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Court of Appeals rules on timeliness of objection to CPLR 3101(d) expert disclosure

By Leonard G. Kamlet, Esq. and Thomas R. Maeglin, Esq.

The expert disclosure rules set forth in CPLR 3101(d) have long been an area of confusion and disagreement. Over the past several years the lack of complete clarity of this most important practice rule has spawned a spate of cases concerning the timing of disclosure. Now, the Court of Appeals has weighed in on the important question of if, and when, objection to an inadequate disclosure is required.

In Rivera v. Montefiore Medical Center, 2016 N.Y. Slip Op. 06854 (October 20, 2016), the Court provided some guideposts for cautious practitioners, but nevertheless made it clear that trial courts have discretion when ruling upon motions to preclude expert witnesses premised on the claimed inadequate or incomplete disclosure. As such, whether to object, when to object, whether to supplement disclosure in order to cure an objection, and when to cure, remain judgments with no hard and fast rules to reference.

Rivera was a medical malpractice case arising out of the death of plaintiff's son who had been admitted to defendant's hospital for symptoms of pneumonia and treated in an area of the hospital which did not have continuous monitoring of patients' vital signs. He died the next morning after admission.

During the trial, a contested issue developed as to whether the cause of death was broncho-pneumonia complicated by diabetes, as the autopsy report concluded, or sudden, lethal cardiac arrhythmia as suggested, over objection, by the defense expert. The hospital treating physician testified that decedent's death was caused, in part, by pneumonia, but on cross examination he instead testified it was the result of acute cardiac arrhythmia. Plaintiff's expert also conceded on cross examination that a cardiac event was a possible cause of death.

Plaintiff then moved to preclude defendant's expert from testifying about possible causes of death on the ground that defendant's CPLR 3101(d) disclosure provided no detail as to any possible cause. The trial court denied plaintiff's application as untimely. Defendant's expert testified that the cause of death was sudden, lethal cardiac arrhythmia.

The jury found the hospital liable for failing to admit decedent to an area with continuous monitoring. The jury's damages award did not include an award for conscious pain and suffering. The trial court denied plaintiff's post-trial motion to set aside the $0 award for conscious pain and suffering and the Appellate Division, First Department affirmed.

Defendant's pre-trial expert disclosure stated that the expert would testify "on the issue of causation" and "possible causes of plaintiff's injuries and contributing factors." Before trial, plaintiff had objected that the disclosure did not provide sufficiently detailed credentials. No other objection was lodged. Plaintiff cured the objection before trial.

The Court of Appeals affirmed and determined that it was not an abuse of discretion, as a matter of law, for the trial court to have denied plaintiff's preclusion motion as untimely. Finding this situation dissimilar to those in which a disclosure is misleading, the Court rejected plaintiff's argument that at the time of the disclosure she had no reason to believe plaintiff's cause of death theory would be challenged at trial. Rather, the Court ruled that the disclosure's deficiency as to "causation" was "readily apparent." Under the circumstances, it was incumbent upon plaintiff to raise the objection which then would have given defendant the opportunity to cure the deficiency before trial.

The Rivera decision should prompt trial attorneys to re-examine their customary practices regarding expert disclosures. On the one hand, the trial judge is empowered to exercise discretion in making these kinds of rulings at trial, so the sufficiency of each disclosure, and the issues relating to them raised at trial, will always be decided on the particular facts. Prudence has always dictated when drafting CPLR 3101(d) expert disclosures, that a sensible balance be drawn between providing every detail that might be contained in a written report and just adequately summarizing anticipated testimony to place the opposing party on notice. On the other hand, Rivera suggests that, prior to trial, when served with a disclosure, attorneys must give even more careful thought to whether, and to what extent, an objection should be made. This can involve a host of competing considerations, including whether the objection will "educate" opposing counsel who may then use the objection to identify and fix weaknesses in the case. The potential consequences of not objecting, however, loom large.

For those trial lawyers who have in the past successfully precluded opposing expert testimony by making a first time objection at trial, based on patently insufficient expert disclosure, those days are now clearly gone. Even though CPLR 3101(d) does not specifically speak to this issue, the Court of Appeals has now spoken.

Finally, there may be a safety valve available at trial when a party has failed to object timely to disclosures. The Court of Appeals specifically noted that the plaintiff did not seek an adjournment when faced with surprising causation testimony. While the Court did not comment further, it seemed to suggest that the way plaintiff's counsel proceeded in this case left the trial court without alternatives. Implicitly perhaps, the Court is signaling that an adjournment application could possibly provide a trial court with a discretionary basis to satisfy both sides despite untimely objection.