Cause of Death ExpertThe Appellate Division of the New York Court of Appeals was asked to review a trial court’s decision to deny as untimely plaintiff’s motion to preclude the testimony of defendant’s cause of death expert on the grounds that the CPLR 3101(d) disclosure statement was deficient.

The decedent entered Defendant’s hospital with symptoms of pneumonia and died early the next morning after being admitted to an area of the hospital that lacked continuous monitoring. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes. Plaintiff, decedent’s mother, brought this action.

In preparation for trial, Defendant timely served a CPLR 3101(d) expert disclosure statement on Plaintiff which stated the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.” Plaintiff’s sole objection before trial was that the statement didn’t provide the dates of the expert’s medical residency. Defendant cured the omission.

At trial, although the hospital treating physician testified that decedent’s death was caused in part by pneumonia, on cross examination he stated that he thought that the decedent instead died from acute cardiac arrhythmia. Plaintiff’s expert also testified that death was caused in part by pneumonia, but acknowledged that a cardiac event was a possible cause of death on cross. Plaintiff moved to preclude Defendant’s expert from giving “any testimony…regarding any possible causes of the decedent’s death” because that the disclosure statement “did not include any reasonable detail whatsoever as to what possible causes” led to decedent’s death. Plaintiff didn’t seek an adjournment, and the trial court denied the application as untimely. Defendant’s expert then testified that he disagreed with Plaintiff’s expert and the autopsy report on 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. In Defense counsel’s closing statement, he argued that decedent’s cause of death was “sudden lethal cardiac arrhythmia.”

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

The Appellate Division affirmed the order, holding Plaintiff didn’t timely object to the lack of specificity in the expert disclosure statement and that she wasn’t justified in assuming that the defense expert’s testimony would comport with the autopsy report’s conclusion. The Court held that where Plaintiff’s own experts 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—testimony needn’t be stricken as an unfair surprise. One justice dissented and granted leave to appeal.

The Court of Appeals held that CPLR 3101(d)(1)(i) requires each party to “identify each person whom the party expects to call as an expert witness at trial and [to] disclose in reasonable detail the subject matter on which each expert is expected to testify, the qualifications for each expert witness and a summary of the grounds for each expert’s opinion.” The Court found that it was within the trial court’s discretion to deny Plaintiff’s motion, holding that trial courts have broad discretion in their supervision of expert disclosure under CPLR 3101(d)(1), and the decision to preclude a party from introducing the testimony of an expert witness on the party’s failure to comply with the rule should be left to the discretion of the court.

Plaintiff made her motion to preclude mid-trial right before the expert’s testimony, arguing at the time of the expert exchange, she had no reason to object to the disclosure statement because it gave no indication that Defendant would challenge Plaintiff’s cause of death theory. The Court explained that assuming Defendant’s disclosure was deficient, it was readily apparent—it identified “causation” as a subject matter but didn’t provide an indication of a theory or basis for the expert’s opinion.

The trial court’s ruling didn’t endorse the sufficiency of the statement, only its timeliness. The lower courts were entitled to determine, based on the facts and circumstances of the case, 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. As a result, the district court decision was affirmed.


Rivera v. Montefiore Medical Center, 2016 N.Y. LEXIS 3176; 2016 NY Slip Op 06854 (N.Y. Ct. App. October 20, 2016