Opinion
5423/96.
Decided October 28, 2004.
During the trial of this personal injury action, Plaintiff informed Defendant that his medical expert had conducted a second examination of Plaintiff approximately two weeks prior to the start of trial. Until this time, Defendant was only aware of an examination the medical expert performed almost two years ago. The medical expert was due to testify two hours after this disclosure was made, and Defendant orally moved to preclude the expert from testifying about this second examination, alleging that not to do so would unduly prejudice the defense.
Section 3101(d) of the CPLR states:
1. Experts (I). Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. . . .
It is undisputed that the statute itself gives no specific time period for such notice or disclosure. Shopsin v. Silben Silben, 289 AD2d 220, 733 N.Y.S. 2d 697 (2d Dept. 2001) ["CPLR 3101(d)(1) does not require a party to respond to a demand for expert witness information at any specific time"]. In determining the appropriateness of the admission of the expert testimony under circumstances in which the time of notice is shortly before trial, the court is given a degree of latitude in exercising its discretion.
The courts have enunciated a two-pronged test to guide judges in the exercise of this discretion:
1. The court may permit the introduction of such testimony if there is no showing of intentional or wilful failure to give notice. Young v. Long Island University, 297 AD2d 320, 746 N.Y.S. 2d 390 (2d Dept. 2002) [the court held that preclusion of the expert's testimony for failure to comply with CPLR 3101(d) is improper unless there is a showing of intentional or wilful failure to disclose]; and
2. The court may permit the introduction of such testimony if there is no showing of prejudice to the opposing party. Lanoce v. Kempton et al., 8 AD3d 449, 779 N.Y.S. 2d 100 (2d Dept. 2004) [the court denied preclusion of the expert witness' testimony because no evidence was presented that demonstrated actual prejudice to the opposing party].
In the instant action, there is no evidence that Plaintiff's failure to notify Defendant of its medical expert's second examination was wilful or intentional. Plaintiff indicated that the results of the second examination were identical to the results of the first examination, of which Defendant was aware.
Under circumstances in which defendants have claimed potential prejudice, courts have permitted the expert to testify but have then granted such other relief as they deemed appropriate to avoid any prejudice. Such relief has included requiring the party presenting the expert to bear the costs of a rebuttal witness or permitting an adjournment prior to cross-examination of the expert. St. Hilaire v. White, 305 AD2d 209, 759 N.Y.S. 2d 74 (1st Dept. 2003). Neither of such remedies was requested in this case.
In order to avoid any potential prejudice, the court will limit the expert's testimony regarding the second examination to the specifics of the tests performed and their results. However, since Defendant has been unable to demonstrate any specific prejudice that will result from the expert's testimony, the court feels that to preclude the testimony in toto regarding the second examination would go against the weight of judicial authority that favors the admission of all relevant evidence. See generally, Marchione v. Greenky, 5 AD3d 1044, 773 N.Y.S. 2d 657 (4th Dept. 2004).
Based on the foregoing, Defendant's motion to preclude is denied.