William A. Ruskin: Plaintiff's Failure To Disclose Expert Prior To Summary Judgment Proves Fatal

William A. Ruskin: Plaintiff's Failure To Disclose Expert Prior To Summary Judgment Proves Fatal

By William A. Ruskin

In Akron Scott v. Westmore Fuel Company, Inc. (6/14/12) [enhanced version available to lexis.com subscribers], the Appellate Division, First Department, examined the timing of plaintiff's tardy expert disclosure. In that case, plaintiff disclosed his expert for the first time when he submitted an affidavit of the expert in opposition to a motion for summary judgment. The First Department held that the New York County trial court properly rejected the expert affidavit as inadmissible because plaintiff had failed to disclose his expert until after the Note of Issue and Certificate of Readiness had been filed. The First Department also found that the trial court had properly denied plaintiff's request to amend the Bill of Particulars to allege a statutory violation by the defendant because the request to amend was made after the Note of Issue was filed and was thus prejudicial.

In Construction by Singletree, Inc. v. Lowe, (2008 NY Slip Op. 5698 08287), 55 A.D.3d 861 (2d Dep't 2008) [enhanced version], the Second Department reached a similar result. In Singletree, the Second Department held that the trial court "did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proferred by Lowe since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the Note of Issue and Certificate of Readiness attesting to the completion of discovery were filed in this action." The Second Department rejected the position of the dissent, which argued that CPLR 3101(d)(1)(i) applied only to an expert whom a party intends to call at trial and that the trial court should have considered an undisclosed expert opinion submitted in opposition to a motion for summary judgment. In rejecting the dissenting view, the Second Department held:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial. That circumstance, coupled with Lowe's failure to demonstrate how the facts set forth in the experts' affidavits could otherwise be established at trial, justifies the Supreme Court's conclusion that Lowe failed to adequately establish the existence of a material issue of fact necessitating a trial in response to J.C.'s prima facie evidence of entitlement to judgment as a matter of law".

In an article in the New York Law Journal, dated July 26, 2012, titled, "Concerns Over Adoption of 'Singletree' on Expert Affidavits," Robert Tolchin argues that the First Department's decision in Scott "raises alarm bells that the aberrational line of cases starting with the Second Department's decision in [Singletree] - previously confined to the Second Department and not universally followed even there - may be migrating to the First Department." Mr. Tolchin argues that these cases should be disavowed by court rule or the power of their holdings otherwise eviscerated by the New York Legislature. We disagree.

Contrary to Mr. Tolchin's alarm, Scott and Singletree are important precedents that properly establish the requirement that parties to civil litigation, both plaintiffs and defendants, timely disclose their experts. It is unfair for a party to file a motion for summary judgment, after filing of the Note of Issue and Certificate of Readiness, only to be confronted by the affidavit of an expert whose opinions had not previously been disclosed. A summary judgment motion is sufficiently expensive that gamesmanship should be discouraged. It is also a waste of judicial resources to have to sort out expert disclosure issues after the case is placed on the trial calendar and dispositive motions filed.

In litigation conducted in the federal district courts, the time for expert disclosure is set out in the court's Scheduling Order and it is understood that expert disclosure must be completed prior to the filing of dispositive motions. It is a step in the right direction that the First and Second Departments now recognize that the eleventh hour submission of a previously undisclosed expert, in opposition to a motion for summary judgment is unfair. In light of these holdings, it may be advisable for defense counsel to schedule expert disclosures in the body of the Preliminary Conference Order in state court. Then there would be even less question that a late expert disclosure should not be tolerated.

For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.

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