Key Takeaway
Court precludes psychiatric expert testimony due to willful late disclosure, demonstrating how strategic gamesmanship in expert witness disclosure can backfire and harm your case.
Expert witness disclosure under CPLR 3101(d) requires attorneys to provide timely notice when they intend to call an expert at trial. The timing of this disclosure is crucial — courts expect attorneys to reveal their expert witnesses as soon as they know they will use them, not at the last possible moment. When attorneys engage in strategic delay or “gamesmanship” with expert disclosures, they risk having their expert testimony precluded entirely, which can devastate their case.
The Fourth Department’s decision in Flowers v Harborcenter Dev., LLC provides a clear example of how courts respond to willful violations of expert disclosure requirements. This case demonstrates that even when the opposing party has some awareness that an expert might be called, strategic delays in disclosure can still result in preclusion if the court finds the delay was purposeful and caused prejudice.
Jason Tenenbaum’s Analysis:
Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749 (4th Dept, 2019)
“Here, the court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert [*2]psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.”
Key Takeaway
Courts will not tolerate strategic gamesmanship with expert witness disclosures. Even when opposing counsel has general awareness that an expert might be called, willful delay in formal disclosure can result in preclusion of expert testimony if it prejudices the other party’s ability to prepare their case or conduct jury selection effectively.
