Mark D. Shifton


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. The Comment discusses the initial judicial decisions dealing with the amended CPLR 3101, and how courts initially struggled to apply the medical malpractice expert exception. Special attention is paid to Jasopersaud v. Rho, which attempted to create a workable standard to further the competing goals of CPLR 3101(d)(1)(i) and Thomas v. Alleyne. The Comment further discusses whether the policy goals behind the medical malpractice exception remain viable," 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. The Comment 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.