Opinion
102336/02.
Decided February 23, 2004.
Introduction
Motion by the defendants to preclude the testimony of the plaintiff's experts at trial based upon the plaintiff's failure to provide a sufficient response to the defendants' demands pursuant to CPLR 3101(d)(1)(i).
Facts Procedural Posture
The plaintiff commenced the instant action against the defendants on February 1, 2002 to recover damages for medical malpractice and lack of informed consent. Accompanying the defendants' separate answers to the complaint were demands for expert disclosure pursuant to CPLR 3101(d)(1)(i). Each of the nearly-identical demands requested a litany of information regarding the experts' backgrounds, and the substance of their proposed testimony.
The plaintiff's response, dated July 25, 2003, to the defendants' demands pursuant to CPLR 3101(d)(1)(i) stated, in pertinent part, that:
Plaintiff has retained a surgeon who is board certified by the American Board of Surgery as an expert in this case. This doctor has a medical degree and did [sic] internship at Mount Sinai and [sic] residency at St. Vincent's Hospital Center. This doctor has knowledge, experience and training in performing hernia repair surgery as well as diagnosing and treating femoral nerve injuries.
Plaintiff has also retained a doctor who is board certified by both the American Board of Anesthesiology and the American Board of Pain Management as an expert in this case. This doctor has a medical degree and did [sic] internship at Kings County and [sic] residency at Mount Sinai.
By a letter, dated January 12, 2004, the defendants rejected the plaintiff's CPLR 3101(d)(1)(i) response on the ground that the plaintiff failed to list the: (1) medical schools attended by each of the experts, (2) experts' areas of special expertise, (3) jurisdictions in which the experts were licensed, and (4) locations of fellowships performed by the experts.
By an order to show cause, executed by the court on February 10, 2004, made returnable February 20th, and ultimately heard on February 23rd, the defendants move to preclude the testimony of the plaintiff's experts at trial citing the purported deficiencies, spelled out in the letter of January 12th, in the plaintiff's CPLR 3101(d)(1)(i) response.
Analysis
CPLR 3101(d)(1)(i) requires the plaintiff in a medical malpractice case, upon demand, to disclose in reasonable detail the qualifications of his or her prospective expert witnesses, while, simultaneously, permitting that plaintiff to withhold the names of the experts.
The scope of the extent to which a plaintiff in a medical malpractice action must disclose his or her experts' qualifications was recently treated by the Appellate Division, Second Department in Thomas v. Alleyne ( 302 AD2d 36). In Thomas, the defendants demanded disclosure of, among other things, the information the defendants in the instant matter are seeking (e.g. medical schools attended, areas of expertise), and the plaintiff moved for a protective order to prevent disclosing certain information demanded. Abandoning as unworkable the prior approach utilized to determine whether certain information regarding the qualifications of an expert was discoverable ( see e.g. Jasopersaud v. Rho, 169 AD2d 184 [2d Dept. 1991]) — a scheme premised upon the balancing of the defendants' interests in the information and the plaintiff's competing interest in preserving the anonymity of the expert — the Court determined that defendants will ordinarily be entitled to full disclosure of the qualifications of a plaintiff's expert, notwithstanding that such disclosure may permit such expert's identification ( Thomas v. Alleyne, supra at 45 [emphasis added]; but see Thompson v. Swiantek, 291 AD2d 884 [4th Dept. 2002] [The Fourth Department has determined that if disclosure of the expert's qualifications would tend to reveal the expert's identity, the qualifications may be withheld]).
The defendants sought disclosure of information, among other things, regarding: (1) the expert's board-certification(s), (2) states in which the expert was licensed, (3) publications which the expert authored, edited or otherwise contributed to, (4) undergraduate schools attended by the expert, (5) areas of special expertise, and (6) fellowships, internships and/or residencies performed by the expert.
The Court, mindful that a prospective expert medical witness may, under certain circumstances, be subjected to intimidation or threats if his or her name were revealed before trial ( Thomas v. Alleyne, supra at 46), provided an exception to the general rule requiring disclosure of all of an expert's qualifications. A protective order may be issued relieving a medical malpractice plaintiff of the disclosure requirements of CPLR 3101(d)(1)(i) only upon production of proof sufficient to sustain findings: (1) that there is a reasonable probability that such compliance would lead to the disclosure of the actual identity of their expert or experts, and (2) that there is a reasonable probability that such disclosure would cause such expert or experts to be subjected to "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (CPLR 3103[a]) ( Thomas v. Alleyne, supra at 38, 46-47).
There being no evidence to support either of the aforementioned necessary findings in the case at bar, the defendants are entitled to some form of relief, albeit not the drastic remedy, which they seek, of preclusion of the experts' testimony at trial ( see e.g. Silverberg v. Comm. General Hosp. of Sullivan Co., 290 AD2d 788 [3d Dept. 2002]). The qualitative insufficiency of the plaintiff's CPLR 3101(d)(1)(i) response may be easily cured by requiring the plaintiff to provide the defendants with the information they sought by their letter dated January 12th ( see Muniz v. Our Lady of Mercy Med. Ctr., 2003 NY Slip Op 50910[U], 2003 WL 21436132 [Sup Ct, Bronx Co 2003]; Scher v. St. Luke's-Roosevelt Hosp., NYLJ, Jan. 28, 2003, at 18, col 4).
Conclusion
Based upon the foregoing, it is hereby
ORDERED that the plaintiff, by 5:00 pm Friday February 27, 2004, shall cause to be served on counsel for the defendants a supplemental CPLR 3101(d)(1)(i) response containing a list of: (1) all medical schools attended by the experts and years attended, (2) each expert's area(s) of special expertise, (3) all jurisdictions in which the experts are licensed, and (4) the locations of all fellowships performed by the experts.