A03335 Summary:

BILL NO    A03335 

SAME AS    No same as 

SPONSOR    Schimminger (MS)

COSPNSR    Magee, Kolb

MLTSPNSR   Barclay, Crouch, Galef, Hawley, Palmesano

Amd SS3012-a, 1600, 1601 & 3101, add Art 50-C SS5051 & 5052, rpld S3101 sub (d)
1 sub (ii), CPLR

Enacts the "medical liability reform act"; requires attorney for plaintiff in a
medical, dental or podiatric malpractice case to include with the certificate
of merit, an affidavit of an appropriate medical professional licensed in this
state stating that there is a reasonable basis for such malpractice action;
failure to file will result in dismissal; modifies limited liability of persons
jointly liable; limits noneconomic damages in such causes of action to
$250,000; requires enhanced and comprehensive disclosure of expert witnesses to
be used by any party in medical, dental and podiatric malpractice cases.
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A03335 Memo:

BILL NUMBER:A3335

TITLE  OF  BILL:    An act to amend the civil practice law and rules, in
relation to enacting the "medical liability reform act"; and  to  repeal
subparagraph  (ii)  of paragraph 1 of subdivision (d) of section 3101 of
such law and  rules  relating  to  disclosure  of  expert  witnesses  in
medical, dental and podiatric medical malpractice actions

PURPOSE: The purpose of this legislation is to reform the Civil Practice
Law and Rules in regards to medical liability.

SUMMARY OF PROVISIONS:

S 1 -Title. "Medical Liability Reform Act."

S  2  - Adds the requirement of an affidavit from a physician concluding
that there is a reasonable basis for the commencement of an action, with
such affidavit to accompany the certificate required  by  this  section,
with caveats.

S 3 - Repeals the definition of "non-economic loss" and replaces it with
definitions for "noneconomic damages" and "actual economic damages."

S  4  -  Amends S 1601 of the CPLR to make equitable share regardless of
whether a defendant was less that fifty percent liable, as determined in
accordance with the relative culpability of each defendant.

S 5 - Adds Article 50-C, limitation on non-economic damages to the CPLR.

S 6 - Amends S 3101 of the CPLR removes the exception  that  allows  the
omission  of  the  names  of  medical,  dental or podiatric experts from
production materials concerning experts testifying at trial.

S 7 - Replaces clause (ii) of paragraph I of subdivision (d) of  S  3101
of  the CPLR to require that, in an action for medical, dental or podia-
tric malpractice, the report shall contain a complete statement  of  all
opinions  to  be  expressed, the basis and reasons therefor; the data or
other information considered by such person in forming the opinions; any
exhibits to be used as a summary of or support  for  the  opinions;  the
qualifications  of  the  person,  including  a  list of all publications
authored by the person during the preceding ten years; the  compensation
to  be  paid for the person's consideration of data or other information
and for his or her testimony; and a listing of any other cases in  which
the  person  has  testified  as an expert at trial or by oral deposition
within the preceding four years.  Additionally,  this  bill  requires  a
party to produce such expert for an EBT, in accordance with rule 3107 of
the  CPLR.  Unless  manifest  injustice  would  result,  the court shall
require that the party noticing an oral deposition  of  such  an  expert
witness  pay  such  witness a reasonable fee for time spent in attending
such oral deposition. Violation of these  provisions  shall  preclude  a
party from offering such expert's testimony at the trial of the action.

S 8 - Effective date.

EXISTING  LAW:  Amends S 3012-a, S 1600, S 1601 of and adds article 50-C
to the CPLR.

JUSTIFICATION: The  cost  of  medical  malpractice  liability  insurance
coverage  in  the  state of New York have increased steadily for several
years, increasing between 55-80% between 2003 and 2008 and an additional
5% in July 2010. Such unsustainable cost increases  not  only  threatens
access  to  care  for patients, it also has driven up the cost of health
care for the public. Notably, former Lieutenant Governor Richard Ravitch
highlighted in a September 2010 report the need  for  medical  liability
reform  as  one  necessary  component to reduce New York's extraordinary
Medicaid cost burden. Several recent studies have detailed the  billions
of  dollars  in health care costs that are unnecessarily spent each year
due to the practice of "defensive medicine", such as  unnecessary  MRIs,
CT scans and specialty referrals.

These  enormous  costs  are driven by an unpredictable medical liability
adjudication system that numerous  studies  have  concluded  results  in
cases  where awards are made despite the absence of any negligence what-
soever. While  an  overwhelming  majority  of  medical  liability  cases
brought  result  in  no payment, even the costs of defending these cases
are extensive and significantly add to the astronomical cost of  medical
liability insurance.

This  bill  makes medical malpractice liability reform in several impor-
tant ways.

The bill provides a true mechanism for removing  frivolous  claims  from
the dockets of New York's court rooms. Fewer non-meritorious claims will
be  advanced  in the state, by adding the requirement of an affidavit of
merit, signed by a physician, and providing a judge the tools to  remove
a  malpractice  claim  for failure to comply with the provisions of this
amended section.

To bring down the amount of judgments in medical malpractice claims, the
bill  necessarily  establishes  statutory  language  for   "noneconomic,
damages"  and  "actual  economic  damages"  in  order  to facilitate the
$250,000 cap on noneconomic damages for which this bill provides.  There
are 30 states that have enacted some  form  of  a  cap  on  non-economic
awards in medical liability actions, including California and Texas. The
effect  in  premium has been significant.  California physicians pay far
less than what New York physicians pay for liability premiums, in Texas,
physicians have seen significant reductions in their liability insurance
costs since the enactment of a cap in their state in 2003, as well as  a
significant increase in physician license applications.

Additionally,  the  bill links a defendant's monetary liability to their
equitable share in accordance with the relative culpability.

This bill expands the scope of production in regards to expert witnesses
and their testimony, including identity, which  a  party  must  disclose
upon  request  by  its  opposition. This bill is necessary to facilitate
meaningful reform of medical malpractice liability.

LEGISLATIVE    HISTORY:        2011-2012:    A.4381/S/3187;   2009-2010:
A.6184/S.6799; 2007-2008:    A.3139/5.2144;  2005-  2006:  A.5674/S.3035
2003-2004: A.9599/S.469-A.

FISCAL IMPLICATIONS: None.

EFFECTIVE  DATE:  This  act  shall  take effect immediately, except that
sections 2, 3, 6 and 7 of this act shall take effect 90 days after  this
act shall have become a law and shall be applicable to actions commenced
and  claims  filed  on and after such date. Sections 4 and 5 of this act
shall be applicable to causes of action and claims  on  and  after  this
effective date.
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A03335 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         3335

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 24, 2013
                                      ___________

       Introduced by M. of A. SCHIMMINGER, MAGEE, KOLB -- Multi-Sponsored by --
         M.  of  A.  BARCLAY, CROUCH, GALEF, HAWLEY, PALMESANO -- read once and
         referred to the Committee on Judiciary

       AN ACT to amend the civil practice law and rules, in relation to  enact-
         ing  the  "medical  liability  reform act"; and to repeal subparagraph
         (ii) of paragraph 1 of subdivision (d) of section 3101 of such law and
         rules relating to disclosure of expert witnesses  in  medical,  dental
         and podiatric medical malpractice actions

         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. Short title. This act shall be known and may  be  cited  as
    2  the "medical liability reform act".
    3    S 2. Section 3012-a of the civil practice law and rules, as amended by
    4  chapter 507 of the laws of 1987, is amended to read as follows:
    5    S  3012-a. Certificate of merit in medical, dental and podiatric malp-
    6  ractice actions. (a) In any action  for  medical,  dental  or  podiatric
    7  malpractice,  the  complaint  shall  be  accompanied  by  a certificate,
    8  executed by the attorney for the plaintiff, declaring that:
    9    (1) the attorney has reviewed the facts of the case and has  consulted
   10  with at least one physician in medical malpractice actions, at least one
   11  dentist  in  dental  malpractice  actions  or at least one podiatrist in
   12  podiatric malpractice actions who is licensed to practice in this  state
   13  [or  any  other state] and who the attorney reasonably believes is know-
   14  ledgeable in the relevant issues involved in the particular action,  AND
   15  WHO  HAS SIGNED AN AFFIDAVIT CONCLUDING THAT THERE IS A REASONABLE BASIS
   16  FOR THE COMMENCEMENT OF AN ACTION, WITH SUCH AFFIDAVIT TO ACCOMPANY  THE
   17  CERTIFICATE  REQUIRED  BY  THIS  SECTION,  and  that  the  attorney  has
   18  concluded on the basis of such review [and], consultation AND  AFFIDAVIT
   19  that there is a reasonable basis for the commencement of such action; or
   20    (2)  the  attorney was unable to obtain the consultation AND AFFIDAVIT
   21  required by paragraph one of this subdivision because  a  limitation  of

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06769-01-3
       A. 3335                             2

    1  time,  established  by article two of this chapter, would bar the action
    2  and that the certificate required by paragraph one of  this  subdivision
    3  could  not reasonably be obtained before such time expired. If a certif-
    4  icate is executed pursuant to this subdivision, the certificate required
    5  by  this  section shall be filed within ninety days after service of the
    6  complaint; or
    7    (3) the attorney was unable to obtain the consultation  AND  AFFIDAVIT
    8  required  by  paragraph one of this subdivision because the attorney had
    9  made three separate good faith attempts with three separate  physicians,
   10  dentists  or podiatrists, in accordance with the provisions of paragraph
   11  one of this subdivision to obtain such consultation and  none  of  those
   12  contacted would agree to such a consultation.
   13    (b) Where a certificate is required pursuant to this section, a single
   14  certificate  shall  be  filed  for  each  action,  even if more than one
   15  defendant has been named in the complaint or is subsequently named.
   16    (c) Where the attorney intends to rely solely on the doctrine of  "res
   17  ipsa  loquitur", this section shall be inapplicable.  In such cases, the
   18  complaint shall be accompanied by a certificate, executed by the  attor-
   19  ney, declaring that the attorney is solely relying on such doctrine and,
   20  for that reason, is not filing a certificate required by this section.
   21    (d)  If  a request by the plaintiff for the records of the plaintiff's
   22  medical or dental treatment by the defendants has  been  made  and  such
   23  records  have  not been produced, the plaintiff shall not be required to
   24  serve the certificate required by this section until ninety  days  after
   25  such records have been produced.
   26    (e)  [For  purposes  of this section, and subject to the provisions of
   27  section thirty-one hundred one of this chapter, an attorney who  submits
   28  a  certificate as required by paragraph one or two of subdivision (a) of
   29  this section and the physician, dentist  or  podiatrist  with  whom  the
   30  attorney consulted shall not be required to disclose the identity of the
   31  physician,  dentist  or  podiatrist  consulted  and the contents of such
   32  consultation; provided, however, that when the] WHEN AN attorney makes a
   33  claim under paragraph three of subdivision (a) of this section  that  he
   34  OR SHE was unable to obtain the required consultation AND AFFIDAVIT with
   35  the physician, dentist or podiatrist, the court may, upon the request of
   36  a  defendant  made  prior  to  compliance  by  the  plaintiff  with  the
   37  provisions of [section thirty-one hundred] ARTICLE  THIRTY-ONE  of  this
   38  chapter,  require  the  attorney  to  divulge  to the court the names of
   39  physicians, dentists or podiatrists refusing such consultation.
   40    (f) The provisions of this section shall not be applicable to a plain-
   41  tiff who is not represented by an attorney.
   42    (g) The plaintiff may, in lieu of serving the certificate AND  AFFIDA-
   43  VIT  required  by this section, provide the defendant or defendants with
   44  the information required by paragraph one of subdivision (d) of  section
   45  thirty-one  hundred  one  of  this  chapter  within  the  period of time
   46  prescribed by this section.
   47    (H) WHERE A CERTIFICATE AND AFFIDAVIT IS  REQUIRED  PURSUANT  TO  THIS
   48  SECTION, THE FAILURE TO TIMELY FILE SUCH CERTIFICATE AND AFFIDAVIT SHALL
   49  REQUIRE  THAT  THE  ACTION  BE  DEEMED  A DISMISSAL OF THE COMPLAINT FOR
   50  NEGLECT TO FILE THE ACTION FOR THE PURPOSES OF SECTION TWO HUNDRED  FIVE
   51  OF THIS CHAPTER.
   52    S  3.  Section  1600  of the civil practice law and rules, as added by
   53  chapter 682 of the laws of 1986, is amended to read as follows:
   54    S 1600. Definitions. As used in this article [the  term  "non-economic
   55  loss" includes but is not limited to pain and suffering, mental anguish,
   56  loss of consortium or other damages for non-economic loss]:
       A. 3335                             3

    1    1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
    2  SUFFERING,  INCONVENIENCE,  PHYSICAL IMPAIRMENT OR DISFIGUREMENT, MENTAL
    3  ANGUISH, EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS  OF
    4  CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
    5  DAMAGES.
    6    2.  "ACTUAL  ECONOMIC  DAMAGES" MEANS OBJECTIVELY VERIFIABLE PECUNIARY
    7  DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
    8  AND EARNING CAPACITY, BURIAL COSTS, LOSS OF USE  OF  PROPERTY,  LOSS  OF
    9  GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
   10  SUBSTITUTE  DOMESTIC  SERVICES,  LOSS OF EMPLOYMENT, LOSS OF BUSINESS OR
   11  EMPLOYMENT OPPORTUNITIES, REHABILITATION SERVICES,  CUSTODIAL  CARE  AND
   12  ALL OTHER PECUNIARY DAMAGES.
   13    S  4.  Section  1601  of the civil practice law and rules, as added by
   14  chapter 682 of the laws of 1986 and subdivision 1 as amended by  chapter
   15  635 of the laws of 1996, is amended to read as follows:
   16    S  1601.  Limited  liability  of persons jointly liable.  1.  Notwith-
   17  standing any other provision of law, when a verdict or  decision  in  an
   18  action or claim for personal injury is determined in favor of a claimant
   19  in  an  action  involving two or more tortfeasors jointly liable or in a
   20  claim against the state [and the liability of a defendant is found to be
   21  fifty percent or less of the total liability  assigned  to  all  persons
   22  liable], the liability of [such] A defendant to the claimant for [non-e-
   23  conomic  loss]  THE  CLAIMANT'S  ACTUAL ECONOMIC DAMAGES AND NONECONOMIC
   24  DAMAGES shall not exceed that defendant's equitable share determined  in
   25  accordance  with  the  relative  culpability  of  each person causing or
   26  contributing to the total liability for [non-economic loss]  THE  CLAIM-
   27  ANT'S ACTUAL ECONOMIC DAMAGES AND NONECONOMIC DAMAGES; provided, however
   28  that  the culpable conduct of any person not a party to the action shall
   29  not be considered in determining  any  equitable  share  herein  if  the
   30  claimant  proves  that with due diligence he or she was unable to obtain
   31  jurisdiction over such person in said action (or in a claim against  the
   32  state, in a court of this state); and further provided that the culpable
   33  conduct of any person shall not be considered in determining any equita-
   34  ble share herein to the extent that action against such person is barred
   35  because  the  claimant  has not sustained a "grave injury" as defined in
   36  section eleven of the workers' compensation law.
   37    2. Nothing in this section shall be construed to affect or impair  any
   38  right  of  a  tortfeasor under section 15-108 of the general obligations
   39  law.
   40    S 5. The civil practice law and rules is amended by adding a new arti-
   41  cle 50-C to read as follows:
   42                                 ARTICLE 50-C
   43                          LIMITATION ON NONECONOMIC
   44                                   DAMAGES
   45  SECTION 5051. DEFINITIONS.
   46          5052. DAMAGE AWARDS.
   47    S 5051. DEFINITIONS. AS USED IN THIS ARTICLE:
   48    1. "NONECONOMIC DAMAGES" MEANS NONPECUNIARY DAMAGES ARISING FROM PAIN,
   49  SUFFERING, INCONVENIENCE, PHYSICAL IMPAIRMENT OR  DISFIGUREMENT,  MENTAL
   50  ANGUISH,  EMOTIONAL DISTRESS, LOSS OF SOCIETY AND COMPANIONSHIP, LOSS OF
   51  CONSORTIUM, INJURY TO REPUTATION, HUMILIATION AND ALL OTHER NONPECUNIARY
   52  DAMAGES.
   53    2. "ACTUAL ECONOMIC DAMAGES" MEANS  OBJECTIVELY  VERIFIABLE  PECUNIARY
   54  DAMAGES ARISING FROM MEDICAL EXPENSES AND MEDICAL CARE, LOSS OF EARNINGS
   55  AND  EARNING  CAPACITY,  BURIAL  COSTS, LOSS OF USE OF PROPERTY, LOSS OF
   56  GUIDANCE, COSTS OF REPAIR OR REPLACEMENT OF PROPERTY, COSTS OF OBTAINING
       A. 3335                             4

    1  SUBSTITUTE DOMESTIC SERVICES, LOSS OF EMPLOYMENT, LOSS  OF  BUSINESS  OR
    2  EMPLOYMENT  OPPORTUNITIES,  REHABILITATION  SERVICES, CUSTODIAL CARE AND
    3  ALL OTHER PECUNIARY DAMAGES.
    4    3.  "PERSONAL  INJURY  ACTION"  MEANS  ANY ACTION, INCLUDING BUT IN NO
    5  MANNER LIMITED TO MEDICAL, DENTAL  AND  PODIATRIC  MALPRACTICE  ACTIONS,
    6  WHETHER  IN  TORT,  CONTRACT  OR OTHERWISE, IN WHICH THE PLAINTIFF SEEKS
    7  DAMAGES FOR INJURY TO THE PERSON OR WRONGFUL DEATH.
    8    4. "COMPENSATION" MEANS MONETARY AWARDS.
    9    S 5052. DAMAGE AWARDS. 1. IN ANY PERSONAL INJURY ACTION, THE  PREVAIL-
   10  ING  PLAINTIFF  OR  PERSON  WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
   11  PLAINTIFF MAY BE AWARDED:
   12    (A) COMPENSATION FOR ACTUAL ECONOMIC DAMAGES SUFFERED BY  THE  INJURED
   13  PLAINTIFF  OR  OTHER PERSON WHO CLAIMS INJURY BY OR THROUGH SUCH INJURED
   14  PLAINTIFF; AND
   15    (B) COMPENSATION FOR  NONECONOMIC  DAMAGES  SUFFERED  BY  THE  INJURED
   16  PLAINTIFF  OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED PLAIN-
   17  TIFF, OR AS A CONSEQUENCE OF INJURY TO SUCH INJURED  PLAINTIFF,  NOT  TO
   18  EXCEED TWO HUNDRED FIFTY THOUSAND DOLLARS.
   19    2. THE DAMAGE AWARD RECOVERABLE FOR A PERSONAL INJURY ACTION SHALL NOT
   20  EXCEED THE AMOUNT PERMITTED TO BE AWARDED PURSUANT TO SUBDIVISION ONE OF
   21  THIS SECTION REGARDLESS OF THE NUMBER OF DEFENDANTS TO SUCH ACTION. IF A
   22  JURY  AWARDS  AN AMOUNT FOR NONECONOMIC DAMAGES THAT EXCEEDS THE LIMITA-
   23  TION UNDER SUBDIVISION ONE OF THIS SECTION, THE COURT SHALL  REDUCE  THE
   24  AMOUNT TO CONFORM TO THE LIMITATION.
   25    3.  NO  OTHER  PERSONAL INJURY ACTION MAY BE BROUGHT BY THE PREVAILING
   26  PLAINTIFF OR OTHER PERSON WHO CLAIMS INJURY THROUGH SUCH INJURED  PLAIN-
   27  TIFF,  OR  AS  A  CONSEQUENCE  OF  INJURY  TO SUCH INJURED PLAINTIFF, TO
   28  RECOVER AMOUNTS FOR THE INJURY OR OCCURRENCE THAT  GIVES  RISE  TO  SUCH
   29  PERSONAL INJURY ACTION.
   30    4.  WHERE A DEFENDANT HAS SUCCESSFULLY PLEADED AND PROVED CONTRIBUTORY
   31  NEGLIGENCE ON THE PART OF THE PREVAILING PLAINTIFF PURSUANT  TO  ARTICLE
   32  FOURTEEN-A OF THIS CHAPTER, THE DAMAGE AWARD TO THE PREVAILING PLAINTIFF
   33  SHALL BE DIMINISHED FROM THE AMOUNTS AWARDED PURSUANT TO SUBDIVISION ONE
   34  OF  THIS  SECTION BY THE PROPORTION WHICH THE CULPABLE CONDUCT ATTRIBUT-
   35  ABLE TO THE PREVAILING PLAINTIFF BEARS TO  THE  CULPABLE  CONDUCT  WHICH
   36  CAUSED THE DAMAGES.
   37    5.  NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT THE APPLICA-
   38  TION OF SECTION FORTY-FIVE HUNDRED  FORTY-FIVE  OF  THIS  CHAPTER  TO  A
   39  DAMAGE  AWARD  FOR A PERSONAL INJURY ACTION MADE PURSUANT TO SUBDIVISION
   40  ONE OF THIS SECTION.
   41    6. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE JURY SHALL  NOT  BE
   42  INSTRUCTED OF THE LIMITATION ON NONECONOMIC DAMAGES AS SET FORTH IN THIS
   43  ARTICLE.
   44    S  6.  Subparagraph  (i)  of paragraph 1 of subdivision (d) of section
   45  3101 of the civil practice law and rules, as amended by chapter  184  of
   46  the laws of 1988, is amended to read as follows:
   47    (i) Upon request, each party shall identify each person whom the party
   48  expects  to  call  as  an  expert witness at trial and shall disclose in
   49  reasonable detail the subject matter on which each expert is expected to
   50  testify, the substance of the facts and opinions on which each expert is
   51  expected to testify, the qualifications of each  expert  witness  and  a
   52  summary of the grounds for each expert's opinion. However, where a party
   53  for  good  cause  shown retains an expert an insufficient period of time
   54  before the commencement of trial to give appropriate notice thereof, the
   55  party shall not thereupon be precluded  from  introducing  the  expert's
   56  testimony  at  the  trial  solely  on grounds of noncompliance with this
       A. 3335                             5

    1  paragraph. In that instance, upon motion of any party, made before or at
    2  trial, or on its own initiative, the court may make whatever  order  may
    3  be  just.  [In an action for medical, dental or podiatric malpractice, a
    4  party, in responding to a request, may omit the names of medical, dental
    5  or  podiatric experts but shall be required to disclose all other infor-
    6  mation concerning such experts otherwise required by this paragraph.]
    7    S 7. Subparagraph (ii) of paragraph 1 of subdivision  (d)  of  section
    8  3101  of the civil practice law and rules is REPEALED and a new subpara-
    9  graph (ii) is added to read as follows:
   10    (II) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE OR OF ARTICLE
   11  THIRTY-TWO OF THIS CHAPTER, IN AN ACTION FOR MEDICAL, DENTAL  OR  PODIA-
   12  TRIC  MALPRACTICE,  AT  THE  TIMES  AND  IN THE SEQUENCE DIRECTED BY THE
   13  COURT, SUCH TIMES TO BE PRIOR TO THE SERVICE AND FILING  OF  A  NOTE  OF
   14  ISSUE  UNLESS  THE  COURT  DIRECTS  OTHERWISE AND PRESERVES THE RIGHT OF
   15  EVERY PARTY TO DEPOSE A PERSON WHOSE DISCLOSURE OCCURS SUBSEQUENT TO THE
   16  FILING OF A NOTE OF ISSUE,  EACH  PARTY  SHALL  DISCLOSE  TO  THE  OTHER
   17  PARTIES  THE  IDENTITY OF ANY PERSON WHO MAY BE USED AT TRIAL TO PROVIDE
   18  EXPERT TESTIMONY IN THE CASE AND EACH SUCH DISCLOSURE SHALL BE  ACCOMPA-
   19  NIED  BY A WRITTEN REPORT PREPARED AND SIGNED BY SUCH PERSON. THE REPORT
   20  SHALL CONTAIN A COMPLETE STATEMENT OF ALL OPINIONS TO BE  EXPRESSED  AND
   21  THE BASIS AND REASONS THEREFOR; THE DATA OR OTHER INFORMATION CONSIDERED
   22  BY  SUCH  PERSON  IN  FORMING THE OPINIONS; ANY EXHIBITS TO BE USED AS A
   23  SUMMARY OF OR SUPPORT  FOR  THE  OPINIONS;  THE  QUALIFICATIONS  OF  THE
   24  PERSON,  INCLUDING  A  LIST  OF  ALL PUBLICATIONS AUTHORED BY THE PERSON
   25  DURING THE PRECEDING TEN YEARS; THE COMPENSATION  TO  BE  PAID  FOR  THE
   26  PERSON'S  CONSIDERATION  OF DATA OR OTHER INFORMATION AND FOR HIS OR HER
   27  TESTIMONY; AND A LISTING OF ANY OTHER CASES  IN  WHICH  THE  PERSON  HAS
   28  TESTIFIED AS AN EXPERT AT TRIAL OR BY ORAL DEPOSITION WITHIN THE PRECED-
   29  ING  FOUR  YEARS. EACH PARTY SHALL BE REQUIRED TO PRODUCE EACH PERSON SO
   30  IDENTIFIED BY SUCH PARTY AS AN EXPERT WITNESS, FOR EXAMINATION UPON ORAL
   31  DEPOSITION UPON RECEIPT OF A NOTICE TO TAKE ORAL DEPOSITION  IN  ACCORD-
   32  ANCE WITH RULE THIRTY-ONE HUNDRED SEVEN OF THIS ARTICLE. UNLESS MANIFEST
   33  INJUSTICE  WOULD RESULT, THE COURT SHALL REQUIRE THAT THE PARTY NOTICING
   34  AN ORAL DEPOSITION OF SUCH AN EXPERT WITNESS PAY SUCH WITNESS A  REASON-
   35  ABLE FEE FOR TIME SPENT IN ATTENDING SUCH ORAL DEPOSITION.  IF ANY PARTY
   36  FAILS  TO  IDENTIFY A PERSON AS AN EXPERT WITNESS IN ACCORDANCE WITH THE
   37  PROVISIONS OF THIS CLAUSE, OR IF ANY PARTY  FAILS  TO  MAKE  ANY  PERSON
   38  IDENTIFIED  BY THE PARTY AS AN EXPERT WITNESS AVAILABLE FOR ORAL DEPOSI-
   39  TION IN ACCORDANCE WITH THE PROVISIONS OF THIS CLAUSE, THAT PARTY  SHALL
   40  BE  PRECLUDED  FROM OFFERING SUCH EXPERT'S TESTIMONY AT THE TRIAL OF THE
   41  ACTION.
   42    S 8. This act shall take effect immediately; except that sections two,
   43  three, six and seven of this act shall take effect on the ninetieth  day
   44  after  this  act  shall  have  become  a  law and shall apply to actions
   45  commenced and claims filed on  or  after  the  effective  date  of  such
   46  sections.  The  provisions  of  sections four and five of this act shall
   47  apply to causes of action and claims accruing on or after the  effective
   48  date of this act.
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