Bill Text: NY S06802 | 2017-2018 | General Assembly | Introduced

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Bill Title: Relates to identification of expert witnesses; provides for expert witness depositions in medical malpractice cases.

Spectrum: Committee Bill

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO JUDICIARY [S06802 Detail]

Download: New_York-2017-S06802-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          6802
                               2017-2018 Regular Sessions
                    IN SENATE
                                      June 18, 2017
                                       ___________
        Introduced  by COMMITTEE ON RULES -- read twice and ordered printed, and
          when printed to be committed to the Committee on Rules
        AN ACT to amend the civil practice law and rules, in relation  to  iden-
          tification of expert witnesses
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision (a) of section 3101 of the civil  practice  law
     2  and rules is amended by adding a new paragraph 5 to read as follows:
     3    (5)  Notwithstanding  anything  to the contrary in subparagraph (i) of
     4  paragraph one of subdivision (d) of  this  section,  in  an  action  for
     5  medical,  dental  or  podiatric  malpractice, each party shall serve the
     6  disclosure described therein at least sixty days  prior  to  the  filing
     7  required  by  rule  thirty-four hundred two of this chapter.  Further at
     8  any time after joinder of issue, any party may, by written  notice  made
     9  to  and  served upon all other parties and filed with the court, conduct
    10  an examination  upon  oral  deposition,  of  any  person  who  has  been
    11  disclosed  as  an expert witness by any other party. Each party shall be
    12  required to produce his or her expert witness for examination upon  oral
    13  deposition  upon  receipt of a notice to take oral deposition in accord-
    14  ance with rule thirty-one hundred seven  of  this  chapter,  and  unless
    15  otherwise  ordered by the court, all expert witness depositions shall be
    16  taken before the filing required by rule thirty-four hundred two of this
    17  chapter. If any party, having received such notice, fails to  make  that
    18  party's  expert  witness available for oral deposition, that party shall
    19  be precluded from offering expert testimony at the trial of the  action.
    20  For  purposes of rule thirty-one hundred ten and rule thirty-one hundred
    21  seventeen of this article,  an  expert  witness,  as  provided  in  this
    22  section,  shall be considered a party. Each party seeking the deposition
    23  of an expert witness shall pay the expert a reasonable fee for the  time
    24  spent at the deposition.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13272-01-7
        S. 6802                             2
     1    §  2.  Subdivision  (d)  of section 3101 of the civil practice law and
     2  rules, as amended by chapter 485 of the laws of  1986,  paragraph  1  as
     3  amended  by  chapter  184  of the laws of 1988, and subparagraph (ii) of
     4  paragraph 1 as amended by chapter 165 of the laws of 1991, is amended to
     5  read as follows:
     6    (d) [Trial preparation] Expert witness disclosure.
     7    1.  Experts.  (i)  Upon request, each party shall identify each person
     8  whom the party expects to call as an expert witness at trial  and  shall
     9  disclose in reasonable detail the subject matter on which each expert is
    10  expected  to  testify,  the substance of the facts and opinions on which
    11  each expert is expected to testify, the qualifications  of  each  expert
    12  witness and a summary of the grounds for each expert's opinion. However,
    13  where  a  party  for  good cause shown retains an expert an insufficient
    14  period of time before the commencement  of  trial  to  give  appropriate
    15  notice  thereof,  the party shall not thereupon be precluded from intro-
    16  ducing the expert's testimony at the trial solely on grounds of  noncom-
    17  pliance with this paragraph. In that instance, upon motion of any party,
    18  made  before  or  at trial, or on its own initiative, the court may make
    19  whatever order may be just. [In an action for medical, dental or  podia-
    20  tric  malpractice,  a  party,  in  responding to a request, may omit the
    21  names of medical, dental or podiatric experts but shall be  required  to
    22  disclose   all  other  information  concerning  such  experts  otherwise
    23  required by this paragraph.
    24    (ii) In an action for medical, dental or  podiatric  malpractice,  any
    25  party  may,  by  written offer made to and served upon all other parties
    26  and filed with the court, offer to disclose the name  of,  and  to  make
    27  available  for  examination  upon  oral deposition, any person the party
    28  making the offer expects to call as an expert witness at  trial.  Within
    29  twenty  days of service of the offer, a party shall accept or reject the
    30  offer by serving a written reply upon all  parties  and  filing  a  copy
    31  thereof  with  the court. Failure to serve a reply within twenty days of
    32  service of the offer shall be deemed a rejection of the  offer.  If  all
    33  parties accept the offer, each party shall be required to produce his or
    34  her  expert witness for examination upon oral deposition upon receipt of
    35  a notice to take oral deposition  in  accordance  with  rule  thirty-one
    36  hundred seven of this chapter. If any party, having made or accepted the
    37  offer,  fails to make that party's expert available for oral deposition,
    38  that party shall be precluded from  offering  expert  testimony  at  the
    39  trial of the action.
    40    (iii)]  (ii) Further disclosure, except as expressly provided in para-
    41  graph five of subdivision (a) of this section, concerning  the  expected
    42  testimony of any expert may be obtained only by court order upon a show-
    43  ing of special circumstances and subject to restrictions as to scope and
    44  provisions  concerning fees and expenses as the court may deem appropri-
    45  ate. However, a party, without court order, may take the testimony of  a
    46  person authorized to practice medicine, dentistry or podiatry who is the
    47  party's  treating or retained expert, as described in paragraph three of
    48  subdivision (a) of this section, in which event any other party shall be
    49  entitled to the full disclosure authorized by this article with  respect
    50  to that expert without court order.
    51    2.  Materials.  Subject  to  the  provisions  of paragraph one of this
    52  subdivision, materials otherwise discoverable under subdivision  (a)  of
    53  this  section and prepared in anticipation of litigation or for trial by
    54  or for another party, or by or for  that  other  party's  representative
    55  (including  an  attorney,  consultant,  surety,  indemnitor,  insurer or
    56  agent), may be obtained only upon  a  showing  that  the  party  seeking
        S. 6802                             3
     1  discovery  has  substantial  need of the materials in the preparation of
     2  the case and is unable without undue hardship to obtain the  substantial
     3  equivalent of the materials by other means. In ordering discovery of the
     4  materials  when  the  required  showing  has  been made, the court shall
     5  protect against disclosure of the mental impressions, conclusions, opin-
     6  ions or legal theories of an attorney or other representative of a party
     7  concerning the litigation.
     8    § 3. This act shall take effect immediately.