Noor v. The City of New York, et al., __ A.D.3d __ (1st Dep’t July 28, 2015)

Plaintiff’s expert withheld voluminous documents until his appearance at trial, and the Appellate Division therefore vacated the damage award and remanded for a new trial on damages.

Prior to trial, defendants had served plaintiff’s medical expert with a subpoena duces tecum demanding the production of office notes, reports, tests, test results, diagnostic tests, documents and medical records. The doctor’s disclosures came with a certification that he had produced all the documents described in the subpoena.

A bifurcated trial on plaintiff’s Labor Law claims proceeded to the damages phase, and the doctor appeared, with voluminous records in tow, much of which had never been disclosed. Counsel objected that this obvious withholding of records prejudiced defendants’ ability to challenge the doctor’s testimony. The court allowed 10 minutes for defendants to review the additional documents, admitted all but a set of handwritten notes, and permitted defendants to cross-examine the doctor about the discrepancy. The jury was instructed to draw any inference from the fact that information in the records was not submitted into court, including an inference of bias or willingness not to divulge all of the information to defense counsel.

The Appellate Division held unanimously that, “[t]he withholding of undisputedly relevant documents requested by defendants’ subpoena deprived defendants of their right to a fair trial.” The error diminished the defendants’ ability to impeach the doctor “whose credibility was central to the case.”

Abrams Gorelick partner Steven DiSiervi briefed and argued the appeal.