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EXHIBIT B
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NY CLS CPLR § 3101, Part 1 of 3
Current through 2023 released Chapters 1-607
New York Consolidated Laws Service > Civil Practice Law And Rules (Arts. 1 — 100) > Article
31 Disclosure (§§ 3101 — 3140)
§ 3101. Scope of disclosure.
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a party;
(2) a person who possessed a cause of action or defense asserted in the action;
(3) a person about to depart from the state, or without the state, or residing at a greater distance from
the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief
that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry
or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding
disclosure, or who has been retained by such party as an expert witness; and
(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or
required.
(b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall
not be obtainable.
(c) Attorney’s work product. The work product of an attorney shall not be obtainable.
(d) Trial preparation.
1. Experts.
(i) Upon request, each party shall identify each person whom the party expects to call as an expert
witness at trial and shall 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. However, where a party for good cause shown retains an expert an insufficient period of
time before the commencement of trial to give appropriate notice thereof, the party shall not
thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of
noncompliance with this paragraph. In that instance, upon motion of any party, made before or at
trial, or on its own initiative, the court may make whatever order may be just. In an action for
medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of
medical, dental or podiatric experts but shall be required to disclose all other information
concerning such experts otherwise required by this paragraph.
(ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to
and served upon all other parties and filed with the court, offer to disclose the name of, and to
make available for examination upon oral deposition, any person the party making the offer expects
to call as an expert witness at trial. Within twenty days of service of the offer, a party shall accept or
reject the offer by serving a written reply upon all parties and filing a copy thereof with the court.
Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the
offer. If all parties accept the offer, each party shall be required to produce his or her expert witness
for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance
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with rule thirty-one hundred seven of this chapter. If any party, having made or accepted the offer,
fails to make that party’s expert available for oral deposition, that party shall be precluded from
offering expert testimony at the trial of the action.
(iii) Further disclosure concerning the expected testimony of any expert may be obtained only by
court order upon a showing of special circumstances and subject to restrictions as to scope and
provisions concerning fees and expenses as the court may deem appropriate. However, a party,
without court order, may take the testimony of a person authorized to practice medicine, dentistry
or podiatry who is the party’s treating or retained expert, as described in paragraph three of
subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure
authorized by this article with respect to that expert without court order.
(iv) [Repealed]
2. Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise
discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by
or for another party, or by or for that other party’s representative (including an attorney, consultant,
surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking
discovery has substantial need of the materials in the preparation of the case and is unable without
undue hardship to obtain the substantial equivalent of the materials by other means. In ordering
discovery of the materials when the required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other
representative of a party concerning the litigation.
(e) Party’s statement. A party may obtain a copy of his own statement.
(f) Contents of insurance agreement. (1) No later than ninety days after service of an answer pursuant to
rule three hundred twenty or section three thousand eleven or three thousand nineteen of this chapter, any
defendant, third-party defendant, or defendant on a cross-claim or counter-claim shall provide to the
plaintiff, third-party plaintiff, plaintiff on counter-claim, and any other party in the action proof of the
existence and contents of any insurance agreement in the form of a copy of the insurance policy in place at
the time of the loss or, if agreed to by such plaintiff or party in writing, in the form of a declaration page,
under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the
action or to indemnify or reimburse for payments made to satisfy the entry of final judgment. A plaintiff or
party who agrees to accept a declaration page in lieu of a copy of any insurance policy does not waive the
right to receive any other information required to be provided under this subdivision, and may revoke such
agreement at any time, and upon notice to an applicable defendant of such revocation, shall be provided
with the full copy of the insurance policy in place at the time of the loss. Information and documentation, as
evidenced in the form of a copy of the insurance policy in place at the time of the loss or the declaration
page, pursuant to this subdivision shall include:
(i) all primary, excess and umbrella policies, contracts or agreements issued by private or publicly
traded stock companies, mutual insurance companies, captive insurance entities, risk retention groups,
reciprocal insurance exchanges, syndicates, including, but not limited to, Lloyd’s Underwriters as
defined in section six thousand one hundred sixteen of the insurance law, surplus line insurers and self-
insurance programs insofar as such documents relate to the claim being litigated;
(ii) if the insurance policy in place is provided, a complete copy of any policy, contract or agreement
under which any person or entity may be liable to satisfy part or all of a judgment that may be entered
in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment as
referred to in this paragraph, including, but not limited to, declarations, insuring agreements, conditions,
exclusions, endorsements, and similar provisions;
(iii) the contact information, including the name and e-mail address, of an assigned individual
responsible for adjusting the claim at issue; and
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(iv) the total limits available under any policy, contract or agreement, which shall mean the actual
funds, after taking into account erosion and any other offsets, that can be used to satisfy a judgment
described in this subdivision or to reimburse for payments made to satisfy the judgment.
(2) A defendant, third-party defendant, or defendant on a cross-claim or counter-claim required to
produce to a plaintiff or third-party plaintiff or plaintiff on a counter-claim all information set forth in
paragraph one of this subdivision must make reasonable efforts to ensure that the information remains
accurate and complete, and provide updated information to any party to whom this information has
been provided at the filing of the note of issue, when entering into any formal settlement negotiations
conducted or supervised by the court, at a voluntary mediation, and when the case is called for trial,
and for sixty days after any settlement or entry of final judgment in the case inclusive of all appeals.
(3) For purposes of this subdivision, an application for insurance shall not be treated as part of an
insurance agreement. Disclosure of policy limits under this section shall not constitute an admission
that an alleged injury or damage is covered by the policy.
(4) Information concerning the insurance agreement is not by reason of disclosure admissible in
evidence at trial.
(5) The requirements of this subdivision shall not apply to actions brought to recover motor vehicle
insurance personal injury protection benefits under article fifty-one of the insurance law or regulation
sixty-eight of title eleven of the New York codes, rules and regulations.
(g) Accident reports. Except as is otherwise provided by law, in addition to any other matter which may
be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the
regular course of business operations or practices of any person, firm, corporation, association or other
public or private entity, unless prepared by a police or peace officer for a criminal investigation or
prosecution and disclosure would interfere with a criminal investigation or prosecution.
(h) Amendment or supplementation of responses. A party shall amend or supplement a response
previously given to a request for disclosure promptly upon the party’s thereafter obtaining information that
the response was incorrect or incomplete when made, or that the response, though correct and complete
when made, no longer is correct and complete, and the circumstances are such that a failure to amend or
supplement the response would be materially misleading. Where a party obtains such information an
insufficient period of time before the commencement of trial appropriately to amend or supplement the
response, the party shall not thereupon be precluded from introducing evidence at the trial solely on
grounds of noncompliance with this subdivision. In that instance, upon motion of any party, made before or
at trial, or on its own initiative, the court may make whatever order may be just. Further amendment or
supplementation may be obtained by court order.
(i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any
films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a
person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all
portions of such material, including out-takes, rather than only those portions a party intends to use. The
provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are
exempt from disclosure under section eighty-seven of the public officers law.
History
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1975, ch 668, eff Aug 6, 1975; L 1979, ch 268, § 1; L 1980, ch 283, §
1, eff Sept 1, 1980; L 1984, ch 294, § 2, eff Sept 1, 1984; L 1985, ch 294, § 4; L 1986, ch 485, § 4; L 1988, ch 184,
§ 2, eff July 1, 1988; L 1991, ch 165, § 45, eff Oct 1, 1991; L 1993, ch 98, §§ 1, 2, eff Jan 1, 1994; L 1993, ch 574,
§ 1, eff Sept 1, 1993; L 2012, ch 438, § 5, eff Feb 17, 2014; L 2013, ch 23, § 4, eff Feb 17, 2014; L 2021, ch 832, §
2, effective December 31, 2021; L 2022, ch 136, § 1, effective December 31, 2021.
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Annotations
Notes
Editor’s Notes
Laws 1986, ch 485, § 14, eff July 21, 1986, provides as follows:
§ 14. This act shall take effect immediately and shall apply to any acts, omissions or failures occurring on or after
such date; provided, however, that the amendments to sections two thousand eight hundred five-j and twenty-eight
hundred five-k of the public health law made by section thirteen of this act, shall take effect on the first day of
September next succeeding the date on which it shall have become a law.
Laws 1991, ch 165, § 62(l), eff June 12, 1991, provides as follows:
(l) sections forty-five through forty-seven of this act shall take effect October 1, 1991, and shall apply only to
actions where, as of such effective date, no formal written recommendation concerning the question of liability has
been signed by the medical malpractice panel members and forwarded to all the parties. As to all other actions, the
provisions of section 148-a of the judiciary law, in effect on the day immediately preceding such effective date, shall
continue to apply.
Laws 2012, ch 438, § 6, eff Feb 17, 2014, provides as follow:
§ 6. This act shall take effect eighteen months after it shall have become a law. Effective immediately, the addition,
amendment and/or repeal of any rule or regulation necessary for the implementation of the provisions of this act on
its effective date is authorized to be made on or before such effective date.
Laws 2021, ch 832, § 1, eff December 31, 2021, provides:
§ 1. This act shall be known and may be cited as the “comprehensive insurance disclosure act.”
Laws 2021, ch 832, § 4, eff December 31, 2021, provides:
§ 4. This act shall take effect immediately and apply to all actions commenced on or after such effective date (Amd,
L 2022, ch 136, § 2, eff Feb 24, 2022).
Laws 2022, ch 136, § 3, eff February 24, 2022, provides:
§ 3. This act shall take effect immediately provided, however that section one of this act shall take effect on the
same date and in the same manner as a chapter of the laws of 2021 amending the civil practice law and rules
relating to insurance disclosures, as proposed in legislative bills numbers S. 7052 and A. 8041, takes effect.
Derivation Notes
Earlier statutes and rules: CPA §§ 288, 292-a, 1094-a, 1221-c; RCP 9-a; CCP §§ 871, 872, 887, 888; 2 RS 391,
398, §§ 1, 2, 33, 34.
1991 Recommendations of Advisory Committee on Civil Practice:
The Committee unanimously proposes a series of amendments to the Judiciary Law and the Civil Practice Law and
Rules to eliminate the use of medical malpractice panels.
Under present section 148-a of the Judiciary Law, a medical malpractice action may not proceed to trial unless it
first has been heard by a medical malpractice panel. This panel, consisting of a Supreme Court Justice, a physician
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and a lawyer, conducts an informal hearing at which the merits of the action are evaluated. After this hearing, if the
panel members unanimously agree upon a question of liability, they forward to the parties a formal written
recommendation on that question. This recommendation is admissible in evidence at a subsequent trial of the
action, although it will not be binding on the fact-finder.
This procedure mandating use of medical malpractice panels was established in 1974 as part of the Legislature’s
response to a brewing crisis in the medical profession occasioned by the reduced availability and escalated cost of
medical malpractice insurance. L. 1974, c. 657. It was designed to weed out frivolous malpractice claims against
physicians, to provide a structured forum for settlement negotiations and to apprise litigants of the strengths and
weaknesses of their respective cases. It was hoped that realization of these goals would lead to a reduction in the
overall number of medical malpractice suits reaching the trial state and thereby reduce the costs associated with
medical malpractice litigation.
In the years since its inception, use of the medical malpractice panel has come under increasingly severe criticism
in many quarters. * In the main, this criticism has focused upon a perceived failure of the panel procedure to
achieve the goals which the Legislature had sought by its enactment. Thus, some have observed that use of the
panel system has not produced any discernible reduction in the dollar value of settlements and verdicts in medical
malpractice actions. Also, it has been noted that the panel system has not been shown to promote a greater
percentage of settlements – whether during the panel process itself or at any other stage of the action. Others have
urged that the panel system not only fails to accelerate the fair disposition of medical malpractice litigation, but that
it actually represents a source of even greater delay.
The experience of the members of the Committee is that the panel system causes significant practical and
procedural problems. In some counties it is difficult to find physicians in particular medical specialties who are
willing to serve on panels and are not disqualified. Problems arise concerning pre-hearing disclosure between
parties of documents being submitted to panels and post-hearing but pre-trial ex parte communications between
attorneys for the parties and physician-panelists.
The Legislature has shown some sensitivity to these criticisms. In 1985, it enacted comprehensive medical
malpractice reform legislation including, among its several provisions, elimination of the panel requirement in
medical malpractice cases brought in the Fifth Judicial District and in Suffolk County. L. 1985, c. 294, § 14; see
also, Judiciary Law § 148-a(1). This legislation also directed the Chief Administrator to undertake a comparative
analysis of medical malpractice disposition rates in these jurisdictions with those in the Seventh Judicial District in
Nassau County, and, by January 1, 1988, to report his findings, together with appropriate recommendations, to the
Legislature, the Governor and the Chief Judge. L. 1985, c. 294, § 22.
The report that has since been filed largely confirms the validity of the criticisms that have long been directed at use
of the panel system and concludes with a recommendation that such system be abolished. See, Report of the Chief
Administrative Judge On the Impact of Suspending the Use of Medical Malpractice Panels in the Fifth Judicial
District and the County of Suffolk, Dec. 1987, p. 11. Among the principal findings of this report concerning the
processing of medical malpractice cases in the jurisdictions surveyed:
. such cases are processed more quickly from the filing of a certificate of readiness to disposition when a panel
hearing is not required.
• use of the panel process does not appear to have much effect on the incidence of settlement.
* See,Report of the Ad Hoc Committee on Medical Malpractice Panels to the Chief Administrative Judge of the State of New
York on the Operation of Medical Malpractice Panels (March 1980); Medical Malpractice Affirmative Proposals [Position of the
New York State Bar Association as prepared by its Committee on Tort Reparations (December 1983)]; The Medical Malpractice
Issue: Public Interest or Special Interest Legislation? [Position of the New York State Bar Association as prepared by its
Committee on Tort Reparations (April 24, 1985)]; A Balanced Prescription For Change [Report of the New York State Insurance
Department on Medical Malpractice (April 1, 1988)].
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• there are no major differences in the types of case dispositions between the “panel” process and the “no panel”
process.
• only slightly less than half of the panel hearings resulted in a unanimous recommendation concerning liability so
as to be admissible in evidence.
• where panels are not used, mean settlement awards are lower.
For the foregoing reasons, we seek the abolition of the medical malpractice panels. Delays continually frustrate the
administration of justice and distort public perceptions concerning the effectiveness of our judicial system and the
integrity of our legal and medical professions. In our view, such delays are unacceptable and constitute a crisis of
significant proportions justifying prompt amelioration.
This measure would produce annual savings in the Judiciary Budget. It would take effect 90 days after it shall have
become a law, and would apply to actions where no formal written recommendation concerning the question of
liability has been signed by the panel members and forwarded to all the parties.
1990 Recommendations of Advisory Committee on Civil Practice:
Subdivision (a) .
The preamble of subdivision (a) of section 3101 would be clarified to permit disclosure of “matter” that is material
and necessary, conforming to the standard set forth in Allen v. Crowell-Collier Publishing Complaint. , 21 N.Y.2d
403 (1968).
With respect to matrimonial actions and custody and visitation proceedings, however, the Committee does not
intend to affect existing or evolving statutes and decisional law as to the availability of disclosure.
While the Advisory Committee is recommending liberalization of disclosure and the streamlining of disclosure
procedures, it notes that protection against abuse of disclosure procedures is afforded by the power of the court
under section 3103(a) to make a protection order “to prevent unreasonable annoyance, expense, embarrassment,
disadvantage, or other prejudice to any person or the courts,” as well as by the requirement for special
circumstances under section 3101(a)(3) or for a statement of circumstances or reasons for disclosure under section
3101(a)(4).
Section 3101(a)(3) would be amended to list persons authorized to practice dentistry or podiatry so that it
technically conforms to section 3101(d)(1)(i)(ii) which relates to disclosure by medical, dental and podiatric experts.
Subdivision (b) .
Subdivision (b) would be clarified to provide that the privilege in question may be invoked not only by a party to the
action but also by any other person entitled to assert the privilege.
Subdivision (h) .
The CPLR does not contain a provision comparable to Fed. R. Civ. P. 26(e) explicitly requiring a party under certain
circumstances promptly to supplement or amend responses to disclosure requests. New subdivision (h) would
incorporate the substance of the federal rule, which, the Committee believes, establishes a reasonable balance
between the need to maintain the integrity of responses to disclosure requests and the need to avoid imposing on a
party a burdensome obligation to review and update on a continuing basis responses to disclosures requests. New
subdivision (h) would apply to all disclosure devices. Provision is made, tracking CPLR 3101(d)(1)(i) as enacted by
chapter 294 of the Laws of 1985, for introduction of evidence at trial in the court’s discretion where the information
was received too close to trial to provide sufficient time for amendment of the response.
1978 Recommendations of the Committee to Advise and Consult with the Judicial Conference and the Chief
Administrator of the Courts on the Civil Practice Law and Rules:
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This measure would amend CPLR 3101(a) to permit a party to obtain full disclosure of all evidence material and
necessary in the prosecution or defense of an action from a person authorized to practice medicine, who has
provided medical care or diagnosis to the party demanding disclosure or who has been retained by him as an
expert witness, without a showing of unavailability or special circumstances.
This bill would liberalize the “special circumstances” rule only with respect to the physicians specified. Thus,
unavailability or special circumstances would still have to be shown to obtain the deposition of any physician who
provided medical care or diagnosis to the adverse party or who has been retained as an expert witness by the
adverse party.
There is a strong judicial trend toward liberalizing the “special circumstances” provision of CPLR 3101(a). In Villano
v. Conde Nast Publications, Inc., 46 A.D.2d 118 (1st Dept. 1973) the defendant moved to examine the plaintiff’s
treating physicians in an action for invasion of privacy, claiming “special circumstances.” The Appellate Division
reversed Special Term’s denial of the motion, stating that a mere showing by the lawyer that he needs such
witnesses’ pre-trial depositions to prepare fully for the trial should suffice as a “special circumstance.”
There remains a need for statutory provision clearly permitting a party to take the deposition, without the necessity
of showing special circumstances, of a person authorized to practice medicine who has provided medical care or
diagnosis to that party, or who has been retained by him as an expert witness. This measure would supply just such
a provision and thereby provide an additional and valuable tool for the trial lawyer. It would ease the burden on
litigants, lawyers, courts and physicians, especially where shortages of physicians exist. Coupled with CPLR
3117(a) (4), it would reduce the expense of litigation occasioned by physicians personally testifying at trial.
CPLR 3117(a) (4), as amended in 1977, permits the use of a deposition of a “medical witness” at the trial without
the laying of a foundation or showing of special circumstances. Since the term “medical witness” may be
ambiguous, this measure would also amend that provision to substitute the term “a person authorized to practice
medicine.” Amended in such fashion, it would permit the use at trial of the deposition of a person authorized to
practice medicine which was properly taken under CPLR 3101(a), with or without a court order, without showing
special circumstances.
Advisory Committee Notes
Subd (a) of this section wipes the slate clean of the bulk of former statutory and case law limitations on the scope
of disclosure so that the remainder of the section can explicitly deal with limitations. It seems preferable to the
Federal rules, which take up each procedural device separately, thereby making the total policy discernible only
from a reading of all the rules. The main distinctions in our former law which were abolished were the following:
(1) Between witnesses and parties.
(2) Between kinds of cases in which discovery will be permitted, and those in which it will not be permitted.
The exception of privileged matter existed under former New York law as well as under Federal rule 26(b). The
witness may be called; he must claim the privilege when specific questions are asked. The term privilege should be
given the same meaning that it would receive on trial. For example, § 149(4) of the Insurance Law provides that
invoking the patient-doctor privilege to “prevent full disclosure and proof of the nature” of a medical impairment
gives rise to a presumption that a misrepresentation by an applicant for insurance was material. Claiming the
privilege to prevent disclosure under this article should bring the presumption into the case. Cf. Engl v Aetna Life
Ins. Co. 139 F2d 469 (2d Cir 1943).
Subd (c) and Subd (d). The rule laid down by the United States Supreme Court in Hickman v Taylor, 329 US 495
(1947), has been adopted. The committee decided not to adopt the amendment to Federal rule 30(b) proposed in
1946 by the Federal advisory committee on rules for civil procedure. This amendment was rejected by the Supreme
Court but adopted by a number of states which used the Federal rule as a model. E.g., La Rev Stats § 13:3762
(Supp 1954); Minn R Civ P 26.02, 232 Minn Rep (1951); Nev R Civ P 30(b); NJ R Civ P 4:16-2; Utah Code Ann, R
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Civ P 30(b) (1953). There has been enough litigation in the Federal courts subsequent to the Hickman v Taylor
decision to stablize the rule. Where there is a conflict among Federal circuits, it will be desirable to follow the
second circuit in order to encourage in New York a uniform office practice and client-attorney relationship that does
not vary depending upon whether a case is destined for a state or Federal court. The advisory committee rejected
as impractical the possibility of distinguishing between attorneys regularly retained as investigators of accidents by
public utilities and insurance companies and those assigned to particular matters after litigation has begun or been
threatened. Presumably, even the lawyer hired for routine investigations will shape his inquiry and report by what he
considers to be relevant in view of some legal theory. For similar reasons, reports prepared by a layman primarily
for use by attorneys in litigation are exempt. Whether an internal business report of an accident, for example, is
designed for use in litigation or for use by management in disciplining employees, avoiding future accidents, or
making required governmental reports may be a close question best left to the courts. Cf. Pekelis v
Transcontinental & Western Air, Inc. 187 F2d 122 (2d Cir), cert denied, 341 US 951 (1951) Holm v Superior Court,
42 Cal 2d 500, 267 P2d 1025 (1954). Some protection of the work of experts was deemed necessary since experts
work so closely with attorneys that their reports often reflect the attorney’s detailed tactical considerations. The
hired expert also has an ethical obligation not to accept a retainer from the other side. See Taine, Discovery of Trial
Preparations in the Federal Courts, 50 Colum L Rev 1026, 1049–1053 (1950). The restriction is designed to cover
work done for purposes of litigation. It would not include, for example, a routine report of a chemist made in the
normal course of manufacture. Unless they involve trade secrets, a question which the court could consider under
CPLR § 3103, such reports should be available when they are relevant. The exception is subject to CPLR § 3121,
permitting reports of medical examinations to be obtained. The committee considered, but decided against,
explicitly excluding from this section investigations and tests of experts which could no longer be readily duplicated
because of a change in condition. The phrase “withholding it will result in injustice or undue hardship” covers this
possibility. The court has power under CPLR § 3103 to require the party seeking material prepared by or for an
expert to pay part or all of the expense of preparation.
Subd (e). The examining party ought to be able to obtain his own statements without having the difficult burden
of proving fraud and overreaching on the part of an investigator—the usual situation in which this problem arises.
The Federal advisory committee did not make such a recommendation in its report of October, 1955, which was
transmitted to the Supreme Court. However, there is strong support for the rule both in Federal cases and in various
state statutes. Recent authorities have been collected in Wright, Recent Trends in the Practical Use of Discovery,
16 NA CCA LJ 409, 417– 18 & nn. 19–20 (1955). See also 4 Moore, Federal Practice 1149 (1950). The courts
should be relieved of the burden of deciding these cases.
Amendment Notes
2013. Chapter 23, § 4 amended:
By repealing sub (d), par 1, subpar (iv).
The 2021 amendment by ch 832, § 2, deleted the former second through last sentences of (f); and added (f)(1)
and (f)(2).
The 2022 amendment by ch 136, § 1, rewrote (f).
Commentary
PRACTICE INSIGHTS:
OMITTING INFORMATION OTHER THAN EXPERT’S IDENTITY IN MEDICAL, DENTAL OR PODIATRIC
MALPRACTICE ACTIONS
By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC
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General Editor, David L. Ferstendig, Esq.
INSIGHT
The Second Department (recently joined by the Third Department) has correctly recognized that in view of
numerous technological advancements, particularly the internet, it is futile for plaintiff’s counsel to try to conceal the
expert’s identity in medical, dental and podiatric malpractice actions. As CPLR 3101(d)(1)(i) provides, plaintiff’s
counsel should be permitted only to omit the name of the expert, while providing all of the other information required
by the statute. An even better and more realistic result would be for the Legislature to repeal the exception totally
and make expert disclosure in all areas uniform.
ANALYSIS
Statute permits plaintiff to omit name of expert only.
A party may request certain information concerning experts retained by other parties, including the identity of the
expert. CPLR 3101(d)(1)(i). In medical, dental and podiatric malpractice actions, however, a party may respond to
a request by omitting the names of the experts, but must disclose all other information concerning such experts.
Arguments have been made as to whether a party can also omit reference to other information about the expert,
particularly the expert’s qualifications. These arguments are based on the proposition that with the expansion of
computer technology, it is relatively easy for attorneys and their staff to determine the identity of an expert based on
the qualifications provided. Courts have come down on both sides of this issue, and fashioned various remedies
ranging from full disclosure of the expert’s qualifications to the withholding of information that would lead to
revealing the expert’s identity.
Second Department requires plaintiff to establish that expert will be subjected to intimidation if expert’s
identity were revealed.
The Appellate Division for the Second Department ruled that a party must provide all expert information except for
the expert’s identity, as expressly set forth in the statute. Recognizing that the technological changes point “to the
futility of attempting to conceal the identity of expert witnesses in medical malpractice cases,” the court overruled its
earlier decision in Jasopersaud v. Tao Gyoun Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700 (2d Dep’t 1991). The court
held that to obtain relief under the statute, the plaintiff must provide a factual showing of a concrete risk that a
prospective expert medical witness would be subjected to intimidation or threats if the expert’s name were revealed
before trial. The Thomas court, in essence, shifted the burden to the plaintiff to establish that the expert will be
“subjected to intimidation” if the expert’s identity were revealed, before the court would consider limiting the
disclosure of the expert’s qualifications. Thomas v. Alleyne, 302 A.D.2d 36, 45-46, 752 N.Y.S.2d 362, 369-370 (2d
Dep’t 2002). See also Allston-Rieder v. Schwartzman, 2005 N.Y. Misc. LEXIS 8445 (Sup. Ct. N.Y. Co. 2005)
(“However, I believe, as does the Thomas court, that ‘this technological change points to the futility of attempting to
conceal the identity of expert witnesses in medical malpractice cases’ ( 302 A.D.2d at 43); Instead of being forced
to play the game of ‘In how few qualifications can I name your expert?’, all parties should be required to give full
disclosure of each expert's qualifications to help promote settlement or to prepare for trial. Short of such full
disclosure by all parties, plaintiffs seeking to avoid disclosing in ‘reasonable detail’ the expert qualification
information to which defendants are ‘presumptively entitled’ under CPLR 3101(d)(1)(I), should be required to meet
the two-part Thomas test.”).
Third Department joins Second Department.
In Kanaly v. DeMartino, 162 A.D.3d 142, 77 N.Y.S.3d 234 (3d Dep’t 2018), the Third Department joined the Second
Department, rejecting its earlier standard, reasoning that permitting a party to withhold the expert’s qualifications,
“had devolved into a quagmire for trial courts exercising oversight of disclosure; the standard has encouraged the
withholding of information and the filing of motions by both sides, and requires determinations of what information
would reveal the identity of each particular expert on a case-by-case basis…. [I]n most cases our current standard
would permit a party to withhold vast amounts of information and reveal so little about its expert that the opposing
party would be unable to adequately prepare for trial. … Inasmuch as this state's expert disclosure statute is
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already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a
way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.”
Id. at 152-53.
Fourth Department disagrees.
In Thompson v. Swiantek, 291 A.D.2d 884, 736 N.Y.S.2d 819 (4th Dep’t), rearg. denied, 742 N.Y.S.2d 180 (4th
Dep’t 2002) the Fourth Department carved out its own rule, permitting a responding party to withhold information
concerning the expert’s medical school education, and the location of his or her internships, residences and
fellowships.
SCOPE OF DISCLOSURE AFTER ANDON
By David Paul Horowitz, Law Office Of David Paul Horowitz
General Editor, David L. Ferstendig, Law Offices of David L. Ferstendig, LLC
INSIGHT
The Court of Appeals addressed the issue of whether the mother of a child claiming injury due to lead poisoning
could be compelled to submit to I.Q. testing. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740, 709
N.Y.S.2d 873, 731 N.E.2d 589 (2000). The First Department had reversed a trial court order permitting the testing,
while the Second Department in Anderson v. Seigel, 255 A.D.2d 409, 680 N.Y.S.2d 587 (2d Dep't 1998), directed
that authorizations for siblings’ and mother's academic records, as well as mother's I.Q. testing and employment
records were to be exchanged in a lead poisoning case, as they were reasonably calculated to lead to the discovery
of admissible or relevant evidence. The Court of Appeals affirmed the First Department, finding the lower court did
not abuse its discretion in holding that the proof upon which the demanding party’s request was made was
insufficient to justify compelling plaintiff mother to take an I.Q. test. The Court of Appeals further noted that the
decision was not a blanket prohibition against such testing.
ANALYSIS
Proponent of discovery must come forward with sufficient proof.
In support of its motion seeking maternal I.Q. testing, the defendant in Andon furnished an affidavit from a
pediatrician that concluded that maternal I.Q. testing was “extremely relevant” in assessing potential cognitive
development. The pediatrician relied upon unidentified studies, and the plaintiff opposed the motion, arguing that
there was no factual demonstration of relevance and the pediatrician offered no scientific literature in support of the
demand. The Court of Appeals concluded that it was “left with [the pediatrician’s] conclusory statements that
maternal IQ is ‘extremely relevant' without any indication of how he arrived at that conclusion. [Defendant's doctor]
offered no evidence as to why maternal IQ was particularly relevant in the present case.” Andon v. 302-304 Mott
Street Associates, 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 877, 731 N.E.2d 589, 593 (2000) (party seeking the
maternal I.Q. testing failed to come forward with sufficient evidence to support its expert’s conclusory statement that
such testing was relevant).
Decisions on discovery made on case-by-case basis and not disturbed by Court of Appeals unless abuse
of discretion.
Confronted with a seemingly conflicting decision from the Second Department, the Andon court emphasized that
“discovery determinations are discretionary; each request must be evaluated on a case-by-case basis with due
regard for the strong policy supporting open disclosure. Absent an abuse of discretion as a matter of law, this Court
will not disturb such determinations.” Andon v. 302-304 Mott Stree
Preview
FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/14/2023 EXHIBIT B FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 11/14/2023 NY CLS CPLR § 3101, Part 1 of 3 Current through 2023 released Chapters 1-607 New York Consolidated Laws Service > Civil Practice Law And Rules (Arts. 1 — 100) > Article 31 Disclosure (§§ 3101 — 3140) § 3101. Scope of disclosure. (a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. (b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. (c) Attorney’s work product. The work product of an attorney shall not be obtainable. (d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall 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. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph. (ii) In an action for medical, dental or podiatric malpractice, any party may, by written offer made to and served upon all other parties and filed with the court, offer to disclose the name of, and to make available for examination upon oral deposition, any person the party making the offer expects to call as an expert witness at trial. Within twenty days of service of the offer, a party shall accept or reject the offer by serving a written reply upon all parties and filing a copy thereof with the court. Failure to serve a reply within twenty days of service of the offer shall be deemed a rejection of the offer. If all parties accept the offer, each party shall be required to produce his or her expert witness for examination upon oral deposition upon receipt of a notice to take oral deposition in accordance Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 2 of 234 NY CLS CPLR § 3101, Part 1 of 3 with rule thirty-one hundred seven of this chapter. If any party, having made or accepted the offer, fails to make that party’s expert available for oral deposition, that party shall be precluded from offering expert testimony at the trial of the action. (iii) Further disclosure concerning the expected testimony of any expert may be obtained only by court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses as the court may deem appropriate. However, a party, without court order, may take the testimony of a person authorized to practice medicine, dentistry or podiatry who is the party’s treating or retained expert, as described in paragraph three of subdivision (a) of this section, in which event any other party shall be entitled to the full disclosure authorized by this article with respect to that expert without court order. (iv) [Repealed] 2. Materials. Subject to the provisions of paragraph one of this subdivision, materials otherwise discoverable under subdivision (a) of this section and prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation. (e) Party’s statement. A party may obtain a copy of his own statement. (f) Contents of insurance agreement. (1) No later than ninety days after service of an answer pursuant to rule three hundred twenty or section three thousand eleven or three thousand nineteen of this chapter, any defendant, third-party defendant, or defendant on a cross-claim or counter-claim shall provide to the plaintiff, third-party plaintiff, plaintiff on counter-claim, and any other party in the action proof of the existence and contents of any insurance agreement in the form of a copy of the insurance policy in place at the time of the loss or, if agreed to by such plaintiff or party in writing, in the form of a declaration page, under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment. A plaintiff or party who agrees to accept a declaration page in lieu of a copy of any insurance policy does not waive the right to receive any other information required to be provided under this subdivision, and may revoke such agreement at any time, and upon notice to an applicable defendant of such revocation, shall be provided with the full copy of the insurance policy in place at the time of the loss. Information and documentation, as evidenced in the form of a copy of the insurance policy in place at the time of the loss or the declaration page, pursuant to this subdivision shall include: (i) all primary, excess and umbrella policies, contracts or agreements issued by private or publicly traded stock companies, mutual insurance companies, captive insurance entities, risk retention groups, reciprocal insurance exchanges, syndicates, including, but not limited to, Lloyd’s Underwriters as defined in section six thousand one hundred sixteen of the insurance law, surplus line insurers and self- insurance programs insofar as such documents relate to the claim being litigated; (ii) if the insurance policy in place is provided, a complete copy of any policy, contract or agreement under which any person or entity may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the entry of final judgment as referred to in this paragraph, including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions; (iii) the contact information, including the name and e-mail address, of an assigned individual responsible for adjusting the claim at issue; and Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 3 of 234 NY CLS CPLR § 3101, Part 1 of 3 (iv) the total limits available under any policy, contract or agreement, which shall mean the actual funds, after taking into account erosion and any other offsets, that can be used to satisfy a judgment described in this subdivision or to reimburse for payments made to satisfy the judgment. (2) A defendant, third-party defendant, or defendant on a cross-claim or counter-claim required to produce to a plaintiff or third-party plaintiff or plaintiff on a counter-claim all information set forth in paragraph one of this subdivision must make reasonable efforts to ensure that the information remains accurate and complete, and provide updated information to any party to whom this information has been provided at the filing of the note of issue, when entering into any formal settlement negotiations conducted or supervised by the court, at a voluntary mediation, and when the case is called for trial, and for sixty days after any settlement or entry of final judgment in the case inclusive of all appeals. (3) For purposes of this subdivision, an application for insurance shall not be treated as part of an insurance agreement. Disclosure of policy limits under this section shall not constitute an admission that an alleged injury or damage is covered by the policy. (4) Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. (5) The requirements of this subdivision shall not apply to actions brought to recover motor vehicle insurance personal injury protection benefits under article fifty-one of the insurance law or regulation sixty-eight of title eleven of the New York codes, rules and regulations. (g) Accident reports. Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. (h) Amendment or supplementation of responses. A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party’s thereafter obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of noncompliance with this subdivision. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. Further amendment or supplementation may be obtained by court order. (i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law. History Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1975, ch 668, eff Aug 6, 1975; L 1979, ch 268, § 1; L 1980, ch 283, § 1, eff Sept 1, 1980; L 1984, ch 294, § 2, eff Sept 1, 1984; L 1985, ch 294, § 4; L 1986, ch 485, § 4; L 1988, ch 184, § 2, eff July 1, 1988; L 1991, ch 165, § 45, eff Oct 1, 1991; L 1993, ch 98, §§ 1, 2, eff Jan 1, 1994; L 1993, ch 574, § 1, eff Sept 1, 1993; L 2012, ch 438, § 5, eff Feb 17, 2014; L 2013, ch 23, § 4, eff Feb 17, 2014; L 2021, ch 832, § 2, effective December 31, 2021; L 2022, ch 136, § 1, effective December 31, 2021. Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 4 of 234 NY CLS CPLR § 3101, Part 1 of 3 Annotations Notes Editor’s Notes Laws 1986, ch 485, § 14, eff July 21, 1986, provides as follows: § 14. This act shall take effect immediately and shall apply to any acts, omissions or failures occurring on or after such date; provided, however, that the amendments to sections two thousand eight hundred five-j and twenty-eight hundred five-k of the public health law made by section thirteen of this act, shall take effect on the first day of September next succeeding the date on which it shall have become a law. Laws 1991, ch 165, § 62(l), eff June 12, 1991, provides as follows: (l) sections forty-five through forty-seven of this act shall take effect October 1, 1991, and shall apply only to actions where, as of such effective date, no formal written recommendation concerning the question of liability has been signed by the medical malpractice panel members and forwarded to all the parties. As to all other actions, the provisions of section 148-a of the judiciary law, in effect on the day immediately preceding such effective date, shall continue to apply. Laws 2012, ch 438, § 6, eff Feb 17, 2014, provides as follow: § 6. This act shall take effect eighteen months after it shall have become a law. Effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of the provisions of this act on its effective date is authorized to be made on or before such effective date. Laws 2021, ch 832, § 1, eff December 31, 2021, provides: § 1. This act shall be known and may be cited as the “comprehensive insurance disclosure act.” Laws 2021, ch 832, § 4, eff December 31, 2021, provides: § 4. This act shall take effect immediately and apply to all actions commenced on or after such effective date (Amd, L 2022, ch 136, § 2, eff Feb 24, 2022). Laws 2022, ch 136, § 3, eff February 24, 2022, provides: § 3. This act shall take effect immediately provided, however that section one of this act shall take effect on the same date and in the same manner as a chapter of the laws of 2021 amending the civil practice law and rules relating to insurance disclosures, as proposed in legislative bills numbers S. 7052 and A. 8041, takes effect. Derivation Notes Earlier statutes and rules: CPA §§ 288, 292-a, 1094-a, 1221-c; RCP 9-a; CCP §§ 871, 872, 887, 888; 2 RS 391, 398, §§ 1, 2, 33, 34. 1991 Recommendations of Advisory Committee on Civil Practice: The Committee unanimously proposes a series of amendments to the Judiciary Law and the Civil Practice Law and Rules to eliminate the use of medical malpractice panels. Under present section 148-a of the Judiciary Law, a medical malpractice action may not proceed to trial unless it first has been heard by a medical malpractice panel. This panel, consisting of a Supreme Court Justice, a physician Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 5 of 234 NY CLS CPLR § 3101, Part 1 of 3 and a lawyer, conducts an informal hearing at which the merits of the action are evaluated. After this hearing, if the panel members unanimously agree upon a question of liability, they forward to the parties a formal written recommendation on that question. This recommendation is admissible in evidence at a subsequent trial of the action, although it will not be binding on the fact-finder. This procedure mandating use of medical malpractice panels was established in 1974 as part of the Legislature’s response to a brewing crisis in the medical profession occasioned by the reduced availability and escalated cost of medical malpractice insurance. L. 1974, c. 657. It was designed to weed out frivolous malpractice claims against physicians, to provide a structured forum for settlement negotiations and to apprise litigants of the strengths and weaknesses of their respective cases. It was hoped that realization of these goals would lead to a reduction in the overall number of medical malpractice suits reaching the trial state and thereby reduce the costs associated with medical malpractice litigation. In the years since its inception, use of the medical malpractice panel has come under increasingly severe criticism in many quarters. * In the main, this criticism has focused upon a perceived failure of the panel procedure to achieve the goals which the Legislature had sought by its enactment. Thus, some have observed that use of the panel system has not produced any discernible reduction in the dollar value of settlements and verdicts in medical malpractice actions. Also, it has been noted that the panel system has not been shown to promote a greater percentage of settlements – whether during the panel process itself or at any other stage of the action. Others have urged that the panel system not only fails to accelerate the fair disposition of medical malpractice litigation, but that it actually represents a source of even greater delay. The experience of the members of the Committee is that the panel system causes significant practical and procedural problems. In some counties it is difficult to find physicians in particular medical specialties who are willing to serve on panels and are not disqualified. Problems arise concerning pre-hearing disclosure between parties of documents being submitted to panels and post-hearing but pre-trial ex parte communications between attorneys for the parties and physician-panelists. The Legislature has shown some sensitivity to these criticisms. In 1985, it enacted comprehensive medical malpractice reform legislation including, among its several provisions, elimination of the panel requirement in medical malpractice cases brought in the Fifth Judicial District and in Suffolk County. L. 1985, c. 294, § 14; see also, Judiciary Law § 148-a(1). This legislation also directed the Chief Administrator to undertake a comparative analysis of medical malpractice disposition rates in these jurisdictions with those in the Seventh Judicial District in Nassau County, and, by January 1, 1988, to report his findings, together with appropriate recommendations, to the Legislature, the Governor and the Chief Judge. L. 1985, c. 294, § 22. The report that has since been filed largely confirms the validity of the criticisms that have long been directed at use of the panel system and concludes with a recommendation that such system be abolished. See, Report of the Chief Administrative Judge On the Impact of Suspending the Use of Medical Malpractice Panels in the Fifth Judicial District and the County of Suffolk, Dec. 1987, p. 11. Among the principal findings of this report concerning the processing of medical malpractice cases in the jurisdictions surveyed: . such cases are processed more quickly from the filing of a certificate of readiness to disposition when a panel hearing is not required. • use of the panel process does not appear to have much effect on the incidence of settlement. * See,Report of the Ad Hoc Committee on Medical Malpractice Panels to the Chief Administrative Judge of the State of New York on the Operation of Medical Malpractice Panels (March 1980); Medical Malpractice Affirmative Proposals [Position of the New York State Bar Association as prepared by its Committee on Tort Reparations (December 1983)]; The Medical Malpractice Issue: Public Interest or Special Interest Legislation? [Position of the New York State Bar Association as prepared by its Committee on Tort Reparations (April 24, 1985)]; A Balanced Prescription For Change [Report of the New York State Insurance Department on Medical Malpractice (April 1, 1988)]. Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 6 of 234 NY CLS CPLR § 3101, Part 1 of 3 • there are no major differences in the types of case dispositions between the “panel” process and the “no panel” process. • only slightly less than half of the panel hearings resulted in a unanimous recommendation concerning liability so as to be admissible in evidence. • where panels are not used, mean settlement awards are lower. For the foregoing reasons, we seek the abolition of the medical malpractice panels. Delays continually frustrate the administration of justice and distort public perceptions concerning the effectiveness of our judicial system and the integrity of our legal and medical professions. In our view, such delays are unacceptable and constitute a crisis of significant proportions justifying prompt amelioration. This measure would produce annual savings in the Judiciary Budget. It would take effect 90 days after it shall have become a law, and would apply to actions where no formal written recommendation concerning the question of liability has been signed by the panel members and forwarded to all the parties. 1990 Recommendations of Advisory Committee on Civil Practice: Subdivision (a) . The preamble of subdivision (a) of section 3101 would be clarified to permit disclosure of “matter” that is material and necessary, conforming to the standard set forth in Allen v. Crowell-Collier Publishing Complaint. , 21 N.Y.2d 403 (1968). With respect to matrimonial actions and custody and visitation proceedings, however, the Committee does not intend to affect existing or evolving statutes and decisional law as to the availability of disclosure. While the Advisory Committee is recommending liberalization of disclosure and the streamlining of disclosure procedures, it notes that protection against abuse of disclosure procedures is afforded by the power of the court under section 3103(a) to make a protection order “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts,” as well as by the requirement for special circumstances under section 3101(a)(3) or for a statement of circumstances or reasons for disclosure under section 3101(a)(4). Section 3101(a)(3) would be amended to list persons authorized to practice dentistry or podiatry so that it technically conforms to section 3101(d)(1)(i)(ii) which relates to disclosure by medical, dental and podiatric experts. Subdivision (b) . Subdivision (b) would be clarified to provide that the privilege in question may be invoked not only by a party to the action but also by any other person entitled to assert the privilege. Subdivision (h) . The CPLR does not contain a provision comparable to Fed. R. Civ. P. 26(e) explicitly requiring a party under certain circumstances promptly to supplement or amend responses to disclosure requests. New subdivision (h) would incorporate the substance of the federal rule, which, the Committee believes, establishes a reasonable balance between the need to maintain the integrity of responses to disclosure requests and the need to avoid imposing on a party a burdensome obligation to review and update on a continuing basis responses to disclosures requests. New subdivision (h) would apply to all disclosure devices. Provision is made, tracking CPLR 3101(d)(1)(i) as enacted by chapter 294 of the Laws of 1985, for introduction of evidence at trial in the court’s discretion where the information was received too close to trial to provide sufficient time for amendment of the response. 1978 Recommendations of the Committee to Advise and Consult with the Judicial Conference and the Chief Administrator of the Courts on the Civil Practice Law and Rules: Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 7 of 234 NY CLS CPLR § 3101, Part 1 of 3 This measure would amend CPLR 3101(a) to permit a party to obtain full disclosure of all evidence material and necessary in the prosecution or defense of an action from a person authorized to practice medicine, who has provided medical care or diagnosis to the party demanding disclosure or who has been retained by him as an expert witness, without a showing of unavailability or special circumstances. This bill would liberalize the “special circumstances” rule only with respect to the physicians specified. Thus, unavailability or special circumstances would still have to be shown to obtain the deposition of any physician who provided medical care or diagnosis to the adverse party or who has been retained as an expert witness by the adverse party. There is a strong judicial trend toward liberalizing the “special circumstances” provision of CPLR 3101(a). In Villano v. Conde Nast Publications, Inc., 46 A.D.2d 118 (1st Dept. 1973) the defendant moved to examine the plaintiff’s treating physicians in an action for invasion of privacy, claiming “special circumstances.” The Appellate Division reversed Special Term’s denial of the motion, stating that a mere showing by the lawyer that he needs such witnesses’ pre-trial depositions to prepare fully for the trial should suffice as a “special circumstance.” There remains a need for statutory provision clearly permitting a party to take the deposition, without the necessity of showing special circumstances, of a person authorized to practice medicine who has provided medical care or diagnosis to that party, or who has been retained by him as an expert witness. This measure would supply just such a provision and thereby provide an additional and valuable tool for the trial lawyer. It would ease the burden on litigants, lawyers, courts and physicians, especially where shortages of physicians exist. Coupled with CPLR 3117(a) (4), it would reduce the expense of litigation occasioned by physicians personally testifying at trial. CPLR 3117(a) (4), as amended in 1977, permits the use of a deposition of a “medical witness” at the trial without the laying of a foundation or showing of special circumstances. Since the term “medical witness” may be ambiguous, this measure would also amend that provision to substitute the term “a person authorized to practice medicine.” Amended in such fashion, it would permit the use at trial of the deposition of a person authorized to practice medicine which was properly taken under CPLR 3101(a), with or without a court order, without showing special circumstances. Advisory Committee Notes Subd (a) of this section wipes the slate clean of the bulk of former statutory and case law limitations on the scope of disclosure so that the remainder of the section can explicitly deal with limitations. It seems preferable to the Federal rules, which take up each procedural device separately, thereby making the total policy discernible only from a reading of all the rules. The main distinctions in our former law which were abolished were the following: (1) Between witnesses and parties. (2) Between kinds of cases in which discovery will be permitted, and those in which it will not be permitted. The exception of privileged matter existed under former New York law as well as under Federal rule 26(b). The witness may be called; he must claim the privilege when specific questions are asked. The term privilege should be given the same meaning that it would receive on trial. For example, § 149(4) of the Insurance Law provides that invoking the patient-doctor privilege to “prevent full disclosure and proof of the nature” of a medical impairment gives rise to a presumption that a misrepresentation by an applicant for insurance was material. Claiming the privilege to prevent disclosure under this article should bring the presumption into the case. Cf. Engl v Aetna Life Ins. Co. 139 F2d 469 (2d Cir 1943). Subd (c) and Subd (d). The rule laid down by the United States Supreme Court in Hickman v Taylor, 329 US 495 (1947), has been adopted. The committee decided not to adopt the amendment to Federal rule 30(b) proposed in 1946 by the Federal advisory committee on rules for civil procedure. This amendment was rejected by the Supreme Court but adopted by a number of states which used the Federal rule as a model. E.g., La Rev Stats § 13:3762 (Supp 1954); Minn R Civ P 26.02, 232 Minn Rep (1951); Nev R Civ P 30(b); NJ R Civ P 4:16-2; Utah Code Ann, R Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 8 of 234 NY CLS CPLR § 3101, Part 1 of 3 Civ P 30(b) (1953). There has been enough litigation in the Federal courts subsequent to the Hickman v Taylor decision to stablize the rule. Where there is a conflict among Federal circuits, it will be desirable to follow the second circuit in order to encourage in New York a uniform office practice and client-attorney relationship that does not vary depending upon whether a case is destined for a state or Federal court. The advisory committee rejected as impractical the possibility of distinguishing between attorneys regularly retained as investigators of accidents by public utilities and insurance companies and those assigned to particular matters after litigation has begun or been threatened. Presumably, even the lawyer hired for routine investigations will shape his inquiry and report by what he considers to be relevant in view of some legal theory. For similar reasons, reports prepared by a layman primarily for use by attorneys in litigation are exempt. Whether an internal business report of an accident, for example, is designed for use in litigation or for use by management in disciplining employees, avoiding future accidents, or making required governmental reports may be a close question best left to the courts. Cf. Pekelis v Transcontinental & Western Air, Inc. 187 F2d 122 (2d Cir), cert denied, 341 US 951 (1951) Holm v Superior Court, 42 Cal 2d 500, 267 P2d 1025 (1954). Some protection of the work of experts was deemed necessary since experts work so closely with attorneys that their reports often reflect the attorney’s detailed tactical considerations. The hired expert also has an ethical obligation not to accept a retainer from the other side. See Taine, Discovery of Trial Preparations in the Federal Courts, 50 Colum L Rev 1026, 1049–1053 (1950). The restriction is designed to cover work done for purposes of litigation. It would not include, for example, a routine report of a chemist made in the normal course of manufacture. Unless they involve trade secrets, a question which the court could consider under CPLR § 3103, such reports should be available when they are relevant. The exception is subject to CPLR § 3121, permitting reports of medical examinations to be obtained. The committee considered, but decided against, explicitly excluding from this section investigations and tests of experts which could no longer be readily duplicated because of a change in condition. The phrase “withholding it will result in injustice or undue hardship” covers this possibility. The court has power under CPLR § 3103 to require the party seeking material prepared by or for an expert to pay part or all of the expense of preparation. Subd (e). The examining party ought to be able to obtain his own statements without having the difficult burden of proving fraud and overreaching on the part of an investigator—the usual situation in which this problem arises. The Federal advisory committee did not make such a recommendation in its report of October, 1955, which was transmitted to the Supreme Court. However, there is strong support for the rule both in Federal cases and in various state statutes. Recent authorities have been collected in Wright, Recent Trends in the Practical Use of Discovery, 16 NA CCA LJ 409, 417– 18 & nn. 19–20 (1955). See also 4 Moore, Federal Practice 1149 (1950). The courts should be relieved of the burden of deciding these cases. Amendment Notes 2013. Chapter 23, § 4 amended: By repealing sub (d), par 1, subpar (iv). The 2021 amendment by ch 832, § 2, deleted the former second through last sentences of (f); and added (f)(1) and (f)(2). The 2022 amendment by ch 136, § 1, rewrote (f). Commentary PRACTICE INSIGHTS: OMITTING INFORMATION OTHER THAN EXPERT’S IDENTITY IN MEDICAL, DENTAL OR PODIATRIC MALPRACTICE ACTIONS By David L. Ferstendig, Law Offices of David L. Ferstendig, LLC Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVED Page NYSCEF: 11/14/2023 9 of 234 NY CLS CPLR § 3101, Part 1 of 3 General Editor, David L. Ferstendig, Esq. INSIGHT The Second Department (recently joined by the Third Department) has correctly recognized that in view of numerous technological advancements, particularly the internet, it is futile for plaintiff’s counsel to try to conceal the expert’s identity in medical, dental and podiatric malpractice actions. As CPLR 3101(d)(1)(i) provides, plaintiff’s counsel should be permitted only to omit the name of the expert, while providing all of the other information required by the statute. An even better and more realistic result would be for the Legislature to repeal the exception totally and make expert disclosure in all areas uniform. ANALYSIS Statute permits plaintiff to omit name of expert only. A party may request certain information concerning experts retained by other parties, including the identity of the expert. CPLR 3101(d)(1)(i). In medical, dental and podiatric malpractice actions, however, a party may respond to a request by omitting the names of the experts, but must disclose all other information concerning such experts. Arguments have been made as to whether a party can also omit reference to other information about the expert, particularly the expert’s qualifications. These arguments are based on the proposition that with the expansion of computer technology, it is relatively easy for attorneys and their staff to determine the identity of an expert based on the qualifications provided. Courts have come down on both sides of this issue, and fashioned various remedies ranging from full disclosure of the expert’s qualifications to the withholding of information that would lead to revealing the expert’s identity. Second Department requires plaintiff to establish that expert will be subjected to intimidation if expert’s identity were revealed. The Appellate Division for the Second Department ruled that a party must provide all expert information except for the expert’s identity, as expressly set forth in the statute. Recognizing that the technological changes point “to the futility of attempting to conceal the identity of expert witnesses in medical malpractice cases,” the court overruled its earlier decision in Jasopersaud v. Tao Gyoun Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700 (2d Dep’t 1991). The court held that to obtain relief under the statute, the plaintiff must provide a factual showing of a concrete risk that a prospective expert medical witness would be subjected to intimidation or threats if the expert’s name were revealed before trial. The Thomas court, in essence, shifted the burden to the plaintiff to establish that the expert will be “subjected to intimidation” if the expert’s identity were revealed, before the court would consider limiting the disclosure of the expert’s qualifications. Thomas v. Alleyne, 302 A.D.2d 36, 45-46, 752 N.Y.S.2d 362, 369-370 (2d Dep’t 2002). See also Allston-Rieder v. Schwartzman, 2005 N.Y. Misc. LEXIS 8445 (Sup. Ct. N.Y. Co. 2005) (“However, I believe, as does the Thomas court, that ‘this technological change points to the futility of attempting to conceal the identity of expert witnesses in medical malpractice cases’ ( 302 A.D.2d at 43); Instead of being forced to play the game of ‘In how few qualifications can I name your expert?’, all parties should be required to give full disclosure of each expert's qualifications to help promote settlement or to prepare for trial. Short of such full disclosure by all parties, plaintiffs seeking to avoid disclosing in ‘reasonable detail’ the expert qualification information to which defendants are ‘presumptively entitled’ under CPLR 3101(d)(1)(I), should be required to meet the two-part Thomas test.”). Third Department joins Second Department. In Kanaly v. DeMartino, 162 A.D.3d 142, 77 N.Y.S.3d 234 (3d Dep’t 2018), the Third Department joined the Second Department, rejecting its earlier standard, reasoning that permitting a party to withhold the expert’s qualifications, “had devolved into a quagmire for trial courts exercising oversight of disclosure; the standard has encouraged the withholding of information and the filing of motions by both sides, and requires determinations of what information would reveal the identity of each particular expert on a case-by-case basis…. [I]n most cases our current standard would permit a party to withhold vast amounts of information and reveal so little about its expert that the opposing party would be unable to adequately prepare for trial. … Inasmuch as this state's expert disclosure statute is Kawansi Taylor FILED: KINGS COUNTY CLERK 11/14/2023 02:34 PM INDEX NO. 506038/2023 NYSCEF DOC. NO. 25 RECEIVEDPage NYSCEF: 11/14/2023 10 of 234 NY CLS CPLR § 3101, Part 1 of 3 already the most restrictive in the nation, there is no reason for this Court to continue to interpret the statute in a way that permits parties to severely limit the amount of information they provide regarding their expert witnesses.” Id. at 152-53. Fourth Department disagrees. In Thompson v. Swiantek, 291 A.D.2d 884, 736 N.Y.S.2d 819 (4th Dep’t), rearg. denied, 742 N.Y.S.2d 180 (4th Dep’t 2002) the Fourth Department carved out its own rule, permitting a responding party to withhold information concerning the expert’s medical school education, and the location of his or her internships, residences and fellowships. SCOPE OF DISCLOSURE AFTER ANDON By David Paul Horowitz, Law Office Of David Paul Horowitz General Editor, David L. Ferstendig, Law Offices of David L. Ferstendig, LLC INSIGHT The Court of Appeals addressed the issue of whether the mother of a child claiming injury due to lead poisoning could be compelled to submit to I.Q. testing. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740, 709 N.Y.S.2d 873, 731 N.E.2d 589 (2000). The First Department had reversed a trial court order permitting the testing, while the Second Department in Anderson v. Seigel, 255 A.D.2d 409, 680 N.Y.S.2d 587 (2d Dep't 1998), directed that authorizations for siblings’ and mother's academic records, as well as mother's I.Q. testing and employment records were to be exchanged in a lead poisoning case, as they were reasonably calculated to lead to the discovery of admissible or relevant evidence. The Court of Appeals affirmed the First Department, finding the lower court did not abuse its discretion in holding that the proof upon which the demanding party’s request was made was insufficient to justify compelling plaintiff mother to take an I.Q. test. The Court of Appeals further noted that the decision was not a blanket prohibition against such testing. ANALYSIS Proponent of discovery must come forward with sufficient proof. In support of its motion seeking maternal I.Q. testing, the defendant in Andon furnished an affidavit from a pediatrician that concluded that maternal I.Q. testing was “extremely relevant” in assessing potential cognitive development. The pediatrician relied upon unidentified studies, and the plaintiff opposed the motion, arguing that there was no factual demonstration of relevance and the pediatrician offered no scientific literature in support of the demand. The Court of Appeals concluded that it was “left with [the pediatrician’s] conclusory statements that maternal IQ is ‘extremely relevant' without any indication of how he arrived at that conclusion. [Defendant's doctor] offered no evidence as to why maternal IQ was particularly relevant in the present case.” Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 877, 731 N.E.2d 589, 593 (2000) (party seeking the maternal I.Q. testing failed to come forward with sufficient evidence to support its expert’s conclusory statement that such testing was relevant). Decisions on discovery made on case-by-case basis and not disturbed by Court of Appeals unless abuse of discretion. Confronted with a seemingly conflicting decision from the Second Department, the Andon court emphasized that “discovery determinations are discretionary; each request must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure. Absent an abuse of discretion as a matter of law, this Court will not disturb such determinations.” Andon v. 302-304 Mott Stree