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Kurdek v. West Orange Board of Education

Decided: December 10, 1987.

ROBERT KURDEK, PLAINTIFF,
v.
WEST ORANGE BOARD OF EDUCATION, DEFENDANT



Villanueva, J.s.c.

VILLANUEVA

This is a suit for personal injuries wherein plaintiff alleges that he was caused to fall off his motorcycle when an unidentified driver of defendant-West Orange Board of Education's van suddenly veered into his lane.

At the trial defendant sought to call as its witness plaintiff's treating physician to obtain the medical history given by plaintiff as well as the physician's prognosis of no permanency. Plaintiff objected to this expert testimony because of the allegiance allegedly owed by the physician to his patient and the fact that no expert report of this witness was supplied by defendant.

The issue is whether defendant, without supplying any expert's report, can call as a trial witness plaintiff's treating doctor to testify that plaintiff has no permanent disability.

This opinion supplements the court's ruling that permitted such testimony.

The jury found both plaintiff and defendant were negligent and apportioned the negligence: 30% to plaintiff and 70% to the

board of education. The jury's award of total damages of $80,000 was molded, therefore, to $56,000 without interest.

After the accident, plaintiff was confined in the intensive care unit at St. Barnabas Medical Center under the care of Malcolm G. Coblentz, M.D., a general and vascular surgeon, who brought in five consultants.

The only doctor called as a witness by plaintiff was Rowland Goodman, M.D., an examining physician specializing in internal medicine. He stated that plaintiff suffered a posttraumatic laceration of the lung, with permanent effects to the heart and lung, that the injury and damage to the heart muscle was almost identical to a heart attack, that plaintiff had problems lifting his arm and permanent impairment of his lung function. He testified that this impaired function would affect plaintiff for the rest of his life, because he would not be able to exercise as much as before, and that if he had children, he could not physically keep up with them.

When the case was assigned for trial, defendant's attorney told plaintiff's attorney and the court that he would subpoena plaintiff's attending physician, Dr. Coblentz as his last witness to show the history plaintiff gave to the doctor about the accident and his prognosis of no permanency. After plaintiff completed his case, he requested a hearing in limine, Evid.R. 8, regarding Dr. Coblentz' "expert" testimony because of allegiance allegedly owed by the physician to his patient, plaintiff, and the failure to submit a report by Dr. Coblentz, causing surprise to plaintiff's attorney.

At the Rule 8 hearing, the court informed the doctor that he did not have to serve voluntarily as an expert for his patient's adversary in litigation. Lazorick v. Brown, 195 N.J. Super. 444, 457 (App.Div.1984); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C.1983). Dr. Coblentz's reply was "I have an obligation for truth. I consider myself to be a highly ethical physician. ...


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