STATE OF NEW YORK
       ________________________________________________________________________
 
                                         3483
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    March 13, 2001
                                      ___________
 
       Introduced by Sen. VOLKER -- (at request of the Judiciary) -- 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 broad-
         ening expert disclosure in commercial cases
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  Subparagraph  (iii)  of paragraph 1 of subdivision (d) of
    2  section 3101 of the civil practice law and rules, as amended by  chapter
    3  184 of the laws of 1988, is amended to read as follows:
    4    (iii)  (A) Further disclosure concerning the expected testimony of any
    5  expert may be obtained only by court order upon  a  showing  of  special
    6  circumstances   and  subject  to  such  restrictions  as  to  scope  and
    7  provisions concerning fees and expenses as the court may deem  appropri-
    8  ate.  However, a party, without court order, may take the testimony of a
    9  person authorized to practice medicine, dentistry or podiatry who is the
   10  party's treating or retained expert, as described in paragraph three  of
   11  subdivision (a) of this section, in which event any other party shall be
   12  entitled  to the full disclosure authorized by this article with respect
   13  to that expert without court order.
   14    (B) Notwithstanding any other  provisions  of  this  section,  in  any
   15  commercial  action  in  which  the  amount in controversy appears to the
   16  court to be two hundred fifty thousand dollars or more, the court, with-
   17  out requiring a showing of special circumstances but upon a  showing  by
   18  any party that the need outweighs the resulting expense and delay to any
   19  party  may  authorize  such further disclosure of an expert, including a
   20  deposition, subject to such restrictions  as  to  scope  and  provisions
   21  concerning  fees  and expenses as the court may deem appropriate. Unless
   22  the court finds it would  be  unreasonable  in  the  particular  circum-
   23  stances,  it  shall require that the party seeking such a deposition pay
   24  the expert a reasonable fee for such disclosure. Disclosure pursuant  to
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08385-01-1

       S. 3483                             2
 
    1  this clause shall be furnished at such time as the court deems appropri-
    2  ate.  For  purposes  of  this clause, a "commercial action" is an action
    3  alleging breach of contract, breach of fiduciary duty,  or  misrepresen-
    4  tation  or  other  tort, arising out of, or relating to, business trans-
    5  actions or the affairs of business  organizations;  or  involving  other
    6  business  claims determined by the court to be commercial, but shall not
    7  include personal injury, wrongful  death,  matrimonial,  or  foreclosure
    8  actions, or landlord-tenant matters not involving business leases.
    9    § 2. This act shall take effect immediately.

 
BILL NUMBER: S3483
 
SPONSOR: VOLKER

AN ACT to amend the civil practice law and rules, in relation to broad-
ening expert disclosure in commercial cases
 
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.
 
This measure would amend CPLR 3101(d) to make possible more extensive
expert discovery under certain circumstances in a limited class of
cases. The availability of such disclosure would promote fairer and more
efficient preparation and processing of these cases.
 
CPLR 3101(d)(1)(i) provides for the furnishing, upon request of a party,
of a statement regarding an expert whom the adversary intends to call at
trial. Subdivision (d)(1)(iii) authorizes further disclosure concerning
the expected testimony of an expert only by court order "upon a showing
of special circumstances." The courts have interpreted "special circum-
stances" narrowly, confining it to instances in which the critical phys-
ical evidence in a case has been destroyed after its inspection by an
expert for one side but before its inspection by the expert for the
other, and certain other, similarly limited situations. E.g., The Hart-
ford v. Black & Decker, 221 A.D.2d 986, (4th Dept. 1995); Adams Lighting
Corp. v. First Central Ins. Co., 230 A.D.2d 757, (2d Dept. 1996); Rosar-
io v.  General Motors Corp., 148 A.D.2d 108 (1st Dept. 1989).
 
It is the view of our Advisory Committee that, on balance, the current
rules governing expert disclosure work reasonably well in most
instances. In substantial commercial cases, however, they may be unduly
restrictive and prevent full and adequate preparation of the case. The
testimony of an expert about such things as how stock should be valued
or whether the financial analysis of the Board of Directors was sound
under the circumstances often is central in larger commercial cases. By
contrast, in personal injury cases, the existence and extent of physical
injuries are revealed by objective tests and methods, such as x-rays and
ultra-sound, and medical charts exist to provide concrete historical
data, allowing testifying experts to reach determinations of their own
without the imperative of disclosure beyond that provided for in
3101(d)(1)(i). Issues in commercial cases, however, are often more
elusive. Where large sums are at stake, needed further disclosure will
not add a disproportionate expense to the case. Additional disclosure of
experts in these cases, when needed, also will assist parties to prepare
their cases more effectively, thereby making summary judgment motion
practice (which is more common in these cases than in many others), the
preparation for trial and the trial itself, more efficient and cost-ef-
fective. By permitting additional focus upon the merits of the case in
advance of trial, the proposal would also encourage early settlements,
which are less expensive to the parties and the court system than later
ones.
 
Under this measure, subdivision (d)(1)(iii) would be divided into two
subparts. The first subpart (A), would retain the existing provisions of
(d)(1)(iii), which would apply to most cases, including smaller commer-
cial cases. These commercial cases usually are less complex than those
involving larger sums, and more extensive disclosure of experts would be
disproportionately costly. However, in commercial actions1 in which
$250,000 or more is found by the court to be in controversy, the amend-
ment, in the form of a new subpart (B), would authorize the court to
allow further disclosure of experts expected to testify at trial. Under
this measure, the applicant would be obliged to show that the need for
that disclosure outweighs the concomitant expense and delay to any
party. The applicant would be required to demonstrate that traditional
expert discovery as provided for by subdivision (d)(1)(i) would not
suffice. However, the applicant would not have to demonstrate "special
circumstances" as currently construed by the case law, which would
remain the standard for all cases other than this group of commercial
cases. Since the proposal would require the court to weigh the risk that
the proposed disclosure might be unduly expensive or cause unreasonable
delay, the court should normally inquire, if further disclosure is found
necessary, whether a particular form of disclosure would be more appro-
priate, including less expensive and time-consuming, than another.
 
Under this measure, if the court determined that a deposition was in
order, it could set reasonable boundaries on the breadth of the matters
to be inquired into and the length of the deposition. The proposal
provides that unless it is unreasonable, the court shall require that
the inquiring party pay a reasonable fee to the expert in the case of
deposition disclosure, since this seems the fairest approach in most
instances.
 
This measure provides that the further disclosure of experts authorized
by the court shall take place at such time as the court deems appropri-
ate. In contrast with the practice in most personal injury matters,
experts in commercial cases often are retained at an early point. In
larger commercial cases, many of which are litigated in the Commercial
Division around the state, the court is expected to, and does, engage in
extensive supervision of disclosure proceedings and establish a compre-
hensive discovery schedule, which would include an appropriate deadline
for further expert disclosure, if ordered.
 
This measure, which would have no fiscal impact on the State, would take
effect immediately.
 
 
LEGISLATIVE HISTORY:  None. New proposal.
 
{1}"Commercial action" is defined so as to include the most common forms
of such disputes, and a measure of flexibility is provided for. The
definition expressly excludes personal injury, wrongful death, matrimo-
nial and certain other matters, so that there will be no uncertainty
about the reach of the statute.