STATE OF NEW YORK
       ________________________________________________________________________
 
                                         4375
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                    April 11, 2001
                                      ___________
 
       Introduced  by  Sen.  SALAND -- 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  expert
         witness disclosure and the definition of the term "expert witness"
 
         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) Except as otherwise provided in this paragraph, the party who has
    5  the burden of proof on a claim, cause of action, damage or defense shall
    6  serve  its  response  to  an  expert witness disclosure request, made as
    7  provided in this paragraph, on or before sixty days preceding  the  date
    8  that  the  trial  is scheduled to commence. Thirty days after receipt of
    9  that response, any opposing party shall  serve  its  answering  response
   10  pursuant  to  this paragraph. Any amended or supplemental expert witness
   11  disclosure shall be allowed only with the permission of all  counsel  or
   12  the  court.  Unless  the  court  orders  otherwise, a party who fails to
   13  comply with the provisions of this subparagraph is precluded from offer-
   14  ing the testimony and opinions of the expert witness for whom  a  timely
   15  response has not been given.
   16    (v)  For  the  purposes  of  this paragraph, the term "expert witness"
   17  shall include any person who will testify concerning his or  her  quali-
   18  fications and give opinions concerning the issues in the case that could
   19  not  be  given  by a layperson. However, the term "expert witness" shall
   20  not include a treating physician or other treating health care  provider
   21  whose record or records and report or reports have been timely provided.
   22    § 2. This act shall take effect on the first day of the calendar month
   23  next  succeeding  the  sixtieth day after it shall have become a law and
   24  shall apply to all cases in which a note of issue  is  filed  after  the
   25  effective  date  of  this  act  and  shall supersede all rules or orders
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01651-01-1

       S. 4375                             2
 
    1  requiring the service of potential expert witness responses  on  a  date
    2  further before trial than is set forth herein.

 
BILL NUMBER: S4375              Revised
 
SPONSOR: SALAND

 
TITLE OF BILL:  An act to amend the civil practice law and rules, in
relation to expert witness disclosure and the definition of the term
"expert witness"
 
 
PURPOSE:  This bill would statutorily establish the time periods for
responses to an expert witness disclosure Demand, subject to the penalty
of preclusion.
 
 
SUMMARY OF PROVISIONS:  Section 1 amends section 3101 of the Civil
Practice Law and Rules to add 2 new subparagraphs, (iv) and (v) to para-
graph 1 of subdivision (d).
 
Subparagraph (iv) provides that the party who has the burden of proof on
a claim, cause of action, damage or defense shall serve its response to
an expert witness disclosure request, on or before 60 days preceding the
scheduled start date of the trial. 30 days after receiving that
response, any opposing party would be required to serve its answering
response.
 
Subparagraph (v) defines "expert witness."
 
 
JUSTIFICATION:  In civil litigation, when expert witnesses are
retained, it is general practice for the party retaining the experts to
notify the other party within 30 days of the trial. This bill would
codify the practice of expert witness disclosure, establishing clear
timetables for when expert witnesses must be disclosed before a trial.
Beyond those timetables, any additional expert witnesses, would only be
allowed with the permission of all counsel or the court.
 
 
LEGISLATIVE HISTORY:  2000 - S.2638 -Referred to Senate Codes Commit-
tee A.9206 - Assembly Codes Committee
 
 
FISCAL IMPLICATIONS:  None
 
 
LOCAL FISCAL IMPLICATIONS:  None
 
 
EFFECTIVE DATE:  This act shall take effect on the first day of the
calendar month next succeeding the sixtieth day after it shall have
become a law and shall apply to all cases in which a note of issue is
filed after the effective date of this act