Since the amendment of Section 3101(d) in 1985, New York state has required that litigants in medical malpractice cases disclose the substance of the testimony they expect to produce through their expert witnesses at trial. Despite the extensive experience of bench and bar with the application of the statute, New York persisted as the only jurisdiction in the United States where the identity of an expert witness is not directly discoverable.

CPLR 3101(d)

Prior to 1985, CPLR 3101(d) specifically provided that an expert opinion prepared for litigation was not subject to disclosure [Pizzi v. Muccia, 127 A.D.2d 338 (3rd Dept. 1987)]. Reform legislation enacted that year moved New York state closer to most other jurisdictions in requiring broad disclosure of the subject matter of any proposed expert’s testimony. Counsel was required to disclose the qualifications of the expert and a summary of the grounds for the expert’s opinions. The names of the experts were also required to be disclosed for every type of expert except medical, dental and podiatric experts in malpractice cases involving those specialties. The ostensible reason for the difference in treatment among experts was that those in the medical, dental, and podiatric professions were perceived to be more likely to pressure an identified expert to discourage their appearance as a trial witness adverse to a colleague,[Rubenstein v. Columbia Presbyterian, 139 Misc.2d 349, Supp. N.Y. 1988].

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