| Giles v Yi |
| 2013 NY Slip Op 02859 [105 AD3d 1313] |
| April 26, 2013 |
| Appellate Division, Fourth Department |
| Shawn Giles, Also Known as Shawn Anthony Coffee,Appellant, v A. Gi Yi et al., Respondents, et al., Defendants. |
—[*1] Hiscock & Barclay, LLP, Rochester (Gary H. Abelson of counsel), fordefendant-respondent Gerald Breen. Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (WilliamWingertzahn of counsel), for defendant-respondent A. Gi Yi.
Appeal from an order of the Supreme Court, Monroe County (Matthew A.Rosenbaum, J.), entered December 15, 2011. The order, insofar as appealed from,granted the motion of defendant Gerald Breen to compel plaintiff to produce certainmedical reports, under penalty of preclusion, and denied the cross motion of plaintiff fora protective order.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries heallegedly sustained as a result of his exposure to lead-based paint while residing in anumber of apartments rented to his mother from 1992 through 1996, includingapartments owned by A. Gi Yi and Gerald Breen (defendants). As amplified by his billsof particulars, plaintiff alleged that he suffered 35 injuries as a result of his leadexposure, including neurological damage, diminished cognitive function andintelligence, behavioral problems, developmental deficiencies, increased probability ofemotional and psychological impairments, hyperactivity, irritability, memory deficits,decreased educational and employment opportunities, and speech and language delays.
Pursuant to CPLR 3121 and Uniform Rules for Trial Courts (22 NYCRR) §202.17, Breen served notices fixing the time and place of two medical examinations(hereafter, examinations) and requested "copies of any reports of any physicians whohave treated or examined the plaintiff" in advance of the examinations (see 22NYCRR 202.17 [b] [1]). In response, plaintiff provided Breen with educational recordsand medical records of his treating physicians. None of those records, however, linkedthe particular conditions, symptoms, or problems that plaintiff was experiencing with hisexposure to lead (see Nero vKendrick, 100 AD3d 1383, 1383 [2012]).
Breen postponed the examinations and moved to compel plaintiff to produce"medical reports of treating or examining medical service providers detailing a diagnosisof all injuries [*2]alleged to have been sustained byplaintiff as a result of exposure to lead-based paint" or, in the alternative, to "preclud[e]the plaintiff[ ] from introducing proof concerning said injuries." Breen asserted that,without such information, he would be "forced to determine the nature and extent of the[examinations] to be performed without any evidence that the alleged injuries sustainedby plaintiff: (1) exist, and (2) are causally related to ingestion and/or inhalation oflead-based paint as alleged in [the] [c]omplaint." A. Gi Yi joined in Breen's motion tocompel.
Plaintiff opposed the motion and cross-moved for, inter alia, a protective orderpursuant to CPLR 3103. Plaintiff contended that his bills of particulars provideddefendants with sufficient notice of his alleged injuries. With respect to causation,plaintiff's attorney asserted that plaintiff "suffered [lead] neurotoxicity at. . . blood lead levels known to cause severe brain and nerve damage duringhis residence at the defendants' respective properties," and cited various governmentreports and studies detailing the potential effects of lead poisoning in young children.Plaintiff further contended that defendants were in effect seeking an expert reportpursuant to CPLR 3101 (d) as opposed to the report of a medical provider pursuant to 22NYCRR 202.17, and were improperly requesting that plaintiff "prematurely go throughthe expense of retaining an expert."
Plaintiff appeals from an order that granted the motion "in all respects," denied thecross motion, and directed plaintiff to produce "a medical report or reports of any treatingor examining medical service provider detailing a diagnosis of any injuries alleged tohave been sustained by the plaintiff . . . and causally relating said injuries toplaintiff's alleged exposure to lead-based paint . . . before any[examinations] are conducted." The order further provided that, "in the event the plaintifffails to produce the aforementioned report or reports, [he] shall be precluded fromintroducing any proof concerning injuries alleged to have been sustained by theplaintiff." We affirm.
It is well settled that "[a] trial court has broad discretion in supervising the discoveryprocess, and its determinations will not be disturbed absent an abuse of that discretion"(Finnegan v Peter, Sr. & MaryL. Liberatore Family Ltd. Partnership, 90 AD3d 1676, 1677 [2011]; see Hann v Black, 96 AD3d1503, 1504 [2012]; WILJEFF, LLC v United Realty Mgt. Corp., 82 AD3d1616, 1619 [2011]). New York has long adhered to a policy of liberal, open pretrialdisclosure (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954[1998]; DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193 [1992]). CPLR3101 (a), which governs discoverability, broadly provides that "[t]here shall be fulldisclosure of all matter material and necessary in the prosecution or defense of an action"(see Hoenig v Westphal, 52 NY2d 605, 608 [1981]; Patrick M. Connors, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3101:4). That provision"has been liberally construed to require disclosure where the matter sought will 'assistpreparation for trial by sharpening the issues and reducing delay and prolixity' "(Hoenig, 52 NY2d at 608, quoting Allen v Crowell-Collier Publ. Co., 21NY2d 403, 406 [1968]). "Thus, restricted only by a test for materiality 'of usefulness andreason' . . . , pretrial discovery is to be encouraged" (id., quotingAllen, 21 NY2d at 406).
With respect to specific disclosure devices, CPLR 3121 (a) provides for a physical ormental examination of any party when that party's physical or mental condition is "incontroversy" (see Hoenig, 52 NY2d at 609; Patrick M. Connors, PracticeCommentaries, CPLR 3121:1). CPLR 3121 (b) provides for the exchange of certainmedical reports (see Hoenig, 52 NY2d at 609), and Uniform Rule § 202.17"elaborates on the exchange of medical reports in tort actions, supplying more detail thanCPLR 3121 (b)" (Patrick M. Connors, Practice Commentaries, CPLR 3121:8 at 313).Uniform Rules for Trial Courts (22 NYCRR) § 202.17 provides in relevant partthat, "[e]xcept where the court otherwise directs, in all actions in which recoveryis sought for personal injuries, disability or death, physical examinations and theexchange of medical information shall be governed by the [*3]provisions hereinafter set forth: (a) At any time afterjoinder of issue and service of a bill of particulars, the party to be examined or any otherparty may serve on all other parties a notice fixing the time and place of examination. . . (b) At least 20 days before the date of such examination, or on suchother date as the court may direct, the party to be examined shall serve upon and deliverto all other parties the following, which may be used by the examining medical provider:(1) copies of the medical reports of those medical providers who have previously treatedor examined the party seeking recovery. These shall include a recital of the injuries andconditions as to which testimony will be offered at the trial, referring to and identifyingthose x-ray and technicians' reports which will be offered at the trial, including adescription of the injuries, a diagnosis and a prognosis" (emphasis added).
CPLR 3103 (a) vests a trial court with the discretion to "make a protective orderdenying, limiting, conditioning or regulating the use of any disclosure device," either "onits own initiative, or on motion of any party or of any person from whom discovery issought." Such an order "shall be designed to prevent unreasonable annoyance, expense,embarrassment, disadvantage, or other prejudice to any person or the courts"(id.).
Under the unique circumstances of this case, we conclude that Supreme Court didnot abuse its broad discretion in directing plaintiff to produce a medical report containinga diagnosis of the alleged injuries sustained by plaintiff and causally relating suchinjuries to lead exposure before any CPLR 3121 examinations are conducted. Aspreviously noted, plaintiff alleges numerous and wide-ranging neurological,physiological, psychological, educational, and occupational effects of his childhoodexposure to lead. Although plaintiff disclosed his medical and educational records, noneof those records diagnoses plaintiff with a lead-related injury or causally relates any ofplaintiff's alleged physical or mental conditions to lead exposure. Indeed, plaintiff'smother testified at her deposition that no health care provider had ever told her thatplaintiff had "any residual injuries from lead exposure." The only reference in thedisclosed records to an injury that may have been caused by exposure to lead is a schooldistrict health and development assessment, which states that "[e]levated [blood] leadlevel may have had an effect" on plaintiff's educational performance.
Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do notrequire the disclosure directed in this case, they likewise do not precludea trial judge from proceeding in the manner at issue herein. As the Court of Appeals hasnoted, "CPLR 3121 does not limit the scope of general discovery available, subject to thediscretion of the trial court, under CPLR 3101" (Kavanagh, 92 NY2d at953-954). Rather, CPLR 3121 "broadens rather than restricts discovery" (Hoenig,52 NY2d at 609). With respect to Uniform Rules for Trial Courts (22 NYCRR) §202.17, that rule is prefaced by the phrase "[e]xcept where the court otherwise directs,"thus preserving the trial judge's discretion to manage the discovery process (seegenerally CPLR 3101 [a]; 3103 [a]).
Contrary to the view of the dissent, our affirmance of the trial court's order does notimpose "unduly burdensome obligations not contemplated by 22 NYCRR 202.17" uponall personal injury plaintiffs. Rather, we simply conclude that where, as here, the recordsproduced by a plaintiff pursuant to Uniform Rules for Trial Courts (22 NYCRR) §202.17 contain no proof of medical causation, i.e., evidence causally linking theplaintiff's alleged injuries to his or her exposure to lead, it is not an abuse of discretionfor a trial court to determine that "defendants should not be put to the time, expense andeffort of arranging for and conducting a medical examination of plaintiff without thebenefit of [a] report[or reports] linking the symptoms or conditions of plaintiff todefendants' alleged negligence" (Nero, 100 AD3d at 1384; see generallyCPLR 3101 [a]; Finnegan, 90 AD3d at 1677; Neuman v Frank, 82 AD3d1642, 1643 [2011]).[*4]
In contrast to the vast majority of personal injuryactions, which involve discrete injuries sustained at a specific point in time, lead paintcases typically involve exposure over a sustained period of time and, unlike other toxictort cases, there is no "signature injury" that is linked to lead exposure in the way that, forexample, mesothelioma is linked to asbestos, emphysema is linked to cigarette smoke, oradenosis is linked to diethylstilbestrol, known as DES (Brenner v AmericanCyanamid Co., 263 AD2d 165, 173 [1999]; see Lindsay F. Wiley,Rethinking the New Public Health, 69 Wash & Lee L Rev 207, 242 [2012];Kenneth R. Lepage, Lead-Based Paint Litigation and the Problem of Causation:Toward a Unified Theory of Market Share Liability, 37 BC L Rev 155, 158[1995]). The injuries plaintiff alleges herein, such as hyperactivity, speech andlanguage delays, irritability, memory deficits, and the increased probability of emotionaland psychological impairments, "could have been caused by some source other thanlead" (Brenner, 263 AD2d at 173) and, indeed, there is nothing in the disclosedmedical records linking plaintiff's alleged injuries to lead exposure.
The dissent further asserts that our ruling requires a plaintiff to retain an "expert" atan "early stage of litigation." We disagree with that assertion. Contrary to the dissent'scharacterization, the order at issue on appeal was issued near the close of discovery, afterthe parties had exchanged medical and educational records and conducted depositions ofthe relevant witnesses. Moreover, the trial court did not require plaintiff to retain anexpert within the meaning of CPLR 3101 (d) to render an opinion on causation. Rather,the court ordered plaintiff to produce a "medical report or reports of any treating orexamining medical service provider." Pursuant to Uniform Rules for Trial Courts (22NYCRR) § 202.17 (b) (1), medical reports "may consist of completed medicalprovider, workers' compensation, or insurance forms that provide the informationrequired by this paragraph," i.e., "a description of the injuries, a diagnosis and aprognosis." Thus, the court simply required plaintiff to provide somedocumentation diagnosing plaintiff with the injuries alleged and linking thoseinjuries to the exposure to lead before requiring defendants to proceed with a physical ormental examination.
As the Court of Appeals has noted, the purpose of CPLR 3121 (a) is to afford theexamining party the "opportunity to present a competing assessment" of the otherparty's physical or mental condition, which presumes that the examining party hasreceived from the plaintiff medical reports concerning the plaintiff's claimed injuries andtheory of causation (Kavanagh, 92 NY2d at 955 [emphasis added]). The trialcourt's order is thus consistent with 22 NYCRR 202.17 and the CPLR's general emphasison broad disclosure, which facilitates more meaningful trial preparation "by requiringeach party to 'tip their hand' well in advance of trial. This avoids surprise and tends tobase the final result on the facts rather than on tactics" (Patrick M. Connors, PracticeCommentaries, CPLR 3101:4 at 18).
We therefore conclude that, under the circumstances of this case, "it cannot be saidthat the trial court abused its discretion in finding that the need for the discoveryoutweighed the burden on the protesting party" (Kavanagh, 92 NY2d at 955),and thus there is no basis to " 'disturb the court's control of the discovery process' " (Marable v Hughes, 38 AD3d1344, 1345 [2007]).
All concur except Whalen, J., who dissents and votes to reverse the order insofar asappealed from in accordance with the following memorandum.
Whalen, J. (dissenting). I respectfully dissent because the majority's holding imposesunduly burdensome obligations not contemplated by 22 NYCRR 202.17 uponindividuals seeking recovery for personal injuries. Contrary to the view of the majority,22 NYCRR 202.17 does not require a personal injury plaintiff to retain an expert toaddress the issue of causation and provide the expert's report to the defendant prior to thedefense medical examination of plaintiff.[*5]
Pursuant to CPLR 3121, defendants in personalinjury actions may require a plaintiff to submit to a medical examination (seeCPLR 3121 [a]). The procedures for the examination itself and the exchange of medicalrecords prior to the examination are governed by 22 NYCRR 202.17. Pursuant toparagraph (b) of the regulation, a party submitting to such a medical examination mustprovide "to all other parties" at least 20 days before the date of the examination "(1)copies of the medical reports of those medical providers who have previously treated orexamined the party seeking recovery. These shall include a recital of the injuries andconditions as to which testimony will be offered at the trial, referring to and identifyingthose X-ray and technicians reports which will be offered at the trial, including adescription of the injuries, a diagnosis and a prognosis. Medical reports may consist ofcompleted medical provider, workers' compensation, or insurance forms that provide theinformation required by this paragraph; (2) duly executed and acknowledged writtenauthorizations permitting all parties to obtain and make copies of all hospital records andsuch other records, including X-ray and technicians' reports, as may be referred to andidentified in the reports of those medical providers who have treated or examined theparty seeking recovery." In the event that a party fails to disclose the material discussedin paragraph (b), he or she shall generally be precluded from introducing the materials attrial (see 22 NYCRR 202.17 [h]). Likewise, the court will not hear the testimonyof any treating or examining medical provider whose medical reports have not beenprovided (see id.).
In its holding today, the majority concludes that, under 22 NYCRR 202.17 (b),plaintiff is required: (1) to retain an expert witness to render an opinion that plaintiff'smedical conditions are causally related to his alleged exposure to lead-based paint; and(2) to provide that expert's report to defendants before plaintiff submits to the medicalexamination sought by defendants. Stated another way, the majority's holding requiresplaintiff to create proof as to the cause of his medical conditions prior toundergoing defendants' medical examination. Such a requirement, however, is outsidethe scope of 22 NYCRR 202.17.
Of course, for plaintiff to succeed at trial, he will likely need to retain an expert toreview his medical records and render the type of causation opinion contemplated by themajority. However, nothing in the language of 22 NYCRR 202.17 requires plaintiff tomake such a disclosure, which is tantamount to an expert disclosure, at this early stage oflitigation. Instead, by its plain language, 22 NYCRR 202.17 (b) (1) requires only thedisclosure of "medical reports of those medical providers who have previously treatedor examined the party seeking recovery" (emphasis added).
First, under 22 NYCRR 202.17 (b) (1), a personal injury plaintiff is required only toprovide medical reports from "medical providers." Although the term "medicalproviders" is not defined in the regulation or in the CPLR, the term must be reasonablyinterpreted to mean individuals who render medical services. Indeed, other states haveadopted similar definitions in various contexts (see e.g. Or Admin R436-010-0005 [27], [28] [within context of workers' compensation, Oregon regulationdefining "Medical Service Provider" as "a person duly licensed to practice one or more ofthe healing arts" and "Medical Provider" as "a medical service provider, a hospital,medical clinic, or vendor of medical services"]; see also Palmer v Caruso, 2009WL 4251114,*3 n 2, 2009 US Dist LEXIS 110160, *7 n 2 [WD Mich 2009] [noting thata policy directive of the Michigan Department of Corrections defines "Medical ServiceProvider" as "(a) physician, physician assistant or nurse practitioner licensed by the Stateof Michigan or certified to practice within the scope of his/her training"]). In my view, anexpert witness retained to render an opinion as to causation solely for purposes oflitigation is not a "medical provider" as that term is commonly understood, and thedisclosure of such an expert's report is outside the scope of 22 NYCRR 202.17 (b).
Second, even if I were to assume that a retained expert witness is somehow a"medical [*6]provider" within the meaning of 22NYCRR 202.17 (b) (1), I would conclude that the regulation requires a personal injuryplaintiff to provide only the reports of medical providers who have "previouslytreated or examined the party seeking recovery" (emphasis added). Nothing in section202.17 (b) (1) requires a personal injury plaintiff to create a report that has not previouslybeen generated by one of his medical providers. That interpretation is supported by 22NYCRR 202.17 (g), which outlines the procedure for a personal injury plaintiff'ssubmission of supplemental reports when the plaintiff "intends at the trial to offerevidence of further or additional injuries or conditions, nonexistent or not known to existat the time of service of the original medical reports." Subdivision (g) allows a plaintiffto serve a supplemental medical report "not later than 30 days before trial" so long as theplaintiff makes himself or herself available for an additional medical examination "notmore than 10 days" after the service of the supplemental medical report. Although thiscase does not involve a new injury or condition, I see no basis for allowing a plaintiff tointroduce evidence of new injuries after the initial defense medical examination but, atthe same time, denying him or her the ability to follow the same procedure with respectto a new expert report.
In this case, the majority relies on our decision in Nero v Kendrick (100 AD3d 1383 [2012]) for its holding.In Nero, this Court reasoned that the moving "defendants should not be put to thetime, expense and effort of arranging for and conducting a medical examination ofplaintiff without the benefit of reports linking the symptoms or conditions of [theinjured] plaintiff to [their] alleged negligence" (id. at 1384). However, ourdecisions here and in Nero effectively require plaintiffs to incur onerous expertwitness expenses at an early stage of litigation out of a concern for the convenience ofdefendants. Such a requirement will have a chilling effect on personal injury litigation aslaw firms representing plaintiffs will be hesitant to accept new cases if they are requiredto retain expert witnesses at the outset of the litigation.
Ultimately, 22 NYCRR 202.17 simply does not address whether a personal injuryplaintiff must retain an expert witness to render an opinion on the issue of causationand/or disclose that expert's report prior to the defense medical examination. Pursuant to22 NYCRR 202.1 (d), the provisions of part 202, which includes 22 NYCRR 202.17,"shall be construed consistent with the [CPLR], and matters not covered by theseprovisions shall be governed by the CPLR." The disclosure of expert witnesses isgoverned by CPLR 3101 (d), which does not require plaintiffs to provide expert reportsprior to defense medical examinations. For these reasons, I respectfully dissent andwould reverse the order insofar as appealed from, based on my conclusion that SupremeCourt abused its discretion in granting the motion to compel and denying the crossmotion for inter alia, a protective order, thus directing plaintiff to obtain and produce anexpert report on the issue of causation prior to the defense medical examination. To theextent that Nero (100 AD3d 1383) holds otherwise, I conclude that the case waswrongly decided. Present—Scudder, P.J., Peradotto, Carni, Whalen and Martoche,JJ.