BY OSEI v. SPRING (2023)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered on or about April 13, 2020, which, to the extent appealed from as limited by the briefs, granted defendants’ cross-motion pursuant to CPLR 3126 and 3124 to the extent that it directed plaintiffs to exchange their expert neuropsychologist expert's raw testing data used in generating her expert report, unanimously affirmed, without costs.

In this action alleging childhood lead poisoning, the parties each retained a psychologist to perform a neuropsychological evaluation of the infant and generate an expert report for litigation purposes.  The motion court providently exercised its discretion in requiring an exchange between plaintiffs and defendants’ experts of the underlying raw testing data used for these expert reports.

Notably, here, plaintiffs do not only seek their statements made during defendants’ expert's evaluation but all the expert's raw data (see Sands v. News Am. Publ. Inc., 161 A.D.2d 30, 40, 560 N.Y.S.2d 416 [1st Dept. 1990]).  Under these circumstances, the motion court properly concluded that defendants would be disadvantaged and prejudiced at trial if only plaintiffs obtained defendants’ raw testing data since plaintiffs’ and defendants stand on equal footing, i.e., both sides performed an evaluation of the infant plaintiff (compare Martinez v. KSM Holding, 294 A.D.2d 111, 741 N.Y.S.2d 519 [1st Dept. 2002]).

We find plaintiffs’ remaining arguments unavailing.