These two separate actions seek to recover damages for injuries allegedly suffered by the respective plaintiffs as the result of their alleged exposure to elevated lead paint levels at premises owned by defendants. In Action No. 1, commenced by Paula Scott in her representative capacity only on behalf of her two infant children, it is alleged that the infant plaintiffs suffered diminished cognitive function and intelligence, lowered IQ, abnormal social/behavioral development and various other cognitive and neurological deficiencies as the result of lead paint exposure while residing at defendants' premises located at 14 Swan Street in the City of Schenectady from 1992 through 1996. During Paula Scott's deposition, her counsel instructed her not to answer certain questions posed by counsel for defendants Charlotte E. Carson and Russell L. Carson (hereinafter the Carson defendants) regarding her own medical, educational and drug use history as well as the medical, educational and drug use history of other relatives of the infant plaintiffs. In Action No. 2, plaintiff alleges that he suffers from a learning disability and Attention Deficit Hyperactivity Disorder (hereinafter ADHD) as the result of being exposed to lead pain while residing at defendants' premises located at 8 Swan Street in the City of Schenectady from 1991 through 1993. During his deposition, he was also instructed by counsel not to answer questions posed by the Carson defendants' counsel regarding the medical and educational history of certain of his family members.

Counsel for the Carson defendants later served discovery demands for the requested information upon each of the plaintiffs in both actions. In Action No. 1, counsel for the Carson defendants also served a demand for the IQ testing of Paula Scott, the infant plaintiffs' father, and the infant plaintiffs' younger brother. Counsel for plaintiffs in Actions No. 1 and No. 2 refused to comply with the respective demands on grounds that all requests impermissibly demanded privileged or confidential information from non-parties. The Carson defendants have filed separate motions in each action seeking to compel the respective plaintiffs to comply with their discovery demands. Defendants Thomas J. Crane and Estate of Paula A. Crane join in the motion in Action No. 1. Both motions are opposed, with Paula Scott also cross-moving in Action No. 1 for a protective order. Although Action No. 1 and Action No. 2 are not formally joined or consolidated, because the actions involve the same defendants, the same counsel and nearly identical issues, in the interest of judicial economy the motions and cross motions served in the separate actions will be addressed herein in one decision.

CPLR 3101 (a) entitles parties to full disclosure of all information that is material and necessary in the prosecution or defense of an action (CPLR 3101 [a]). What constitutes material and necessary information is a a test of usefulness and reason left to the Court's sound discretion, and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity (see, Allen v Crowell-Collier Publ. Co., 21 NY2d 403). However, because the educational and medical records of non-parties are deemed confidential and private, the party seeking discovery of such records must make a sufficient factual showing demonstrating their relevance and materiality to the case (see, Ward v County of Oneida, 19 AD3d 1108; Mele v Travers, 293 AD2d 950). The same rule is applied to demands for IQ testing of non-parties (see, Andon v 302-304 Mott St. Assoc., 94 NY2d 740). In determining motions to compel the production of such information from non-parties, the Court [*2]must engage in a discretionary balancing of factors such as New York's strong policy favoring open disclosure, the defendant's need for the information, the burden imposed upon the non-party, the potential for confusion and delay and the personal nature of the information sought (see, id.). Specifically with regard to Action No. 1, the Carson defendants served a demand for medical and educational authorizations for the infant plaintiffs' mother Paula Scott, the infant plaintiffs' father, the infant plaintiffs' younger brother, the infant plaintiffs' adult sisters, and "any and all siblings of Paula Scott and/or [the infant plaintiffs' father], as well as maternal and paternal grandparents of the infant plaintiffs". They also served a notice to produce all educational records and drug treatment records for Paula Scott, the infant plaintiffs' father, their adult sisters, and their younger brother, as well as educational records for any siblings of Paula Scott and their father. As previously indicated, the Carson defendants also served a demand for IQ testing of Paula Scott, the father and the younger brother. The Carson defendants contend that all of the requested information is material and necessary to exploring the other likely causes of the infant plaintiffs' alleged cognitive and intelligence impairments, such as heredity and exposure to drugs while in utero.

In support of this argument, the Carson defendants note that Paula Scott's pre-natal medical records demonstrate that she only achieved a 10th grade education, that she used alcohol and crack cocaine while she was pregnant with the infant plaintiffs, and that the infant plaintiffs were born with crack cocaine in their system. The infant plaintiffs' school records also indicate that their father has an ongoing drug abuse problem. Finally, during her deposition, Paula Scott began to give testimony which suggested that the infant plaintiffs' younger brother may have a learning disability but counsel prevented her from completing her answer. The Carson defendants also submit the affidavit of Robert McCaffrey, a neuropsychologist, who opines that the cognitive and intelligence deficits claimed by the infant plaintiffs are not unique to lead exposure. Rather, relying upon the plethora of scientific studies attached to his affidavit, McCaffrey opines that the social/behavioral, cognitive and intelligence deficiencies claimed by the infant plaintiffs may be attributed to heredity, prenatal conditions, and psychological factors such as the child's home environment and parental substance abuse. The scientific studies specifically indicate that prenatal cocaine and alcohol exposure can lead to decreased IQ and behavioral problems such as those displayed by the infant plaintiffs, that chaotic home environments as may be caused by ongoing parental drug abuse contributes to academic achievement and behavioral problems in a child, that the behavioral and cognitive disorders claimed by the infant plaintiffs may also be hereditary, and that IQ itself may be directly inherited from a parent.

This medical evidence is sufficient to sustain the Carson defendants' burden to demonstrate a sufficient factual basis for their request for the educational and medical records, including drug treatment records and the performance of IQ testing, of the infant plaintiffs' immediate family and that such information is material and necessary to exploring causation of the infant plaintiffs' injuries. Weighing the appropriate factors, the Court in its discretion finds that the strong policy favoring open disclosure and the Carson defendants' need for such information outweighs any inconvenience or burden to the non-party family members. Accordingly, the Court deems it appropriate to direct that plaintiff comply with the Carson defendants' notice to produce, demand for authorizations and request for IQ testing as to Paula [*3]Scott and the infant plaintiffs' younger brother, both of whom received proper notice of this application. Although the above analysis would equally apply to the infant plaintiffs' father and their adult sisters, these individuals did not receive notice of the present application. Any order compelling that these individuals produce their medical and educational records and submit to IQ testing would be of questionable enforceability unless they are first provided with notice of this application and an opportunity to be heard. Accordingly, the Court reserves decision as to these individuals until proper notice of the application has been provided. Finally, Court grants plaintiff a protective order to the extent that those demands seek information relating to the infant plaintiffs' unidentified aunts, uncles and grandparents. The significant potential for confusion and delay in seeking to identify, locate and question the infant plaintiffs' extended family members outweighs the minor probative value of any information that might be obtained from these more distant relatives.

The Court next turns to defendants' motion to compel plaintiff in Action No. 2. In that action, plaintiff contends that he suffers from a learning disability and ADHD as a result of the lead paint exposure he experienced as an infant residing at defendant's property. After plaintiff's counsel instructed him not to answer various questions relating to the education and medical histories of his immediate family members, the Carson defendants served upon plaintiff a demand for authorizations and notice to produce the medical and educational records of plaintiff's mother, his infant sister, his father and his half-siblings. The Carson defendants once again argue that this information is material and necessary to determining the cause of plaintiff's alleged learning disability and ADHD.

In support of this contention, the Carson defendants again rely upon the opinion of Robert McCaffrey, who submits his affidavit along with the scientific studies supporting his opinion that lead exposure is not a unique cause of learning disabilities or ADHD. McCaffrey indicates, and the scientific studies confirm, that there is a strong correlation between family heredity and learning disabilities and ADHD. The Carson defendants' submissions, including McCaffrey's affidavit and supporting scientific studies, demonstrates a sufficient factual basis for concluding that the requested non-party records are material and necessary to the litigation. After balancing the applicable factors as outlined above, the Court deems it an appropriate exercise of discretion to compel the production of the educational and medical records of plaintiff's non-party mother and infant sister, both of whom had notice and an opportunity to be heard with respect to the application as evidenced by the fact that plaintiff's mother submitted an affidavit in opposition to the motion on behalf of herself and her infant daughter.

However, for the same reasons that the Court reserved decision with respect to the non-parties who lacked notice in Action No. 1, the Court must reserve decision as to plaintiff's father because there is no indication that he was provided with notice of this application and an opportunity to be heard. Finally, the Court declines to compel plaintiff's half-siblings to produce any medical or educational records. The fact that these individuals share only one parent with plaintiff reduces the probative value of their educational and medical records and introduces a greater potential for confusion and delay.

To the extent that this Court has granted the motion to compel the production of educational and

medical records, because such records likely contain confidential or private information which is [*4]not relevant to the instant litigation, the plaintiffs in both respective actions are directed to submit said records directly to the Court for an in camera review.

For the foregoing reasons, it is

ORDERED that the motion by defendants Charlotte Carson and Russell Carson in Action No. 1 is granted as to Paula Scott and the infant plaintiffs' younger brother, and it is further

ORDERED that the motion by defendants Charlotte Carson and Russell Carson in Action No. 2 is granted as to plaintiffs' mother and infant sister, and it is further

ORDERED that the cross motion by plaintiff is Action No. 1 is granted in part, and it is further

ORDERED that notice of the motion to compel in Action No. 1 shall be provided to the infant plaintiffs' father and adult sisters no later than March 10, 2010, and it is further

ORDERED that notice of the motion to compel in Action No. 2 shall be provided to plaintiff's father no later than March 10, 2010, and it is further

ORDERED that said individuals shall submit any response to said motions to defendants and the Court no later than March 30, 2010, and it is further

ORDERED that the conference scheduled for March 11, 2010 and the trial scheduled to commence on March 22, 2010 are adjourned.

Dated:

_______________________________

Hon. Vincent J. Reilly Jr.

Supreme Court Justice