In representing children suffering from lead poisoning, plaintiff's counsel will invariably encounter defense counsel seeking the records of non-parties and broad discovery of records concerning the injured plaintiff. The defendant may not engage in an impermissible fishing expedition, however -- the commencement of a personal injury lawsuit is not a wholesale waiver of privilege of all information about the plaintiff's entire mental and physical conditions.
By Sherri Sonin and Robert J. Genis|December 19, 2002 at 12:00 AM
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In representing children that have suffered the toxic effects of lead poisoning, [FOOTNOTE 1] plaintiff’s counsel will invariably encounter defense counsel seeking the records of non-parties and broad discovery of records concerning the injured plaintiff. The commencement of a personal injury lawsuit is not a wholesale waiver of privilege of all information about the plaintiff’s entire mental and physical conditions, but only a waiver of those conditions that are affirmatively placed in controversy. It does not include information involving unrelated illnesses and treatments. [FOOTNOTE 2] The defendant may not engage in an impermissible fishing expedition. [FOOTNOTE 3] The court may properly limit the discovery of the plaintiff’s medical records to a finite period of time. [FOOTNOTE 4] Where the defendant is seeking a broad range of records spanning a long period, it must provide a foundation for its request. A proper foundation requires affidavits from medical experts attesting to the link between the injuries claimed and the records sought. [FOOTNOTE 5] At minimum, the court can conduct an in camera inspection of the records and redact all non-discoverable records. Moreover, where a defendant’s discovery demands are palpably improper, they do not require a response. [FOOTNOTE 6] The defendant may not improperly obtain records through subterfuge. [FOOTNOTE 7] Similarly, the defendant may not subpoena plaintiff’s treating physician for an examination before trial (EBT) in order to get a contrary history of how the accident occurred. [FOOTNOTE 8] At an EBT, the defendant cannot require the plaintiff to demonstrate how he was injured; only a verbal explanation is permissible. [FOOTNOTE 9]NON-PARTY FAMILY MEMBERS Children are the usual casualties of lead poisoning. By law, they must be represented by an adult who brings suit in a representative capacity. [FOOTNOTE 10] It is long and well established that a plaintiff who sues in a representative capacity as, for example, the mother and natural guardian of an infant, does not thereby place her own medical history in issue and waive her physician-patient privilege (CPLR 4504; CPLR 4507 and 4508). [FOOTNOTE 11] Merely placing references to a mother’s medical history in the plaintiff’s bill of particulars does not constitute a waiver of the privilege. This rule of law is applicable to the non-party relatives of an infant plaintiff that contracted lead poisoning as well. [FOOTNOTE 12] Similarly, the plaintiff’s guardian has not put her mental or physical condition in controversy and has not waived her privilege protecting her medical records. This may include prenatal records and records from the Department of Social Services. [FOOTNOTE 13] Moreover, pursuant to CPLR 3120(b), a motion for disclosure directed against a non-party requires that the motion be served on notice to all adverse parties, and that the non-party shall be served with notice on motion in the same manner as a summons. [FOOTNOTE 14] If the movant fails to serve the non-party parent(s) and/or sibling(s) in an appropriate manner, the court will lack jurisdiction over the matter and will not be able to entertain the motion for the relief requested. [FOOTNOTE 15] Parents and siblings are entitled to protection against the release of confidential medical information. In the absence of waiver, this material is privileged, and the non-parties’ privilege against disclosure, which is personal to them, cannot be defeated by defendant’s assertion that it is material and necessary to their defense. [FOOTNOTE 16] Because the “facts” of the medical condition of the non-parties cannot be proven at trial, it is improper to attempt to elicit such facts at an EBT. The defendant cannot question the mother at an EBT about her non-party children’s academic backgrounds, their medical histories, their developmental achievements, their IQs, their hobbies, and her history of pregnancies, abortions and whether the non-party father had a history of substance abuse. [FOOTNOTE 17]NON-MEDICAL RECORDS With respect to the non-medical records of siblings, such as academic records, while such records are not necessarily privileged, they are of a confidential and private nature. [FOOTNOTE 18] The party seeking such records must establish its relevance and materiality for discovery, and demands for such records may be considered palpably improper. [FOOTNOTE 19] A court properly exercises its discretion by denying a motion to compel the plaintiff to produce authorizations to obtain the academic records of the infant plaintiff’s siblings, [FOOTNOTE 20]and a court may commit error where it orders such disclosure. [FOOTNOTE 21] Similarly, the employment records of the non-party parents are not discoverable. [FOOTNOTE 22] Moreover, records of cognitive performance, such as IQ tests, of non-parties, such as parents and siblings, are not discoverable, and the defendant cannot compel a non-party to undergo an IQ test. [FOOTNOTE 23] In Andon v. 302-304 Mott Street Associates, 257 A.D.2d 37 (1st Dept. 1999), aff’d, 94 N.Y.2d 740 (2000), the court again reiterated the rule that where the plaintiff mother has not asserted a claim for personal injuries of her own, she has not placed her mental or physical condition in issue, and the defendant’s contention that there is a correlation between a mother’s IQ and a child’s intelligence is insufficient grounds to violate this rule. A party’s mental or physical condition is not “in controversy” merely because another party has placed such condition in issue. [FOOTNOTE 24] In Andon, the court also rejected the defendant’s claim that it was entitled to conduct an IQ examination of the mother under CPLR 3101. The court also noted that while questions posed and answers provided during an IQ exam may not, in themselves, be of a confidential nature, it is undeniable that the information obtained is confidential. Indeed, affidavits by defense experts, even those referring to purportedly independent scientific studies may not suffice as a basis for allowing such intrusive testing. [FOOTNOTE 25] Upon the assertion of a privilege or in view of a lack of relevance, pursuant to CPLR 3103(a), the court may at any time on its own initiative or on motion of any party or of any person from whom discovery is sought, make a protective order denying or limiting the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person. This section may be properly used to prevent improper disclosure of a non-party. [FOOTNOTE 26]CONCLUSION Plaintiff’s counsel should point out that in a case of lead poisoning, the trier of fact will usually have the infant plaintiff’s birth records, pediatric records and school records to form a baseline against which the development of the child may be seen, and to determine if there is a change in the child’s development after the ingestion of a known toxic element. Armed with such objective records, there is no need to violate privilege or pierce confidential records of non-parties that are not probative of anything. Defendants will frequently seek to improperly obtain privileged or confidential non-party records to intimate that an anything-but-lead defense caused the infant plaintiff’s brain damage. Sherri Sonin and Robert J. Genis are partners in the Bronx law firm of Sonin & Genis.
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