As litigation progresses, the damages claimed are often ongoing due to continuing treatment and medical developments.  When a plaintiff serves supplemental discovery that presents new information, the defense must be given an opportunity to fully investigate and prepare to meet the new allegations.  While this seems elementary, in Brown v. Brink Elevator Corp., the lower court denied the defendant’s request for a further deposition and physical examination after the plaintiff served a supplemental bill of particulars alleging continuing disabilities in her cervical spine.

 The First Department reversed the lower court’s decision, finding that the defendants were “entitled to newly exercise any and all rights of discovery” with respect to the newly alleged continuing disabilities.  The Court held that the defendant’s right of discovery included the right to take a further deposition of the plaintiff and to notice a physical examination by a designated physician.  Moreover, the Court held that the further physical examination did not have to be conducted by the same physician who conducted the plaintiff’s initial examination. 

Thanks to Georgia G. Coats for her contribution.

For more information, contact Denise Fontana Ricci at