Premises Pointers - September 2019 Special Edition


Thursday, September 12, 2019

From the Editors:
Today we have a Special Joint Edition of Labor Law Pointers and Premises Pointers discussing an important and brand-new Court of Appeals case addressing the waiver of the physician-patient privilege for prior injuries not raised in the lawsuit but arguably placed in controversy by certain claims made by the plaintiff.  Marc Schulz, an assistant editor for both newsletters, has summarized and analyzed the case.  This case raises an important opportunity for enhanced discovery of prior injuries sustained by plaintiffs.  Please feel free to reach out to us with any questions. 

David and Jody


David R. Adams
Hurwitz & Fine, P.C.
Email:  [email protected]

Jody E. Briandi
Hurwitz & Fine, P.C.

Email: [email protected]


Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected]    to subscribe. 
Premises Pointers:  This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected]  to be added to the mailing list.

Greetings Subscribers!

We have a legal alert from the Court of Appeals that impacts future litigation as to the scope of discovery into prior injuries and medical conditions that are not claimed in the lawsuit.

Brito v Gomez
September 10, 2019
Court of Appeals

The Door Is Open: Court of Appeals greatly expands the scope of discovery into prior injuries and preexisting medical conditions beyond those affirmatively placed in controversy.

Plaintiff sought to recover for injuries to her neck, back, and shoulder as a result of a 2014 accident. She claimed walking was difficult, requiring the use of a cane and her injuries prevented her from wearing heels. At her deposition, it was revealed she had prior surgeries to her knees, including one after a 2012 accident. She used a cane after each knee surgery and stated her knees affected her ability to wear heels.
Based on her testimony, defendant sought to obtain records relating to her prior injuries and treatment, which led to motion practice. The trial court denied defendant’s motion to compel discovery on her prior injuries, holding discovery was limited to only those body parts which plaintiff claims were injured in the 2014 accident (neck, back, and shoulder). In a 3-2 decision from the First Department, the majority upheld the ruling and rejected defendant’s reliance on Second Department precedent that a plaintiff making broad claims of injury and the loss of enjoyment of life necessarily puts their entire medical condition in dispute. The majority found that Second Department precedent irreconcilable with prior Court of Appeals’ decisions holding that the physician-patient privilege is waived only for injuries affirmatively placed in controversy.
The Court of Appeals overturned the First Department and permitted discovery into plaintiff’s prior knee treatment and surgeries because she placed the condition of her knees at issue by alleging the accident caused her difficulties in walking and standing. As the discovery sought could lead to a defense of broad-based allegations of loss of enjoyment of life, it was “material and necessary” to the defense, despite her only claiming injuries to her neck, back, and shoulder.
PRACTICE POINT: Be prepared to explore plaintiff’s current complaints or limitations, how or why they are experiencing “loss of enjoyment of life,” and if the claimed injuries could be affected by prior injuries or conditions not claimed in the lawsuit. The bill of particulars is no longer the sole determining factor into whether the defense is permitted discovery on prior injuries or preexisting conditions.

Marc A. Schulz
Hurwitz & Fine, P.C.

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