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Graham v. Gielchinsky

Decided: December 11, 1991.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 241 N.J. Super. 108 (1990).

For affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.


This appeal concerns an apparent gap in our Rules of Civil Procedure dealing with the discovery and use of the opinion evidence of an expert consulted by an adversary. Absent exceptional circumstances, our Rules of Civil Procedure do not permit discovery of the names or opinions of experts that a party has consulted but does not intend to call at trial. See R. 4:10-2(d)(3). At the same time, however, the Rules do not address whether a litigant may use that information at trial when obtained through means other than discovery.

The contested evidence in this case consisted of an opinion of an expert witness, originally consulted by plaintiff Bernard Graham (henceforth we refer only to the injured plaintiff), that no medical malpractice had occurred in the course of defendant Gielchinsky's treatment of plaintiff. (Henceforth "defendant" refers only to Dr. Gielchinsky.) The case concerns the physician's alleged deviation from accepted medical standards in failing to remove pacemaker wires that had been implanted in the patient's chest during cardio-thoracic surgery.

The trial court confronted an unusual situation. Immediately before opening statements, plaintiff moved to bar the testimony of the expert whom Dr. Gielchinsky had listed, presumably for

purposes of jury selection, as a witness he expected to call at trial. Defendant asserts that plaintiff had been unaware that that expert would testify because plaintiff had failed to request a list of defendant's experts in discovery.

In the absence of controlling precedent and because of the unexpected manner in which the issue arose, the trial court allowed defendant to use the expert's favorable opinion evidence. The court, however, prohibited the expert from relying on any confidential information or suggesting that plaintiff had originally consulted him. Despite some references by defense counsel to the original consultation, we are satisfied that the trial court's exercise of discretion was not so clearly erroneous as to have had the capacity to bring about an unjust result. Accordingly, we affirm the judgment of the Appellate Division, which sustained a jury verdict in favor of defendant.


For purposes of this appeal, we generally accept the statement of facts in plaintiff's brief. On April 14, 1982, defendant performed an aortic-valve replacement and a coronary bypass on plaintiff at Newark Beth Israel Hospital (Beth Israel). The operation involved attaching a pacemaker and placing five pacemaker wires in Graham's chest. Shortly after the operation, Graham underwent a second procedure to remove the pacemaker and pacemaker wires from his chest; while two of the pacemaker wires were successfully removed, some of the wires were cut at chest level and left in Graham's chest. Subsequently, Graham developed a chest wall infection. On May 14, 1982, Dr. Gielchinsky opened and debrided the wound, removing the dead tissue and draining the infected material. When plaintiff was discharged on July 10, 1982, he was still taking antibiotics for the infection, and his chest was still wrapped in bandages.

When the infection worsened, Dr. Gielchinsky readmitted Graham to Beth Israel. On November 9, 1982, Dr. Gielchinsky

again debrided the infected area. A plastic surgeon created a muscle flap by raising two muscle areas and placing them into the chest wound. The surgeon then placed a skin graft from the plaintiff's thigh over these muscles. The remaining pacemaker wires were not removed during any of these operations.

In September 1983, Graham entered Perth Amboy General Hospital because of an unrelated urological problem. Because his chest was still infected, his attending physician consulted a surgeon who performed exploratory surgery and removed the remaining pacemaker wires. Graham remained in the hospital for two months, went home for approximately a week at Thanksgiving, and then returned to the hospital where the wound was again debrided. The infection then began to clear.

Subsequently, plaintiff filed a complaint alleging that Dr. Gielchinsky had been negligent in failing to remove the pacemaker wires and in failing to take the proper cultures, which would have shown that a foreign body was causing the infection. Graham's original attorney sent him to Dr. Frederick Primich for an examination. Dr. Primich concluded that Dr. Gielchinsky had not been negligent, because the pacemaker wires were not in the operative field and thus not in the area of the infection. Dr. Primich also determined that it would have been inappropriate for a thoracic surgeon to probe for the wires through an infected area because this could lead to the spread of infection and uncontrollable bleeding. Graham's current counsel sent him to a second physician, Dr. Joseph Silva, who concluded that Dr. Gielchinsky had been negligent.

In some undisclosed manner, the defense obtained Dr. Primich's report. Approximately one week before trial defense counsel telephoned Dr. Primich and asked him to testify on Dr. Gielchinsky's behalf. As noted earlier, the court permitted Dr. Primich to testify as an expert for the defense.

The jury returned a verdict in favor of Dr. Gielchinsky. On appeal, plaintiff argued that the court had erred in allowing Dr. Primich to testify as a defense expert; that Dr. Primich had

violated the trial court's ruling, which prohibited him from disclosing the identity of the party who had first retained him; and that in his summation defense counsel had made improper remarks concerning Dr. Primich's impartiality. A majority of the Appellate Division concluded that the trial court had not erred in permitting Dr. Primich to testify as an expert and that the handling of the witness's testimony had not prejudiced plaintiff's case. One member of the panel disagreed, concluding that in arguing in summation that Dr. Primich was an impartial, unbiased witness, defendant grossly distorted the truth and that such a distortion was clearly capable of producing an unjust result. Because of the dissent below, plaintiff appeals to us as of right under Rule 2:2-1(a).


To put the issues in perspective, we review the evolution of our rules of discovery and the use of expert evidence. Despite the unintended consequences of discovery abuse that have plagued our system, courts have gradually permitted increased discovery of expert-opinion evidence.

A. The policies governing the discovery of information held by expert witnesses.

The traditional instincts of the adversary system slowed early efforts to discover the opinion of an adverse party's expert. Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir.1980), cert. denied, 450 U.S. 918, 101 S. Ct. 1363, 67 L. Ed. 2d 344 (1981), succinctly states the development of the doctrine, and we merely summarize it here. Early resistance to relaxing the discovery process was premised on the theory that no party should build its case by foraging for opinions from the experts of the other party. Id. at 792. Closely related to that was the so-called "work product rule" of Hickman ...

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