On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Brody, Gaynor and Baime. The opinion of the Court was delivered by Brody, J.A.D.
This is an automobile negligence action tried to a jury on damages issues only. Plaintiff Paul Skibinski, Sr., (plaintiff) claimed to have suffered severe injuries to the cervical and lumbosacral portions of his back. His wife sued per quod. The jury awarded plaintiff $65,000 and his wife $15,000. Plaintiffs*fn1 contend that the trial judge erroneously excluded the opinion testimony of their medical witnesses that plaintiff was totally disabled by the accident and therefore unemployable. The trial judge excluded the evidence because the experts failed to include that opinion in their reports that plaintiffs had furnished defendants during discovery.*fn2 We reverse.
In June 1981, plaintiff, then 53 years old, had stopped his automobile at a traffic light when it was struck from the rear.
He did not then appear to be injured from the impact, but evidence at trial supports plaintiff's claim that the accident produced disabling injuries to his back. At the time of the accident plaintiff had been working for the same employer over 18 years as a tool and cutter grinder. As his disability worsened he missed increasingly more time from work. His final day on the job was September 8, 1982, almost two years before trial. He has not worked since.
The issues at trial were the extent of plaintiff's injuries and whether they were attributable to the 1981 automobile accident or to other accidents that had occurred years earlier. An important component of his damages, which the trial judge prevented plaintiff from proving, was his alleged inability to work for the remainder of his work-life.
Plaintiff offered the testimony of two neurologists to prove that he was totally disabled. One neurologist had concluded in his report that the 1981 accident aggravated plaintiff's prior back injuries causing "difficulty with his both legs" and a "depressive neurosis." His report characterized plaintiff's condition as a permanent disability. The other neurologist made a similar diagnosis in her report wherein she noted that "at the end of 2 years after the accident Mr. Skibinski still remains in distress indicative of some permanent disability." Neither report contained an opinion that plaintiff's disability was total leaving him permanently unemployable. In excluding the proffered testimony the trial judge stated that an expert's testimony must be confined to the opinions expressed in the expert's report provided in discovery.
A distinction must be made between answers to interrogatories and an expert's report furnished in response to a request contained in interrogatories. R. 4:17-8(a) provides in part, "Answers to interrogatories may be used to the same extent as provided by R. 4:16-1(a) and R. 4:16-1(b) for the use of the deposition of a party." R. 4:16-1(a) permits any deposition to be used by any party for "any . . . purpose permitted by the
Rules of Evidence." R. 4:16-1(b) permits the deposition of a party to be used by an adverse party for" any purpose against the deponent. . . ." [Emphasis added.]
An answer to an interrogatory is a statement by a party and therefore admissible at trial as an admission. Evid.R. 63(7). A written admission provided in discovery may also be used by an adverse party to establish "conclusively" any fact admitted. See R. 4:22-2 (Requests for Admissions). A party therefore may not introduce at trial evidence of facts and opinions that are inconsistent with the facts and opinions stated in his answers to interrogatories. Although this limiting effect of answers to interrogatories is not expressly stated in the Rules of Court, it is implicitly acknowledged in R. 4:17-7, the limitation on the right to amend answers to interrogatories. There it is provided, "In no case shall amendments be allowed 1) at trial where it appears that the evidence sought to be introduced was known to the party seeking such leave, more than 10 days prior to trial. . . ." [Emphasis added.]
The report of an expert is also a statement. However, unlike an answer to an interrogatory it is not a statement of a party and therefore cannot be treated as an admission simply because a party furnished it in discovery. Confusion occurs because, as a matter of convenience, R. 4:10-2(d)(1) permits a party to require another party to furnish his expert's report "through interrogatories" rather than through the more cumbersome procedure of production and copying of documents pursuant to R. 4:18-1. Statements in an expert's report that are inconsistent with his testimony are admissible in cross-examining the expert because inconsistent statements of any witness are admissible. Evid.R. 63(1)(a). But just as the testimony of a witness may ...