On June 12, 2014, the Court of Appeals of New York, in Hamilton v. Miller, et al 2014 WL 2608461 (2014), ruled that plaintiffs in lead paint exposure cases are no longer required to generate and disclose medical reports establishing the causal link between lead paint exposure and their claimed injuries prior to the scheduling of a defense medical examination. This decision changes the landscape of lead paint litigation and requires an analysis of prior case law in order to fully understand its ramifications.
In 2012, the Appellate Division, Fourth Department, in Nero v. Kendrick 100 A.D. 3d 1383 (4th Dept., 2012), upheld the trial court's scheduling order requiring the plaintiff to both generate and disclose such a medical report prior to the defendants being forced to schedule a defense medical examination.
In Nero, the defendants sought an order requiring the production of a report by the plaintiff which causally related the plaintiff's claimed injuries to the ingestion of lead based paint. The defendants sought an order allowing 120 days with which to conduct a defense medical examination after the receipt of such report.
The plaintiff responded by arguing that no such report existed at that time and that the absence of this report should not preclude the defendants from conducting their examination. The trial court denied the defendant's motion.
On appeal, the Appellate Division, Fourth Department, reversed the trial court's ruling and ordered plaintiff Nero to both procure and produce medical reports relating the claimed injury to the allegations being made in the litigation. "(W)e conclude that defendants should not be put to time, expense, and effort of arranging for and conducting a medical examination of plaintiff without the benefit of reports linking the symptoms or conditions of plaintiff to defendants' alleged negligence." Id.
In the aftermath of Nero, it then became standard practice on the part of defendants to demand expert narrative reports from the plaintiffs prior to scheduling a defense medical examination. This provided defendants with the benefit of being able to provide such a report to the defense expert, which could then be incorporated into the defense expert's own report.
In Giles v. Yi 105 A.D. 3d 1313 (4th Dept., 2013), the Appellate Division, Fourth Department, was again confronted with the same issue.
In Giles, the defendants served notice for two separate medical examinations and requested "copies of any reports of any physicians who have treated or examined the plaintiff" in advance of the examinations, pursuant to 22 NYCRR 202.17(b)(1).
The plaintiff then provided the defendants with educational records and the medical records of his treating physicians. However, none of these records linked the particular conditions, symptoms, or problems that the plaintiff was experiencing with his exposure to lead.
The Fourth Department, relying upon its prior decision in Nero, upheld the trial court's discretion to direct discovery as it saw fit. As a result, the plaintiff was required to both procure and produce a report establishing the link between lead ingestion and the various symptoms and injuries that he claimed resulted from that exposure.
It should be noted that the Fourth Department specifically opined that a trial court is not required to order plaintiffs to procure and produce such medical reports prior to the scheduling of a defense medical examination. The Fourth Department merely ruled that the trial courts are not precluded from doing so under their wide discretion in regulating discovery.
The Fourth Department also noted that this ruling did not require the plaintiff to retain an expert within the meaning of CPLR 3101(d). Rather, the Fourth Department upheld the court's ruling that the plaintiff was merely required to provide some documentation diagnosing the plaintiff with the injuries alleged and linking those injuries to the exposure to lead before requiring the defendants to proceed with an examination.
The plaintiffs in both Nero and Giles argued that these rulings forced a burdensome obligation in that it required them, in essence, to hire an expert relatively early in the litigation, thus incurring expenses they otherwise would not have had.
To that end, the plaintiff in Giles appealed the Appellate Division's ruling to the Court of Appeals of New York, which then reversed the Appellate Division's ruling.
The Court of Appeals determined that 22 NYCRR 202.17(b)(1) does not create an obligation upon the plaintiffs to procure a report that does not exist prior to the scheduling of the defense medical examination.
The key to the Court of Appeals' decision is that the plaintiffs should not be required to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17(b)(1). The Court noted that such a requirement could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits.
Additionally, the Court of Appeals ruled that 22 NYCRR 202.17(b)(1) does not require a plaintiff to produce records causally relating an injury to the defendant's negligence at any time, particularly before the scheduling of a defense medical examination.
It should be noted that defendants in lead paint litigation will still be required to receive disclosure regarding causation from a medical professional. However, the Court of Appeals specifically ruled that this disclosure is "more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101(d)". Hamilton v. Miller, et al. 2014 WL 2608461 (2014).
This decision is an unqualified win for lead paint plaintiffs in New York. Although the Fourth Department opined that it would not be necessary for plaintiffs to hire a medical expert to specifically provide a narrative report in order to satisfy 22 NYCRR 202.17(b)(1), the reality is that this was exactly what ended up being necessary. As noted in the Court of Appeals' decision, the educational records and medical reports in a typical lead paint case never contain any language even hinting at a causal link between lead paint exposure and the various injuries and conditions that often do not manifest themselves in plaintiffs until several years later. As a result, in order to satisfy their own discovery requirements, we have seen plaintiffs consistently retaining neuropsychological experts, who then perform their own medical examinations in order to produce a report. In essence, the plaintiffs were being required to procure their own independent medical examination before any defendant was required to do the same. This undoubtedly proved to be a significant expense for plaintiffs. Now, plaintiffs will not be forced to expend money for an expert until, at the earliest, when expert disclosure is required prior to trial.
Now, without this expensive obligation required so early in the discovery phase, my guess is that the bargaining position for plaintiffs has now strengthened. Plaintiffs in middling cases may have previously had a greater incentive to engage in settlement discussions early so that they could avoid the cost of procuring an expert report. This ruling now allows plaintiffs to wait until the defendants have procured and produced their own defense medical examination report before engaging in any real settlement discussions. In this sense, the leverage of being able to avoid the expense of a medical examination has now shifted directly to the benefit of plaintiffs.
From the defense perspective, the Hamilton ruling obviously does not eliminate the plaintiff's obligation to turn over an expert narrative report prior to the scheduling of a defense medical examination if it is already in existence. As a result, defendants should continue to demand these reports prior to scheduling a medical examination. It is possible that some plaintiffs will have been subjected to a plaintiff's medical examination early in the litigation, if for no other reason than to allow the plaintiff's attorneys to gauge the value of the case. If that has occurred, we as defendants should definitely receive the report prior to the scheduling of the defense medical examination and that result is not changed by Hamilton.
Another strategy for defendants may be to bring motions for summary judgment regarding causation, which would then, presumably, draw the plaintiffs into procuring their own expert reports. However, this would not solve the problem of obtaining such a report prior to the scheduling of the defense medical examination.
The practical effect of the Hamilton ruling is that discovery will now return to the state that existed in 2012 before the Appellate Division's ruling in Nero.
Prepared by Michael J. Chmiel
