STATE OF NEW YORK
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6802
2017-2018 Regular Sessions
IN SENATE
June 18, 2017
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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.