BILL NUMBER:S5079

TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to the time of disclosure of expert witness information

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.

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, "upon
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. These deadlines can be modified by a court order in the case
or by a rule of the Chief Administrative Judge.

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.

Moreover, this amendment would not affect the trial court's ability to
set a specific date for expert disclosure, apart from the deadlines
set forth in the proposal, so long as such dates are set forth in the
scheduling order and the parties are apprised of the specific date.
We believe that such active case management and the setting of
deadlines will promote efficient case management.

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: None. New proposal.