The most glaring deficiency in New York practice, in our view, is the lack of clearly defined rules for the timing of expert disclosure. Instead of clear guidance from the CPLR and court rules, we have a crazy quilt of requirements, whose violation may or may not result in the severe sanction of expert witness preclusion.

Justice Jack M. Battaglia’s recent decision in Herrera v Lever (NYLJ March 16, 2012) represents the judiciary’s most recent attempt to fashion an equitable remedy in this procedural “no-man’s land.”

In Herrera, Justice Battaglia precluded plaintiff’s accident reconstruction expert from testifying at trial, where his disclosure was not made until 16 months after the filing of the note of issue and after four appearances on the trial calendar. Plaintiff’s counsel offered an insufficient excuse for his “late disclosure.”

In ordering preclusion, Justice Battaglia pointedly noted:

If the disclosure requirement is to have any meaning, and if the certificate of readiness is not to be rendered a mere technicality, an expert disclosure 16 months after the note of issue with certificate of readiness has been filed, after four appearances on the calendar for trial, must be supported by a much better excuse than offered here.

Yet as most practitioners are aware, CPLR 3101(d), the rule authorizing expert disclosure, provides absolutely no requirement as to when expert disclosure must be made. The apparent laxity of the expert disclosure requirement is reinforced by CPLR 3101(d)’s direction that preclusion should rarely be imposed by the court as the sanction for late expert disclosure:

. . . 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 ground of noncompliance with this paragraph.

However, it is difficult to discern what the CPLR means by “an insufficient period of time before commencement of trial,” where the rule establishes no deadline for expert disclosure. Leaving this to the discretion of the individual courts is not helpful, and in fact, can lull many practitioners into a false sense of complacency about when they disclose their experts.

To add to the confusion, we have the Appellate Division, Second Department’s decision in Construction by Singletree v. Lowe, 55 A.D.3d 861 (2d Dept. 2008), which held that expert disclosure submitted for the first time in opposition to a motion for summary judgment (after the note of issue and certificate of readiness were filed) was properly precluded as untimely. There the court did not distinguish between a testifying expert and a consulting expert.

The dissent questioned how an expert could be precluded on a motion for summary judgment filed within several months of the note of issue, when expert disclosure is routinely permitted many months after filing the note of issue and often upon the eve of trial.

The dissent noted: “. . . it is well settled that this provision [CPLR 3101 (d)] does not require a party to respond to a demand for expert witness information at any specific time in any event. [citation omitted]. Were we concerned with expert trial witnesses on the eve of trial, which we are not, we would undertake the consideration of whether the alleged noncompliance with the statute was intentional or willful. However, such consideration is not necessary under the procedural posture of this case.”

Despite all the confusion in recent cases over the timing of expert disclosure, the solution is relatively simple. The trial court should, after certifying factual discovery complete, issue a further compliance order setting deadlines for the exchange of expert information. The note of issue and certificate of readiness should not be permitted to be filed until the court certifies all discovery, both factual and expert, has been completed. We believe the certificate of “half readiness” concept should be jettisoned by the courts.

This is generally how expert disclosure is conducted in the federal courts under Rule 26 (a) (2) of the Federal Rules of Civil Procedure. The federal judge or magistrate schedules dates for the completion of factual discovery and once that is completed, a further order is entered with deadlines for the completion of expert disclosure. One state court judge, Justice Charles Ramos of the Commercial Part of the Manhattan Supreme Court, has incorporated much of Rule 26 (a) (2) into his Rule 22, governing expert disclosure in his courtroom.

Various other courts have attempted to solve the problem by requiring expert disclosure within a certain number of days prior to commencement of trial. Rule 11 of the Rules of the Justices of the New York County Supreme Court, Civil Branch requires the party with the burden of proof on an issue to make its expert disclosure “no later than 30 days of the date set for trial.”

We also have the ubiquitous, unwritten “30-day rule,” uttered in the hallways of many of our courts, which is supported only by custom and practice.

The problem with the “30-day rule” and its ilk is that the trial dates often change. Counsels rarely know with any certainty when a case actually will proceed to trial. So how can we rely on this type of deadline, when whether an expert will be precluded depends upon the multitude of reasons a trial date may be adjourned?

We understand that many counsels would prefer to wait to the very last minute before having to pay their experts. But placing every trial lawyer in an existential void, where it is virtually impossible to determine whether your supposedly “late expert disclosure” will result in preclusion, just does not work. As shown by these cases, the lack of hard and fast rules, coupled with generally accepted rules of custom and practice, can lead the unsuspecting practitioner into disastrous results.

Expert disclosure should be put on the same footing as factual disclosure—scheduled and completed prior to placing the case on the trial calendar. Then everyone in the case knows what his expert disclosure obligations are and how preclusion (often the death knell of a case) can be avoided. The days of faxing (or e-mailing) the exchange of expert information while the jury is being selected, have got to be put in the past, in favor of rules by which all litigants can be guided.

Diane Kanca and Howard Jacobowitz are partners at McDonough Law in New Rochelle.