Does the Manufacturer Have the Right to Question the Examination of An Expert In Car Accident Cases ?

In Kraus v. Ford Motor Co.. (38 A.D.2d 680, 327 N.Y.S.2d 263 [4th Dept 1971]), where, following an automobile crash, plaintiff sent certain parts of the automobile to a lab for testing, defendant sought to examine the plaintiff's experts, the employees of the lab, not as to their opinions, but as to the nature of their examination and any changes in condition of the automobile parts as a result of their examination. The court found that defendant was entitled to examine plaintiff's expert as to the facts to ascertain if automobile parts that plaintiff turned over to expert were all the parts claimed to have been defective, whether they were all of such parts, and what if anything, was done to them by plaintiff's expert which may have altered them. In Cartis v. Gotham Builder and Renovators, Inc. (20 Misc 3d 1126[A], 867 NYS2d 373, 2008 NY Slip Op 51751[U] [NY Sup Ct, Kings County 2008]), where defendants sought a deposition of plaintiff's architect as a fact witness of the defendant's defective brick-laying work, even though he was an expert witness for plaintiff, the court, citing to Kraus, supra, concluded that CPLR 3101(d) did not apply if the "expert was deposed as to the facts," because plaintiff's architect was an active participant in the negotiation of the agreement at issue, made contemporaneous observations of the work being performed by defendant, was not designated as an expert at the time he was served with the subpoena, was identified as a fact witness by plaintiff in its response to defendant's discovery demands, at the same time, the court found that because the architect was intimately involved in the construction work performed by defendant which was at the heart of the controversy, special circumstance existed warranting the architect's deposition (Cartis v. Gotham Builder and Renovators, Inc.)