Motion to Amend or Supplement Expert Witness Disclosure in New York

What Is a Motion to Amend or Supplement Expert Witness Disclosure?

Background

CPLR § 3101(d)(1)(i) requires that a party identify the expert witness being called and provide in reasonable detail the subject matter the expert is expected to testify about, the expert's qualifications, and a summary of the grounds for the expert's opinion. (See McKinney's Consolidated Laws of New York Annotated CPLR § 3101(d)(1)(i), Public Adm'r of Bronx County v. 485 -188 Street Realty Corp. (2014) 116 A.D. 3d 1 citing to Martin v. Triborough Bridge and Tunnel Authority (2010) 73 A.D. 3d 481.)

CPLR § 3101(d)(1)(i) does not have a specific time frame for the exchange of expert testimony and preclusion can be avoided by a showing of “good cause” for the delay, that the noncompliance was not willful, and that the other party being served with the report would not be prejudiced. “Prejudice is shown where the expert is testifying as to new theories, or where the opposing party has no time to prepare a rebuttal.” (Haynes v. City of New York, 145 A.D. 3d 603, 45 N.Y.S. 3d 387 [1 Dept. 2010].)

How to Structure the Motion

A party may serve an “Amended Expert Witness Disclosure Pursuant to CPLR 3101(d).” (See, Alleyne v. A.O. Smith Water Prods. Co. (In re N.Y.C. Asbestos Litig.) (2019) N.Y. Slip Op. 31608.)

CPLR 3101(h) requires that a party amend or supplement his/her/its previous disclosure promptly upon obtaining information that the response was incorrect or incomplete then or is no longer correct or complete now and that the circumstances are such that a failure to amend or supplement the disclosure would be materially misleading. (Dehaney v. N.Y.C. Tr. Auth. (1997) 180 Misc. 2d 695, 699 citing 2 Weinstein-Korn-Miller at 31-260.)

“Simply put, CPLR § 3101(h) imposes a ‘duty’, and requires all parties to ‘assume the initiative’ and correct discovery responses to disclosure requests under certain specified circumstances.” (Id.)

Although CPLR § 3101(h) does not specifically provide for motion practice, ... may move the court to [...] amendment or provide supplementary response. (Green v. S.I. Univ. Hospital. (1995) 161 Misc.2d 976.)

The Court’s Decision

In Alleyne v. A.O. Smith Water Prods. Co., plaintiffs served two amended expert witness disclosures pursuant to CPLR 3101(d). When the defendants filed a motion to exclude the plaintiff's expert report, the court decided as follows:

“To prevent the resultant prejudice to the parties the best course of action is to adjourn the trial of this case for a period of four (4) months ... to afford the defendants the time to complete the necessary testing of the ‘Charlie’ talcum powder tested by Dr. Longo and to amend their expert witness reports. Any reports prepared by Dr. Longo of Revlon, Inc.'s ‘Charlie’ talcum powder subsequent to May 10, 2019 are precluded at the time of trial.” (Alleyne v. A.O. Smith Water Prods. Co. [In re N.Y.C. Asbestos Litig.] (2019) N.Y. Slip Op. 31608.)

“[P]recluding an expert's affidavit solely on the ground that the offering party did not disclose the expert's identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment.” (Begley v. City of N.Y. (2013) 972 N.Y.S.2d 48, 72 citing Rivers v. Birnbaum (2012) 102 A.D.3d 26, 40, 42 [holding that the Supreme Court did not improvidently exercise its discretion in considering the affidavit of defendant's expert.])

Documents

1-10 of 10000 results

County

Onondaga County, NY

Filed Date

Dec 08, 2022

Judge

Scott Del Conte

Case Filed

Aug 29, 2019

Case Status

Active

County

Queens County, NY

Filed Date

Dec 08, 2022

Type

Torts - Motor Vehicle

Judge Hon. Carmen Velasquez Trellis Spinner 👉 Discover key insights by exploring more analytics for Carmen Velasquez
County

Onondaga County, NY

Filed Date

Dec 08, 2022

Judge

Scott Del Conte

County

Onondaga County, NY

Filed Date

Dec 08, 2022

Judge

Scott Del Conte

County

Onondaga County, NY

Filed Date

Dec 08, 2022

Judge

Scott Del Conte

County

Kings County, NY

Filed Date

Dec 07, 2022

Case Filed

Sep 23, 2019

Case Status

Active

County

Kings County, NY

Filed Date

Dec 07, 2022

Judge

Laurence L. Love

County

Kings County, NY

Filed Date

Dec 06, 2022

Type

Torts - Motor Vehicle

Judge

Jury Coordinating Part 1

Case Filed

Aug 04, 2021

Case Status

Active

County

Nassau County, NY

Filed Date

Dec 06, 2022

Judge Hon. Christopher G Quinn Trellis Spinner 👉 Discover key insights by exploring more analytics for Christopher G Quinn

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