Jasopersaud v. Rho

• Decision Date: 22 July 1991
• Citation: 169 A.D.2d 184,572 N.Y.S.2d 700
• Parties: Jainarine JASOPERSAUD, etc., Respondent, v. Tao Gyoun RHO, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 700

572 N.Y.S.2d 700

169 A.D.2d 184

Jainarine JASOPERSAUD, etc., Respondent, v. Tao Gyoun RHO, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

July 22, 1991.

Kopff, Nardelli & Dopf, New York City (Martin B. Adams and Charles K. Faillace, of counsel), for appellants.

Fuchsberg & Fuchsberg, New York City (Martin Diennor and Abraham Fuchsberg, of counsel), for respondent.

Before MANGANO, P.J., and KOOPER, HARWOOD and BALLETTA, JJ.

KOOPER, Justice.

In this medical malpractice action, the appellants served identical demands for expert witness information pursuant to CPLR 3101(d)(1)(i), which requested disclosure of the following items:

"1. The name of each person whom you expect to call as an expert witness at trial.

"2. Disclose in reasonable detail the qualifications of each expert witness. In a medical malpractice case include the following:

"a. Where did the expert attend medical school and when did he/she graduate?

"b. Did the expert attend internship, residency and/or fellowship programs? If so, where and when?

"c. Does the expert specialize in any areas of medicine?

"d. Is the expert Board Certified in any areas of medicine?

"e. Is the expert licensed to practice medicine in the United States? If so, where and when was he/she licensed "f. What are the expert's hospital affiliations, if any?

"3. Disclose in reasonable detail the subject matter on which each expert is expected to testify.

"4. Disclose in reasonable detail the substance of the facts and opinions on which each expert is expected to testify.

"5. Disclose in reasonable detail a summary of the grounds for each expert's opinion. In a medical malpractice case include:

"a. A description of every medical and/or hospital record relied upon.

"b. A list of all textbooks, treatises and/or articles relied upon".

The plaintiff thereafter moved for a protective order, arguing, inter alia, that the items relating to the expert's qualifications were designed to elicit information in such detail that compliance with the requests would be tantamount to revealing the expert's identity. The appellants cross-moved for an order compelling compliance with their demands. Significantly, CPLR 3101(d)(1)(i) permits discovery, inter alia, of an expert's "qualifications", while at the same time authorizing a party to shield an expert's identity from disclosure in an action for medical, dental, or podiatric malpractice.

By order dated December 14, 1989, the Supreme Court granted the plaintiff's motion, without opinion, vacating the appellants' discovery requests in their entirety, "without prejudice to the service of properly framed demands". The court similarly denied the appellants' cross motion to compel disclosure. The appellants now appeal, arguing that the Supreme Court erred in denying their cross motion to compel disclosure of the "expert witness" information requested. The order should be modified.

CPLR 3101(d)(1)(i) was enacted as part of a legislative package aimed at reform in medical malpractice litigation (L.1985, ch. 294, § 4) and reflected the Legislature's view that expanded disclosure with respect to expert witnesses would, among other things, discourage parties "from asserting unsupportable claims or defenses" and promote "settlement by providing both parties an accurate measure of their adversaries' case" (Mem. of State Exec. Dept. in support of L.1985, ch. 294, McKinney's 1985 Session Laws of N.Y., ch. 294, at 3019, 3025; see, Saar v. Brown & Odabashian, 139 Misc.2d 328, 332, 527 N.Y.S.2d 685; McGoldrick v. Young Health Center, 135 Misc.2d 200, 201-204, 514 N.Y.S.2d 872; 3A Weinstein-Korn-Miller, N.Y.Civ.Prac. p 3101.52a; Siegel, N.Y.Prac., § 348A [2d ed. 1990]; Siegel, 1985 Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3101:29 [1991 Supplementary Pamphlet], at 13-14). The amendment effected a significant and material change with respect to the disclosure of information pertaining to expert witnesses; indeed, "[p]rior to 1985 CPLR 3101(d) specifically provided that the opinion of an expert, prepared for litigation, was not subject to disclosure" (Pizzi v. Muccia, 127 A.D.2d 338, 339, 515 N.Y.S.2d 341; see also, Rosario v. General Motors Corp., 148 A.D.2d 108, 111-112, 543 N.Y.S.2d 974; Timmons v. Hecker, 110 A.D.2d 762, 488 N.Y.S.2d 49; 3A Weinstein-Korn-Miller, N.Y.Civ.Prac. p 3101.52a). As amended, CPLR 3101(d)(1)(i) now requires a party to "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" (Siegel, N.Y.Prac. § 348A, at 503 [2d ed. 1990]; Pizzi v. Muccia, supra ). The statute further provides that in an action for medical, dental or podiatric malpractice, a party may "omit" the identity of medical, dental or podiatric expert witnesses. ^* This exception was addressed to "the perceived problem of the exertion of direct or indirect pressure by some physicians to discourage their colleagues from giving expert testimony against them" (Rubenstein v. Columbia Presbyt. Med. Center, 139 Misc.2d 349, 352, 527 N.Y.S.2d 680; see, Siegel, N.Y.Prac. § 348A, at 504 [2d ed. 1991]; accord, Pizzi v. Muccia, supra, 127 A.D.2d at 340-341, 515 N.Y.S.2d 341; Siegel, 1988 Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3101:41A. [1991 Supplementary Pamphlet], at 7-8; McGoldrick v. Young Health Center, supra, 135 Misc.2d at 200-204, 514 N.Y.S.2d 872).

Although CPLR 3101(d)(1)(i) neither defines the term "qualifications" nor places limitations upon a demand therefor, the term has been analogized to the evidentiary standards generally applicable to the admission of expert testimony at trial (see, Pizzi v. Muccia, supra, 127 A.D.2d at 340-341, 515 N.Y.S.2d 341; see also, Hamilton v. Wein, 132 Misc.2d 1023, 1026, 506 N.Y.S.2d 387). It is well settled in this respect that an expert "should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532; Molinari v. Conforti & Eisele, 54 A.D.2d 1113, 388 N.Y.S.2d 782; McCormick, Evidence, § 13 [2d ed.]; Richardson, Evidence §§ 366-388 [Prince 10th ed]; Hamilton v. Wein, supra, 132 Misc.2d at 1026, 506 N.Y.S.2d 387). It is reasonable to conclude then, that inquiries bearing upon the skill, training, education, knowledge and experience of an expert fall within the intended scope of the statutory term (see, Hamilton v. Wein, supra, at 1026, 506 N.Y.S.2d 387; see also, Pizzi v. Muccia, supra, 127 A.D.2d at 340-341, 515 N.Y.S.2d 341). There can be little question, moreover, that a liberal construction of the term "qualifications" comports with the framers' intent to remediate the perceived crisis in medical malpractice litigation by broadening the scope of discovery concerning expert witnesses.

On the other hand, the Legislature could not have intended to undermine a party's statutory right to omit an expert's identity by authorizing excessively detailed demands for an expert's qualifications (see, Jones v. Putnam Hosp. Center, 133 A.D.2d 447, 519 N.Y.S.2d 665). Accordingly, in order to harmonize and effectuate the objectives sought to be achieved by the competing provisions of the statute, the desirability of broad disclosure must be balanced against the concern that the information requested will "effectively lead to the disclosure of the expert's identity" (Jones v. Putnam Hospital Center, supra, at 447, 519 N.Y.S.2d 665; Renucci v. Mercy Hosp., 124 A.D.2d 796, 508 N.Y.S.2d 518). While each case will necessarily vary upon the particular circumstances involved and the nature of the demands made, a trial judge assessing the propriety of a request for expert witness information must weigh the relevant policy interests involved, i.e., the Legislature's intent to materially expand...