Creates timing requirements for the disclosure of expert witnesses

This measure would amend CPLR 3101(d)(1) to provide a minimal deadline for expert disclosure (i.e., sixty days before trial), a time frame which could be modified by the court to give earlier or later expert disclosure depending on the needs of the case. This measure also clarifies that a party whose time to disclose expert information has not yet expired may submit expert testimony in support of or in opposition to a motion for summary judgment. Second, this measure would amend CPLR 3101 (d)(1)(i) to allow for greater expert disclosure in commercial actions.

I. Currently, CPLR 3101(d)(1) requires that only the following information be exchanged upon request: identification of trial expert witnesses; the subject matter on which they expect to testify; the substance of the facts and opinions on which they are expected to testify; their qualifications; and a summary of the grounds for their opinion. Further disclosure of an expert can be obtained by court order upon a showing of special circumstances, which permits a court to require additional discovery, such as a written report or deposition of experts, if necessary. However, no time frame within which to provide expert discovery is mandated.

This is in contrast to the Federal system, where the Federal Rules of Civil Procedure require that all disclosure be made "at the times and in the sequence directed by the court," which is actively involved in requiring that timely expert disclosure take place. In the absence of directives from the court, Federal Rule 26(a)(2)(c) generally requires that all disclosures be made at least 90 days before the trial date or the date the case is set to be ready for trial. Rebuttal or contradictory disclosure must be made within 30 days after disclosure by the other party. Many states have adopted some part of the Federal Rules' liberal expert disclosure requirements, including a specific deadline for expert disclosure prior to trial.

The need for this amendment is highlighted by the recent decision in Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dept., 2008). In that decision, the Second Department ruled that it was proper for the trial court to decline to consider the affidavits of experts provided in opposition to a motion for summary judgment, where those experts were not identified in pretrial disclosure and the affidavits were served after the note of issue and certificate of readiness were filed. The dissent (Carni J.) argued that the application of CPLR 3101 (d)( 1) to use of experts in opposition to a summary judgment motion is against the express language of the

statute and not within its clear legislative intent. Currently, the law is unsettled between the departments and the Court of Appeals has yet to address the issues. See, Patrick M. Connors, " Case Law on CPLR 3101 (d)(1)(i), Expert Disclosure, Is in Shambles" (NYLJ, Jan. 20, 2009, p.3); David Paul Horowitz, "What About the CPLR?"(81-JAN N.Y.St.B.J.20). We think that a legislative remedy is timely and necessary.

Our Advisory Committee believes that specific time frames for expert disclosure would: (1) avoid "trial by ambush", (2) permit more efficient preparation for trial and management of cases, (3) provide consistency between the law and practice in this area (Court discovery orders often mandate disclosure of expert testimony either 30 or 60 days before trial, not pre-note of issue), and (4) clarify under section 3101(d)(1) the time when a patty may submit expert testimony necessary to motions for summary judgment.

This measure, therefore, would amend CPLR 3101(d)(1)(iv) to provide that "unless otherwise provided by a rule of the Chief Administrative Judge or by order of the Court," the expert disclosure shall be made no later than 60 days before trial by the party who bears the burden of proof. Within 30 days of service of the expert response, any opposing party shall serve its expert response. Within 15 days after service of such response, any party may serve an amended or supplemental response limited to issues raised in the answering response.

The term "expert" does not include a treating physician or health care provider whose records or reports have been timely provided.

II. One of the main objectives of the commercial division is to provide "[a] world class forum for the resolution of commercial disputes." Chief Judge Kaye, Commercial Litigation in New York State Courts §1.7, at p.16 (Haig 4B West's NY Prac Series). To attain that objective, the State must relax certain restrictions on expert disclosure imposed by the CPLR (see id. at pp. 3-4) to address the special needs of substantial commercial cases. Accordingly, we believe that limited amendments to the expert disclosure statute, CPLR 3101, would promote more efficient and thorough preparation by attorneys in commercial actions and speedier resolution of those actions, thereby encouraging commercial litigants to use our court system. Thus, we promote this amendment to CPLR 3101 (d)(1)(i) that would allow for greater expert disclosure in commercial actions.

CPLR 3101( d)(1)(i) provides for the furnishing, upon request of a party, of a statement regarding an expert whom the adversary intends to call at trial. That provision authorizes further disclosure concerning the expected testimony of an expert only by court order "upon a showing of special circumstances." The courts have interpreted "special circumstances" narrowly, generally confining it to instances in which the critical physical evidence in a case has been destroyed after its inspection by an expert for one side but before its inspection by the expert for the other, and certain other, similarly limited situations. E.g., Adams Lighting Corp. v First Central Ins. Co., 230 AD2d 757 (2d Dept. 1996); The Hartford v Black & Decker, 221 AD2d 986 (4th Dept. 1995); Rosario v General Motors Corp., 148 AD2d 108 (1st Dept. 1989);

Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C:3101:29A.

We believe that, on balance, the current rules governing expert disclosure work reasonably well in cases other than commercial cases. Therefore, we propose that CPLR 3101 (d)(1)(i) be modified to permit additional expert disclosure in substantial commercial cases only. The issues addressed by experts in commercial cases often are complex, touching on nuanced economic, financial and corporate principles, such as how stock or other securities should be valued; how a business should be valued; or whether the financial analysis of a board of directors was sound under the circumstances. In addition to presenting difficult legal and factual issues, commercial cases often involve substantial sums of money or impact corporate governance. Generous expert disclosure is available in virtually all other forums, including all other state courts and the Federal courts, see Federal Rules Civil Procedure 26. A modern forum for the resolution of commercial disputes is essential for New York to maintain its prominence as an international financial center; and, unless meaningful expert disclosure is routinely available in commercial actions, New York's efforts to maintain its financial dominance may be seriously compromised. Accordingly, we believe that additional expert disclosure in commercial cases should be permitted to provide the world class forum for the resolution of commercial disputes the State needs.

Under this measure, CPLR 3101 (d)(1)(iii) would be divided into two subparts. The first, subpart (A), would retain the existing provisions of (d)(1) (iii), which would apply to most cases, including smaller commercial cases. These commercial cases usually are less complex than those involving larger sums, and more extensive disclosure of experts would be disproportionately costly. However, in commercial cases in which $250,000 or more is found by the court to be in controversy, the amendment, in the form of a new subpart (B), would expressly authorize the court to allow further disclosure of experts expected to testify at trial. Under this proposal, the applicant would be obliged to show that the need for that disclosure outweighs the concomitant expense and delay to any party; and to demonstrate that traditional expert discovery as provided for by CPLR 3101(d)(1)(i) would not suffice. However, the applicant would not have to demonstrate "special circumstances" as currently construed by the case law, which would remain the standard for all cases other than this group of substantial commercial cases. Because this measure would require the court to weigh the risk that the proposed disclosure might be unduly expensive or cause unreasonable delay, the court should normally inquire, if further disclosure is found necessary, whether a particular form of disclosure would be more appropriate, including less expensive and time-consuming, than another.

"Commercial action" is defined so as to include the most common forms of such disputes, and a measure of flexibility is provided for. The definition expressly excludes personal injury, wrongful death, matrimonial and certain other matters.

Under this measure, if the court determined that a deposition were in order, it could set reasonable boundaries on the breadth of the

matters to be inquired into and the length of the deposition. The measure provides that unless it is unreasonable, the court shall require that the inquiring party pay a reasonable fee to the expert in the case of deposition disclosure, since this seems the fairest approach in most instances.

The measure provides that the further disclosure of experts authorized by the court shall take place at such time as the court deems appropriate. In contrast with the practice in most personal injury matters, experts in commercial cases are often retained at an early point. In large commercial cases, many of which are litigated in the Commercial Division around the state, the court is expected to, and does, engage in extensive supervision of disclosure proceedings and establishes a comprehensive disclosure schedule, which would include an appropriate deadline for further expert disclosure, if ordered.

This measure, which would have no fiscal impact on the State, would take effect immediately.

2009 LEGISLATIVE HISTORY: OCA 2009-43