Academic journal article Fordham Urban Law Journal

Identity Crisis: The Obsolescence of Jasopersaud V. Rho and the Medical Malpractice Expert Exception

Academic journal article Fordham Urban Law Journal

Identity Crisis: The Obsolescence of Jasopersaud V. Rho and the Medical Malpractice Expert Exception

Article excerpt

INTRODUCTION

During a recent thriller directed by the late Stanley Kubrick, (1) Tom Cruise, playing Doctor William Harford, embarks on a voyage of both geographic and psychological distance. Under the spell of extreme jealousy, he walks the streets of New York City seeking to understand the societal forces affecting his emotions. In one of the film's most gripping scenes, Harford is drawn into a conspicuous display of wealth, power, and intrigue. While mesmerized by the events unfolding around him, he remains masked; his identity hidden from the anonymous participants, both physically, and to a possibly greater extent, psychologically. In a shocking turn, Harford is confronted, unmasked, and humiliated. The anonymous horde discovers his identity and before long Harford nearly loses his spouse, his medical practice, and his life.

Although Harford's desperate desire to shield his identity--and the group's efforts to identify him--may seem like sheer fiction, similar efforts occur every day among New York State medical malpractice attorneys. Desperate parties go to extreme lengths to identify their adversaries' experts, while their opponents struggle to block their efforts. Experts that are ultimately unmasked fear the loss of their practices, income, and professional lives.

This Comment discusses the provision of the New York Civil Practice Law and Rules ("CPLR") governing the disclosure of medical malpractice expert witnesses, and how medical malpractice litigants strive to protect the identities of their experts. (2) Part I of this Comment discusses the applicable CPLR provision, beginning with the 1985 amendments to CPLR 3101, (3) which, as part of medical malpractice reform legislation, sought to broaden discovery within civil litigation. (4) Part I will also highlight the medical malpractice expert exception provided by CPLR 3101(d)(1)(i), which applies solely to experts testifying in medical, dental, or podiatric malpractice actions. (5)

Part II of this Comment discusses the initial judicial decisions dealing with the amended CPLR 3101, and how courts initially struggled to apply the medical malpractice expert exception. (6) Part III discusses the Appellate Division, Second Department case Jasopersaud v. Rho, (7) which attempted to create a workable standard to further the competing goals of CPLR 3101(d)(l)(i). (8) Part III also examines cases from the various Departments that have interpreted and analyzed Jasopersaud. (9) Part IV of this Comment discusses the Appellate Division, Second Department's 2002 decision Thomas v. Alleyne. (10)

Part V discusses whether the policy goals behind the medical malpractice exception remain viable, (11) and asks whether, in light of evolving technology, any test that seeks to further the dual goals of CPLR 3101(d)(1)(i) can work. (12) Finally, Part V concludes that to create judicial consistency among the Departments, either the Court of Appeals must take up the issue and create a uniform standard for lower courts to follow, or the New York State Legislature must either amend CPLR 3101(d)(1)(i) or repeal the medical malpractice expert exception entirely.

I. BACKGROUND ON CPLR DISCLOSURE PROVISIONS

CPLR 3101 is the central rule governing disclosure within civil actions. The text of CPLR 3101 suggests that the New York State Legislature intended to provide for broad information exchange among civil litigants. (13) Indeed, the Legislature intended CPLR 3101 to closely parallel its federal counterpart, Rule 26 of the Federal Rules of Civil Procedure. (14)

CPLR 3101 also provides for the disclosure of expert information. (15) Upon request, litigants must disclose specific background information pertaining to their experts. (16) To comply with Rule 3101, the litigant must

   [I]dentify each person whom the party expects to call as an expert
   witness at trial ... [disclose] in reasonable detail the subject
   matter on which each expert is expected to testify, the substance
   of the facts and the opinions on which each expert is expected to
   testify, the qualifications of each expert witness, and a summary
   of the grounds of each expert's opinion. … 
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