New York State versus Federal Expert Disclosure

As I’ve written in this column previously, one of the advantages of litigating a subrogation claim in New York state court (versus federal) is expert disclosure.  In state practice, in order to have an expert testify at trial, all an attorney need do is comply with CPLR 3101(d).  This provision requires only that you disclose a short setting forth “in reasonable detail”:

(a)    the subject matter on which each expert is expected to testify,
(b)    the substance of the facts and opinions on which each expert is expected to testify,
(c)    the qualifications of each expert witness and
(d)    a summary of the grounds for each expert's opinion

In most cases, a one or two page summary prepared by the attorney is sufficient expert disclosure in state court.  (There has been some in-court disputes among attorneys as to whether an attorney’s short summary of an expert’s expected testimony provided sufficient detail so as to provide his/her adversary with fair warning.) An expert’s curriculum vitae need not be produced so long as “the qualifications” of the expert are provided by the attorney.   The timing of expert disclosure varies within New York State and differs from judge to judge.  In the Albany area, for example, experts must be disclosed at the time discovery is concluded and the matter is certified ready for trial.  In many counties, plaintiff need not disclose its experts until sixty days before trial.

Federal court is a whole different ballgame.  Federal expert witness disclosure is governed by Federal Rules of Civil Procedure Rule 26(a)(2)(B), which provides that experts must provide a written report – prepared and signed by the expert if the person is “one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony.”   There is some ambiguity here.  I have argued that insurance personnel who are going to testify at trial regarding damages suffered by the insured are not “experts” since such personnel were not retained to provide expert testimony and their duties do not regularly involve giving expert testimony.  The expert’s report must contain these elements:

(i)    a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii)    the facts or data considered by the witness in forming them;
(iii)    any exhibits that will be used to summarize or support them
(iv)    the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v)    a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi)    a statement of the compensation to be paid for the study and testimony in the case.

Thus, whereas in state court, the expert need not author a report (and I ask them not to (if they haven’t already written one prior to my receiving the fire), in federal court, the expert must write a report and it must contain the above elements.  Further, whereas New York state judges use the Frye standard for evaluating whether an expert is competent to testify, in federal court, judges use the more rigorous Daubert standard.   In twenty or so years of litigating subrogation claims, my expert has only been challenged once in state court (under Frye).  In contrast, in federal court, my experts are (rightly or wrongly) Daubert challenged on a fairly frequent basis.

Finally, whereas in state court experts rarely give deposition testimony, such testimony is allowed and is frequent in federal cases.  (The good news in federal court is that your adversary must pay your expert’s invoice for preparing for and giving the testimony).

Bottom Line:   The more relaxed rules governing expert disclosure in New York state court (versus federal) is a factor to be considered when filing a subrogation action.  If possible, try to file the action in state court.

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