NY to Require Broader Expert Witness Disclosure in Med Mal Cases

Can I withhold the name of my expert witness in a New York medical malpractice case?

Your expert witness will often prove to be one of the most important elements to your medical malpractice case. When it comes to the disclosure of expert witness testimony, New York has long followed its own unique policies. Post-1985, New York courts have held that plaintiffs in a medical malpractice case must disclose the substance of the testimony they will submit, but can withhold the expert’s identity. Disclosure rules tightened even further throughout the years, while finally moving towards the current requirement of more complete disclosure. Our New York medical malpractice lawyers explore the history and more recent developments in case law concerning expert witness disclosure below.

CPLR 3101(d)

Originally, CPLR 3101(d), which governs expert witness disclosure, held that expert opinion was not subject to disclosure in advance of trial. The law was amended in 1985 to move New York more in line with other jurisdictions. Post-1985, NY law require disclosure of the subject matter of the expert’s testimony. Counsel needed to disclose both the expert’s qualifications and a summary of the grounds on which the testimony will be based. The law required disclosure of the names of expert witnesses, except in medical, dental, and podiatric malpractice cases.

The name of the medical expert was thought to be important to withhold out of concerns that the expert could be subjected to pressure to dissuade their testimony. However, as the internet era emerged, it became clear that opposing counsel could identify the expert witness based on his or her qualifications with ease. In response, the New York Appellate Division, Second Department, took the position that the plaintiff could withhold details as to the expert’s qualifications when counsel could substantiate that there is a reasonable probability disclosure of these details could result in discovery of the expert’s identity. Further, the disclosure must be thought to subject the expert to annoyance, prejudice, or disadvantage.

In the 2018 case of Kanaly v. DeMartinom the Appellate Division, Third Department, held that the plaintiff should be required to fully disclose the expert’s qualifications, even if it will lead to the expert’s identification. A narrow exception exists when the plaintiff can make a showing that there is a reasonable probability that the medical expert would be subjected to threats or intimidation should his identity be released. With so many complexities surrounding medical malpractice cases and expert disclosure, it is vital that plaintiffs retain the assistance of an experienced medical malpractice attorney to assist them with their case.

About the Author
Of all the different areas in medical malpractice, it is podiatry malpractice that has had a particular interest to me. With 42 years practicing law and representing hundreds of victims of malpractice, I have created a law practice in which my clients are comfortable knowing that their case is being handled with my personal attention, in the most professional manner, and without unreasonable delays.