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CPLR 3101(d) Disclosure Rules Don’t Apply to Treating Physicians
Personal injury litigation often involves testimony from various medical professionals, but not all doctors are subject to the same pre-trial disclosure requirements. A recent Second Department decision provides a clear reminder that CPLR 3101(d) expert disclosure rules have specific limitations that trial courts must respect.
CPLR 3101(d) requires parties to provide advance notice when they intend to call retained experts at trial. However, this rule has never applied to treating physicians who examined or treated a plaintiff as part of their medical care. The distinction matters significantly in personal injury cases, where treating physicians often provide crucial testimony about causation and the extent of injuries.
Understanding when disclosure requirements apply becomes especially important when dealing with complex medical testimony or situations involving multiple medical opinions about injury causation.
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Duman v Scharf, 2020 NY Slip Op 04537 (2d Dept. 2020)
“At the damages phase of the trial, the defendants called as a witness one of the plaintiff’s treating physicians, who had examined the plaintiff following the accident and concluded in his medical report that “he symptoms that is experiencing in the right-sided extremity are likely related to previous stroke.” However, the Supreme Court ruled that the treating physician would be precluded from testifying on the issue of causation based on the defendants’ failure to provide the plaintiff with notice of such testimony in advance of trial pursuant to CPLR 3101(d). Counsel for the defendants provided the Supreme Court with precedent from this Court indicating that CPLR 3101(d) applied only to experts retained to give testimony at trial, and not to treating physicians. Nevertheless, despite noting a 1999 decision from this Court supporting the defendants’ position, the Supreme Court adhered to its determination to preclude the proposed testimony.”
LOL. reversed.
Key Takeaway
The Second Department reversed a trial court’s erroneous application of CPLR 3101(d) to a treating physician’s testimony. This decision reinforces established precedent that disclosure requirements for expert witnesses only apply to retained experts, not to physicians who treated the plaintiff as part of regular medical care.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Expert Testimony in New York Litigation
Expert testimony is essential in most personal injury and no-fault cases — from medical experts establishing causation and damages to accident reconstructionists and economic experts calculating lost earnings. New York courts apply specific rules governing expert qualifications, the foundation for expert opinions, the use of medical journals and treatises, and the sufficiency of expert evidence on summary judgment. These articles analyze the legal standards for expert testimony and practical strategies for presenting and challenging expert evidence.
81 published articles in Experts
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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