Christopher Hamilton, Appellant,v.John Miller et al., Respondents.

Brief

N.Y.May 7, 2014

To be Argued by: THOMAS E. REIDY (Time Requested: 15 Minutes) Court of Appeals Docket No. APL-2013-00182 Monroe County Clerk’s Index No. 2009-9673 Court of Appeals of the State of New York CHRISTOPHER HAMILTON, Plaintiff-Appellant, – against – JOHN MILLER, DAVID MILLER, JULES MUSINGER, DOUG MUSINGER, and SINGER ASSOCIATES, Defendants-Respondents. BRIEF FOR DEFENDANTS-RESPONDENTS JULES MUSINGER, DOUG MUSINGER AND SINGER ASSOCIATES WARD GREENBERG HELLER & REIDY LLP Thomas E. Reidy, Esq. Joshua M. Agins, Esq. Attorneys for Defendants-Respondents Jules Musinger, Doug Musinger and Singer Associates 300 State Street, Suite 600 Rochester, New York 14614 (585) 454-0700 Dated: October 8, 2013 RULE 500.1(f) DISCLOSURE STATEMENT Singer Associates has no parents, subsidiaries, or affiliated business entities. i TABLE OF CONTENTS Table of Authorities ...................................................................................................... iii Questions Presented ...................................................................................................... vi Preliminary Statement ................................................................................................ 1 Factual and Procedural History .................................................................................. 3 A. The Musinger Defendants’ Motion to Compel............................................ 9 1. The IAS Court’s Decision as to Uniform Rule § 202.17 .................... 12 2. The Appellate Division’s Decision as to Uniform Rule § 202.17 ............................................................................................... 13 B. Plaintiff’s Cross-Motion for Judicial Notice ............................................. 14 1. The IAS Court’s Decision as to Judicial Notice ................................. 15 2. The Appellate Division’s Decision as to Judicial Notice ................... 16 C. The Issues Presented on this Appeal ......................................................... 17 Argument.................................................................................................................. 18 POINT I: THE IAS COURT PROPERLY REFUSED TO TAKE JUDICIAL NOTICE OF 42 U.S.C. § 4851 AS LAW OR FACT ........................................................................................................ 18 A. Plaintiff’s Request for Judicial Notice Pursuant to CPLR § 4511 is Misplaced Because 42 U.S.C. § 4851 Does Not Create Relevant Substantive Law ...................................... 19 B. The IAS Court Had No Obligation to Take Judicial Notice of Disputed Facts on which the Congress Hap- pened to Opine ................................................................................... 25 ii POINT II: THE TRIAL COURT PROVIDENTLY EXERCISED ITS DISCRETION IN GRANTING DEFENDANTS’ MOTION TO COMPEL AND PRECLUDE UNDER THE EXPRESS PROVISIONS OF 22 NYCRR § 202.17 ..................... 31 A. The Lower Courts’ Exercise of Discretion Must Be Evaluated Within the Circumstances of this Lead Paint Case .................................................................................................... 32 B. The IAS Court’s Order is Based on a Reasonable Application of Uniform Rule § 202.17 .............................................. 34 Conclusion ............................................................................................................... 46 iii TABLE OF AUTHORITIES Cases Adams v. Rizzo, 13 Misc. 3d 1235A, 2006 Slip Op. 52135U 96 (Sup. Ct., Onondaga County 2006) ..................................................................... 33-34 Affronti v. Crosson, 95 N.Y.2d 713 (2001) ............................................................. 29 Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740 (2000) ..................................... 31 Baden v. DL Peterson Trust, 190 A.D.2d 705 (2d Dept. 1993) .............................. 41 Berson v. Chowdhury, 251 A.D.2d 278 (2d Dept. 1998) ........................................ 41 Bethlehem Steel Corp. v. Bd. of Edu. of City Sch. Dist. of Lacka- wanna, 61 A.D.2d 147 (4th Dept. 1978) ......................................................... 25 Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 1031 (1984) ................................. 31 Brown v. Maple3, LLC, 88 A.D.3d 224 (2d Dept. 2011) .................................. 23 n.3 Butler v. Stagecoach Group, PLC, 72 A.D.3d 1581 (4th Dept. 2010) .................... 25 Ciriello v. Virgues, 156 A.D.2d 417 (2d Dept. 1989) ............................................. 41 Davidson v. Steer/Peanut Gallery, 277 A.D.2d 965 (4th Dept. 2000) .............. 41, 44 Dutcher v. Vandeloo, 2012 WL 447609 (Sup Ct. Albany Cty. 2012) ..................... 29 Giles v. Yi, 105 A.D.3d 1313 (4th Dept. 2013)............................................ 32, 39-40 GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985) ............................................................................................................... 28 Hamilton v. Miller, 106 A.D.3d 1476 (4th Dept. 2013) .......................................... 28 Hardy v. Sicuranza, 133 A.D.2d 138 (2d Dept. 1987) ............................................ 20 Hotel Dorset Co. v. Trust for Cultural Resources of City of New York, 46 N.Y.2d 358 (1978) ................................................................................ 24-25 Hunter v. New York, O&W Ry. Co., 116 N.Y. 615 (1889) ...................................... 25 iv Jessica H. v. Spagnolo, 41 A.D.3d 1261 (4th Dept. 2007) ................................ 40-41 Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952 (1998) ...................... 31-32 Kingsbrook Jewish Medical Center v. Allstate Insurance Co., 61 A.D.3d 13, (2d Dep’t 2009) ....................................................................... 14-15 Marable v. Hughes, 38 A.D.3d 1344 (4th Dept. 2007) ........................................... 40 Nero v. Kendrick, 100 A.D.3d 1383 (4th Dept. 2012) ....................................... 38-39 Outlet Embroidery Co. v. Derwent Mills, Ltd., 254 N.Y. 179 (1930) ..................... 29 Pagan v. Rafter, 107 A.D.3d 1505 (4th Dept. 2013) ............................................... 28 People v. Wesley, 83 N.Y.2d 417 (1994) ........................................................... 29-30 Pfleuger v. Pfleuger, 304 N.Y. 148 (1952) .............................................................. 19 Proyect v. United States, 101 F.3d 11 (2d Cir. 1996) .............................................. 30 Ptasznik v. Schultz, 247 A.D.2d 197 (2d Dep’t 1998) ....................................... 14-15 Robinson v. Bartlett, 95 A.D.3d 1531 (3d Dept. 2012) ........................................... 28 Skerritt v. Bach, 23 A.D.3d 1080 (4th Dept. 2005) ........................................... 23 n.3 Sleasman v. Sherman, 212 A.D.2d 868 (3d Dept. 1995) ................................... 25-26 Sommers v. Sommers, 203 A.D.2d 975 (4th Dept. 1994) ........................................ 29 Sweet v. Sheahan, 235 F.3d 80 (2d Cir. 2000)......................................................... 21 Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843 (2008) .............................................................................. 31 Town of Massena v Niagara Mohawk Power Corp., 45 N.Y.2d 482 (1978) ............................................................................................................... 43 Van Wert v. Randall, 35 Misc.3d 1202(A) (Sup Ct. Rensselaer Cty. 2012) ................................................................................................................ 29 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) .......................................... 28 v Other Authorities Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. §§ 4851-4856 ................................................................................passim Constitution of the State of New York Article V ........................................................................................................... 43 New York Public Health Law Sections 1370-1376 ..................................................................................... 14,16 New York Civil Practice Law and Rules Section 3101(d) .......................................................................................... 44-45 Section 3103 ..................................................................................................... 11 Section 3121 ............................................................................................... 33, 40 Section 3124 ............................................................................................... 34, 45 Section 3212(b) ................................................................................................ 28 Section 4511 ..............................................................................................passim Section 5505(b) ................................................................................................ 43 Uniform Rules for New York State Trial Courts NYCRR § 202.17 ......................................................................................passim New York Pattern Jury Instructions Civil Div. 2B Intro. 1 (3d ed.) ....................... 20 McCormick on Evidence § 335 (Strong 4th ed.) ..................................................... 19 Robert A. Barker and Vincent Alexander, 5 N.Y. Prac., Evidence in New York State and Federal Courts § 2:9 (2011) ..................................... 19-20 Richardson, Evidence § 14 (Prince 10th ed.) ........................................................... 26 vi QUESTIONS PRESENTED QUESTION ONE: Did the IAS court properly exercise its discretion in denying a cross-motion, made pursuant to CPLR § 4511, for judicial no- tice of the legislative preamble codified at 42 U.S.C. § 4851? ANSWER: Yes; the IAS court properly denied the cross-motion because the legislative preamble codified at 42 U.S.C. § 4851 does not create substantive law that could be applied to this lead paint personal injury lawsuit, and the Court did not abuse its discre- tion in refusing to take judicial notice of purported facts con- tained in the preamble. QUESTION TWO: Did the IAS court properly direct Plaintiff, at the conclusion of discovery, to provide medical reports pursuant to 22 NYCRR § 202.17, identifying the alleged injuries that he intends to prove at trial, before the Defendants were required to conduct independent medical examinations? ANSWER: Yes; the IAS court reasonably applied 22 NYCRR § 202.17 in a manner that is consistent with the Rule’s express terms and in- tent, so as to avoid the clear prejudice to Defendants if required to conduct independent medical examinations without first be- ing properly advised of the alleged injuries at issue. PRELIMINARY STATEMENT Respondents respectfully submit that the Appellate Division’s Memorandum and Order is consistent with well-established precedent and should be affirmed in all respects. At the outset, it is necessary to clarify the nature of the issues on appeal. Appellant’s Brief may leave this Court with the erroneous belief that this appeal arose from a summary judgment motion at the trial court level, since Appellant’s Brief contains the following statements:  “plaintiff provided sufficient proof . . . to establish the dose response relationship and effects of low-level lead poisoning” (App. Br. at 2);  “[plaintiff] made out a prima facie case of causation as a matter of law” (App. Br. at 3);  “Causation is first a question of law . . . Summary Judg- ment, in favor of plaintiff on this record without the need for expert testimony, would be appropriate” (App. Br. at 11-12);  “as plaintiff established causation at law shifting the bur- den of proof, . . . [the] Supreme Court abused its discre- tion as a matter of law . . . [by] granting the defendant landlords conditional summary judgment on the issue of causation” (App. Br. at 18). Although not entirely clear, it appears that Appellant is asking this Court to estab- lish a “rebuttable presumption” (App. Br. at 5) and/or enter some sort of finding as to general causation (App. Br. at 2, 3, 11-2, 18). In fact, inexplicably, Point II of 2 Appellant’s Brief appears to be arguing a summary judgment motion in some other case. These statements and arguments reflect a fundamental mischaracterization of the procedural posture of this appeal. Appellant’s argument has evolved substantially and materially since it was presented to the IAS court. Neither Plaintiff nor the Defendants moved for sum- mary judgment. The IAS court did not grant summary judgment, nor did the court grant, as Appellant characterizes it, “conditional summary judgment.” (App. Br. at 18; see R. at 7-14.) In fact, Plaintiff would not be entitled to summary judgment as to causation, because he did not submit any admissible proof on that issue. Ac- cordingly, many of the arguments advanced in Appellant’s Brief are irrelevant to the issues on appeal, and they should be disregarded. As discussed in the Procedural History section below, this appeal presents two legal questions, which were presented to the IAS court as discrete issues. The first is whether the Appellate Division abused its discretion as a matter of law in affirming the IAS court’s denial of Plaintiff’s request, made pursuant to CPLR § 4511, for judicial notice of 42 U.S.C. § 4851—the legislative preamble to the Residential Lead-Based Hazard Reduction Act. The second question on appeal is whether the Appellate Division abused its discretion as a matter of law in affirming the IAS court’s Order, which directed Plaintiff to produce, prior to any deadline for 3 Defendants to conduct independent medical examinations (“IMEs”), medical rec- ords or reports identifying the existence of the injuries and conditions alleged in Plaintiff’s Verified Bill of Particulars. FACTUAL AND PROCEDURAL HISTORY Christopher Hamilton (“Plaintiff” or “Appellant”) was born on March 15, 1990, at Strong Memorial Hospital, in Rochester, New York. (R. at 328.) Plain- tiff’s medical history notes “bilateral otitis media,” which was diagnosed in August 1993; “chronic otitis media;” a “cleft palate;” and “hearing and speech difficul- ties.” (R. at 331.) In October 1992, Plaintiff was referred to the Committee on Preschool Special Education due to language delays. (R. at 371.) For two years, he received speech and language therapy, occupational therapy, and audiological evaluations. Additionally, as early as 1992, the Preschool Committee on Special Education recognized that Plaintiff exhibited “problems getting along at all [with] peers.” (R. at 366.) In May 1993, psychological testing revealed that Plaintiff’s performance in verbal comprehension ranked in the bottom 1% of his age peers. (R. at 372.) His educational records reflect that Plaintiff “has been enrolled in eleven City schools since kindergarten.” (R. at 350.) On or around July 8, 2009, Plaintiff commenced this action alleging personal injuries resulting from childhood exposure to lead-based paint. (R. at 17.) Plain- 4 tiff alleges that he was exposed to hazardous levels of lead paint while residing in properties located throughout Rochester, New York, including a property owned by Defendants Jules Musinger and Singer Associates (“Respondents” or the “Musinger Defendants”). (R. at 19-24.) He further alleges exposure to lead paint while residing at another Rochester, New York property, owned by Defendants John Miller and David Miller (the “Miller Defendants”). (R. at 24-27.) Plaintiff allegedly resided at the Musinger Defendants’ property beginning on July 1, 1994, well after his speech and language delays were identified by the Rochester City School District. (R. at 574-75.) Thus, as confirmed by his medical and education- al records, the aforementioned medical conditions and cognitive and educational difficulties predated Plaintiff’s residence at the property owned by the Musinger Defendants. Shortly after interposing an answer to the complaint, the Musinger Defend- ants served a demand for a Verified Bill of Particulars, specifically seeking a de- scription of each injury claimed to have been sustained as a result of the alleged exposure to lead-based paint at the Musinger Defendants’ property. (R. at 138.) In January 2010, Plaintiff served a Bill of Particulars, verified by his attorney, alleg- ing that Plaintiff suffered no fewer than fifty-eight (58) separate medical, genetic, subcellular, psychological, and psychiatric conditions, including: 5 a. lead poisoning; b. neurological damage; c. diminished cognitive function and intelligence; d. brain damage; e. severe emotional, and psychological harm; f. pain and suffering; g. bone cell damage; h. lowered IQ; i. impaired neuropsychological functioning; j. impaired academic achievement; k. abnormal social/behavioral development; l. cognitive disabilities; m. developmental disability; n. “severe disability;” o. serious impairment in occupational functioning; p. serious impairment in school functioning; q. neurobehavioral injuries; r. behavioral problems; s. developmental deficiencies; 6 t. damage to normal cell and system function; u. impairment of the process of heme biosynthesis; v. injury to red blood cells; w. decreased educational and employment opportunities; x. damage to DNA; y. apoptosis; z. excitotoxicity; aa. decreased cellular energy metabolism; bb. impaired heme biosynthesis and anemia; cc. oxidative stress; dd. lipid peroxidation; ee. altered activity second messenger systems; ff. altered neurotransmitter release; gg. altered neurotransmitter receptor density; hh. impaired development and function of oligodencirocytes; ii. abnormal myelin formation; jj. abnormal neurotrophic factor expression; kk. abnormal dendritic branching patterns; ll. disruption of the blood brain barrier; 7 mm. disruption of thyroid hormone transport into the brain; nn. altered regulation of gene transcription; oo. increased susceptibility to lead elevations and further lead poisoning; pp. increased probability of mental and developmental impairments; qq. increased probability of emotional and psychological impairments; rr. increased probability of neurological and neurobehavioral problems; ss. fear of future injury, disease and future harm and impairments; tt. past, present and/or future medical monitoring; uu. past, present and/or future medical care and treatment; vv. past, present and/or future psychotherapy, psychological and/or psy- chiatric services; ww. increased probability of hypertension; xx. increased probability of renal disease and dysfunction; yy. increased probability of heart and circulatory disease and dysfunction; zz. impairment of the development of cartilage; aaa. increased probability of vascular disease; bbb. increased probability of impaired fracture healing; ccc. reduced life expectancy; ddd. seizures; 8 eee. headaches; and fff. growth retardation. (R. at 97-99.) The pleading further alleges that all of the above-enumerated inju- ries are permanent in nature and that they were caused by exposure to lead-based paint at the Defendants’ properties. (R. at 99.) The parties then engaged in considerable discovery pursuant to the IAS court’s discovery scheduling order. In December 2011, more than two years after commencement of the action, and sixteen years after Plaintiff’s alleged exposure to lead-based paint, the parties approached the deadline for Defendants to conduct an independent medical examination (“IME”) of the Plaintiff. Immediately following the defense IME, the Note of Issue was required to be filed and a trial date would be set. In accordance with Uniform Rule § 202.17(b)(1), the Musinger Defendants’ counsel wrote to Plaintiff’s counsel and requested that he “provide medical reports of a treating or examining medical service identifying the specific injuries alleged- ly sustained by plaintiff and causally relating those injuries to plaintiff’s alleged exposure to lead-based paint.” (R. at 145.) Counsel also requested that Plaintiff amend his “boilerplate list” of alleged conditions in the Verified Bill of Particulars to reflect only the specific injury or injuries that a treating or examining medical 9 service had identified and causally related to lead exposure. (R. at 145.). The pur- pose of this request was to enable Defendants to “identify the types of care provid- ers [necessary] to examine plaintiff, schedule any requisite IMEs and have the re- ports completed in compliance with the scheduling order for this matter.” (R. at 145.) In a one-sentence response provided by electronic mail, Plaintiff’s counsel responded that he would “require a motion since there is sufficient evidence of in- juries in the medical and school records.” (R. at 148.) In an effort to avoid motion practice, on December 19, 2011, the Musinger Defendants’ counsel requested that Plaintiff provide “a copy of each medical record and/or educational record” that, according to counsel’s e-mail, purportedly provided “sufficient evidence of inju- ries.” (R. at 150.) Plaintiff’s counsel did not provide a response to this request, and accordingly, in January 2012, the Musinger Defendants served a motion to compel and to preclude. (R. at 120-131.) This motion, and the resulting cross- motion by Plaintiff, forms the basis for the instant appeal. A. The Musinger Defendants’ Motion to Compel The Musinger Defendants’ motion sought an order compelling Plaintiff to (1) produce the aforementioned medical records in advance of a defense examina- tion, and (2) amend his Verified Bill of Particulars to reflect the injuries actually 10 identified in any medical record or report. (R. at 120-121.) The motion further re- quested that Plaintiff be ordered to provide said materials and revise his pleading before any defense IMEs were required to be completed. (R. at 120.) Subsequent- ly, the Miller Defendants cross-moved for the same relief. (R. at 176.) In support of the motion to compel, the Musinger Defendants submitted an attorney affirmation detailing why the relief sought was necessary. As described therein, almost invariably, the same or substantially similar “laundry list” of inju- ries is alleged by plaintiffs in lead paint litigation, regardless of whether a particu- lar condition or injury is even identified in a medical record. (R. at 126). Because of the sheer number of injuries alleged, and because those alleged injuries span numerous medical disciplines, it is impossible for defense counsel in lead paint lawsuits to assess a plaintiff’s actual medical status so as to decide which types of experts (and how many experts) would be required to perform an independent medical examination. (R. at 126.) Uniform Rule § 202.17(b)(1) provides a means to address this dilemma, by requiring that, “[a]t least 20 days before the date of such examination, or on such other date as the court may direct, the party to be examined shall server upon ad deliver to all other parties . . . copies of the medical reports of those medical pro- viders who have previously treated or examined the party seeking recovery. These 11 shall include a recital of the injuries and conditions as to which testimony will be offered at the trial . . . [including] a diagnosis and a prognosis[.]” 22 NYCRR § 202.17(b)(1). The Rule further provides that “no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule.” 22 NYCRR § 202.17(h). Although Plaintiff had produced medical and educational records, they did not identify the injuries enumerated in his Verified Bill of Particulars, much less reflect a “diagnosis and prognosis,” as required by Rule 202.17(b)(1). (R. at 128.) Thus, at trial, Uniform Rule § 202.17(h) would prevent Plaintiff from offering any evidence of injury. In response, Plaintiff submitted a cross-motion, requesting, among other un- related forms of relief, “a protective order (CPLR § 3103), from the relief request- ed by defendants” (R. at 181). The cross-motion was supported by an attorney af- firmation, which did not identify any medical record reflecting a diagnosis of, and prognosis for, any of the conditions listed in Plaintiff’s Verified Bill of Particulars. (R. at 193-95.) 12 1. The IAS Court’s Decision as to Uniform Rule § 202.17 The IAS court granted Defendants’ motions to compel. Specifically, the court’s Order states: “plaintiff is directed to produce a medical report or reports of a treating or examining medical service provider detailing a diagnosis of any inju- ries alleged to have been sustained by the plaintiff, Christopher Hamilton, and causally relating said injuries to plaintiff’s alleged exposure to lead-based paint, before any defense IMEs are conducted, and, further, amending the Bill of Particu- lars to reflect only those injuries actually sustained as a result of the alleged expo- sure before any defense IMEs are conducted; and it is further Ordered, that in the event the plaintiff fails to produce the aforementioned report or reports, plaintiff shall be precluded from introducing any proof concerning injuries alleged to have been sustained by the plaintiff[.]” (R. at 8-9.) Notably, contrary to Plaintiff’s as- sertions on this appeal, the Order did not require Plaintiff to retain an expert to conduct an examination of Plaintiff. (R. at 7-14.) In its written decision, the IAS court noted that it “has dealt with these issues and has ruled on them three times . . . .” (R. at 12; see also R. at 153-175.) The court then made the following finding, “[a]s in the prior [three] cases[,] Plaintiff herein has submitted a list of injuries that begin with the letter ‘a’ and extend to the letters ‘fff’. Plaintiff has provided medical reports but Plaintiff has not been diag- 13 nosed with all of the injuries set forth in the bill of particulars and where there is a diagnosis of injury . . . .” (R. at 12 [internal citations omitted].) This factual con- text informed the IAS court’s reasoning. Indeed, citing language from another court’s decision in a prior lead-paint lawsuit, the IAS court stated: [Appellant’s] tactical approach appears to be to force de- fendants to conduct IME’s in a vacuum (or in the dark without reference to any information from any qualified medical provider) and then, after the IME’s are complet- ed and the Note of Issue has been filed, serve expert dis- closure detailing all of the diagnostic, prognostic, tech- nical and testimonial information contemplated by and required by [Uniform Rule] § 202.17[b][1]. The court finds either of these approaches to be fundamentally un- fair and contrary to the spirit and intent of the medical report disclosure rules set forth in Uniform Rule § 202.17. (R. at 13.) Consequently, the IAS court reasonably applied Uniform Rule § 202.17 to the circumstances presented in this lead paint lawsuit. The relief granted was based on the provisions of Uniform Rule § 202.17. 2. The Appellate Division’s Decision as to Uniform Rule § 202.17 Like the IAS court, the Appellate Division took note of the substantial num- ber of conditions and injuries identified in Plaintiff’s Verified Bill of Particulars. The Appellate Division also noted the disparate types of injuries alleged, stating, “plaintiff alleged that he suffered 58 injuries as a result of his exposure to lead, in- cluding neurological damage, diminished cognitive function and intelligence, emo- 14 tional and psychological harm, lowered IQ, impaired educational and occupational functioning, behavioral problems, damage to his DNA, and other cognitive and de- velopmental disabilities.” (R. at 1562.) In this context, the Appellate Division af- firmed the IAS court’s Order, stating, “[w]e reject the further contention of plain- tiff that the court abused its discretion in directing him to produce medical reports diagnosing him with injuries that are causally related to his exposure to lead. ‘Ab- sent an abuse of discretion, we will not disturb the court’s control of the discovery process’ . . . , and we perceive no abuse of discretion in this case’.” (R. at 1563 [internal quotations and citations omitted for clarity].) B. Plaintiff’s Cross-Motion for Judicial Notice In addition to seeking a protective order, Plaintiff cross-moved for “an Order granting Judicial Notice (CPLR § 4511) of 42 U.S.C. § 4851; [and] Public Health Law § 1370-1376.” (R. at 181.) Plaintiff’s entire support for this request was en- compassed in a single paragraph in an attorney’s affirmation, which stated: The Court should also take judicial notice (CPLR § 4511) of 42 USC §4851 and PHL §1370-6. Judicial notice is “knowledge” which the court will officially accept as fact or well established, peer reviewed, legislatively author- ized, higher government endorsed science to prove that fact. Judicial notice may be taken by any court at any stage of the litigation, even on appeal (Kingsbrook Jew- ish Medical Center v. Allstate Insurance Co., 61 A.D.3d 13, 19 (2 nd Dep’t 2009); Ptasznik v. Schultz, 247 A.D.2d 15 197, 198 (2 nd Dep’t 1998)). As demonstrated, blood lead neurotoxicity very clearly causes brain damage. (R. at 193 [emphasis supplied].) Notably, Plaintiff’s papers failed to identify ex- actly what he wanted the Court to take judicial notice of or the purpose of that re- quest. 1. The IAS Court’s Decision as to Judicial Notice The IAS court denied Plaintiff’s cross-motion for judicial notice. The court first reviewed the language of CPLR § 4511, which, as its title indicates, governs “judicial notice of law.” The court then reviewed the single paragraph of Plain- tiff’s motion (cited above), which made clear that Plaintiff was moving pursuant to CPLR § 4511, but appeared to be attempting to utilize the congressional pro- nouncements to establish a fact, rather than as evidence of law. Ultimately, the IAS court concluded that the request pursuant to CPLR § 4511 for judicial notice of purported facts was improper. The court stated, “Plaintiff wants to use the find- ings set forth in 42 USC § 4851 and the Public Health Law to prove that Plaintiff’s exposure to lead based paint caused the ailments complained of. Use of the provi- sion in that manner is not appropriate. The Court agrees that these statutes are not applicable to these issues in this personal injury case and Plaintiff’s motion is de- nied.” (R. at 14.) 16 2. The Appellate Division’s Decision as to Judicial Notice The Appellate Division held that “the [trial] court properly denied that part of [Plaintiff’s] motion requesting that the court take judicial notice . . . .” (R. at 1563.) The Appellate Division analyzed Plaintiff’s request from two perspectives. First, the court noted that the request was properly denied because the legislative provisions do not establish any substantive law that is applicable to Plaintiff’s causes of action, and thus are not the proper subject of judicial notice under CPLR § 4511, which governs judicial notice of law. Second, the court noted that Plaintiff appeared to be attempting to establish causation through the inapplicable mecha- nism of judicial notice. The Appellate Division thus concluded that “the [trial] court was not required to take judicial notice of the factual findings contained in section 4851 inasmuch as causation is one of the disputed issues to be determined at trial.” (R. at 1563 [emphasis supplied].) Thus, the Appellate Division affirmed the IAS court’s ruling in all respects. 1 1 Although Plaintiff’s cross-motion to the IAS court requested judicial notice of two legislative provisions—a federal statute and the New York State Public Health Law—Appellant abandoned his appeal with respect to the Public Health Law. Consequently, the Appellate Division did not analyze or even reference the Public Health Law (R. at 1562-64). Appellant’s Brief to this Court also lacks any argument concerning the Public Health Law, further confirming that Appellant has abandoned that issue. 17 C. The Issues Presented on this Appeal By Order entered June 28, 2013, the Appellate Division denied Plaintiff’s request for re-argument, but granted him leave to appeal to this Court. (R. at 1560.) The Appellate Division certified the following question: “Was the order of this Court entered May 3, 2013, properly made?” (R. at 1560.) The question certi- fied did not clearly apprise this Court of the issues that were considered below, making the foregoing review of the procedural history of this case all the more im- portant. 2 As the foregoing demonstrates, the only issues presented for review relate to Defendants’ requests for relief with respect to Uniform Rule § 202.17 and Plain- tiff’s cross-motion for judicial notice of a federal statute. Plaintiff’s scattered ref- erences to causation are entirely irrelevant to the issues before the Court. 2 The defendants subsequently requested that the Appellate Division resettle the Order so as to clarify the issue or issues certified to this Court. By Order dated September 27, 2013, the Appel- late Division denied that request. 18 ARGUMENT POINT I THE IAS COURT PROPERLY REFUSED TO TAKE JUDICIAL NOTICE OF 42 U.S.C. § 4851 AS LAW OR FACT Plaintiff cross-moved for judicial notice under CPLR § 4511, the provision captioned “Judicial notice of law.” (R. at 181.) Plaintiff specifically requested “an Order granting judicial notice (CPLR § 4511) of 42 USC § 4851.” (R. at 181.) Neither Plaintiff’s Notice of Cross-Motion (R. at 181), nor his attorney’s affirma- tion (R. at 20), identifies Plaintiff’s purpose for seeking judicial notice of this pro- vision. In other words, Plaintiff did not explain how the statute would be used if the court were to take judicial notice of it. Further, Plaintiff’s submissions in sup- port of the request are inconsistent, as his Notice of Cross-Motion purports to move under CPLR § 4511 (R. at 181)—the provision for judicial notice of law— but his attorney’s affirmation states that “[j]udicial notice is ‘knowledge’ which the court will officially accept as fact.” (R. at 193 [emphasis supplied].) Consequent- ly, the IAS court analyzed Plaintiff’s request from both perspectives, and ruled that, either way, the request was improper. (R. at 14.) The Appellate Division did the same, and affirmed the IAS court’s ruling. (R. at 1562-1563.) 19 A. Plaintiff’s Request for Judicial Notice Pursuant to CPLR § 4511 is Misplaced Because 42 U.S.C. § 4851 Does Not Create Relevant Substantive Law. CPLR § 4511 requires courts to take judicial notice of federal and state stat- utes, as well as certain ordinances and regulations imposed by federal, state, and municipal agencies. The statute is an anachronistic evidentiary tool dating to a time “[w]hen the sources of law were dubious at best,” and it was the role of attor- neys to prove the substance of the applicable law in every case. See McCormick on Evidence § 335 (Strong 4th ed.). CPLR § 4511 dispensed with this requirement by allowing a court to take judicial notice of the applicable law without submission of formal proof subject to evidentiary rules. As this Court has confirmed, “the purpose of the statute was to formulate a procedure which would obviate the formal legal requirement of proving as a fact a foreign statute or law upon which a party relied.” Pfleuger v. Pfleuger, 304 N.Y. 148, 151 (1952) (analyzing the predecessor statute to CPLR § 4511). Stated dif- ferently, “[w]hen judges take judicial notice of law, they are determining, in an in- formal way, the law that applies to the particular cases before them. This process relieves the parties of the need to prove the substance of such law. The judge simply consults available statutes, case law, treatises and any other relevant sources, aided but not confined by the briefs of counsel.” Robert A. Barker and 20 Vincent Alexander, 5 N.Y. Prac., Evidence in New York State and Federal Courts § 2:9 (2011) (emphasis supplied). Given its intended purpose, a foundational requirement under CPLR § 4511 is that the “law” at issue be relevant to the action being litigated. If the “law” does not create an obligation, duty, or otherwise affect a standard of care applicable to the litigation, it cannot be charged to a jury. See N.Y. Pattern Jury Instruction, Civil Div. 2B Intro. 1 (3d ed.) (“It is also error to charge a statute or regulation which is inapplicable to the facts of the case”); see also Hardy v. Sicuranza, 133 A.D.2d 138, 139 (2d Dept. 1987) (“A statute or principle of law should be charged only where there is evidence in the record to support a finding that the statute or rule was violated.”). Thus, the fundamental inquiry that the courts below needed to answer in light of Plaintiff’s cross-motion for judicial notice was whether 42 U.S.C. § 4851 creates relevant substantive law that could be applied to the allega- tions in this particular case. In his cross-motion to the IAS court, Plaintiff did not attempt to explain why, or how, 42 U.S.C. § 4851 could be applied to this case. Consistent with the express language and nature of 42 U.S.C. § 4851, the IAS court concluded that the provision does not create any substantive law, much less law that is applicable to this case. 21 42 U.S.C. § 4851 is a single section within the “Residential Lead-Based Paint Hazard Reduction Act of 1992” (the “Act”), which is codified at 42 U.S.C. §§ 4851-4856. As the Second Circuit Court of Appeals has stated, the Act “de- clares as an objective the development of ‘a national strategy to build the infra- structure necessary to eliminate lead-based paint hazards in all housing as expedi- tiously as possible.’” Sweet v. Sheahan, 235 F.3d 80, 84 (2d Cir. 2000). A portion of the legislative preamble codified at § 4851a lists seven general “purposes” of the Act, including, among other things:  “to develop a national strategy to build the infrastructure necessary to eliminate lead-based paint hazards in all housing as expeditiously as possible;”  “to encourage effective action to prevent childhood lead poisoning by establishing a workable framework for lead-based paint hazard evaluation and reduction and by ending the current confusion over reasonable standards of care;”  “to mobilize national resources expeditiously, through a partnership among all levels of government and the pri- vate sector, to develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards;” and  “to educate the public concerning the hazards and sources of lead-based paint poisoning and steps to reduce and eliminate such hazards.” 42 U.S.C. § 4851a (“Purposes”). 22 To those ends, the Act is divided into four subchapters, which set forth the substantive provisions of the Act. Subchapter I, codified at § 4852-4852d, is enti- tled “Lead-Based Paint Hazard Reduction.” This section requires sellers and les- sors of real property to disclose known lead paint hazards and provide educational materials to buyers and lessees of residential property. Subchapter II, codified at § 4853-4853a, is entitled “Worker Protection.” This section requires collaboration between the Environmental Protection Agency and Department of Labor, to re- quire employers to properly warn employees of lead hazards and protect them from same. Subchapter III, codified at § 4854-4855, is entitled “Research and Devel- opment.” This section directs various federal agencies to “conduct research on strategies to reduce the risk of lead exposure from other sources, including exterior soil and interior lead dust in carpets, furniture, and forced air ducts.” Finally, Sub- chapter IV, codified at § 4856, is entitled “Reports.” This section requires the Sec- retary of Housing and Urban Development to provide periodic reports to Congress setting forth “the progress made in implementing the various programs authorized by this chapter.” Plaintiff did not seek judicial notice of any of the Act’s substantive provi- sions. 3 Instead, Plaintiff requested judicial notice of 42 U.S.C. § 4851—the codi- 3 Only one of the Act’s substantive provisions, § 4852d, contains any directive to private citi- zens. Section 4852d is entitled “Disclosure of information concerning lead upon transfer of resi- 23 fication of the legislative “findings” contained within the preamble to the Act. In its entirety, 42 U.S.C. § 4851 states: The Congress finds that— (1) low-level lead poisoning is widespread among American children, afflicting as many as 3,000,000 children under age 6, with minority and low-income communities dispropor- tionately affected; (2) at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, im- paired hearing, reduced attention span, hyperactivity, and behavior problems; (3) pre-1980 American housing stock contains more than 3,000,000 tons of lead in the form of lead-based paint, with the vast majority of homes built before 1950 containing sub- stantial amounts of lead-based paint; dential property.” Appellant did not seek judicial notice of this section. However, even if he had, such a request still would have been properly denied. Section § 4852d directs the Secretary of Housing and Urban Development, and the Administrator of the Environmental Protection Agency, to promulgate rules requiring sellers or lessors of real property to provide buyers and lessees a lead-based paint disclosure statement, which is required to identify the presence of known lead paint hazards and inform that a residential dwelling built prior to 1978 “may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning.” § 4852d(a)(3). Had Appellant sought judicial notice of § 4852d, the IAS court would have properly denied the request, because § 4852d does not apply to personal injury law- suits alleging childhood exposure to lead paint. The provision does not create an implied private right of action on the party of the child of a purchaser or lessee, but rather, establishes a mone- tary penalty and method to avoid a contract of sale or lease for real property upon discovery of a failure to warn of a known lead hazard. See Brown v. Maple3, LLC, 88 A.D.3d 224 (2d Dept. 2011) (holding no private cause of action for childhood exposure to lead-based paint under 42 U.S.C. § 4852d); Skerritt v. Bach, 23 A.D.3d 1080, 1081 (4th Dept. 2005) (holding that trial court erred in failing to dismiss purported action under 42 U.S.C. § 4852d on behalf of child al- legedly exposed to residential lead-based paint). 24 (4) the ingestion of household dust containing lead from deteri- orating or abraded lead-based paint is the most common cause of lead poisoning in children; (5) the health and development of children living in as many as 3,800,000 American homes is endangered by chipping or peeling lead paint, or excessive amounts of lead- contaminated dust in their homes; (6) the danger posed by lead-based paint hazards can be reduced by abating lead-based paint or by taking interim measures to prevent paint deterioration and limit children’s exposure to lead dust and chips; (7) despite the enactment of laws in the early 1970’s requiring the Federal Government to eliminate as far as practicable lead-based paint hazards in federally owned, assisted, and insured housing, the Federal response to this national crisis remains severely limited; and (8) the Federal Government must take a leadership role in build- ing 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 U.S.C. § 4851. These legislative “findings” do not create any rights, obligations, duties, or standards of care relevant to a personal injury lawsuit between private litigants. Rather, the purpose of these congressional “findings” is to justify congressional ac- tion as a matter of constitutional law. See generally Hotel Dorset Co. v. Trust for 25 Cultural Resources of City of New York, 46 N.Y.2d 358 (1978) (demonstrating emphasis on legislative findings in assessing constitutional attack on statute); Beth- lehem Steel Corp. v. Bd. of Edu. of City Sch. Dist. of Lackawanna, 61 A.D.2d 147, 153 (4th Dept. 1978) (“from the Legislative Findings…it is evident that the legisla- tion is designed to accomplish its purpose if skirting the constitutional limits…in a way that will conform to the Hurd decision”). The findings themselves, however, are not “law,” and on their face, could not be applied by a trier of fact in a personal injury lawsuit. Accordingly, as the Appellate Division confirmed, the IAS court was enti- tled—indeed, required—to deny the request for “judicial notice of law” made pur- suant to CPLR § 4511, because 42 U.S.C. § 4851 is not “law” and cannot be ap- plied to this case. B. The IAS Court Had No Obligation to Take Judicial Notice of Dis- puted Facts on which the Congress Happened to Opine. This Court has long held that a trial court has the discretion to deny requests for judicial notice of purported facts. Hunter v. New York, O&W Ry. Co., 116 N.Y. 615, 621 (1889) (“Courts are not bound to take judicial notice of matters of fact.”); accord, Butler v. Stagecoach Group, PLC, 72 A.D.3d 1581, 1583 (4th Dept. 2010); Sleasman v. Sherman, 212 A.D.2d 868, 870 (3d Dept. 1995) (“the decision to take 26 judicial notice of a fact is discretionary with the trial court.”) (citing Richardson, Evidence § 14, at 9 [Prince 10th ed.]). Appellant now states, as if it had been presented clearly to the Court below, “[h]ere, plaintiff requested judicial notice of a finding.” (App. Br. at 8). While this suggests that Plaintiff had all along sought judicial notice of fact, his reference to CPLR § 4511 clearly indicated that Plaintiff sought judicial notice of law. Further confusing the issue, Plaintiff’s attorney affirmation did not identify any specific fact or describe what the court was supposed to do with that “fact” after taking ju- dicial notice of it. Plaintiff’s entire argument in support of his cross-motion was set forth in a single paragraph in Plaintiff’s attorney affirmation, which merely recites a sentence contained within the legislative findings of 42 U.S.C. § 4851. (R. at 193 [“The Congress finds that . . . at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems”].) Plaintiff does not explain his intention in citing this congressional “finding” or what the IAS was supposed to do with the “finding” upon taking judicial notice of it. Thus, it is unclear whether Plaintiff intended the IAS court to take judicial notice that Congress has found a certain connection between lead exposure and certain conditions; or whether he in- 27 tended to establish that lead exposure causes such conditions; or whether he in- tended to establish generally that “blood lead neurotoxicity very clearly causes brain damage” (R. at 193); or whether he intended to establish that this particular plaintiff, Christopher Hamilton, suffers from one or more of these conditions as a result of lead exposure. There simply was no explanation to the IAS court as to Plaintiff’s intention in requesting judicial notice. Plaintiff’s failure to explain his request in a coherent manner alone justifies the IAS court’s denial of his request. Consequently, it cannot be concluded that the IAS court or Appellate Division abused their discretion as a matter of law in denying the request. The references in Appellant’s Brief to “the necessary rebuttable presumption (App. Br. at 5), “the dose response of harm to the brain and nerves at elevated lev- els” (App. Br. at 9, 10), and “a prima facie case of causation as a matter of law” (App. Br. at 11), only further cloud the issue. Two levels of appeal after his initial motion, Plaintiff still has not provided a clear description of exactly what he want- ed the IAS court to judicially notice, or for what purpose he wanted the court to take judicial notice. Appellant appears to claim, for the first time on this appeal, that he is “merely” attempting to establish “the dose response of harm to the brain and nerves at elevated levels” (App. Br. at 9), but 42 U.S.C. § 4851 says nothing about any dose-response relationship between lead and injury. 28 Even if Plaintiff had made a proper request to the IAS court, the relief that he appears to be seeking is fundamentally at odds with the procedural context of this case and basic concepts of tort law. Indeed, “Point II” of Appellant’s Brief ar- gues that “Plaintiff has already made a prima facie case of causation as a matter of law.” However, given that Plaintiff did not cross-move for summary judgment on any issue, the notion that Plaintiff could have established a prima facie case as to any element of his burden of proof is clearly misplaced. See generally GTF Mar- keting, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 967 (1985) (citing CPLR 3212(b), Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).) Just as in any other toxic tort case, Plaintiff must prove causation with admissible evidence. He is not entitled to establish causation, in the absence of a summary judgment motion, simply by requesting judicial notice of a legislative preamble of a federal statute. The two departments of the Appellate Division that have now ruled on this exact issue have decided that a trial court cannot take judicial notice of 42 U.S.C. § 4851 to give evidentiary weight, or preclusive effect, to the pronouncements of Congress. See Hamilton v. Miller, 106 A.D.3d 1476 (4th Dept. 2013); Pagan v. Rafter, 107 A.D.3d 1505, 1507 (4th Dept. 2013); Robinson v. Bartlett, 95 A.D.3d 1531 (3d Dept. 2012). Appellant’s novel theory of judicial notice has similarly 29 been rejected by trial courts in lead paint cases brought by Plaintiff’s counsel. See Van Wert v. Randall, 35 Misc.3d 1202(A) (Sup Ct. Rensselaer Cty. 2012) (denying plaintiff’s request to take judicial notice of various statutes); Dutcher v. Vandeloo, 2012 WL 447609 (Sup Ct. Albany Cty. 2012) (denying plaintiff’s request to take judicial notice of various statutes and regulations). There appears to be no dispute by any court in this State as to this issue, despite the repeated attempts by Plain- tiff’s counsel to seek this relief. To further highlight the fallacy of Plaintiff’s position, the following cases demonstrate how the concept of judicial notice is supposed to be applied: Affronti v. Crosson, 95 N.Y.2d 713, 719-20 (2001) (taking judicial notice of undisputed census data in a constitutional challenge to N.Y. Judiciary Law); Outlet Embroi- dery Co. v. Derwent Mills, Ltd., 254 N.Y. 179, 183 (1930) (taking judicial notice in a contract dispute that congressional debate in fact occurred, but not judicially no- ticing the substance of the facts debated); Sommers v. Sommers, 203 A.D.2d 975, 976 (4th Dept. 1994) (upholding decision to judicially notice undisputed govern- ment inflation statistics to assess cause of market appreciation in allocating marital property under Domestic Relations Law); People v. Wesley, 83 N.Y.2d 417, 435- 36 (1994) (holding courts may take judicial notice of reliability of a scientific pro- cedure “[o]nce a scientific procedure has been proved reliable [through a Frye 30 hearing]”) (emphasis added); Proyect v. United States, 101 F.3d 11, 12-13 (2d Cir. 1996) (acknowledging congressional findings for purposes of determining whether Congress appropriately exercised commerce clause power, but not taking judicial notice of the truth of those factual findings). None of these cases stand for the proposition that judicial notice can be taken of a disputed fact that makes up a component of a plaintiff’s burden of proof. Ultimately, Appellant’s Brief is virtually silent as to how, or why he believes that, the lower courts abused their discretion as a matter of law in refusing to take judicial notice of 42 U.S.C. § 4851. Given that Plaintiff failed to explain to the IAS court why, or for what purpose, it should take judicial notice of this statute (R. at 193), there is no basis on this Record to conclude that the IAS court abused its discretion as a matter of law. Appellant’s assertion that “CPLR Rule 4511 requires every court (‘shall’) to take ‘judicial notice without request of . . . public statutes of the United States” (App. Br. at 10) confuses the concepts of judicial notice of law under CPLR § 4511, which is mandatory, and judicial notice of fact, which is dis- cretionary. Since Plaintiff has now conceded that he is seeking judicial notice of fact (see App. Br. at 8), he cannot avail himself of the mandatory standard in CPLR § 4511. Accordingly, it is respectfully requested that the Order below be affirmed. 31 POINT II THE TRIAL COURT PROVIDENTLY EXERCISED ITS DISCRETION IN GRANTING DEFENDANTS’ MOTION TO COMPEL AND PRECLUDE UNDER THE EXPRESS PROVISIONS OF 22 NYCRR § 202.17 The only other issue presented on this appeal is one of first impression for this Court. At issue is whether the IAS court properly exercised its discretion by directing Plaintiff at the conclusion of discovery to produce medical records identi- fying the injuries claimed, and amend his Verified Bill of Particulars to reflect only those alleged injuries that are identified in his records, before Defendants per- formed an IME of Plaintiff. These types of “discovery determinations rest within the sound discretion of the trial court” and although “the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court . . . [the Court of Appeals’] review is limited to whether the Appellate Division abused its discretion as a matter of law.” Andon v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 747 (2000); Brady v. Ottaway Newspapers, Inc., 63 N.Y.2d 1031, 1033 (1984); see also Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845 (2008) (“Generally, the trial court ‘is afforded broad discretion in supervising disclosure and its determinations will not be disturbed unless that discretion has been clearly abused.’”); Kavanagh v. Ogden Allied Maint. Corp., 92 N.Y.2d 952, 954 (1998) (“Once the lower courts have un- 32 dertaken this balancing of interests with respect to discovery requests, this Court’s review is limited to determining whether there has been an abuse of discretion”). Here, the IAS court’s ruling was thoughtfully tailored to address a recurring prob- lem in lead paint litigation brought by Plaintiff’s counsel, and therefore, neither the IAS court nor the Appellate Division abused their discretion as a matter of law. A. The Lower Courts’ Exercise of Discretion Must Be Evaluated Within the Circumstances of this Lead Paint Case. In assessing Defendants’ requested relief, the courts below were entitled to balance the competing interests within the particular factual context presented. Kavanagh, supra, 92 N.Y.2d 952, 954 (1998). The Appellate Division recently noted the unique nature of lead paint cases: In contrast to the vast majority of personal injury actions, which involve discrete injuries sustained at a specific point in time, lead paint cases typically involve exposure over a sustained period of time and, unlike other toxic tort cases, there is no ‘signature injury’ that is linked to lead exposure in the way that, for example, mesothelioma is linked to asbestos, emphysema is linked to cigarette smoke, or adenosis is linked to diethylstilbestrol, known as DES. Giles v. Yi, 105 A.D.3d 1313, 1317-18 (4th Dept. 2013). This issue is compounded here, because Plaintiff served a bill of particulars alleging a boilerplate, laundry list of injuries that is almost entirely divorced from the facts of the case. (R. at 126, 97-99.) As both the IAS court and Appellate Di- 33 vision found, such was the case here: “Plaintiff has provided medical reports but Plaintiff has not been diagnosed with all of the injuries set forth in the bill of par- ticulars and where there is a diagnosis of injury, there is no medical report which establishes that the injury is causally related to Plaintiff’s exposure to lead based paint and/or elevated blood lead levels.” (R. at 12.) As discovery neared its conclusion, it became necessary for Defendants to identify which of the generically pleaded injuries are actually at issue, so that they could decide how many and what type of experts may be needed to conduct a med- ical examination pursuant to CPLR § 3121. Because Plaintiff refused to identify the actual injury or injuries at issue (and refused to amend his Verified Bill of Par- ticulars to assert only those claims supported by medical records), Defendants were unable to determine which, and how many, experts to retain. (R. at 126, 145, 150.) Without some form of relief, Defendants would learn of the true nature of Plaintiff’s alleged injuries only through expert disclosures, served sixty days before trial and after Defendants’ time to perform an IME expired. This problem was identified seven years ago in Adams v. Rizzo, another lead paint exposure case that was handled by Plaintiff’s counsel’s prior law firm. 13 Misc. 3d 1235A, 2006 Slip Op. 52135U, at 96 (Sup. Ct., Onondaga County 2006). In Adams, the plaintiff’s bill of particulars alleged almost the identical set of inju- 34 ries as Plaintiff alleges here, and the medical records exchanged similarly failed to identify a single provider that had even identified the alleged injuries, much less one that had causally connected the plaintiff’s elevated blood lead levels with any of the injuries alleged. Justice Carni noted that the situation allowed lead paint plaintiffs to establish an unfair tactical advantage. Specifically, he stated: Plaintiffs’ tactical approach appears to be to force de- fendants to conduct IME’s in a vacuum (or in the dark without reference to any information from any qualified medical provider) and then, after the IME’s are complet- ed and the Note of Issue has been filed, serve expert dis- closure detailing all of the diagnostic, prognostic, tech- nical and testimonial information contemplated by and required by [Uniform Rule] § 202.17[b][1]. 13 Misc. 3d 1235A, 2006 Slip Op 52135U, at 101. The motion below was heard by Justice Matthew A. Rosenbaum, who at the time was presiding over all lead paint litigation within the Seventh Judicial Dis- trict. As such, Justice Rosenbaum was acutely aware of the unique and problemat- ic issue presented by Plaintiff’s tactics in this case. B. The IAS Court’s Order is Based on a Reasonable Application of Uniform Rule § 202.17. In an effort to avoid the unfairness described above, Defendants moved, pur- suant to CPLR § 3124, for an Order directing Plaintiff to comply with the medical 35 exchange provision of Uniform Rule § 202.17. Consequently, the IAS court or- dered the following relief: (1) “plaintiff is directed to produce a medical report or reports of a treating or examining medical service provider detailing a diagno- sis of any injuries alleged to have been sustained by the plaintiff, Christopher Hamilton, and causally relating the injuries to plain- tiff’s alleged exposure to lead-based paint; before any defense IMEs are conducted;” (2) plaintiff is further directed “amend[ ] the Bill of Particulars to re- flect only those injuries actually sustained as a result of the alleged exposure before any defense IMEs are conducted;” and (3) “in the event the plaintiff fails to produce the aforementioned re- port or reports, plaintiff shall be precluded from introducing any proof concerning injuries alleged to have been sustained by the plaintiff” (R. at 8-9.) Thus, the IAS court’s Order contains three discrete components, all of which are responsive to the unique issue faced here, and all of which are supported by the language of Uniform Rule § 202.17. The first component of the IAS court’s Order is based directly on the lan- guage of Rule 202.17(b)(1), which states: [a]t least 20 days before the date of such [independent medical] examination or on such other date as the court may direct, the party to be examined shall serve upon and deliver to all other parties the following, which may be used by the examining medical providers: copies of all medical reports of those providers who have previously treated or examined the party seeking recovery. These 36 shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those x-ray and technicians’ reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis…. This provision serves to narrow the scope of the medical issues prior to trial by di- recting plaintiffs to specifically identify, through the production of relevant “medi- cal reports,” the injuries that they intend to prove. The IAS court’s Order enforces this provision by ordering such records to be produced, prior to any defense IMEs, so that Defendants and their experts will be adequately apprised of the alleged inju- ries. The second component of the IAS court’s Order directs Plaintiff to amend his Verified Bill of Particulars to reflect only those injuries that are supported by the medical records or reports produced by Plaintiff, while the third component di- rects that “plaintiff shall be precluded from introducing any proof concerning inju- ries alleged to have been sustained by plaintiff” should he fail to produce the aforementioned records. (R. at 8-9.) These components of the IAS court’s Order are a logical corollary to the first component, and are also a direct application of Rule 202.17(h), which states: the party seeking to recover damages shall be precluded at the trial from offering in evidence any part of the hos- pital records and all other records . . . not made available pursuant to this rule, and no party shall be permitted to 37 offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previous- ly exchanged, nor will the court hear testimony of any treating or examining medical providers whose medical reports have not been served as provided by this rule. 22 NYCRR § 202.17(h). Accordingly, the IAS Order reflects a reasonable applica- tion of Uniform Rule § 202.17. Without this mandatory exchange of the medical records supportive of a plaintiff’s alleged injuries, defendants in lead paint cases find themselves in a prob- lematic situation that causes real prejudice. Facing an inevitable deadline for com- pletion of defense medical examinations, defendants have no understanding of the conditions or injuries with which the plaintiff has been diagnosed. This problem is particularly acute in this case, where the Bill of Particu- lars drafted and “verified” by counsel alleges no fewer than sixty injuries allegedly caused by Plaintiff’s alleged exposure to lead-based paint. These purported “inju- ries” encompass a wide range of vaguely defined conditions, implicating multiple medical disciplines, including neurology (“neurological damage;” “abnormal mye- lin formation;” “abnormal dendritic branching patterns”), psychology (“diminished cognitive function;” “abnormal social/behavioral development;” “impaired aca- demic achievement;” “cognitive disability”), psychiatry (“severe emotional and psychological harm”), genetics (“damage to DNA”); cellular biology (“apoptosis;” 38 “excitotoxicity;” “decreased cellular energy metabolism;” “impaired heme biosynthesis and anemia;” “oxidative stress;” “lipid peroxidation;” “altered neurotransmitter release”), cardiology (“increased probability of heart” dis- ease), and vascular medicine (“increased probability of vascular disease”). (R. at 97-99.) Uniform Rule § 202.17(b)(1) solves this problem by requiring Plaintiff to support his claimed injuries with medical records rather than the boilerplate allegations in a Bill of Particulars drafted by counsel. In the ab- sence of Uniform Rule § 202.17, defendants in lead paint cases would be forced to determine the nature and extent of the examinations to be performed without any evidence that the alleged injuries actually exist, i.e., “in the dark without any refer- ence to any information from any qualified medical provider.” (R. at 13.) The Appellate Division, Fourth Department, has now considered this issue three times. In Nero v. Kendrick, 100 A.D.3d 1383 (4th Dept. 2012), a case in which the plaintiff was represented by the same law firm that represents Plaintiff here, the court noted, “[d]efendants have previously sought medical reports from plaintiffs pursuant to 22 NYCRR 202.17 and plaintiffs responded to that request, but none of the material provided contained any information concerning any condi- tion, symptom or problem that plaintiff was experiencing as the result of elevated blood lead levels.” 100 A.D.3d at 1383. The Appellate Division further stated that 39 “defendants should not be put to the time, expense and effort of arranging for and conducting a medical examination of plaintiff without the benefit of reports linking the symptoms or conditions of plaintiff to defendants’ alleged negligence.” Id. at 1384. Thus, the Appellate Division required the plaintiffs to produce a medical re- port identifying the existence of a lead-related injury, prior to the defendants’ dead- line to conduct IMEs could arise. Id. at 1383. The Fourth Department considered the issue again in Giles v. Yi, 105 A.D.3d 1313 (4th Dept. 2013), another case in which the plaintiff was represented by Plaintiff’s counsel here. In Giles, the “plaintiff alleged that he suffered 35 injuries as a result of his lead exposure, including neurological damage, diminished cogni- tive function and intelligence, behavioral problems, developmental deficiencies, increased probability of emotional and psychological impairments, hyperactivity, irritability, memory deficits, decreased educational and employment opportunities, and speech and language delays.” 105 A.D.3d at 1314. As here, although the plaintiff in Giles “provided [defendants] with educational records and medical rec- ords of his treating physicians[,] [n]one of those records [ ] linked the particular conditions, symptoms, or problems that plaintiff was experiencing with exposure to lead.” Id. In support of their motion to compel, and citing Uniform Rule § 202.17, defendants argued that they would be “forced to determine the nature and 40 extent of the [examinations] to be performed without any evidence that the alleged injuries sustained by plaintiff: (1) exist, and (2) are causally related to ingestion and/or inhalation of lead-based paint as alleged in [the c]omplaint.” Id. Citing tri- al courts’ “broad discretion in supervising the discovery process” and New York’s “policy of liberal, open pretrial disclosure,” the Giles court concluded that “Su- preme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR § 3121 exam- inations re conducted.” Id. at 1315-16. The trial court’s order in Giles contains the same directives as the IAS court’s Order in the instant case. (Compare R. at 7-9 with R. at 159-60.) Other decisions of the Appellate Division have similarly ruled in favor of complete disclosure of medical records prior to defense IMEs. See Marable v. Hughes, 38 A.D.3d 1344, 1344-45 (4th Dept. 2007) (citing Rule 202.17(b)(1) and holding that the trial court properly granted the defendant’s motion to compel the plaintiff to provide all “records and/or reports of neuropsychological or IQ testing” of the plaintiff prior to the defense IME); Jessica H. v. Spagnolo, 41 A.D.3d 1261 (4th Dept. 2007) (holding that the trial court abused its discretion in failing to compel the plaintiff to disclose all medical and psychological records before the 41 defense IME). Moreover, in circumstances similar to those presented here, courts have consistently held that a failure to exchange medical reports complying with Rule 202.17(b)(1) will result in preclusion of testimony by any treating or examin- ing medical provider. In Davidson v. Steer/Peanut Gallery, 277 A.D.2d 965 (4th Dept. 2000), the court stated: Although plaintiff responded to defendant’s discovery demand by asserting that he did not have reports from physicians who examined him, he is not relieved of the obligation to ensure that the reports of physicians who examined him in connection with the litigation are pre- pared, and to provide them to defendant. Having placed his physical condition in controversy, plaintiff “may not insulate from disclosure material necessary to the defense concerning that condition.” 277 A.D.2d 965, 965-66 (internal citations omitted for clarity). Thus, the Da- vidson court ruled that the trial court should have granted the defendant’s motion to “preclude plaintiff from offering medical testimony at trial based on plaintiff’s failure to provide reports of ‘physicians that have treated [or examined] the plain- tiff in connection with the injuries and conditions for which discovery is sought.’” Id. at 965; accord Ciriello v. Virgues, 156 A.D.2d 417 (2d Dept. 1989); Berson v. Chowdhury, 251 A.D.2d 278 (2d Dept. 1998); Baden v. DL Peterson Trust, 190 A.D.2d 705 (2d Dept. 1993). 42 Appellant’s Brief fails to provide a cogent explanation as to why the IAS court’s reading of Rule 202.17 was arbitrary or why it will place any unreasonable burden on Plaintiff. In Point III of his Brief (App. Br. at 15), Appellant appears to advance three arguments as to why the lower courts erred on this issue. First, Appellant misapprehends Defendants’ argument by stating that “in seeking to compel plaintiff, [defendants complained] that the injuries claimed were vague so that they could not determine the type of examination to perform.” (App. Br. at 15.) Defendants have never claimed that the conditions alleged in the Veri- fied Bill of Particulars are “too vague,” but rather, that the boilerplate list of pur- ported conditions contained within the Bill of Particulars is divorced from the rec- ords that were produced by Plaintiff. Uniform Rule § 202.17 requires a plaintiff to provide medical records that provide “a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those x-ray and technicians’ reports which will be offered at the trial, including a description of the injuries, a diagnosis and a prognosis.” 22 NYCRR § 202.17(b)(1). There- fore, the issue here is not “notice,” in the form of a list prepared by counsel, be- cause Uniform Rule § 202.17(b)(1) expressly requires production of medical rec- ords identifying the medical conditions or injuries at issue. If Appellant’s position were adopted and counsel were permitted to merely supply a list of “injuries” in a 43 bill of particulars, then Uniform Rule § 202.17 would be rendered completely meaningless. The IAS court acted reasonably, and within its discretion, in reject- ing such an interpretation. Second, Appellant argues that the IAS court’s interpretation of Uniform Rule § 202.17 “bucks long standing precedent by requiring plaintiff to produce ‘evidentiary material’ or ‘expert material.’” (App. Br. at 15.) This is simply un- true. The IAS court’s Order says nothing about production of “expert reports” or “expert material,” and Defendants did not request such material. In fact, the IAS court’s decision expressly states that “[t]his Court is not ordering Plaintiff to dis- close the report of an expert.” (R. at 13.) It was Plaintiff’s counsel who interjected the notion that the IAS court’s Order “effectively” required production of “expert reports,” so as to set up his argument that the court somehow overstepped its dis- cretion. In actuality, Appellant’s argument is a concession that the existing medi- cal records do not satisfy the requirements of Uniform Rule § 202.17—a finding made by the IAS court. That factual finding is not subject to review before this Court. See Town of Massena v Niagara Mohawk Power Corp., 45 N.Y.2d 482, 491 (1978); N.Y. Const., Article V, § 3(a); CPLR § 5501(b). Consequently, pur- suant to Rule 202.17(h), should Plaintiff not submit additional records from a treat- ing or examining provider, he will be precluded from offering “any evidence of in- 44 juries or conditions not set forth or put in issue in the respective medical reports previously exchanged.” 22 NYCRR § 202.17(h); Davidson, supra, 277 A.D.2d 965. Thus, in reality, Appellant is not seeking relief from the IAS court’s order; rather, he is attempting to escape the effect of the express language of Rule 202.17(h). Further, contrary to Appellant’s assertions, the IAS court’s Order does not impose an unreasonable burden on him. It merely directs him to produce a medical report detailing the injuries he intends to pursue at trial, or face preclusion as required by Uniform Rule § 202.17(h). In turn, per the requirements of the Uni- form Rules, if Defendants conduct an IME, a report will be presented to Plaintiff within forty-five days of the examination. 22 NYCRR 202.17(c). The result is in- disputably fair, and consistent with the need to narrow the issues for trial at the close of discovery. Moreover, if Plaintiff chooses to support the existing medical records with a “report” from a treating or examining medical provider so as to avoid preclusion, such report is not the equivalent of an “expert disclosure.” Expert disclosure is governed by CPLR § 3101(d), which requires a description of (1) the subject mat- ter on which the expert will testify; (2) the substance of the facts and opinions on which each expert is expected to testify; (3) the qualifications of each expert wit- 45 ness; and (4) a summary of the grounds for each expert’s opinion. Nothing in the IAS court’s Order or Rule 202.17 requires this type of disclosure. Finally, Appellant argues that the IAS court should not have entertained De- fendants’ motions because they were made pursuant to CPLR § 3124, which Ap- pellant claims is inapplicable here. According to Appellant, CPLR § 3124 is inap- plicable because “plaintiff did not fail to respond or comply with a ‘request, notice, interrogatory, demand, question, or order.” (App. Br. at 17.) This argument, seemingly presented as an afterthought, was not raised below. (See R. at 183-95.) In any event, CPLR § 3124 expressly permits a motion to compel following a par- ty’s failure to respond to a “request.” Here, counsel for the Musinger Defendants requested that Plaintiff comply with the medical exchange provision of Uniform Rule § 202.17 (R. at 145, 150), but Plaintiff’s counsel informed that he would “re- quire a motion . . . .” (R. at 148.) Thus, there can be no real dispute that Plaintiff’s counsel failed to respond with a “request” by Defendants, which provided a proce- dural basis for a motion to compel under CPLR § 3124. CONCLUSION For the reasons stated above, Respondents Jules Musinger, Doug Musinger, and Singer Associates respectfully request that the Court affirm the Order below in its entirety. Dated: October 8, 2013 WARD GREENBERG HELLER & REIDY LLP By: ---,II!{IL 46 Attorneys for Defendant-Respondents Jules Musinger, Doug Musinger, and Singer Associates 300 State Street Rochester, New York 14614 Tel.: (585) 454-0700