| Martin v Triborough Bridge & Tunnel Auth. |
| 2010 NY Slip Op 04031 [73 AD3d 481] |
| May 11, 2010 |
| Appellate Division, First Department |
| Eric T. Martin, Appellant, v Triborough Bridge andTunnel Authority, Respondent, et al., Defendant. |
—[*1] Steve S. Efron, New York, for respondent.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 10,2009, upon a jury verdict in favor of Triborough Bridge and Tunnel Authority (TBTA), the onlyremaining defendant in this action, affirmed, without costs.
The trial court properly exercised its discretion in denying plaintiff's application to precludeTBTA from introducing the expert testimony of a professional engineer as to the cause of theaccident. Preclusion of expert evidence on the ground of failure to give timely disclosure, ascalled for in CPLR 3101 (d) (1) (i), is generally unwarranted without a showing that thenoncompliance was willful or prejudicial to the party seeking preclusion (Nathel v Nathel, 55 AD3d 434[2008]). Here, contrary to plaintiff's contention, the delay of the expert disclosure was not aresult of mere failure to prepare. Defense counsel explained that he was retained as trial counselshortly before the trial, and that although he had contacted the expert soon thereafter, the expertneeded additional time to do research to form an opinion as to the cause of the accident.Furthermore, the expert disclosure was made about a week after the expert was retained. Underthese circumstances, we cannot conclude that the delayed expert disclosure was willful (seeMcDermott v Alvey, Inc., 198 AD2d 95 [1993]).
Nor can we conclude that the delayed disclosure was prejudicial. To overcome any prejudicethat may have resulted from allowing the expert to testify, the trial court gave plaintiff theopportunity to voir dire the expert to avoid any surprises during cross-examination. Althoughplaintiff accepted the opportunity to do so, he now contends that such a remedy did notadequately cure the prejudice because he did not have sufficient time to prepare for across-examination or obtain other evidence to challenge the expert's testimony. He also contendsthat the trial court rushed him by reminding him that the jury was waiting while he wasquestioning the expert. However, counsel never asked for an adjournment or additional time toprepare challenges to the expert's testimony, or to retain his own expert, and nothing in therecord shows that the court interfered with or cut short counsel's voir dire of the expert in anyway. Additionally, his cross-examination brought out testimony that was favorable to plaintiff on[*2]certain material issues.
In any event, even if the trial court did improvidently exercise its discretion in permitting theexpert to testify, any error was harmless. Plaintiff argues that the testimony left the jury with anunchallenged expert opinion that his own negligence caused the accident. However, the jury'sverdict was based on its finding of lack of negligence on TBTA's part, and the jury never reachedthe issue of plaintiff's own negligence (see Gilbert v Luvin, 286 AD2d 600 [2001]).Concur—Tom, J.P., Moskowitz, Renwick and DeGrasse, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: Because I believe that the trialcourt abused its discretion in denying plaintiff's application to preclude the testimony ofdefendant's professional engineer, I respectfully dissent.
Plaintiff herein was traveling on the Triborough Bridge when his Ford Explorer overheated.An employee of defendant Triborough Bridge and Tunnel Authority, John Georges, pushedplaintiff's car across the bridge with his wrecker. It is undisputed that plaintiff had his car inneutral and his key in the off position when Georges began pushing him. It is also undisputedthat placing a car in neutral disables the power steering and brakes, though it does not precludemanual steering and braking of the vehicle. Finally, it is undisputed that the span across whichplaintiff was being pushed crested at its midpoint, and then declined as one traveled towards theQueens side of the bridge.
Georges gave plaintiff four or five pushes towards the midpoint of that bridge. At that point,Georges gave plaintiff one final push, and plaintiff's vehicle acquired momentum due to thedecline of the roadway. Plaintiff attempted to apply the brakes, but testified that the brakeswould not respond, and felt "really hard." As plaintiff neared the Hoyt Avenue exit, the roaddeclined more precipitously. Plaintiff testified that the vehicle "lurched forward" and he collidedwith the back of a tractor trailer. He ascribed this lurch to "gravity because [he] was going downthe slope." Plaintiff testified that his vehicle was traveling approximately 25 to 30 miles per hourwhen he crested over the bridge, accelerating to approximately 40 miles per hour at the time ofimpact. Plaintiff testified that at no point did he turn the engine on to restore the power steeringand brakes. John Georges, the operator of the wrecker, similarly testified that as plaintiff crestedover the bridge his vehicle acquired speed. Georges observed the brake lights on plaintiff'svehicle. As plaintiff approached the exit, Georges observed plaintiff's vehicle "wiggle," orswerve, as he attempted to avoid the tractor trailer. Georges testified that he "thought" plaintiffhad restarted his vehicle. However, plaintiff's vehicle was in the "off" position when Georgesarrived at the accident scene moments after impact.
During the course of discovery, plaintiff demanded, pursuant to CPLR 3101 (d) (1) (i),discovery of any expert witness defendant intended to call at trial. The court also issued an orderrequiring the parties to "supply expert witness disclosure pursuant to CPLR." While defendantprovided notice that it would offer the testimony of medical experts, at no time prior to trial diddefendant indicate that it would offer the testimony of an expert engineer as to the cause of theaccident.
Trial commenced on March 25, 2009. Plaintiff testified on his case-in-chief, but did notpresent any expert engineering testimony. After plaintiff rested, defendant served notice of itsintent to present the testimony of expert engineer Dr. Bruce Gambardella. Dr. Gambardella,[*3]according to the expert disclosure, was expected to render anopinion regarding the "mechanics of injury and cause of the occurrence," including collisionspeed, vehicle performance parameters, and the capacity of the vehicle's braking system to"retard the vehicle on the subject grade and even stop the vehicle . . . with moderateeffort." This notice was apparently attached to the back of defendant's requests to charge thejury, which had been served on plaintiff on March 27, 2009, a Friday.
When the parties next appeared in court, on Monday, plaintiff's counsel registered anobjection to the late disclosure. When the court inquired as to the reason for the late notice,defense counsel replied that the witness had just been hired and that he thought the witness'stestimony would "help the jury." Counsel stated, "I thought it would be a very positive thing. . . if we had someone who knew about brakes, who was a specialist in brakes,. . . I would like the Court and the jury to know how does a 1994 Ford Explorertravel in neutral with the engine off on that decline and what would cause the vehicle. . . to lurch forward, speed up." Over plaintiff's objection, the court ruled that itwould allow the engineer to testify.
On April 1, 2009, plaintiff renewed his motion to preclude the expert testimony of theengineer. Plaintiff's counsel complained that "this is the classic trial by ambush on the part ofdefense counsel." Counsel further asserted that the expert's testimony regarding how the accidentoccurred was "speculative at best," and that the prejudicial impact of the testimony outweighedits probative value.
The court adhered to its ruling that Gambardella would be allowed to testify, but stated thatany such testimony would be strictly limited to what was contained in his expert disclosure.Plaintiff's counsel asserted that Gambardella had performed his vehicle tests under conditionswhich differed significantly from those of the instant case. The court asked counsel whether hewanted an opportunity to question the expert about his investigation before the jury came in.Counsel stated he preferred that the witness's testimony be precluded. The court stated that inlight of its ruling, and to "overcome whatever prejudice there may be, obviously you are at adisadvantage because going into cross-examination you don't know the answer to all thequestions you want to ask," it would permit plaintiff the opportunity to question the witnessoutside the presence of the jury "so you are not surprised by what he says during his testimony."
Counsel replied "I guess I will have to take that opportunity." However, shortly afterexamination commenced, defense counsel objected to what he perceived as plaintiff's counsel'sattempts to impeach the witness. The court chastised plaintiff's counsel that "[t]he purpose hereis not to impeach the witness, but really to get some information." The court stated that ifcounsel wanted that opportunity, the court was "happy to provide [it]," then noted "we do have ajury waiting." Plaintiff's counsel concluded his examination shortly afterward. His renewedobjection to the expert testimony was overruled.
On direct, Gambardella testified, inter alia, that he evaluated the "power off" brakingperformance in an "exemplar vehicle" by disconnecting the power brake unit from the engine,plugging the line, and removing the check valve. On a brake test, the vehicle could be stopped"briskly" by use of one foot (340 to 360 pounds of force) and almost entirely if both feet wereapplied (500 pounds of force). Based on his calculations, he estimated that the maximum speedof plaintiff's vehicle at the time of impact was less than 23 miles per hour.[FN*]Defense counsel [*4]posited to Gambardella that an employee ofdefendant had testified that he saw plaintiff's vehicle "lurch forward." Defense counsel askedGambardella what would cause plaintiff's vehicle to behave in such a way. Gambardellaanswered "[u]se of the engine, engine and transmission. That's the thing that would cause thevehicle to rapidly lunge forward. You have to restart the engine, put the vehicle in gear and stepon the gas pedal. That will cause it to lurch forward. There is no other mechanism." Counselasked whether Gambardella had an opinion with a reasonable degree of engineering certaintythat plaintiff had restarted the vehicle. Gambardella responded: "Assuming what you asked me toassume, that the vehicle lurches forward, takes off, the only thing that can cause that vehicle toquote unquote take off and accelerate briskly is the engine."
Counsel asked Gambardella if he had an opinion with a reasonable degree of certainty as tohow the accident had occurred. Gambardella responded: "We have an engine restart followed bypedal confusion . . . The plaintiff is stepping on the wrong pedal." However, hecould not specify the speed of plaintiff's vehicle at the time plaintiff allegedly turned the engineon and depressed the accelerator instead of the brake. Gambardella conceded that he performedhis tests on the bridge in a 2006 pickup and not in a 1994 Ford Explorer, the vehicle driven byplaintiff. He also conceded that the pickup was not being pushed at the time the tests wereperformed and that the pickup was in fact driven to the point where the hill crested. At no timeduring the test was the power steering on the truck disabled. Gambardella conceded that theexemplar vehicle had not overheated, as had plaintiff's vehicle. Gambardella had no data on thetire inflation or the weight of plaintiff's vehicle, but maintained that his calculations werenonetheless correct.
It is beyond dispute that defendant failed to comply with CPLR 3101 (d) (1) (i), whichprovides that "[u]pon request, each party shall identify each person whom the party expects tocall as an expert witness at trial." Where a party retains an expert an insufficient period of timebefore the commencement of trial to give sufficient notice—here, defendant gave notice ofGambardella in the middle of trial, after plaintiff had rested—he or shemust show "good cause" for the late disclosure.
In my opinion, defendant failed to show "good cause" for the belated disclosure (seeGerme v City of New York, 211 AD2d 480 [1995]; Hudson v Manhattan & BronxSurface Tr. Operating Auth., 188 AD2d 355 [1992]). Defendant's purported excuse for thelate disclosure—that counsel had recently been engaged, and that he thought the testimonywould be "helpful" for the jury—was entirely insufficient.
More problematic, the belated disclosure was highly prejudicial to plaintiff on causation, theultimate issue of the case. Plaintiff had no opportunity to effectively prepare for Gambardella'scross-examination, or to rebut the testimony by engaging his own expert. This was classic "trialby ambush." As indicated, Gambardella's testimony was flawed and his conclusions suspect.There were considerable discrepancies in the conditions under which Gambardella performed histests on the "exemplar" vehicle and the actual conditions at the time [*5]of the accident, discrepancies the import of which were not knownbecause plaintiff had no opportunity to sufficiently prepare for Gambardella's testimony or torefute it. If apprised of Gambardella's testimony sufficiently in advance of trial, plaintiff wouldhave been aware of Gambardella's conclusions—including his speculative one thatplaintiff had suffered from "pedal confusion"—and could have hired his own expert toundermine the conclusions of Gambardella's testing. Instead, the jury heard extensive, highlytechnical testimony, the conclusion of which—based on speculativehypotheticals—was that plaintiff had caused his accident by restarting his vehicle andmistakenly stepping on the accelerator. This version of the facts was highly dubious, particularlyin light of the undisputed testimony that plaintiff's vehicle picked up speed after the roadwaycrested and as it approached the Hoyt Avenue exit, where the road declined precipitously.Plaintiff attributed this "lurch" to the effects of gravity, and Georges' testimony regarding theaccident is not inconsistent. Georges speculated that plaintiff had restarted his vehicle as heapproached the exit, but Georges also testified that plaintiff "wiggled," consistent with havingdifficulty with the manual steering, and also testified that when he reached plaintiff shortlythereafter, the vehicle was in the "off" position. In sum, the expert's testimony gave imprimaturto a dubious rendition of the facts and no doubt was determinative of the case.
The defense waited until after the close of plaintiff's case to apprise the court of its intentionto call Gambardella to the stand. Although plaintiff's counsel was given an opportunity to voirdire the expert, his examination was rushed and repeatedly objected to by defense counsel, andthe court was certain to remind plaintiff's counsel that the jury was waiting. This briefquestioning could not, in any event, overcome the overwhelmingly prejudicial effect of thislast-minute expert testimony on causation, the dispositive factor of the case.
The jury returned a verdict in defendant's favor based on its finding that defendant was notnegligent. To say that the belated expert disclosure did not prejudice plaintiff's case is to ignorereality and to endorse the gamesmanship engaged in by defense counsel. The trial court shouldhave granted plaintiff's motion to preclude the testimony. At a minimum, the court should haveoffered plaintiff an adjournment and directed defendant to bear the cost of any rebuttal witness,as in St. Hilaire v White (305 AD2d 209 [2003]).
Footnote *: Gambardella testified that thecoasting speed starting from the crest of the bridge coasting down to the Hoyt Avenue exit,without any braking, was well in excess of 40 miles per hour.