Medical Reports: 22 NYCRR 202.17 [Ct. App.]

CPLR 3121(a)

CPLR 3101

CPLR 4411

22 NYCRR 202.17(b)(1)

Hamilton v Miller, 2014 NY Slip Op 04230 [2014]

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 Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] ["[T]he fact that a report never was prepared does not obviate the party's obligation under the rules"]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v [*3]Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)[FN2]. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence ofeach alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court's motivation for granting that relief is understandable. Plaintiffs' counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel's gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court's power.

Supreme Court also granted relief beyond that contemplated by rule 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs' injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports "include a recital of the injuries and the conditions as to which testimony will be offered at the trial, . . . including a [*4]description of the injuries, a diagnosis, and a prognosis." There is no requirement that medical providers causally relate the injury to the defendant's negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

Supreme Court properly denied plaintiff Hamilton's CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress's findings justifying legislation aimed at reducing lead — findings such as: "at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems;" and "the Federal Government must take a leadership role in building the infrastructure—including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance—necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible" (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not "law" that is relevant to Hamilton's case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton really wanted was to have Supreme Court take judicial notice of the fact that exposure to lead paint can cause injury. "To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobile Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further [*5]proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

On Discovery

 These are some of the leftover cases from last week and maybe one or two
from this week.

§ 3126
Penalties for refusal to
comply with order or to disclose

Cobenas v Ginsburg Dev. Cos., LLC, 2010 NY Slip Op 05718 (App. Div.,
2nd, 2010)

In the absence of evidence that
the appellant willfully and contumaciously failed to appear for an examination
before trial, the Supreme Court should not have stricken his answer (see Cambry v Lincoln
, 50 AD3d 1081
; Conciatori v Port
Auth. of N.Y. & N.J.
, 46 AD3d 501
). The appropriate
remedy was to preclude the appellant from offering any testimony at trial (see Patel v DeLeon,
43 AD3d 432
; Williams v Ryder, TRS,
, 29 AD3d 784

22 NYCRR 202.17 Exchange
of medical reports in personal injury and wrongful death actions

Shichman v Yasmer, 2010 NY Slip Op 05751 (App. Div., 2nd, 2010)

The defendant here met his initial
burden of establishing his entitlement to judgment as a matter of law, which
the plaintiffs do not dispute on appeal. In opposition to the defendant's
motion, the plaintiffs principally relied on their expert's affidavit. However,
as the defendant argued and the Supreme Court found, the plaintiffs failed to
satisfy their obligations pursuant to 22 NYCRR 202.17 to serve the defendant
with a report concerning their expert's physical examination of the plaintiff.
Accordingly, the Supreme Court providently exercised its discretion in
precluding so much of the plaintiffs' expert's affidavit as was derived from
the expert's physical examination of the plaintiff (see Neils v Darmochwal, 6 AD3d 589, 590). However, under the
circumstances presented here, the Supreme Court improvidently exercised its
discretion in precluding the plaintiffs' expert's opinions in the affidavit
which were based on other evidence in the case ( id.). Based on a review of the affidavit, it is clear that the
expert's opinions derived from other sources were not "inextricably
intertwined" with his or her opinions derived from the physical
examination of the plaintiff (id.).

The expert's opinion, with regard to certain conclusions, was not dependent or
based upon the physical examination. For example, the expert's conclusion that
the defendant deviated from accepted podiatric practice by performing the
procedures at issue at the neck of the first metatarsal rather than at the head
of the first metatarsal, as proper practice allegedly demanded, was based,
inter alia, on the defendant's own deposition testimony as well as the expert's


CPLR § 3101 Scope of disclosure


There shall be full disclosure of all matter material and necessary in
the prosecution or defense of an action, regardless of the burden of
proof, by…

(d) Trial preparation

Spohn-Konen v Town of Brookhaven, 2010 NY Slip Op 05382 (App. Div., 2nd,

While CPLR 3101(a) provides that "[t]here shall be full
disclosure of all matter material and necessary in the prosecution . . . of an
action" (see Allen v Crowell-Collier
Publ. Co., 
21 NY2d 403, 406),
"unlimited disclosure is not permitted" (Harris v Pathmark Stores, Inc, 48
AD3d 631, 632 [internal quotation marks omitted]; see
Silcox v City of New York, 
AD2d 494, 494). CPLR 3103(a) provides that a court may issue a protective order
denying, limiting, conditioning, or regulating the use of any disclosure
device, in order to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to the other party.


To show that additional depositions are necessary, it must be
demonstrated (1) that the representatives already deposed had insufficient
knowledge, or were otherwise inadequate, and (2) that there is a substantial
likelihood that the persons sought for depositions possess information which is
material and necessary to the prosecution of the case
(see Nazario v City of New York, 27
AD3d 439; Hayden v City of New York, 26
AD3d 262; Saxe v City of New York, 250
AD2d 751, 752; Carter v New York City Bd. of Educ., 225 AD2d 512; Zollner
v City of New York, 
204 AD2d
626, 627). Since the plaintiff failed to sustain her burden of demonstrating
these two elements, the Supreme Court properly granted the defendant's motion
for a protective order (see
Sladowski-Casolaro v World Championship Wrestling, Inc., 
47 AD3d 803, 803-804; Barone
v Great Atl. & Pac. Tea Co., 
AD2d 417, 417-418; Saxe v City of New York, 250 AD2d at 752). 


Green v William Penn Life Ins. Co. of N.Y, 2010 NY Slip Op 05327 (App. Div., 1st, 2010)


One reason it is so troubling that plaintiff was prejudiced in
this manner is that the situation defense counsel was attempting to solve with
his sudden introduction of an expert witness was of his own making.
It arose
from defense counsel's litigation decision to use Mr. Green's treating
internist, Dr. Robert Bos, on his direct case to establish that Mr. Green had
been suicidal. Plaintiff did nothing to create the predicament in which the
defense found itself. Since the burden was always on defendant to overcome the
presumption and prove that Mr. Green committed suicide, and plaintiff had no
burden on the issue, defendant cannot possibly point to plaintiff's not calling
an expert to justify defendant's initial decision not to call its own expert.


The last decision is far longer than this blurb would suggest.  It’s worth reading.