Judges may choose to consider expert affirmations submitted for the first time with a summary judgment motion, even though the Civil Practice Laws and Rules require experts to be disclosed before a note of issue, a state appeals panel has ruled.

The Appellate Division, Second Department, ruled on Oct. 17 in Rivers v. Birnbaum, 11646/10, that it was up to trial judges’ discretion to decide how to penalize non-compliance with the CPLR on expert disclosure.

The majority opinion was written by Justice Ariel Belen and joined by Justices Ruth Balkin (See Profile) and L. Priscilla Hall (See Profile). Justice Robert Miller (See Profile) wrote a separate concurring opinion. Belen has since left the bench for private practice.

The underlying case, a medical malpractice lawsuit, was filed in 2010. The plaintiff, Joanne Rivers, alleges that multiple doctors failed to diagnose her with a rare form of uterine cancer called choriocarcinoma, which spread throughout her body and required extensive chemotherapy. Rivers, who is currently in remission, filed suit against St. Catherine of Siena Medical Center, a Suffolk County hospital; Eliot Birnbaum and Robin Bliss, two doctors affiliated with the hospital; Alan MacDonald, a pathologist; and Kim DeCastro, a nurse practitioner.

All the defendants except Birnbaum moved for summary judgment. According to the opinion, the defendants submitted expert affirmations supporting their position that they did not depart from accepted practice along with their motions for summary judgment, after the filing of a note of issue indicating that discovery was completed.

Suffolk County Supreme Court Justice Ralph Gazzillo (See Profile) nonetheless considered the expert affirmations and awarded summary judgment to all the defendants except DeCastro, as to whom he found there was a material issue of fact.

Rivers appealed, citing the Second Department’s 2008 decision in Construction by Singletree v. Lowe, 55 AD3d 861, which affirmed a decision by a judge not to consider expert statements that were submitted after the note of issue.

Belen, however, wrote that Singletree held only that judges have the discretion to refuse to consider such evidence. The plain language of the statute, he said, gives judges that discretion.

The relevant statute, CPLR 3101(d)(1)(i), says: “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.”

The statute continues: “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.”

No Specific Deadline

Belen noted that the law names no specific deadline for expert disclosure.

“Thus, the statutory scheme provides that, even where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert’s trial testimony,” he wrote.

The law, Belen added, “implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary.”

He also said that interpreting the law to bar all expert affirmations submitted after a note of issue “does not necessarily advance the court’s role of determining the existence of a triable issue of fact.”

Turning to the merits, Belen found that the trial court had correctly granted summary judgment to most of the defendants. However, he said that the trial court also should have granted summary judgment to DeCastro.

In his separate concurrence, Miller listed some of the specific factors that trial courts should consider when deciding whether to exercise their discretion to bar expert affirmations submitted after the note of issue.

“In considering whether preclusion is an appropriate penalty for noncompliance, a court should look to whether the party seeking to avoid preclusion has demonstrated good cause for its noncompliance, whether the noncompliance was willful or whether it served to prejudice the other party, and any other circumstances which may bear on the appropriateness of preclusion,” he wrote.

“These may include, but are not limited to, the length of time that has passed since the commencement of the litigation, the amount of time that has passed since expert disclosure was demanded, and the extent to which the nature of the case or the relevant theories asserted therein rendered it apparent that expert testimony would be necessary to prosecute or defend the matter,” he added.

Mark Bower, who represented Rivers, called the decision “essentially a reversal of the Singletree decision, although they didn’t use the word reversal.”

He said his client would likely not seek leave to appeal to the Court of Appeals because the chance of reversal there is “slim.”

Bower also noted that the interpretation of Singletree to preclude late-submitted expert affirmations had usually favored defendants, rather than plaintiffs, since individual plaintiffs often delay hiring an expert because of the expense until it becomes clear that a case will not settle.

“In the course of losing we probably did a service to the plaintiffs’ bar,” said.

Wayne Spaeth of Catalano Gallardo & Petropoulos, who represented DeCastro, said he was pleased with the victory for his client. He said he was also pleased the panel clarified that courts can exercise discretion on a case-by-case basis.

However, Spaeth said that the justices “don’t really spell out the criteria” for exercising that discretion.

“The whole area is still somewhat murky,” he said.

“The Appellate Division realized the unduly harsh ramifications of prior decisions which had held that if an expert witness response is not exchanged prior to the filing of the note of issue, an expert’s affidavit served with a summary judgment motion or response could not be considered due to untimeliness,” said David De Siver of Rogak & Gibbons, who represented Bliss.

Douglas Stebbins of Bower Law, who represented the hospital, said the ruling is in line with prior case law.

“Even up to and at the moment of trial, people can file a 3101(d)” expert affirmation, he said. “There were a couple of cases that had called that into question, but the Second Department said, ‘no,’ the Legislature meant what it said.”

Kristen Hofer of the Law Office of Anthony Vardaro, who represented MacDonald, also said she was pleased with the decision.