Today, more than ever, ignorance is failure.
Most New York litigators know that the state has four Appellate Divisions, First, Second, Third, and Fourth, that decide appeals from the Supreme Court’s 13 judicial districts. Fewer appreciate a far more dangerous reality: each of those 13 judicial districts may have its own rules governing critical issues such as expert disclosure.
If you do not know the local rules that govern your case, you are not just at a disadvantage: you are putting your client at risk.
A recent decision from the Appellate Division, Third Department, in Zemko v. Hunter Mountain Ski Bowl, Inc. illustrates the point.
In Zemko, the plaintiff notified the defendant of the intent to call a physician as an expert on causation. The defendant moved to preclude the witness, arguing that the plaintiff failed to comply with the expert disclosure timing requirements set by the Third Judicial District’s practice rules. The trial court agreed. Finding the plaintiff’s explanation inadequate, it barred the physician from testifying as a medical expert.
That alone is catastrophic in a personal injury case. But it did not end there.
On appeal, the Third Department acknowledged that the other three Appellate Divisions apply distinct and more lenient approaches to expert disclosure. The plaintiff urged the court to adopt those more relaxed standards.
The court declined.
Reaffirming its long-standing interpretation of CPLR 3101(d)(1)(i), the Third Department reiterated that the rule requires disclosure of any medical professional “even a treating physician or nurse” who is expected to give expert testimony. The court made clear that opposing counsel is not required “to cull through copious medical records” to deduce the qualifications, opinions, or bases for testimony of a potential expert. Nor should a defendant be expected to guess which of fifteen medical professionals would be offered as expert witnesses at this trial.
Then came the final blow: on appeal, the plaintiff failed to argue that the trial court abused its discretion in precluding the witness. Because the issue was not properly raised, the Appellate Division refused to consider it.
Two failures. Both fatal.
The lessons are straightforward:
If you want to win at the trial level, you must know and strictly comply with the local court rules that govern your case. If you want to win on appeal, you must preserve and properly raise every viable issue.
Assumptions are dangerous. Familiarity with the CPLR is not enough. What applies in one Department may not apply in another. And what you fail to argue on appeal will not be argued for you.
At GCKB, our team practices across all 13 judicial districts. We know the local rules that can determine whether your expert testifies or is precluded. And our appellate attorneys understand how to frame and preserve the issues that matter most.
Because in litigation, what you don’t know can cost your client everything.
Our team of experienced appellate attorneys can help you with your toughest cases. Contact Thomas Bona at Tbona@gerberciano.com and Brendan Fitzpatrick at bfitzpatrick@geberciano.com.
