Volume 76, Number 5

November 2001

Expert Witness Discovery for Medical Malpractice Cases in the Courts of New York: Is It Time to Take Off the Blindfolds?

Richard S. Basuk

In this Note, Richard Basuk explores the current application of the Federal Rules of Civil Procedure (FRCP) and the New York Civil Practice Law and Rules (CPLR) regarding expert witness discovery in medical malpractice cases. Basuk finds that, while both the FRCP and the CPLR claim to value principles of broad discovery, the federal rules surpass the CPLR in actually advancing those principles. The expert discovery provisions of the FRCP, as they apply to medical malpractice cases, successfully balance and incorporate the advantages of liberal expert disclosure. Their mandatory pretrial exchange of information allows parties to evaluate the strength of their cases, to achieve early and just settlements, and to prepare effectively for cross-examination so that trials proceed on cases’ merits. In contrast, the New York rules severely limit the exchange of expert witness information during discovery and thereby frequently prevent parties and the courts from reaching any of these goals. Basuk concludes that New York should more fully embrace the principles of the FRCP and adopt the federal language for expert witness discovery in medical malpractice cases.