The following papers numbered 31 to 45 were read on these motions (Seq. No. 001) for PRECLUDE noticed on January 23, 2024, and duly submitted as Nos. on the Motion Calendar of Sequence No. NYSCEF Doc. Nos. Notice of Motion — Exhibits and Affidavits Annexed Cross Motion — Exhibits and Affidavits Annexed Answering Affidavit and Exhibits, Memorandum of Law Reply Affidavit MOTION IS DECIDED IN ACCORDANCE WITH THE ANNEXED MEMORANDUM OPINION. DECISION and ORDER Upon the foregoing papers the instant motion (001) seeks to preclude the plaintiffs from offering evidence at the time of trial relating to their medical conditions and/or related developmental issues; in the alternative, to compel plaintiff to give additional medical information; alternatively still, defendants request permission to serve a judicial subpoena directing each medical provider to produce their complete records to facilitate an in camera inspection to be attended by all parties. After review of the papers, together with the opposition submitted thereto; review of the Court file; and upon due deliberation, the motion is decided as follows. FACTS & PROCEDURAL BACKGROUND This matter arises from plaintiffs’ allegations that, due to the defendants’ negligence in the maintenance of the apartments where her two children resided, and the defendant’s violation of Local Law 1 of 2004, and the NYC Public Health Codes, the infant plaintiffs were exposed to paint containing high levels of lead, were diagnosed with lead poisoning, and sustained injuries as a result. In the instant motion, defendants request a HIPAA-compliant authorization for medical records not from the infant plaintiffs, but the adult-named plaintiff, their mother, Ms. Maryann Ortiz (“Ms. Ortiz”). Pointing to the Verified Bill of Particulars wherein plaintiffs claim “aggravation of any pre-existing developmental, speech, language, and cognitive delays” (NYSCEF Doc. No. 38 at 9), defendants posit that Ms. Ortiz’s HIV, mental health and substance abuse records are wholly relevant to their defense in that any developmental, speech, language, or cognitive delays may be causally related to gestational injuries sustained in utero and not lead exposure. In opposition to this motion, Ms. Ortiz asserts she did not place her own medical condition directly in controversy in this matter as she only makes a claim for loss of care, comfort, and services of the infant plaintiffs; therefore, her privileged medical information is protected from disclosure. For the reasons stated herein, the motion is granted, in part. LEGAL STANDARD & DISCUSSION CPLR 3101 (a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action. “The words, ‘material and necessary’, are…to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and proxility. The test is one of usefulness and reason” (Allen v. Cromwell-Collier Publishing Co., 21 NY2d 403, 406 [1968]). Additionally, “[e]vidence is material if sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross-examination” (Rega v. Avon Products, Inc., 49 AD3d 329 [1st Dept 2008] [internal citations and quotation marks omitted]). When the mental or physical condition of a litigant is in controversy, a notice for a medical exam or for the inspection of records may be served (see CPLR 3121 [a]). A party’s right to discovery of a litigant’s mental or physical condition is subject to the physician-patient privilege (Brito v. Gomez, 168 AD3d 1, 4 [1st Dept 2018], revd on other grounds., 33 NY3d 1126 [2019]). “However, the privilege is waived where a party affirmatively places his or her physical or mental condition in controversy” (Id). When plaintiffs place any of their mental or physical condition in controversy, they “may not insulate from disclosure material necessary to the defense concerning that condition…[w]here the requests are specific and impinge upon no privilege, there can be no justification for a shield against disclosure” (Hoenig v. Westphal, 52 NY2d 605 [1981]; but see McGlone v. Port Authority of New York and New Jersey, 90 AD3d 479, 480 [1st Dept 2011] [plaintiff's physical condition was voluntarily placed at issue and defendants thus entitled to discovery to determine the extent that the claimed injuries can be attributable to other sources]). Even when privilege is waived due to a party’s physical and mental condition being in controversy, opposing parties claiming waiver must establish that they actually suffer from each affliction to be supported by “an expert affidavit or any other evidence that would establish a connection between those conditions and the cause of the accident…[or] make any effort to link those conditions to plaintiff’s ability to recover from his injuries or his prognosis for future enjoyment of life” (Budano v. Gurdon, 97 AD3d 497, 499 [1st Dept 2012]; see also Monica W. v. Milevoi, 252 AD2d 260, 263 [1st Dept 1999]). A derivative suit, or a claim for non-physical injury, by a representative does not automatically place that person’s physical condition in controversy (see Muniz v. Preferred Assoc., 189 AD2d 738, 739 [1st Dept 1993], citing Dalley v. LaGuardia Hosp., 130 AD2d 543, 544 [2d Dept 1987])). A mother places her physical or mental condition in controversy when her children claim they were injured while in gestation (NCP ex rel NCP v. City of New York, 16 Misc 3d 1102(A) [Sup Ct 2007]] ["Where a child's medical condition is at issue, the courts have held that a mother's medical records pertaining to the period when the infant was in utero are discoverable on the ground that there can be no severance of the infant's prenatal history from the mother's medical history for that period of time"]). Notwithstanding, the First Department is wary to wholly grant access to a mother’s health records, even in similar matters where an infant plaintiff’s early gestational health is at issue. In Andon v. 203-304 Mott Street, the Court equated an IQ test of the infant plaintiffs’ mother with private medical information, though such tests are not themselves of a confidential nature, asserting that this disclosure, without the proper foundation, might be used “for the purpose of creating evidence” (257 AD2d 37, 41 [1st Dept 1999]). As such, a moving party’s affidavit must establish a factual link between the requested privileged information and the infant plaintiff’s injuries, as well as meet the standards under the Public Health Law and Mental Hygiene Law, to warrant Court-ordered disclosure. Here, defendants seek records related to Ms. Ortiz’s HIV information, mental health, and substance dependence. As the infant plaintiffs’ possible developmental delays are in controversy, at the threshold, the entirety of their mothers’ medical history, as it relates to possible developmental impairment, is at issue. The extent of warranted disclosure is addressed in turn. HIV Related Information “A court may grant an order for disclosure of confidential HIV related information upon an application showing: (a) a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding;…or (d) that the applicant is lawfully entitled to the disclosure…” (Public Health Law §2785). Before demonstrating a compelling need, “the requesting party must, as a threshold matter, establish that the subject of the requested records actually has or had HIV or AIDS (Abdur-Rahman v. Pollari, 107 AD3d 452, 455). In order for a court to satisfy the compelling need requirement, the applicant for HIV disclosure must offer evidence “to support any ruling finding a compelling need to disclose HIV and AIDS records with ‘written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports [such a finding]‘” (Id.). To support the waiver of this privileged medical information, defendants supplied an affidavit by Walter J. Molofsky, M.D., to explain how the 9(a) authorizations are relevant to the instant action. In general, the affidavit reiterates the contention from Defendant’s Affirmation in Support — “there are many possible causes of the injuries alleged by the infant plaintiffs, and prenatal records can be crucial in determining whether such injuries could have arisen from lead exposure or not” (see NYSCEF Doc. No. 40). However, in neither the Affirmation nor the Affidavit does the expert meet the standards necessary to sustain a claim of waiver for HIV-related information. In Budano, the Court found that the defendant, in requesting HIV and drug/alcohol dependency information, failed to establish the plaintiff indeed suffered from either, thus making it impossible for the Court to justify stripping the physician-patient privilege for such private medical information (97 AD3d at 499). Here, defendants similarly fail to establish the existence of such medical information. There is a general public policy in protecting HIV-related information, as indicated by the heightened inquiry required for releasing it under Public Health Law §2785. Without more of an indication that Ms. Ortiz might have HIV and a causal connection to the plaintiffs’ “pre-existing developmental, speech, language, and cognitive delays” (see NYSCEF Doc. No. 38), the Court will not order disclosure. Mental Health Information and Alcohol-Drug Treatment To gain access to a party’s mental health records, the movant must make a showing before the court that the “interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law §33.13 [c]). To disclose records of identity, diagnosis, prognosis, or treatment of alcohol or drug dependence, movants must meet the same standard of the interests of justice significantly outweighing the need for confidentiality (Mental Hygiene Law §22.05). Defendants’ proffered link between Ms. Ortiz’s possible mental illness and the infant plaintiffs’ claimed injuries is fatally speculative. Defendants supply no more than a generalization between children born to mothers with mental illness possibly being born with developmental delays. For records related to mental illness, “[w]ithout…support, “we are presented with nothing other than ‘hypothetical speculations calculated to justify a fishing expedition’” (Budano at 499, quoting Manley v. New York City Hous. Auth., 190 AD2d 600, 601 [1st Dept 1993]). As for records related to chemical dependency, however, the defendants have met their burden of providing a sufficient link between alleged substance abuse and the infant plaintiffs’ injuries. As per the defendants’ expert, ingesting alcohol and chemical substances during gestation affects both the blood of the birth mother and the nutrients passing through the placenta, and that “those effects can be far greater than the effects on the drug user/consumer as the brain and nervous system development of the fetus can be effected long term.” As such, the interests of justice significantly outweigh the need for confidentiality related to chemical dependency records, as establishing this information will be used to challenge the causation of the infant plaintiffs’ injuries rather than act as cumulative or evidence for the purposes of impeachment (Napoleoni v. Union Hosp., 207 AD2d 660 [1st Dept 1994]). Accordingly, this motion is GRANTED solely to the extent that it is ORDERED that plaintiff shall provide to defendants an updated HIPAA-compliant authorizations with initials for “Alcohol/Drug Treatment” within 30 days after the date of entry of this Order; and it is further ORDERED that movant Defendant shall serve a copy of this Order upon Plaintiff with Notice of Entry forthwith. Parties are reminded that discovery disputes should be resolved through informal procedures, such as conferences, as opposed to motion practice. Requests for compliance conferences shall be made in writing to [email protected] and should copy all interested parties. This is the decision and order of the Court. 1. CHECK ONE CASE DISPOSED IN ITS ENTIRETY CASE STILLACTIVE 2. MOTION IS GRANTED DENIED GRANTED IN PART OTHER 3. CHECK IF APPROPRIATE SETTLE ORDER SUBMIT ORDER Dated: March 15, 2024
