This is a medical malpractice action. Martin Gewecke, a physician, was seriously injured in the crash of a glider which he was piloting. He died after certain medical procedures had been undertaken. Dr. August Ciell, one of plaintiff's experts, provided an opinion that defendant Dr. Steven M. Schwartz had been negligent in failing to obtain necessary information from another doctor prior to surgery and, for that reason and others, failing to make a proper assessment of decedent's condition. Dr. Ciell's deposition was taken by defense counsel. He was asked the following hypothetical question:
Now, I am asking you in this case to assume that Dr. Schwartz was aware of the status of this man's cardio-pulmonary and abdominal injuries, if any, from Dr. Wolarsky in the emergency room. Wouldn't it be appropriate, and given that information, for him to concentrate on the man's ENT complaints?
Plaintiff's counsel objected to the question on the ground that there was no support for the assumption in the record. He requested defense counsel to "make a representation that it is either in the record or that that is a fact. . . ." Defense counsel, considering the request to be improper, refused to make the representation, resulting in a direction to the witness not to answer the question. All defendants now move for an order requiring Dr. Ciell to answer the hypothetical question. They argue that they are not, and should not be, restricted by any requirement that facts contained in a hypothetical question, asked in the course of a deposition, be in the record or otherwise available.
The problem is one of general concern, not previously addressed in any considered way by New Jersey courts and only to a limited extent by the federal courts. Our inquiry starts with the following rules:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . . It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence . . . .
Evid.R. 56: (effective July 1, 1982)
A witness qualified pursuant to Rule 19 as an expert by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue. The facts or date in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Thus, we find a distinction between expert information sought in discovery and that presented at trial. At trial, opinion testimony must be based on "facts or data . . . perceived by or made known to him at or before the hearing," while it is sufficient for discovery purposes, if the information sought, though inadmissible at trial, "appears reasonably calculated to lead to the discovery of admissible evidence." Query: Is an opinion, responding to a hypothetical question, which contains factual information not in the record and not known to counsel, "reasonably calculated to lead to the discovery of admissible evidence?"
In Rogotzki v. Schept, 91 N.J. Super. 135, 152 (App.Div.1966), the court, referring to doctors who were parties, said: "It is clear that defendants may be deposed as to the facts of the treatment they gave -- what they did, what they saw, and the ...