THOMAS CORCORAN V. SEARS ROEBUCK & COMPANY, 312 N.J. Super. 117 (App. Div. 1998), A-1314-96T3, June 3, 1998:

Expert’s reports are statements but, unlike answers to interrogatories, are not statements of a party and therefore cannot be treated as an admission simply because a party furnished them in discovery. Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). The reports themselves are hearsay and generally are not admissible. Hill v. Cochran, 175 N.J. Super. 542, 546-57 (App. Div. 1980).
N.J.R.E. 803(b), however, provides an exception to the hearsay rule for

(b) A statement offered against a party which is:
. . . .
(2) a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief. . . .

An expert’s report can be admissible as an adoptive admission of a party pursuant to N.J.R.E. 803(b)(2) in some instances when the party provides the report in response to specific interrogatories and thus adopts the contents as its admission. Ratner v. General Motors Corp., 241 N.J. Super. 197, 201 n.2 (App. Div. 1990); Skibinski, supra, 206 N.J. Super. at 354; Mehalick v. Schwartz, 223 N.J. Super. 259, 262 (Law Div. 1987).

In determining whether the submission of an expert’s report is an adoptive admission, courts have focused on the wording of the interrogatory. For example, in Skibinski, supra, this court held that the plaintiff’s attachment of the expert’s report to his answers to interrogatories did not constitute an adoptive admission, because the interrogatories propounded by the defendants had merely contained a request for a copy of an expert’s report. Ibid. Thus, we held that a response to that interrogatory did “not produce admissions that can be used to limit the expert’s testimony at trial.” Ibid.

Similarly, in Mehalick v. Schwartz, supra, the defendant doctor in a medical malpractice case sought to introduce the plaintiffs’ expert report in evidence. The court held the report was inadmissible and explained that the interrogatories served by the defendant “simply asked for the names and addresses of expert witnesses, the subject matter on which the expert was to testify, a summary of the grounds for each opinion, and for a copy of the report pursuant to R. 4:17-4(a).” Id. at 263. “The interrogatory as worded did not ask for factual information from plaintiff which was within plaintiff’s knowledge as in Sallo [v. Sabatino, 146 N.J. Super. 416, 419 (App. Div. 1976)], but rather asked for the opinion to be given by the expert and as a result cannot be considered as an adoptive admission of plaintiffs.” 223 N.J. Super. at 263.

Where a party asks in an interrogatory for “the substance of the facts and opinions as to which the expert is expected to testify,” if the responding party responds “see attached expert’s report” to that interrogatory, the expert’s report constitutes an adoptive admission. Skibinski, supra, 206 N.J. Super. at 354. But, if the response does not refer to the expert’s report, the expert’s report does not constitute an adoptive admission.

A responding party’s failure to include a disclaimer that the report was not an adoptive admission, does not compel the conclusion that the party was relying upon the report and that it was an adoptive admission. A party may include “[a]n expression that the party does not adopt the report” and such an expression “is a sufficient disclaimer of the report.” Serrano v. Levitsky, 215 N.J. Super. 454, 458 (Law Div. 1986); however, that is not to say that the failure to include a disclaimer automatically converts the report to an adoptive admission.

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