January 21, 2025
Perhaps one of the most impressive feats a New York trial lawyer can achieve is effectively cross-examining an expert witness. While this may seem routine, since it happens in almost every trial, when compared to the rules of other jurisdictions, New York trial lawyers are at a disadvantage. Many jurisdictions require experts to disclose detailed reports and sit for pre-trial depositions. CPLR 3101(d) imposes neither requirement on most experts. Thus, the New York trial lawyer is creating aspects of their cross-examination while hearing the expert testify for the first time during trial. Even though the CPLR does not provide as much guidance as the Federal Rule of Civil Procedure, New York’s case law does provide pitfalls and hurdles concerning expert disclosure and its impact on the expert’s ability to testify at trial. Successfully navigating these pitfalls can avoid years of appeals and re-trials.
One of the first tactical decisions that will need to be made is when to object to a deficient expert disclosure. One may be inclined to wait until the expert witness is on the stand to object to a deficient expert disclosure. It makes sense; objecting earlier could result in the adversary serving a supplemental disclosure that fixes the problem. However, waiting until trial can result in a waiver.
This is what happened in Rivera v Montefiore Med. Ctr. (28 NY3d 999 [2016]). The defendant’s expert disclosure simply said that the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributed factors” (Rivera, 28 NY3d at 1000). The plaintiff did not object to the vague and inadequate nature of the defendant’s disclosure until well into the trial. The question before the Court of Appeals was not whether the disclosure was deficient. Rather, it was whether the plaintiff waived their ability to raise the argument that the disclosure was deficient. Ultimately, the Court of Appeals held that a trial court is within its discretion to deny an objection to the sufficiency of an expert witness disclosure.
Rivera forces litigators to make decisions about trial strategy well in advance of trial. It may be worthwhile to serve a vague expert disclosure early. If the adversary does not object to the disclosure, that objection may be waived. Alternatively, when receiving a deficient 3101, objecting earlier will, at a minimum, force the adversary to expound on their theory of liability through a more detailed expert disclosure.
While Rivera does allow for the waiver of an objection to an expert disclosure's insufficiency, it does not support the waiver of other objections related to expert disclosures. In Rivera, the Court of Appeals noted that the issue was the timing of an objection to the sufficiency of the disclosure and that the situation “is not analogous to a situation in which a party’s disclosure was misleading, or the trial testimony was inconsistent with the disclosure” (Rivera, 28 NY3d at 1002). Therefore, Rivera still leaves open avenues for reversible error.
One potential error is an expert testifying about a claim not contained in the bill of particulars. The trial court avoided a reversible error in Brzozowy v Elrac, Inc. (39 AD3d 451 [2d Dept 2007]) when it precluded the testimony of the plaintiff’s expert. The plaintiff in that case sought to introduce expert testimony about his knee injury. However, the bill of particulars did not claim that the plaintiff suffered a knee injury. The Appellate Division held that the trial court properly precluded the expert’s testimony.
These cases are only a sample of the complications that can arise from expert disclosures. Consulting with appellate counsel early in the trial preparation process can help the trial lawyer correct any deficiencies in their expert disclosure and maximize the opportunities presented by their adversary’s disclosure deficiencies. This removes one time-consuming task from the trial lawyer’s portfolio and allows them to focus their attention on other matters. Contact me to discuss how expert witness disclosures may impact your trial strategy.