Relates to the timeliness of responses to be served in connection with expert witnesses

BILL NUMBER:S4383

Title of bill

An act to amend the civil practice law and rules, in relation to disclosure of expert witnesses

Purpose

This legislation relates to the timeliness of responses to be served in connection with expert witnesses.

Summary of provisions

Section one of the bill amends subparagraph (i) of paragraph 1 of subdivision (d) of section 3101 of the Civil Practice Law and Rules is amended by adding the following language: A party who has the burden of proof on a claim, cause of action, damage or defense shall serve its response to an expert demand pursuant to this section on or before the filing of the note of issue. Such party has until the filing of the note of issue to serve such response regardless of how early the demand is made,. Any opposing party shall serve its answering response pursuant to this section no later than sixty days after the filing of the note of issue. Any amended or supplemental expert disclosure shall be allowed only with the permission of the court. A party who fails to comply with this rule is precluded from offering the testimony and opinions of the expert for whom a timely response has not been given. The statutory stay for disclosure pursuant to subdivision (b) of rule thirty-two hundred four-teen of this chapter upon the service of a dispositive motion under rule thirty-two hundred eleven of this chapter shall not apply to the service of these expert responses. Any motion by a party to preclude, or limit expert testimony pursuant to this section, must be made as soon as practicable but no later than forty-five days after the party's receipt of the expert disclosure or the motion will be waived.

Section two of the bill provides that this act shall take effect immediately and shall apply to all actions commenced after such date.

Existing law

Currently, a party who expects to call an expert witness at trial is required to make disclosures about the expert unless the expert is retained at a late date and there is insufficient time before trial to make the required disclosures. The law does not include time frames for making the required disclosures.

Justification

This legislation is adapted from a judicial rule created in 1999 by Supreme Court Justice Thomas W. Keegan, which is currently in place in the Third Judicial District.

The current law provides no concrete time frame for the disclosure of expert witnesses. In practical effect, this allows both plaintiffs and defendants to disclose their witnesses as late as 30 days prior to trial, This results in the common practice of "trial by ambush," which unfairly disadvantages defendants because they are not afforded adequate time to prepare a defense.

This legislation would prevent trail by ambush and promote meaningful settlement negotiations. Moreover, this legislation would reduce the financial and administrative burdens on the courts, allowing more expedient justice for those with legitimate claims.

Prior legislative history

2011-2: S.6927 - Referred to Judiciary

Fiscal implications

This legislation will reduce the administrative and budgetary burden on New York State's courts by reducing non-meritorious lawsuits.

Effective date

This act shall take effect immediately and shall apply to all actions commenced after such date.