Privilege vs. disclosure: A defendant's right to know family history in defense in lead poisoning cases

Abstract

In challenging the extent of a plaintiffs injuries, defendants often look to compare the claimant's pre‐injury physical condition with his or her postaccident allegations of damages. Through discovery, the defendant may come to learn that a plaintiff who was injured, for example, in a car accident, may have had a pre‐existing back injury, or that a slip‐and‐fall victim may have injured the same parts of her body in an earlier accident. But where does the defendant look to challenge allegations that a young child suffered permanent and significant neurological impairment as a result of ingesting lead‐based paint chips in his client's apartment? Defending against damage allegations in lead‐poisoning lawsuits, or any suit where there are allegations of brain injury to an infant plaintiff, usually involves refuting the causal connection between the injury and the event (i.e., lead poisoning).