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Supreme Court, Appellate Division, Fourth Department, New York.

James R. BYRNES, Plaintiff–Appellant, v. Clyde SATTERLY, M.D., Defendant–Respondent, et al., Defendant.

Decided: June 17, 2011

PRESENT:  SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ. Frank A. Bersani, Jr., Syracuse (Ryan L. Abel of Counsel), for Plaintiff–Appellant. Sugarman Law Firm, Syracuse (Danielle Mikalajunas Fogel of Counsel), for Defendant–Respondent.

Plaintiff commenced this action seeking damages for injuries he sustained as the result of the alleged malpractice of Clyde Satterly, M.D. (defendant) in prescribing medication that caused plaintiff to develop neuroleptic malignant syndrome.   He now appeals from a judgment entered in defendant's favor, the jury having found that defendant was not negligent in the care and treatment of plaintiff and that he provided appropriate information to plaintiff before obtaining plaintiff's consent to the use of the medication.

We agree with plaintiff that Supreme Court erred in precluding his expert from testifying with respect to the theory that defendant was negligent in failing to monitor plaintiff after prescribing the medication at issue.   Plaintiff asserted in his expert disclosure statement that the expert would testify, inter alia, concerning “the treatment rendered to plaintiff by defendant ․ in prescribing Zyprexa,” which encompasses monitoring the effect of the drug on plaintiff (emphasis added).   Thus, the proposed “testimony ‘was not so inconsistent with the information and opinions contained [in the expert disclosure statement], nor so misleading, as to warrant preclusion of the expert testimony’ ” (Neumire v. Kraft Foods, 291 A.D.2d 784, 786, 737 N.Y.S.2d 457, lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186).   Further, in light of the allegations in the complaint that defendant was negligent in failing to monitor plaintiff's medication and condition, defendant “cannot claim either surprise or prejudice” arising from the alleged inadequacy of plaintiff's expert disclosure statement (Ruzycki v. Baker, 9 A.D.3d 854, 855, 780 N.Y.S.2d 253).  “Because the court precluded plaintiff from introducing any evidence on a theory that might have resulted in a different verdict,” we conclude that a new trial is required (Maldonado v. Cotter, 256 A.D.2d 1073, 1074, 685 N.Y.S.2d 339).

It is hereby ORDERED that the judgment so appealed from is reversed on the law without costs and a new trial is granted.

We respectfully dissent because we cannot agree with the majority that Supreme Court abused its discretion in precluding plaintiff's expert from rendering an opinion that exceeded the scope of the expert disclosure statement plaintiff provided to defendants during pretrial discovery and thus that reversal on the law is warranted (see e.g. McColgan v. Brewer, 84 A.D.3d 1573, 923 N.Y.S.2d 276;  Neumire v. Kraft Foods, 291 A.D.2d 784, 786, 737 N.Y.S.2d 457, lv. denied 98 N.Y.2d 613, 749 N.Y.S.2d 475, 779 N.E.2d 186).   Nor can it be said that the court improvidently exercised its discretion so as to warrant reversal in the exercise of our discretion (see e.g. Ryan v. St. Francis Hosp., 62 A.D.3d 857, 878 N.Y.S.2d 786, lv. denied 13 N.Y.3d 708, 890 N.Y.S.2d 445, 918 N.E.2d 960;  LaFurge v. Cohen, 61 A.D.3d 426, 876 N.Y.S.2d 391, lv. denied 13 N.Y.3d 701, 885 N.Y.S.2d 715, 914 N.E.2d 364).

The expert disclosure requirements of CPLR 3101(d) are “intended to provide timely disclosure of expert witness information between parties for the purpose of adequate and thorough trial preparation” (Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d 788, 788, 736 N.Y.S.2d 758;  see McColgan, 84 A.D.3d at 1576, 923 N.Y.S.2d 276), and “trial courts are ‘vested with broad discretion in addressing expert disclosure issues' ” (McColgan, 84 A.D.3d at 1576, 923 N.Y.S.2d 276).   We acknowledge that the extremely generalized allegations set forth in the complaint included allegations that Clyde Satterly, M.D. (defendant), inter alia, failed “to properly and adequately treat plaintiff's condition”;  failed “to provide and afford proper and careful medical care”;  and failed “to properly monitor plaintiff's condition during the course of treatment.”   The bill of particulars, however, narrowed the scope of the alleged malpractice to events occurring on May 10, 2006, the date on which defendant prescribed Zyprexa, which is the drug that allegedly caused plaintiff to develop, inter alia, neuroleptic malignant syndrome.   In the bill of particulars, plaintiff limited his theories of negligence to those that related to the initial prescribing of Zyprexa.   It is well established that “[t]he purpose of a bill of particulars is to amplify the pleadings, limit proof, and prevent surprise at trial” (Mayer v. Hoang, 83 A.D.3d 1516, 1517, 921 N.Y.S.2d 426 [internal quotation marks omitted];  see Lamb v. Rochester Gen. Hosp., 130 A.D.2d 963, 516 N.Y.S.2d 379).   We thus conclude that, by limiting the theories of negligence in the bill of particulars, plaintiff abandoned the generalized, boilerplate allegations in the complaint that were not related to the initial prescribing of Zyprexa.

In his expert witness disclosure, plaintiff stated that the subject matter of the expert's testimony would relate, inter alia, to “the treatment rendered to plaintiff ․ in prescribing Zyprexa” (emphasis added);  “the lack of adequate warnings regarding the risks of taking Zyprexa”;  “the lack of informed consent”;  and “the standard of care for physicians prescribing Zyprexa and [defendant's] deviation from the standard of care.”   Thus, the expert's opinions were to be limited to purported errors in the initial prescribing of the drug.   At trial, however, plaintiff's attorney sought to elicit opinions on theories of negligence not advanced in either the bill of particulars or the expert witness disclosure.   We therefore conclude that the court properly precluded plaintiff's expert from testifying with respect to those additional theories of liability (see e.g. Ryan, 62 A.D.3d 857, 878 N.Y.S.2d 786;  LaFurge, 61 A.D.3d 426, 876 N.Y.S.2d 391;  Desert Storm Constr. Corp. v. SSSS Ltd. Corp., 18 A.D.3d 421, 422, 794 N.Y.S.2d 442;   Lidge v. Niagara Falls Mem. Med. Ctr. [Appeal No. 2.], 17 A.D.3d 1033, 1035, 794 N.Y.S.2d 190).   Contrary to the position of the majority, we conclude that the proposed testimony was in fact so inconsistent with the theories of malpractice advanced in the bill of particulars and expert witness disclosure that preclusion was warranted on the ground that plaintiff misled defendant to believe that his theories of malpractice were limited to acts or omissions occurring in the initial prescribing of Zyprexa (cf. Stevens v. Atwal [Appeal No. 2.], 30 A.D.3d 993, 994–995, 817 N.Y.S.2d 469;  Neumire, 291 A.D.2d at 786, 737 N.Y.S.2d 457;  Maldonado v. Cotter, 256 A.D.2d 1073, 1074, 685 N.Y.S.2d 339;  Andaloro v. Town of Ramapo, 242 A.D.2d 354, 355, 661 N.Y.S.2d 285, lv. denied 91 N.Y.2d 808, 669 N.Y.S.2d 261, 692 N.E.2d 130).   There is no indication in the record before us that defendant was alerted to the additional theories plaintiff sought to introduce at trial.   Allowing plaintiff to introduce such evidence concerning those additional theories therefore would have resulted “in a significant and impermissible change of the theory of plaintiff's case ․, thereby significantly prejudicing defendant” (Conroe v. Barmore–Sellstrom, Inc., 12 A.D.3d 1121, 1123, 785 N.Y.S.2d 629).