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ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR. 

The First Department determined a new liability trial was necessary in a personal injury case because of erroneous evidentiary rulings. The trial court allowed into evidence internal rules (apparently dealing with the operation of a subway train) which imposed a higher standard of care than that required by the common law:

The court erred in admitting into evidence portions of defendant’s internal rules, which imposed a higher standard of care than required by common law … . Moreover, the prejudice to defendant was heightened by plaintiff’s expert’s reading of those internal rules to the jury.

The court also erred in allowing plaintiff’s counsel to question defendant’s train operator about his discussions with counsel. Sebhat v MTA N.Y. City Tr., 2016 NY Slip Op 07872, 1st Dept 11-22-16

 

NEGLIGENCE (ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)/EVIDENCE (NEGLIGENCE, ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)/STANDARD OF CARE (ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR)

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HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION.

The Court of Appeals determined a (hearsay) spontaneous statement made by a bystander to a police officer about defendant’s attempt to get into the back of a FedEx truck was properly admitted as a present sense impression:

We hold that the statement was properly admitted as a present sense impression. That exception to the hearsay rule allows the admission of “spontaneous descriptions of events made substantially contemporaneously with the observations . . . if the descriptions are sufficiently corroborated by other evidence” … . Here, the woman’s statement was made to the officer immediately after the event she described and before she had an opportunity for studied reflection. The officer’s own observations sufficiently corroborated her description to allow its admission at trial … . People v Jones, 2016 NY Slip Op 07820, CtApp 11-21-16

CRIMINAL LAW (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/EVIDENCE (CRIMINAL LAW, HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/HEARSAY (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)/PRESENT SENSE IMPRESSION (HEARSAY STATEMENT BY BYSTANDER WHO OBSERVED DEFENDANT PROPERLY ADMITTED AS A PRESENT SENSE IMPRESSION)

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ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissent, reversing the Appellate Division, determined the evidence was sufficient to support the defendant’s felony murder conviction. The victim was found dead two days after an assault which fractured facial bones. The medical examiner testified the facial injuries were not the cause of death. But the medical examiner, noting the victim’s obesity and enlarged heart, offered an opinion that the victim would not have died from cardiovascular disease he not been assaulted:

Here, the medical examiner’s testimony, in conjunction with the crime scene evidence, established a sufficient causal connection between defendant’s infliction of blunt force trauma injuries during the violent home invasion and the victim’s death. Specifically, the medical examiner testified that “[s]tress of any kind can hasten a person’s demise by cardiovascular disease” and that, here, the stress caused by the injuries inflicted by defendant, “given [the victim’s] underlying heart disease[,] led to his death.” That testimony, along with the crime scene evidence that defendant’s beating of the victim was severe and immediate in its consequences, “was sufficient to prove that defendant’s conduct ‘set in motion and legally caused the death’ of” the victim … . Thus, the jury could have reasonably concluded that defendant’s conduct was an actual contributory cause of the victim’s death.

With respect to foreseeability of the death, the People must prove “that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused” … . In this case, defendant violently attacked the victim, in his home, breaking his jaw and leaving him on the floor in a blood-spattered room where he was found dead. From all of the evidence and the circumstances surrounding this violent encounter, the proof was sufficient to permit the jury to conclude that the victim’s heart failure, induced by the extreme stress and trauma of such a violent assault, was a directly foreseeable consequence of defendant’s conduct … . People v Davis, 2016 NY Slip Op 07818, CtApp 11-21-16

 

CRIMINAL LAW (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/EVIDENCE (CRIMINAL LAW, (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION)/FELONY MURDER (ALTHOUGH THE VICTIM DID NOT DIE FROM ASSAULT RELATED INJURIES, THE MEDICAL EXAMINER’S OPINION THE VICTIM WOULD NOT HAVE DIED FROM CARDIOVASCULAR DISEASE HAD HE NOT BEEN ASSAULTED WAS SUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION

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EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY. 

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, affirming the Appellate Division, determined evidence of defendant’s sexual acts with consenting adults was properly admitted to corroborate the testimony of children who described sexual abuse by the defendant. The children alleged defendant took them into a closet where he abused them (oral sex) while he smoked crack cocaine with his shirt pulled over his head. The children’s mother alleged the same scenario with her and other adults. The court noted that the consensual sexual acts with adults were not Molineux evidence because they were not prior bad acts or crimes. The only Molineux evidence was the allegation defendant smoked crack cocaine. Because all the evidence served to corroborate the children’s testimony it was not prohibited “propensity” evidence and the probative value outweighed its prejudicial effect:

… [W]e … note that evidence of defendant’s prior sexual acts with adult women is not “propensity” evidence in its traditional sense. When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s “human tendency” to more readily “believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . But here, that defendant had engaged in oral sex with consenting adult women, while in a closet smoking crack with his shirt pulled over his head, showed no propensity to commit the crimes for which he was on trial. That this evidence corroborated the girls’ accounts does not render it propensity evidence, because corroboration and propensity are distinct concepts. Because “there [was] a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior . . . acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” … . People v Brewer, 2016 NY Slip Op 07704, CtApp 11-17-16

 

CRIMINAL LAW (EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)/MOLINEUX EVIDENCE (EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)

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COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE.

The Second Department determined County Court should not have dismissed the indictment upon reading the grand jury minutes, on a ground not raised by the defendant, without giving the People the opportunity to address it. County Court found that the evidence presented to the grand jury warranted the agency-defense instruction, which was not given:

The County Court erred in dismissing the indictment based upon a specific defect in the grand jury proceedings not raised by the defendant, without affording the People notice of the specific defect and an opportunity to respond (see CPL 210.45[1]…). Contrary to the defendant’s contention, the People did not waive their right to notice and an opportunity to be heard by failing to move to reargue the court’s order … . Furthermore, upon our review of the record, we find that no reasonable view of the evidence presented to the grand jury warrants an instruction on the defense of agency … . The defendant’s actions were consistent with that of a “steerer,” and not a mere extension of the buyer … . In addition, because the defendant did not testify before the grand jury, no evidence was presented indicating that he did not stand to profit from the sale or that he had no independent desire to promote the transaction … . People v Cruz, 2016 NY Slip Op 07673, 2nd Dept 11-16-16

CRIMINAL LAW (COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/EVIDENCE (CRIMINAL LAW, AGENCY DEFENSE, COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/GRAND JURY (COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)/AGENCY DEFENSE (CRIMINAL LAW, COURT SHOULD NOT HAVE DISMISSED INDICTMENT ON GROUND NOT RAISED BY THE DEFENDANT WITHOUT GIVING THE PEOPLE THE OPPORTUNITY TO ADDRESS IT, EVIDENCE BEFORE THE GRAND JURY DID NOT SUPPORT THE AGENCY DEFENSE)

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QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED.

The Second Department determined defendant’s statements in connection with a murder charge were made in violation of his right to counsel. A new trial was ordered. At the time defendant was questioned about a robbery and a murder (the “gas station shooting”), he was represented on a marijuana charge. The robbery and murder occurred at different times and places, but defendant allegedly was the getaway driver for both. The trial court ruled the statements related to the robbery were made in violation of defendant’s right to counsel but the statements related to the murder were admissible. The Second Department noted that it is statutorily prohibited from revisiting the trial court’s suppression of the robbery statements. Since the Second Department concluded that the robbery and murder interrogations were necessarily intertwined, the murder statements should have been suppressed:

The Court of Appeals has recognized two categories of cases in which the attachment of counsel on one crime may preclude the police from interrogating a suspect on the subject of another crime. In People v Cohen (90 NY2d 632), the Court of Appeals stated that “where the two criminal matters are so closely related transactionally, or in space or time, that questioning on the unrepresented matter would all but inevitably elicit incriminating responses regarding the matter in which there had been an entry of counsel[,] . . . interrogation on the unrepresented crime is prohibited even in the absence of direct questioning regarding the crime on which counsel had appeared” … . With respect to the second category, the Court of Appeals has stated that “a statement may be subject to suppression where impermissible questioning on a represented charge was, when viewed as an integrated whole, not fairly separable from otherwise permissible questioning on the unrepresented matter and was, in fact, purposely exploited to aid in securing inculpatory admissions on the [unrepresented matter]” … . * * *

In light of the determination that the defendant’s right to counsel was violated when he was questioned with regard to the robbery charges, we further find that his right to counsel was violated by questioning on the factually interwoven homicide matter. Indeed, the robbery and the murder cases were so closely related that questioning about the gas station shooting “would all but inevitably elicit incriminating responses regarding” the robbery … . People v Henry, 2016 NY Slip Op 07676, 2nd Dept 11-16-16

 

CRIMINAL LAW (QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/ATTORNEYS (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)/RIGHT TO COUNSEL (CRIMINAL LAW, QUESTIONING OF DEFENDANT, WHO WAS REPRESENTED ON ANOTHER CHARGE, VIOLATED DEFENDANT’S RIGHT TO COUNSEL, STATEMENTS SHOULD HAVE BEEN SUPPRESSED)

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ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE.

The First Department determined the alleged victim of an assault was properly allowed to testify by Skype from Egypt. The victim had been prohibited from returning to the US from Egypt and the prosecutor had done everything possible to facilitate his return:

We conclude that, given the unusual circumstances of this case, and the prosecutor’s good faith, the People made the specific, individualized showing necessary to justify remote video testimony. The Confrontation Clause’s general guarantee of face-to-face testimony is not absolute … . Video testimony is permissible “provided there is an individualized determination that denial of physical, face-to-face confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured” (People v Wrotten, 14 NY3d 33…). Moreover, in Wrotten, the Court of Appeals recognized that video testimony could be employed in circumstances other than those involving a vulnerable child witness or a witness who was too ill to appear in court, as was the case in Wrotten (id. at 39-40).

Defendant concedes that the two-way video testimony at issue “preserve[d] the essential safeguards of testimonial reliability” … . The dispositive question is whether the testimony was ” necessary to further an important public policy'” … , which, in this case, is “the public policy of justly resolving criminal cases” … , a showing that must be made by clear and convincing evidence … . People v Giurdanella, 2016 NY Slip Op 07577, 1st Dept 11-15-16

 

CRIMINAL LAW (ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/EVIDENCE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)/VIDEO, REMOTE TESTIMONY (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE/SKYPE (CRIMINAL LAW, ALLEGED VICTIM OF ASSAULT PROPERLY ALLOWED TO TESTIFY FROM EGYPT VIA SKYPE)

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RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING, CASE REMITTED.

The Fourth Department sent the case back for a reopened Huntley hearing concerning recorded statements made by the defendant to the mother of defendant’s children, who was acting as a police agent at the time the statements were made. The statements were under a protective order until two weeks before the trial. The defendant was convicted of the murder of a man he mistakenly believed was having a relationship with the mother of his children:

… [T]he court erred in failing to reopen the Huntley hearing at defense counsel’s request with respect to recorded statements that he made to an agent of the police (see CPL 60.45 [2] [b] [i], [ii]), i.e., the mother of his children, which were the subject of a protective order until approximately two weeks before trial. Because the admission of those statements at trial cannot be deemed harmless error … , we hold the case, reserve decision and remit the matter to Supreme Court to reopen the Huntley hearing with respect to those recorded statements … . People v Mitchell, 2016 NY Slip Op 07543, 4th Dept 11-10-16

CRIMINAL LAW (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/EVIDENCE (CRIMINAL LAW, RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)/HUNTLEY HEARING (RECORDED STATEMENTS MADE TO THE MOTHER OF DEFENDANT’S CHILDREN, WHO WAS ACTING AS A POLICE AGENT AT THE TIME THE STATEMENTS WERE MADE, REQUIRED THE REOPENING OF THE HUNTLEY HEARING)

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STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE.

The Fourth Department, over a two-justice dissent, determined a statement alleged to have been made during a search, but which was not part of the 710.30 notice, should not have been admitted at trial. The defendant was charged and convicted of constructive possession of drugs found in the searched residence. The statement indicated where defendant’s “own room was.” There was little or no other evidence defendant lived at the searched residence. The court rejected the argument that the statement was “pedigree information” and further rejected the argument that the search consent form, signed by the defendant, was an admission of his dominion and control of the residence:

The People served on defendant a CPL 710.30 notice of their intent to offer defendant’s admissions as evidence at trial and attached a police report to the notice. The police report referenced defendant’s statement to the deputies, during the search, that one of the bedrooms belonged to another person. At trial, however, the court permitted an investigator to testify that defendant “explained where his [own] room was,” referring to another of the bedrooms. Inasmuch as the CPL 710.30 notice did not cover that statement, the court’s ruling on that point was error (see CPL 710.30 [1]…). That error permitted the court to conclude that defendant was an occupant of the residence and, consequently, to find that defendant had constructive possession of the drugs found therein … . People v Buza, 2016 NY Slip Op 07423, 4th Dept 11-10-16

 

CRIMINAL LAW (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)/710.30 NOTICE (STATEMENT WHICH WAS NOT IN THE 710.30 NOTICE, AND WHICH PROVIDED EVIDENCE OF DEFENDANT’S DOMINION AND CONTROL OF THE RESIDENCE WHERE DRUGS WERE FOUND, SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE)

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EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT DISCLOSURE NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED.

The First Department, in remanding for a new trial, determined (1) the expert disclosure notice provided by the defense was sufficient, and (2) plaintiff should have been allowed, during the trial, to submit an expert disclosure notice for a rebuttal witness.  Plaintiff alleged his foot was run over by a bus:

After the defense rested, plaintiff’s attorney sought permission to call two rebuttal witnesses. He submitted a CPLR 3101(d)(1) notice for an expert in biomechanical medicine, arguing that the disclosure notice for Dr. Kurtz had provided no indication that the doctor’s opinion was based on the lack of tread marks or injury to the metatarsals and ankle. He argued that the notice’s insufficiency had not allowed him to prepare an expert witness to address these issues directly. His proposed expert would demonstrate, by use of an anatomical model of a foot, that plaintiff’s foot could have been positioned after he fell in such a manner that when the bus wheel rolled over his foot, his ankle and upper foot would not have been injured as Dr. Kurtz claimed. The court denied his request based on the timing of the notice and its reasoning that no rebuttal was needed. …

We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify … . * * *

… [N]otwithstanding the delay by plaintiff in providing a CPLR 3101(d)(1) disclosure for his medical expert, the trial court, in the interest of justice, should have permitted the medical expert to testify in rebuttal. The court had allowed Dr. Kurtz to opine that there were inconsistencies between the claim of how the accident occurred and the resulting injuries, and although the testimony was not in his expertise, it was heard by the jury and opened the door to the necessity for plaintiff to produce a medical expert to attempt to rebut those opinions. Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394, 1st Dept 11-10-16

 

CIVIL PROCEDURE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EVIDENCE (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)/REBUTTAL EXPERT OPINION (EXPERT DISCLOSURE NOTICE NEED NOT DISCLOSE FACTS AND OPINIONS ABOUT WHICH EXPERT WILL TESTIFY, LATE EXPERT OPINION NOTICE FOR A REBUTTAL WITNESS SHOULD HAVE BEEN ACCEPTED)

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