STATE OF NEW YORK
       ________________________________________________________________________
 
                                         1067
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   January 16, 2001
                                      ___________
 
       Introduced  by Sens. DeFRANCISCO, McGEE, MEIER -- read twice and ordered
         printed, and when printed to be committed to the Committee on Codes
 
       AN ACT to amend the civil practice law and rules,  in  relation  to  the
         scope  of  disclosure  in  certain instances; in relation to mandatory
         filing and preliminary conferences in all actions; in relation to  the
         presence  of the judge at the examination of jurors and in relation to
         jury selection and instructions
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section 1. Paragraph 1 of subdivision (d) of section 3101 of the civil
    2  practice  law  and rules is amended by adding two new subparagraphs (iv)
    3  and (v) to read as follows:
    4    (iv) The party who has the burden  of  proof  on  a  claim,  cause  of
    5  action,  damage  or defense shall serve its response to an expert demand
    6  served pursuant to this subdivision on or before sixty days  before  the
    7  date  on  which  the  trial is scheduled to commence. Within thirty days
    8  after service of such response,  any  opposing  party  shall  serve  its
    9  answering  response  pursuant  to  this subdivision. Within fifteen days
   10  after service of such response any party may serve an amended or supple-
   11  mental response limited to issues raised in the answering response.  Any
   12  further  amended or supplemental expert disclosure shall be allowed only
   13  with the permission of all counsel or the court. Unless the court orders
   14  otherwise, a party who fails to comply with this subparagraph  shall  be
   15  precluded  from  offering  the  testimony and opinions of the expert for
   16  whom a timely response has not been given.
   17    (v) The term "expert" shall include any person who will  testify  with
   18  respect  to  his or her qualifications and give opinions relating to the
   19  issues in the case which could not be given by a layperson. However, the
   20  term "expert" shall not include a treating physician or  other  treating
   21  health  care  provider  whose  records  and  reports  have  been  timely
   22  provided.
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD00900-01-1

       S. 1067                             2
 
    1    § 2. Rule 3406 of the civil practice law and rules, as added by  chap-
    2  ter  294 of the laws of 1985, the rule heading as amended by chapter 184
    3  of the laws of 1988, subdivision (a) as amended by chapter  485  of  the
    4  laws  of  1986 and subdivision (b) as amended by chapter 165 of the laws
    5  of 1991, is amended to read as follows:
    6    Rule  3406. Mandatory filing and [pre-calendar] preliminary conference
    7  in [dental, podiatric and medical malpractice] all actions. (a) Mandato-
    8  ry filing. Not more than sixty days after issue is joined, the plaintiff
    9  in an action [to recover damages for dental, medical or podiatric  malp-
   10  ractice]  shall  file with the clerk of the court in which the action is
   11  commenced  a  notice  of  [dental,  medical  or  podiatric  malpractice]
   12  commencement  of action, on a form to be specified by the chief adminis-
   13  trator of the courts. Together with such  notice,  the  plaintiff  shall
   14  file:  (i) proof of service of such notice upon all other parties to the
   15  action; (ii) proof that, if demanded, authorizations to obtain  medical,
   16  dental, podiatric and hospital records have been served upon the defend-
   17  ants in the action; and (iii) such other papers as may be required to be
   18  filed  by  rule  of  the chief administrator of the courts. The time for
   19  filing a notice of [dental, medical or podiatric malpractice]  commence-
   20  ment  of  action  may  be  extended by the court only upon a motion made
   21  pursuant to section two thousand four of this chapter.
   22    (b) [Pre-calendar] Preliminary conference. The chief administrator  of
   23  the  courts,  in accordance with such standards and administrative poli-
   24  cies as may be promulgated pursuant to section twenty-eight  of  article
   25  six of the constitution, shall adopt [special calendar control] prelimi-
   26  nary conference rules for actions [to recover damages for dental, podia-
   27  tric or medical malpractice] in which a notice of commencement of action
   28  has  been filed.   Such rules shall require a [pre-calendar] preliminary
   29  conference be conducted in such an action within  forty-five  days  from
   30  the  date  when the notice of commencement of action has been filed, the
   31  purpose of which shall include,  but  not  be  limited  to,  encouraging
   32  settlement,  simplifying or limiting issues and establishing a timetable
   33  for disclosure, establishing a  timetable  for  offers  and  depositions
   34  pursuant  to  subparagraph  (ii)  of paragraph one of subdivision (d) of
   35  section thirty-one hundred one of this chapter, future conferences,  and
   36  trial.  The timetable for disclosure shall provide for the completion of
   37  disclosure not later than twelve months after  the  notice  of  [dental,
   38  podiatric  or  medical  malpractice] commencement of action is filed and
   39  shall require that all parties be ready for the trial of  the  case  not
   40  later  than eighteen months after such notice is filed.  A timetable for
   41  disclosure and trial shall be extended once, for a period of six months,
   42  upon written consent of all of the parties and may otherwise be extended
   43  by the court, upon application of a party, for such  period  as  may  be
   44  reasonable.  The  initial [pre-calendar] preliminary conference shall be
   45  held after issue is joined in a case but  before  a  note  of  issue  is
   46  filed.  To the extent feasible, the justice convening the [pre-calendar]
   47  preliminary conference shall hear and decide  all  subsequent  pre-trial
   48  motions  in  the  case  and shall be assigned the trial of the case. The
   49  chief administrator of the courts also shall provide for the  imposition
   50  of  costs  or other sanctions, including imposition of reasonable attor-
   51  ney's fees, dismissal of an action, claim, cross-claim, counterclaim  or
   52  defense,  or rendering a judgment by default for failure of a party or a
   53  party's attorney to comply with these [special calendar control] prelim-
   54  inary conference  rules  or  any  order  of  a  court  made  thereunder,
   55  provided,  however, that the imposition of such costs or other sanctions
   56  shall only be allowed upon a motion made by a party to the action.  [The

       S. 1067                             3
 
    1  chief administrator of the courts, in the exercise  of  discretion,  may
    2  provide  for exemption from the requirement of a pre-calendar conference
    3  in any judicial district or a county where there exists no  demonstrated
    4  need for such conferences.]
    5    (c)  Notwithstanding the provisions of subdivision (b) of rule thirty-
    6  two hundred fourteen of this chapter,  the  service  or  pendency  of  a
    7  motion  under  rule thirty-two hundred eleven, thirty-two hundred twelve
    8  or section thirty-two hundred thirteen of this chapter  shall  not  stay
    9  disclosure  in  an  action where a preliminary conference order has been
   10  entered pursuant to this rule, except upon the consent in writing of all
   11  of the parties.
   12    § 3. Rule 4107 of the civil practice law  and  rules,  as  amended  by
   13  judicial  conference   number 7 for the year 1964, is amended to read as
   14  follows:
   15    Rule 4107. Judge present at examination of jurors. On  application  of
   16  any  party,  a judge or judicial hearing officer shall be present at the
   17  examination of the jurors.   If no application is made  by  a  party,  a
   18  judge  or  judicial hearing officer shall not be present at the examina-
   19  tion of the jurors.
   20    § 4. The civil practice law and rules  is  amended  by  adding  a  new
   21  section 4104-a to read as follows:
   22    §  4104-a.  Procedures  for  jury  selection.    (a)  Method  of  jury
   23  selection. The trial  judge  shall  direct  that  counsel  shall  select
   24  prospective  jurors  in  accordance  with either "White's method" or the
   25  "Struck method".
   26    (b) Time limitations. The trial judge shall establish time limitations
   27  for the questioning of prospective jurors during  the  voir  dire.  Such
   28  time limitations shall not be less than a combined total of two hours of
   29  questioning  for the plaintiff or plaintiffs and a combined total of two
   30  hours of questioning for the defendant or defendants and any third-party
   31  defendant or third-party defendants. In a medical malpractice,  products
   32  liability or other complex case, such time limitations shall not be less
   33  than a combined total of three hours of questioning for the plaintiff or
   34  plaintiffs  and  a  combined total of three hours of questioning for the
   35  defendant or defendants and any  third-party  defendant  or  third-party
   36  defendants.  Whenever the court, in its discretion grants time in excess
   37  of the minimum time limitations to one side, it  shall  grant  an  addi-
   38  tional amount of time to the other side.
   39    §  5.  Section 4110-b of the civil practice law and rules, as added by
   40  chapter 233 of the laws of 1973, is amended to read as follows:
   41    § 4110-b. Instructions to jury; objection.  (a) At the  close  of  the
   42  evidence  or  at such earlier time during the trial as the court reason-
   43  ably directs, any  party  may  file  written  requests  that  the  court
   44  instruct  the  jury  on the law as set forth in the requests. The court,
   45  out of the hearing of the jury, shall inform  counsel  of  its  proposed
   46  action  upon  the requests prior to their arguments to the jury, but the
   47  court shall instruct the jury after the arguments  are  completed.    No
   48  party  may assign as error the giving or the failure to give an instruc-
   49  tion unless he objects thereto before the jury retires to  consider  its
   50  verdict  stating  the  matter to which he objects and the grounds of his
   51  objection.  Opportunity shall be given to make the objection out of  the
   52  hearing of the jury.
   53    (b)  All  instructions  given to the jury shall be given orally by the
   54  court, unless otherwise agreed to by all of the parties. The jury  shall
   55  be  furnished  with written copies of the court's instructions only upon
   56  consent of all of the parties.

       S. 1067                             4
 
    1    (c) The jury shall be permitted to take notes  during  trial  and  use
    2  them  during deliberations, with appropriate instructions, only upon the
    3  consent of all parties. If all parties do not consent, the  court  shall
    4  instruct  jurors at the beginning of the trial that they are not permit-
    5  ted  to  take  notes  during  the trial or to use any notes made by them
    6  during deliberations.
    7    (d) In  complex  cases,  notebooks  containing  exhibits  admitted  in
    8  evidence  and not subject to dispute may be distributed to the jury only
    9  upon the consent of all parties.
   10    § 6. This act shall take effect immediately and  shall  apply  to  all
   11  rules  or  orders requiring the service of expert responses issued prior
   12  to, on and after the effective date of this act.

 
BILL NUMBER: S1067
 
SPONSOR: DEFRANCISCO

 
TITLE:
 
AN ACT to amend the civil practice law and rules, in relation to the
scope of disclosure in certain instances; in relation to mandatory
filing and preliminary conferences in all actions; in relation to the
presence of a judge at the examination of jurors and in relation to jury
selection and instructions
 
 
PURPOSE:
 
To establish uniform provisions relating to procedures in civil cases.
 
 
SUMMARY OF PROVISIONS:
 
This legislation would:
 
* Amend § 3101 (d) of the CPLR to establish uniform provisions relating
to the timing of disclosure of expert witnesses;
 
* Amend CPLR Rule 3406 to provide uniform rules for early pie-calendar
conferences in all civil cases, a reasonable timetable for disclosure in
all civil cases, and abolishes automatic stays of disclosure under
certain circumstances;
 
* Amend CPLR Rule 4107 by creating uniform rules relating to when a
judge or a judicial hearing officer is to be present during examination
of jurors;
 
* Create a new CPLR § 4104-a to provide uniform procedures to be used
for jury selection and requiring trial judges to establish time limita-
tions for the questioning of prospective jurors; and
 
* Amend the CPLR to provide uniform procedures for giving instructions
to a jury and uniform procedures allowing for jurors to take notes and
be provided with notebooks containing exhibits.
 
 
JUSTIFICATION:
 
A fair and efficient civil justice system requires the establishment of
clear and uniform rules and procedures. Such rules and procedures must
acknowledge and balance the right of society to have a justice system
that is available to promptly resolve disputes with the rights of the
litigants in that system to have their disputes resolved in a manner
that they perceive to be just and appropriate.
 
§ 3101(d) provides for the disclosure, in preparation for trial, of
certain information regarding experts. The section is currently silent
regarding the timing of such disclosure. Since the adoption of this
subdivision, an informal rule has evolved through case law that such
disclosure is to be made at least thirty days before trial. In addition,
individual judges established, either informally or formally, their own
rules relating to the timing of expert disclosure. One judicial district
has established a district-wide rule. The result has been a patchwork of
formal and informal rules that provide no uniformity or certainty.
Retaining experts to testify at trial can involve significant expense
for the parties. It is generally in the best interest of all parties
that they have the maximum amount of time to settle their differences
before they are compelled to retain experts to testify. The amendment of
§ 3101(d) addresses all of those issues and creates clarity, certainty
and uniformity with respect to the disclosure of expert witnesses.
 
CPLR Rule 3406 currently provides for mandatory pre-calendar conferences
in malpractice actions. The amendment provides for expansion of the rule
to require preliminary conferences in all civil cases. It requires that
a notice of commencement of action be filed within sixty (60) days of
issue being joined and that a preliminary conference be held within
forty-five (45) days from that date. The purpose of the preliminary
conference includes encouraging settlement, limiting or simplifying
issues and establishing a timetable for disclosure and trial. The time-
table for disclosure shall not be later than twelve months from the date
the notice of commencement was filed and the trial shall be conducted
within eighteen months of that date.
 
Recognizing that there are situations where the parties may agree that
the interest of justice will best be served by extending discovery, the
amendment provides for a single six-month extension, upon consent of all
parties. In further recognition that in some circumstances, by imposing
otherwise appropriate sanctions some judges can inadvertently make it
more difficult for the parties to resolve their underlying dispute, the
amendment provides that sanctions shall only be imposed upon the motion
of a party to the action. To prevent unnecessary delay resulting from
certain motion practice, the amendment adopts the language contained in
CPLR Rule 3407 (3) but adds a provision recognizing that in those situ-
ations when all of the parties agree that a stay of disclosure is appro-
priate a stay shall be granted. That situation most often arises when
all parties recognize that determination of the pending motion will
significantly limit, or eliminate, the need for disclosure.  The amend-
ment of Rule 4107 to include judicial hearing officers recognizes that,
in many counties, judicial hearing officers now perform duties that were
once performed only by judges. The amendment further recognizes that,
unless at least one party to the action believes there is an actual need
to have a judge or judicial hearing officer present, it is a waste of
valuable judicial resources to have such an individual present to watch
lawyers examine a jury.
 
CPLR § 4104 established specific procedures for jury selection in civil
litigation. However, no specific method of jury selection has ever been
established by law. As a result, many different methods of jury
selection have evolved through the years. Each of those methods spawned
unique local variations. While various jury projects and bar association
suggestions have attempted to limit the variety of choices, this bill
recognizes the need to specifically limit the method of jury selection
to the two methods that are in general use by most courts throughout the
state. This provision creates clarity, uniformity and certainty for all
parties. The provision relating to the time limitations for the ques-
tioning of jurors strikes a balance between unrestricted questioning,
which on occasion has been abused, and excessively stringent
restrictions on this important aspect of civil trials. The section
requires that the trial judge set time limitations for the questioning
of jurors in all cases. It further establishes minimum time limitations
of two hours per side for most cases and three hours per side for more
complex cases. The court retains the discretion to grant additional
time, but when the court does so it must grant equal additional time to
each side.
The amendment to CPLR § 4110-b recognizes that written instruction by
the court, note-taking by jurors and distribution of exhibit notebooks
to jurors may be appropriate in some cases. However, the use of these
devices should be limited to those instances when all of the parties
agree that it is appropriate. If there is agreement before jury
selection, it enables the parties to select jurors who have the skills
necessary to effectively utilize these tools.  Conversely, the parties
may choose to wait until after jury selection has been completed to
decide whether they agree that all members of the jury that has been
sworn would benefit equally from the use of one or more of the devices.
 
 
LEGISLATIVE HISTORY:
 
S.5905 of 1999-2000.
 
 
FISCAL IMPLICATIONS:
 
None.
 
 
EFFECTIVE DATE:
 
Immediately.