Hamilton v. Miller
| Decision Date | 12 June 2014 |
| Docket Number | Nos. 113, 114,s. 113, 114 |
| Parties | Christopher HAMILTON, Appellant, v. John MILLER et al., Respondents. Shawn Giles, Also Known as Shawn Anthony Coffee, Appellant, v. A. Gi Yi et al., Respondents, et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Athari & Associates, LLC, Utica (Mo J. Athari of counsel), for appellant in the first above-entitled action.
Ward Greenberg Heller & Reidy LLP, Rochester (Eric J. Ward, Thomas E. Reidy, and Joshua M. Agins of counsel), for Jules Musinger and others, respondents in the first above-entitled action.
The Law Offices of Sliwa & Lane, Buffalo (Stanley J. Sliwa of counsel), for John Miller and another, respondents in the first above-entitled action.
Athari & Associates, LLC, Utica (Mo J. Athari of counsel), for appellant in the second above-entitled action.
Hiscock & Barclay, LLP, Rochester (Gary H. Abelson and Sanjeev Devabhakthuni of counsel), for Gerald Breen, respondent in the second above-entitled action.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler and William Wingertzahn of counsel), for A. Gi Yi, respondent in the second above-entitled action.
LIPPMAN
, Chief Judge.
We hold that, in these personal injury actions, it was an abuse of discretion to order plaintiffs to produce, prior to the defense
medical examinations, medical reports detailing a diagnosis of each injury alleged to have been sustained by plaintiffs and causally relating those injuries to plaintiffs' exposure to lead-based paint.
In January 2009, plaintiff Shawn Giles commenced this personal injury action against A. Gi Yi and Gerald Breen, the alleged owners of certain rental units in which he lived as a child. Giles alleges that he was exposed to lead-based paint in those rental units and suffered numerous injuries as a result. Giles's bill of particulars lists 34 injuries, including physical, neurological, and psychological problems.
In July 2011, defendant Breen served medical examination notices under CPLR 3121
and requested “copies of any reports of any physicians who have treated or examined the plaintiff” in advance of the examination. Giles disclosed certain medical and educational records that showed that he had lead poisoning as a young child and that he subsequently had academic problems. These records, however, did not substantiate the 34 alleged injuries, nor did they causally relate the documented problems to lead poisoning.
Defendants Breen and Yi then moved to compel Giles to comply with 22 NYCRR 202.17(b)(1)
and produce medical reports detailing a diagnosis of the injuries allegedly caused by exposure to lead-based paint, or be precluded from introducing proof of these injuries at trial. Without this evidence, they argued, they would be required to pay for multiple medical professionals to examine plaintiff. They requested also that plaintiff be ordered to amend his bill of particulars to reflect those injuries actually sustained. Giles cross-moved for a protective order, arguing that defendants were prematurely requesting expert reports.
Supreme Court granted defendants' motion and denied Giles's motion. It ordered Giles “to produce ... medical ... reports of any treating or examining medical service provider detailing a diagnosis of any injuries alleged to have been sustained by the plaintiff ... and causally relating said injuries to plaintiff's alleged exposure to lead-based paint,” and further, to amend his bill of particulars to reflect those injuries actually sustained, or be precluded from offering evidence of those injuries at trial.
The Appellate Division affirmed, holding 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” (Giles v. Yi, 105 A.D.3d 1313, 1316, 964 N.Y.S.2d 319 [4th Dept.2013] ). Justice Whalen dissented. In his view, the majority's holding imposed unnecessary burdens on plaintiff and was akin to forcing him to retain an expert prior to the defense's medical examination, something not required at that stage of the litigation (id. at 1319–1321, 964 N.Y.S.2d 319 ).
The Appellate Division subsequently granted plaintiff leave to appeal and certified the question of whether the order was properly made (107 A.D.3d 1647, 2013 WL 3285054 [2013], 2013 N.Y. Slip Op. 79247[U] [2013] ).
Plaintiff Christopher Hamilton, represented by the same counsel as Giles, commenced a similar personal injury action in July 2009 against John Miller, David Miller,1 Jules Musinger, Doug Musinger, and Singer Associates, the alleged owners of properties in which Hamilton lived as a child. Hamilton filed a bill of particulars alleging that he suffered 58 injuries from exposure to lead-based paint at defendants' properties. They included physical, psychological, psychiatric, and developmental problems.
During discovery, Hamilton disclosed certain medical and educational records that showed that he had lead poisoning
as a young child and that he subsequently had academic, behavior, and speech problems. Just as in Giles, however, the records did not substantiate the 58 alleged injuries, nor did they causally relate them to lead poisoning.
Defendants' noticed medical examinations and requested that Hamilton comply with 22 NYCRR 202.17(b)(1)
and provide medical reports from his treating or examining medical service providers diagnosing his injuries and causally relating them to lead-based paint. Hamilton claimed that he was not obligated to provide any further records.
Defendants moved to compel Hamilton to disclose the reports and to amend the bill of particulars to reflect those injuries
actually sustained, or otherwise be precluded from introducing proof of his alleged injuries at trial. Hamilton cross-moved for a protective order under CPLR 3103
and for the court to take judicial notice under CPLR 4511 of a federal statute codifying Congress's findings justifying the Residential Lead–Based Paint Hazard Reduction Act of 1992 (42 USC § 4851 ).
Supreme Court denied Hamilton's motion and granted defendants' motion, ordering Hamilton to produce medical reports of a treating or examining medical service provider detailing any injuries alleged to have been sustained as a result of defendants' negligence and causally relating them to exposure to lead-based paint. The court further ordered that, should Hamilton fail to produce these records, he would be precluded from introducing proof of his injuries at trial. Finally, the court ordered Hamilton to amend his bill of particulars.
The Appellate Division affirmed (Hamilton v. Miller, 106 A.D.3d 1476, 1478, 965 N.Y.S.2d 683 [4th Dept.2013]
), granted plaintiff leave to appeal, and certified the question of whether the order was properly made (107 A.D.3d 1648, 2013 WL 3285067 [2013], 2013 N.Y. Slip Op. 79248[U] [2013] ).
provides that when a party's mental or physical condition is in issue, any other party may serve on the party whose condition is in controversy notice “to submit to a physical, mental or blood examination by a designated physician.” A noticed party then is obligated under 22 NYCRR 202.17(b)(1) to deliver:
In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.
This case is more complicated. Plaintiffs allegedly suffered lead poisoning
as children. Now adults, plaintiffs allege that
their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17(b)(1).
Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have “previously treated or examined” them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17(b)(1)
could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have “previously treated or examined” them.
To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers—the reports “shall include a recital of the injuries and conditions as to which testimony will be offered at the trial” (22 NYCRR 202.17
[b][1] [emphasis added] ). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17(b)(1) (see
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Hamilton v. Miller
...23 N.Y.3d 59215 N.E.3d 1199992 N.Y.S.2d 1902014 N.Y. Slip Op. 04230Christopher HAMILTON, Appellant,v.John MILLER et al., Respondents.Shawn Giles, Also Known as Shawn Anthony Coffee, Appellant,v.A. Gi Yi et al., Respondents, et al., Defendants.Court of Appeals of New York.June 12, [992 N.Y.S......