Expert Precluded for Failure to Turn Over All Material Relied Upon

On May 16, 2024, the First Department issued a decision in Taxi Tours Inc. v. Go N.Y. Tours Inc., 2024 NY Slip Op. 02760, holding that an expert witness properly was excluded from testifying because of the expert’s failure to turn over all the data that was the basis for the expert’s decision, explaining:

The court providently exercised its discretion in excluding the expert disclosure, precluding the expert’s testimony, and denying leave to reopen discovery. Go New York failed to comply with Commercial Division Rule 13(c), which provides that any “expert disclosure must be accompanied by a written report, prepared and signed by the witness, which must contain (B) the data or other information considered by the witness in forming the opinions. Go New York did not provide the data forming the basis for its expert’s opinions, which was gathered in connection with Go New York’s allegations of false online reviews. The omission of the reviews prejudiced the Taxi Tours defendants’ ability to respond to the expert’s opinions.

Go New York’s reliance on the federal law standard, in which noncompliance would not lead to exclusion of expert disclosure where the non-disclosing party sustains its burden of showing that the failure to disclose was either substantially justified or harmless, is unavailing. The absence of the data cannot be considered harmless given the prejudice involved and Go New York has not shown that its nondisclosure was substantially justified. Go New York has provided no excuse for failing to preserve copies of the review data purportedly substantiating its expert’s opinions. Go New York has not presented any efforts it took to back up the data before inquiring about the matter on May 11, 2023, weeks after providing the expert disclosure on April 27, 2023.

(Internal quotations and citations omitted).

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