(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 4, 1995 -- Decided May 31, 1995
POLLOCK, J., writing for a unanimous Court.
The issue before the Court is whether defendants may introduce videotape depositions of plaintiffs'
treating physicians in which they describe the cause of Jessica Stigliano's chronic-seizure disorder.
On March 17, 1987, three-month-old Jessica Stigliano was immunized by Dr. Nihal Nagahawatte
against diphtheria, pertussis, and tetanus (a DPT shot). Connaught Laboratories, Inc. (Connaught) had
manufactured the vaccine. Approximately six-and-one-half hours after the DPT shot was administered by
Dr. Nagahawatte, Jessica suffered a series of convulsive seizures. Jessica and her parents (plaintiffs) claim
that the DPT shot caused "DPT encephalopathy," which resulted in Jessica's chronic seizure disorder.
Jessica's parents consulted three pediatric neurologists, Dr. Jeffrey Buchalter, Dr. A.M. Chutorian,
and Dr. Joseph Schneider ("the treating doctors"), for diagnosis and treatment of Jessica's seizures. None of
the treating doctors found any evidence that the DPT shot had caused the seizures. Moreover, they disputed
the existence of DPT encephalopathy, opining that Jessica would have experienced the seizures without the
DPT shot.
The Stiglianos, individually and on behalf of Jessica, sued Dr. Nagahawatte and Connaught, alleging
that Dr. Nagahawatte deviated from accepted standards of medical practice by administering the DPT
vaccine without first adequately examining Jessica for the existence of fever caused by an infection. Plaintiffs
also claim that Connaught is liable because the DPT vaccine is a dangerous and defective product.
Because Drs. Buchalter and Chutorian reside out-of-state and because of their anticipated
unavailability at trial, defendants preserved their testimony in videotape depositions. At the depositions, both
doctors testified that the DPT shot had not caused Jessica's seizures.
On plaintiffs' motion, the trial court entered an order precluding defendants from referring at trial
to the treating physicians' opinions on the cause of Jessica's seizure disorder. Defendants were also directed
to eliminate all causation testimony from the depositions of Drs. Buchalter and Chutorian. The court
reasoned that the treating doctors were not experts and, therefore, should not be able to render opinions
harmful to plaintiffs' case. Moreover, the trial court found that plaintiffs would be unduly prejudiced by
causation testimony from Jessica's own treating doctors.
The Appellate Division granted defendants' motion for leave to appeal and reversed the order of the
trial court. The court found that there was no general rule that a treating physician cannot render opinions
that are potentially harmful to a patients' case; that the treating doctors' opinions regarding causation were
related to Jessica's treatment, diagnosis and prognosis; and that although the testimony might be harmful to
plaintiffs, it would not be unfairly so.
The Supreme Court granted plaintiffs' motion for leave to appeal.
HELD: Because the cause of a patient's illness is an essential part of diagnosis and treatment, a treating
physician may testify about the cause of the patient's disease or injury.
1. Only after a patient puts his or her injury or disease in issue may a treating doctor testify about the
diagnosis and treatment of that injury or disease. By bringing suit against Dr. Nagahawatte and Connaught,
plaintiffs have waived the physician-patient privilege. Jessica's seizure disorder is the subject of this litigation;
her treating doctors must testify regarding her treatment and diagnosis; and the waiver of the physician-patient privilege extends to all of the physician's knowledge regarding the physical condition at issue. To bar
the treating doctors' testimony regarding causation would deprive the jury of relevant information on the
crucial issue in the case, whether the DPT shot caused Jessica's disorder. (pp. 6-9)
2. The treating doctors did not examine Jessica in anticipation of litigation or in preparation for trial and
they gained no confidential information about plaintiffs' trial strategy. The treating doctors are essentially
fact witnesses whose testimony relates to their diagnosis and treatment of Jessica. In order to properly treat
a patient, the treating doctor must determine the cause of the disease, whether that determination is
characterized as fact or opinion. The treating doctors' testimony concerning potential causes of Jessica's
seizure disorder is factual information, albeit on the form of an opinion. (pp. 9-12)
3. The treating doctors needed to determine the cause of Jessica's problem so that the could properly treat
her. Accordingly, Piller and Serrano do not prevent the treating doctors from offering their opinions on the
cause of Jessica's seizure disorder. Courts in other states also have allowed treating physicians to render
opinions on causation and other issues relating to the patient's medical condition. (pp. 13-15)
4. By placing Jessica's medical condition at issue, the plaintiffs have not only waived the physician-patient
privilege, but also have relieved the treating doctors of their fiduciary duty not to disclose information
concerning Jessica's condition. Furthermore, the probative value of the treating doctors' testimony outweighs
any prejudicial effect on the plaintiffs. (pp. 15-17)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK'S opinion.
SUPREME COURT OF NEW JERSEY
A-
55 September Term 1994
JESSICA STIGLIANO, an Infant, by
FRANK STIGLIANO, her Father, and
MARIA STIGLIANO, her Mother, her
Parents and Natural Guardians;
and FRANK STIGLIANO AND MARIA
STIGLIANO, Individually; and as
the Parents and Natural Guardians
of the Infant, JESSICA STIGLIANO,
Plaintiffs-Appellants,
v.
CONNAUGHT LABORATORIES, INC.,
a foreign Corporation and NIHAL S.
NAGAHAWATTE, M.D., a Physician and
Surgeon licensed to practice
medicine and surgery in the State
of New Jersey; Jointly, Severally,
Individually and in the
Alternative,
Defendants-Appellants.
Argued January 4, 1995 -- Decided May 31, 1995
On appeal from Superior Court, Appellate
Division, whose opinion is reported at
270 N.J. Super. 373 (1994).
E. Drew Britcher argued the cause for
appellants (Stern, Steiger, Croland,
Tanenbaum & Schielke, attorneys; Mr. Britcher
and Armand Leone, Jr., on the brief).
Stephen O. Mortenson argued the cause for
respondent Nihal S. Nagahawatte, M.D.
(Mortenson and Pomeroy, attorneys).
Keith G. Von Glahn argued the cause for
respondent Connaught Laboratories, Inc.
(Wilson, Elser, Moskowitz, Edelman & Dicker,
attorneys; Sally H. Atkins, on the brief).
David S. Stone submitted a brief on behalf of
amicus curiae, Medical Society of New Jersey
(Stern & Greenberg, attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
The issue in this medical-malpractice and product-liability
action is whether defendants may introduce videotape depositions
of plaintiffs' treating physicians in which they describe the
cause of the infant plaintiff's chronic-seizure syndrome. The
Law Division granted plaintiffs' motion to bar the testimony. In
a reported opinion, the Appellate Division reversed.
270 N.J.
Super. 373 (1994). We granted plaintiffs' motion for leave to
appeal,
137 N.J. 163 (1994), and now affirm.
On March 17, 1987, plaintiffs Frank and Mary Stigliano brought their three-month-old daughter, plaintiff Jessica Stigliano, to defendant Dr. Nihal Nagahawatte for immunization against diphtheria, pertussis, and tetanus (a DPT shot). Defendant Connaught Laboratories, Inc. (Connaught) had manufactured the vaccine. Approximately six-and-one-half hours after Dr. Nagahawatte gave Jessica the shot, she suffered a series of convulsive seizures. Plaintiffs claim that the shot caused encephalopathy or "dysfunction of the brain," Taber's Medical Dictionary 540 (15th ed. 1985). More specifically, they claim that the shot caused "DPT encephalopathy," which caused seizures that Jessica continues to experience. At the center of
this case, therefore, is the question whether the DPT shot caused
the seizures.
Jessica's parents consulted three pediatric neurologists,
Dr. Jeffrey Buchhalter, Dr. A.M. Chutorian, and Dr. Joseph
Schneider ("the treating doctors"), for diagnosis and treatment
of Jessica's seizures. None of the treating doctors found any
evidence that the DPT shot had caused the seizures, and they
dispute the existence of DPT encephalopathy. They believe that
Jessica would have experienced the seizures without the DPT shot.
Specifically, Dr. Buchhalter reported that the "etiology [origin]
is unclear." Dr. Chutorian reported that Jessica's medical
"history and findings are not compatible with a pertussis
[coughing] encephalopathy, the first DPT immunization undoubtedly
causing a fever, which precipitated the seizure, as was the case
with her other attacks." Dr. Schneider similarly concluded that
Jessica's condition "is not consistent with a pertussis
encephalopathy and the vaccine acted only as a trigger but has no
other etiologic significance in causing the seizure." The
treating doctors generally diagnosed Jessica with chronic or
primary seizure. Dr. Chutorian explained "that probably, very
likely she had congenital and possibly genetic epilepsy."
Mr. and Mrs. Stigliano, individually and on behalf of Jessica, sued Dr. Nagahawatte and Connaught Laboratories,
alleging that Dr. Nagahawatte deviated from standard medical
practice by administering the DPT vaccine without adequately
examining Jessica. Plaintiffs contend that an adequate
examination would have revealed that Jessica had a fever
resulting from a streptococcus infection and that Dr. Nagahawatte
deviated from accepted medical care by administering DPT vaccine
to Jessica while she had a fever. The basis of their claim
against Connaught is that the DPT vaccine "was a dangerous and
defective product . . . ."
Both Dr. Buchhalter, who practices medicine at Oregon Health
Sciences University in Portland, Oregon, and Dr. Chutorian, whose
major affiliation is at New York Hospital, reside out-of-state.
Dr. Schneider practices medicine in New Jersey and will be
available to testify at trial. Because of the anticipated
unavailability at trial of Drs. Buchhalter and Chutorian,
defendants preserved their testimony in a videotape deposition,
pursuant to Rule 4:14-9.
At his deposition, Dr. Chutorian noted that Jessica has "a low seizure threshold, which is another way of saying that she had epilepsy, because her seizures were both right and left focal motor, which is very unusual in pure febrile seizures." He concluded that the only association between the DPT shot and
Jessica's seizures was that the shot caused the fever, which in
turn precipitated the seizures.
Dr. Buchhalter testified that Jessica suffers from "an
underlying seizure propensity which just happened to be elicited
this first time by the fever associated with DPT and would have
occurred and, in fact, did occur subsequently in the context of
fevers associated with ear infections, upper respiratory tract
infection, in her case a urinary tract infection." He further
concluded that the DPT shot had not caused Jessica's disorder
because
her seizure disorder extended beyond the
simple febrile seizures that I think a
consensus of pediatric neurologists would
accept as part of the rise in temperature
following the immunization and as there is no
convincing evidence in the medical literature
that her kind of seizure disorder can follow
DPT immunization, I didn't see any reason to
consider it.
In preparation for trial, plaintiffs have retained two
experts who assert that the DPT shot has caused Jessica's
seizures. Defendants have retained three experts who conclude
that Dr. Nagahawatte followed accepted medical practices and that
the DPT vaccine did not cause the seizures.
On plaintiffs' motion, the Law Division entered an order
precluding defendants from referring at trial to the treating
physicians' opinions on the cause of Jessica's seizure disorder.
The order also directed defendants to eliminate all causation
testimony from the depositions of Drs. Chutorian and Buchhalter.
According to the trial court, the treating doctors are not
experts and should not be "allowed to render opinions that would
be harmful to a patient's case . . . ." Further, the court
concluded that the plaintiffs would be "unduly prejudiced" if the
jury heard the testimony about causation "from the plaintiff's
own treating physicians . . . ."
The Appellate Division granted defendants' motion for leave to appeal and reversed. It stated that "[t]here is no `general rule' that a treating physician `is not allowed to render opinions that would be harmful to a patient's case.'" 270 N.J. Super. at 377 (quoting Stempler v. Speidell, 100 N.J. 368, 381 (1985)). Although the court recognized that a patient has a "legitimate interest in assuring" that the treating doctor will not voluntarily aid the other side, ibid., it concluded that a treating doctor may testify about the examination of a patient and the resulting diagnosis, id. at 378. Reasoning that the treating doctors' opinions about causation were related to Jessica's treatment, the court saw "no reason to distinguish the doctors' testimony as to causation and their testimony as to
diagnoses and prognoses." Id. at 379. Finally, "[i]f the
testimony of the treating doctors is harmful to plaintiffs, it is
not unfairly so." Ibid.
The physician-patient privilege, like all privileges, stands as an exception to the general rule that trials are a search for truth. Graham v. Gielchinsky, 126 N.J. 361, 373 (1991). 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 (1984); see Graham, supra, 126 N.J. at 373; Kurdek v. Board of Educ., 222 N.J. Super. 218, 226 (Law Div. 1987); McCormick, Handbook of the Law of Evidence § 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 (1991); McCormick, supra, § 103 at 384. Because privileges undermine the search for truth, however, courts construe them strictly. Schreiber, supra, 122 N.J. at 583; State v. Soney, 177 N.J.Super 47, 58 (App. Div. 1980)), certif. denied, 87 N.J. 313 (1981); State in the interest
of M.P.C.,
165 N.J. Super 131, 136 (App. Div. 1979). So here, we
strictly construe the physician-patient privilege.
Until the adoption on July 1, 1993, of the New Jersey Rules
of Evidence, the sole legal basis for the physician-patient
privilege was N.J.S.A. 2A:84A-22.1. N.J.R.E. 506, however, now
incorporates the statute as part of the Rules of Evidence.
Biunno, Current N.J. Rules of Evidence comment 1 on N.J.R.E. 506
(1994).
N.J.R.E. 506 and N.J.S.A. 2A:84A-22.4 provide in relevant
part: "There is no privilege under this act in an action in
which the condition of the patient is an element or factor of the
claim or defense of the patient or of any party claiming through
or under the patient . . . . " See also Stempler, supra, 100
N.J. at 373 (stating that "instituting suit extinguishes the
privilege to the extent that [plaintiff's] medical condition will
be a factor in the litigation"); McCormick, supra, § 103 at 384
(explaining that "[f]ailure to find a waiver from assertion of a
claim or defense predicated upon a physical or mental condition
has the awkward consequence of effectively frustrating discovery
on a central issue of the case . . .").
When construing the statute, courts have honored the
physician-patient privilege when it serves a more important
policy consideration than the need for full disclosure. State in
the interest of M.P.C., supra, 165 N.J. Super. at 136. For
example, notwithstanding the privilege, otherwise confidential
information may be introduced on rebuttal. Soney, supra, 177
N.J. Super. at 56. In Soney, a death-by-automobile case, the
Appellate Division allowed cross-examination of the defendant
concerning the defendant's statement to his physician. The
defendant had told his doctor that he had not taken his
medication for three days, but he testified at trial that he had
taken the medication on the day of the accident. In permitting
the physician to testify about the defendant's statement, the
court reasoned: "When a patient testifies to a course of conduct
directly opposed to that which he told a physician he followed,
we see no reason why he should be entitled to rely on the
physician's silence to hide the truth." Id. at 57.
By bringing suit against Dr. Nagahawatte and Connaught,
plaintiffs have waived the physician-patient privilege.
Jessica's seizure disorder is the subject of the litigation.
Plaintiffs do not challenge the waiver of the privilege
concerning treatment and diagnosis of Jessica's seizure disorder.
They concede that the treating doctors may testify as fact
witnesses about their examination and diagnoses of Jessica's
condition.
Because plaintiffs do not intend to call the treating
doctors to testify about the cause of Jessica's disorder, they
claim, however, defendants may not elicit causation testimony
from those doctors. We disagree. Once a patient waives the
physician-patient privilege, it "is a waiver of the privilege in
regard to all of his knowledge of the physical condition asked
about." 8 Wigmore on Evidence § 2390 at 861 (McNaughton rev.
1961). The determination of causation is an essential part of
diagnosis and treatment. Doctors must determine the cause of a
disease to treat the patient. As loving and concerned parents,
Mr. and Mrs. Stigliano consulted the treating doctors to find out
what was wrong with Jessica and what caused her problems. To bar
the treating doctors' testimony about the cause of Jessica's
disorder would deprive the jury of relevant information on the
crucial issue in the case.
Plaintiffs also contend that defendants must qualify the treating doctors as experts before the doctors may testify about causation. They rely on our opinion in Graham, which held that absent exceptional circumstances, courts should not admit the opinion testimony of an expert that an adversary consulted but did not intend to call at trial. 126 N.J. at 373. Graham, however, is distinguishable. In Graham, we were concerned that trial attorneys might consult fewer experts because of the fear that "countless claims of malpractice would be leveled against
attorneys who put unfavorable expert evidence in as part of their
clients' case-in-chief." Ibid. Here, plaintiffs consulted the
treating doctors not for the purpose of obtaining expert
testimony to support their cause of action, but for treatment.
Allowing defendants to introduce the treating doctors' testimony
concerning causation will not affect either Jessica's medical
treatment or counsel's search for experts. In fact, plaintiffs
have retained two experts who support plaintiffs' contentions.
Plaintiffs also rely on Spedick v. Murphy,
266 N.J. Super. 573 (App. Div.), certif. denied,
134 N.J. 567 (1993), in which
the Appellate Division ruled that the defendant could call
treating doctors to testify about the plaintiff's complaints and
medical history, as well as the doctors' physical examinations
and diagnoses. Id. at 591. The Appellate Division recalled our
statement in Graham, supra, 126 N.J. at 373, that, "in the
absence of `exceptional circumstances,' courts should not allow
the opinion testimony of an expert originally consulted by an
adversary." Spedick, supra, 266 N.J. Super. at 592.
In Spedick, however, the court concluded that
we are dealing with two physicians [] who plaintiff first consulted for treatment shortly after the accident. Plaintiff never intended to call these doctors as witnesses. Defendant, therefore, was properly permitted to call these witnesses, not to obtain
opinions about plaintiff's disabilities, but
to testify concerning their physical
examinations and diagnoses of plaintiff
shortly after the injury. This testimony was
clearly relevant and material. To bar such
testimony of the initial treating physicians
would only serve to hinder the search for
truth.
In sum, plaintiffs misplace their reliance on Graham and
Spedick. The treating doctors did not examine Jessica in
anticipation of litigation or in preparation for trial, but for
the purpose of treatment. Unlike an expert retained to testify
at trial, the treating doctors gained no confidential information
about plaintiffs' trial strategy. Although the treating doctors
are doubtless "experts," in this case they are more accurately
fact witnesses. Their testimony relates to their diagnosis and
treatment of the infant plaintiff. In this context, moreover,
the characterization of the treating doctors' testimony as "fact"
or "opinion" creates an artificial distinction. A determination
of causation partakes of both fact and opinion. The critical
point is that the treating doctors to treat their patients must
determine the cause of a disease, whether that determination is
characterized as fact or opinion.
As fact witnesses, the treating doctors may testify about their diagnosis and treatment of Jessica's disorder, including
their determination of that disorder's cause. Their testimony
about the likely and unlikely causes of Jessica's seizure
disorder is factual information, albeit in the form of opinion.
See N.J.R.E. 701 (permitting fact witness to testify in the form
of opinion to assist in determining fact in issue). Because the
determination of the cause of a patient's illness is an essential
part of diagnosis and treatment, a treating physician may testify
about the cause of a patient's disease or injury. That holding
should not deter patients from freely disclosing information
necessary for proper treatment and diagnosis. Only after
patients put their injury or disease in issue may a treating
doctor testify about the diagnosis and treatment of that injury
or disease.
We are unpersuaded by plaintiffs' reliance on Piller v.
Kovarsky,
194 N.J. Super. 392 (Law Div. 1984), and Serrano v.
Levitsky,
215 N.J. Super. 454 (Law Div. 1986). In Piller, the
Law Division held that the physician-patient relationship
precluded a treating physician from testifying that defendant
doctors had not deviated from accepted medical standards. Id. at
399. In Serrano, the Law Division found it "unfair" to admit an
unsolicited statement in the treating physician's report to
plaintiff's counsel. The treating physician had insisted on
stating gratuitously that the defendant-doctor was not negligent
in his treatment of the plaintiff.
Piller and Serrano differ significantly on the facts. In
those cases, the defendant-doctors sought to ask the treating
physicians not about their treatment of the plaintiffs, but about
the defendant's alleged malpractice. Here, in contrast,
defendants seek to call the treating doctors to testify about
those doctors' treatment of the infant plaintiff, including their
determination of the cause of her condition. Unlike in Serrano,
moreover, the treating doctors' statements about causation were
neither unsolicited nor gratuitous. One of the reasons Mr. and
Mrs. Stigliano consulted the treating doctors was to ascertain
the cause of Jessica's problem. As distinguished from the
doctors in Piller and Serrano, the treating doctors needed to
determine the cause of Jessica's problems so they could treat
her. Accordingly, Piller and Serrano do not prevent the treating
doctors from offering their opinions on the cause of Jessica's
disorder.
Courts in other states also have allowed treating physicians to render opinions on causation and other issues relating to the patient's medical condition. The Supreme Court of Washington recently held that a plaintiff's treating physician could testify about the cause of plaintiff's glaucoma because a "treating physician may testify as to both fact and opinion in a medical malpractice action regardless of whether the physician is a defense or plaintiff's witness." Christensen v. Munsen, 867 P.2d
626, 629 (1994); see also Carson v. Fine,
867 P.2d 610, 616-17
(Wash. 1994) (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 . . .").
In Richbow v. District of Columbia,
600 A.2d 1063 (1991),
the District of Columbia Court of Appeals declined to adopt a
waiver divisible between fact and opinion testimony in holding
that the waiver of the physician-patient privilege permitted
treating doctors to testify about both fact and opinion. The
court concluded that "[h]aving waived the privilege as to factual
information, a plaintiff may not keep from the factfinder the
medical judgments and opinions which were derived from the
treatment and which indeed shaped it." Id. at 1069.
Consequently, the court allowed the plaintiff's treating
physician to provide his opinion on the cause of the plaintiff's
cancer and on the question whether early detection could have
allowed another form of treatment.
Likewise, in Cates v. Wilson, 361 S.E.2d 734 (1987), the Supreme Court of North Carolina found no distinction between a treating physician's information of a patient's condition and the physician's opinion of the patient's health. The court concluded that a patient who discloses confidential information loses the
right to claim that the disclosed information is covered by the
physician-patient privilege. Id. at 743. In reaching that
conclusion, the court held that the patient's waiver of the
privilege "extended to any opinion held by these treating
physicians formed as a result of information gained in their
treatment of the plaintiffs. Ibid.
The relationship between treating physicians and their
patients, sometimes described as fiduciary in nature, gives rise
to a duty to testify in judicial proceedings about treatment
rendered to the patient. By defining the physician-patient
privilege, N.J.R.E. 506 and N.J.S.A. 2A:84A-22.1 outline the
scope of a physician's testimonial duty. That definition, which
provides that patients waive the privilege by placing their
condition in issue, adequately balances the interests of the
physician, patient, and public. We are disinclined to frustrate
the definition through a more restrictive interpretation of the
fiduciary relationship between physician and patient.
Although the Principles of Medical Ethics of the American Medical Association do not speak in terms of "privilege" or "waiver," they point in the same direction as the physician-patient privilege. In section 9.07 of the Principles of Medical Ethics, the American Medical Association recognizes the ethical obligation of physicians to assist in the administration of
justice. Current Opinions of the Council on Ethical and Judicial
Affairs of the American Medical Ass'n, § 9.07 at 37 (1986).
Section 9.07 states that communications between physician and
patient are confidential and that a physician has a duty to
"testify honestly and truthfully." Ibid. As the Washington
Supreme Court recently stated: "Once a patient decides to file a
medical malpractice action and disclose that which had been
confidential, she cannot insist on continued confidentiality from
her physicians regarding the condition at issue based on the
fiduciary nature of their relationship." Carson, supra, 867 P.
2d. at 618. By placing Jessica's medical condition in issue,
plaintiffs not only have waived the physician-patient privilege
but also have relieved the treating doctors of their fiduciary
duty not to disclose information concerning her condition.
Finally, we conclude that the probative value of the treating doctors' testimony outweighs its prejudicial effect under N.J.R.E. 403. In reaching that conclusion, we are aware of the potential effect on the jury of the treating doctors' testimony that the DPT vaccine has not caused the infant plaintiffs' condition. The question, however, is not merely whether the treating doctors' testimony will be prejudicial to the plaintiffs, but whether it will be unfairly so. Clearly, the treating doctors' testimony is relevant. A jury, moreover, could find the testimony both reliable and persuasive. Nothing
indicates that the doctors' testimony will confuse or mislead the
jury. In our adversary system, parties generally offer evidence
to help their cause and prejudice that of an adverse party.
Kurdek, supra, 222 N.J Super at 223. We would ill-serve the
cause of truth and justice if we were to exclude relevant and
credible evidence only because it might help one side and
adversely affect the other.
Without impugning the expert witnesses who may testify for
either plaintiffs or defendants, the treating doctors may be the
only medical witnesses who have not been retained in anticipation
of trial. A jury could find the treating doctors' testimony to
be more impartial and credible than that of the retained experts.
Excluding the treating doctors' testimony would undermine the
ultimate objective of a trial, the determination of the truth.
On balance, we find that the probative value of the treating
doctors' testimony outweighs any prejudice to plaintiffs.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, O'Hern,
Garibaldi, Stein, and Coleman join in this opinion.
NO. A-55 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
JESSICA STIGLIANO, an Infant, by
FRANK STIGLIANO, her Father, and
MARIA STIGLIANO, her Mother, her
Parents and Natural Guardians;
and FRANK STIGLIANO AND MARIA
STIGLIANO, Individually; and as
the Parents and Natural Guardians
of the Infant, JESSICA STIGLIANO,
Plaintiffs-Appellants,
v.
CONNAUGHT LABORATORIES, INC.,
a foreign Corporation and NIHAL S.
NAGAHAWATTE, M.D., a Physician and
Surgeon licensed to practice
medicine and surgery in the State
of New Jersey; Jointly, Severally,
Individually and in the
Alternative,
Defendants-Appellants.
DECIDED May 31, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY