New York is one of the very few states that do not permit expert depositions without a showing of “special circumstances.” The federal courts and 44 other states’ courts permit the depositions of testifying experts as a matter of right. This places New York courts at a decided disadvantage in adjudicating the types of cases that dominate our courts today.
Under CPLR 3101(d), parties often get by with bare-bones written disclosure of their expert’s opinions and the facts upon which they are based. Because these responses are prepared by counsel, they tend to be purposely vague, especially on the methodology employed by the expert to arrive at his opinions. A deposition of a party’s testifying expert, which might clarify the basis of the expert’s opinion, can only be obtained upon a showing of “special circumstances.”
