Plaintiff’s motion made midtrial to challenge the sufficiency of defendant’s expert disclosure was properly denied as untimely.  Defendant’s expert disclosure was made timely and the alleged deficiency was apparent upon receipt.

Plaintiff’s decedent entered defendant hospital with symptoms of pneumonia and died early the next morning after being admitted to an area of the hospital that lacked continuous monitoring of patients’ vital signs. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes.  Decedent’s mother sued for wrongful death and for conscious pain and suffering.

Defendant had timely served CPLR 3101 (d) expert disclosure which stated without more that the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.”  Upon receipt of the disclosure, plaintiff had objected solely on the ground that the statement did not provide the dates of the expert’s medical residency, which objection defendant had cured.

At trial, the hospital treating physician testified that decedent’s death was caused in part by pneumonia, but on cross examination stated that he believed decedent instead died from acute cardiac arrhythmia. Plaintiff’s expert also testified that decedent’s death was caused in part by pneumonia, but acknowledged on cross examination that a cardiac event was a possible cause of death.

Immediately before defendant’s expert took the stand, and without requesting an adjournment, plaintiff moved to preclude defendant’s expert from giving any testimony regarding any possible causes of the decedent’s death on the grounds that defendant’s expert disclosure statement did not include “any reasonable detail whatsoever” as to the possible causes of decedent’s death.  The trial court denied the application as untimely. Defendant’s expert then testified that he disagreed with plaintiff’s expert and the autopsy report regarding the cause of death, that decedent’s vital signs instead showed no indication of worsening respiration, that decedent’s other health issues increased his risk for cardiac problems, and that the cause of death was sudden, lethal cardiac arrhythmia.

The jury found defendant liable for failing to place decedent in an area of the hospital with continuous monitoring and awarded plaintiff damages for wrongful death but awarded zero for conscious pain and suffering.  Plaintiff moved under CPLR 4404(a) to strike all testimony about cardiac arrhythmia as the cause of death and to set aside the $0 award for conscious pain and suffering, arguing that the expert disclosure statement failed to include the theory that decedent died of cardiac arrhythmia and so the disclosure was deficient. The trial court again denied the motion as “untimely made at the time of trial.”

The Appellate Division affirmed, holding that plaintiff failed to timely object to the lack of specificity in the expert disclosure statement and that plaintiff was not justified in assuming that the defense expert’s testimony would agree with the autopsy report’s conclusion. The Appellate Division held that where plaintiff’s own proof acknowledged that sudden cardiac arrhythmia was a possibility based on decedent’s medical history and condition, and where evidence in the record supported this theory, the testimony need not be stricken as an unfair surprise. One justice dissented and granted leave to appeal to the Court of Appeals.

Noting that trial courts possess broad discretion in the supervision of expert disclosure, the Court of Appeals affirmed, finding as a matter of law that there was no abuse of discretion as a matter of law: assuming defendant’s disclosure was deficient, the deficiency was readily apparent upon plaintiff’s receipt of the disclosure and no analogy could be made between the issue here of insufficiency and those cases where a party’s disclosure was misleading or where the trial testimony was inconsistent with the disclosure.  The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised and potentially cured before trial.

Lastly, the Court of Appeals rejected plaintiff’s claim that the testimony regarding cardiac arrhythmia should have been excluded as speculative, because there was ample evidence in the record on which to premise cardiac arrhythmia.

Rivera v. Montefiore Med. Ctr., 2016 NY Slip Op 06854 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06854.htm