STATE OF NEW YORK
________________________________________________________________________
4592
2011-2012 Regular Sessions
IN SENATE
April 13, 2011
___________
Introduced by Sen. BONACIC -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, in relation to the
time for disclosure of expert witness information; and in relation to
broadening expert disclosure in commercial cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph 1 of subdivision (d) of section 3101 of the civil
2 practice law and rules is amended by adding two new subparagraphs (iv)
3 and (v) to read as follows:
4 (iv) Unless otherwise provided by a rule of the chief administrator of
5 the courts or by order of the court, disclosure of expert information
6 shall be made as follows: the party who has the burden of proof on a
7 claim, cause of action, damage or defense shall serve its response to an
8 expert demand served pursuant to this subdivision on or before sixty
9 days before the date on which the trial is scheduled to commence; within
10 thirty days after service of such response, any opposing party shall
11 serve its answering response pursuant to this subdivision; within
12 fifteen days after service of such response, any party may serve an
13 amended or supplemental response limited to issues raised in the answer-
14 ing response. Unless the court orders otherwise, a party who fails to
15 comply with this subparagraph shall be precluded from offering the
16 testimony and opinions of the expert for whom a timely response has not
17 been given. Where a party's time to disclose expert information pursuant
18 to this subdivision has not yet expired, that party may submit expert
19 testimony in support of or in opposition to a motion for summary judg-
20 ment.
21 (v) The term "expert" shall include any person who will testify with
22 respect to his or her qualifications and give opinions relating to the
23 issues in the case that could not be given by a layperson. However, the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09306-01-1
S. 4592 2
1 term "expert" shall not include a treating physician or other treating
2 health care provider whose records and reports have been timely
3 provided.
4 § 2. Subparagraph (iii) of paragraph 1 of subdivision (d) of section
5 3101 of the civil practice law and rules, as amended by chapter 184 of
6 the laws of 1988, is amended to read as follows:
7 (iii) (A) Further disclosure concerning the expected testimony of any
8 expert may be obtained only by court order upon a showing of special
9 circumstances and subject to such restrictions as to scope and
10 provisions concerning fees and expenses as the court may deem appropri-
11 ate. However, a party, without court order, may take the testimony of a
12 person authorized to practice medicine, dentistry or podiatry who is the
13 party's treating or retained expert, as described in paragraph three of
14 subdivision (a) of this section, in which event any other party shall be
15 entitled to the full disclosure authorized by this article with respect
16 to that expert without court order.
17 (B) Notwithstanding any other provision of this section, in any
18 commercial action in which the amount in controversy appears to the
19 court to be two hundred fifty thousand dollars or more, the court, with-
20 out requiring a showing of special circumstances but upon a showing by
21 any party that the need outweighs the resulting expense and delay to any
22 party, may authorize such further disclosure of an expert, including a
23 deposition, subject to such restrictions as to scope and provisions
24 concerning fees and expenses as the court may deem appropriate. For
25 purposes of this subparagraph, a "commercial action" is an action alleg-
26 ing breach of contract, breach of fiduciary duty, or misrepresentation
27 or other tort, arising out of, or relating to, business transactions or
28 the affairs of business organizations; or involving other business
29 claims determined by the court to be commercial, but shall not include
30 personal injury, wrongful death, matrimonial, or foreclosure actions, or
31 landlord-tenant matters not involving business leases.
32 § 3. This act shall take effect immediately and shall apply to all
33 rules or orders requiring the service of expert responses issued prior
34 to, on or after such effective date.
