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Expert Disclosure Trends: Comply Early and Often or Have Your Expert Precluded!  

LPL - Witness - shutterstock_185379551Litigators know that even the most mundane cases often require an expert’s testimony. The question is usually not whether an expert is needed, but rather how early and how many experts are needed in a given case. An expert’s testimony serves to introduce evidence that Federal Rule of Evidence 702 qualifies as “scientific, technical, or other specialized knowledge” which will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert testimony can also be strategically used to stress certain points to a trier of fact, or potentially to introduce certain evidence when there is a lack of proper witnesses.

As the importance of expert testimony cannot be overstated in litigation, it is equally as important to comply with the requirements of the jurisdiction in which you are litigating. This means knowing when you need to disclose your expert and what is required in your expert disclosures. As noted below, the recent trend is for earlier and broader disclosure.

Determination if an Expert is Needed

Determining whether or not an expert is needed and what types of experts are needed should be one of the first things done on any file. Experts can be costly, but are often worth the cost as they can make or break your case. Determining what experts are needed early can help in evaluating litigation options, including any potential settlement and the value of any settlement.

Speaking with an expert early can help you understand the potential strengths and weaknesses of your case. Often an expert’s analysis will point you to unseen strengths and weaknesses of a fact pattern. It is advantageous to be able to defend against weaknesses and build upon strengths as early as possible.

Brief Summary of Federal Expert Disclosure Requirements

Federal Rule of Civil Procedure 26 (“FRCP 26”) governs disclosure of expert witnesses. “Compliance with Rule 26(a)(2) is thus a condition precedent to the use of expert testimony at trial.”[1] FRCP 26 has specific and substantial requirements regarding expert disclosure and testimony. First, FRCP (a)(2)(A) requires disclosure of all witnesses a party will call at trial to “present evidence under FRCP 702, 703, and 705.” This disclosure is to be served with 14 days of the initial conference, or if a party is brought in at a later time, within 30 days of said party being served or joined to the action.[2] Further, FRCP Specifically a FRCP 26 (a)(2)(B) expert disclosure report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;(ii) the facts or data considered by the witness in forming them;(iii) any exhibits that will be used to summarize or support them;(iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years;(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and(vi) a statement of the compensation to be paid for the study and testimony in the case.[3]

Absent a court order or stipulation, FRCP 26 requires disclosure of expert reports be completed “at least 90 days before the date set for trial or for the case to be ready for trial” or if it is a rebuttal expert witness “within 30 days after the other party’s disclosure.”[4]

It is important to note that “Under Rule 37(c)(1), [i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”[5] Deadlines for disclosure must be strictly adhered to.

Brief Summary of New York State Expert Disclosure Requirements

New York State Court expert disclosure is governed by CPLR 3101(d), which states in relevant part:

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion.

Unlike the Federal Rules regarding expert disclosure, CPLR 3101(d) does not have definitive deadlines for expert disclosure. This results in splits between the Appellate districts on various aspects of expert discovery such as preclusion of an expert not disclosed prior to the filing of the note of issue. Further, the CPLR is not specific on what needs to be disclosed in expert disclosure, which has again resulted in no set standard and wide discretion for trial courts. Note that there is no requirement to provide an expert report with your disclosure, however it will help ensure compliance with CPLR 3101(d).

As detailed below, New York State Court disclosure regulations are trending towards stricter guidelines that require earlier and more expansive expert disclosure, more in line with Federal Court expert disclosure requirements.

Regulations Trending Towards Requiring Earlier Expert Disclosure

There is a trend in New York State Court moving towards requiring earlier and more comprehensive expert disclosure from litigants. The trend is evidenced in New York State Court by the Second Department’s ruling in Construction by Singletree v. Lowe, the subsequent cases following Singletree’s precedent, and the Rules of the New York Commercial Division.[6]

In 2008, the Second Department issued a ruling in Singletree which resulted in stricter guidelines for expert disclosure.[7] The Second Department found that a trial court could preclude an expert’s affidavit submitted in opposition to a summary judgment motion if the expert was not disclosed before the note of issue was filed pursuant to CPLR 3101(d).[8] This standard has been applied to both Plaintiffs’ and Defendants’ expert disclosures.[9] The First Department, which had previously avoided following the Second Department’s stricter standard, has cited Singletree with approval.[10]

Meanwhile, in September of 2013, the Commercial Division changed Commercial Division Rule 8(a) and Commercial Division Rule 13(c), moving the Commercial Division’s expert disclosure requirements closer to federal requirements.[11]

In relevant part, Commercial Division Rule 8(a) requires litigants to consult prior to a preliminary or compliance conference about numerous issues including: “the timing and scope of expert disclosure under Rule 13(c).”[12] In turn, Commercial Division Rule 13(c) expands expert disclosure obligations by requiring litigants to confer within thirty days of the completion of fact discovery and stipulate to a schedule for expert disclosure.[13] Commercial Division Rule 13(c) further requires that unless stipulated or ordered by the court, if an expert is retained to provide expert testimony in the case or is a party’s employee whose duties regularly involve giving expert testimony, the expert disclosure must include a report that contains:

  1. a complete statement of all opinions the witness will express and the basis and the reasons for them;
  2. the data or other information considered by the witness in forming the opinion(s);
  3. any exhibits that will be used to summarize or support the opinion(s);
  4. the witness’s qualifications, including a list of all publications authored in the previous 10 years;
  5. a list of all other cases at which the witness testified as an expert at trial or by deposition during the previous four years; and
  6. a statement of the compensation to be paid to the witness for the study and testimony in the case.[14]

Interestingly, Commercial Division Rule 13(c) also prohibits the note of issue from being filed until expert disclosure is completed. In no uncertain terms Commercial Division Rule 13(c) states that: “Expert disclosure provided after these dates without good cause will be precluded from use at trial.”[15]

It is clear that New York State Court’s are moving towards more robust and earlier expert disclosure.

Strategic Consideration for When to Disclose Expert Witnesses

The timing of when to provide your expert disclosure to opposing counsel presents numerous strategic considerations. If you provide your disclosure too early you may “tip your hand” and give opposing counsel undue insight into your trial strategy. However, if you wait too long, you risk running afoul of State and Federal discovery rules.

A more robust and earlier disclosure has the advantage of ensuring compliance with State and/or Federal Court rules. If you have a straightforward case where neither side will be surprised by any expert witnesses, it is usually a good idea to retain your experts and disclose early. However, in complicated cases it may pay to hold off on disclosure to collect more detailed facts or prevent opposing counsel from obtaining insight into your trial strategy.

Whether you disclose your expert early or late should not change the fact that you should retain an expert early to help with trial strategy and review of the facts of the case. Early retention of an expert does not necessarily mean early disclosure, an expert can be retained early in a case on a consulting basis and later be retained as an expert. Early retention of an expert is especially important when there are only a few experts in a given field. It will lock them in and prevent opposing counsel from using that expert against you.

Conclusion

In the end, like much of the practice of law, a litigator must balance competing interests while analyzing a given fact pattern to make a determination. It is risky to disclose close to the time or after the filing of a note of issue or by serving the bare minimum you believe is required under CPLR 3101(d). In Federal Court where there are more distinct deadlines and requirements, you should not play any games and be sure that your expert disclosures are both timely and compliant with the requirements of the Federal Rules of Civil Procedure. Whatever your choice is regarding expert witnesses, it is of the utmost importance that attorneys read and understand expert disclosure requirements in their jurisdiction, and appreciate that in New York, the trend is for earlier and more comprehensive disclosures

 _________________________________________________________

* This article was prepared by Andrew R. Jones, Esq. and Corey M. Cohen, Esq. of the New York City-based law firm of Furman Kornfeld & Brennan LLP.  Andrew and Corey work as part of a team of 15 lawyers devoted to the defense of attorneys and other professionals in malpractice and disciplinary matters, as well as advising insurers in professional liability matters, including insurance coverage and litigation.  For more information about the above topic or the authors, please visit: www.fkblaw.com.

We trust that the above article was useful and thought provoking; however, please note that it is intended a general guide only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters.

 For more information on LPL coverage generally and how internet scams can affect the exposure of your firm to malpractice claims, contact USI Affinity today.

 

[1] See ABB Air Preheater, Inc. v. Regenerative Envtl. Equip. Co., 167 F.R.D. 688, 671 (D.N.J. 1996).

[2] See FRCP 26.

[3] See Id.

[4] See Id.

[5] Danley v. Bayer (In re Mirena IUD Prods. Liab. Litig.), 169 F.Supp.3d 396, 470 (S.D.N.Y. 2016)(internal quotations omitted).

[6] Construction by Singletree v. Lowe, 55 A.D.3d 861 (2d Dept. 2008)

[7] See Id.

[8] See Id.

[9] See e.g. Stolarski v. DeSimone, 83 A.D.3d 1042 (2d Dept. 2011)

[10] See Garcia v. New York, 2012 N.Y. Slip Op. 06112 (1st Dept. 2012); see also Harrington v. City of New York, 79 A.D.3d 545 (1st Dept. 2010)

[11] See e.g. http://www.newyorklawjournal.com/id=1202664270749/The-New-Commercial-Division-Rules-You-Need-to-Know

[12] NY CLS Unif Rules, Civil Cts § 202.70, Rule 8

[13] NY CLS Unif Rules, Civil Cts § 202.70, Rule 13

[14] See Id.

[15] See Id.

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