On appeal from the Superior Court, Law Division, Passaic County
Gaulkin, R.s. Cohen and D'Annunzio. The opinion of the court was delivered by Gaulkin, P.J.A.D.
In this medical malpractice and product liability action, defendants appeal by leave granted (R. 2:2-4) from a pretrial order foreclosing them from presenting testimony at trial of plaintiff Jessica Stigliano's treating physicians "concerning the cause of [her] seizure condition." We reverse.
Plaintiffs' several causes of action are bottomed on the contention that Jessica suffers from a seizure disorder caused by an administration of DPT vaccine.*fn1 Jessica experienced her first seizure some six hours after her March 17, 1987 injection. Since then she has had frequent seizures, the number and intensity of which are poorly controlled by medication; all the treating and examining doctors agree that she has a chronic or primary seizure disorder. Plaintiffs' experts have submitted reports finding a causal relationship between the DPT immunization and the seizure disorder. Defendants' expert reports assert that DPT vaccine does not cause seizure disorders; as stated in one of those reports, "the role of DPT . . . is that it reveals the [seizure] disorder, but has no role in causation."
Defendants have given notice that they intend to present testimony at trial from three physicians who had been consulted in Jessica's treatment between 1987 and 1991, Dr. Abraham Chutorian, Dr. Jeffrey Buchhalter and Dr. Joseph Schneider. In their consultations, all three doctors had prepared written reports describing their findings, diagnoses and recommendations for treatment and for diagnostic studies. With respect to the cause of
the seizure disorder, Dr. Chutorian reported that the history and findings "are not compatible with a pertussis encephalopathy [ i.e., brain disease]"; Dr. Buchhalter reported that "[t]he etiology is unclear"; Dr. Schneider reported that Jessica's condition "is not consistent with a pertussis encephalopathy."
In anticipation of trial, defendants took videotaped de bene esse depositions (R. 4:14-9) of Drs. Chutorian and Buchhalter, in which counsel explored the doctors' opinions as to the causes of Jessica's disorder. Dr. Chutorian testified that the scientific literature discloses "a controversial question" as to whether DPT vaccine causes any encephalopathy, with some investigators doubting that DPT encephalopathy "exists at all" and others finding it as a "rare occurrence, occurring maybe . . . between 1 in 200 and 1 in 250 thousand children who are immunized." Dr. Chutorian did not state his own position, if any, in that controversy. He testified, however, that diagnoses of DPT encephalopathy are commonly based on findings of "overwhelming" disease immediately following a DPT shot; Jessica's seizure disorder, he said, was "in no way" of that kind.
In his deposition, Dr. Buchhalter made similar references to the conflicting medical literature. He stated his own view that "there is no convincing evidence in the medical literature that [Jessica's] kind of seizure disorder can follow DPT immunization"; accordingly, in seeking to determine "why she was having seizures," he did not consider the DPT shot as a possible cause. However, like Dr. Chutorian, he found that Jessica did not have the "profound" kind of encephalopathy that the disputed literature attributed to DPT vaccine.
After the depositions were taken, plaintiffs moved to preclude defendants "from making any reference at trial to the unsolicited opinions on the causation of [Jessica's] seizure disorder." They argued that (1) the asserted "unsolicited opinions . . . are protected from disclosure by the physicians' fiduciary duties to [Jessica]," (2) because the treating physicians were not to be called to testify on plaintiffs' behalf concerning causation, their opinions should be
available to defendants only upon a showing of "exceptional need" and (3) the causation testimony of the treating physicians would be "unduly prejudicial and should be excluded under Evid.R. 4 [now N.J.R.E. 403]." The motion Judge granted the requested relief, reasoning as follows:
But we start with a premise that these are treating physicians or should be in a category of treating physicians. They're not experts. And the general rule is that the treating physician should not be -- is not allowed to render opinions that would be harmful to a patient's case; that that obligation is owed by a ...