By John Caher
ALBANY — With lead paint verdicts and settlements escalating, and debate continuing over the relevance and admissibility of evidence relating to the shortcomings in an injured child’s genetic history, a judge in Albany has attempted to clarify two critical matters.
Justice Thomas W Keegan, in Williams v. county of Albany, 920-97, held that medical records of parents, siblings and others are privileged and discoverable only with a waiver, "even if material and necessary to the defense." He also held that non-medical records relating to the academic or cognitive capabilities of nonparty relatives are cloaked with a privacy protection, but not an absolute privilege.
The ruling last week came in a case where a child,-Judy Rose Williams, allegedly sustained lead-related injuries while living at a residence in Albany between 1994 and 1996. An action sought damages from both the owner of the premises and Albany County, which had inspected the dwelling and oversaw an abatement. Since the plaintiff alleges cognitive injuries, the defendants sought the release of medical and school records pertaining to her parents and siblings. In response, the plaintiff sought a protective order under CPLR 3101 to predude the entire line of questioning.
Justice Keegan cited a June 6 opinion of the Appellate Division, Third Department, where the court in Tripp v. Giroux, 292 AD2d 692, made clear that medical records are privileged while educational records are discoverable upon a demonstration of relevance and materiality.
"Clearly, the medical records and any testimony sought from or about the plaintiff’s mother, father, stepmother, or siblings is confidential, and absent a waiver, privileged, even if material and necessary to the defense," Justice Keegan wrote. "However, non-medical academic records or inquiries about academic or cognitive abilities of nonparty siblings or parents are not ordinarily protected by a privilege, although they are entitled to privacy protection."
Justice Keegan said the defendant needed to establish factually how the material sought was relevant to the claim. However, he said the county declined to submit an expert affidavit and "much to the plaintiff’s dismay" relied on experts’ reports in other lead paint cases and their "incorporation of family histories and information regarding the parents and siblings of other plaintiffs to form their opinions as to causation of the injuries alleged." Here, Justice Keegan said the lack of testimony challenging the objective clinical results cited by the plaintiff requires him to grant the protective order sought by the plaintiff and to deny the records sought by the defense.
"While aware of the difficulty faced by a defendant in a lead exposure case when inquiry into genetic and cultural factors is foreclosed, in this court’s view, the defendant here simply has not made a sufficient factual showing particular to this plaintiff and this family," Justice Keegan said. "While seemingly a Catch 22, something more than speculation in this case, and expert reports in other cases must be provided."
Peter Danziger, James E. Nixon and Mark G. Richter of O’Connell and Aronowitz in Albany appeared for the plaintiff. Rebecca A. Slezak and Nannette R Kelleher of Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander in Albany represented Albany County. And John H. Pennock Jr. of Pennock & Breedlove in Clifton Park appeared for the owners of the premises.