Key Takeaway
New York courts differ on CPLR 3101(d) violations - First Department focuses on surprise factor when precluding expert testimony served days before trial.
Expert Witness Disclosure Requirements: When Late Service Leads to Preclusion
Under New York’s Civil Practice Law and Rules (CPLR) 3101(d), parties must provide timely disclosure of expert witnesses they intend to call at trial. This rule ensures that opposing counsel has adequate time to prepare for cross-examination and potentially retain their own experts in response. However, courts across New York’s appellate departments don’t always handle violations of this disclosure requirement the same way.
The case of Coleman v New York City Transit Authority illustrates how timing and surprise can be decisive factors when courts consider whether to preclude expert testimony that was disclosed too late. This decision highlights the practical consequences attorneys face when they fail to meet disclosure deadlines, particularly in personal injury cases where biomechanical evidence can be crucial to proving causation.
Jason Tenenbaum’s Analysis:
Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906 (1st Dept. 2015)
The general rule from the Second Department is a violation of 3101(d) will result in an adjournment of the trial. The First Department goes either way. The dispositive factor here seems to be surprise. The biomecancial engineer came from nowhere.
“The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony (see LaFurge v Cohen, 61 AD3d 426, 426 , lv denied 13 NY3d 701 ), whether applying a “good cause” standard (Peguero v 601 Realty Corp., 58 AD3d 556, 564 ) or a “willful or prejudicial” standard (see Banks v City of New York, 92 AD3d 591, 591 ). We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense (cf. Banks, 92 AD3d at 591 ).”
Key Takeaway
The First Department’s approach to CPLR 3101(d) violations emphasizes the element of surprise to the opposing party. While the Second Department typically grants adjournments for late expert disclosures, the First Department may preclude expert testimony entirely when disclosure comes “only days before the scheduled trial date,” leaving opposing counsel with insufficient time to prepare an adequate response.
