Expert Disclosure in New York: Navigating the Potential Pitfalls To Avoid Preclusion

CPLR §3101(d)(1)(i) , which governs expert disclosure in New York, reads in pertinent part as follows:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial...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 there upon 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... .

The fallout has been that many practitioners labor under the misconception that there is a "thirty day rule" requiring expert exchange 30 days before trial, although there is no appellate authority supporting this view. The vagueness of this statute's mandate of "appropriate notice" has led to different judicial districts and courts promulgating deadlines different from, and always more restrictive than, this statute, which highlights the need for each handling attorney to be cognizant of the expert disclosure rules in effect where each particular action is pending.

Some judges direct that expert disclosure be made by the plaintiff at the time of the filing of the Note of Issue. While other judges provide no directives to the practitioner with respect to acceptable expert disclosure, leaving the handling attorney to only assume that the CPLR mandate of "appropriate notice" will rule the day. This is particularly frustrating for attorneys serving expert disclosures post-the filing of the Note of Issue since they are never quite sure whether or not it will be deemed "late" and, thus, risk preclusion at trial.

No Appellate Division currently has a division-wide rule. However, in an effort to provide some clarity, the Third Judicial District mandates all expert disclosure responses by the filing of the Note of Issue, with rebuttal experts to be exchanged within 30 days thereafter pursuant to CPLR §3101(d). Unless the court directs otherwise, a party that fails to comply with this rule is precluded from offering testimony and opinions of the expert for whom a timely response has not been given. See, 2002 Third Jud. Dist. Rules §I. However, the Appellate Division, Third Department has consistently failed to recognize this bright-line rule and affirmed the power of the trial court to excuse non-compliance with the rule. Gushlaw v. Roll, 290 AD2d 667 (3rd Dept. 2002) (Appellate Division, Third Department in this medical malpractice action remitted this action for a new trial. For the trial court's guidance at retrial, the appellate court held that the trial court, by precluding the defendant's proposed biomechanical engineer, was justified by Third Judicial District local rule noted above since disclosure would have caught the plaintiff wholly unaware, regardless of the fact that the expert was disclosed only six weeks prior to trial in violation of the local rule. However, the appellate court then also determined that the trial court could once again consider the defendant's expert disclosure of an oral surgeon since it was not unexpected, despite also being disclosed six weeks prior to trial, in violation of the local rule); See also, Washington v. Albany Hous. Auth., 297 AD2d 426 (3rd Dept 2002).

As is evident from the court's decision in Gushlaw v. Roll, the vagueness of this statute not only frustrates attorneys, but leaves within the sound discretion of the New York courts throughout the state to determine whether the delay or failure to disclose a particular expert was willful or intentional and if there was any prejudice to the opposing party. Generally, an expert should be allowed to testify as long as the disclosing party made a reasonable effort to comply with the statute, which has been recognized in each of the four appellate divisions throughout New York. See e.g., Gallo v. Linkow, 255 AD2d 113 (1st Dept. 1998); Shopsin v. Siben & Siben, 289 AD2d 220 (2nd Dept. 2001); Silverberg v. Community Gen. Hosp. of Sullivan County, 290 AD2d 788 (3rd Dept. 2002); Tronolone v. Praxair, Inc., 39 AD3d 1146 (4th Dept. 2007). But, see also, Schwartzberg v. Kingsbridge Heights Care Cen., Inc., 28 AD3d 463 (2nd Dept. 2006) (precluding expert testimony since no explanation was offered for delay).

It should be noted that the party serving a late expert exchange should be careful to establish "good cause." Failure to establish good cause, even though the failure to exchange was not intentional, may lead to preclusion. Douglass v. St. Joseph's Hospital, 246 AD2d 695 (3rd Dept. 1998) (the defendant failed to disclose its expert until one day prior to the trial date, which was selected eight months before, without any explanation for the delay, except that the defendant's expert did not complete her review of the plaintiff's records until the day before the trial. The trial court's preclusion of the defense expert was affirmed by the Appellate Division, Third Department).

In any case in which a motion for summary judgment is likely, the best practice is to serve an expert exchange prior to the filing of the Note of Issue rather than risk preclusion as a result of the expert being disclosed for the first time in opposition.

A recent decision by the Appellate Division, Second Department makes it the only Department in New York State to hold that expert affidavits are barred from consideration when submitted in opposition to summary judgment motions and not previously exchanged prior to the filing of the Note of Issue. See, Construction by Singletree, Inc. v. J. C. Construction Management Corp., 55 AD3d 861 (2nd Dept. 2008). It should be noted there was a long dissent (in part) issued by Justice Carni interpreting CPLR §3101(d)(1)(i) to apply only to an expert whom a party intends to call at trial and does not preclude the trial court from considering previously undisclosed expert opinions submitted in opposition to a motion for summary judgment. Justice Carni also referred to the Preliminary Conference Order in this action, which only referred to the disclosure of experts as witnesses at trial. Moreover, Justice Carni aptly points out that "[t]here is no requirement that an expert or consultant who provides an affidavit for the limited purpose of opposing a summary judgment motion be the same expert trial witness who testifies at the subsequent trial." Even if that was the case, as noted above, it is well settled that CPLR §3101(d)(1) does not require a party to respond to a demand for expert witness information at any specific time. In Justice Carni's view, "The applicability of CPLR §3101(d)(1)(i) to the employment of experts opposing a summary judgment motion is contrary to the express language of the statute and beyond its clear legislative intent."

Justice Carni's reasoning has garnered support by counsel for both plaintiffs and defendants. The Appellate Division, Second Department's decision in Construction by Singletree, Inc. v. J.C. Construction Management Corp., and the cases that have followed this decision thereafter (See e.g., Wartski v. C.W. Post Campus of L.I.U., 63 AD3d 916 (2nd Dept. 2009), have created an enormous onus on all attorneys to retain an expert pre-Note of Issue any time it is merely plausible an expert could be needed to oppose a motion for summary judgment. Counsel no longer has the luxury of retaining an expert if and when a motion for summary judgment is made.

As a result of this new case law from the Second Department, all counsel with cases in this Department are faced with the dilemma of whether to invest additional money into their case to retain an expert or risk losing a potential motion for summary judgment as a result of having their expert precluded since he or she was not exchanged pre-Note of Issue. Cases of limited value are now more likely to settle prior to any motion practice.

*Steve is an associate in our New York City office located at 140 Broadway, 19th Floor, New York, New York 10005 and can be reached at (212) 878-1704 or smchristman@mdwcg.com.

Defense Digest, Vol. 16, No. 2, June 2010