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1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
1 b pretrial motion practice dominelli 2 hb lead-conf cx
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1 b pretrial motion practice dominelli 2 hb lead-conf cx

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HB Litigation Conferences Lead Litigation 2013

HB Litigation Conferences Lead Litigation 2013

Published in: Technology, Health & Medicine
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  • 1. November 14-15, 2013
  • 2. Jennifer L. Dominelli, Esq. Flink Smith Law LLC November 14, 2013
  • 3.  Protective Orders and Disclosure in Lead Cases  Application by Defendants  Application by Plaintiffs
  • 4. CPLR 3103 – Protective Orders “The court may at any time on its own initiative, or on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” Protective Orders & Disclosure - Defendants - Plaintiffs
  • 5. Disclosure Obligations in Lead Cases Uniform Rule § 202.17(b) “[E]xcept where the court otherwise directs,” the plaintiff in a personal injury action shall serve copies of medical reports from treating and examining providers at least 20 days in advance of an IME. TREND NY Courts requiring plaintiff to show causation (i.e., injuries were caused by lead paint exposure) Protective Orders & Disclosure - Defendants - Plaintiffs
  • 6. Preservation of right to conduct an IME  Defendants should not have to incur the time, expense and effort of arranging and conducting an IME w/out the benefit of the reports linking the symptoms or conditions to the defendant’s negligence. ◦ Nero ex rel. Nero v. Kendrick, 100 A.D.3d 1383 (4th Dep’t 2012).  § 202.17(b) contains a condition precedent to the defendant’s obligation to conduct an IME. ◦ Adams v. Rizzo, 13 Misc.3d 1235(A) (Sup. Ct. Onondaga County 2006). Protective Orders & Disclosure - Defendants - Plaintiffs
  • 7. Limiting Disclosure: Causal Burden  High lead levels supported by gov’t reports detailing potential effect of lead poisoning is insufficient. ◦ Giles v. A. Gi Yi, 105 A.D.3d 1313, 1315 (4th Dep’t 2013).  § 202.17(b) gives court discretion to preclude proof concerning injuries not supported by reports making causal link. ◦ “[E]xceptwhere the court otherwise directs…” ◦ Giles, 105 A.D.3d at 1316. Protective Orders & Disclosure - Defendants - Plaintiffs
  • 8. Limiting Disclosure: Parent Information  Parents records are either privileged or confidential absent a factual showing records are relevant to injuries suffered. ◦  Ward ex rel. Ward v. County of Oneida, 19 A.D.3d 1108, 1109 (4th Dep’t 2005). Subjecting parents to IQ test, in essence “creating evidence,” is highly intrusive and not permitted where mental or physical condition of parent not at issue. ◦ SeeAnderson ex rel. Anderson v. Seigel, 186 Misc.2d 739 (Sup. Ct. Kings County 2000); see alsoAndon ex rel. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740 (2000). Protective Orders & Disclosure - Defendants - Plaintiffs
  • 9. Jennifer Dominelli Flink Smith Jennifer Dominelli Flink Smith LLC 518.786.1800 jdominelli@flinksmithlaw.com

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