CPLR § 3101(d) (1) (i) Vetting & Selecting an Expert; Complying with Expert Disclosure Requirements; Trial Strategy Considerations; and, Motions in Limine

Threshold Questions Threshold Questions: –When is an expert needed –Why is an expert needed

Expert Vetting Frye – General Acceptance, etc. Parker – Scientific Basis, dose-response, etc. Preliminary Questions: –Previously excluded, precluded or limited; –Any policy regarding internal peer review of disclosures, reports, etc. –Trial experience, deposition experience –Plaintiff/Defendant split in tort cases –References – attorneys with whom previously worked –CV problem areas –Additional areas of expertise –Conflicts - retention by parties/retention by parties’ attorneys

CPLR § 3101 (d) (1) (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereunder be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.

Deconstructing the CPLR Expert Disclosure Provisions Upon Request In reasonable detail Good cause shown Insufficient time before the commencement of trial Or on its own initiative

Trial Considerations Drawing out more information (expert affidavits) by filing motion for summary judgment Sufficient flexibility Corporate witness as expert (FRCP specifically codifies)

Motions in Limine Expert Qualifications in General Specific Opinions –Unqualified to render specific opinions –Specific opinions are baseless, conclusory, ipse dixit –Failure to employ generally acceptable methodology Substance of Report Preclude Expert from Relying on Hearsay. (Ordinarily an expert can rely on hearsay).