Gilly v. City of New York, 69 N.Y.2d 509 (1987)
A physician’s report, created after examining a plaintiff at the request of the defendant and shared with both parties, is admissible as evidence when the plaintiff calls the physician as a witness, allowing the plaintiff to elicit the substance of the report.
Summary
Rose Gilly, injured on a New York City ferry, sought to introduce the report of a cardiologist, Dr. Edson, hired by the City to examine her. Dr. Edson’s report indicated Gilly’s angina was likely caused by the accident. The trial court precluded Dr. Edson’s testimony. The New York Court of Appeals reversed, holding that the substance of Dr. Edson’s report should have been admitted. The Court reasoned that because the report had already been shared with both parties, preventing its admission would unfairly withhold probative evidence from the trier of fact, furthering truth-seeking objectives. This allows a plaintiff to use a defendant’s examining physician to support their case.
Facts
Rose Gilly was injured on November 7, 1978, when the City’s ferryboat struck a seawall, causing her to fall and be injured by other passengers. She was hospitalized with complaints of chest pain and shortness of breath.
Prior to trial, the City retained Dr. John Edson, a cardiologist, to examine Gilly. Dr. Edson’s report, dated October 7, 1982, concluded that Gilly suffered from permanent angina and that the ferryboat accident likely caused or accelerated the condition. A copy of this report was sent to Gilly’s counsel.
Procedural History
Gilly sued the City for damages, claiming her injury resulted in heart disease and sought $500,000. Liability was already established, and the trial was for assessing damages and comparative fault.
At trial, Gilly subpoenaed Dr. Edson to testify about his findings and conclusions. The City moved to preclude his testimony, which the trial court granted in its entirety.
The jury awarded Gilly $15,000. The Appellate Division affirmed the judgment.
Gilly appealed to the New York Court of Appeals, arguing the trial court erred in precluding Dr. Edson’s testimony.
Issue(s)
Whether a plaintiff can introduce the substance of a medical report prepared by a physician employed by the defendant to examine the plaintiff, when that report has been furnished to the plaintiff prior to trial.
Holding
Yes, because permitting such evidence furthers truth-seeking objectives without unfairly compelling expert testimony or creating ethical dilemmas, especially when the report has already been shared with both parties.
Court’s Reasoning
The Court of Appeals relied on the principle established in McDermott v. Manhattan Eye, Ear & Throat Hosp., permitting a plaintiff to call a defendant-physician as an expert witness.
The Court distinguished this case from People ex rel. Kraushaar Bros. & Co. v. Thorpe, which held that a person cannot be required to give an expert opinion involuntarily, by noting that Dr. Edson was not a disinterested witness. Dr. Edson had voluntarily involved himself in the case by examining Gilly and formulating his findings, and at trial expressed no objection to relating his findings.
The court reasoned that once a physician’s report is written and served on the adversary, it is no longer for the exclusive use of the defendant. “At that point both sides have access to this probative evidence and there is no basis for withholding it from the trier of fact.”
The Court acknowledged that lower courts retain discretion to protect against abuse, overreaching, and undue prejudice. However, as a general matter, the evidence should not be foreclosed.
The court noted that the physician is not being compelled to express an opinion against his will, but only to relate conclusions already formulated and fully disclosed.