CPLR § 3101 (d)(1) Expert Witness Disclosure–delay

The trial court providently exercised its discretion in precluding
testimony from plaintiff's expert oncologist regarding a new theory of
liability that plaintiff failed to timely disclose and which was not
apparent from her prior expert disclosures. Although CPLR 3101(d)(1)
does not establish a specific time frame for expert witness disclosure,
a trial court has discretion to preclude expert testimony for failure
to comply with the statute. Here, plaintiff failed to timely serve her
supplemental expert disclosure or provide an adequate explanation
for the delay (see Lucian v Schwartz, 55 AD3d 687, 688 [2008], lv denied NY3d , 2009 NY Slip Op 63827 [2009]; Durant v Shuren, 33 AD3d 843 [2006]).

Nor did the trial court improvidently exercise its discretion in
precluding plaintiff's expert medical physicist from testifying
regarding the biological equivalent dose (BED) of the high dose rate
radiation brachytherapy administered to plaintiff. The expert is not a
medical doctor and had no experience calculating the BED under the
specific and unique circumstances involved in treating plaintiff's rare
illness. The calculation involved required specialized medical
knowledge in order to impute certain values to the type of tissue and
the tumor being treated (see de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 518 [2007]; Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 895-896 [2004]; Jordan v Glens Falls Hosp., 261 AD2d 666, 667 [1999]).