DRAFT FOR DISCUSSION PURPOSES

LEGISLATIVE REPORT

COMMITTEE ON CIVIL PRACTICE LAW AND RULES

REPORT NO.                                                                                 April 13, 2000

S. 5905                                                                                             By:    Senator DeFrancisco
A.1941                                                                                               By:    M. of A. Winner
                                                                                   Senate Committee:   Codes
                                                                             Assembly Committee:    Codes
                                                                                       Effective Date:     Immediately and shall apply to all rules requiring                                                                                                                     the service of expert responses issued prior to,on                                                                                                                     and after the effective date.

AN ACT to amend the civil practice law and rules in relation to expert testimony

LAW AND SECTION REFERRED TO: CPLR 3101

REPORT PREPARED BY THE COMMITTEE ON CIVIL PRACTICE LAW AND RULES (# );

THIS BILL IS DISAPPROVED

        This bill would create a new subparagraph (iv) to CPLR 3101 (d.) setting a minimum time limit for patties to exchange expert disclosure. The proposal will set specific time periods prior to trial when expert disclosure with respect to experts must be made. The proposed law removes language requiring expect disclosure "upon request" and setting a very minimum time requirement of sixty (60) days prior to trial for the party who has the burden of proof in a claim and thirty (30) clays prior to trial for the opposing party to serve its answering response.

        In addition, the bill adds a new subparagraph (v) excluding treating physicians from the definition of those individuals deemed to be experts and therefore required to provide expert disclosure pursuant to CPLR 3101 (d).

        While the stated purpose of the rule may be to establish a minimum standard for the timely disclosure of expert information, the proposed amendment is likely to have the opposite effect. The committee believes that the adoption of such a proposal will make the 60/30-day exchange the "rule" rather than the exception. Read as a minimum requirement, the proposal will undermine the current rule requiring the exchange of demanded expert disclosure prior to the filing of the note of issue.

        By eliminating the requirement of disclosure upon "request" the likely effect of the proposal will be to limit expert information to the very eve of trial - regardless of the importance or need for earlier expert disclosure in more complex cases. Additionally, more proactive courts, that now require expert disclosure earlier in certain types of cases, may be hamstrung by a new law setting a minimum standard of 60/30 days prior to trial. Such courts may see no alternative but to allow such late disclosure in the absence of any language giving them express power to order earlier disclosure pursuant to the court’s discretion.

        While it appears, that the intent of the proposal was to establish a "deadline" for expert disclosure, the failure to amend the provisions of 3101 (d) (i) would still permit disclosure "on the eve of trial" where (a) the expert is retained "an insufficient period of time before the commencement of trial to give the appropriate notice thereof" and (b) the court does not preclude the party from offering the expert’s proof

        Another of the difficulties with the proposal is that it appears to disregard the current practice in courts in the metropolitan New York area (Greater New York City and Long Island) where a trial date is not fixed by the IAS court, but is determined by the vicissitudes of the courts trial calendar. Members of the committee who have practice law in metropolitan New York can affirm that it is virtually impossible to determine when that 60/30-day period would begin to run.

        The majority of the committee believes that expert disclosure required by the new proposal, for most cases, is too late and that the current state of affairs demands more comprehensive changes, including a requirement that judges address the issue of expert disclosure via a mandatory scheduling order. Furthermore, the proposal opens the possibility that expert disclosure might not be exchanged until after the deadline for making a summary judgment motion has passed, where expert information might be the basis of summary judgment. See CPLR 3212 (a).

        Courts may interpret the change as the legislature s only word on the subject of expert witness disclosure. This is troubling in the face of an acknowledged need for more definitive expert disclosure rules, being called for by members of the bench and bar. Or this proposal to be passed the committee fears that other necessary changes would be held in abeyance until after some indefinite incubation period has elapsed.

        Therefore, at the very least, the committee advocates that any proposal on the issue of expert disclosure should include a provision requiring judges to actively manage their cases, similar to the rules for the handling of matrimonial cases. See "Milonas Rules," 22 NYCRR Sec. 202.19. We also advocate that the following be incorporated into proposed legislation in the future:

1) Either party or the court may request a scheduling conference to address the issue of expert disclosure;

2) At the scheduling conference, the court is to consider other factors to deter mine the timing in scope of expert disclosure (e.g., type of case, nature of injury and damages, judicial economy, the economic demands of expert disclosure and whether post-note of issue disclosure is feasible in a manner that would not impose an unreasonable expense and burden upon the adverse party in preparing for trial.

3) The court may require the exchange of expert information, reports and permit depositions for the purpose of discovering the expert’s opinion and underlying basis of that opinion;

4) If the depositions are permitted, the party requesting the deposition pays for the expert’ s preparation and deposition;

5) If a no scheduling order is entered and expert disclosure has been demanded, parties must exchange expert information by the filing of the note of issue. If no demand has been made expert disclosure must be made no later than sixty (60) days prior to trial by the party prosecuting and thirty (30) days for the defense. Disclosure must contain CPLR 3101 (d) (1) expert information, viz., substance of the opinions or testimony, the expert’s qualifications and a summary of the grounds for the opinion;

6) A party is precluded from offering testimony of any expert not disclosed in compliance with this section or the scheduling order entered by the court pursuant to this section; and

7) For good cause shown a party may apply to the court for relief from the dictates of the expert witness disclosure section.

For the above reasons, this bill is DISAPPROVED

Person who prepared this Report: John J. Jablonski, Esq.

Chair of Committee: Steven M. Critelli, Esq.