Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

Case by Case: Expert Witness Disclosure of Peer Review Doctor Can Be Made at The Last Minute

By Lawrence N. Rogak. Brand Medical Supply v. Unitrin Advantage Ins. Co., 2020 NY Slip Op 50687 (App Term 2d Dept) Many kinds of lawsuits require, or at least employ, expert witnesses on a wide variety of topics, and indeed it seems that for every topic there is an expert somewhere who is willing to testify (and another one willing to refute them). One issue frequently encountered in using experts is the timing of the disclosure to the adverse party of the identity and substance of the expert’s opinion. Very often, courts hold that the expert witness disclosure required by CPLR 3101(d), if demanded by one’s adversary, must be made prior to filing the Note of Issue, with the penalty being preclusion (see, e.g., Kozlowski v. Oana, 102 AD3d 751 (2d Dept 2013 [defendant’s expert precluded in dental malpractice suit]). In the context of New York no-fault litigation, experts (usually employed only by defendants) are often precluded on the grounds of late disclosure as well. But now, the Appellate Term has carved out an exception to the timely disclosure rule where the expert is a peer review doctor upon whose opinion the claim was denied and whose report was annexed to an earlier summary judgment motion. At the trial, defendant’s only defense was the medical necessity of the services at issue (as is often the case in New York no-fault suits). Defense counsel called its expert witness, the peer review doctor, to the stand, and plaintiff’s counsel objected on the grounds that a formal response to its demand for expert witness disclosure had never been served. The trial judge...
Case by Case: Auto Policy Held Primary in Construction Accident

Case by Case: Auto Policy Held Primary in Construction Accident

By Lawrence N. Rogak. First Mercury Insurance Co. v State Farm Mutual Auto Ins. Co., 2019 NYSlipOp 51773 (Supreme Court, New York County) (Lebovitz, j) (10/29/2019) In this declaratory judgment action arising out of an injury to a construction worker who was unloading pallets of cement from a flatbed truck, his employer’s GL carrier sought an order declaring that his employer’s auto carrier had the primary duty to defend and indemnify the owner, GC and subcontractor on the job. The Court concluded that the auto insurer, State Farm, had a duty to defend and indemnify all parties, except for the breach of contract claim against the employer. DaSilva, a construction worker employed by subcontractor Europa Construction, was injured while he was standing on the flatbed of a truck attempting to unload pallets of cement; he tripped on a pallet and then slipped on cement mixed with stones that had accumulated on the floor of the truck. Europa was insured, under different policies, by plaintiff First Mercury Insurance Company and by defendant State Farm Mutual Automobile Insurance Company. DaSilva, sued the property owner and general contractor, who in turn brought third-party complaints against Europa. First Mercury then brought this DJ against State Farm, seeking a judgment that State Farm owes the primary duty to defend and indemnify Europa, the property owner and the general contractor in the underlying personal-injury action. First Mercury also sought reimbursement of the attorney fees and costs that it expended defending the underlying action. First Mercury then moved for an order declaring that State Farm must: (i) defend and indemnify Europa against the third-party claims brought against it...