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Defense IME Doctor Found to Be Obligated To Provide Copies of Articles Referred to In His Report

By on June 7, 2019 in Civil Lawsuits with 0 Comments

The plaintiff, Frank Campbell was involved in an automobile accident with a vehicle operated by Joyce Roberts.  Plaintiff claimed that Roberts negligently operated her vehicle and that her negligence was a proximate cause of his accident and his injuries. Plaintiff filed an Underinsured Motorist claim with his insurance company, Allstate Insurance Co. as a result of the accident. In the case of Campbell v. Allstate Insurance Company, 2019 N.J. Super. LEXIS 77 (Law Div. March 28, 2019), in a published Law Division decision by Judge James Savio, the Court ruled upon whether a defense IME doctor, who listed six published medical journal articles in the references section in his report, was required to produce a copy of those articles. 

Plaintiff had contended that Allstate was obligated to compensate him because his damages exceeded the liability insurance policy limits applicable to the Roberts vehicle.  Plaintiff served Interrogatories and a Notice to Produce on the defendant Allstate.  Additionally, the defendant was obligated to answer the Form Interrogatories which contained a question requiring the defendant to produce the name and address of its expert witness.  However, the Form Interrogatories do not require that the named expert supply copies of any literature that the expert intends to rely upon at trial.  Nonetheless, Request No. 3 of the Notice to Produce served by plaintiff on defendant required the defendant to supply plaintiff with “copies of pertinent portions of any textbook, paper or authority upon which your expert relied in forming her/his conclusions and opinions.”  Allstate responded to that request by stating “none in defendant’s possession.” 

Subsequently, plaintiff was examined by Dr. Roy Friedenthal, an orthopedic surgeon, on behalf of defendant.  Following the examination, Dr. Friedenthal prepared a written report which contained his conclusions concerning causation and damages.  Allstate amended its Answers to Interrogatories to name Dr. Friedenthal as an expert witness who would testify at trial.  In a footnote in the last page of the report, under the word “references”, Dr. Friedenthal listed six published medical journal articles.  He identified the name of the author, name of the article and citation for each of the articles.  He did not specifically indicate in his report that he planned to refer to the articles during his testimony at trial.

Plaintiff then requested full copies of the materials referred to in Dr. Friedenthal’s report.  In response, defense counsel requested that Dr. Friedenthal provide him copies of the materials identified in the report. Dr. Friedenthal stated that he could not provide copies of the articles because the articles “are copyrighted materials which preclude him from reproducing” and sending copies of the articles to plaintiff’s counsel.  However, defense counsel did not supply the court with any authority supporting the assertion that supplying copies of the articles identified in Dr. Friedenthal’s report would violate any provision of the copyright law.

Next, plaintiff moved to suppress the defendant’s defenses and strike defendant’s Answer and Defenses without prejudice for failure to provide a response to the Notice to Produce.  In a Cross-Motion, the defendant moved for a Protective Order, providing that defendant would not be required to supply the requested materials.

Plaintiff’s counsel advised the Court that he was unsuccessful in his attempt to obtain the cited materials.  He conducted an internet search for copies of the articles and some were unavailable and the others only retrievable at a cost of upwards of $300 per article.  Hence, plaintiff’s counsel had not secured a copy of the articles. 

Judge Savio indicated in his opinion that Interrogatories requesting the name of articles, books, or treatises for use by an attorney in cross examination are proper subjects of discovery in non-medical negligence actions.  This mutual exchange of information affords both parties the opportunity to know before trial what treatises or other texts could be used in direct and cross-examination and avoid surprises.  The Court noted that statements from learned treatises may be used to impeach the credibility of defense and expert witnesses provided there is an acknowledgement that the texts are recognized and stated authorities on the subject.  Further, the Court noted that if the defendant did not identify the articles in its Answers to Interrogatories, the attempt to use them at trial pose the risk of unfair surprise.

The Court found that the plaintiff was entitled to review both the defense experts report, as well as the articles cited by the defense expert to be able to properly prepare for cross-examination of the defendant’s expert at trial.  Since defendant answered the discovery requests, the Court denied the plaintiff’s application to suppress the defendant’s answers and defenses.

Nevertheless, the defendant failed to respond to Request No. 3 of the Notice to Produce.  The Court interpreted the Court Rule (R. 4:17-4(e)) to include an obligation on the part of a party naming an expert witness who identifies specific medical literature that the expert apparently intends to use to support an opinion to supply a copy of the article cited by the expert in the report to the adversary’s attorney.  (Pursuant to that rule, a report from an expert must contain a complete statement of that person’s opinions and the basis therefore and the facts and data considered informing the opinions)    

Judge Savio found that the physician may not rely upon a legal opinion about the effect of some uncited copyright laws to refuse to produce literature cited by the physician in support for his opinions.  The Court recognized that Dr. Friedenthal is competent to express opinions in the field of orthopedic surgery and completely discounted his alleged opinions in the field of copyright law.  Accordingly, Judge Savio ruled that if the defendant failed to produce copies of the articles within twenty (20) days, Dr. Friedenthal would be precluded from referring to the articles at the time of trial.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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