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Finally! Depositions of Expert Witnesses in Commercial Division Cases

In the September 2012 column, we reviewed Chief Judge Jonathan Lippman’s Task Force Report and Recommendations for the Commercial Division which included certain proposed procedural reforms to the Commercial Division Rules, the most notable being an amendment of the expert disclosure process to mirror expert disclosure in the Federal Courts.

On September 23, 2013, Chief Administrative Judge A. Gail Prudenti amended Rule 13 of the Rules of Practice for the Commercial Division, effective immediately, by adding a new section (c) providing for enhanced expert disclosure in Commercial Division cases.

New Rule 13(c) provides that no later than thirty days prior to the completion of fact discovery, the parties shall confer on a schedule for expert disclosure (if any party intends to introduce expert testimony at trial).  Rule 13(c) provides that all expert disclosure “shall be completed no later than four months after the completion of fact discovery.”  However, if a party objects to this procedure or timetable, the parties shall request a conference to discuss the objection with the court.

The schedule for expert disclosure includes the ordinary identification of experts and exchange of information concerning the expert’s proposed testimony as per CPLR 3101(d), but now expressly provides for depositions of testifying experts.  Further, the new Rule 13(c) requires that expert disclosure be accompanied by a written report (unless otherwise stipulated or Ordered by the court) that is prepared and signed by the witness if:  (1) the witness is retained or specially employed to provide expert testimony in the case; or (2) the witness is a party’s employee whose duties regularly involve giving expert testimony.  Rule 13(c) mandates that the expert’s written report must contain the following:

  1. a complete statement of all opinions the witness will express and the basis and the reasons for them;
  2. the data or other information considered by the witness in forming the opinion(s);
  3. any exhibits that will be used to summarize or support the opinion(s);
  4. the witness’s qualifications, including a list of all publications authored in the previous 10 years;
  5. a list of all other cases at which the witness testified as an expert at trial or by deposition during the previous four years; and
  6. a statement of the compensation to be paid to the witness for the study and testimony in the case.

According to the new rules, the note of issue and certificate of readiness may not be filed until the completion of expert disclosure. Rule 13(c) also addresses late expert disclosure and expressly states that “Expert disclosure provided after these dates without good cause will be precluded from use at trial.”  The alteration of Rule 13(c) provides a bright line timeframe to determine whether expert disclosure is timely, a welcome reprieve from the varying decisions that have historically addressed the topic of preclusion of expert testimony.  For example, although the Second Department decision of Construction by Singletree Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dep’t 2008) stood for a bright-line rule on preclusion of an expert affidavit for untimely expert disclosure, the later decision in Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dep’t 2012) rejected a bright-line rule, stating that a trial court still maintains discretion to refuse to consider a proposed expert opinion when a disclosure is inexplicably not served prior to the filing of the Note of Issue/Certificate of Readiness.  Specifically, Rivers held that:

the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101(d)(1)(i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely.

The addition of Rule 13(c) should help to limit some of the uncertainty, and provide a point of reference for counsel that abide by the governing rules.

Rule 13(c) is a huge opportunity for Commercial Division practitioners, and is the latest effort to streamline practice there, akin to practice in Federal Court.  By mandating the service of expert reports, coupled with the opportunity to depose an expert witness prior to the filing of the Note of Issue, the new Rule will effectively mandate an earlier evaluation of the strengths and weaknesses of claims which, ideally, will correspond with an earlier resolution of cases.




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