Westchester Women’s Bar Association
October 23, 2007
Joseph J. Brophy, Esq.
McCarthy Fingar, LLP
11 Martine Ave.
White Plains, NY 10606
Expert Witnesses in Matrimonial Cases
The Hon. Lewis J. Lubell, The Hon. Joel M. Aurnou, Eugene DeBlasio, M.D.
TABLE OF CONTENTS
4. How to Locate Appropriate Experts 7
5. How to Work with Experts 7
Exhibit A – Specimen Expert Report in Matrimonial Case
Exhibit B -Checklist for Retaining a Testifying Expert
( with the permission of Janabeth Fleming, R.N.)
Exhibit C – Specimen CPLR §3101(d) Response
The traditional formulation of the required basis of expert opinion is that “It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness (Weibert v. Hanan,202 N. Y. 328, 331; Marx v. Ontario Beach Hotel & Amusement Co.,211 N. Y. 33, 38). He cannot reach his conclusion by assuming material facts not supported by evidence (People v. Patrick,182 N. Y. 131, 172). Cassano v. Hagstrom, 5 N.Y.2d 643,644 (1959.)
This “settled and unquestioned law” has like so many other verities, if not eroded over the years, at least developed. It is now a frequent practice for proponents of experts to have the expert state the opinion “up front”, and then explain the basis of the opinion. In so doing, it may be revealed that the expert has used his or her opinion as a “conduit” for hearsay that may or may not be admissible. The limits within which experts may use hearsay as a basis of their opinions are a fertile basis for trial court rulings and subsequent appeals.
“The issue of when a proponent may present inadmissible facts underlying an admissible opinion has, however, been discussed by courts in other jurisdictions, and in many law review articles ( see authorities cited in Kaye et al., The New Wigmore: Expert Evidence § 3.7  ). And in 2000, rule 703 of the Federal Rules of Evidence (“Bases of Opinion Testimony by Experts”) was amended to deal with this issue. The last sentence of the rule now provides: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.” We are not called upon to decide here, and do not decide, whether the New York rule is the same as, or less or more restrictive than, this federal rule.”
People v. Goldstein, 6 N.Y.3d 119, 127,128 (2005).
“True, at one time the courts in this State had prohibited an expert from expressing an opinion based upon material not in evidence (see People v. Samuels, 302 N. Y. 163, 172; People v. Keough, 276 N. Y. 141, 146). More recently, however, in People v. DiPiazza (24 NY2d 342, 351), the court held that a psychiatrist could, in giving his opinion, rely, in part, upon pretrial psychological and medical tests and examinations never introduced in evidence. Notably, and as already observed, the reasoning of the court, in People v. Stone (35 NY2d 69, 74-75, supra.;), arguably suggested that a psychiatrist might give a legally competent opinion without reliance exclusively upon observation of the defendant and facts in evidence. Both the Stone and DiPiazza cases reflect to some degree a policy which would allow an expert to base his opinion on material not in evidence, provided the data relied upon is of the kind ordinarily accepted by experts in the field. People v. Sugden, 35 N.Y.2d 453, 460 (1974).
We would like to believe that there are few lawyers practicing in any field who are unaware of the long running controversy in the trial courts as to what criteria the Courts should apply to determine if the proposed testimony of an expert is sufficiently “reliable” to be considered by the finder of fact. Kumho Tire Co. v. Carmichael, 119 S. Ct 1167 (1999) resolved that controversy – at least in principle – in the Federal courts. The four pronged “reliability” test of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) is applicable to all forms of proposed expert testimony in all the Federal courts. The four factors, originally limited to the physical sciences, now may be applied to any expert testimony. The factors are: testing, peer review and publication, known error rates and “acceptance” in the relevant scientific community. They may not all be relevant in any given case, but it is imperative for the attorney to at least be aware of these factors when venturing out of the State Courts.
In the New York Courts, the Daubert test is not applicable - yet. Nevertheless, challenges to expert opinion are increasingly frequent in the New York Courts, where the test that is applied is whether the testimony has “general acceptance” in the relevant scientific field. “While foundation concerns itself with the adequacy of the specific procedures used to generate the particular evidence to be admitted, the test pursuant to Frye v. United States (293 F. 1013) poses the more elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.” People v. Wesley, 83 N.Y.2d 417, 423 (1994).
Nor is the Frye/Wesley rule limited to the facts of Wesley, where the reliability of experimental DNA evidence was in controversy. Examples of preclusion of expert testimony in the State courts are increasing. See, e.g., Del Maestro v. Grecco, 16 A.D. 3d. 364 (2d. Dept., 2005), in which an expert’s theory of causation of an infant’s brain injury was rules inadmissible due to lack of medical literature to support it.
However, support in the medical literature is not essential for admissibility of a medical opinion in New York. Recently, the Second Department reversed a lower court’s the dismissal of a drug product liability case based on lack of support in the literature for plaintiff’s theory of causation. “While it is conceded that the plaintiff's experts did not produce medical literature which expressly supported their view that an excessive dose of Zocor caused the plaintiff to develop polymyositis, they supported their theory of a causal nexus between an excessive dose of Zocor and polymyositis with generally accepted scientific principles and existing data” Zito v. Zabarsky, 28 A.D.3d 42, 45 (2d Dept., 2006)
i. Technical strategies
ii. Discovery strategies
iii. Strategies of persuasion
i. To You, the Lawyer
ii. To the Finder of Fact
3. Examples of Areas in Which Experts May be Helpful – or Essential
a. Personal Injury/Medical Malpractice/Product Liability
4. How to Locate Appropriate Experts
ii. Westlaw/ Jury Verdict Reporter
iii. Literature Searches
5. How to Work with Experts
6. Discovery Requirements and Pitfalls
Discovery of Expert Opinions in State Court – CPLR §3101(d) is the starting point for expert disclosure in State court. Although it has been on the books since 1987, and subject of many reported opinions, this section seems to be considerably misunderstood even among the negligence bar, who need to comply with it in most cases. The relevant language is ambiguous, to say the least, leaving considerable scope for what may charitably be termed creativity by lawyers, and requiring correspondingly careful exercise of discretion by the courts.
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.
Undefined terms that have engendered litigation include” “expert witness,” and “reasonable detail”. To what extent the “subject matter,” “substance of facts and opinions” and “summary of grounds need to be disclosed, and when prior to trial an expert must be retained and disclosed are questions that have occupied a generation of commentators. The right to withhold the identity of experts in medical malpractice cases is, thankfully, beyond the scope of this presentation. It should be noted, that CPLR §3101(d) is silent as to disclosure of experts’ reports, although court rules and case law may require disclosure of such reports in certain circumstances.
Presumably because CPLR §3101(d) gives trial courts such wide discretion in applying it provisions, most of the important case law comes from the various Appellate Divisions. Cases addressing the more obvious problems raised by CPLR §3101(d) are discussed below.
“The Supreme Court also erred in precluding Dr. Wantz from offering expert testimony that the cause of the injuries which were repaired in 1994 and 1995 was the abdominal incision performed by the defendant on June 15, 1988. The court precluded that testimony because the plaintiff failed to identify Dr. Wantz as an expert as required by CPLR 3101 (d) (1) (i) although the plaintiff had exchanged Dr. Wantz's medical reports pursuant to 22 NYCRR 202.17. Because Dr. Wantz was the plaintiff's treating physician, rather than an expert retained to give opinion testimony at trial, CPLR 3101 (d) (1) (i) does not bar the admission of his expert testimony.” Overeem v. Neuhoff, 54 A.D.2d 398, 400 (2d. Dept,.,1998).
“Contrary to the position of Union Carbide Corporation, there is no requirement to provide the fundamental factual information upon which an expert's opinions were made. Indeed, a party's request for the facts and opinions upon which another party's expert is expected to testify is improper. The requesting party is entitled only to the substance of those facts and opinions.” Krygier v. Airweld, Inc., 176 A.D.2d 700, 701 (2d Dept., 1991)
“Herein, plaintiffs' response, even as amended, is inadequate in that it is conclusory in nature (see Curatola v. Staten Is. Med. Group, 243 A.D.2d 673, 664 N.Y.S.2d 570; Brossoit v. O'Brien, 169 A.D.2d 1019, 565 N.Y.S.2d 299). Hence, the disclosure is " 'so general and nonspecific that [defendants have] not been enlightened to any appreciable degree about the content of this expert's anticipated testimony' " (Richards v. Herrick, 292 A.D.2d 874, 874, 738 N.Y.S.2d 470, quoting Chapman v. State of New York, 189 A.D.2d 1075, 593 N.Y.S.2d 104; Syracuse v. Diao, 272 A.D.2d 881, 882, 707 N.Y.S.2d 570). It is therefore concluded that "[t]he information supplied by plaintiffs falls short of fulfilling the intent of the statute" (Busse, 182 A.D.2d 525, 526, 583 N.Y.S.2d 243).” Tavares v. New York City Health and Hospitals Corp., 2003 WL 22231534 (Supreme Kings, 2003).
There is no statewide uniform rule as to when expert disclosure must be made, although the Third Judicial District has a rule requiring expert information to be exchanged by plaintiff by the time the note of issue is filed, and some of the justices in Dutchess County have recently instituted a rule requiring expert disclosure by plaintiff and defendant 90 and 45 days before trial respectively. The Third Department is particularly intolerant of tardy disclosure, and has precluded expert testimony and dismissed complaints on that basis on many occasions : see, e.g. Douglass v. St. Joseph’s Hospital, 246 A.D. 2d 695 (3d Dept., 1998), Vincinzano v. Vincinzano, 193 A.D. 2d. 962 (3d Dept., 1993).
While preclusion is less frequently imposed in the Second Department, litigants in this department have been precluded or fined in numerous cases of tardy disclosure. Even where there is no hard and fast rule as to when expert disclosure must be exchanged, delaying disclosure for tactical reasons until long after the expert’s opinion is in hand can be costly, if not fatal. See, Marks v. Solomon, 174 Misc. 2d 752 (Supreme Westchester, 1997).
An rule that is easy, and wise, to remember is that one ignores one’s adversaries’ complaints about inadequate disclosure at one’s peril; once the trial begins it is probably too late to supplement an inadequate response:
“Here, the defendant duly demanded that the plaintiffs disclose the substance of the anticipated expert testimony. Insofar as is relevant to the claim of lack of informed consent, however, the plaintiffs responded only that “the defendant departed from the good and accepted practice of medicine in the treatment of the plaintiff in ... failing to [obtain] adequate informed consent.” The plaintiffs subsequently refused the defendant's request that they supplement their expert disclosure by providing specifics regarding the claim that the defendant failed to obtain adequate informed consent. Because the plaintiffs' conclusory response failed to satisfy the disclosure requirement ( see Curatola v. Staten Is. Med. Group, 243 A.D.2d 673, 664 N.Y.S.2d 570), resulting in prejudice to the defendant ( cf. Beard v. Brunswick Hosp. Ctr., 220 A.D.2d 550, 551, 632 N.Y.S.2d 805), the Supreme Court properly precluded testimony of the expert with respect to this issue ( see Bauernfeind v. Albany Medical Center Hosp., 195 A.D.2d 819, 820, 600 N.Y.S.2d 516). In the absence of such testimony, the claim was properly dismissed.” Harper v. Findling, 38 A.D.3d 601 (2d. Dept.,2007).
Federal Expert Witness Disclosure – Not only are the substantive rules for expert qualifications different in Federal Court, as noted in passing above, but Federal expert disclosure involves an extensive body of statutory and case law entirely different from New York law and procedure. It is mentioned here lest anyone who may pick up these materials should suppose that he or she is in any way prepared to litigate a Federal case requiring the use of expert witnesses.
John and Jane Jones are divorced parents of Nelly Jones, a three year old, non-verbal child, with developmental delays and possible autism . Two years ago, the divorce settlement gave Jane custody due to Nelly’s special needs for intense parental supervision, not due to any unfitness on John’s part. John is an investment advisor who works long hours. Jane had not worked for several years before Nelly was born, in part due to some psychiatric problems. Since Nelly was born, Jane has been a stay-at home mom out of necessity. To compound the burden of caring for Nelly, Jane has recently been diagnosed with breast cancer, and now is undergoing chemotherapy. Recently, Nelly was hospitalized and nearly died.
Dr. DeBlasio has been Nelly’s pediatrician since her birth. Last year, she had a broken arm, but Dr. DeBlasio was not concerned about abuse. Two months ago, Jane brought Nelly to his office with another broken arm. After examining Nelly, Dr. BeBlasio instructed Jane to take Nelly to the emergency room. In the emergency room, x-rays and a skeletal scan discovered four other fractures of various ages, but the ER physician did not note any evidence of abuse. His impression was osteogenesis imperfecta, a congenital condition which is associated with bones that lack calcium and are therefore very brittle. After speaking with Dr. DeBlasio on the telephone, they agreed to send Nelly home with her mother and the incident was not reported.
Three days later, without Dr. DeBlasio’s knowledge, Jane took Nelly to a different emergency room . She had livid bruising and hemorrhages in both eyes, some mild respiratory distress, and her platelet count was slightly low at 90,000. The diagnosis at that time was idiopathic thrombocytopenic purpura, with a secondary diagnosis of a viral syndrome with an upper respiratory infection. No x-rays were taken, and Nelly was released.
Two days later- - the fifth day after Nelly was seen in Dr. DeBlasio’s office, Jane brought Nelly back to the emergency room unable to move her left side. Her platelet count was lower, at 60,000. A CT scan of her head showed a skull fracture and a right subdural hematoma (blood under the membrane around the brain). She was admitted to the hospital under the care of Dr. DeBlasio, and a neurosurgeon was called in for emergency surgery. No other fractures were discovered. Her platelet count rapidly returned to normal, leading Dr. DeBlasio to believe that she had not only been physically abused, but had also been given vincristine, one of Jane’s chemotherapy agents, which can cause rapidly falling platelet counts, precipitating or aggravating bleeding. His diagnosis is that Nelly has been a victim of Von Munchausen’s syndrome by proxy.
Nelly was released from the hospital after ten days, and was transferred to Blythdale Children’s Hospital for rehabilitation. She has made good progress and will soon be released. John now seeks a change of custody based upon alleged physical abuse of Nelly. He calls Dr. DeBlasio to testify at the emergency custody hearing.