Expert Witnesses: New York State vs. Federal Practice

Any case sued in New York state court where damages exceed $75,000 may be removed to federal court by the defendant if the plaintiff and the defendant are “residents” of different states. This is based on a federal statute which gives federal courts “diversity jurisdiction” and is believed to give out of state defendants more protection than he/she would receive in the local state courts. In most of the product liability subrogation matters I’ve handled, the corporate defendant usually is located out of state and usually removes my state court case to federal court. The defendant must file the removal immediately – once the defendant has answered the complaint, he is deemed to have accepted the jurisdiction of the state court.

One of the primary reasons defendants prefer federal court to NY state court are that the rules for expert disclosure are more “pro-defendant” in federal court:

Depositions

Absent “special circumstances,” a defendant normally does not get to take a deposition of my expert in state court. However, depositions of the plaintiff’s expert are allowed in federal court and are routinely done. [1]  Thus, in federal court, the defendant gets to grill your expert at deposition as to what steps your expert did, what conclusions your expert reached and how your expert reached his/her conclusion. In state court, generally, the first time the defendant gets to question your expert is at trial.

Reports

Under federal rules the expert must prepare a report. In state court, the expert need not do a report and plaintiff’s counsel does not ordinarily have to disclose an expert report if the report was done “exclusively” for litigation purposes. In state court, all that is required is for plaintiff’s counsel to submit a expert witness disclosure statement per CPLR 3101(d), which is usually a paragraph or two that sets out, “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 the expert witness and a summary of the grounds for each expert's opinion. The “in reasonable detail” languages leaves room for both sides to argue at trial as to whether a statement made by an expert had been fairly disclosed prior to trial. Sometimes I have complied with 3101(d) by disclosing my expert’s cv and his report, but neither the disclosure of the cv nor the expert’s report is required under state law.

“Daubert” Challenges

It is generally easier for defendants to challenge plaintiff’s experts in federal court, per the U.S. Supreme Court case Daubert v. Dow Chemical. [2] In federal court, once the defendant has the plaintiff’s expert report and has taken that expert’s deposition, the defendant may file a “Daubert” challenge in an attempt to have the expert precluded from testifying at trial. The trial judge must then determine whether (a) the person is qualified as an expert in scientific, technical or specialized matters and (b) the expert’s testimony will assist the trier of fact in understanding the evidence and determining the facts at issue. What is required is that the expert’s testimony be both relevant and reliable. In my fire subrogation cases, public or private fire investigators who follow NFPA 921 in conducting their fire investigations have had no problems surviving a Daubert challenge.

The Daubert case was never adopted by the New York courts. New York courts still follow the 1923 case Frye v. United States. [3] Under the Frye standard, expert testimony will be allowed at trial as long as the expert’s expected testimony is based on scientific methods that are sufficiently established and accepted. Most commentators feel that it is much harder to preclude an expert in New York under Frye than it is in federal court under Daubert.

Where you may run into trouble in federal court is where your expert uses a “novel” theory that has not been fully tested or peer-reviewed. In such cases, the courts may preclude the expert from testifying if the court views the proposed testimony to be “junk science.”

Bottom Line: Generally, I like to litigate subrogation matters in New York state court, where I know many of the local judges and where the expert rules are more pro-plaintiff. Because you need not disclose your expert’s report and your expert need not be deposed, defendants only have a vague idea what your expert’s testimony at trial will be. This uncertainty may lead to settlement of your case. When you do wind up in federal court, be sure your expert does a complete report that fully sets forth his methodology and does not set forth any “novel” theories that have not been fully tested.

[1] Normally it is the party requesting the deposition that must pay the preparation and deposition time incurred by the opposing expert.
[2] Daubert v. Merrill-Dow, 509 US 579 (1993), which was incorporated into statute as Federal Rules of Evidence 702.
[3] 293 F. 1013 (D.C. Cir 1923)

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