senate Bill S5079A

2013-2014 Legislative Session

Relates to the time of disclosure of expert witness information

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  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
May 01, 2014 print number 5079a
amend and recommit to judiciary
Jan 08, 2014 referred to judiciary
May 08, 2013 referred to judiciary

Bill Amendments

Original
A (Active)
Original
A (Active)

S5079 - Bill Details

See Assembly Version of this Bill:
A9076A
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §3101, CPLR

S5079 - Bill Texts

view summary

Relates to the time of disclosure of expert witness information.

view sponsor memo
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.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5079

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT  to  amend  the civil practice law and rules, in relation to the
  time of disclosure of expert witness information

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph 1 of subdivision (d) of section 3101 of the civil
practice  law  and  rules is amended by adding two new subparagraphs (v)
and (vi) to read as follows:
  (V) UNLESS OTHERWISE PROVIDED BY A RULE OF THE CHIEF ADMINISTRATOR  OF
THE  COURTS  OR  BY ORDER OF THE COURT, DISCLOSURE OF EXPERT INFORMATION
SHALL BE MADE AS FOLLOWS: THE PARTY WHO HAS THE BURDEN  OF  PROOF  ON  A
CLAIM, CAUSE OF ACTION, DAMAGE OR DEFENSE SHALL SERVE ITS RESPONSE TO AN
EXPERT  DEMAND  SERVED  PURSUANT TO THIS SUBDIVISION AT LEAST SIXTY DAYS
BEFORE THE DATE ON WHICH THE TRIAL  IS  SCHEDULED  TO  COMMENCE;  WITHIN
THIRTY  DAYS  AFTER  SERVICE  OF SUCH RESPONSE, ANY OPPOSING PARTY SHALL
SERVE ITS  ANSWERING  RESPONSE  PURSUANT  TO  THIS  SUBDIVISION;  WITHIN
FIFTEEN  DAYS  AFTER  SERVICE  OF  SUCH RESPONSE, ANY PARTY MAY SERVE AN
AMENDED OR SUPPLEMENTAL RESPONSE LIMITED TO ISSUES RAISED IN THE ANSWER-
ING RESPONSE. IF THE TRIAL IS ADJOURNED, THE DEADLINES IN THIS  SUBPARA-
GRAPH  SHALL  SHIFT  ACCORDINGLY.  UNLESS  THE COURT ORDERS OTHERWISE, A
PARTY WHO FAILS TO COMPLY WITH THIS SUBPARAGRAPH SHALL BE PRECLUDED FROM
OFFERING THE TESTIMONY AND OPINIONS OF THE  EXPERT  FOR  WHOM  A  TIMELY
RESPONSE HAS NOT BEEN GIVEN.
  (VI)  SUBPARAGRAPH (V) OF THIS PARAGRAPH SHALL NOT APPLY TO A TREATING
PHYSICIAN OR OTHER TREATING HEALTH CARE PROVIDER  FOR  WHOSE  RECORDS  A
PATIENT AUTHORIZATION IS GIVEN TO THE OPPOSING PARTY.
  S  2.  This  act shall take effect immediately, and shall apply to all
rules or orders requiring the service of expert responses  issued  prior
to, on or after such effective date.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09841-02-3

S5079A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A9076A
Current Committee:
Law Section:
Civil Practice Law and Rules
Laws Affected:
Amd §3101, CPLR

S5079A (ACTIVE) - Bill Texts

view summary

Relates to the time of disclosure of expert witness information.

view sponsor memo
BILL NUMBER:S5079A

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, "(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)

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 5079--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               May 8, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- recommitted to the Commit-
  tee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the civil practice law and rules,  in  relation  to  the
  time of disclosure of expert witness information

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph 1 of subdivision (d) of section 3101 of the civil
practice law and rules is amended by adding two  new  subparagraphs  (v)
and (vi) to read as follows:
  (V)  DISCLOSURE  OF  EXPERT  INFORMATION SHALL BE MADE AS FOLLOWS: THE
PARTY WHO HAS THE BURDEN OF PROOF ON A CLAIM, CAUSE OF ACTION, DAMAGE OR
DEFENSE SHALL SERVE ITS RESPONSE TO AN EXPERT DEMAND SERVED PURSUANT  TO
THIS  SUBDIVISION AT LEAST SIXTY DAYS BEFORE THE DATE ON WHICH THE TRIAL
IS SCHEDULED TO COMMENCE; WITHIN  THIRTY  DAYS  AFTER  SERVICE  OF  SUCH
RESPONSE, ANY OPPOSING PARTY SHALL SERVE ITS ANSWERING RESPONSE PURSUANT
TO THIS SUBDIVISION; WITHIN FIFTEEN DAYS AFTER SERVICE OF SUCH RESPONSE,
ANY  PARTY  MAY  SERVE  AN  AMENDED  OR SUPPLEMENTAL RESPONSE LIMITED TO
ISSUES RAISED IN THE ANSWERING RESPONSE. IF THE TRIAL IS ADJOURNED,  THE
DEADLINES IN THIS SUBPARAGRAPH SHALL SHIFT ACCORDINGLY. UNLESS THE COURT
ORDERS OTHERWISE, FOR GOOD CAUSE SHOWN OR IN THE INTERESTS OF JUSTICE, A
PARTY WHO FAILS TO COMPLY WITH THIS SUBPARAGRAPH SHALL BE PRECLUDED FROM
OFFERING  THE  TESTIMONY  AND  OPINIONS  OF THE EXPERT FOR WHOM A TIMELY
RESPONSE HAS NOT BEEN GIVEN.
  (VI) SUBPARAGRAPH (V) OF THIS PARAGRAPH SHALL NOT APPLY TO A  TREATING
PHYSICIAN  OR  OTHER  TREATING  HEALTH CARE PROVIDER FOR WHOSE RECORDS A
PATIENT AUTHORIZATION IS GIVEN TO THE OPPOSING PARTY.
  S 2. This act shall take effect immediately, and shall  apply  to  all
rules  or  orders requiring the service of expert responses issued prior
to, on or after such effective date.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09841-03-4

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