The accused persons brought a motion seeking an order forcing a non-party witness to appear and give her further testimony after the witness was previously deposed but was directed by the counsel not to answer. The accused persons also seek an order appointing a Judicial Hearing Officer to supervise such follow-up deposition. Lastly, the accused persons seek an order imposing costs and sanctions on the complainants’ counsel in the form of payment to the court for the expense for the Judicial Hearing Officer for the supervision of the said further deposition based upon the alleged insignificant conduct of the complainants’ counsel at the earlier deposition of the non-party witness. They also move for an order relieving them from complying with the complainant’s notice for physical examination.
A New York Injury Lawyer said the action is for the personal injuries allegedly sustained by the complainant as a result of the claimed exposure to lead-based paint at the premises owned by the accused persons. The non-party witness is the complainant’s mother and she has commenced the action in her representative capacity as parent and natural guardian of an infant. The other complainants are also the children of the non-party witness and they all have reached the legal age.
In the Bills of Particulars verified by the complainants’ counsel, the children allege multiple neurological, cognitive functions, neuro-behavioral injuries, 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 accused persons’ premises.
Significantly, the complaint alleges, according to a NYC Personal Injury Lawyer that lead paint exposure during three different time periods at three different residential leasehold premises. The accused were owners of premises where the complainants resided for two years. The allegations of injury advanced by the mother of the children on behalf of the infant are verbatim identical to those of the infant’s older siblings.
The non-party witness was first deposed on for two consecutive days. Upon the commencement of her deposition, the counsel for all parties specified, as is the custom and practice in the district, that all objections except those as to form were reserved until the time of trial and that the deposition would be held in accordance to the provisions of the Civil Practice Law and Rules. At the beginning of the deposition, the complainants’ counsel made certain pronouncements and imposed significant unilateral limitations on the scope of the questioning he would permit the non-party witness to answer. Almost immediately, a NY Personal Injury Lawyer said the counsel undertook a course of conduct at the deposition whereby he restricted the witness from answering questions, made demands for production of records, supporting the questioning counsel’s good faith and otherwise engaged in conduct that severely limited, unfairly and improperly obstructed the accused persons’ ability to conduct the deposition.
As a result, the accused brought the motion and at the direction of the court. The issues and subject areas where the accused persons seek a further deposition have been narrowed and clarified by the parties.
The accused persons have made a sufficient showing of the materiality and relevance of the subject matter about which they seek to further depose the infant complainants’ mother in the lead paint injury action. The accused have submitted competent expert opinion supported by authoritative treatises and studies which demonstrate a sufficient scientific basis for the accused to pursue the areas of deposition questioning at issue.
The court has undertaken an extensive review and study of the statutes, decisional law and exhibits submitted by the complainants’ counsel in opposition to what the 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 conduct of the complainants’ counsel at the prior deposition of the mother of the infant was obstructive and unprofessional which in turn resulted in an improper frustration of the accused person’s attempts to conduct discovery of information material and necessary to the defense of the injury and damage claims embraced within the complainants’ pleadings. Since the complainants have failed to provide the accused with the type of records required, the accused are relieved at the juncture from compliance with the complainants’ notice.
The court 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.
The Court of Appeals clarified the law in the area of discovery in lead paint injury actions. The court emphasized that 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.
It is significant to the analysis that the accused are not seeking at the juncture the production of any of the mother’s medical, educational, psychological or social services records. The discovery presently at issue relates solely to her deposition questioning. The witness was directed by her counsel not the answer her past history of any head trauma, striking or choking of one or more of the complainants, the factual history as it relates to the development and continued existence of asthma, the factual history of a documented incident of possible carbon monoxide poisoning, the factual history of a documented incident of a past exposure of the complainants to chemicals involved in photography, factors related to the development and cause of Attention Deficit Hyperactivity Disorder (ADHD) identified by the complainants in their Bills of Particulars as having been caused by the alleged lead poisoning at accused persons’ premises, the identification and factual history of the witness as learning disabled during her public school education and the 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.
Initially, the primary focus of the issues before the court deal with the nature and scope of the injuries claimed by complainants and the accused persons’ 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. Causation, in the sense of which of complainants’ claimed injuries and disabilities were proximately caused by the lead paint exposure, is the central focus at this juncture.
The court is mindful that it is well established that lead-based paint exposure presents a serious potential health hazard to children. The court is also mindful that lead poisoning itself is an actionable injury. However, the observation that lead poisoning 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 complainant has been proximately caused by a prior lead paint exposure.
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 to the brain which in turn would be relevant as to the potential cause of some of the injuries claimed by the complainants in the instant litigation. Accordingly, to the extent that the complainants’ counsel directed the witness not to answer defense counsel’s questions concerning the striking or choking of one or more of the children, the objection was palpably improper and inappropriate.
The defense counsel has submitted a hospital emergency room record reflecting that the son was brought to the hospital by his mother for headache and nausea with a complaint of possible carbon monoxide poisoning due to riding in a car with hole in the muffler.
The accused persons’ expert 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. Additionally, based upon articles from the affidavit and described as authoritative, the doctor 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 attention and memory problems that become apparent in the school environment.
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 different neurodevelopmental injuries alleged by each complainant is central to the resolution of the action. Accordingly, the discovery at issue herein is not collateral to the issues raised by the complainants’ pleadings. Such discovery may make the case more complex than the complainants might prefer is of no impact. Under the circumstances, a factual scientifically based exploration of possible causes of the alleged injuries can hardly be considered collateral to the issues at hand.
The court finds that it was not defense counsels’ questions that were improper, but rather the complainants’ counsel’s instructions to the witness not to answer and his otherwise obstructive and excessive interference which was improper.
Complainants’ 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, accused persons’ counsel shall return all copies of said transcript to complainants’ 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.
The accused also bring a motion for Exchange of Medical Reports in Personal Injury and Wrongful Death Actions seeking an order vacating the complainants’ Notice for Physical Examination of all the complainants. The accused also seek an order directing the complainants to produce medical reports of any medical service provider or expert witness detailing a diagnosis of any injuries sustained by the complainants as a result of the claim of negligence made in the poisoning lead paint injury action.
The court finds either of these approaches to be fundamentally unfair and contrary to the spirit and intent of the medical report disclosure rules. The complainants also allege irreversible brain damage. There is no record of any qualified medical provider having examined, tested, treated or diagnosed these complainants for brain damage. The record unequivocally demonstrates that the complainants have failed to satisfy the requirements the law and the accused persons’ obligation to conduct the examination has not ripened.
The court finds that it would be manifestly unfair to require the accused to conduct examinations of the complainants based upon this record and the total absence of any records demonstrating the treatment or diagnosis of the complainants by any qualified provider for the injuries verified by complainants’ counsel in the Bills of Particulars.
All counsel are directed to appear at chambers for the purpose of scheduling the deposition of the witness and conferring and issuing a scheduling order for the completion of all discovery and the filing of the Trial Term Note of Issue.
Children should be protected and safeguarded from any form of harm but other people take this responsibility for granted. If you have a premises liability claim, or have been injured because of the negligence of another, speak to Stephen Bilkis and Associates for sound advice and a free consultation.