Late Expert: CPLR 3101(d)

CPLR § 3101(d) Trial Preparation (2) Materials

Campos v Beth Israel Med. Ctr., 2011 NY Slip Op 00344 (App. Div., 2nd 2011) 

The expert witness disclosure required by CPLR 3101(d) was served by the plaintiff 6½ years after the incidents complained of, 4 years after the action was commenced, almost 4 years after the original bill of particulars was served, and 1½ years after the amended bill of particulars was served. The expert witness disclosure contained new theories of liability which were not readily discernable from the allegations set forth in the bills of particulars. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendants' motion to preclude the plaintiff's expert and any other witnesses called by the plaintiff from testifying concerning certain unpleaded allegations relating to the defendants' alleged malpractice in, inter alia, leaving the patient, Hilda Campos, unattended, leaving the bed rails of her bed down, and allowing her to fall out of her hospital bed onto the floor (see Navarette v Alexiades, 50 AD3d 869, 870;Navarette v Alexiades, 50 AD3d 872, 872; Durant v Shuren, 33 AD3d 843, 844). 

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