On June 12, the N.Y. Court of Appeals clarified the interplay of a rule intended to require injured plaintiffs to produce medical reports of health care providers who previously treated or examined the plaintiff [22 NYCRR 202.17(b)(1)] with a broader discovery rule requiring a measure of disclosure regarding a plaintiff’s proposed expert testimony [CPLR 3101(d)]. In Hamilton v. Miller, 2014 NY Slip Op 04230 (Ct. App. June 12, 2014), the two disclosure devices leeched one into the other because of lower court rulings that plaintiffs must do more than the treating physician rule actually mandates and do so earlier than the expert disclosure rule requires.
Hamilton is an important decision but its holding and effect should not be exaggerated. Already, some quarters – mistakenly in my opinion – are trumpeting the decision as a lessening of proof burdens in lead paint litigation and, therefore, an invitation, in effect, to an “open season” on filing such lawsuits. But, closely and fairly read, Hamilton does not (and ought not) herald a stampede of new claims condoning flimsier proofs. In fact, my Complex Litigation column in the N.Y. Law Journal two months ago [“Ruling on Mold Clarifies ‘Reliability’ Needed From Experts,” NYLJ, April 14, 2014, p. 3 (also available on LEXIS)] reports on the Cornell decision by this same Court of Appeals requiring reliably dignified proof by experts in toxic tort litigation or else the suit will be thrown out. The Court of Appeals surely is not saying in Hamilton that less expert proof is needed now than that required a scant two months ago.
So, avoiding overstatements and exaggerations, let’s see what the state’s highest court actually held in Hamilton. The reader will see that information that should be disclosed must be produced but the two disclosure rules are different. The timing of disclosure under each may be different (depending on the case) and one has to use the correct disclosure device at the appropriate time. Mixing the separate disclosure rules to produce a hybrid court order does not work in some situations. The two independent lead paint litigations at issue in Hamilton presented such scenarios and the Court of Appeals offered clarification. If there is a shorthand takeaway message, it might be, “‘Yes’ to disclosure but in due time.”
Let’s home in on Hamilton and focus on the Court’s rulings and rationales. Plaintiff Giles, now an adult, sued for some 35 injuries (physical, neurological and psychological problems) he attributed to exposure to lead-based paint in rental units in which he lived as a child. Defendants were owners of those rental units. Defendant served medical examination notices under CPLR 3121 and requested production, prior to the defense medical examination, of copies of reports by any physician who treated or examined the plaintiff. Plaintiff disclosed some medical and educational records showing that he had lead poisoning as a child and later academic problems. But these records did not substantiate the 35 alleged injuries or their causal relationship to lead poisoning.
Defendants moved to compel compliance with 22 NYCRR 202.17(b). They wanted production of medical reports detailing a diagnosis of the injuries caused by lead-paint exposure or, if not produced, preclusion of plaintiff from introducing proof of these injuries at trial. They wanted these reports before the defense medical examinations. Without such production, argued defendants, they would have to pay multiple medical professionals to examine plaintiff. They also asked the court to order plaintiff to amend his bill of particulars to reflect those injuries actually sustained.
Plaintiff Giles responded with a motion of his own. He needed a protective order, arguing that defendants were prematurely demanding expert reports. The trial court agreed with defendants and the Appellate Division, Fourth Department, affirmed with one Justice dissenting. In the dissenting Justice’s view, these were needless burdens on plaintiff, akin to forcing him to retain an expert prior to the defense’s medical exam, a step not required at this stage of the lawsuit. The Appellate Division did grant plaintiff permission to appeal.
In the second litigation, plaintiff Hamilton (represented by the same lawyers as Giles) sued owners of properties where he lived as a child. Now an adult, he claimed 58 injuries from lead-paint exposure (physical, psychological, psychiatric and developmental). Hamilton disclosed medical and educational records showing he had lead paint poisoning as a young child but the records neither substantiated the 58 claimed injuries nor causally related them to lead poisoning. Defendants noticed medical examinations and demanded medical reports that diagnosed the injuries and causally related them to lead-based paint. Hamilton responded that he was not obligated to produce further records.
Defendants moved to compel disclosure of the reports and amendment of plaintiff’s bill of particulars to reflect those injuries actually sustained. If not forthcoming, defendants wanted an order precluding proof of the alleged injuries at trial. Hamilton cross-moved for a protective order.
The trial court denied Hamilton’s motion, granted defendants’ motion and ordered production of the medical report detailing any injuries sustained as a result of defendants’ negligence and causally relating those injuries to lead-paint exposure. Failure to produce such records would result in preclusion of proof of injuries at trial. Hamilton also was ordered to amend his bill of particulars. The Appellate Division, Fourth Department, affirmed but granted plaintiff leave to appeal. The state’s highest court considered the Giles and Hamilton cases together.
The Court of Appeals reversed but its parsing of the different disclosure rules and their interface was nuanced. Plaintiffs didn’t have to do all that defendants wanted before the defense medical exams. But plaintiffs eventually will have to disclose enough about causal proofs to satisfy the needs of discovery. In a nutshell, the essence for lawyers to think about is, “which discovery rule is supposed to do what and when.”?
Defendants in these lead paint cases have to be patient and get only what NYCRR 202.17(b)(1) requires be produced at the appropriate time. Expert opinions on causal connections relating the injuries to the toxic exposure can come independently during the expert discovery phase. Plaintiffs don’t have to hire physician experts to provide litigation causation opinions when producing their physician reports under NYCRR 202.17(b)(1). But they can’t evade disclosure of causation evidence indefinitely. This will have to be part of their expert disclosure. Otherwise, there can be preclusion of evidence or a grant of summary judgment. If the normal time frames need to be changed, the litigants can resort to motion practice giving good reasons to alter these phases of discovery.
Here is how the Court of Appeals shaped the decision as I capsuled it above. These cases were more complicated scenarios than normal medical report productions. One plaintiff claimed 35 injuries, the other 58. Based on the dearth of medical evidence in the record, however, “plaintiffs may never have been treated for or diagnosed with many of the alleged injuries.” This posed the question: what must plaintiffs disclose to comply with NYCRR 202.17(b)(1)? [Hamilton, NY Slip Op. 04230, at p. 5).
The Court said, “[t]o the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree.” Such a requirement “could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits.” Some may not be able to afford a medical exam or may not even have access to a doctor. “Plaintiffs therefore need only produce reports from medical providers who have ‘previously treated or examined’ them.” [Id. at pp. 5-6]
However, if plaintiffs claim that they need to turn over only those medical reports that currently exist, “we disagree.” The rule is obligatory. It requires “comprehensive reports from their treating and examining medical providers – the reports ‘shall include a recital of the injuries and conditions as to which testimony will be offered at the trial.’” [Id. at p. 6 (Emphasis by Court) (quoting 22 NYCRR 202.17(b)(1)].
Plaintiffs therefore “cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17(b)(1).” If the medical reports don’t contain the information required by the rule, “then plaintiffs must have the medical providers draft reports setting forth that information.” If that is not possible, plaintiffs “must seek relief from disclosure and explain why they cannot comply with the rule.” [Id. at p. 6]
What did go beyond the purview of the rule was the requirement that plaintiffs produce, prior to the defense examination, a medical report “causally relating plaintiffs’ injuries to lead paint exposure” or face preclusion of proof. The rule requires that the medical reports “include a recital of the injuries and conditions as to which testimony will be offered at the trial … including a description of the injuries, a diagnosis, and a prognosis.” But there is no requirement that the doctors “causally relate the injury to the defendant’s negligence or, in this case, the lead paint exposure.” [Id. at p. 7]
When determining causation requires evidence from a medical professional, causation “is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101(d).” Further, if defendants wish to “expedite expert discovery,” they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then “defendants can move for and obtain summary judgment.” [Ibid.]
One further ruling is noteworthy. Hamilton moved under CPLR 4511 that the court take judicial notice of a federal statute [42 U.S.C. § 4851] expressing Congress’s findings that “at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities” and other problems. Plaintiff sought such judicial notice to avoid proving “general causation, i.e., that lead paint exposure can cause some or all of his alleged injuries.” The lower courts rejected this motion. The Court of Appeals agreed. The congressional findings were not “law” relevant to Hamilton’s case. “Taking judicial notice of the statutory findings under CPLR 4511 would be inappropriate.” [Id. at 7-8]
The Court of Appeals’ Hamilton decision clarifies the interplay of several discovery devices in New York toxic tort litigation. Medical reports are discoverable at their proper time. Expert disclosure is to be made at its proper time. Deviation from the normal discovery timetable and stages in a case requires carefully-structured motions to amend scheduling orders or other appropriate relief.