On June 12, 2014, in the case of Hamilton v. Miller et al., the New York State Court of Appeals addressed whether a plaintiff has to supply medical narrative reports diagnosing every condition or injury alleged in plaintiff’s bill of particulars prior to an independent medical examination. The Court answered in the negative.
In Hamilton, plaintiffs’ attorney alleged over fifty (50) injuries in the Bill of Particulars, including kidney damage, liver damage, eye damage, and neurological damage with related cognitive and behavior problems. The plaintiffs provided no medical evidence regarding most of the injuries and disclosed no medical diagnoses linking their injuries to the lead exposure. The only “evidence” they provided were their diagnoses of elevated lead levels (a lead level of 35 in one case and a lead level of 58 in the other).
Before conducting independent medical examinations under CPLR Section 3121, six defendant landlords moved pursuant to 22 N.Y.C.R.R. 202.17 to compel the plaintiffs to produce any medical reports diagnosing them with the injuries alleged in the Bill of Particulars, and causally relating those injuries to lead exposure. The Supreme Court agreed and ordered the plaintiffs to produce the disclosure to the independent medical examination as it would be fundamentally unfair and contrary to the spirit and intent of 22NYCRR202.17 to force defendants to conduct IMEs in a vacuum. The Fourth Department affirmed.
The New York State Court of Appeals reversed. The Court held that the trial level order imposed unduly burdensome obligations not contemplated by 22 N.Y.C.R.R. 202.17. The Court held the regulation requires only the disclosure of medical reports by medical providers who have previously treated or examined the party seeking recovery, whereas the disclosure sought by the defendants was akin to expert disclosure. For the plaintiff to succeed at trial, the plaintiff will likely need to retain an expert to review the medical records and render the type of causation opinion contemplated by the defendants. However, nothing in the language of 22 N.Y.C.R.R. 202.17 required a plaintiff to make such disclosure at this early stage in litigation, i.e., pre independent medical examination.
The Court of Appeals further indicated that the proper way to deal with issues regarding expert disclosure would be for defendants to ask the individual Judges to amend, or issue, scheduling orders requiring plaintiffs produce expert disclosure at an earlier date. Thus, defense counsel must request the Court order plaintiff to provide expert disclosure prior to the defense expert disclosure deadline, and in advice of 30 days before trial.
Should you have any questions or concerns, please feel free to contact Renata Kowalczuk or Kristen B. Degnan.