It is well settled that if plaintiff is not merely updating allegations of special damages previously asserted, then court permission is required to an amended bill of particulars. While leave to amend is routinely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion may reject such amendment.
In <a href="http://www.newyorklawjournal.com/id=1202754217815/Nieto-v-Deveau-30024011?slreturn=20160320104557"><em>Nieto v. Deveau</em></a>, plaintiff alleged “post-concussion syndrome” and “post-traumatic headaches” in the original bill of particulars. On the eve of trial, plaintiff served defendant with a “second supplemental bill of particulars,” to add an allegation of “traumatic brain injury.”
After being served with the supplemental bill, defendant moved to strike the traumatic brain injury allegation arguing the traumatic brain injury was not merely a consequential injury described in the original bill of particulars (i.e. a “supplement”), but a new injury (an “amendment”). The court agreed, and granted defendant’s motion finding the symptoms alleged in the original bill of particulars could just as well be “consistent with someone suffering from the flu with a fever but does not otherwise suggest a ‘traumatic brain injury.’”
Moving to strike an amended or supplemental bill of particulars is a helpful tool for practitioners. While the Courts typically give plaintiffs extreme leeway, in the event new allegations are alleged on the eve of trial, these allegations may be stricken.
Thanks to Caroline Freilich for her contribution to this post.