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.”

Special Circumstances

The courts have narrowly construed the “special circumstances” requirement to apply in cases where the expert has examined evidence that no longer exists or where the information sought to be discovered “cannot be obtained from any other sources.” Brooklyn Floor Maintenance v Providence Washington Ins.,1 represents the rare case where a court granted a deposition of plaintiff’s expert accountant, based upon the fact that the corporate principal disclaimed knowledge of the relevant financial data and repeatedly referred all questions concerning his company’s finances to the accountant.

Brooklyn Floor involved an insurance coverage dispute.2 The defendant, Providence, disclaimed coverage on the grounds that damage to the insured’s property was caused by arson at the insured’s direction.3 The insured, Brooklyn Floor, sued for coverage and the issue of the its financial health was central to the dispute.4

When the principal of Brooklyn Floor was deposed, he possessed no knowledge of the records and affairs of the business and repeatedly said his accountant had the information.5 Providence issued a subpoena to depose the accountant, Baron Eisner, but Brooklyn Floor designated the accountant as an expert and moved to quash the subpoena.6

The Appellate Division, Second Department, modified the decision of the trial court, which had granted the motion, and ordered that the accountant be deposed.7 The court explained that special circumstances “exist where physical evidence is ‘lost or destroyed’ or ‘where some other unique factual situation exists’. . . such as proof ‘that the information sought to be discovered cannot be obtained from other sources.’”8

The Second Department held that special circumstances existed in Brooklyn Floor because “the plaintiff’s principal was unable to answer basic inquiries into [Brooklyn Floor's] bookkeeping practices, or regarding specific entries in the corporation’s financial records and identified Eisner as the sole person who could respond to those inquiries.”9 Thus, deposing the expert was appropriate.

However, the courts will not find the existence of special circumstances merely because the expert is advancing an opinion that is “novel, unorthodox and unsupported in published scientific literature or studies.”10 A desire to show that the expert’s “theories of causation are bunk and should be exposed as such at the earliest possible juncture,” is simply not sufficient to establish that special circumstances exist.11

In sum, an expert can only be deposed in the limited situations where the evidence sought cannot be obtained elsewhere. This narrow application hamstrings the ability to thoroughly prepare a litigation strategy and even works against early disposition of a case.

Types of Cases

Conducting a deposition of the expert witness is the only way to truly analyze and take the measure of an adversary’s trial expert. Expert depositions allow counsel to challenge the bases for the expert’s opinion and ascertain his actual position on the key trial issues. Armed with this information, counsel would be better prepared to (a) file an effective Frye motion or motion for summary judgment,12 (b) engage in more meaningful settlement negotiations, and (c) conduct more effective cross-examinations of the expert at trial. The general prohibition against taking an expert’s deposition in New York State practice is counterproductive, and frankly makes little sense in light of otherwise broad discovery parameters.

In fact, when you look at the types of cases commonly tried in our courts, it becomes apparent how critical the expert deposition could be. In a products liability case, for example, the expert’s theory as to how the machine might have been designed in a safer manner can often be more valuable than plaintiff’s testimony on how the accident occurred. In a legal malpractice case, expert testimony as to whether an attorney’s representation fell below the accepted standards in the legal community may prove more important than the client’s recitation of facts of the representation. In a commercial case, the financial expert’s projection of anticipated lost profits arising from an alleged breach often has a critical impact on the amount of damages recoverable.

Expert depositions would seem most appropriate in medical malpractice actions, where often the most critical evidence is the plaintiff’s expert’s testimony of how the physician’s treatment deviated from an accepted standard of care and proximately caused plaintiff injury. CPLR 3101(d)(1)(ii) does set forth a procedure whereby a party in a medical malpractice action may identify and make his testifying expert available to be deposed. If such offer is accepted, the adversary’s medical expert shall also be deposed. But this procedure is of little value, in our view, because the adversary can avoid expert depositions by rejecting or simply ignoring the offer.

State Bar Recommendation

Given how important expert depositions may prove in the kinds of cases litigated in our courts, it is surprising that expert depositions are rarely permitted in New York practice. In most other states and in the federal courts, a party has the right to depose its adversary’s testifying experts. Rule 26 of the Federal Rules of Civil Procedure requires the parties to make their testifying experts available to be deposed, with the party taking the deposition responsible for payment of the expert’s “reasonable fee for time spent in responding to” such discovery.13

To make New York competitive with the federal courts and Delaware’s Chancery Court (where expert depositions are also available) in adjudicating business disputes, the New York State Bar Association’s Commercial and Federal Litigation Section has recommended that the Uniform Rules for the New York State Trial Courts be amended to provide for enhanced expert discovery in all Commercial Division cases. The state bar’s proposed rule tracks Rule 26 in the federal courts by setting deadlines for written expert disclosure and providing for the depositions of all testifying experts.

Implementation of the bar association’s proposed rule on expert disclosure would go a long way toward bringing the Commercial Division in line with the federal courts and most other states’ courts on this issue. The “fly in the ointment,” however, is that CPLR 3101, which contains the “special circumstances” requirement to obtain an expert’s deposition, was enacted by the New York Legislature. It is doubtful that this legislative requirement can be overcome by the Office of Court Administration’s rule-making authority.

It has been suggested that the Commercial Division judges merely need rule that “special circumstances” exist in all commercial cases so as to warrant expert depositions. This ruse probably would not pass appellate scrutiny. Nor would “encouraging” Commercial Division litigants to consent to expert depositions solve the problem; parties have always been free to stipulate to enhanced expert disclosure. The purpose of a uniform rule is to provide for a way to govern the conduct of all litigants, many of whom may be disinclined to stipulate to additional expert discovery. Piecemeal application would likely lead to claims of unfairness or prejudice.

Although not without political complications, the solution to this problem is simple. The Legislature should amend CPLR 3101(d) to permit enhanced expert disclosure rules to be instituted in the Commercial Division. By limiting the amendment to only the Commercial Division, the objections of the plaintiff’s personal injury bar need not be confronted. Commercial litigators are accustomed to conducting expert depositions in the federal courts and are more likely to agree that enhanced expert disclosure is appropriate in the cases they litigate.

Now that we are into the 21st century it is time to bring New York State expert disclosure rules up to date and in line with the enhanced expert disclosure rules afforded in the federal courts and most other states’ courts. The Commercial Division appears to be the best place to start.

Diane K. Kanca and Howard S. Jacobowitz are partners at McDonough Law. Edward G. Warren, an associate at the firm, assisted in the preparation of this article.

Endnotes:

1. 296 A.D.2d 520 (2d Dept. 2002).

2. 206 A.D.2d at 521.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id. at 521-22, quoting Hallahan v. Ashland Chem., 237 A.D.2d 697, 698 (3d Dept. 1997) and Dioguardi v. St. John’s Riverside Hosp., 144 A.D.2d 333, 334 (2d Dept. 1988).

9. Id. at 522.

10. Hallahan, 237 A.D2d at 698; see also, Padro v. Pfizer, 269 A.D.2d 129 (1st Dept. 2000) (“neither the purported novelty of the opinion expressed in plaintiff’s expert notice, nor the claimed flaws underlying the expert’s opinion rise to the level of special circumstances”).

11. Hallahan, 237 A.D.2d at 698.

12. Referring to the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). While the U.S. Supreme Court ruled in Daubert v. Merrrell Dow Pharm., 509 U.S. 579 (1993), that the Federal Rules of Evidence supersede the test in Frye, it remains the standard for evaluating experts in New York state courts. Giordano v. Market Am., 15 N.Y.3d 590 (2011).

13. Fed. R. of Civ. P. 26(b)(4)(E)(ii).