Lead Litigation Conference 2013

November 14-15, 2013

Pretrial Motion Practice

Protective Orders in Lead Cases

Jennifer L. Dominelli, Esq.Flink Smith Law LLC

November 14, 2013

Overview of Discussion

Protective Orders and Disclosure in Lead Cases

Application by Defendants

Application by Plaintiffs

Protective Orders & Disclosure

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

Protective Orders & Disclosure

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.

TRENDNY Courts requiring plaintiff to show causation(i.e., injuries were caused by lead paint exposure)

Protective Orders & Disclosure - Defendants - Plaintiffs

Application: Defendants

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

Application: Plaintiffs

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]xcept where the court otherwise directs…”◦ Giles, 105 A.D.3d at 1316.

Protective Orders & Disclosure - Defendants - Plaintiffs

Application: Plaintiffs

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.◦ See Anderson ex rel. Anderson v. Seigel, 186 Misc.2d 739 (Sup. Ct. Kings

County 2000); see also Andon ex rel. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740 (2000).

Protective Orders & Disclosure - Defendants - Plaintiffs

Speaker

Jennifer DominelliFlink Smith LLC518.786.1800 jdominelli@flinksmithlaw.com

Jennifer DominelliFlink Smith

Questions