[*1]
Matter of Dumont
2004 NY Slip Op 50033(U)
Decided on January 14, 2004
Surrogate's Court, Monroe County,
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on January 14, 2004
Surrogate's Court, Monroe County,


In the Matter of the Judicial Settlement of the
Second Intermediate Account of Chase Manhattan Bank, as Trustee
of the Testamentary Trust established u/w/o Charles G. Dumont, Deceased.




File No. 1956TT443



Harris Beach LLP, Paul Yesawich Esq., for Chase Manhattan Bank, petitioner-trustee.

Williams & Williams, Mitchell T. Williams, Esq. for Margaret S. Hunter, University of Rochester, Rochester Institute of Technology and American Red Cross, objectants-beneficiaries.


Edmund A. Calvaruso, J.

BACKGROUND


Objectants bring this motion in limine requesting an order precluding the testimony of two of Petitioner's expert witnesses, William J. Wilkie and G. William Schwert, Ph. D..

Objectants argue that Petitioner has not adequately disclosed the subject matter of the proposed experts' testimony. Petitioner argues that the disclosure was of sufficient detail to allow the testimony, and that Objectants have not provided the court with any showing of special circumstances necessitating further disclosure.

OPINION

Petitioner spends a portion of its argument claiming that Objectants need to have shown "special circumstances" in order to be deserving of further disclosure [FN1]. Special circumstances however, need only be shown where the movant is requesting information beyond the scope of "normal" disclosure [FN2], which is not the case here. Objectants do not seek the underlying facts or data of the experts' testimony, but rather expanded and clarified definitions of Petitioner's own disclosure language. The instant dispute between the parties goes no further than simple statutory interpretation. Here, the statute reads, in relevant part,

Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is [*2]expected to testify [FN3]. (emphasis added).

The premise of this motion boils down to a disagreement over what constitutes "reasonable detail". Case law has interpreted "reasonable detail" to hold that preclusion is warranted where responses to disclosure are "so general and nonspecific that the [other party] has not been enlightened to any appreciable degree about the content of this expert's anticipated testimony"[FN4] Therefore, the true question at issue, is whether petitioner's responses have provided objectants with an adequate understanding of what will be testified to at trial.

Mr. William Wilkie

In its discovery response, Petitioner has stated that Mr. William Wilkie will testify as to the fact that the bank "acted prudently 'in administering the trust, including communicating with the beneficiaries regarding their needs, the terms of the trust instrument and the investments.'"[FN5]. Petitioner has also stated that Mr. Wilkie will testify as to the " 'Dumont/Hunter family's special relationship with Eastman Kodak company'"[FN6]. Objectants take issue with this language, arguing that it is too vague to comply with CPLR 3101(d)(1).

On this issue, the Court is inclined to agree with the Objectants. Petitioner's description of the testimony of Mr. Wilkie leaves many questions unanswered: What communications will he testify to? Were these communications written or oral? By whom were these communications made? The lack of specificity in Petitioner's disclosure has made it difficult for Objectants to anticipate what evidence will be brought out in Mr. Wilkie's testimony on the subject of the trust administration.

Secondly, petitioner's assertion of the existence of a "special relationship" between the Dumont/ Hunter family and the Eastman Kodak company is not only vague, but it is more a conclusion than a factual assertion. Conclusory statements are insufficient responses to disclosure requests [FN7]. Petitioner must provide a definition of its term, "special relationship", and the basis for the testimony that one existed. Even though Margaret Hunter is, arguably a party to a Kodak/Dumont dyad, Objectants cannot reasonably be expected to infer what the testimony of Mr. Wilkie will entail on the Dumont/Hunter family without more explanation or description without more [*3]information from the Petitioner.

As such, Petitioner's disclosure on the scope of the testimony of William Wilkie is sufficiently lacking to fall short of the "reasonable detail" requirement of CPLR 3101(d)(1). Petitioner must therefore provide with all reasonable speed, adequate disclosure to the Objectants as to Mr. Wilkie's anticipated testimony, or risk an order of preclusion.

Dr. G. William Schwert

Objectants also seek preclusion of testimony from Dr. G. William Schwert, whom Petitioner has retained to testify as to the "time value of money" and "lost capital damage formula". Objectants have taken issue with both of these phrases, claiming that they are too vague or too broad, and that without a detailed description of these phrases in disclosure, objectants are unable to adequately prepare for trial.

On this front, however, the Court agrees with Petitioner. Both phrases have commonly accepted meanings, the first of which is known by nearly anyone who owes or is owed a debt, and the second of which is taken almost directly from the Estate of Janes [FN8], precedent for the computation of any damages which may arise in this case. These everyday meanings are understood enough that the Petitioner's disclosure has fallen within the "reasonable detail" provision of CPLR 3101 and has provided objectants with enough understanding to properly prepare.

THEREFORE, it is ordered that Objectants' motion for further disclosure regarding the testimony of Mr. William T. Wilkie is granted. Petitioners must provide Objectants with additional disclosure on this witness's testimony by 9am on Friday January 16th, or the witness will be precluded from testifying. Objectants' motion for further disclosure regarding the testimony of Dr. G. William Schwert is denied. Dr. Schwert is authorized to testify without any further disclosure to objectants.

So ordered.
Hon. Edmund A. Calvaruso, Surrogate [*4]
Decision Date: January 14, 2004
Footnotes


Footnote 1:Petitioner's memorandum of law in opposition, page three.

Footnote 2:Such as the specific facts and information about which the expert is testifying, as opposed to just the sum and substance thereof. Krygier v. Airweld, 176 A.D.2d 700.

Footnote 3:CPLR 3101 (d)(1).

Footnote 4:Chapman v. New York, 189 A.D. 2d 1075 (1993) (citing Saar v. Brown & Odabashian, 139 Misc.2d 328, 334). Syracuse v. Diao, 272 A.D.2d 881 (4th Dep't, 2000).

Footnote 5:Petitioner's disclosure statement, page two.

Footnote 6:Id.

Footnote 7:Brossoit v. O'Brien, 169 A.D.2d 1019 (3rd Dept., 1991)

Footnote 8:Estate of Janes, 223 A.D.2d 20, (1996).