Skibinski v. SmithSkibinski v. Smith
This is an automobile negligence action tried to a jury on damages issues only. Plaintiff Paul Skibinski, Sr., (plaintiff) claimed to have suffered severe injuries to the cervical and lumbosacral portions of his back. His wife sued per quod. The jury awarded plaintiff $65,000 and his wife $15,000. Plaintiffs1 contend that the trial judge erroneously excluded the opinion testimony of their medical witnesses that plaintiff was totally disabled by the accident and therefore unemployable. The trial judge excluded the evidence because the experts failed to include that opinion in their reports that plaintiffs had furnished defendants during discovery.2 We reverse.
In June 1981, plaintiff, then 53 years old, had stopped his automobile at a traffic light when it was struck from the rear.
The issues at trial were the extent of plaintiff‘s injuries and whether they were attributable to the 1981 automobile accident or to other accidents that had occurred years earlier. An important component of his damages, which the trial judge prevented plaintiff from proving, was his alleged inability to work for the remainder of his work-life.
Plaintiff offered the testimony of two neurologists to prove that he was totally disabled. One neurologist had concluded in his report that the 1981 accident aggravated plaintiff‘s prior back injuries causing “difficulty with his both legs” and a “depressive neurosis.” His report characterized plaintiff‘s condition as a permanent disability. The other neurologist made a similar diagnosis in her report wherein she noted that “at the end of 2 years after the accident Mr. Skibinski still remains in distress indicative of some permanent disability.” Neither report contained an opinion that plaintiff‘s disability was total leaving him permanently unemployable. In excluding the proffered testimony the trial judge stated that an expert‘s testimony must be confined to the opinions expressed in the expert‘s report provided in discovery.
A distinction must be made between answers to interrogatories and an expert‘s report furnished in response to a request contained in interrogatories.
An answer to an interrogatory is a statement by a party and therefore admissible at trial as an admission. Evid.R. 63(7). A written admission provided in discovery may also be used by an adverse party to establish “conclusively” any fact admitted. See
The report of an expert is also a statement. However, unlike an answer to an interrogatory it is not a statement of a party and therefore cannot be treated as an admission simply because a party furnished it in discovery. Confusion occurs because, as a matter of convenience,
A party is thus not ordinarily bound at trial by a witness‘s statement furnished in discovery. However, because
A party seeking to limit the scope of his adversary‘s expert testimony can do more, however, than hope for a chance adoptive admission in answer to an interrogatory.
Here, the interrogatories propounded by defendants followed the “Uniform Interrogatories: Personal Injury: Superior and County Court,” appearing as Form A in Appendix II to the Rules of Court. That form merely contains a request for a copy of an expert‘s report and therefore does not produce admissions that can be used to limit the expert‘s testimony at trial. The trial judge therefore erred in mechanically limiting the doctors’ testimony to the contents of their reports.
We do not mean, of course, to substitute the mechanical application of one rule of exclusion with the mechanical application of another. Imposition of the sanction of exclusion of
But the application of the sanction is consigned to the sound discretion of the judge, subject only to the rule that the sanction visited upon the party must be just and reasonable. [Citation omitted.] The factors which would “strongly urge” the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence. [Citations omitted.] This accords with the overriding objective of giving the defaulting party his day in court, with due regard, however, to protecting the opposing party from the effects of surprise or other prejudicial factors. Reilly v. Spiegelhalter, 100 N.J. Super. 276, 284 (App.Div. 1968). [Westphal v. Guarino, 163 N.J. Super. 139, 145-146 (App.Div. 1978), aff‘d o.b., 78 N.J. 308 (1978)]
In the present case, even if the sanction were available it should not have been imposed because there was ample evidence that defendants were aware well in advance of trial that plaintiffs would claim permanent disability rendering plaintiff unemployable. Indeed defendants knew that the conditions which the doctors described in their reports as “permanent” had led to plaintiff‘s forced retirement almost two years before trial.
Reversed and remanded for a new trial.