Admissibility of school records hb lead conf


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Admissibility of school records hb lead conf

  1. 1. ADMISSIBILITY (DISCOVERABILITY) OF SCHOOL RECORDS – New York CPLR 3101 Directs full disclosure of all matter material and necessary in the prosecution or defense of an action There were no cases that I found in New York where either Plaintiff or Defendant challenged the use of the school records of the plaintiff at trial. They are readily admissible as long as they are authenticated. There are multiple sections within the school records that contain hearsay information about the plaintiff mother, father and siblings, as well as often information about extended family that, at least as to medical information, would have a privilege attach. There have been times at trial where the records are subject, in part, to redaction of the privileged material. You have to take the good with the bad. Plaintiff will usually need the school records admitted in order to highlight a history of special education services, to document past IQ testing and often to provide the jury with tangible evidence of poor grades and academic struggles despite Johnny being a child who, “tries hard but struggles.” What better to show this than report cards, teacher’s comments and standardized test scores? They are the records upon which both plaintiff and defense experts rely and as such, their admissibility in whole will not be challenged, but a heated side bar or impassioned motion in limine to keep out the passing remark about the third cousin on the father’s side who was in a mental hospital has been known to happen. So, often along with the information to support plaintiff’s academic struggles comes a host of potential factors, “confounders” the likes of which have been the fuel for many a motion to obtain the academic records of mothers, fathers and siblings. The end result is that each motion is decided on a case-by-case basis and the final decision on discoverability rests in the sound discretion of the trier of fact. WHERE IT ALL BEGAN (W ELL, PRETTY MUCH) Back in 1991, in a non-lead case, the issue of the discoverability of school records was addressed in the case, Wepy v. Shen, 175 AD2d 124 (2nd Dep’t 2004). The appellate court permitted the production of the non-party sibling school records Mom had testified in her deposition that two of the siblings had certain medical conditions. The defendant submitted an affidavit of a medical expert stating that a possible connection existed between the neurological problems of the plaintiff and those of her siblings which would support a defense that the injuries sustained by plaintiff had a genetic cause. This was deemed to be a demonstration of relevancy.
  2. 2. In 1997, the Second Department held in Salkey v. Mott, 237 AD2d 504, that the trial court did not improvidently exercise sound discretion when it ordered the infant plaintiff’s mother to submit to an IQ test and to supply authorizations for nonprivileged academic records. The mother was also a plaintiff in the case. The decision contained no analysis. In 1998, in Anderson v. Seigel, 255 AD2d 409, the Second Department reversed the lower court who had denied the defendants’ motion for the production of academic records of the mother and non-party siblings. It also compelled the mother to undergo IQ testing. The lower court had distinguished both Salkey and Wepy, finding that there had been no prior testimony showing that the siblings had any neurological or cognitive problems and that the defendants had failed to show the court why the requested records would be material and necessary to the defense of the case. The Second Department held that the records were likely to contain matter that would be relevant. However, as there might also be privileged material contained in the records, the records were to first be submitted to the lower cort for in camera inspection. Dad was not required to produce his academic records as he was not a party and had not been served with the motion. The decision contained no analysis. In 1999, the First Department decided to get their piece of the action, deciding Monica W. v. Milevoi, 252 AD2d 260 (1st Dep’t, 1999). In Monica W.. the mother was deposed over a course of five days and asked over 100 questions about the non-party siblings of the infant plaintiff. She was ordered by her attorney not to answer. When defense moved to compel her to attend a further deposition to get responses to the objected areas of questioning, the trial court denied their request and the First Department. In pertinent part, affirmed. While the non-party siblings’ academic records may not be privileged per se, the siblings’ privacy was entitled to protection absent a showing that the defendants’ need for disclosure outweighed the importance of protecting the non-parties’ privacy. The appellate court found that the absence of an expert affidavit to demonstrate that the extent to which the adverse effects of lead exposure contributed to the mental and physical condition of the infant plaintiff cannot be ascertained by reference to objective clinical criteria and expert testimony. The mental condition of the non-party siblings was not at issue. The Court reasoned that the mental condition of the non-party siblings was not at issue. That a sibling suffered from a cognitive deficit demonstrated nothing unless the possibility that the sibling was also exposed to lead can be ruled out as a factor contributing to the condition. That would require delving into the siblings’ medical history, which was privileged. And that would be a no-no. The classic Catch 22.
  3. 3. In March, 2000, the Albany Supreme Court, in Van Epps v. County of Albany, 184 Misc.2d 159(2000) held that the defendants were not entitled to the discovery of parental and sibling academic records The Van Epps Court found that the defendants were not entitled to discovery of parental and sibling academic records or information because defendants had failed to demonstrate a need for the disclosure of the non-party academic records sufficient to outweigh the need for protection of the non-parties’ privacy. The court expressed hesitancy to compel production of such information because to do so would open the door to more questioning rather than narrow and focus the scope of the litigation. The court held that if the requested disclosure was allowed, the defendants would merely embark on a highly intrusive, and yet, never-ending foray into the realm of speculation that offers no hope of achieving a resolution of any causality issues. This is a particularly good case because it lists out the dueling cases on the issue First vs. Second Department with the Third Department, at least at this juncture, declining to expand discovery to include non-parties. This helped lead the way for the Court of Appeal, in May, 2000, to jump into the fray in Andon v. 302-304 Mott Street Associates, 94 NY2d 740(2000) While the issue was about compelling a mother to take an IQ test and not about the discovery of academic records, the analysis of the Court of Appeals in rendering the decision not to compel such an examination, is relevant. The Court of Appeals delineated specific criteria in how it went about coming to its decision: 1) Whether the information sought was speculative in nature; 2) Whether it would delay proceedings by turning the fact-finding process Into a series of mini-trials about what may have contributed to the findings sought to be introduced at trial; and 3) Whether, upon consideration of the “crucial” search for truth, the relief sought would create undue delay occasioned by battling experts. The Court of Appeals also took into consideration the burden imposed and the personal nature of the information sought.
  4. 4. This brings us to Ward v. County of Oneida, 19 AD3d 1108, 4 th Dep’t (2005). In that case, the Fourth Department held that the parents’ educational records were deemed to be “of a confidential and private nature,” citing to the Family Educational Rights and Privacy Act of 1974. The defendants were held to have not made a factual showing that the requested records were relevant and material to the injuries sustained by plaintiff. But wait, as on the heels of Ward, we are faced with Adams v. Rizzo, NY Slip Op. 52135(U) (2006) Bottom line on this one, after all is said and done, defendants submitted an expert affidavit that was sufficient to show that the request for the supplemental deposition of the mother, compelling her to answer questions about siblings that she had been ordered not to answer, must be answered. There is also a long, long analysis of FERPA. There are recent decisions regarding discovery of sibling records, such as Scott v. Carson. 2010 NY Slip Op 50931, which granted the production of the records after defendants produced an affidavit of an expert, along with a “plethora” of cited scientific literature. The Court balanced both Ward and Andon in coming to its decision. It is important to note tha the court may have come to a very different decision but for the fact here were other records that indicated there were other medical issues of concern. In Ryan v. Simma, a 2011 Rensselaer case, records were permitted to be produced, but subject to in camera inspection first. The bottom line on these types of motions are that they continue to be decided on a case-by-case basis.