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First Dept. Allows Room for Unpleasant Surprise

Posted by Andrew J. Barovick | Oct 20, 2009 | 0 Comments

The Appellate Division, First Dept., has issued a decision saying that it's OK to change experts during the trial, as long as your CPLR 3101(d) exchange put your opponent on fair notice of the substance of the expert's testimony, and the substituted expert conforms to what was promised when he testifies. In S & W Home Improvement Co. v. La Casita II H.D.F.C. , NY Slip Op 07332 (1st Dept. 2009) , the Court also relied on the inclusion within the expert exchange of notification that another representative from the same company as the named expert might be called.

This was a mechanic's lien case, but what the First Dept. did here would obviously apply to any case involving expert disclosure pursuant to CPLR 3101(d).  Therefore, medical malpractice and personal injury cases could arguably be affected by this decision, and I think it is a dangerous one.  It is nice that the new expert stayed within the boundaries of the noticed subject matter.  It is also nice that the expert exchange at issue happened to mention that someone else might be called at trial (as many such documents note).  But if you are the lawyer on the receiving end of this last-minute switch, you've been placed at a disadvantage.  You do not have time to research the new witness by obtaining prior transcripts or educating yourself about his history as an expert witness.  You are thus deprived of the opportunity to develop key impeachment material that may affect the outcome of the case.  You are, in a word, prejudiced.  And trials are surprising enough when you are prepared to the gills.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

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$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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