CPLR 3101(d) Expert Disclosure: How Much Detail Is Enough? (Conway v Elite Towing)

Expert testimony decides most seriously contested personal injury trials in New York, and CPLR 3101(d) is the gatekeeping statute: a party must disclose, on request, the experts it expects to call and what they will say. The recurring fight is over granularity — how much detail does the disclosure statement have to contain before it passes muster? The Second Department’s decision in Conway v Elite Towing & Flatbedding Corp. gives a clear answer.

Key Takeaways

• CPLR 3101(d) requires the substance of the facts and opinions the expert will offer, in reasonable detail — not the specific facts and opinions themselves.
• In Conway, the defendants’ expert disclosure statements were held sufficient because they identified the subject matter, the substance of the expected testimony, and a summary of the grounds.
• In personal injury and no-fault practice, annexing the expert’s report (typically the IME report the uniform rules require be exchanged) is the common and sufficient approach.
• An attorney’s statement summarizing the expert’s expected facts and opinions also satisfies the statute when no report exists.

The Decision

Conway v Elite Towing & Flatbedding Corp. 2016 NY Slip Op 00470 (2d Dept. 2016)

Generally in personal injury and no-fault litigation, the report of the expert is annexed to the 3101(d) disclosure, and this is sufficient. Parenthetically, this is usually an IME report that the uniform rules require be exchanged.

Yet, a statement from the attorney as to the substance of the facts and opinions is sufficient — see the legal encyclopedia for expert disclosure standards should an expert who did not prepare an IME be called. The Court said the following:

“The defendants’ expert disclosure statements sufficiently disclosed in reasonable detail the subject matter and the substance of the facts and opinions on which the experts were expected to testify, and a summary of the grounds for their opinions (see CPLR 3101; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032; Cocca v Conway, 283 AD2d 787, 788; see also Hoberg v Shree Granesh, LLC, 85 AD3d 965; Gagliardotto v Huntington Hosp., 25 AD3d 758, 759). Contrary to the plaintiff’s contention, there is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but rather only the substance of those facts and opinions”

The Statutory Framework

CPLR 3101(a) sets the baseline for New York discovery: “full disclosure of all matter material and necessary” to the prosecution or defense of an action. CPLR 3101(d)(1)(i) applies that principle to experts. Upon request, a party must identify each expert expected to testify at trial and disclose in reasonable detail the subject matter of the expected testimony, the substance of the facts and opinions on which the expert is expected to testify, the expert’s qualifications, and a summary of the grounds for the opinions.

The statute’s phrasing does the work in Conway. “Substance” and “summary” are words of approximation, not exhaustion. The Second Department, citing its own line of authority, held that the responding party does not have to script the expert’s direct examination in the disclosure. A statement that tells the adversary what territory the expert will cover, what the expert’s core opinions are, and what those opinions rest on is enough.

Why This Matters in Injury and No-Fault Practice

The practical significance runs in both directions. For the disclosing party, Conway means a competently drafted 3101(d) statement — or, more commonly, an annexed expert report such as the IME report exchanged under the uniform rules — will withstand a preclusion motion. Plaintiffs’ demands for the “specific facts” behind each opinion are demands the statute does not support.

For the party receiving the disclosure, the decision is a warning about where to spend motion energy. Attacking a disclosure as insufficiently granular is usually a losing motion if the statement covers subject matter, substance, qualifications, and grounds. The better targets are disclosures that omit a category entirely, identify the wrong specialty, or arrive on the eve of trial in circumstances suggesting willfulness or prejudice.

The issue also intersects with summary judgment practice: a late or absent expert disclosure can affect what proof a party may rely on, which is why expert disclosure timing belongs on the same checklist as the discovery and summary judgment timing rules that govern motion practice generally. In the no-fault context, where the testifying expert is frequently the IME or peer review doctor, the annexed report ordinarily moots the granularity fight altogether.

Practice Pointers

• When a report exists — IME, peer review, accident reconstruction — annex it to the 3101(d) response. The report almost always exceeds the statute’s “substance and summary” floor.
• When no report exists, a counsel-drafted statement is sufficient if it covers all four statutory categories: subject matter, substance of facts and opinions, qualifications, and grounds.
• Do not promise more than the statute requires. Boilerplate demands for “each and every fact” the expert relies on can be met with the Conway standard.
• If you receive a thin disclosure, make a specific written objection promptly. Courts weigh prejudice and surprise; a party that sat on a known deficiency until trial gets little sympathy.

Related Resources

• Peer review hub — expert reports in no-fault litigation
• Understanding Discovery Rules and Summary Judgment Timing in NY Personal Injury Cases
• Move quickly or do not move at all
• Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
• Some newer cases
• New York No-Fault Insurance Law
• The firm’s Legal Encyclopedia
• Personal Injury practice

Frequently Asked Questions

What does CPLR 3101(d) require a party to disclose about its expert?

Upon request, a party must disclose in reasonable detail the subject matter of the expert’s expected testimony, the substance of the facts and opinions the expert will testify to, the expert’s qualifications, and a summary of the grounds for the opinions. Under Conway v Elite Towing, the specific facts and opinions themselves need not be set out.

Is attaching the expert’s report enough to satisfy 3101(d)?

In most personal injury and no-fault cases, yes. The annexed report — commonly the IME report that the uniform rules require be exchanged — typically discloses more than the statute’s “substance and summary” standard requires. An attorney’s statement summarizing the expected testimony also suffices when no report exists.

Can an expert be precluded for a vague 3101(d) disclosure?

Preclusion is reserved for genuine deficiencies — a disclosure that omits required categories, misidentifies the field of testimony, or is served so late that the adversary is prejudiced. A disclosure that states the substance of the facts and opinions in reasonable detail will generally survive a preclusion motion.