Practice point: The Appellate Division affirmed the denial of plaintiff's cross motion to strike the testimony of defendant's
expert concerning the cause of the decedent's death. Upon receipt of defendant's 3101(d)
statement expert disclosure statement, plaintiff's only objection was that the
expert's qualifications failed to include the dates of his residency,
which deficiency defendant then cured. Plaintiff neither rejected the
document nor made any objection to the lack of specificity regarding the
cause of death.
The Appellate Division determined that, having failed to timely object to the lack of specificity in
defendant's expert disclosure statement regarding the cause of the
decedent's death, plaintiff was not justified in assuming that the
defense expert's testimony would comport with the conclusion reached by
the autopsy report. The Appellate Division further determined that plaintiff cannot now be heard to complain that
defendant's expert improperly espoused some other theory of causation
for which there was support in the evidence.
There was, however, a dissent.
Student note: CPLR 3101(d)(1) requires reasonably detailed expert disclosure of the substance of the facts and opinions on which each expert is
expected to testify in order to provide the plaintiff with the
defendant's theories of the case in advance of trial.
Case: Rivera v. Montefiore Med. Ctr., NY Slip Op 08469 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Dismissal of a complaint alleging discrimination under the State and City Human Rights Laws.
