New York Court Of Appeals Affirms Appellate Division Finding That Challenge To The Sufficiency Of Expert Disclosure Must Be Timely

Most litigators have experienced frustration and confusion after receiving an insufficient or vague expert disclosure from opposing counsel. This type of disclosure will typically identify the expert being disclosed, but provide no meaningful insight into the expert's expected testimony or opinions. Recently, the Court of Appeals held that any challenge to the sufficiency of expert disclosure must be timely made in advance of trial. Rivera v Montefiore Med. Ctr., 2016 NY Slip Op 06854 (2016).

In Rivera, a medical malpractice action, the trial court denied as untimely, a plaintiff's motion – made during the trial – to preclude the defendant's expert on the grounds that its disclosure was deficient. The decedent had entered the defendant's hospital with symptoms of pneumonia, and died early the following morning after being admitted to an area lacking continuous monitoring of vital signs. An autopsy identified the cause of death as bronchopneumonia complicated by diabetes. In preparation for trial, defendant timely served an expert disclosure pursuant to CPLR 3101 (d), which stated that its expert's testimony would be limited to "the issue of causation" and "the possible causes of the decedent's injuries and contributing factors." Plaintiff made no pre-trial objections to the defendant's expert disclosure.

At trial, the treating physician testified that decedent's death was caused, in part, by pneumonia, but acknowledged during cross-examination that the decedent instead died from acute cardiac arrhythmia. Plaintiff's expert likewise testified that pneumonia may have been a contributing factor in decedent's death, but that a cardiac event was also a possible cause. Plaintiff then moved to preclude defendant's expert from giving "any testimony... regarding any possible causes of the decedent's death" on grounds that the disclosure statement "did not include any reasonable detail whatsoever as to what possible causes" led to decedent's death. The trial court denied the motion as untimely. Accordingly, defendant's expert was permitted to testify, contrary to plaintiff's expert and the autopsy results, that the cause of death was sudden and lethal cardiac arrhythmia.

The jury found defendant liable but did not make an award for conscious pain and suffering, so Plaintiff moved, post-trial, for an order setting aside the $0 award for conscious pain and suffering and striking all testimony regarding cardiac arrhythmia as the cause of death. More specifically, plaintiff asserted that the expert disclosure was deficient as it failed to include the theory that decedent died of cardiac arrhythmia. The trial court again denied the motion as "untimely made at the time of trial." The Appellate Division affirmed, holding that plaintiff failed to timely object to the lack of specificity and noted that plaintiff's own experts had acknowledged that sudden cardiac arrhythmia was a possible cause of death. Therefore, such testimony would not come as an unfair surprise to plaintiff.

CPLR 3101 (d) (1) (i) requires each party to "[to] disclose in reasonable detail the subject matter on which each expert is expected to testify." In this regard, the Court of Appeals held that any deficiency in defendant's disclosure was readily apparent because the disclosure only identified "causation" as a subject matter, and did not provide the slightest scintilla of a theory or basis for the expert's opinion. The Court held that in such cases (i.e., when the insufficiency of the disclosure is readily apparent), the party seeking to preclude the expert must do so in advance of trial.

Rivera is important because it reflects a growing trend to resolve issues concerning expert disclosure early on so as to eliminate unfair surprise to the parties as well as any disruption of the trial proceedings. It is important to note that several Judicial Districts already have rules in place to address these issues. For example, in the Third Judicial District, "any motion made by a party to preclude, or limit expert testimony"¦must be made as soon as practicable, but no later than forty-five (45) days after the parties receipt of the expert disclosure or the motion will be waived." Thus, it is incumbent upon counsel to timely object to an insufficient or vague expert disclosure.