Jasopersaud v. Tao Gyoun Rho

169 A.D.2d 184, 572 N.Y.S.2d 700, 1991 N.Y. App. Div. LEXIS 10406
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 22, 1991
StatusPublished
Cited by26 cases

This text of 169 A.D.2d 184 (Jasopersaud v. Tao Gyoun Rho) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jasopersaud v. Tao Gyoun Rho, 169 A.D.2d 184, 572 N.Y.S.2d 700, 1991 N.Y. App. Div. LEXIS 10406 (N.Y. Ct. App. 1991).

Opinion

OPINION OF THE COURT

Kooper, J.

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

"1. The name of each person whom you expect to call as an expert witness at trial.
"2. Disclose in reasonable detail the qualifications of each expert witness. In a medical malpractice case include the following:
"a. Where did the expert attend medical school and when did he/she graduate?
"b. Did the expert attend internship, residency and/or fellowship programs? If so, where and when?
"c. Does the expert specialize in any areas of medicine?
"d. Is the expert Board Certified in any areas of medicine?
"e. Is the expert licensed to practice medicine in the United States? If so, where and when was he/she licensed?
"f. What are the expert’s hospital affiliations, if any?
"3. Disclose in reasonable detail the subject matter on which each expert is expected to testify.
"4. Disclose in reasonable detail the substance of the facts and opinions on which each expert is expected to testify.
"5. Disclose in reasonable detail a summary of the grounds for each expert’s opinion. In a medical malpractice case include:
"a. A description of every medical and/or hospital record relied upon.
"b. A list of all textbooks, treatises and/or articles relied upon”.

The plaintiff thereafter moved for a protective order, arguing, inter alia, that the items relating to the expert’s qualifications were designed to elicit information in such detail that compliance with the requests would be tantamount to revealing the expert’s identity. The appellants cross-moved for an order compelling compliance with their demands. Significantly, CPLR 3101 (d) (I) (i) permits discovery, inter alia, of an [186]*186expert’s "qualifications”, while at the same time authorizing a party to shield an expert’s identity from disclosure in an action for medical, dental, or podiatric malpractice.

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

CPLR 3101 (d) (1) (i) was enacted as part of a legislative package aimed at reform in medical malpractice litigation (L 1985, ch 294, §4) and reflected the Legislature’s view that expanded disclosure with respect to expert witnesses would, among other things, discourage parties "from asserting unsupportable claims or defenses” and promote "settlement by providing both parties an accurate measure of the strength of their adversaries’ case” (mem of State Executive Dept in support of L 1985, ch 294, 1985 McKinney’s Session Laws of NY, at 3019, 3025; see, Saar v Brown & Odabashian, 139 Misc 2d 328, 332; McGoldrick v Young Health Center, 135 Misc 2d 200, 201-204; 3A Weinstein-Korn-Miller, NY Civ Prac ¶ 3101.52a; Siegel, NY Prac § 348A [2d ed 1991]; Siegel, 1985 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:29 [1991 Supp Pamphlet], at 13-14). The amendment effected a significant and material change with respect to the disclosure of information pertaining to expert witnesses; indeed, "[p]rior to 1985, CPLR 3101 (d) specifically provided that the opinion of an expert, prepared for litigation, was not subject to disclosure” (Pizzi v Muccia, 127 AD2d 338, 339; see also, Rosario v General Motors Corp., 148 AD2d 108, 111-112; Timmons v Hecker, 110 AD2d 762; 3A Weinstein-Korn-Miller, NY Civ Prac ¶ 3101.52a). As amended, CPLR 3101 (d) (1) (i) now requires a party to "disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion” (Siegel, NY Prac § 348A, at 503 [2d ed 1990]; Pizzi v Muccia, supra). The statute further provides that in an action for medical, dental or podiatric malpractice, a party may "omit” the identity of medical, dental or podiatric expert [187]*187witnesses.

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Bluebook (online)
169 A.D.2d 184, 572 N.Y.S.2d 700, 1991 N.Y. App. Div. LEXIS 10406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jasopersaud-v-tao-gyoun-rho-nyappdiv-1991.