September 21, 2011 Posted By Jenna E. Elkind Trial Practice
CPLR §3101(d) lays out the rule for expert witness disclosure and states that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on the grounds of noncompliance with” §3101(d)(1)(i). Because CPLR §3101(d) fails to provide a time frame for expert disclosure, courts look to the facts of each case to determine whether the disclosure complies with the CPLR. The only guidance given in the CPLR is that parties should give “appropriate” notice of their expert, but that failure to do so does not have to mean preclusion of the expert if “good cause” for the late notice is shown.
Many courts use a thirty-day rule and hold that an expert must be disclosed at least thirty days prior to trial to be admissible. However, this is not a firm “rule” supported by appellate authority.
Most departments hold that a failure to disclose must be intentional or willful and that prejudice to the opposing party must be shown to warrant preclusion. Typically, if the disclosing party made a reasonable attempt to comply with the statute, the expert will be allowed. See Silverberg v. Community Gen. Hosp. of Sullivan Cty., 290 A.D.2d 788 (3d Dept 2002); Shopsin v. Siben & Siben, 289 A.D.2d 220 (2d Dept 2001); Young v. Long Island Univ., 297 A.D.2d 320 (2d Dept 2002).
Instead of precluding an expert, the Court will more readily grant an adjournment to enable the opposing party to retain their own expert. The First Department has held that the preclusion of an expert was an improvident exercise of discretion by the trial court where the failure to timely disclose was neither willful nor prejudicial, and where any disadvantage to the opposing party could have been remedied by an adjournment. Gallo v. Linkow, 255 A.D.2d 113 (1st Dept 1998).
Notwithstanding the above, it is important to be aware that the Third Judicial District mandates disclosure of party experts by the filing of the Note of Issue, with rebuttal experts to be exchanged thirty days thereafter. However, the Third Department has consistently recognized the trial court’s power to excuse non-compliance with this rule. See Gushlaw v. Roll, 290 A.D.2d 667 (3d Dept 2002).
One very important exception to the laxity of the courts in interpreting CPLR 3101(d) is the Second Department’s preclusion of experts offered in opposition to summary judgment motions where the experts were not exchanged prior to the filing of the Note of Issue. The Second Department has consistently held that it is a proper exercise of the trial court’s discretion to bar expert affidavits submitted for the first time in opposition to a summary judgment motion. See Construction by Singletree, Inc. v. J.C. Construction Mgmt. Corp., 55 A.D.3d 861 (2d Dept 2008).
In sum, as long as the party purporting to disclose an expert close to the start of trial shows good cause and lack of prejudice to the opposing party, courts will usually allow the expert testimony, with the notable exception of experts disclosed solely to oppose a summary judgment motion in the Second Department.