The New York Court of Appeals issued a decision on a critical issue as it relates to all lead paint litigation. The issue before the Court was the obligation of plaintiffs to produce medical reports detailing the diagnosis of their alleged injuries prior to defendants’ experts performing neurological and neuropsychological independent medical examinations.

The Court held that while plaintiffs do not have to hire a medical provider to perform an examination and create a report to comply with 22 NYCRR 202.17, plaintiffs cannot avoid disclosure merely because their treating medical providers did not draft any reports within the meaning of 202.17.

The Court of Appeals issued a decision in Giles v. Yi,* 114, dated June 12, 2014 – decided along with Hamilton v. Miller, 113 – holding that it was an abuse of discretion by the Supreme Court, Monroe County 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 the plaintiffs and causally relating those injuries to the plaintiffs' exposure to lead-based paint. The Court determined that although the Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings and limit counsel's gamesmanship, the ordered relief exceeded the court's power. However, the Court further held that plaintiffs cannot avoid disclosure because their treating or examining medical providers had not drafted any reports within the meaning of rule 202.17(b)(1) of New York Codes Rules and Regulations. If the plaintiffs' medical reports do not contain the information required by 202.17, then plaintiffs must have the medical providers draft reports setting forth that information or seek relief from disclosure explaining why they cannot comply with the rule.

As mentioned above, while plaintiffs do not have to hire a medical provider to perform an examination and create a report to comply with 22 NYCRR 202.17, plaintiffs cannot avoid disclosure merely because their treating medical providers did not draft any reports within the meaning of 202.17.

Background

In Giles v. Yi, the infant plaintiff was allegedly exposed to lead paint while residing at various premises owned by the defendants. After depositions of the parties were completed, plaintiffs’ counsel served a notice on the defendants to conduct medical examinations. The defendants moved, pursuant to 22 NYCRR 202.17, for an order directing plaintiff to produce medical reports, prior to the defendants’ designation of doctors for independent physical examinations, 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. The Supreme Court granted the motion compelling plaintiffs to provide medical reports causally relating the plaintiff’s injuries to lead paint exposure before the defendants designated any doctor to conduct independent medical examinations. The Appellate Division, Fourth Department affirmed. Giles v. Yi, 105 A.D.3d 1313 (4th Dep't 2013).

Giles and Hamilton were represented by the same attorney, who served a bill of particulars alleging 34 and 55 injuries, respectively, that were allegedly related to lead paint exposure. However, plaintiffs’ counsel failed to provide any medical reports to defense counsel of either plaintiff having been tested, treated or diagnosed with any of the alleged injuries. The Court of Appeals recognized that the dearth of medical evidence in the record revealed that the plaintiffs may never have been treated for or diagnosed with many of the injuries alleged by their counsel.

22 NYCRR 202.17(b) requires plaintiff’s counsel to produce:

(1) copies of the medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis.

The Court of Appeals agreed with the plaintiffs to the extent that 202.17(b)(1) does not obligate them to hire a medical provider to examine them and create a report solely for purposes of litigation. The Court held that 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.” The Court clarified that pursuant to 202.17(b)(1), plaintiffs need only produce reports from medical providers who have previously treated or examined them.

The Court of Appeals did find it understandable why the Supreme Court granted the relief requested as plaintiffs' counsel served boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. The Court advised plaintiffs to amend their respective bills of particulars to reflect those injuries actually sustained. The Court went on to hold that there is no requirement that medical providers causally relate the injury to the lead paint exposure.

Practice Points

Significantly, however, the Court disagreed with the plaintiffs that they only had to turn over those medical reports that currently existed, holding instead that plaintiffs cannot avoid disclosure because their treating or examining medical providers had not drafted any reports within the meaning of rule 202.17(b)(1). If plaintiffs' medical reports do not contain the information required by 202.17, then, as directed by the Court of Appeals, plaintiffs must have the medical providers draft reports setting forth that information or seek relief from disclosure explaining why they cannot comply with the rule.

Although the Supreme Court was found to have abused its discretion, a full reading of the majority’s opinion in Giles reveals a clarification of rule 202.17(b)(1): Prior to the independent medical examinations, plaintiffs’ counsel must provide reports from treating physicians, or if such reports don’t exist, have the treating physicians draft reports, setting forth “a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis.”