dissenting.
This is a medical malpractice case against two doctors, Luisita S. Lee Ho and Reuben Deulofeu, in which plaintiffs assert “that both doctors negligently failed to advise [plaintiff] that Pauline Nolan’s blindness likely had a genetic cause, thus creating a high risk of blindness to potential children.” Ante at 469, 577 A.2d at 144. I agree with the lower courts that defendants need show only that plaintiffs’ counsel made a material misrepresentation on which defendants relied, not that he intended to deceive them. As the Appellate Division concluded, the failure to disclose Dr. Soled’s name, as plaintiffs’ counsel was obliged to do, deprived defendants of the ability to conduct further discovery. Of even greater importance, defendants’ knowledge of the existence of Dr. Soled’s letter would have had a substantial effect on their willingness to enter a settlement agreement. A testimonial hearing is unnecessary to determine the materiality of the failure of plaintiffs’ counsel to disclose that Dr. Soled had previously referred plaintiff Pauline Nolan for genetic or high-risk counselling. Furthermore, I would not require defendants to show that they had been prejudiced, or as the Court states, “whether the omitted infor*475mation, if true, would have a significant effect on the merits of both plaintiffs’ cause of action and defendants’ defenses.” Ante at 474, 577 A.2d at 147. Consequently, I dissent.
The relevant facts are undisputed. Plaintiff Tara Nolan was born on September 22, 1978, and came under the care of Dr. Deulofeu, a pediatrician. A year after her birth, on September 16, 1979, Tara was diagnosed at Wills Eye Hospital as having bilateral retinoblastoma, “a malignant type of tumor arising from the retina. It usually occurs before the third year of life, and it shows a familial or hereditary tendency.” 3 Schmidt’s Attorneys’ Dictionary of Medicine R-92 (1989). Tara’s birth followed by five years Pauline’s first pregnancy in 1974. When she first became pregnant, Pauline consulted Dr. Myron Soled, who referred her on September 5, 1974, to Margaret Hague Hospital, a high-risk hospital. As plaintiff Thomas Nolan, husband of Pauline and father of Tara, testified, Dr. Soled said “something to [the effect] that I don’t believe I can handle the case. I believe you ought to go to the Margaret Hague where you can get some sort of counselling.”
That testimony was not elicited until the beginning of the trial, May 24, 1984. It was the first time that Dr. Soled’s name had been brought to the attention of Dr. Deulofeu’s counsel. That evening plaintiffs’ counsel left a message on the answering machine of Dr. Deulofeu’s counsel stating that plaintiffs would accept his $500,000 settlement offer made earlier that day. In the meantime, however, the doctor’s counsel had called Dr. Soled, who returned the call on the morning of May 25. In that conversation, Dr. Soled said that he had told Mrs. Nolan that he could not treat her and that she should go to the Margaret Hague Hospital for genetic counselling.
Plaintiffs’ counsel had known for a year that plaintiff Pauline Nolan had been seen by Dr. Soled. On June 30, 1983, in response to his inquiry, Dr. Soled had written plaintiffs’ counsel a letter, stating:
*476Dear Mr. Nostrame:
Please be advised that this patient—Pauline Nolan, was seen in my office, not taken as a patient. She was advised to go to Margaret Hague Hospital for genetic counseling. She was also advised to be followed in the high risk center at the Margaret Hague Hospital.
Very truly yours,
/s/ Myron Soled, M.D.
Three months after having received the letter, plaintiffs’ counsel answered an interrogatory propounded by defense counsel asking plaintiffs for “the names and current addresses of each and every physician you have seen for any purpose whatsoever since 1965.” Plaintiffs’ counsel failed to include Dr. Soled’s name in the answer. For whatever reason, the answer misrepresented the facts. No one has debated, nor could one, the materiality of the omission. Based on that misrepresentation, the trial court set aside plaintiffs’ settlement not only with Dr. Deulofeu, but also a $200,000 settlement reached with Dr. Lee Ho two days earlier.
Materiality hinges on one consideration: whether defendants’ knowledge that Pauline Nolan had seen Dr. Soled would have substantially affected their willingness to settle. 2 J. Pomeroy, Equity Jurisprudence § 898 at 532-34 (5th ed. 1941). I agree with the trial court that “[i]t would have been very important for the defense to know that there is a person who contends that he did refer Mrs. Nolan for genetic counseling.” We should not be concerned, as both lower courts observed, with the truth or falsity of Dr. Soled’s letter. All that need be known is before us. Plaintiffs’ counsel knew that Pauline had seen Dr. Soled and failed to disclose that fact to defense counsel, who relied on that misrepresentation in agreeing to pay $700,000. The immediate response of defense counsel in seeking to rescind the settlement agreement bears silent witness to the materiality of the non-disclosure.
Nor is a hearing necessary to establish that defendants were prejudiced. As we stated in Jewish Center of Sussex County v. Whale, “equity looks not to the loss suffered by the victim but rather to the unfairness of allowing the perpetrator to *477retain a benefit unjustly conferred.” 86 N.J. 619, 626, 432 A.2d 521 (1981). Fairness in this instance rests not in providing plaintiffs with a hearing to salvage a settlement obtained through misrepresentation, but in relieving defendants of the burden of that settlement.
I would affirm.
Chief Justice WILENTZ and Justices HANDLER, O’HERN, and STEIN—4.
For reversal and remandment—4.
For affirmance—Justices POLLOCK and GARIBALDI—2.