Relates to the time of disclosure of expert witness information

The measure would amend CPLR 3101(d)(1) to provide a minimal deadline for expert disclosure, which could be modified by the court to give earlier or later expert disclosure depending on the needs of the case.

Current Law:

Current CPLR § 3101(d)(1) requires that each party must, "(u)pon request, identify each person whom the party expects to call as an expert witness." The disclosing party must also provide certain other information, including "the substance of the facts and opinions on which each expert is expected to testify." (The names of the experts may be withheld in medical, dental and podiatric malpractice actions.)

The problem with the current statute is that it does not say (a) when such disclosure must be made, or (b) whether the affidavit of a previously undisclosed expert may be used to support or oppose a motion for summary judgment. As a result, courts have rendered inconsistent decisions as to when expert disclosure is due, and parties have found it difficult to gauge what they must do to assure that they can rely upon their experts at trial or within the context of summary judgment motions.

The most recent appellate ruling of note, Rivers v. Birnbaum, 953 N.Y.S.2d 232 (2d Dep't; October 27, 2012), nicely underscores the uncertainties inherent in the current statute. The Court there noted that the current statute "does not specify when a party must disclose its expected trial experts upon receiving a demand." The Court concluded that, by failing to provide any deadline for disclosure, "the statute itself specifically vests a trial court with the discretion to allow the testimony of an expert who was disclosed near the commencement of trial," and that courts also have the "discretion" to "consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment."

In other words, virtually every question connected to the timeliness of the disclosure is now a function of the court's "discretion." Yet, if virtually all determinations regarding expert disclosure are discretionary, that means that two judges can render very different rulings on much the same facts. It also means that a party will not know in advance what will occur if he or she delays hiring and disclosing an expert, perhaps in the hope that the case may settle without incurring the costs of retaining an expert.

The Proposal:

This measure sets forth specific deadlines for disclosure of experts. The party with the burden of proof on a claim, cause of action, damage or defense must disclose his or her experts "at least sixty days

before the date on which the trial is scheduled to commence." The opposing party then has thirty days to disclose his or her responsive experts.

We believe that specific time frames for expert disclosure would (1) avoid "trial by ambush," (2) promote consistency, and (3) permit more efficient preparation for trial and management of cases.

The amendment also would make clear that expert disclosure, while a prerequisite for trial, is not required for purposes of summary judgment motions.

We recognize that trial dates are fluid and such dates are often adjourned. When the trial is adjourned, the deadline to serve expert information will also shift. Yet until the trial date is adjourned, counsel should assume that the trial date is fixed and act accordingly in making expert disclosure.

What The Proposal Would Not Change:

This measure would not alter what must be provided, and would not alter current law regarding deposition of experts. It would merely set forth when the disclosure must occur.

The amendment also would not apply to any "treating physician or other treating health care provider for whose records a patient authorization is given to the opposing party." This would codify the current, judge-made rule that CPLR 3101(d)(1) disclosure need not be made of a treating physician for whose records a patient authorization is given to the opposing party. See Jiang v. Dollar Rent A Car, Inc., 91 A.D.3d 603 (2d Dep't 2012); Casey v. Tan, 255 A.D.2d 900 (4th Dep't 1998); Rosati v. Brigham Park Co-Op. Apartments, 37 Misc.3d 1206(A), Slip Op 2012 WL 4748396.

This measure would have no fiscal impact on the State. It would take effect immediately and apply to all rules or orders requiring the service of expert responses issued prior to, on or after such effective date.

Legislative History:

Senate 5079 (Senator Bonacic) (ref to Judiciary) Assembly 9076 (M. of A. Weinstein) (ref to Judiciary)