New York: Employer and Carriers Do Not Waive Right to Cross-Examine Medical Experts Where They Fail to Enforce Subpoenas

Testimony and medical reports prepared by two physicians were properly excluded by a New York WCLJ where the employer's carriers caused multiple subpoenas duces tecum to be served on the physicians and on multiple occasions, the doctors refused to make themselves available for depositions. The WCLJ continued the matter several times because of the difficulty in obtaining the depositions, but eventually proceeded without them. Claimant contended that because the carriers had not sought to enforce the subpoenas, it was not appropriate for the WCLJ to proceed without additional efforts to secure the testimony. The appellate court disagreed. It noted that the burden was upon the claimant to establish medical causation in her case. The carriers had not waived their right to cross-examine the doctors by failing to enforce the subpoenas.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of DeLucia v. Greenbuild, LLC, 2020 N.Y. App. Div. LEXIS 2435 (3d Dept. Apr. 23, 2020)

See generally Larson’s Workers’ Compensation Law, § 127.11.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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