THE TIMING OF EXPERT DISCLOSURE UNDER CPLR 3101(d)

DEFENSE ASSOCIATION OF NEW YORK THE TIMING OF EXPERT DISCLOSURE UNDER CPLR 3101(d) Presented by: The Honorable Ellen M. Spodek: Justice of The Supreme Court Kings County Claire F. Rush, Esq. Rush & Sabbatino, PLLC th 33 Whitehall Street- 16 Floor New York, New York 10004 (212) 600-2454 1

THE TIMING OF EXPERT DISCLOSURE UNDER CPLR 3101(d) By: Claire F. Rush 1 The timing of CPLR 3101(d) expert disclosure is an area fraught with dangers and pitfalls. These traps have been magnified by recent decisions from the Second Department that impose a time frame on when CPLR 3101(d) disclosures must be made when making a motion for summary judgment. This program will explore the statutory requirements for expert disclosure in New York, the current state of the law and a proposed amendment to the CPLR meant to remediate the unsettled state of this law. THE STATUTORY FRAMEWORK CPLR 3101(d) provides in relevant part as follows: (d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. CPLR 3101 (d) APPLIES ONLY TO EXPERT WITNESSES CPLR 3101 (d) does not apply to fact witnesses. Medical providers called simply to recite a history should accordingly not require a 3101(d) disclosure. EXPERT WITNESS INFORMATION MUST BE REQUESTED If a party fails to serve a Demand for Expert Witness Disclosure prior to the filing of the Note of Issue and Certificate of Readiness, expert disclosure will be deemed waived absent a showing of special or unusual circumstances. See, Aversa v. Taubes, 194 A.D.2d 580 (2d Dept. 1993); 22 NYCRR 202. 21. 1 Claire F. Rush is a founding partner of Rush & Sabbatino, PLLC., New York, N.Y. 2

EXPERT INFORMATION THAT MUST BE DISCLOSED A party responding to a demand for expert witness information shall disclose: a) qualifications of the expert witness; b) the subject matter on which the expert is expected to testify; c) a summary of the grounds for each expert's opinion, and, d) substance of the facts and opinions on which the expert is expected to testify. Note that in medical malpractice cases the identity of a party s expert need not be disclosed. See, CPLR 3101 (d)(1)(i). DISCLOSURE MUST SET FORTH BASIS OF EXPERT S OPINION An expert's testimony may rest on a variety of data including: 1. Evidence in the record; 2. Facts personally known to the expert; 3. Professional reliable materials, or 4. Other information derived from a witness subject to cross examination at trial. See, People v. Stone, 35 N.Y.2d 69 (1974), People v. Sugden, 35 N.Y.2d 453 (1974). Hambsch v. N.Y.C.T.A., 63 N.Y.2d 723 (1984), Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002). CPLR 3101(d) DOES NOT MANDATE DISCLOSURE OF AN EXPERT'S REPORT The best practice with respect to exchange of expert information is not to exchange an expert s reports. Nothing in the CPLR or the court rules mandates the exchange of a non medical expert s report. 22 N.Y.C.R.R. 202.17 AND DISCLOSURE OF MEDICAL REPORTS Special rules apply to the exchange of medical reports in personal injury and wrongful death actions. Pursuant to 22 N.Y.C.R.R. 202.17, a plaintiff must provide copies of all medical reports or duly executed and acknowledged written authorizations permitting the defendants to obtain copies of these records. Defense counsel in turn is required to serve copies of their expert s reports within forty-five (45) days of completion of the defendant's examinations. Pursuant to 22 NYCRR 202.17(h), the remedy for failure to comply with this Court rule is preclusion. This rule goes on to state that no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously 3

exchanged. Courts uniformly preclude the testimony of any treating or examining expert whose reports have not been served as provided for by this rule. See generally, Swezey v. Montague Rehab and Pain Managment, 84 A.D.3d 779 (2d Dept. 2011) (The Second Department affirmed a trial court Order precluding the plaintiff's treating physician from testifying at trial because plaintiff failed to serve the doctor's medical report and did not demonstrate good cause for the admission of his testimony). PARTIES ARE BOUND BY THEIR EXPERT S REPORTS In Matszewska v. Golubeya, 293 A.D.2d 580 (2d Dept. 2002), the Appellate Division held that a trial court properly precluded the testimony of the defense s medical expert, where the expert sought to repudiate the conclusion expressed in his report that the plaintiff's pre-existing arthritis was not related to and would not have any effect on her recovery. At trial four months later, defense counsel claimed that this was an error and sought to elicit testimony that the plaintiff's pre-existing arthritis would effect her recovery. Because this contradictory testimony surprised and would have prejudiced the plaintiff, Supreme Court properly excluded the testimony. The Appellate Division noted that the defendant failed to demonstrate good cause of its admission. The moral to this story is simple: REVIEW THE REPORTS BEFORE YOU EXCHANGE THEM. A 3101(d) DISCLOSURE IS NOT REQUIRED FOR A TREATING PHYSICIAN A treating physician can testify despite the failure of plaintiff s counsel to serve a CPLR 3101(d) notice. Both the First and Second Departments have held that when a plaintiff's intended expert medical witness is a treating physician whose records and reports have been fully disclosed, a failure to serve notice that the physician will testify does not warrant preclusion of that expert's testimony since the defendant has sufficient notice of the proposed testimony to negate any claim of surprise or prejudice. See, Overeem v. Neuhoff, 254 A.D.2d 398 (2d Dept. 1998); McGee v. Family Care Services, 246 A.D.2d 308 (1st Dept. 1998). The failure to serve a 3101(d) with respect to a treating physician's opinion on causation will not preclude a plaintiff from offering his treating doctor s expert opinion on the issues of proximate cause. See, Logan v. Roman, 58 A.D.3d 810 (2d Dept. 2009); Ryan v. City of New York, 269 A.D.2d 170 (1st Dept. 2000). Neither CPLR 3101(d) nor 22 N.Y.C.R.R. 202.17 justify the exclusion of testimony of a plaintiff's treating physician as to permanency of plaintiff's injuries. See, Hughes v. Webb, 40 A.D.3d 1035 (2d Dept. 2007); Langhorne v. County of Nassau, 40 A.D.3d 1045 (2d Dept. 2007). 4

QUESTION Is a party who subpoenas and offers the testimony of an adverse expert witness pursuant to Gilly v. City of New York, 69 N.Y.2d 509 (1987), required to serve a 3101(d)? WHEN SHARING PHYSICALS DEFENDANTS MUST SERVE 3101(d) RESPONSES In Taveras v. Amir, 57 A.D.3d 887 (2d Dept. 2008), the Appellate Division held that a trial court did not improvidently preclude the testimony of two expert witnesses who had been retained by settling defendants. The attorneys for the non settling defendant in Taveras did not disclose that they intended to call these experts as their expert witnesses until after the damages trial was already underway. Judge Schack found prejudice to the plaintiff and the Appellate Division agreed. EXPERT WITNESSES WILL NOT BE PRECLUDED MERELY BECAUSE OF NON TIMELY DISCLOSURE CPLR 3101(d) does not require a party to respond to a demand for expert witness 2 information at any specific time. More importantly the statute does not mandate that a party be precluded from proffering expert testimony merely because of a party s failure to timely disclose the identity and substance of his or her expert s opinions. Late disclosure is permissible as long as there is no evidence of intentional or willful failure to disclose and the party disclosing can establish a lack of prejudice to the opposing party. In Rowan v. Cross County Ski and Skate, Inc., 42 A.D.3d 563 (2d Dept. 2007), the defendant served a response to a Demand for Expert Witness Information just two weeks before the trial was scheduled to commence. The belated disclosure included a report from an expert who opined that the defendant's negligence could not have caused the plaintiff's injuries. Plaintiff made a motion in limine to preclude the defendant's expert from testifying. The trial court denied the motion and the jury returned a defendant's verdict. The Second Department affirmed and noted that the record did not support a conclusion that the defendant's delay in retaining their expert or serving their disclosure was intentional or willful. Id. at 564. The Court went on state that the disclosure was not made on the eve of trial since the plaintiff had two weeks within which to review the material and that any potential prejudice to the plaintiff could have been eliminated by an application for an adjournment. 2 Time requirements may however be imposed by Preliminary Conference Orders or Court Rules. 5

The Second Department's decision in Rowan places the burden on the party seeking expert disclosure to demonstrate that the delayed response was 1) intentional and/or willful, and 2) caused prejudice. This decision contradicts the language of CPLR 3101, which places the burden on the party serving the late disclosure to demonstrate "good cause." REMEDIES FOR FAILURE TO TIMELY DISCLOSE UNTIL TRIAL Cases that address the failure to disclose expert witnesses until at or near trial can be divided into three categories: 1) where there is no response because the expert is retained in an insufficient period of time before trial; 2) where an expert has been retained a sufficient amount of time before trial, but the party failed to provide timely notice; and 3) where the CPLR 3101(d) response is deemed deficient. Courts will generally permit an expert to testify if the proponent of the expert can show good cause for the late retention. Good cause can be due to the death or unavailability of a prior expert or a procedural development which resurrects a case that was previously dead or dormant. Where good cause is shown the courts have broad discretion to fashion remedies to cure the prejudice. Typically, the courts will grant an adjournment to permit the party seeking disclosure to prepare for cross-examination or retain rebuttal experts. In addition, courts can impose monetary sanctions against the party offering the late disclosure. This can include an assessment of attorney's fees against the proponent of the late exchange for the extra time and inconvenience and expense incurred by the other side in preparing for the examination. See generally, 22 N.Y.C.R.R. 130; Aversa v. Taubes, 194 A.D.2d 580 (2d Dept. 1993) (Defendant's attorneys directed to pay plaintiff's attorneys $7,500.00 or proffered expert to be precluded). Where the evidence establishes that the late retention of an expert is willful and deliberately calculated to ambush an opponent, courts will not permit the proffered expert to testify. See generally, Lissak v. Cerabona, 10 A.D.3d 308 (1st Dept. 2004) (Defendant precluded from offering new expert where expert s proposed testimony amounted to a material alteration of the theory of the defenses case). The fact that a party was attempting to avoid the expense of hiring an expert until the eve of trial, is not sufficient to demonstrate good cause. Where an expert has been retained a sufficient amount of time prior to trial to permit disclosure, but the party does not disclose the expert s existence until trial, the courts will generally preclude the expert from testifying. The one exception to this rule appears to occur in those cases where an expert medical witness report has been exchanged pursuant to 22 N.Y.C.R.R. 202.17. In Marchione v. Greenky, 5 A.D.3d 1044 (4th Dept. 2004) and Ruzycki v. 6

Baker, 9 A.D.3d 854 (4th Dept. 2004), the Appellate Division refused to preclude expert testimony finding that the report from the proffered experts have previously been exchanged and that no prejudice could therefore be found. Cf, Taveras v. Amir, 57 A.D.3d 887 (2d Dept. 2008). REMEDIES FOR INSUFFICIENT CPLR 3101(D) RESPONSES A familiar problem occurs where there has been a timely response to an expert disclosure, but the response itself is deficient with respect to the substance of the expert's proposed testimony. This typically arises in situations where the notice of intent fails to disclose in reasonable detail the basis upon which the expert is expected to testify and/or the opinions to which the expert is expected to testify. Where a party plans to object to the adequacy of an expert disclosure response, the objection should be made well in advance of trial. If the expert disclosure is inadequate, the opposing party should move to preclude the testimony prior to trial. In the alternative, the party can seek a Frye hearing to address the sufficiency of the facts and opinions upon which the expert will base his or her opinion. HOW TO HANDLE A RETRIAL AFTER EXPERT PRECLUSION The party proffering the expert testimony should reserve the CPLR 3101(d) response and argue that the Order of preclusion was a discretionary evidentiary ruling not binding at the second trial. Since the primary intent of CPLR 3101(d) is to ensure that a party has ample notice of an expert, there would appear to be no need to preclude the testimony based upon a default in the first trial. Alternately, if you are opposing the proffered testimony, you should argue that it is barred at the re-trial because the prior Order precluding it is the law of the case. CPLR 3101(d) and MOTIONS FOR SUMMARY JUDGEMENT THE SINGLETREE REVOLUTION Although it is clear that CPLR 3101(d) does not impose any timing requirements with respect to expert disclosure, the Second Department has recently imposed a timing requirement on litigants seeking to make summary judgment motions. In Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dept. 2008), the Second Department was confronted with a case where a sub contractor sued a general contractor, J.C. Construction Management Corp and the owner Lowe to foreclose on a mechanics lien. After the completion of discovery and filing of the Note of Issue, J.C. moved for summary judgment dismissing Lowe's cross claims for liquidated and compensatory damages for breach of warranty. In opposition Lowe provided affidavits from experts in the flooring and air conditioning industries who opined that the flooring and insulation systems installed in the Lowe house were faulty. Despite the fact that the affidavits clearly created a question of fact, the Second Department affirmed the trial court's holding that the affidavits of Lowe's undisclosed experts could not be considered in opposition to J.C. 7

Construction's summary judgment motion. Justice Edward Carni, in a well reasoned dissent, noted that CPLR 3101(d) only requires that a party "identify each person whom the party expects to call as expert witness at trial" and argued that CPLR 3101(d) does not require the disclosure of experts or consultants that are retained by a party for purposes other than providing trial testimony. He further argued that it would be incongruous to impose a timing requirement for the exchange of expert affidavits submitted in support of summary judgment motions since the statute imposes no such limits in the context of trial disclosures. Unfortunately Judge Carni s arguments fell on deaf ears and Singletree has become the law of the Second Department. In King v. Gregruss Management Corp., 57 A.D.3d 851 (2d Dept. 2008), for instance, plaintiff was injured when he attempted to open a drum containing windshield washer fluid with an electric saw. Plaintiff sued the manufacturer of the drum and the company that reconditioned the drum. After plaintiff filed his Note of Issue, the defendants moved for summary judgment. In opposition, plaintiff submitted the report of his expert who examined the drum and identified the defendants as the manufacturer and reconditioner of the drum. Relying on its holding in Singletree, the Second Department concluded that plaintiff's expert affidavit submitted in opposition to the summary judgment motion should have been rejected, since plaintiff did not identify the expert in his pre-trial disclosure and without the expert's affidavit, plaintiff could not properly rebutt defendant's claim. Since its decision in Singletree the Second Department has consistently utilized this case to nonsuit parties who fail to exchange expert witness information before the filing of the Note of Issue. See, Kopeloff v. Arctic Cat, Inc., 84 A.D.3d 890 (2d Dept. 2011)(The court refused to consider plaintiff's expert affidavit in opposition to defendant's motion for summary judgment in a snow mobile product liability case on the grounds that plaintiff failed to provide an excuse for failing to identify the expert in response to defendant's discovery demands); Ehrenberg v. Starbucks Coffee Co., 82 A.D.3d 829 (2d Dept. 2011) (The affidavit of the plaintiff's expert should not have been considered since that expert witness was not identified by the plaintiff until after the Note of Issue and Certificate of Readiness were filed and plaintiff offered no excuse for the delay); Pellechia v. Partner Aviation Enterprises, Inc., 80 A.D.3d 740 (2d Dept. 2011) (Plaintiff's expert s affidavit was properly rejected because the plaintiff never complied with any of the disclosure requirements of CPLR 3101(d) and only identified his expert witness in opposition to the defendant's summary judgment motion); Gerardi v. Verizon, 66 A.D.3d 960 (2d Dept. 2009) (The affidavit of plaintiff's expert witness on a sidewalk defect case should not have been considered as the plaintiff's expert was not identified until after the filing of a Note of Issue and Certificate of Readiness and plaintiff offered no valid excuse for his delay in identifying his expert.); Wartski v. C.W. Post, 63 A.D.3d 916 (2d Dept. 2009) (Plaintiff's expert affidavit offered in opposition to defendant's motion for summary judgment in a snow and ice case should not have been considered since the expert was not identified by the plaintiff during the pre-trial proceedings and plaintiff offered no valid excuse for her delay in identifying the expert). 8

SINGLETREE APPLIES TO DEFENDANTS AS WELL In Yax v. Development Team, Inc., 67 A.D.3d 1003 (2d Dept. 2009), the Second Department held that a trial court erred in considering an expert affidavit submitted by a defendant in opposition to plaintiff's summary judgment motion alleging Labor Law violations. The Court noted that defendant had failed to identify this expert during pre-trial proceedings and did not provide an excuse for its failure to identify the expert until served with plaintiff's motion for summary judgment. The Second Department reached a similar conclusion in Stolarski v. DeSimone, 83 A.D.3d 1042 (2d Dept. 2011), wherein it denied a motion for summary judgment made by Family Services of Westchester in a wrongful death action arising out of a suicide. The Appellate Division held that the court below properly declined to consider the expert affidavits proffered by Family Services in support of its motion. The experts were not identified by Family Services until after the Note of Issue and Certificate of Readiness were filed and Family Services offered no valid excuse for the delay. THE FIRST DEPARTMENT HAS CITED SINGLETREE WITH APPROVAL In Harrington v. City of New York, 79 A.D.3d 545 (1st Dept. 2010), the First Department cited Singletree and affirmed an Order awarding the defendant summary judgment in a wrongful death action. The First Department stated that the motion court properly declined to consider the plaintiff's affirmation because he failed to timely disclose his expert's identity. See also, Mauro v. Rosedale Enterprises, 60 A.D.3d 401 (1st Dept. 2009). THE ABERRATIONAL SECOND DEPARTMENT CASES In Howard v. Kennedy, 60 A.D.3d 905 (2d Dept. 2009), the Second Department held that a trial court did not error in considering the affidavit of plaintiff's expert submitted in opposition to defendant's motion for summary judgment despite the plaintiff's alleged failure to comply with CPLR 3101(d). In reaching this conclusion the Appellate Division noted that there was a "factual dispute" as to whether the plaintiff had in fact complied with the disclosure requirements of CPLR 3101(d). The Second Department's holding in Browne v. Smith, 65 A.D.3d 996 (2d Dept. 2009), is even more difficult to reconcile with its holding in Singletree. Defendant in Browne moved for summary judgment on the issue of liability by establishing that the plaintiff driver's vehicle proceeded into an intersection, controlled by a stop sign, without yielding the right of way to the defendant s approaching vehicle. Plaintiff, in opposition, proffered an affidavit from an engineer. The Appellate Division stated that the trial court properly concluded that there was no evidence that the failure to disclose was intentional or willful and that the defendant had failed to show prejudice. Finally, the Court noted that the defendants had sufficient time to respond to plaintiff's submissions. 9

WHAT DOES SINGLETREE MEAN FOR THE BAR Any party planning to move for summary judgment must exchange expert disclosure prior to the filing of the Note of Issue. Where a party can reasonably expect that his or her adversary will move for summary judgment, he or she must retain the services of an expert and file a CPLR 3101(d) response prior to the filing of the Note of Issue. THE FUTURE OF SINGLETREE In 2009 Professor Patrick Connors described the case law surrounding the timing of CPLR 3101 (d) disclosures as being in shambles. Since that time the situation has only gotten worse. In response to this disarray, The Advisory Committee on Civil Practice to The Chief Administrative Judge of the Courts of the State of New York issued a report in January of 2011 in which it recommended that CPLR 3101(d) be amended to provide specific deadlines for expert disclosure. The Committee stated that such an amendment would avoid trial by ambush, permit more efficient preparation for trial, provide consistency between the law and practice and discourage application of CPLR 3101(d) to motions for summary judgment. In response to these recommendations State Senator John Bonacic sponsored a bill that would create timing requirements for disclosure of expert witness information. See, New York State Senate Bill Number 4592-2011. Under this proposed bill CPLR 3101(d) would be amended to provide that expert disclosure shall be made no later than sixty (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 would be required to serve its expert response. Unfortunately, the amendment as presently drafted does not explicitly address the issue of when a party must disclose expert information necessary to support or oppose a motion for summary judgment. Absent such explicit language, the Courts may well continue to impose timing requirements on the disclosure of expert witness information in the context of summary judgement motions in flagrant derogation of the plain language of CPLR 3101(d). 10