Draves v. ChuaDraves v. Chua
OPINION OF THE COURT
Buring the course of jury selection in this medical malpractice action, the defendant, Ansar Ahmed, M.B., has brought a
CPLR 3101 (d) (1) (i) provides, that upon request, each party shall identify each person whom the party expects to call as an expert witness, except that "[i]n an action for medical, dental or podiatric malpractice, a party in responding to a request may omit the names of medical, dental or podiаtric experts”.
That provision is part of CPLR "Article 31 — Disclosure” wherein are set forth various sections which govern pretrial discovery. Jury selection, however, is not a pretrial stage, but rather is the commencement of the jury trial itself (see, CPL 1.20 [11]). As such, the provisiоns of CPLR 3101 (d) (1) (i) are inapplicable.
Under the recently enaсted Uniform Rules for the Trial Courts (22 NYCRR 202.33 [e]), the court is now responsible fоr supervising jury selection in all civil cases. The role of the Judge is to expedite the voir dire process and assure that a fair and impartial jury is empaneled. Whether a prospеctive juror shares any relationship, including that of a patient of a doctor-witness for any party, is a relevant factоr in determining that juror’s impartiality. At a minimum, all parties should reveal to the Judge supervising jury selection the names of all witnesses that party intends to call. The Judge may, in the initial voir dire process, оutline the nature of the case to the jury and inquire of the prospective jurors their familiarity with any of the parties, their lawyеrs, the matter at issue and the witnesses who may appear. If thеre is any legitimate reason to protect the identity of а witness’ name at the voir dire stage of the trial, the party seeking nondisclosure obviously will bear the burden of convincing the supervising Judge of that need. However, the mere fact that early identification of an expert witness may provide the other sidе with additional time to investigate the background of said expert and perhaps discover relevant information affecting credibility should not be construed as a legitimate reason to withhold the identity of such a witness. A trial is an ongoing search for the truth аnd thus surprises that might curtail the opposing party’s opportunity fоr investigation should be discouraged.