Senate Bill S4592

                                BILL NUMBER:S4592

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

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.

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