HB Litigation Conferences Lead Litigation 2013

1. November 14-15, 2013

3. Jennifer L. Dominelli, Esq.
Flink Smith Law LLC
November 14, 2013

4. 
Protective Orders and Disclosure in
Lead Cases

Application by Defendants

Application by Plaintiffs

5. CPLR 3103 – Protective Orders
“The court may at any time on its own initiative, or
on motion of any party or of any person from
whom or about whom discovery is sought, make a
protective order denying, limiting, conditioning or
regulating the use of any disclosure device. Such
order shall be designed to prevent unreasonable
annoyance, expense, embarrassment,
disadvantage, or other prejudice to any person or
the courts.”
Protective Orders & Disclosure
-
Defendants
-
Plaintiffs

6. Disclosure Obligations in Lead Cases
Uniform Rule § 202.17(b)
“[E]xcept where the court otherwise directs,” the
plaintiff in a personal injury action shall serve copies
of medical reports from treating and examining
providers at least 20 days in advance of an IME.
TREND
NY Courts requiring plaintiff to show causation
(i.e., injuries were caused by lead paint exposure)
Protective Orders & Disclosure
-
Defendants
-
Plaintiffs

7. Preservation of right to conduct an
IME

Defendants should not have to incur the time,
expense and effort of arranging and conducting an
IME w/out the benefit of the reports linking the
symptoms or conditions to the defendant’s
negligence.
◦ Nero ex rel. Nero v. Kendrick, 100 A.D.3d 1383 (4th Dep’t 2012).

§ 202.17(b) contains a condition precedent to the
defendant’s obligation to conduct an IME.
◦ Adams v. Rizzo, 13 Misc.3d 1235(A) (Sup. Ct. Onondaga County 2006).
Protective Orders & Disclosure
-
Defendants
-
Plaintiffs

8. Limiting Disclosure: Causal Burden

High lead levels supported by gov’t reports
detailing potential effect of lead poisoning
is insufficient.
◦ Giles v. A. Gi Yi, 105 A.D.3d 1313, 1315 (4th Dep’t 2013).

§ 202.17(b) gives court discretion to
preclude proof concerning injuries not
supported by reports making causal link.
◦ “[E]xceptwhere the court otherwise directs…”
◦ Giles, 105 A.D.3d at 1316.
Protective Orders & Disclosure
-
Defendants
-
Plaintiffs

9. Limiting Disclosure: Parent Information

Parents records are either privileged or
confidential absent a factual showing records
are relevant to injuries suffered.
◦

Ward ex rel. Ward v. County of Oneida, 19 A.D.3d 1108, 1109 (4th Dep’t
2005).
Subjecting parents to IQ test, in essence
“creating evidence,” is highly intrusive and not
permitted where mental or physical condition
of parent not at issue.
◦
SeeAnderson ex rel. Anderson v. Seigel, 186 Misc.2d 739 (Sup. Ct. Kings
County 2000); see alsoAndon ex rel. Andon v. 302-304 Mott Street
Associates, 94 N.Y.2d 740 (2000).
Protective Orders & Disclosure
-
Defendants
-
Plaintiffs

10. Jennifer Dominelli
Flink Smith
Jennifer Dominelli
Flink Smith LLC
518.786.1800
jdominelli@flinksmithlaw.com