In Lead Paint Exposure Case, Court’s Order to Provide Medical Report Linking Injuries to Exposure Before Depositions Upheld

In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions.  The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:

Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted.  As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13