Why a substitute IME doctor is not allowed

(Editor note: original post said “now” allowed. I meant “not” allowed)

Post-note of issue discovery in New York civil practice operates under strict limitations designed to prevent parties from indefinitely extending the discovery phase and delaying trial. Once a party files a note of issue certifying that discovery is complete, further discovery requires court permission and a showing of unusual or unanticipated circumstances. This framework creates particular challenges when expert witnesses become unavailable after the note of issue has been filed, forcing parties to seek substitute experts while contending with these procedural restrictions.

The First Department’s decision in Diagne v J.T.S. Trucking, Inc. addresses this precise scenario: what happens when a plaintiff’s expert accident reconstructionist resigns after the note of issue has been filed, and the plaintiff needs to retain a new expert who must conduct independent examination of the accident scene or vehicle? The decision illustrates how courts balance the need for finality in litigation against parties’ legitimate needs for expert testimony when unforeseen circumstances arise.

Case Background

In Diagne, the plaintiff had retained an expert accident reconstructionist who presumably examined relevant evidence and formed opinions about how the accident occurred. After the note of issue was filed, the relationship between plaintiff’s counsel and this expert broke down, leading to the expert’s resignation. This breakdown had nothing to do with the merits of the case or the expert’s opinions; it simply reflected an inability of counsel and expert to continue working together.

The plaintiff sought leave to conduct additional discovery to allow a newly retained accident reconstructionist to examine the evidence and form independent opinions. The defendant opposed, arguing that the plaintiff had already had ample opportunity to complete expert discovery before filing the note of issue, and that problems with counsel’s choice of experts should not justify reopening discovery. The trial court granted the plaintiff’s request, and the defendant appealed.

Jason Tenenbaum’s Analysis

It always seemed common sense that a substitute IME doctor would not be allowed. This case, through application of the post note of issue regulation, said the following:

Diagne v J.T.S. Trucking, Inc., 2015 NY Slip Op 09369 (1st Dept. 2015)

While plaintiff has made a minimal showing, we find that the resignation of plaintiff’s expert accident reconstructionist following the filing of the note of issue, due to the breakdown in the relationship between plaintiff’s counsel and the expert, and having nothing to do with the case, is a sufficient demonstration of an unusual or unanticipated circumstance, within the meaning of 22 NYCRR § 202.21(d). As to the showing of substantial prejudice which would arise in the absence of this requested discovery (see generally Schroeder v IESI NY Corp., 24 AD3d 180, 181 ), we reject the court’s and defendants’ assertion that plaintiff’s new expert could simply rely on the prior expert’s factual findings, as there is no evidence in the record of what those factual findings might be, or whether they are of the type on which the new expert could form an opinion. In any event, there would need to be evidence demonstrating the reliability of the prior findings (see Wagman v Bradshaw, 292 AD2d 84, 85 , citing Hambsch v New York City Tr. Auth., 63 NY2d 723 ), and it is not at all clear that this could be done without the testimony of the prior expert, who will apparently not testify.”

Legal Significance

The First Department’s decision in Diagne establishes several important principles governing post-note of issue discovery. First, the breakdown of the attorney-client relationship—or here, the attorney-expert relationship—can constitute an “unusual or unanticipated circumstance” warranting additional discovery under 22 NYCRR § 202.21(d). This holding recognizes that interpersonal conflicts sometimes arise during litigation that parties cannot reasonably foresee when filing their notes of issue.

Second, and more significantly, the decision rejects the proposition that substitute experts can simply adopt or rely upon their predecessors’ factual findings without independent examination. The court’s reasoning rests on fundamental principles of expert testimony: experts must base their opinions on facts they have personally observed or that are established in the record through admissible evidence. An incoming expert cannot testify to another expert’s observations without either: (1) that prior expert testifying to establish those facts; or (2) some other admissible evidence establishing the factual predicates for the new expert’s opinions.

The decision’s reference to Wagman v Bradshaw, 292 AD2d 84, underscores this point. Even if the prior expert’s findings were documented, using them as the basis for a substitute expert’s opinions requires demonstrating their reliability through admissible evidence. When the prior expert will not testify, this becomes impossible or impracticable in most cases. The result: the substitute expert must conduct independent examinations and observations to develop the factual foundation for their testimony.

Third, the decision illustrates the “substantial prejudice” prong of the post-note of issue discovery test. Parties seeking such discovery must show not only unusual circumstances but also substantial prejudice if the discovery is denied. Here, the plaintiff would have been unable to present expert accident reconstruction testimony without allowing the new expert to examine evidence, creating prejudice sufficient to warrant reopening discovery.

Practical Implications

For plaintiffs and their counsel, Diagne provides both a roadmap and a cautionary tale. The roadmap: when expert relationships break down post-note of issue for reasons unrelated to case merits, courts may permit substitute experts to conduct necessary examinations. The caution: parties cannot assume substitute experts can simply adopt prior experts’ work product. This reality means expert substitutions post-note of issue often require significant additional time and expense to allow the new expert to independently develop their opinions.

For defendants, the decision highlights the importance of objecting to post-note of issue expert substitutions and demanding that plaintiffs demonstrate both unusual circumstances and substantial prejudice. When expert relationships break down due to counsel’s own actions or poor communication, defendants may argue this does not constitute the type of unanticipated circumstance warranting discovery reopening. Similarly, if the prior expert documented their findings such that a new expert could rely on them, the substantial prejudice requirement may not be satisfied.

The decision also has implications for expert witness management throughout litigation. Attorneys should: (1) carefully vet expert witnesses before retention to minimize risk of relationship breakdowns; (2) ensure experts document their examinations and findings thoroughly in case substitution becomes necessary; (3) consider whether to file notes of issue until confident in expert relationships; and (4) understand that expert substitutions may require significant additional discovery even when courts permit them.

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