[212 NJSuper Page 188] In this dental malpractice action, plaintiff seeks through the videotaped deposition of her treating dentist, to inform the jury that a periodontist concluded that she suffered from periodontal disease for a number of years. Defendant's objection to this evidence raises the issue of whether, pursuant to Evid.R. 56, an expert may testify in direct examination about the conclusion of another expert on the ultimate issue in the case. No reported decision clearly delineates whether such hearsay evidence is admissible under Evid.R. 56 or its federal counterpart Fed.R.Evid. 703.
Plaintiff, Norma Hartman, lived in Somerset County from 1970 through 1983. During that time she was treated by defendant, Glenn C. Yawger, a licensed practicing dentist in the State of New Jersey. The parties agree that during that 13-year period plaintiff received examinations and treatment by defendant several times each year. During 1982 and 1983, defendant did extensive bridgework on top of plaintiff's gums. She was treated and examined by him at least three times in 1983. Thereafter, she moved to Florida and approximately nine months after her last examination by defendant, plaintiff went to a dentist, Dr. Kimbrough, in Clearwater, Florida. When Dr. Kimbrough examined plaintiff, he found that she suffered from periodontal disease and referred plaintiff to a periodontist, Dr. Melker. Upon examination, Dr. Melker concluded that plaintiff was suffering from periodontal disease and, because of its extent, concluded that she had periodontal disease for many years. In order to arrest the disease, Dr. Melker performed four separate surgeries on plaintiff. In addition, Dr. Kimbrough later replaced all of plaintiff's bridgework.
The gravamen of plaintiff's complaint is that plaintiff suffered from periodontal disease for many years while being treated by defendant, that defendant negligently failed to diagnose the disease and that as a result plaintiff had to undergo surgery and the removal and replacement of her bridgework. Plaintiff alleges that defendant's failure to diagnose and treat the periodontal disease also caused her to sustain periodontal damage and bone loss which she would not have otherwise sustained. Defendant denies that plaintiff suffered from periodontal disease while she was his patient.
Dr. Melker is not going to be a witness at trial, and no videotaped deposition has been taken of him. However, Dr. Kimbrough's videotaped deposition has been taken and in that deposition Dr. Melker's opinion is disclosed. Specifically, Dr. Kimbrough was asked the following question by plaintiff's counsel during the course of the videotaped deposition:
Q. Now Dr. Kimbrough, I have marked as P-5 for identification, a letter from Dr. Daniel Melker, addressed to me, and dated January 21, 1986, and I will ask you to assume that in that letter Dr. Melker, the periodontist who you referred Mrs. Hartman to, gave an opinion based on your x-rays of January 4, 1984, that the periodontal problem which the two of you found would have existed for approximately ten years prior to January of 1984.
I will ask you, from your discussions with Dr. Melker, and from your own independent judgment and opinion you reached based on this patient, is that a fair approximation of the period of time the problem would have existed in her mouth?
Defense counsel objected to the question when asked, and now objects, arguing that it should be excised from the videotape because it contains inadmissible hearsay evidence that Dr. Melker concluded that plaintiff suffered from periodontal disease during the years she was under defendant's care. Plaintiff contends that this information is admissible under Evid.R. 56(2) as a fact or datum on which Dr. Kimbrough relied in forming his opinion. Later in the videotaped deposition, Dr. Kimbrough testified without reference to Dr. Melker's opinion that in his opinion plaintiff had periodontal disease for at least three years before he examined her.
Before the amendment of Evid.R. 56 in 1982, expert testimony based on the expert opinions of others was inadmissible. Rules of Evidence, Comment 7 to Evid.R. 56(2) (Anno.1986). Any disclosure of the opinion of the out-of-court expert was prohibited. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 309 (1954) (a hypothetical question which includes any opinion of another expert is improper).
Evid.R. 56(2), as amended in July 1982, provides that
[t]he facts or data in a 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.
This language was borrowed from Fed.R.Evid. 703. The purpose of that rule is set forth in the advisory committee's note which ...