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Donna v. Zigarelli

Decided: May 4, 1960.

JAMES DI DONNA, AN INFANT, BY HIS GUARDIANS AD LITEM, DOMINICK DI DONNA AND NANCY DI DONNA, AND DOMINICK AND NANCY DI DONNA, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
JOSEPH ZIGARELLI, M.D., ABBOTT LABORATORIES, A BODY CORPORATE OF THE STATE OF ILLINOIS, AND ELI LILLY & CO., A BODY CORPORATE OF THE STATE OF INDIANA, DEFENDANTS-RESPONDENTS



Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d.

Price

Plaintiffs, in a malpractice suit, seek to reverse an interlocutory order entered in the Superior Court, Law Division, pursuant to R.R. 4:18-2, granting the application of defendant Joseph Zigarelli, a physician specializing in neurology and psychiatry, to take the deposition in New York of plaintiffs' prospective medical witness. We heretofore granted leave to appeal.

In the case at bar damages are sought for permanent injuries to the infant plaintiff, allegedly caused by the defendant doctor's negligent diagnosis and treatment of him. The parents of the minor sued per quod.

Respondent defends the order on the ground that, as evidenced by plaintiffs' answers to interrogatories, the prospective witness was one of the physicians who treated the minor plaintiff following his alleged negligent treatment by defendant doctor, to whose professional care the minor had earlier been entrusted; that the witness, in his capacity as a treating physician, is subject to interrogation under the discovery proceedings; that his records, referable to such treatment, are the proper subject of required production at the taking of his deposition; that, as expressed in defendant's brief, such records and writings, prepared by the prospective witness "while treating the infant plaintiff," were prepared "in his capacity as a treating physician," and "not as an 'agent in anticipation of litigation and in preparation for trial'"; that, therefore, such records are not those barred by R.R. 4:16-2 as material prepared by a party or his agent in anticipation of litigation and in

preparation for trial, or writings which reflect the conclusions of an expert, prohibited by that portion of R.R. 4:16-2 "commonly referred to as the 'work product' rule."

Plaintiffs' counsel recognizes that their doctor, by virtue of his status as a treating physician, is not, as a prospective witness, to be cast solely in the role of an expert, and therefore normally might be interrogated on deposition within limited factual areas with reference to his activity as a treating physician. However, as hereinafter noted, he not only challenges the order in its entirety but attacks it specifically because its unlimited terms, he asserts, allow defendant to inquire into matters beyond the scope of permissive discovery. The avenues of inquiry, which plaintiffs aver are wrongfully opened to defendant by the breadth of the challenged order, are those which, directly or indirectly, involve the witness' expert opinion.

Preliminarily we refer to the factual situation which resulted in the present controversy. The complaint herein, filed February 5, 1959, charged that the minor plaintiff suffered permanent injury as the direct result of defendant doctor's negligence in the diagnosis of plaintiff's condition and in the subsequent treatment accorded to him. The charge of negligence was denied and, in addition, defendant alleged that the child's "injuries * * * were due to the failure * * * of his parents to follow the defendant's specific instructions and directions" concerning its treatment.

The pretrial order, entered November 23, 1959, contained a provision that "all parties shall have until January 25, 1960 to complete discovery proceedings." Defendant's counsel, within said period, made application to the court for an order:

"* * * allowing the defendant to take the depositions on oral examination of Dr. Donald Grivetz at his offices at 1176 Fifth Avenue, New York, New York after first making application to the appropriate Court in the State of New York for an issuance of a Subpoena Duces Tecum compelling his attendance and on twenty-four

hour notice to the plaintiffs and other parties of interest of the time and date of the said depositions and on such other terms as the Court shall feel just on the grounds that the plaintiff intends ...


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