In New York, a party's obligation to disclose experts is governed by New York Civil Practice Law and Rules §3101(d). This statute was drafted to encourage the exchange of information, foster settlement, and deter unsupportable claims. In its current iteration, however, CPLR §3101(d) does none of that. Unlike its federal counterpart, New York's expert disclosure rule is marked by inefficiency, ambiguity, and inconsistency. Section 3101(d) has proven inadequate for litigants, particularly for those who must rely upon expert evidence to prosecute or defend complex matters. These deficiencies have prompted the New York State Bar Association to propose a set of voluntary rules to bolster the current expert disclosure rules for cases before the Commercial Division. This measure has been widely hailed as a significant step toward modernizing procedure for complex business disputes. The concern remains, however, that a large portion of litigants outside of the Commercial Division must still contend with insufficient expert disclosure and a legal morass created by unpredictable rulings from each of the four appellate departments.
Section 3101(d) has two notable features. The first is a lack of guidance with respect to the timing of the disclosure. Under a plain reading of the statute, the parties can seemingly disclose their intended experts at any time during discovery, up to a reasonable time before trial. In some instances, this has been interpreted as allowing expert disclosure even after the start of the trial. The second feature is the minimal amount of disclosure required by the rule. In practical effect, §3101(d) offers the opposing party little to no information about the disclosed expert's opinion and future testimony. Combined, these two features can have a dramatic impact on a case by impeding early case assessment, the assembling of evidence to rebut expert testimony, and the preparation of trial.
Section 3101(d): Timing
The issues created by the ambiguity and uncertainty surrounding the proper timing of expert disclosure is compounded by the uncertainty and inconsistency with which remedies are imposed for tardy disclosure. The general rule on preclusion for failure to comply with CPLR §3101(d) requires a showing of intentional or willful failure to disclose along with a showing of prejudice.1 This standard, when implemented, has led to a hodgepodge of inconsistent rulings.
Until very recently, it appeared that a trend of stricter penalties for late disclosure was gaining momentum. The Second Department was largely credited with beginning this trend through its decision in Constr. by Singletree v. Lowe, 55 A.D.3d 861 (2d Dept. 2008). Singletree ostensibly required the parties to produce expert affidavits prior to the note of issue and certificate of readiness, risking preclusion if they failed to do so. Litigants began using this precedent at the summary judgment stage, when presented with an expert affidavit, in an effort to preclude the other side's expert witness, albeit to limited success.
For instance, in Stolarski v. DeSimone, 83 A.D.3d 1042 (2d Dept. 2011), the Second Department affirmed a ruling by the trial court which refused to consider defendant's expert affidavit in support of summary judgment where it had failed to disclose the affidavit prior to the filing of the note of issue and offered no valid excuse for the delay. Similarly, in Pellechia v. Partner Aviation Enterprises, 89 A.D.3d 740 (2d Dept. 2011), the court held that the plaintiff's expert affidavit was properly rejected by the trial court because the plaintiff never complied with any of the disclosure requirements of CPLR §3101(d)(1)(i), having first identified his expert witness in opposition to the defendant's summary judgment motion and after the plaintiff filed the notice of issue and certificate of readiness.
Most recently, however, the Second Department has done an about face. In Rivers v. Birnbaum, 2012 WL 4901445 (2d Dept. Oct. 17, 2012), the Second Department set out to clarify its holding in Singletree, recognizing that:
certain decisions [of the Second Department] may have been interpreted as standing for the proposition that a party's failure to disclose its experts pursuant to CPLR §3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, by itself requires preclusion of an expert's affirmation or affidavit submitted in support of a motion for summary judgment.
In Rivers, a medical malpractice action, the court affirmed the order of the trial court allowing consideration of the expert disclosure filed after the note of issue and certificate of readiness. The Second Department noted that it was up to the trial judge's discretion to decide how to penalize non-compliance with §3101(d). The court went on to reiterate that the trial court may fashion stricter expert disclosure rules, under its general authority to supervise disclosure. For instance, a court may impose a specific deadline for expert disclosure under CPLR §3101(d)(1)(k), including requiring that disclosure be exchanged prior to the filing of a note of issue and certificate of readiness or prior to a motion for summary judgment, and enforce these deadlines by imposing sanctions for those who fail to comply
The First Department has been as equally unpredictable as the Second Department. In Martin v. Triborough Bridge and Tunnel Auth., 73 A.D.3d 481 (1st Dept. 2010), the First Department affirmed the ruling of the trial court declining to preclude defendant's expert disclosure on the eve of trial. In applying the general rule of preclusion, the court noted that defendant's delay was not willful given that defense counsel was retained shortly before trial. Additionally, the court refused to find prejudice in the delay because the trial court gave plaintiff the opportunity to voir dire the expert to avoid any surprises during cross-examination. The court rejected plaintiff's contention that such a remedy did not adequately cure the prejudice because he did not have sufficient time to prepare for a cross-examination or obtain other evidence to challenge the expert's testimony. The court also rejected plaintiff's counsel's contention that the trial judge rushed him by reminding counsel that the jury was waiting while he was questioning the expert.
Similarly, in Creagh v. Estiatorio, defendant alleged that the expert affidavit was untimely, as it was not exchanged until summary judgment, three months after the note of issue was filed. Despite this delay, the First Department allowed for the expert affidavit, and noted:
As §3101(d)(i) contains no definitive deadline for expert disclosure and as Defendants were aware of the identity of the expert, as he made an inspection with their expert, the Court accepts the affidavit as timely.2