S T A T E O F N E W Y O R K
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6802
2017-2018 Regular Sessions
I N S E N A T E
June 18, 2017
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Introduced by COMMITTEE ON RULES -- read twice and ordered printed, and
when printed to be committed to the Committee on Rules
AN ACT to amend the civil practice law and rules, in relation to iden-
tification of expert witnesses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (a) of section 3101 of the civil practice law
and rules is amended by adding a new paragraph 5 to read as follows:
(5) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SUBPARAGRAPH (I) OF
PARAGRAPH ONE OF SUBDIVISION (D) OF THIS SECTION, IN AN ACTION FOR
MEDICAL, DENTAL OR PODIATRIC MALPRACTICE, EACH PARTY SHALL SERVE THE
DISCLOSURE DESCRIBED THEREIN AT LEAST SIXTY DAYS PRIOR TO THE FILING
REQUIRED BY RULE THIRTY-FOUR HUNDRED TWO OF THIS CHAPTER. FURTHER AT
ANY TIME AFTER JOINDER OF ISSUE, ANY PARTY MAY, BY WRITTEN NOTICE MADE
TO AND SERVED UPON ALL OTHER PARTIES AND FILED WITH THE COURT, CONDUCT
AN EXAMINATION UPON ORAL DEPOSITION, OF ANY PERSON WHO HAS BEEN
DISCLOSED AS AN EXPERT WITNESS BY ANY OTHER PARTY. EACH PARTY SHALL BE
REQUIRED TO PRODUCE HIS OR HER EXPERT WITNESS FOR EXAMINATION UPON ORAL
DEPOSITION UPON RECEIPT OF A NOTICE TO TAKE ORAL DEPOSITION IN ACCORD-
ANCE WITH RULE THIRTY-ONE HUNDRED SEVEN OF THIS CHAPTER, AND UNLESS
OTHERWISE ORDERED BY THE COURT, ALL EXPERT WITNESS DEPOSITIONS SHALL BE
TAKEN BEFORE THE FILING REQUIRED BY RULE THIRTY-FOUR HUNDRED TWO OF THIS
CHAPTER. IF ANY PARTY, HAVING RECEIVED SUCH NOTICE, FAILS TO MAKE THAT
PARTY'S EXPERT WITNESS AVAILABLE FOR ORAL DEPOSITION, THAT PARTY SHALL
BE PRECLUDED FROM OFFERING EXPERT TESTIMONY AT THE TRIAL OF THE ACTION.
FOR PURPOSES OF RULE THIRTY-ONE HUNDRED TEN AND RULE THIRTY-ONE HUNDRED
SEVENTEEN OF THIS ARTICLE, AN EXPERT WITNESS, AS PROVIDED IN THIS
SECTION, SHALL BE CONSIDERED A PARTY. EACH PARTY SEEKING THE DEPOSITION
OF AN EXPERT WITNESS SHALL PAY THE EXPERT A REASONABLE FEE FOR THE TIME
SPENT AT THE DEPOSITION.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD13272-01-7
S. 6802 2
§ 2. Subdivision (d) of section 3101 of the civil practice law and
rules, as amended by chapter 485 of the laws of 1986, paragraph 1 as
amended by chapter 184 of the laws of 1988, and subparagraph (ii) of
paragraph 1 as amended by chapter 165 of the laws of 1991, is amended to
read as follows:
(d) [Trial preparation] EXPERT WITNESS DISCLOSURE.
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 intro-
ducing the expert's testimony at the trial solely on grounds of noncom-
pliance 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 podia-
tric 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.
(ii) In an action for medical, dental or podiatric malpractice, any
party may, by written offer made to and served upon all other parties
and filed with the court, offer to disclose the name of, and to make
available for examination upon oral deposition, any person the party
making the offer expects to call as an expert witness at trial. Within
twenty days of service of the offer, a party shall accept or reject the
offer by serving a written reply upon all parties and filing a copy
thereof with the court. Failure to serve a reply within twenty days of
service of the offer shall be deemed a rejection of the offer. If all
parties accept the offer, each party shall be required to produce his or
her expert witness for examination upon oral deposition upon receipt of
a notice to take oral deposition in accordance with rule thirty-one
hundred seven of this chapter. If any party, having made or accepted the
offer, fails to make that party's expert available for oral deposition,
that party shall be precluded from offering expert testimony at the
trial of the action.
(iii)] (II) Further disclosure, EXCEPT AS EXPRESSLY PROVIDED IN PARA-
GRAPH FIVE OF SUBDIVISION (A) OF THIS SECTION, concerning the expected
testimony of any expert may be obtained only by court order upon a show-
ing of special circumstances and subject to restrictions as to scope and
provisions concerning fees and expenses as the court may deem appropri-
ate. However, a party, without court order, may take the testimony of a
person authorized to practice medicine, dentistry or podiatry who is the
party's treating or retained expert, as described in paragraph three of
subdivision (a) of this section, in which event any other party shall be
entitled to the full disclosure authorized by this article with respect
to that expert without court order.
2. Materials. Subject to the provisions of paragraph one of this
subdivision, materials otherwise discoverable under subdivision (a) of
this section and prepared in anticipation of litigation or for trial by
or for another party, or by or for that other party's representative
(including an attorney, consultant, surety, indemnitor, insurer or
agent), may be obtained only upon a showing that the party seeking
S. 6802 3
discovery has substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain the substantial
equivalent of the materials by other means. In ordering discovery of the
materials when the required showing has been made, the court shall
protect against disclosure of the mental impressions, conclusions, opin-
ions or legal theories of an attorney or other representative of a party
concerning the litigation.
§ 3. This act shall take effect immediately.