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.