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Ortiz v. Wagoner

Decided: August 2, 1984.


MacKenzie, J.s.c.


[197 NJSuper Page 525] The New Jersey Court Rules governing civil procedure authorize a party to propound interrogatories as part of pretrial

discovery. R. 4:17-1 et seq. In an ordinary bodily injury case, the defense will routinely request that the plaintiff be examined by one or more medical doctors in accordance with R. 4:19. The attorney for the defendant(s) will send the plaintiff's counsel a copy of the defense expert's report; typically, it is appended to and made part of the answers to plaintiff's interrogatories. See R. 4:10-2(d)(1), (2); R. 4:17-4(a). If the defendant has answered the plaintiff's interrogatories before the plaintiff has been examined by the defense's expert, then the defendant's attorney will forward the report to the plaintiff under separate cover. The report is generally accompanied by a cover letter which requests that the defendant's answers be amended to include the examining physician as one of the witnesses whom the defendant may call at trial. See R. 4:17-7.

Here, defendant submitted the reports of two examining physicians as part of her answers to interrogatories, but chose not to call either doctor to testify at trial. At plaintiff's behest, this Court had to decide whether submission of the reports should be deemed an expression of defendant's reliance upon their contents and, if so, whether these reports should be admissible as adoptive admissions, Evid.R. 63(8)(b), or as vicarious admissions, Evid.R. 63(9)(a). For reasons hereinafter expressed, this Court decided that neither report was admissible.

The infant plaintiff, Alex Ortiz, (Alex) suffered serious bodily injuries on September 2, 1981 when, as he was crossing Blackwell Street in Dover, New Jersey, he was struck by an automobile driven by the defendant. He was unconscious during the first eleven days of his four-week hospitalization at Dover General Hospital where he was treated for a subdural hematoma, fractures of the right femur and left clavicle, and multiple lacerations and abrasions. He was discharged on September 30, 1981, but he remained under the care of various medical specialists.

A neurologist who monitored Alex's progress at the hospital and after his discharge concluded that he had not suffered any

permanent neurological impairment. Treatment of the fractured femur included the insertion of a Steinmann's pin and skeletal traction and produced a generally positive result, although at trial one of Alex's legs was a half-inch shorter than the other. This caused him to walk and run with a limp. Alex thus asserted claims for both temporary and permanent orthopedic impairment. Although a plastic surgeon's efforts to repair and conceal the lacerations were largely successful, a visible forehead scar remained. While the plastic surgeon has recommended additional cosmetic revision, the plaintiff and his parents have not yet given their consent. Thus, at trial, plaintiff also contended that the accident had both temporarily and permanently disfigured him.

Defendant invoked R. 4:19*fn1 and requested that the infant plaintiff be examined by an orthopedic surgeon and by a plastic surgeon. Each examining physician, Dr. Theodore Levine and Dr. Donald Malton, produced a report for defendant's attorney which contained his findings, diagnosis and prognosis with regard to Alex's condition. The opinions of those physicians generally concurred with those recorded by the plaintiff's treating orthopedist and his plastic surgeon.

Alex demanded copies of all reports of defendant's experts in the interrogatories which he propounded. The defendant, who

had answered the interrogatories before she had received the reports from those physicians, then amended her answers by sending a copy of each report to the plaintiff's attorney. The cover letter accompanying each report contained the following representations respectively:

Enclosed herein please find the report of Dr. Donald Malton who examined your client on our behalf. Please amend our answers to include Dr. Malton as ...

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