SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

799 

CA 10-02402 

PRESENT: SCUDDER, P.J., SMITH, CARNI, SCONIERS, AND GREEN, JJ. 

 

JAMES R. BYRNES, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

CLYDE SATTERLY, M.D., DEFENDANT-RESPONDENT, 

ET AL., DEFENDANT.

 

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. 

 

Appeal from a judgment of the Supreme Court, Onondaga County

(Brian F. DeJoseph, J.), entered August 31, 2010 in a medical

malpractice action. The judgment awarded costs and disbursements to

defendant Clyde Satterly, M.D. 

It is hereby ORDERED that the judgment so appealed from is

reversed on the law without costs and a new trial is granted. 

Memorandum: 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 AD2d

784, 786, lv denied 98 NY2d 613). Further, in light of the

allegations in the complaint that defendant was negligent in failing

to monitor plaintiff’s medication and condition, defendant “cannot
-2- 799 

CA 10-02402 

claim either surprise or prejudice” arising from the alleged

inadequacy of plaintiff’s expert disclosure statement (Ruzycki v

Baker, 9 AD3d 854, 855). “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 AD2d 1073, 1074). 

All concur except SCUDDER, P.J., and SMITH, J., who dissent and

vote to affirm in the following Memorandum: 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, ___

AD3d ___ [May 12, 2011]; Neumire v Kraft Foods, 291 AD2d 784, 786, lv

denied 98 NY2d 613). 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 AD3d 857, lv

denied 13 NY3d 708; LaFurge v Cohen, 61 AD3d 426, lv denied 13 NY3d

701). 

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 AD2d 788,

788; see McColgan, ___ AD3d at ___), and “trial courts are ‘vested

with broad discretion in addressing expert disclosure issues’ ”

(McColgan, ___ AD3d at ___). 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 AD3d 1516, 1517

[internal quotation marks omitted]; see Lamb v Rochester Gen. Hosp.,

130 AD2d 963). 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
-3- 799 

CA 10-02402 

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

AD3d 857; LaFurge, 61 AD3d 426; Desert Storm Constr. Corp. v SSSS Ltd.

Corp., 18 AD3d 421, 422; Lidge v Niagara Falls Mem. Med. Ctr. [appeal

No. 2], 17 AD3d 1033, 1035). 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 AD3d 993, 994-995; Neumire, 291 AD2d at 786;

Maldonado v Cotter, 256 AD2d 1073, 1074; Andaloro v Town of Ramapo,

242 AD2d 354, 355, lv denied 91 NY2d 808). 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 AD3d

1121, 1123).

Entered: June 17, 2011 Patricia L. Morgan

Clerk of the Court