Unfortunately, CPLR §3101(d) is out of step with modern litigation. Most, if not all, complex litigation, whether based in contract or tort, requires some form of expert testimony. Arguably, the need for pretrial discovery is greater with respect to expert witnesses than for ordinary fact witnesses, because the other party must prepare, and most likely retain, its own expert, in order to properly combat the opinions and testimony of a witness who possesses specialized knowledge in some scientific or technical matter.
While §3101(d) leads to increased disputes during the discovery phase as parties jockey for timely and complete disclosure, even more substantial problems arise at trial when an adverse party decides to challenge the admissibility of an expert's testimony with scant information. The Singletree decision had been cause for optimism amongst those practitioners in favor of more complete and open expert discovery in line with the vast majority of jurisdictions in this country. Unfortunately, this optimism was short lived, as the Second Department has retreated from its Singletree decision, falling back on the amorphous requirements of §3101(d).
One thing the disparate decisions have made clear is that trial courts are provided substantial discretion in setting the parameters of expert disclosure. Trial courts can set expert deadlines, can compel further disclosure of anticipated expert testimony, and can even order expert depositions. It is up for each practitioner to push the court to allow them to conduct discovery, which in most any other jurisdiction would be routine.
Barbara A. Lukeman, a partner with Nixon Peabody in New York City, and Thomas M. Mealiffe, an associate in the Long Island office, practice in the firm's Products: Class Action, Trade & Industry Representation practice.
1. See Creagh v. Estiatorio, 31 Misc.3d 1212(A), 2011 N.Y. Slip Op. 52104(U) (Sup. Ct. N.Y. County, March 11, 2011); McColgan v. Brewer, 923 N.Y.2d 276 (3d Dept. 2011).
2. See id. at *3, n.2.
3. NY CPLR §3101(d); see In re Love Canal Actions, 555 N.Y.S.2d 519 (4th Dept. 1990).
4. Richards v. Herrick, 292 A.D.2d 874, 874 (4th Dept. 2002).
5. See id.
6. See Andon v. 302-304 Mott Street Assocs., 709 N.Y.S.2d 873 (New York 2000).
7. See Fed. R. Civ. P. 26; Diane K. Kanca & Howard S. Jacobowitz, "The Right to Conduct Expert Depositions," 40 NYLJ, Aug. 27, 2012 at 4; Commercial & Federal Litigation Section, "A Proposal for Enhanced Expert Disclosure in The New York State Commercial Division" (Nov. 12, 2012, 11:11 AM), http://www.nysba.org/AM/Template.cfm?Section=Commercial_and_Federal_Litigation_Home&Template=/CustomSource/SectionHome.cfm&Sec=FED.
8. Gagliardotto v. Huntington Hosp., 25 A.D.3d 758, 759 (1st Dept. 1994).