concurring.
I concur in the result. I part company with the majority’s holding that it was error to prohibit defendants from using plaintiff’s expert as a witness.
*322In Graham v. Gielchinsky, 126 N.J. 361, 599 A.2d 149 (1991), we addressed a similar issue. There, the plaintiff consulted Dr. Frederick Primich, who found no negligence had occurred in the course of the defendant’s treatment of the plaintiff. Id. at 364, 599 A.2d 149. The plaintiff consulted a second expert, Dr. Joseph Silva, who concluded that the defendant had been negligent in his treatment of the plaintiff. Ibid. The defendant somehow obtained Dr. Primich’s report and asked him to testify for the defendant. Ibid. The plaintiff’s motion to bar the testimony of Dr. Primich was denied. Id. at 362-63, 599 A.2d 149. A divided Appellate Division affirmed. Id. at 365, 599 A.2d 149.
On appeal as of right to this Court, we noted that our Rule 4:10—2(d)(3), which permits discovery of opinions of non-testifying experts a party consulted in preparation for litigation in exceptional circumstances, did not answer “whether a litigant may use that information at trial when obtained through means other than discovery.” Id. at 365, 367, 362, 599 A.2d 149. We sought to balance (1) the interests of truth that favor admission of all relevant evidence bearing on the disposition of the case and (2) “an unavoidable element of unfairness [that] exists in admitting” certain evidence. Id. at 371-72, 599 A.2d 149. We reasoned that
[b]ecause effective cross-examination of such witnesses is inherently limited, truth has a better chance to emerge if the use of an adversary’s expert is the exception, not the rule. Hence, we hold that in the absence of exceptional circumstances, as defined under Rule 4:10—2(d)(3), courts should not allow the opinion testimony of an expert originally consulted by an adversary.
[Id. at 373, 599 A.2d 149 (emphasis added).]
We left further evaluation of the competing policy concerns to our Civil Practice Committee but stated that “[p]ending further refinement of the rule, in the absence of ‘exceptional circumstances’ courts should not admit such evidence.” Id. at 374, 599 A.2d 149.
Our Appellate Division applied the Graham rule in Deffer v. Shop-Rite Supermarkets Inc., 332 N.J.Super. 540, 753 A.2d 1228 (App.Div.2000). With only one defendant remaining in the case, the defendant subpoenaed the plaintiff’s expert, Dr. Ira Roschelle. Id. at 543, 753 A.2d 1228. Dr. Roschelle had prepared an expert *323report concluding that several doctors had “deviated from the accepted standards of care in their treatment of the decedent.” Ibid. Dr. Rosehelle’s deposition had previously been taken, and the defendant had retained Dr. Andrew Newman as its expert. Ibid. The plaintiff informed the defendant he did not intend to call Dr. Roschelle as a witness because his testimony was unnecessary with the other defendants no longer in the case. Ibid. The plaintiffs motion to quash the defendant’s subpoena to Dr. Roschelle was denied. Id. at 543-44, 753 A.2d 1228.
The Appellate Division granted the plaintiffs motion for leave to appeal and reversed. Id. at 542, 753 A.2d 1228. The panel noted that the defendant had retained its own expert to testify at trial and still intended to use that expert. See id. at 544, 753 A.2d 1228. Citing Graham, the court determined that an inherent problem exists “when an adverse party is permitted to call the expert engaged by the [opposing counsel].” Ibid. Although the court acknowledged the legal system’s desire to find the truth, the panel found “no more guarantee that the truth lies in [the plaintiffs expert’s] opinion than in [the defendant’s expert’s opinion].” Id. at 545, 753 A.2d 1228. The court noted that similar to Graham, “under [Federal Rule of Civil Procedure ] 26(b)(4)(B), upon which our rule is modeled, the situation in which the exceptional circumstances standard is met is a rare one.” Ibid. The panel concluded that the high burden of demonstrating exceptional circumstances “promotes fairness by ‘precluding unreasonable access to an opposing party’s diligent trial preparation.’ ” Ibid. (quoting Durflinger v. Artiles, 727 F.2d 888, 891 (10th Cir.1984) (citation omitted)).
In the present ease, I find no sound reason to distinguish between applying an exceptional circumstances test for non-diseoverable expert testimony and allowing the testimony of an opposing party’s expert who was deposed, as in the present case. In either circumstance, there is no greater likelihood that the opposing party’s expert is more truthful than the adversary’s expert. In both situations, a party should be required to demon*324strate exceptional circumstances before being permitted to call an expert originally retained by an adversary.
To be sure, in limited circumstances “trial surprise or other unfairness will require that such expert opinion evidence be allowed.” Graham, supra, 126 N.J. at 374, 599 A.2d 149. Here, the testimony of defendant’s expert was not substantially different from the anticipated testimony defendant sought to be obtained from plaintiffs expert. Simply stated, defendant failed to demonstrate exceptional circumstances.
Because I find no abuse of discretion in the trial court’s ruling that prohibited defendants from calling plaintiffs expert at trial, I would affirm on that issue.
For reversal and remandment—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, WALLACE, and RIVERA-SOTO—6.
Opposed—None.