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Koutsouflakis v. Schirmer

Decided: January 25, 1991.

JOHN KOUTSOUFLAKIS, AN INFANT BY HIS GUARDIAN AD LITEM, STAMATOULA KOUTSOUFLAKIS, AND EMMANUEL KOUTSOUFLAKIS AND STAMATOULA KOUTSOUFLAKIS, INDIVIDUALLY, PLAINTIFFS,
v.
WILLIAM J. SCHIRMER, M.D., JOHN DOES I THROUGH X, ABC, INC., DEF, INC., GHI, INC., DEFENDANTS



Menza, J.s.c.

Menza

OPINION

This is defendant's motion to compel discovery.

The question presented is whether a plaintiff is required to furnish to the defendant the identity and report of an examining physician who the plaintiff will not call as a witness at trial. This precise question has not before been decided.

Plaintiff revealed for the first time in her depositions that the infant plaintiff had been examined by a physician who had been consulted by the plaintiff for the purpose of rendering an opinion as to whether the defendant committed medical malpractice. She did not reveal the name of the physician.

Defendant now moves the court to compel the plaintiff to reveal the identity of the doctor and to furnish his report. Plaintiff has refused to do so, contending that the court rules do not permit a defendant to receive this information.

Rule 4:10-2. Discovery, provides, in part:

(d) Trial Preparation; Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of R. 4:10-2(a) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(1) A party may through interrogatories require any other party to disclose the names and addresses of each person whom the other party expects to call at trial as an expert witness, including a treating physician who is expected to testify and of an expert who has conducted an examination pursuant to R. 4:19 whether or not he is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to furnish, as provided by R. 4:17-4(a), a copy of the report of an expert witness, including a treating physician, and, whether or

not he is expected to testify, of an expert who has conducted an examination pursuant to R. 4:19.*fn1

The defendant does not argue that he is entitled to the information because of "exceptional circumstances." He argues that a broad interpretation of Rule 4:10-2 coupled with case law, requires the plaintiff to furnish the requested information regardless of whether "exceptional circumstances" exist.

In support of his position, the defendant relies primarily on the cases of Cogdell v. Brown, 220 N.J. Super. 330, 531 A.2d 1379 (Law Div.1987), and the case of Graham v. Gielchinsky, 24 ...


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