Articles Posted in Bronx

Published on:

According to the research provided in a study released last week, the Army could reduce the chances of a soldier suffering from brain injury simply by having them wear a helmet one size larger and containing slightly thicker padding.

The study in Long Island found that as little as a Enlarge Closen eighth of an inch more cushion could decrease impact force on the skull by up to 24% – a substantial difference when determining whether or not brain trauma is on the menu.

Brain injury is a common occurrence on the battlefield of Afghanistan, and the Army is looking to verify the findings and then to move toward issuing larger helmets with the extra padding. Concussions are common among troops knocked about inside armored vehicles or flung to the ground while on foot patrols.

The results of the research and development are very encouraging. The work warrants field testing on a limited and experimental basis, starting with a brigade of soldiers. For a widespread policy and wardrobe change, more research and validation of the findings are necessary.

During the summer of 2010 alone, battlefield doctors diagnosed more than 300 service members per month with concussions and mild traumatic brain injuries (TBI). A smaller number of service members were diagnosed with more moderate or severe head wounds.
A New York Brain Injury Law Specialist says the effectiveness and economic brilliance of the study is that it offers an answer that is drawn from equipment the Army already has. “This is what appears to be an off-the-shelf solution.”

Helmets currently weigh about 5½ pounds. Upgrading to one size larger would add about 4 ounces of weight to the headgear. The study found that adding padding beyond an eighth of an inch provided only slightly better protection, and since they are concerned and unwilling to create helmets that are too large or heavy for soldiers to maneuver in, they are working with the idea of the 1/8 inch padding.

Although this discovery by Bronx scientists improves protection against a blow to the head, soldiers still need a bulletproof helmet and one that will resist blast waves. Only then will the brains of soldiers be completely protected from TBIs on the battlefield.
Continue reading

Published on:

The toll that concussions and traumatic brain injuries (TBIs) have on battlefields and sports’ fields is raising awareness and stirring up new ideas. TBIs affect more than 1 million Americans annually.

The single greatest challenge with a TBI case is the actual diagnosis. Many of the symptoms – dizziness, nausea, lack of focus – are also caused by other conditions. This makes it difficult for athletic trainers and medics to accurately take the step toward a proper diagnosis and treatment. Even brain-images taken after a concussion may not reveal mild brain damage, especially if there is no earlier image for the doctor to make a comparison with.

To help in that area, a team of doctors and engineers at the University of Pennsylvania has developed a “blast badge.” The patch-like item changes color within a set spectrum, and that color reflects the intensity of an explosion or impact.

The badge is made of color-changing crystals designed to break apart when exposed to shock waves of differing strengths. The innovative badges are lightweight, durable and require no power, yet they are flexible enough to be attached to uniforms and helmets in thin sheets states a source.

At this juncture of development, scientists have demonstrated that the material will react to explosive shock waves. The next thing they will work on is calibrating the color changes to correspond to the potential harm a certain magnitude of blast or impact might cause to the brain, thus showing what kind of medical response would be needed.

Another set of Bronx and Brooklyn researchers are working on the development of a portable radar system that can be used to screen individuals for brain injury. A doctor following the development of the technology says the test used involves asking a patient to walk a few feet while also saying the months of the year in reverse order.

One of the research engineers says, “When a person with a concussion performs cognitive and motor-skill tasks simultaneously, they have a different gait pattern than a healthy individual, and we can identify those anomalies in a person’s walk with radar.”

These scientists plan to collect more data from healthy people of various heights and weights and collect data through tests performed on those already diagnosed with concussions. They will also be working on reducing the size of the radar unit, to make it truly portable and usable by medics on the battlefield and sports doctors in the locker room.
Continue reading

Published on:

A Towanda resident, the vice president of the Pennsylvania Brain Injury Coalition, has spearheaded efforts at the Pennsylvania state Capitol in an effort to bring about increased awareness concerning brain injuries. His intention is to use the raised awareness to fight for legislation intended to prevent injuries and offer better medical treatment to those affected. 

A witness on the scene said, “As part of Tuesday’s rally and press conference, I had the great pleasure of meeting with the vice president and the Brain Injury Coalition and hearing about their ongoing efforts to prevent traumatic brain injuries and to seek better medical treatment. An advocacy effort of this kind takes a great deal of planning and forethought, [this man] did an admirable job in educating policymakers in both the House and the Senate of the need for brain injury legislation.”

The coalition is a proponent of the Safety in Sports Act, which is a continuation of previous years’ funding for community and home-based programs, a state level advisory board, and the inclusion of brain injury screenings for persons in state programs or facilities.

In Pennsylvania every year, there are roughly 156,000 concussions reported. A reporter can cite a recent study that found “15 percent of all high school football players reported concussion symptoms but only 47 percent of those players reported them to school or team officials.”

 Brain injuries in The Bronx and Broolkyn kill brain cells and disrupt neural pathways which affect the way a person thinks, feels, and acts. It is the leading cause of disability and death through the age of 40. Traumatic brain injuries (TBIs) as the name suggests are more severe and should be treated immediately.

Facts on brain injuries:

– 10 million Americans live with an acquired brain injury.

– More than 130,000 Pennsylvanians have to deal with long-term disability due to TBIs.
At the awareness event in Harrisburg, several lawmakers remarked on their support and gave encouragement that they would do what they could to ensure legislation was passed to help victims. Also at the event was a teen victim of brain injury, parents of children suffering from TBI, and a representative of the Acquired Brain Injury Network of Pennsylvania Inc.
Continue reading

Published on:

The symptoms of bTBI (explosive blast traumatic brain injury) can actually be very subtle, doctors tell reps. Sometimes, there is no outward sign of injury until certain symptoms begin to arise, like headaches, vertigo, or short-term memory loss. Because of this, victims of bTBI should be evaluated by a Bronx physician or psychologist to determine how extensive their injuries might be, if any. Neurophysical evaluation should be a part of this examination. There are currently efforts to create neuropsychological tests that can be automated on laptop computer or are easy enough to be used to by first responders who may have less training.

Patient who may have PTSD (post-traumatic stress disorder) should see a combat stress team provider or a psychiatrist as soon as possible. It is very important to remember, sources have learned, that bTBI and PTSD can have very similar symptoms and may occur alone or together in a patient. It may be difficult to tell them apart.

When TBI may be present in a patient, that person should be excused from all combat-related duties. The patient should be put on light duty until the symptoms are gone or until he or she is moved to a place where advanced neuroimaging, like MRI, may be used, and a more detailed evaluation can be used. Brooklyn Doctors have determined that it is vital for a patient suffering TBI, or who may be suffering from it, to be treated with the utmost care, so the condition does not become worse.

Published on:

Evidence is linking exposure to welding fumes to damage done to dopaminergic neurons in the brain. This link raises a welders’ risk for Parkinson’s disease (PD).

The study of healthy welders who were exposed to manganese, positron emission tomography (PET) imaging showed reduced uptake of the tracer F-18-fluoro-L-dopa (FDOPA), which is a significant sign pointing toward dysfunction in the nigrostriatal dopamine system.

A Law Office issued a statement putting the findings into layman’s terms: “This study suggests that a substantial percent of welders may have brain injury, even if they do not have symptoms currently.”

In real-world language, fumes produced by welding contain manganese. It is this element that has been linked to neurologic problems, including PD-like symptoms. Even at low levels of exposure, the symptoms remained.

Twenty welders with no symptoms of PD were studied. They were recruited from two different Midwestern shipyards and another metal fabrication company. Each welder had an average of 30,000 hours of lifetime welding exposure. The researchers also studied twenty subjects with idiopathic PD who were not welders and twenty subjects who were not welders and did not have PD as control groups.

The researchers found that average blood manganese levels among the welders were 2 times the upper limit of normalcy established by prior studies of the general populations. One researcher responded by saying, “Compared with controls, asymptomatic manganese-exposed welders had an average 11.7% reduction in PET FDOPA uptake in the caudate, suggesting presynaptic nigrostriatal dysfunction.”

The welders also had an increase in the pallidum on T-weighted magnetic resonance imaging, which correlates with hours of manganese exposure.

The welders also had mildly elevated average Unified Parkinson’s Disease Rating Scale motor scores, showing the possibility of mild parkinsonian features.

A doctor says that follow-up studies on these workers will be “essential.” to fully understanding the implications of the hypotheses. The professor of neurology at Washington University School of Medicine and hospitals in The Bronx and Brooklyn released a statement saying that with one million welding professionals in the U.S., “If further investigation of this potential link between neurotoxic effects and these fumes proves it is valid, it would have a substantial public health impact for the US workforce and the economy.”
Continue reading

Published on:

The Facts:

On 9 September 2000, infant plaintiff was in an infant walker. Thereafter, infant plaintiff fell down a stairway leading to the second floor apartment in Bronx County.

As a result, a personal injury action has been instituted. Infant plaintiff allegedly sustained the following personal injuries: traumatic brain injury; developmental delays including speech; impaired motor and sensory processing skills; blunt face and head trauma; abrasions, tenderness and swelling to nasal area.

The Manhattan defendants, the manufacturer of the infant walker and others, filed a motion for a summary judgment and a judicial declaration that there is no causal connection between the neurological and developmental delays as alleged and precluding plaintiffs from introducing any evidence at trial in support of their claim that said injuries resulted from defendant’s alleged negligence. Defendants assert that there are no triable issues of fact herein because the infant plaintiff has neurological deficits and developmental delays due to the fact that he has autism and not because he fell down a set of three (3) stairs.

The Ruling:

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. To obtain summary judgment, it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor and he must do so by the tender of evidentiary proof in admissible form. Once the movant has made such showing, the burden now shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.

Here, the court finds that defendants have established as a matter of law that there is no causal connection between the neurological and behavioral injuries alleged in plaintiff’s bill of particulars and the infant plaintiff’s accident.

First, the rules provide that: upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts an opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.

In the instant case, even though defendants made such requests of the plaintiffs, plaintiffs did not disclose the identity of their expert until approximately seven (7) months after they filed their note of issue and certificate of readiness. Said expert affidavit was admittedly submitted in response to the motion for summary judgment submitted by the defendants.

Courts have frequently rejected an expert’s affidavit submitted in opposition to a motion for summary judgment when the expert was never identified in pre-trial disclosure.

In a similar case, the Supreme Court providently exercised its discretion in rejecting the affidavit of the purported expert proffered by the plaintiffs, since they failed to identify the expert in pretrial disclosure, and served the affidavit, which was elicited solely to oppose the defendants’ motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.

In the case at bar, plaintiffs’ expert affidavit was elicited solely to oppose defendants’ summary judgment motion and said expert was retained after plaintiffs filed their note of issue and certificate of readiness attesting to the completion of discovery. Plaintiffs have not provided good cause for their failure to timely disclose said expert witness and in fact, make no argument whatsoever as to why the said expert was not disclosed prior to the motion for summary judgment. Thus, the affidavit of plaintiffs’ expert is rejected. And even if the court were to consider the affidavit, it fails to create an issue of fact that would preclude summary judgment with respect to whether or not there is a causal connection between the infant plaintiff’s accident and his neurological and developmental delays. The affidavit states that there are clear signs of trauma to the brain and signs and symptoms consistent with brain injury but does not articulate what those signs are; that absent an EEG, the infant plaintiff could not be definitely diagnosed as not having suffered a traumatic brain injury but then goes on to state that the infant plaintiff does have pervasive developmental disorder which is seen in children like E.V. who has traumatic brain injury. Clearly, the affidavit does not in any way explain how plaintiff’s expert came to the conclusion that the infant plaintiff has traumatic brain injury as a result of the subject accident, particularly when he himself states that an EEG is needed to determine if he suffered a traumatic brain injury.

As a rule, an expert’s affidavit containing only conclusory allegations and assuming facts not supported by the evidence is not entitled to consideration.

Moreover, plaintiff’s expert does not explain why an EEG should have been performed when all of the ambulance and hospital records related to the infant plaintiff’s fall state that the child sustained a bloody nose, swollen face and nose and minor head trauma or head injury but no loss of consciousness and no concussion. Even when the infant followed up with his pediatrician, two to three days after the accident, he made no significant findings. What’s more, plaintiff’s expert does not explain what type of examination he performed on the infant plaintiff before he concluded that the child suffered a traumatic brain injury and that, within a reasonable degree of medical certainty, the infant plaintiff was a child with a good intelligence despite these traumatic injuries he suffered that proximately resulted from the accident on 9 September 2000 with his walker.

Therefore, defendants’ motion is granted with respect to the fact that plaintiffs have failed to establish a causal connection between the infant plaintiff’s neurological and developmental delays and the subject accident but denied with respect to the other injuries allegedly sustained.
Continue reading

Published on:

Plaintiff is a sixth grader who instituted a claim for damages against his school when he was seriously injured when he fell down an flight of stairs on his way to lunch. On January 30, 2021, plaintiff testified that he had been in math class on the second floor right before lunch. According to plaintiff, his math teacher never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. His friend did not see any adults in the stairwell when he got there, but there were a group of older boys there who moved over as he and his friend approached. Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse’s office with a tissue on his forehead and blood stains on his shirt. Because of the fall, plaintiff suffered brain injury coupled with excruciating pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace.

In a testimony, plaintiff presented the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher’s negligent failure to do so proximately caused his injury. According to plaintiff, he has a much harder time understanding his schoolwork since his accident and, as a result, his grades have substantially dropped. He also is unable to remember more than one item at a time and feels “dumb and filtrated. Plaintiff testified that he planned to attend college to study graphic design.

The Brooklyn jury found defendants are negligent in the supervision of plaintiff and found that that negligence was a substantial factor in causing the injuries sustained by him. Defendant move to have the judgment set aside or have a new trial on the issue of liability or in the alternatively, for a new trial on the issue of damages on the grounds that the awards are unsupported by evidence. The plaintiff sought for an increase in the award of damages.

Defendant stated that the attack was not reasonably foreseeable by the school and, since the unprovoked attack was sudden and spontaneous, any lack of supervision by the plaintiff’s teacher could not have prevented it. Thus, concludes defendants, that lack of supervision was not the proximate cause of plaintiff’s injury. The court rejects defendants’ contention that the verdict is contrary to the law.

According to the court, it is beyond cavil that schools are “under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision”. At the trial, a representative from the school testified there exist a written policy that sixth graders must be supervised in the hallways and stairways. It is disingenuous for defendants to claim that such an attack was unforeseeable when their own witness testified that one of the reasons that crowds were kept out of the stairwells by the teachers was because someone could get pushed down the steps.

The Bronx Court opined that the evidence failed to establish as a matter of law that the violation of the defendants’ duty – that is, the fact that there was no teacher in the stairwells – was not the proximate cause of plaintiffs injury or that her presence therein may have prevented the incident.

Thus, the court concluded that defendants have not established their entitlement to judgment as in matter of law, and that the issues of fact were properly left for jury determination. Defendants contend, that its determination was against the weight of the evidence presented at trial. The court held that to sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be “no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented. The Court said that the jury has properly determined that the violation was the proximate cause of the personal injury supported by valid line of reasoning and permissible inferences.

The court denied defendants’ motion which seeks an order reducing the damages awarded plaintiff, as well as plaintiffs’ cross motion seeking an increase: in those damages. It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury, and great deference is given to its interpretation of the evidence and findings of fact, provided there is sufficient credible evidence to support the findings (see Yasquez v Jacobowitz, 284 AD2d 326 (2d Dept. 2001). Here, the jury was presented with credible evidence of plaintiffs mental deficits which resulted from the injury, skills he still possesses, and how his deficits will affect his future earnings. The court finds that the damages awarded were properly based upon a fair interpretation of that evidence.
Continue reading

Published on:

Defendant, with his live-in partner, resided with a six year old ‘adopted’ daughter and his other ‘adopted’ 16-month old boy. Neither child has been legally adopted. On November 1, 1987, defendant scolded the six year old daughter for not drinking enough water and expressed annoyance with her. At approximately 6:00 p.m. of the same day, the girl went to into the bedroom to ask defendant if he would take her with him to a dinner engagement. Moments later, defendant carried the unconscious body of the daughter out of the bedroom. When the wife asked him what happened, defendant replied, “What’s the difference what happened. This is your child. Hasn’t this gone far enough?” The wife had no idea what defendant meant by this remark. Defendant handed the girl to defendant, who placed her on the bathroom floor. The child’s eyes were closed, she was unresponsive and she was not moving at all. Her breathing was raspy.

Defendant from The Bronx dressed for the dinner and went back home. Upon his return, the girl hasn’t regain her consciousness at all. The wife, believing that defendant has healing powers, urged him to heal the child. Instead, defendant and the wife took cocaine where defendant admitted he knocked the girl down because she stared defendant a lot. The next day, the child was still unconscious. Defendant tried to revive the girl and the wife called 911. The paramedics decided to bring the girl to a hospital where a tube was placed into her trachea to insure that air would go directly into her lungs.

The medical personnel observed that the girl’s body was covered with multiple bruises in various parts of her body, legs, knees and thighs. A neurological resident concluded that the child sustained brain injury due to pressing down of the brain stem causing subdural hematoma near her forehead. Over the course of the next few days, the girl’s condition did not improve and she was not responding to medical treatment. On November 4, she was declared brain dead. On November 5, the hospital removed the girl’s life support system and was pronounced dead.

Defendant was convicted of manslaughter in the first degree. Defendant appealed the judgment of conviction. Defendant argues that while a father’s failure to provide medical assistance to his child may be the basis of a prosecution for reckless or negligent homicide it cannot, as a matter of law, support a charge of intentional homicide since a crime based in part on an omission to act cannot be intentional. Defendant thus contends he was convicted of a non-existent crime.

The Brooklyn Court, in applying the required strict scrutiny standard in a case such as this, based upon circumstantial evidence found that defendant’s guilt of manslaughter in the first degree was proven beyond a reasonable doubt. The People’s theory of manslaughter in the first degree, as charged by the court, was that defendant, with intent to cause serious physical injury to Lisa, injured her and [170 A.D.2d 63] then failed to obtain medical assistance for her, causing her wrongful death. Under the court’s charge, the People were required to prove both the act of commission and omission and the requisite mens rea–intent to cause serious physical injury–with respect to each.

The Penal Law specifically provides that criminal responsibility may be based on an omission, defined as a “failure to perform an act as to which a duty of performance is imposed by law.” The court stated that an omission may be the predicate for a homicide conviction. The Court opined that Penal Law recognizes that one may, by an omission, act intentionally; it provides that a “person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.05[1] and defines the term “conduct” to include an act or omission (id., § 15.00[4]. In New York, parents have a “nondelegable affirmative duty” to provide adequate medical care to their children. (Matter of Hofbauer, 47 N.Y.2d 648, 654-55, 419 N.Y.S.2d 936, 393 N.E.2d 1009; see, Family Court Act § 1012[f][i][A]; see, also, Penal Law § 260.10[2].) When a child dies because of a parent’s failure to fulfill that duty, the parent is held accountable for the homicide.

The Court stated that since the conviction is based entirely on circumstantial evidence, the task is to determine whether the conclusion of guilt is consistent with and flows naturally from the proven facts, which, viewed as a whole, must exclude every hypothesis but that of guilt to a moral certainty. Review of the record reveals that the only reasonable conclusion was the one that even defendant’s own expert reached, i.e., that the girl’s death was a homicide, resulting from child abuse. Not surprisingly, defendant has abandoned his attempts to attribute the girl’s death to some innocent cause. The Court concluded that the record also yields powerful evidence that it was defendant who was responsible for the girl’s death.
Continue reading

Published on:

Plaintiff instituted a personal injury action against the defendants to recover damages due to a motor vehicle accident alleging that she was struck by the truck owned by defendant and its employee. In connection with the claim for damages, plaintiff alleged that she suffered head injury including pain in neck, shoulders, both arms, and lower back extending to both knees. She claimed that she was referred by an attorney to Total Care Plus where she was treated 2-3 times per week for about a year commencing a few days after the accident. She states that she received treatment from a psychiatrist, an internist, and a neurologist and received physical therapy with various modalities. Thereafter, she received treatment in China.

At the conclusion of the Brooklyn trial, the jury rendered a decision finding that plaintiff had not suffered an injury which resulted in a significant limitation of use of a body function or system or a permanent consequential loss of use of a body organ or member. The jury did, however, find that plaintiff had sustained a medically determined injury or impairment of a non-permanent nature that prevented her from performing substantially all of her material acts that constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. They awarded plaintiff damages in the amount of $70,000 for past pain and suffering, and $80,000 for future medical expenses payable over a period of 0 years.

Defendants move to set aside the decision of the jury based on the ground that:

1) the jury’s finding that plaintiff sustained an injury under the 90/180 day category of “serious injury” as defined in Insurance Law § 5102 (d)2 was contrary to the weight of the credible evidence produced at trial and rendered in disregard of the law and the Court’s instructions;

2) or, alternatively, on the ground that the jury rendered a damage award of $80,000 for future medical expenses without a finding of permanent injury; or setting aside the damage award for future medical expense of $80,000 for 0 years
As to the first issue, the court ruled that the jury’s finding was not contrary to the weight of the credible evidence produced at the trial. An expert witness testified that plaintiff had significant memory and cognitive problems and he noted her difficulties with simple arithmetic. He also diagnosed her with post-traumatic syndrome and persistent anxiety and depression which have been recognized as evidence of a “serious injury”. As a result, the Court found that plaintiff was able to demonstrate that she was restricted in her household and recreational activities and that such activities constituted substantially all of her usual and customary daily activities. Such limitations could be found to constitute more than a “slight curtailment” of plaintiffs activities. Moreover, the Court finds the award of $70,000 for past pain and suffering did not materially deviate from what would be reasonable compensation based on a fair interpretation of the evidence. A jury verdict should not be set aside against the weight of the evidence unless the jury could not have reached its verdict on airy fair interpretation of the evidence (Lolik, 86 NY2d at 746). The amount of compensation to be awarded to an injured person is a question of fact to be resolved by the trier of fact and will only be disturbed when it deviates materially from what would be reasonable compensation.

As to the second issue, the Bronx Court ruled that the jury award for future medical expenses, was rendered in contravention of the Court’s instructions. Although the plaintiff failed to object to the charge and it became the law of the case, the court concludes that the error was fundamental. Accordingly, the Court will consider the issue in the exercise of its discretion. Furthermore, the jury’s award of medical expenses for a period of zero years is inconsistent with an award for future medical expenses, where the jury was instructed to write the word “none” if they made no award for future medical expenses.

CPLR 4404(a) authorizes the court in its discretion to order a new trial “in the interest of justice” upon a motion of either party or on its own initiative. The court may grant a new trial in the interest of justice “if there is evidence that substantial justice has not been done”. The power of a trial court to exercise its discretion and set aside a verdict is a broad one and the trial judge must look to his or her own common sense, experience and sense of fairness when arriving at a decision.

The Court stated that here, there is compelling evidence that substantial justice was not done in this case. The jury’s award for future medical expenses was rendered in contravention of this Court’s instruction, coupled with the inconsistency presented by the jury’s determination that “none” was the period of years over which such award was to be made.
Continue reading

Published on:

This is an action for personal injuries allegedly sustained by the plaintiffs herein as a result of purported exposure to lead-based paint at premises owned by the moving defendants. Susan Adams is the plaintiffs’ mother and she has commenced this action in her representative capacity as parent and natural guardian of Steffen Adams, an infant. The other plaintiffs, Shane Adams and Justin Adams, also the children of Susan Adams, have reached the age of majority.

An attorney from he Bronx said that in the Bills of Particulars verified by plaintiffs’ counsel, the plaintiffs Shane and Justin Adams alleged multiple neurological, cognitive functions, neuro-behavioral, developmental and psychological injuries including neurological damage, brain damageand Attention Deficit Hyperactive Disorder (ADHD) as a result of exposure to lead while residing at the defendants’ premises. Significantly, the plaintiffs’ Complaint alleges lead paint exposure during three (3) different time periods at three (3) different residential leasehold premises. Defendants Rizzo and Scaravillo were owners of premises known as 212 Seward Street at which plaintiffs resided between 1988 to 1990. The Cifra defendants owned 302 Mildred Avenue at which plaintiffs resided from 1991 to 1992. Defendant Luttinger owned 501 John Street at which plaintiffs resided from 1990 to 1991. The allegations of brain injury advanced by Susan Adams on behalf of Steffen Adams are verbatim identical to those of Shane and Justin.

Thereafter, Susan Adams was deposed, and upon commencement of this deposition, counsel for all parties stipulated, as is the custom and practice in this district, that all objections except those as to form were reserved until the time of trial and that the deposition would be held pursuant to the provisions of the Civil Practice Law and Rules. At the beginning of this deposition, plaintiffs’ counsel, James Nixon, made certain pronouncements and imposed significant unilateral limitations on the scope of the questioning he would permit Susan Adams to answer. Almost immediately, Mr. Nixon undertook a course of conduct at the deposition whereby he restricted the witness from answering questions, made demands for production of records supporting the questioning counsel’s “good faith” and otherwise engaged in conduct that, severely limited and unfairly and improperly obstructed the defendants’ ability to conduct the deposition.

As a result, defendants Rizzo and Scaravillo bring a motion pursuant to CPLR § 3124, CPLR § 3113(b), CPLR § 3104 and 22 NYCRR § 1301.1 seeking an order compelling a “non-party” witness, Susan Adams, to appear and give testimony at a further deposition in regard to matters on which the witness was previously deposed but directed by counsel not to answer. Moving defendants also seek an order appointing a Judicial Hearing Officer to supervise such follow-up deposition. Also, moving defendants seek an order imposing costs and sanctions on plaintiffs’ counsel in the form of payment to the court for the expense for the Judicial Hearing Officer for supervision of said further deposition based upon the alleged frivolous conduct of plaintiffs’ counsel at the earlier deposition of Susan Adams. Lastly, defendants also move for an order pursuant to 22 NYCRR § 202.17[j] relieving them from compliance with plaintiffs’ notice for physical examination.

The issues in this case are whether defendants have made a sufficient factual showing of the possible relevance of the information sought to be extracted from Susan Adams a non-party witness, to appear and give her testimony at a further deposition with regard to matters on which the witness was previously deposed but directed by the counsel not to answer; whether Plaintiff’s counsel’s conduct at the prior deposition of Susan Adams was obstructive and unprofessional warranting his sanction; and whether defendants are relieved from complying with plaintiff’s notice for physical examination.

The Brooklyn Court insofar as to answer the question on the defendants’ right to compel Susan Adams to give her testimony in a further deposition, cited the provisions of CPLR § 3101(a) and cited a Court of Appeals decision.

CPLR § 3101(a) entitles parties to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” What is “material and necessary” is left to the sound discretion of the lower courts and includes “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason”.

The Court said that in the Andon case, the Court of Appeals clarified the law in the area of discovery in lead-paint personal injury actions. The Court in the said case, emphasized that in such cases, discovery determinations are discretionary each request must be evaluated on a case by case basis with due regard for the strong policy supporting open disclosure. Moreover, the Andon court specifically rejected the plaintiff’s claim that there was a “blanket rule” prohibiting certain types of discovery in lead-paint personal injury actions. The Andon court also noted that to the extent defendants relied upon cases permitting certain forms of discovery in lead-paint personal injury cases, such reliance was misplaced in that each such request must be evaluated on a case by case basis.

In evaluating a discovery request in this context, and recognizing New York’s policy favoring open disclosure as a means for discovering the truth, the Court must consider defendants’ need for the information requested against its possible relevance, the burden of subjecting Susan Adams to the disclosure and the potential for unfettered litigation on collateral issues. The court must evaluate competing interests and conduct a discretionary balancing of those interests.

In this case, the areas which defendants seek to conduct further deposition, and about which plaintiffs’ counsel directed the witness not to answer, include, the following:

1. Past history of any head trauma, striking or choking of one
or more of the plaintiffs;
2. The factual history of one or more of the plaintiffs insofar as it relates to the development and continued existence of asthma;
3. The factual history of a documented incident of possible carbon monoxide poisoning of one or more of the plaintiffs;
4. The factual history of a documented incident of a past exposure of one or more of the plaintiffs to chemicals involved in photography;
5. Factors related to the development and cause of Attention Deficit Hyperactivity Disorder (ADHD) identified by the plaintiffs in their Bills of Particulars as having been caused by the alleged lead poisoning at defendants’ premises;
6. The identification and factual history of Susan Adams as “learning disabled” during her public school education;
7. Factual information relating to the witness’s participation in social services programs and in particular, rental assistance programs at the premises where the alleged lead paint exposure occurred.

The Court said that initially, the primary focus of the issues before the court at this time deals with the nature and scope of the injuries claimed by plaintiffs and defendants’ attempts to conduct discovery in furtherance of defending or minimizing these damage issues. Causation, within the negligence analysis, is not the predominate issue at hand. Causation, in the sense of which of plaintiffs’ claimed injuries and disabilitie
were proximately caused by the lead paint exposure, is the central focus at this juncture.
This court is mindful that it is well established that lead-based paint exposure presents a serious potential health hazard to children. The court is also mindful that the Third Department has stated that “lead poisoning itself is an actionable injury.” However, the observation that lead poisoning is an “actionable injury” in itself does not give rise to the grand logical and evidentiary leap that every developmental, behavioral or neuropsychological problem experienced by a plaintiff has been proximately caused by a prior lead paint exposure.

In this regard, the court notes that plaintiffs’ counsel, Mo Athari, Esq. submitted an affirmation to which was a publication from the Centers for Disease Control and Prevention from the Advisory Committee on Childhood Lead Poisoning Prevention entitled “Managing Elevated Blood Lead Levels Among Young Children”. In Chapter 5, Developmental Assessment and Interventions, the authors discuss the variability in neuro-developmental problems between different children with a given EBLL and conclude: This suggests that not all children with a given BLL should be considered at equivalent neuro-developmental risk. In other words, an EBLL should be viewed as a risk factor for neuro-developmental problems, not a diagnosis.”
This information from the plaintiffs’ submissions is harmonious with the court’s analysis of the plaintiffs’ burden of proof and the areas of discovery available to the defense. Establishing elevated lead blood levels is not the end of the inquiry insofar as plaintiffs’ burden of proof on the issue of damages and disabilities claimed (an EBLL is a “risk factor” for neurodevelopmental problems, “not a diagnosis”).

In the case at bar, an EBLL establishes “an injury” (acute lead poisoning) but does not establish the universe of sequel that may be associated with an EBLL. Rather, the plaintiffs continue to have the burden of proof on the issue of damages and the defense is entitled to pursue and submit evidence on the issue of the proximate cause of claimed sequel flowing from the EBLL. Here, plaintiffs have provided no evidence that every exposure to lead or every measured EBLL automatically and unfailingly results in the universe of neuro-developmental injuries at issue herein.

In view of the foregoing, the Court finds in this case that defendants have made a sufficient showing of the materiality and relevance of the subject matter about which they seek to further depose the infant plaintiffs’ mother, Susan Adams, in this lead paint personal injury action. Defendants have submitted competent expert opinion, supported by authoritative treatises and studies which demonstrate a sufficient scientific basis for the defendants to pursue the areas of deposition questioning at issue.

Plaintiffs have not demonstrated the application of any evidentiary privilege to the subject matter at hand. Plaintiffs have not competently challenged or rebutted defendants’ showing through the application of any evidentiary privilege or with expert opinion disputing the medical relevance of the subject areas of deposition questioning sought by defendants. Defendants have made a sufficient showing of a medical, scientific and fact based need to depose Susan Adams notwithstanding the alleged “private” or “confidential” nature of the subject matter at issue.

The Court has undertaken an extensive review and study of the statutes, decisional law and exhibits submitted by plaintiffs’ counsel in opposition to what plaintiffs’ counsel characterizes as simple and settled legal issues. The Court, however, finds that the legal, scientific and medical bodies of knowledge involved in lead paint litigation and discovery present complex issues for the court’s resolution. The court’s lengthy decision attests to those complexities, necessitated in large part by plaintiffs’ counsel’s misleading and obfuscatory analysis of decisional law, statutory authority and the relative burdens of proof of the parties on numerous issues.

Untangling the Gordian knot of lead exposure specific injury causation presents a complex and wide reaching examination of numerous medical, scientific, socioeconomic and environmental variables. This examination is not subject to conclusory, superficial or artificial restriction on the scope of information that may be necessary for careful and just resolution by a jury.
As regards the issue on the conduct of the plaintiff’s counsel, the Court said, that defendants seek a further deposition of Susan Adams for the purpose of pursuing the aforementioned areas of inquiry about which plaintiffs’ counsel directed the witness not to answer or otherwise obstructed or interfered with defense counsels’ opportunity to conduct a fair and thorough examination of the witness.

The Court has carefully reviewed every word of both of Susan Adams’ deposition transcripts. Having done so, the Court finds that plaintiffs’ counsel’s conduct during the depositions was so obstructive and improperly and unilaterally controlling of the witness as to render the deposition a futile attempt to obtain relevant information and information material and necessary to the discovery of relevant information.

The Court finds that it was not defense counsels’ questions that were improper, but rather plaintiffs’ counsel’s instructions to the witness not to answer and his otherwise obstructive and excessive interference which was improper. Indeed, the evidentiary scope of an examination before trial is at least as broad as that applicable at trial itself.

Hence, the Court held that plaintiffs’ counsel’s conduct at the prior deposition of Susan Adams was obstructive and unprofessional which in turn resulted in an improper frustration of defendants’ attempts to conduct discovery of information material and necessary to the defense of the injury and damage claims embraced within plaintiffs’ pleadings. Accordingly, the undersigned will attend and preside over the further deposition of Susan Adams by defense counsel. The Court ordered that plaintiff’s counsel pay all cost associated with the conduct of the further deposition of Susan Adams including the cost of the stenographer.
Lastly on the third issue of this case, the Court held that because plaintiffs have failed to provide defendants with the type of records required in § 202.17(b)(1), defendants are relieved at this juncture from compliance with plaintiffs’ notice of physical examination.
Continue reading

Contact Information