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Coyle v. Estate of Erich H.W. Simon

Decided: April 12, 1991.


On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Michels, Brody and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.


This appeal requires us to consider the extent to which plaintiffs have waived the attorney-client privilege respecting written statements they had given their attorney. The trial judge ruled that the privilege was waived with respect to the entire contents of the statements when plaintiffs' attorney gave copies to two experts he had engaged to testify at trial. We granted plaintiffs' motion for leave to appeal from an interlocutory order, stayed pending this appeal, compelling plaintiffs to provide copies of the statements to defense counsel. We now reverse.

This is a medical malpractice action. Dr. Erich Simon had been treating plaintiff Leonard Coyle (plaintiff) for epilepsy in 1969 when for the first time plaintiff began experiencing mental lapses. Suspecting that plaintiff may have developed a brain tumor, Dr. Simon referred him to a neurosurgeon, defendant Dr. Richard Davis. Dr. Davis concluded from his examination that plaintiff, who was then 40 years old, had cerebral and cortical atrophy. He told plaintiff that his ailment was progressive and predicted that within 15 years he would completely lose his mental faculties and within another five years he would be dead.

Plaintiff did not experience the mental deterioration predicted by Dr. Davis. In 1986 Dr. Simon, who had continued treating plaintiff, ordered tests that were developed after Dr. Davis had examined plaintiff in 1969. The new tests demonstrated that plaintiff never had cerebral or cortical atrophy. Plaintiff contends in this action, which he commenced after Dr. Simon had died, that he has suffered greatly and his life has been seriously disrupted as a result of Dr. Davis's misdiagnosis and Dr.

Simon's alleged endorsement of that error. Plaintiff Del Coyle, plaintiff's wife, asserts a per quod claim.

The issue on appeal springs from a dispute respecting the factual basis of the claim against Dr. Simon's Estate (defendant). Plaintiffs claim that by word or deed Dr. Simon endorsed Dr. Davis's misdiagnosis. That claim, however, is undercut by plaintiff's deposition in which he testified that after learning of Dr. Davis's diagnosis, Dr. Simon told plaintiff to disregard it. Plaintiff explained later in his deposition that he meant that Dr. Simon merely counselled him not to let Dr. Davis's diagnosis upset him, not that the diagnosis was wrong. Defendant's attorney wants to discover any statement plaintiff made that recounts what Dr. Simon had told him respecting Dr. Davis's diagnosis, and, particularly in view of Dr. Simon's death before this action, any other admissions that would help the defense.

Plaintiffs each gave their attorney a written statement in which they recited the factual basis of their claims against defendants. Their attorney gave copies of the statements to two medical experts who are expected to testify for plaintiffs at trial. The experts have both stated that they read the statements but cannot recall which protions, if any, they relied on in forming the opinions they expect to give at trial. In these circumstances, the trial judge ruled that the attorney-client privilege had been waived and granted defendant's motion for copies of the statements.

At the time they were given, plaintiffs' written statements to their attorney reciting facts relating to their claims were protected by the attorney-client privilege. ". . . [C]ommunications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, . . ." Evid.R. 26(1).

The privilege that protects confidential communications between attorney and client from disclosure is broad enough to shield such communications when made to or shared

with the attorney's agent. State v. Davis, 116 N.J. 341, 361, 561 A.2d 1082 (1989). Agents include experts engaged to aid the attorney in the representation of his client. See e.g. State v. Mingo, 77 N.J. 576, 584, 392 A.2d 590 (1978) (handwriting expert); State v. Kociolek, 23 N.J. 400, 413, 129 A.2d 417 (1957) (psychiatrist); Macey v. Rollins Environmental Services, 179 N.J. Super. 535, 540, 432 A.2d 960 (App.Div.1981) (project engineer); State v. Melvins, 155 N.J. Super. 316, 323, 382 A.2d 925 (App.Div.1978), certif. denied 87 N.J. 320, 434 A.2d 72 (1981) (arson expert). Thus plaintiffs' written ...

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