Attorney drafted 3101(d) in malpractice action insufficient to defeat summary judgment

Court Rejects Attorney-Drafted Expert Disclosure in Medical Malpractice Case

Medical malpractice cases often hinge on expert testimony to establish the standard of care and causation. However, not all expert submissions carry equal weight in court. A recent First Department decision demonstrates the importance of proper evidentiary foundation when opposing summary judgment motions, particularly regarding expert disclosures under CPLR 3101(d).

The case highlights a persistent issue in litigation: attorneys drafting expert affidavits or disclosures that lack the authentic voice and analysis of the medical professional who supposedly authored them. Courts have grown increasingly skeptical of these “cookie-cutter” submissions, though they don’t always reject them outright.

This decision provides valuable insight into how courts evaluate expert testimony foundations and what constitutes sufficient evidentiary proof to survive summary judgment in malpractice actions.

Jason Tenenbaum’s Analysis:

Bacani v Rosenberg, 2014 NY Slip Op 00737 (1st Dept. 2014)

“As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 ).”

It is nice to see the court call out the “attorney drafted” affidavit of merit. You know it when you see it, and the courts know it also. Yet, they often allow these “documents” to be considered to defeat a summary judgment motion. While this case will not be the death knell or the watershed moment for documents that doctor’s should not be signing, this is a nice case to see.

Key Takeaway

The First Department’s explicit rejection of an “attorney-drafted” expert disclosure sends a clear message about the need for authentic expert submissions. While courts often overlook obviously ghostwritten expert affidavits, this decision shows growing judicial scrutiny of such practices and reinforces that proper evidentiary foundation requires genuine expert analysis, not legal boilerplate.

Related Articles

• CPLR 3101: Disclosure Requirements (Complete Guide)
• Understanding foundation requirements for expert testimony in medical malpractice cases
• Expert competency standards and medical literature requirements
• Expert witness qualifications for medical subspecialty testimony
• Evidentiary issues with expert witness testimony and hearsay rules
• New York No-Fault Insurance Law

Legal Update (February 2026): Since this 2014 decision, New York courts have continued to refine standards for expert testimony in medical malpractice cases, and CPLR 3101(d) disclosure requirements may have been subject to procedural amendments or judicial interpretation changes. Practitioners should verify current provisions regarding expert witness disclosure standards and evidentiary requirements, as both statutory requirements and case law precedents governing attorney-drafted expert submissions have likely evolved over the past decade.