Kurdek v. West Orange Educ. Bd.

13 Citing cases

  1. Graham v. Gielchinsky

    126 N.J. 361 (N.J. 1991)   Cited 40 times
    Holding that, in the absence of exceptional circumstances, courts should not allow opinion testimony of an expert who was originally consulted by the opposing party

    Id. at 459, 521 A.2d 1377. But in Kurdek v. West Orange Board of Education, 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987), the court allowed the defendant to call the plaintiff's treating physician as its witness on the issue of permanency of injury, reasoning that a trial is "essentially a search for the truth." Id. at 226, 536 A.2d 332. The court informed the witness that he had no obligation to serve as an expert for the defendant, but the doctor was willing to do so.

  2. Stigliano v. Connaught Laboratories

    140 N.J. 305 (N.J. 1995)   Cited 77 times
    Holding that as fact witnesses, treating doctors in medical malpractice cases may testify in opinion form about their diagnoses and treatment of patients' disorders, including their determinations of disorders' causes

    As we have previously explained, the "inevitable effect of allowing the privilege . . . is the withholding of evidence, often of the most reliable and probative kind, from the trier of fact." State v. Dyal, 97 N.J. 229, 237, 478 A.2d 390 (1984); see Graham, supra, 126 N.J. at 373, 599 A.2d 149; Kurdek v. Board of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div. 1987); McCormick, Handbook of the Law ofEvidence § 105 at 390 (4th ed. 1992) (McCormick) (stating that privilege "essentially runs against the grain of justice, truth and fair dealing"). The traditional justification for the physician-patient privilege is that it encourages patients to disclose freely information needed for the diagnosis and treatment of disease and injury. State v.Schreiber, 122 N.J. 579, 587, 585 A.2d 945 (1991); McCormick, supra, § 103 at 384.

  3. Stigliano v. Connaught Laboratories

    270 N.J. Super. 373 (App. Div. 1994)   Cited 4 times
    Applying this principle to a defendant compelling a plaintiff's treating physician to testify

    But a plaintiff's treating doctors can testify, and can be compelled by subpoena to testify, for a defendant "concerning their physical examinations and diagnoses of plaintiff." Spedick v. Murphy, 266 N.J. Super. 573, 592, 630 A.2d 355 (App.Div. 1993); see also Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987) (permitting defendant to call plaintiff's treating physician to state his prognosis of no permanency). Plaintiffs here accept that Drs. Chutorian, Buchhalter and Schneider are "treating physicians" and that their testimony is not subject to the physician-patient privilege.

  4. Graham v. Gielchinsky

    241 N.J. Super. 108 (App. Div. 1990)   Cited 4 times
    In Graham, the plaintiff had no reason to know that wires were left in his chest and that they caused his post-surgery injuries until the exploratory surgery revealed that to be the case.

    Id., at 334, 531 A.2d 1379. See also Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987). Neither Serrano v. Levitsky, 215 N.J. Super. 454, 521 A.2d 1377 (Law Div. 1986), nor Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (Law Div. 1984), are to the contrary.

  5. Carson v. Fine

    123 Wn. 2d 206 (Wash. 1994)   Cited 129 times
    Concluding that "[t]here is no basis in reason, the common law or in statutory law to draw a distinction between the types of testimony a treating physician may offer once the physician-patient privilege has been waived . . ."

    While we acknowledge some authority to the contrary, we do not see the fiduciary nature of the physician-patient relationship as justification for restricting access to a treating physician's opinions. See Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (1984) (fiduciary nature of the relationship precludes physician from testifying against his patient); but see Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (1987) (treating physician's adverse testimony admissible because physician-patient privilege waived by placing physical condition at issue). The third reason given by the Court of Appeals for requiring a trial court to make a record of its admission of a treating physician's adverse testimony was the inherent prejudice of such testimony.

  6. Herrick v. Wilson

    429 N.J. Super. 402 (Conn. Super. Ct. 2011)

    "A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div.1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'"

  7. Herrick v. Wilson

    DOCKET NO. L-1913-10 (Law Div. Dec. 28, 2012)

    Div. 1990). "A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226 (Law Div. 1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Kernan v. One Wash.Park Urban Renewal Assoc., 154 N.J. 437, 467 (1998) (quoting U.S. v. Proctor & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958)).

  8. In re Pelvic Mesh/Gynecare Litig.

    426 N.J. Super. 167 (App. Div. 2012)   Cited 17 times   2 Legal Analyses
    Finding that if the Court intended to adopt a new rule of law it would do so directly

    We have not been asked to decide whether a current or past treating physician can under any circumstances be retained as an expert witness or consultant for the defense in a patient-plaintiff's own case. Compare Piller v. Kovarsky, 194 N.J.Super. 392, 399, 476 A.2d 1279 (Law Div.1984) (treating physician was precluded from testifying as a liability expert against patient-plaintiff's claims in medical malpractice action); Serrano v. Levitsky, 215 N.J.Super. 454, 460, 521 A.2d 1377 (Law Div.1986) (defendant could not make use at trial of opinion in treating physician's report that defendant-doctor did not commit malpractice) with Kurdek v. W. Orange Bd. of Educ., 222 N.J.Super. 218, 226, 536 A.2d 332 (Law Div.1987) (treating physician was permitted to testify on behalf of the defendant that patient-plaintiff's injury was not permanent); Cogdell v. Brown, 220 N.J.Super. 330, 334, 531 A.2d 1379 (Law Div.1987) (in malpractice action, plaintiff was permitted to call as an expert witness a non-treating physician who was originally retained as an expert by defendant doctor). In this appeal, defendants and amici curiae argue that the May 26, 2011 disqualification and protective order profoundly impairs defendants' ability to defend these lawsuits because it prevents them from employing qualified experts in cases against plaintiffs other than their own current or past patients.

  9. Herrick v. Wilson

    429 N.J. Super. 402 (Law Div. 2011)   Cited 2 times
    In Herrick v. Wilson, 429 N.J.Super. 402, 59 A.3d 604 (2011), the court held that a security video had to be produced in the normal course of discovery and could not await the deposition of the plaintiff.

    "A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div.1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'"

  10. State v. Szemple

    263 N.J. Super. 98 (App. Div. 1993)   Cited 11 times

    Similarly, in Lazorick v. Brown, 195 N.J. Super. 444, 456, 480 A.2d 223 (App.Div. 1984), the patient-physician privilege was held not to preclude defendants from interviewing plaintiff's treating physician in a medical malpractice trial. Accord Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div. 1987). And in In re Murtha, 115 N.J. Super. 380, 387, 279 A.2d 889 (App.Div.), certif. denied, 59 N.J. 239, 281 A.2d 278 (1971), the priest-penitent privilege was held inapplicable to a teaching nun.