Plaintiff’s Failure To Disclose Expert Prior To Summary Judgment Proves Fatal

In Akron Scott v. Westmore Fuel Company, Inc. (6/14/12), 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), 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.


ESI In New York State Court Practice

Are defendants in New York product liability and toxic tort litigation better off in federal court than in state court? Federal court discovery rules certainly are more liberal than state court discovery rules. There, plaintiff’s experts are subject to deposition and, if appropriate, Daubert challenges. In contrast, state court provides only minimal expert disclosure. However, state court rules concerning the production of electronically stored information (“ESI”) may be more favorable to corporate defendants litigating in state court. In state court, the general rule is that the requesting party pays for the defendant’s ESI retrieval. In federal court, the court will apply “proportionality” concepts, and balance the importance of the discovery with the burden on the producing party. Thus, the result of the burden shifting analysis is somewhat more complex and subject to more variables. As reported in this space on November 4, 2009, (“Cost Allocation of E-Discovery in NY Trial Courts”), the Joint Committee on Electronic Discovery, convened by the Association of the Bar of the City of New York, has recommended that the legislature amend the CPLR to address time-consuming ESI disclosure disputes. The new proposed CPLR rule is expected to address a litigant’s duty to preserve ESI in anticipation of litigation; the scope of that duty; and the scope of ESI production. 

An article in Kramer Levin’s Electronic Discovery Update (January 2010), “Cost Shifting in New York: Forum Makes All the Difference,” discusses the background of the general presumption in state court that the requesting party pays for the cost of discovery. Although the CPLR does not explicitly apply this presumption to ESI costs, New York state courts have followed this presumption when deciding how to allocate e-discovery costs. In Lipco Elec. Corp. v. ASG Consult. Corp., for example, the court found that “… cost shifting of electronic discovery is not an issue in New York, since the courts have held that, under the CPLR, the party seeking discovery should incur the costs.” Lipco Elec. Corp. v. ASG Consult. Corp., 4 Misc.3d 1019(A), 2004 WL 1949062 (Sup. Ct. Nassau Co. Aug 18, 2004). In contrast to state court practice, the standard under federal jurisprudence is less clear cut.  The Hon. Shira Scheindlin (SDNY) has articulated a multi-factored balancing test, which has been influential in guiding determinations of when the cost of producing “inaccessible” data should be shifted to the requesting party. Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003). The Kramer Levin Update observes that a recent New York trial court opinion declined to apply this federal approach, stating that it was “not empowered – by statute or case law – to overturn the well settled rule in New York state that the party seeking discovery bear the cost incurred in its production.” T.A. Ahern Contractors Corp. v. Dormitory Auth. of the State of N.Y., 2009 WL 806779 (Sup. Ct. N.Y. Co. Mar. 19, 2009). Citing the policy behind the rule, the court observed that the requester-pays standard gives a party “a strong incentive to formulate its discovery requests in a manner as minimally burdensome as possible.”  I predict that the differences between state and federal ESI practice will narrow in the near term, possibly with the promulgation of a CPLR rule, and that New York will ultimately adopt a more federal approach modeled on the influential Sedona Conference Working Group template.  However, for the present, a New York state court plaintiff runs the risk of incurring substantial costs in demanding burdensome ESI from a corporate defendant.  Be careful what you wish for!