoxide poisoning. States yesterday was
riding in car that had gas smell. States rode [for 1 hour]. Complains
of headache last night. States vomiting off and on today."
Defendants' expert, Margaret Paroski, M.D., has opined that carbon monoxide poisoning is well known to cause brain injury, with variable associated neuropsychological deficits depending on the level of carbon monoxide exposure and individual differences. According to Dr. Paroski, research has established a correlation between carbon monoxide poisoning and a decline in intelligence and consistent late-onset emotional-behavioral difficulties.
Additionally, based upon articles from sources annexed to Dr. Paroski's affidavit and described as authoritative, Dr. Paroski also opined that mild head injury, concussion or a significant blow to the head may result in or produce subtle but significant changes that can affect school performance, or manifest problems such as specific learning difficulties and attentional and memory problems that become apparent in the school environment.
Defense counsel proceeded with a line of questioning concerning the past occurrence of carbon monoxide poisoning and head injuries or physical trauma to Justin. Again, plaintiffs' counsel interjected and frustrated the questioning in an exchange that proceeded as follows:
"Q. Was there an incident with Justin in a moving car that rolled on some grass and he was someone had to get him out of the car and throw him out of the car? [FN25]
Mr. Nixon: Object to the form. Go ahead.
[*33]
A. Yes, the brakes went on my car. I was heading toward a waterway. So the way that we can put our our kids' lives were at jeopardy. So my husband removed them by the car by throwing them onto the grass because we thought the car was going to sink.
Q. Did they have to follow up with any type of treatment or any head injury?
Mr. Nixon: I suppose your expert might say hurt legs cause brain damage too. [FN26]
Mr. Curvin: Just trying to find out about the head injury or the lack of oxygen to the brain.
A. There was no head injury.
Mr. Nixon: You have documented proof there was a lack of oxygen to the brain?
Q. Was there a visit to the hospital about some carbon monoxide poisoning for Justin?
Mr. Nixon: Object to the form.
A. No. Where are you coming up with this?
Q. I've got a record from
A. You making them up?
Q. I've got a record from St. Joe's Hospital dated June 8, 1991 indicating that possible carbon monoxide poisoning where Justin was riding in the car that day and it had a gas smell.
Mr. Nixon: Possible carbon monoxide poisoning. Do you have a diagnosis that this child was carbon monoxide poisoned?
Mr. Curvin: I want to know if there is anything to it.
Mr. Nixon: Do you have a document that says that this child was carbon monoxide poisoned, or do you simply have allegations to form your lack of a basis for questioning this mother about her children? Because all I'm hearing is fishing. While he's looking through his records, did any doctor ever tell you that any of your children's problems were related to carbon monoxide poisoning?
[*34]
A. No.
Mr. Nixon: Did any doctor ever tell you that any of your children's problems were a result of
Mr. Porter: Wait. I object to you asking her question during the course of
Mr. Nixon: Check the CPLR, because I'm entitled to. And he's obviously looking through his notes. On these various issues, I need clarification. Did any doctor ever tell you that any of your children's problems were a result of them hurting their leg because they were pulled out of a moving car to save their life? [FN27]
A. No.
Mr. Nixon: Did any doctors ever tell you that any of your children's problems were related to anything other than lead poisoning?
Mr. Meagher: Let me just note an objection for the record.
A. They said it was solely on the part of the lead poisoning and brain damage caused by lead poisoning. [FN28]
[*35]
Mr. Porter: I'll join in the objection.
Mr. Meagher: This is self-serving, and there's a time for him to ask these questions and it's not appropriate or proper now.
Mr. Curvin: Are you done?
Mr. Nixon: I am for now. I reserve my rights pursuant to CPLR 3113 to ask any and all further follow-up questions either at the time of confusion, misleading questions, or conclusion of all defense counsel's questions of this non-party witness." [FN29]
Accordingly, to the extent that plaintiffs' counsel directed the witness not to answer defense counsel's questions concerning the history of head trauma or carbon monoxide poisoning of one or more of the plaintiffs, that objection was palpably improper and inappropriate.
Exposure to Photo Developing Chemicals
In the medical records provided by plaintiffs to defendants, there is a record from Community Memorial Hospital dated July 30, 1996 which states as follows:
"10 year old male with asthma with chest pain and intermittent dyspnea
since being with grandparents for 3 days. There were paints/chemicals/
photo developing [illegible]. C/o shaking/hard breathing. Using
inhaler but is out of Proventel."
"Child [Justin Adams] was with paternal grandparents. Mother concerned
of toxic' substances were in house and he is poisoned'.
Adamont [sic] others were also sick x days and that perhaps carbon
monoxide or faulty a.c. to blame. Appears some hostile or legal [*36]
family issues at play. Explained there are no general toxic' screens
for unknown household substances inhaled. Added concerns re:
asbestos; gases; chemicals - their negligence."
Notwithstanding the existence of this record, plaintiffs' counsel refused to permit defense counsel to inquire about the factual basis and background of this incident (See Adams Tr dated 1/3/06 at 101-103). Remarkably, Mr. Nixon, in what can only be described as a sardonic and unprofessional comment stated on the record:
"And she's not answering that last question. You want to submit
expert affidavits to form a specific basis that this could have some
kind of connection to a lead poisoning case, be my guest. I beg
you to do that, and then deal with it. Right now you are completely
out of bounds. Please continue." (Adams Tr dated 1/3/06 at 103).
Defense counsel has submitted an expert affidavit with a scientific basis for this line of questioning. Dr. Paroski, again in reliance upon an authoritative treatise (annexed to her affidavit) has opined that chemicals involved in photography could be medically relevant as a potential cause of injuries such as the type claimed by plaintiffs herein in that these chemicals are known to have an untoward impact on the nervous system including central nervous system damage, impaired consciousness and convulsions.
Plaintiffs have submitted nothing to rebut this opinion.
Accordingly, the court finds that there was a good faith basis to pursue this line of questioning (the hospital record of July 30, 1996) and an unrebutted scientific opinion as to the medical causation relevance of this information. Plaintiffs' counsel's refusal to permit the witness to answer this line of questioning was patently without merit.
Having considered all of the foregoing, the court finds that defendants have satisfied the CPLR requirement that discovery be "material and necessary" (CPLR § 3101[a]). Because some courts have utilized "admissible or relevant evidence" (Anderson v Seigel, 255 AD2d 409, 410 [2nd Dept 1998]) and "relevant and material" (Ward v County of Oneida, 19 AD3d 1108 [4th Dept 2005]) in place of the CPLR's "material and necessary" standard, a brief review of these concepts is important.
Evidence is "relevant" if it has any tendency in reason to prove the existence of any material fact; i.e., it makes determination of the action more probable or less probable than it would be without the evidence (Richardson, Evidence § 4-101 [Prince 11th ed]). The term "material evidence" has at least two meanings. The term is commonly used to mean evidence of a fact in issue or evidence probative of a fact in issue. If the evidence is relevant to establish or disprove a proposition, but the proposition is neither in issue or probative of a fact in issue, then the evidence is immaterial (Id. at § 4-102). [*37]
Having determined that no evidentiary privilege attaches to the areas of inquiry at issue, the court must determine whether the information sought is "material and necessary" or "relevant and material" to the issues involved in the subject action. Once these tests are satisfied, the inquiry turns to whether the court should impose any appropriate production, utilization or dissemination limitation on the information.
Since the defendants' expert (Dr. Paroski) has opined that the areas of inquiry at issue are medically relevant and could provide information that would tend to prove whether plaintiffs' alleged lead poisoning and deficits are the result of genetic inheritance, biological factors, or some environmental factor other than lead poisoning, it is difficult to suggest that these areas of inquiry are not "relevant" unless some heightened relevance standard is applied. [FN30] While plaintiffs may intend to present contrary expert evidence at trial, the court need not determine at this juncture whether such evidence from either side will be admissible at trial.
The court is mindful of, and has considered, the concern of unfettered litigation on collateral issues. Relevant evidence on the issue of the medical causation of the thirty-four (34) different neurodevelopmental injuries alleged by each plaintiff is central to the resolution of this action. Accordingly, the discovery at issue herein is not collateral to the issues raised by plaintiffs' pleadings. That such discovery may make this case more complex than plaintiffs might prefer is of no impact at this point. Plaintiffs have advanced a combined total of one hundred and two (102) neurodevelopmental injuries. Plaintiffs have not submitted a single record from any provider that finds lead exposure at defendants' premises to be a substantial factor in causing any of these neurodevelopmental injuries.
Under these circumstances, a factual scientifically based exploration of possible causes of the alleged injuries can hardly be considered collateral to the issues at hand.
Rental Assistance and Social Services Questions
Plaintiffs allege that defendants' inquiry to Susan Adams regarding whether she received any rental assistance while residing at 212 Seward Avenue is another area of "forbidden" discovery. In support of this proposition, plaintiffs cite CPLR § 4508 [Social Worker Privilege]. This objection by plaintiffs' counsel is wholly misplaced. Initially, the question at issue ("Were you receiving any rental assistance when you were at the place at 212 Seward?") seeks a fact and does not seek any form of privileged communication. Additionally, CPLR § 4508 specifically provides a privilege to communications made by the client to the social worker or advice given by the certified social worker in the course of his or her professional employment. Here, defense counsel was simply inquiring as to the fact of rental assistance receipt, not any [*38]privileged communications relating thereto.
Accordingly, plaintiffs' objection to this inquiry based upon CPLR § 4508 is patently without merit. The purpose for the line of questioning according to defendants was to determine whether any agency offering rental assistance to Susan Adams might have at any time inspected the condition of the premises owned by the defendants and to permit defense counsel to search for records concerning any such inspections. Additionally, although the Department of Social Service's records may be considered "confidential" pursuant to Social Services Law § 372, subdivision 3 of § 372 specifically provides that "such records are subject to the provisions of Article 31 of the Civil Practice Law and Rules."
Plaintiffs also allege that 45 CFR § 205.50 is somehow dispositive of defendants' request to pursue the line of questioning relative to rental assistance as herein before described. 45 CFR § 205.50 pertains only to records maintained by the Social Services departments and has no effect whatsoever on the simple question "Were you receiving any rental assistance when you were at the place at 212 Seward?". Plaintiffs' records based argument has no place at the time of deposition when the witness is being asked a factual question, not related to any confidential communications, and there is no pending request for the production of any form of social services or benefits recipient records. The course undertaken by plaintiffs' counsel in respect to this simple line of inquiry demonstrates the artificial, obstructive and unilateral approach of plaintiffs' counsel to the scope of discovery in this case.
Prior Residences of the Witness and Plaintiffs
Defendants also sought to question Susan Adams concerning other residences subsequent to the plaintiffs' residence at 212 Seward Street in order to confirm the school districts in which the plaintiffs resided and in order to determine whether the defendants had received all of the school records that would be relevant to claims being made herein. There is no privilege, "confidentiality barrier" or right of privacy that would prevent the disclosure of this information. The fact that other witnesses may have previously testified to this information is not controlling on the defendants' opportunity to ask this witness these questions particularly in light of the fact that the other witnesses (Shane, Justin and Steffen) are all claiming that they have cognitive deficits, neurodevelopmental problems, ADHD and other intellectual functioning deficits. Accordingly, defendants will be permitted to inquire of Susan Adams as to other residences subsequent to the plaintiffs' residence at 212 Seward Street.
The Witness's Employment History
Insofar as defense counsel's questions concerning Susan Adams' employment outside her home, plaintiffs' counsel misconstrues and misapprehends the defendants' purpose of pursing this line of inquiry. Defense counsel was simply trying to determine if other individuals (child care providers) might be witnesses to the condition of the [*39]premises during the plaintiffs' tenancy at said premises and there can be little doubt that this information would be relevant, material and necessary and discoverable. To the extent that plaintiffs advance some sort of privacy barrier to the discoverability of this information, such a position is patently without merit.
Steffen Adams' Alleged Hyperactivity
To the extent that plaintiffs argue that defense counsel should not be able to pursue a line of questioning regarding Steffen Adams being hyperactive before his blood lead level became elevated, the court finds that this inquiry is directly relevant with regard to the claims of Steffen Adams that he sustained such hyperactivity as a result of the negligent conduct of the defendants. Plaintiffs' argument that Steffen Adams has already responded to this question is patently without merit.
Steffen's Violent Behavior at School
Defense counsel also attempted to pursue a line of inquiry relating to an incident that occurred in 2002 at Madison School wherein Steffen was purported to have struck another student in the head and put his own hand through a glass door. There can be no doubt that this information is directly relevant to and probative of claims made in the Bill of Particulars herein regarding Steffen's alleged aggressiveness, behavioral changes and irritability. To the extent plaintiffs oppose this line of inquiry of Susan Adams on the basis that Steffen had already testified to this incident, the court finds plaintiffs' position to be patently without merit.
Defendants' Request for a Further Deposition of Susan Adams
Defendants seek a further deposition of Susan Adams for the purpose of pursuing the aforementioned areas of inquiry about which plaintiffs' counsel directed the witness not to answer or otherwise obstructed or interfered with defense counsels' opportunity to conduct a fair and thorough examination of the witness. This court has carefully reviewed every word of both of Susan Adams' deposition transcripts. Having done so, the court finds that plaintiffs' counsel's conduct during the depositions was so obstructive and improperly and unilaterally controlling of the witness as to render the deposition a futile attempt to obtain relevant information and information material and necessary to the discovery of relevant information. [FN31]
The court finds that it was not defense counsels' questions that were improper, but rather plaintiffs' counsel's instructions to the witness not to answer and his otherwise obstructive and excessive interference which was improper. Indeed, the evidentiary [*40]scope of an examination before trial is at least as broad as that applicable at trial itself (Johnson v New York City Health and Hospitals Corp., 49 AD2d 234, 237). Consequently, when faced with objections at a deposition, the proper procedure is to permit the witness to answer all questions subject to objection in accordance with CPLR § 3115 (Orner v Mt. Sinai Hosp., 305 AD2d 307 [1st Dept 2003]).
That some of defense counsels' questions may have been perceived (correctly or incorrectly) by plaintiffs' counsel as inartful or otherwise imperfect did not give plaintiffs' counsel license to react impatiently or react the way he did. [FN32] A complete reading of the transcripts reveals that plaintiffs' counsel's attitude toward defense counsel was sardonic and unprofessional which, in turn fostered an uncooperative attitude from the witness. [FN33] Plaintiffs' counsel, in ordering his client not to respond during the depositions to subject areas which counsel unilaterally deemed to be irrelevant, and in continually objecting to matter other than form (contrary to the Stipulation of the parties) effectively thwarted defendants' efforts to depose this witness (Id., citing Lavine v Goldstein, 173 AD2d 346 [1st Dept 1991]).
This court regrets being placed in the position of having to refer to these and other such fundamental principles of procedure and professional civility. Unfortunately, the court has little confidence that further depositions will result in anything but the same chaos, acerbity and delay (Orner, 305 AD2d at 310). Accordingly, the court will attend and preside over the further deposition of Susan Adams. This further deposition will be conducted in accordance with the following procedures:
1.All objections except as to the form of the question are to be reserved
until the time of trial. The "form of the question" refers to such instances,
inter alia, where for example, counsel poses a question within a question (i.e., two questions at once).
2.Defense counsels' questioning shall begin and continue until completed.
Plaintiffs' counsel shall not, and has no right to, interrupt defense
counsels' questioning and begin questioning of his own. Any questions
plaintiffs' counsel may have for the witness shall await defense counsels'
completion of their examination. [*41]
3.Plaintiffs' counsel is not to coach the witness, rephrase defense counsels'
questions, ask for clarification of a question, or insert information into
defense counsels' questions.
4.Plaintiffs' counsel is not to criticize the manner in which the examination is
being conducted, attempt to control the manner in which questions are
asked or advance sardonic or sarcastic comments at defense counsel
concerning the scope, nature or manner of the examination.
Additionally, the court notes that the Chief Administrative Judge has amended the Uniform Civil Rules to add a new Part 221 of the Uniform Rules for the Conduct of Depositions. The court orders that, in addition to the foregoing, all further depositions in this matter including that of Susan Adams, be conducted in accordance with § 221.1 - 221.3.
Plaintiffs' counsel is to pay all cost associated with the conduct of the further deposition of Susan Adams including the cost of the stenographer.
Additionally, the court orders that the deposition transcript of Susan Adams produced as a result of the subsequent examination before trial ordered herein shall not be used, published or disseminated for any purpose other than this litigation, subject to further order of this court. At the completion of this action, defendants' counsel shall return all copies of said transcript to plaintiffs' counsel. The transcript shall only be used for purposes of this litigation inclusive of trial preparation, including use by such witnesses, consultants and experts as may be retained or utilized by the parties and at the trial of this action pursuant to the provisions of the CPLR.
Plaintiffs' Notice for Physical Examination
Defendants Rizzo and Scaravillo also bring a motion pursuant to 22 NYCRR
§ 202.17 (Exchange of Medical Reports in Personal Injury and Wrongful Death Actions) and CPLR § 3124 and § 3126[2] seeking an order vacating plaintiffs' Notice for Physical Examination of all Plaintiffs dated February 13, 2006. Defendants also seek an order directing plaintiffs to produce medical reports of any medical service provider or expert witness detailing a diagnosis of any injuries sustained by the plaintiffs as a result of the claim of negligence made by plaintiffs in this lead paint poisoning personal injury action. Alternatively, defendants seek an order precluding plaintiffs from introducing proof concerning injuries sustained by plaintiffs for failure to provide said reports.
Plaintiffs allege they were exposed to lead based paint while residing in rental premises owned by defendants. There is no factual dispute in this record that blood testing of all three plaintiffs has demonstrated elevated blood lead levels (EBLL's) at various times between 1989 and 1992.
Plaintiffs' Bills of Particulars allege the following list of injuries as a result of [*42]exposure to lead:
a.lead poisoning;
b.neurological damage;
c.interference with normal cell and system function;
d.diminished cognitive function and intelligence;
e.irreversible brain damage;
f.neurobehavioral injuries;
g.behavior problems;
h.developmental deficiencies;
I.increased susceptibility to lead elevations and further lead poisoning;
j.increased probability of mental and developmental impairments;
k.increased probability of emotional and psychological impairments;
l.increased probability of neurological and neurobehavioral damage;
m.decreased educational and employment opportunities;
n.fear of future injury, disease and future harm and impairments;
o.future cost of medical monitoring;
p.future cost of medical care and treatment;
q.future cost of psychotherapy, psychological and/or psychiatric services;
r.severe emotional and psychological harm;
s.pain and suffering;
t.hyperactivity;
u.behavioral changes;
v.Attention Deficit Hyperactivity Disorder (ADHD); [*43]
w.learning disabilities; memory deficits;
x.aggressiveness;
y.speech and language delays;
z.deficits in speech and language processing;
aa.concentration and cognitive disturbances;
bb.irritability;
cc.memory language perception deficits;
dd.construction attention deficits;
ee.speed of thought processing deficits;
ff.deficits in speech intelligibility;
gg.severe articulation disorder;
hh.deficits in language skills.
Plaintiffs also allege that "all of the injuries referred to hereinabove and the residuals, consequences and sequelae of said injuries are deemed to be permanent in nature and were caused by exposure to lead." (See Exhibit "G" to Curvin Affidavit dated February 17, 2006)
Uniform Rule § 202.17 establishes an orderly procedure for the exchange of medical reports in a personal injury action and for the conduct of medical examinations of the plaintiff by a physician or medical specialist selected by the defendant.
In the typical personal injury action, the rule works quite well. A plaintiff has been injured in some type of accident and seeks out medical treatment. The treating physician or other medical provider undertakes a course of treatment and diagnosis and correlates the injury to the causative event to which plaintiff attributes his injury. Medical records and reports are generated and these are provided to defendant through discovery and authorizations. Defendant then provides these medical records and reports to the defendant's examining physician who reviews them in anticipation of the examining physician's own examination and evaluation of plaintiff's injuries and their causation. Treating physicians' records and reports serve to focus the nature and scope of a defendant's examination of the plaintiff and assist in a fair opportunity for the defendant to select the appropriate medical specialist or specialists to conduct the examination of plaintiff on defendant's behalf. The examining physician generates his [*44]own report and this, in turn, is provided to the plaintiff (§ 202.17[c]).
Rule 202.17[b] requires that the party to be examined shall serve or deliver:
"(1) copies of the medical reports of those medical providers who have
previously treated or examined the party seeking recovery. These
shall include a recital of the injuries and conditions as to which testimony
will be offered at the trial, referring to and identifying those x-ray and
technicians' reports which will be offered at the trial, including a
description of the injuries, a diagnosis and a prognosis. Medical
reports may consist of completed medical provider, workers' compen-
sation, or insurance forms that provide the information required by
this paragraph." (Emphasis supplied).
In other words, Uniform Rule § 202.17 recognizes that the personal injury plaintiff has the burden of proof and, beyond counsel's allegations in a Bill of Particulars, is required to deliver medical reports "including a description of the injuries, a diagnosis and prognosis." The medical reports of the "providers who have previously treated or examined the party seeking recovery ... shall include a recital of the injuries and conditions as to which testimony will be offered at trial, referring to and identifying those x-ray and technicians' reports which will be offered at trial." (§ 202.17[b][1]).
The problem in this case is summarized by defendants' counsel as follows:
"12. In response to your deponent's demand for medical records, your
deponent received medical records for Shane Adams from plaintiffs'
counsel (provided herewith as Exhibit L); medical records for Justin
Adams (provided herewith as Exhibit M) and medical records for
Steffen Adams (provided herewith as Exhibit N). Although each set
of records mentions elevated blood lead levels, none of the records
or reports make any mention of any plaintiff sustaining any of the
injuries claimed by plaintiffs in the Bill of Particulars as a result of
lead based paint exposure at the homes owned by the defendants
herein.
13. The only report that your deponent was able to locate concerning
the possibility of any causal relationship between exposure to lead
based paint at the homes owned by the defendants herein and injuries
sustained by the plaintiffs herein consists of a June 21, 1991 notation
contained in the records of Howard Weinberger, M.D., who treated
the plaintiff, Steffen Adams. In his note, Dr. Weinberger relates a
discussion with attorneys that had previously represented plaintiffs
in which he advised that it was difficult to determine cause and effect
relationships in individual cases between lead exposure and neuro- [*45]
logic and other deficits. Dr. Weinberger further stated that it is
difficult if not impossible' to determine the cause and effect relation-
ship if indeed (Steffen) had neurological findings.
14. As of this date, your deponent has not received any medical
reports of any physicians who have treated or examined the plaintiffs
in connection with the injuries and conditions for which recovery is
sought who have detailed any injuries that were sustained in
connection with the claims of negligence made herein pursuant to
your deponent's demand for medical reports (and authorizations)
dated February 7, 2005 (Exhibit F). Your deponent respectfully
submits that service of said reports is necessary to properly evaluate
the nature and extent of any defense physical examinations and/or
neuropsychological examinations to be conducted of the plaintiffs
herein" (Curvin Affidavit dated February 17, 2006 at ¶ 12-14).
In response, plaintiffs argue:
"Mr. Curvin misunderstands the injury here. The injury is lead
poisoning and the sequele of same are cognitive deficits, brain
damage, learning disabilities, loss of intelligence and behavioral
deficits and issues (see CDC Statements in 1991 and 2002
attached here as Exhibit "F" and "G"). The injury, however, is
lead poisoning (See Wynn, supra)" (Athari Affirmation dated
April 5, 2006 at ¶ 14).
This statement by plaintiffs counsel represents a fundamental misunderstanding of plaintiffs' burden of proof. There is no question that acute lead poisoning is an injury for which a plaintiff may recover. There is also little question that acute lead poisoning is demonstrated by a measured EBLL.
However, it is a wholly different matter to establish, by a preponderance of the credible and competent evidence, that cognitive deficits, brain damage, learning disabilities and the universe of other possible sequelae are present in these plaintiffs and proximately caused by the exposure to lead based paint at defendants' premises.
Remarkably, plaintiffs do not dispute that none of the medical records provided to defense counsel "makes any mention of any plaintiff sustaining any of the injuries claimed by the plaintiffs in the Bill of Particulars as a result of lead based paint exposure at the homes owned by defendants herein" (Curvin Affirmation at ¶ 14). [FN34] [*46]
Instead, plaintiffs respond with the opinion of plaintiffs' counsel, Mo Athari, Esq., and a general reference to the CDC materials identified above that:
"... there have been over a thousand studies and articles confirming
the effects of lead poisoning on young children" (Athari Affidavit
dated April 5, 2006 at ¶ 16). [FN35]
Plaintiffs have not identified a single medical provider that has causally connected the earlier EBLL's with any of the sequelae set forth by plaintiffs' counsel in the Bill of Particulars. It appears that plaintiffs intend to demonstrate historical EBLL's in these plaintiffs and then proceed to have the jury assess damages for all of the injuries set forth in items "a" through "hh". Alternatively, plaintiffs' tactical approach appears to be to force defendants to conduct IME's in a vacuum (or in the dark without reference to any information from any qualified medical provider) and then, after the IME's are completed and the Note of Issue has been filed, serve expert disclosure detailing all of the diagnostic, prognostic, technical and testimonial information contemplated by and required by § 202.17[b][1].
The court finds either of these approaches to be fundamentally unfair and contrary to the spirit and intent of the medical report disclosure rules set forth in Uniform Rule § 202.17.
This is not a routine slip and fall with a broken wrist or a motor vehicle accident with a herniated disc. Here, for example, there is an allegation by plaintiffs' counsel that all three (3) plaintiffs have "neurological damage" (See, Bills of Particulars at ¶ "b"). Yet, the records provided by plaintiffs do not contain a single record of any neurological testing or examination of the plaintiffs at any time. There is no diagnosis of any of the plaintiffs by a single qualified medical provider that has diagnosed any neurological injury in these plaintiffs.
Plaintiffs also allege, inter alia, "irreversible brain damage" (See, Bills of Particulars at ¶ "e"). There is no record of any qualified medical provider having examined, tested, treated or diagnosed these plaintiffs for "brain damage." [*47]
Plaintiffs allege damages in the form of the "future cost of psychotherapy, psychological and/or psychiatric services" (See, Bills of Particulars at ¶ "q"). However, there is no record of plaintiffs having received any form of psychiatric, psychological or psychotherapeutic treatment and there certainly is no record of any diagnosis of any psychiatric or psychological injury caused by lead poisoning.
Uniform Rule § 202.17[b] contains a condition precedent to a defendant's obligation to schedule and conduct the examination of the plaintiff. The plaintiff must first provide defendant with the medical reports of those medical providers who have treated or examined the plaintiffs and those reports shall include a recital of the injuries and conditions as to which testimony will be offered at trial including a description of the injuries, a diagnosis and a prognosis.
This record unequivocally demonstrates that plaintiffs have failed to satisfy the requirements of Uniform Rule § 202.17[b] and the defendants' obligation to conduct the examination has not ripened.
Looking at the situation from a practical point of view amply demonstrates the manifest unfairness in plaintiffs' position. Given the universe of injuries alleged by plaintiffs' counsel, and the absence of a single record from any medical provider diagnosing and causally connecting any of plaintiffs' alleged injuries to lead poisoning at defendants' premises, it is apparent that in order to simultaneously comply with plaintiffs' § 202.17 notice and adequately prepare for trial, defendants would have to conduct a battery of educational, psychological, psychiatric, neurological, vocational and medical examinations by a large team of experts. These examinations, conducted at great expense, would take place in a diagnostic, prognostic and treatment record vacuum.
Uniform Rule § 202.17[h] expressly contemplates this situation and is designed to prevent ambush at trial by a plaintiff who has not complied with § 202.17[b].
Subdivision [h] provides in pertinent part as follows:
"(h) Unless an order to the contrary is made or unless the judge
presiding at the trial in the interests of justice and upon a showing
of good cause shall hold otherwise, the party seeking to recover
damages shall be precluded at the trial from offering in evidence
any part of the hospital records and all other records, including the
autopsy or post-mortem records, x-rays reports or reports of other
technicians, not made available pursuant to this rule, and no party
shall be permitted to offer any evidence of injuries or conditions not
set forth or put in issue in the respective medical reports previously
exchanged, nor will the court hear the testimony of any treating or
examining medical providers whose medical reports have not been
served as provided by this rule." [*48]
Here, although this action is not trial ready, the point is driven home by subdivision [h] that plaintiff must provide defendant with diagnostic, prognostic and treatment reports, not only to trigger defendants' examination obligation under § 202.17, but also as a condition to offering this type of evidence or testimony at trial.
Uniform Rules § 202.17 provides that the examination process shall follow the provisions of the rule "Except where the court otherwise directs." Subdivision [j] provides that "any party may move to compel compliance or to be relieved from compliance with this rule or any provision thereof" and such motions "shall be granted or denied on such terms as to costs, calendar position and dates of compliance with any provision of this rule or the court in its discretion shall direct."
The court finds that it would be manifestly unfair to require the defendants to conduct examinations of the plaintiffs based upon this record and the total absence of any records demonstrating the treatment or diagnosis of the plaintiffs by any qualified provider for the injuries verified by plaintiffs' counsel in the Bills of Particulars.
Accordingly, under these facts at this juncture defendants are relieved from compliance with Uniform Rules § 202.17. Plaintiffs are directed to provide defendants within thirty (30) days of service, with Notice of Entry, of the order issued upon this decision with all records and reports of any and all educational, vocational, psychological, psychiatric or medical providers that have treated, examined, evaluated or diagnosed plaintiffs for any of the injuries set forth in items "a" through "hh" of plaintiffs' Bills of Particulars. In the event that plaintiffs have not been examined, evaluated, diagnosed or treated by any such provider for any of said injuries, plaintiffs' counsel shall provide a written statement to the defendants and the court to that effect within the aforesaid thirty (30) days.
All counsel are directed to appear at chambers at 10:00 a.m. on November 27, 2006 for the purpose of scheduling the deposition of Susan Adams and conferring and issuing a scheduling order for the completion of all discovery and the filing of the Trial Term Note of Issue.
This constitutes the decision of the court. Counsel for defendants Rizzo and Scaravillo to submit proposed order on notice.
ENTER
Dated: November 13, 2006________________________________
HON. EDWARD D. CARNI, J.S.C.
Footnotes
Footnote 1: Defendant Luttinger has not independently advanced a motion but has joined in and supports defendants Rizzo and Scaravillo's requests for relief.
Footnote 2: Plaintiffs' action against the Cifra defendants has been discontinued.
Footnote 3: Plaintiffs rely substantially upon the proposition that Susan Adams is purely a "non-party" and that defendants bear a higher burden of obtaining discovery from her. However, Professor Connors has offered an alternative and perhaps more realistic view in the Practice Commentary to CPLR § 3101 which states as follows:
"Suppose that a guardian is suing on behalf of an infant, or a committee on
behalf of an incompetent. As far as the availability of disclosure is concerned,
it is idle to waste time and thought on who is technically the party' in such a
case. If the infant is the party, disclosure should still be freely available against
the guardian if he has any knowledge bearing on the case. In these circumstances,
the guardian would likely be deemed an agent' under CPLR 3101(a)(1). Even
assuming the guardian is not a party, but a nonparty witness, the very fact that the
guardian represents the infant should satisfy the circumstances' rule of CPLR
3101(a)(4) and uphold such disclosure." (Connors, Practice Commentary,
McKinney's Consolidated Laws of NY, Book 7B, CPLR c3101:19, at 37-38).
Footnote 4: The holding in Walton means nothing more than defendants failed to make a sufficient factual showing of the absence of lead exposure injury causation to obtain the drastic remedy of summary judgment. It does not mean that a sufficient factual showing could never be made or that this type of evidence is inadmissible at trial or "forbidden" from exploration at the discovery stage. Indeed, all of the cases denying defendant's discovery in lead paint cases are founded upon a determination that there was an insufficient factual showing of the materiality and relevance of the information sought. This does not mean that these areas of discovery are "forbidden" or "out of bounds." Rather, it simply means that defendants have been submitting a poorly developed record in support of their discovery requests (see, Andon, 94 NY2d 740, 746 where defendant's expert failed to attach a compendium of scientific publications to his affidavit in support of his conclusions).
Footnote 5: At oral argument plaintiffs' counsel advanced the proposition that defendants should not be permitted to ask questions about these areas because in the end defendants couldn't obtain the records concerning these areas anyway ("If you can't get the records, you shouldn't be permitted to ask questions.")
Footnote 6: The court notes that following the return date of this motion, plaintiffs' counsel continued to submit to the court trial level decisions and orders in other cases denying defendants certain types of discovery in lead paint actions. Initially, Andon, supra, requires that each discovery request be analyzed under a case-by-case basis. Thus, according to the Andon holding, these cases have little, if any, persuasive value. Additionally, the court notes that, although vigorously supplying the court with decisions favorable to their position, plaintiffs have not provided the court with the well-reasoned decision in Whitehurst v Gandy, 7 Misc 3d 1017(A), 801 NYS2d 244 [2004] where the court found that defendants had made a sufficient showing that discovery of the parents' educational, employment and psychological records were relevant and material based upon expert affidavit relying upon specific scientific and medical research including the specific articles and their authors. Remarkably, in Whitehurst, the plaintiffs were also represented by Mo Athari, Esq.
Footnote 7: In an excellent discussion and review of lead paint discovery issues in the State of Virginia (Bunch v Artz, WL 2411428 [Va. Cir. Ct. 2006]) a defendant's expert neuropsychologist, Lawrence Charnas, M.D., Ph.D., opined that "reading and language disabilities are hereditable and are not associated with lead exposure" and that "it is important to know whether a plaintiff's parent required special education because it may affect how the parent raises the child, and it can reveal genetic and environmental factors affecting the plaintiff child." While Virginia decisional law and the opinions of Dr. Charnas are not binding and controlling on this court, the analysis in Bunch v Artz is illustrative of the complex legal and scientific issues presented in lead paint litigation and a thoughtful analysis thereof.
Footnote 8: Indeed, plaintiffs have requested a Frye hearing to test the scientific validity of plaintiffs' discovery requests. However, Frye pertains only to the admissibility of trial testimony and plaintiffs have not submitted any evidence, beyond the arguments of counsel, that the defendants are relying upon techniques and theories not found to be reliable within the scientific community generally (see, People v Wesley, 83 NY2d 417 [1994]).
Footnote 9: In Andon, the defendant's expert failed to identify or attach the scientific studies he relied upon to support his opinions on the significance of maternal IQ in evaluating lead paint injury causation (Andon, 94 NY2d at 746). In other words, the defendants failed to establish a sufficient foundation for the expert opinions and thus failed to make a sufficient showing to justify the IQ testing requested.
Footnote 10: It should be noted that a sibling's school records are not encompassed by any "privilege" (McGuane, 182 AD2d at 1082).
Footnote 11: The court notes that in personal injury actions there are often two proximate cause issues. The first being whether the defendant's allegedly negligent conduct proximately caused the accident or event (i.e. car accident, lead-paint exposure, etc.). The second being whether the accident or event proximately caused the injuries and damages complained of by plaintiff (Brucaliere v Garlinghouse, 304 AD2d 782 [2nd Dept 2003] [Issue of fact whether driver's negligence proximately caused the accident]; Canonico v Beechmont Bus Service, Inc., 15 AD3d 327 [2nd Dept 2005] [It is axiomatic that plaintiff bore the burden of proving, by a preponderance of the evidence, that defendants' negligence was a proximate cause of his injuries. Even when negligence and injury are both properly found, the negligent party may be held liable only where the alleged negligence is found to be a proximate cause of the injury]; Bocci v Turkowitz, 255 AD2d 476 [2nd Dept 1998][Defendants established that the motor vehicle accident was not the cause of plaintiff's disc bulge]).
Footnote 12: Plaintiffs' Bills of Particulars claim "Attention Deficit Hyperactivity Disorder" (ADHD) as one of the injuries suffered from lead exposure. However, the 2002 CDC publication, at pg 81 submitted by plaintiffs as exhibit "G"states: "At present there is no compelling evidence that an EBLL increases a child's risk for attention deficit hyperactivity disorder (ADHD). Efforts to identify a neurobehavioral signature' for children with EBLLs have generally been unsuccessful." (Id.) While various behavioral problems pertinent to the diagnosis of ADHD have been "linked" to EBLLs, the court's point is that there is far more required of plaintiffs to recover compensatory damages for all of the claimed sequelae than simply proving EBLLs. Likewise, the areas of discovery sought by defendants herein, as directed towards the myriad of neurodevelopmental injuries asserted by plaintiffs, are not foreclosed by the oversimplified and conclusory assertion that "lead poisoning is an injury in itself."
Footnote 13: Most people would accept the proposition that "smoking causes cancer." However, many people who smoke do not get cancer. On the other hand, many people who never smoked do get lung cancer. The recognition that a toxic substance "may" or "can" cause a particular injury does not equate to the "but for" or substantial factor showing that is required of plaintiffs to make out a prima facie case. General causation does not equal specific causation (see, People v Mobil Oil Corp., supra).
Footnote 14: The limitation of this communication privilege is frequently misapprehended and misapplied. A witness may be asked, and, if she knows, must answer the question, "Have you ever broken your leg?" However, unless the witness has placed her medical condition in issue and waived the privilege, she does not have to answer the question, "What did your doctor tell you about your broken leg?" The first question asks for a fact - the second asks for a privileged communication.
Footnote 15: The Ward court cited and relied upon McGuane v MCA, Inc., 182 AD2d 1081 [4th Dept 1992]. In McGuane the Fourth Department held that the school records of the infant plaintiff's sister and the family history regarding eye-related problems were "not encompassed by any privilege" but were of a "confidential and private nature which [did] not appear to be relevant to the issues of the case." Thus, the McGuane court did not find that the subject educational records and family history were privileged, "forbidden" or "out of bounds." Rather, the court in McGuane found an insufficient factual showing in that case of relevancy to the issues at hand.
Footnote 16: To the extent that other New York State court decisions may be at variance with Doe v Gonzaga, this court has, as it must, deferred to the United States Supreme Court's interpretation of FERPA, a federal law.
Footnote 17: A "child care institution" is generally defined in Education Law § 4001 [2] as any facility serving thirteen or more children licensed by the department of social services or a residential treatment facility operated by an authorized agency. In other words, it does not include public schools.
Footnote 18: The court notes here that the record reflects that Susan Adams was the source of this information in a Madison Central School District questionnaire where she had indicated that she had a "learning disability." This information was obtained within documents provided by the plaintiffs to defendants and there certainly can be no bona fide claim by plaintiffs that defendants do not have a "good faith" basis for pursuing this line of inquiry.
Footnote 19: As indicated, supra, the documents provided by Mr. Nixon's law office was the source of this information and line of inquiry.
Footnote 20: Without addressing it at length, Mr. Nixon's additional refusal to allow the witness to answer questions concerning the witness's attendance at high school or grammar school was palpably improper. In this court's view, it is not only permissible but also good practice to ascertain the educational level and experience of a witness being examined at a deposition. This information, at a minimum, aides the examiner in formulating and structuring witness-appropriate questions.
Footnote 21: There are multiple entries in Justin's medical records documenting his difficulties with asthma and the medical treatment he received for this condition (See, e.g. Community General Hospital Emergency Room admission record of September 18, 1995 with Justin's complaint of "I can't breathe" noted therein).
Footnote 22: This statement reflects a substantial lack of understanding of the relative burdens of proof and the nature of possible other appropriate areas of defense of this and many other forms of personal injury actions. The defense is always free to pursue a defense of other causes of a plaintiff's claimed injuries or disabilities, establish pre-existing conditions or demonstrate that the alleged disabilities are unrelated to the alleged negligent conduct. The defense is not in any way limited in pursuing these defenses because the plaintiff did not "put them in issue." That is precisely the point from the defendant's point of view - the plaintiff did not put them in issue because they would potentially serve to diminish or negate plaintiffs' damage claims.
Footnote 23: Aside from the fact that Mr. Nixon is not a qualified expert in neuropsychology, education, or other related fields, this statement wholly misses the point. The issue is the effect of asthma on academic performance, not "brain damage" and the two are entirely different conditions. One can demonstrate poor academic performance without having "brain damage" and it is inappropriate to equate the two. Moreover, it does not require an expert to comprehend that a serious chronic illness such as asthma could lead to a significant rate of absence from school with resultant academic performance deficiencies. In any event, defendants' expert, Margaret Paroski, M.D., in reliance upon an identified and submitted authoritative treatise, has opined that asthma is known to potentially impact cognitive ability, children with asthma have lower scores on school readiness skills and a greater need for help with learning compared to children without asthma.
Footnote 24: The 11th Circuit also recognized that other conditions such as allergies, migraine syndrome and sinusitis were encompassed by the IDEA. Moreover, the Regulations of the Offices of the Department of Education, 34 CFR § 300.7 [c][9], Child with a Disability, identifies asthma as an "other health impairment" that may adversely affect a child's educational performance'."
Footnote 25: There can be no doubt concerning defense counsel's "good faith basis" for pursuing this line of inquiry - Justin's medical records from Upstate Medical, provided by plaintiffs' counsel, contain an entry dated May 11, 1991 describing Justin being thrown from a car by his father.
Footnote 26: In this court's view, this sort of gratuitous, sardonic and wholly inappropriate comment at a deposition is precisely the type of conduct that serves to enhance the deterioration of professionalism and civility in civil litigation that has unfortunately become a hallmark of contemporary trial practice.
Footnote 27: The court notes that CPLR 3113 [c], Conduct of the examination, states that examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court. Mr. Nixon's conduct in interrupting defense counsel's examination and advancing self-serving questions of the witness would never be tolerated by this court at trial and is patently improper at a deposition. This is made more so because defense counsel's break in the questioning was a result of Mr. Nixon's improper demand for the production of "a document that says this child was carbon monoxide poisoned." The circumstances and degree of exposure to carbon monoxide are the operative facts - not the conclusion whether an emergency room health care provider diagnosed "carbon monoxide poisoning" or not. They are two (2) different things. Remarkably and improperly, while defense counsel was attempting to comply with this improper demand, Mr. Nixon took it upon himself to attempt to control the deposition and steer this witness in a patently self-serving direction.
Footnote 28: The court notes here that within the thousands of pages of records submitted on these motions, there is only one entry which addresses the issue of whether any of the plaintiffs' alleged learning difficulties, neurological injuries and psychological problems are in fact related to lead poisoning. In a chart entry dated 6/21/91, an individual (Howard L. Wimbly, MD [sic]?) States as follows: "On 6/17/91 I met with Mr. Walter Kogut and Mr. Sullivan of the Scolaro et al law firm regarding the Adams children and their exposure to lead in their home environment. *** Emphasis was placed on how difficult it is to determine cause and effect relationships in individual cases between lead exposure and neurologic and other deficits. *** Recommendations I made to the lawyers were as follows: *** b. He was advised to try to obtain a developmental assessment on Steffen to determine if indeed there is any neurologic problem. I emphasized that it would be difficult, if not impossible, to determine the cause and effect relationship if indeed he has neurologic findings. On the other hand, if he has no neurologic findings, it would be gratifying to note (albeit this may not be satisfactory information to the attorneys seeking some kind of compensation)." Plaintiffs have not submitted any record of any developmental assessment or neurologic findings correlating alleged deficits to lead exposure that was performed at any time and, in particular, following this physician's recommendation in 1991.
Footnote 29: There is no authority in CPLR 3113 for Mr. Nixon, after unilaterally deeming certain questions misleading or confusing, to essentially bully his way into controlling the direction and substance of the questioning. In this court's view there was nothing misleading or confusing about any of defense counsel's questions.
Footnote 30: Plaintiffs' counsel was provided with the opportunity to submit rebuttal expert evidence on this motion but did not do so (See, Athari letter of June 8, 2006).
Footnote 31: In this court's view, objections relating to privilege and confidentiality should be advanced by counsel with a sharp scalpel - not the sledge hammer that was used at the deposition of this witness.
Footnote 32: At one point in the deposition of Susan Adams, Mr. Nixon states as follows: "You're fishing. You're on a deep sea fishing expedition in a freaking swimming pool where you can't see the bottom of the pool. It's a waste of time. Please continue." (Adams Tr dated January 2, 2006 at pg. 94).
Footnote 33: In one remarkably insulting passage, Mr. Nixon stated the following on the record: "Don't answer questions about your background other than your three kids. Just because he asks a question, trust me, especially this lawyer, doesn't mean it's a proper question." (Susan Adams Tr dated January 3, 2006 at pg. 14) (Emphasis supplied).
Footnote 34: It appears at this juncture and based on this record that the only diagnosis of the claimed injuries has been made by plaintiffs' mother, Susan Adams, and plaintiffs' counsel.
Footnote 35: The March 2002 CDC report submitted by plaintiffs indicates that parental intelligence and social class account for a much larger outcome variance than lead exposure in neurodevelopmental status (Id. at pg. 83). Moreover, other factors might help children to weather the developmental insult of early lead exposure, either preventing neurodevelopmental effects from being expressed or facilitating subsequent recovery of function." (Id. at 84). In other words, the information submitted by plaintiffs establishes that the causal link is much more complex than offered by plaintiffs. Causation is not established by preparing a laundry list of the universe of sequelae associated with lead exposure and simplistically concluding that the plaintiffs have the entire list and each item was caused by a prior lead exposure.
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