Expert Witness and Medical Report Disclosure

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 153-190

CHAPTER 5

Expert Witness and Medical

Report Disclosure

§5:01 New York Trial Notebook 5-2

I. APPLICATION OF EXPERT

WITNESS DISCLOSURE

REQUIREMENTS

§5:01 Disclosure Requirements

Discovery of expert opinion is extremely

limited in New York. On request, each party must

identify its experts and disclose the following:

• The subject matter on which each expert is

expected to testify.

• The substance of the facts and opinions on

which each expert is expected to testify.

Each expert’s qualifications.

• A summary of the grounds for each expert’s

opinion.

[CPLR 3101(d)(1)(i).]

The witness may be barred from testifying if

not properly disclosed. [See §5:50.]

EXCEPTIONS:

• Medical, dental, and podiatric malpractice

cases. In these cases, the names of

medical, dental, and podiatric experts

are not required to be disclosed. [CPLR

3101(d)(1)(i); see §5:60 ff.]

• Late-retained experts. A party is not

precluded from introducing an expert’s

testimony if the party for good cause

retained the expert too close to the

beginning of trial to give appropriate

notice. [CPLR 3101(d)(1)(i); see §5:51.]

§5:02 Not Applicable to Fact

Witnesses

An expert is someone with special knowledge,

skill, experience, training or education in a particular

field whose knowledge is not ordinarily possessed by

the average person. [See Dufel v. Green , 84 NY2d

795, 622 NYS2d 900 (1995) (generally expert should

be permitted to offer an opinion on an issue that

involves professional knowledge or skill not within

the range of ordinary training or intelligence).]

Fact witnesses are not experts and the

disclosure requirements of CPLR 3101(d)(1) are

not applicable to them. For example, a witness

presenting technical information is not necessarily

an expert required to be disclosed under CPLR

3101(d)(1). [Sheppard v. Blitman/Atlas Building

Corp., 288 AD2d 33, 734 NYS2d 1(1st Dept 2001)

(A union witness who testified about the terms

of plaintiff’s pension plan was a fact witness,

not an expert witness, so CPLR 3101(d)(1) was

inapplicable and the trial court properly permitted

the witness to testify); O’Neil v. Klass, 36 AD3d

677, 829 NYS2d 144 (2d Dept 2007) (Appellate

Division held that the plaintiff’s pharmacist was a

fact witness and therefore disclosure requirements

under CPLR 3101(d)(1) were inapplicable).]

§5:03 Not Applicable to Expert

Consultants

An expert who is retained as a consultant to

assist in analyzing or preparing the case is beyond

the scope of the expert disclosure provision; in fact,

such experts are generally seen as an adjunct to the

lawyer’s strategic thought process, thus qualifying

for complete exemption from disclosure under

CPLR 3101(c) (attorney’s work product) and the

“mental impressions” exclusion of CPLR 3101(d)

(2). [Sontariga v. McCann, 161 AD2d 320, 555

NYS2d 309 (1st Dept 1990) (a radiologist retained

merely as a consultant to evaluate the validity of

plaintiff’s allegations and to assist in the preparation

of a defense, and who will not testify at trial is a fact

witness not subject to CPLR 3101(d)(1) disclosure

requirements); McCoy v. State of New York, 52

AD3d 1212, 860 NYS2d 355 (4th Dept 2008) (the

trial court abused its discretion in directing the state

to produce its senior investigator for a deposition,

because the factual information garnered by the

investigator at her visit to the scene of the accident,

made after the filing of the claimant’s notice of

intention to file a claim, constitutes attorney’s

work product); Foley v. West-Herr Ford, Inc., 32

AD3d 1236, 820 NYS2d 913 (4th Dept 2006) (the

trial court did not abuse its discretion in denying

plaintiffs’ motion to compel disclosure of the factual

findings collected by defendants’ experts from the

accident scene, the information constitutes material

prepared in anticipation of litigation).]

§5:04 Not Applicable to Treating

Physicians Who Do Not

Render Opinions

The disclosure requirements of CPLR 3101(d)

(1)(i) apply to physicians who are retained to

give opinions at trial. [Casey v. Tan, 255 AD2d

900, 680 NYS2d 391 (4th Dept 1998).] They

5-3 Expert Witness and Medical Report Disclosure §5:04

do not apply to treating physicians. [Rook v.

60 Key Centre, Inc., 239 AD2d 926, 927, 660

NYS2d 238, 239 (4th Dept 1997).] Thus, a doctor

who testifies only as to his or her own medical

treatment and observations and does not respond

to hyp othetical questions is a fact witness not subject

to CPLR 3101(d). [Beck v. Albany Medical Center

Hospital, 191 AD2d 854, 594 NYS2d 844 (3d Dept

1993).]

CASE EXAMPLES:

• Logan v. Roman, 58 AD3d 810, 872

NYS2d 491 (2d Dept 2009). Held that

plaintiff’s treating physician should have

been allowed to testify at trial since CPLR

3101(d)(1)(i) does not apply to treating

physicians, and that the physician could

testify as to the cause of the plaintiff’s

injuries even if the physician had expressed

no opinion regarding causation in his

previously exchanged medical report.

A treating physician may give expert

opinion testimony and may do so without

prior notice pursuant to CPLR 3101(d).

The Supreme Court did not err in declining

to strike the testimony of the plaintiff’s

treating physician. [See Logan v. Roman,

58 AD3d 810 (2d Dept 2009); Hamer v.

City of New York, 106 AD3d 504, 965

NYS2d 99 (1st Dept 2013); Butler v.

Grimes, 40 AD3d 569, 570 (2d Dept 2007);

Krinsky v. Rachleff, 276 AD2d 748, 750

(2d Dept 2000); Jing Xue Jiang v. Dollar

Rent a Car, Inc., 91 AD3d 603, 604, 938

NYS2d 90 (2d Dept 2012).]

However, compare to Swezey v. Montague

Rehab & Pain Mgmt., P.C., 84 AD3d 779,

780, 921 NYS2d 864 (2d Dept 2011),

leave to appeal denied, 18 NY3d 880, 962

N.E.2d 785 (2012), where the Supreme

Court providently exercised its discretion

in precluding the plaintiff’s treating

physician, her only expert, from testifying

at trial. The plaintiff failed to serve the

physician’s medical report upon the

respondents and did not demonstrate good

cause for the admission of his testimony.

[See 22 NYCRR 202.17(g), (h).]

• Krinsky v. Rachleff, 276 AD2d 748, 715

NYS2d 712 (2d Dept 2000). It was error to

preclude defense witness who was plaintiff’s

pulmonologist from testifying whether

foreign matter he observed in plaintiff’s

lung was a piece of an endotracheal tube.

In addition to testifying as to his or her

own opinion, a treating physician may give

expert testimony without prior notice. [See

also Grisanti v. Kurss, 28 Misc3d 1233(A),

2010 Westlaw 3516694 (Sup Ct Erie

County 2010) for an interesting discussion

of treating versus expert physicians.]

• Overeem v. Neuhoff, 254 AD2d 398,

679 NYS2d 74 (2d Dept 1998). Medical

malpractice case where court allowed

testimony of treating physician who

supplied report under 22 NYCRR §202.17

in absence of CPLR §3101(d) exchange.

• Stark v. Semeran, 665 NYS2d 233, 244

AD2d 894 (4th Dept 1997) Preclusion of

treating physician’s testimony in absence

of 3101 (d) disclosure was reversible error.

• Beck v. Albany Medical Center Hospital,

191 AD2d 854, 594 NYS2d 844 (3d Dept

1993). No error to allow defendant to

call a doctor not identified pursuant to

CPLR 3101(d), when the doctor was one

of plaintiff’s treating physicians under

subpoena from plaintiff to appear at trial

and one of his reports had been used at trial

by plaintiff, so plaintiff was not surprised

by the content of his testimony. Also, the

doctor did not give a responsive answer

to a hypothetical question, but merely

testified to his own medical treatment and

observations, so CPLR 3101(d) was not

applicable in these circumstances.

• Lombardo v. Ranger Leasing Corp, NYLJ

6/8/99, p. 29 col. 2 (Civ Ct Bronx County

1999). In a personal injury action, the

treating physician could testify to the

cause of plaintiff’s injuries although not

exchanged as a CPLR §3101(d) witness

and the treating physician’s report did not

deal with causation.

Disclosure with respect to treating physicians

is governed by CPLR 3121 and 22 NYCRR

§202.17, not CPLR 3101(d). [McGee v. Family

Care Services, 246 AD2d 308, 666 NYS2d 415

(1st Dept 1998). See §5:80 ff.]