The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its opinion approved for publication on March 8, 2018 that the defendant’s medical malpractice attorney’s failure to discharge his duty of candor to the court and to the plaintiff’s attorney by disclosing that the medical malpractice defendant’s trial testimony would differ materially from the defendant’s certified interrogatory answers and sworn deposition testimony resulted in plain error that deprived the plaintiff of a fair trial, and thus reversed and remanded the case for a new trial.

The plaintiff filed her New Jersey medical malpractice lawsuit against the defendant physician, alleging that the defendant’s management of the plaintiff’s blood disorder fell below medical standards of care when he prescribed a drug (Pegasys, a slow-release type of interferon) that should not have been prescribed for a patient with her medical history (the plaintiff had essential thrombocythemia (ET), which can significantly increase the risk of life-threatening clotting and bleeding, and had been diagnosed with sympathetic reflex dystrophy and depression), resulting in the plaintiff developing a severe neurological condition, which led to partial paralysis of her right side.

The defendant denied deviating from any standard of care and further denied that the plaintiff’s use of the drug caused the neurological condition she developed.

During discovery, the defendant certified in an interrogatory answer that he did not recall relying upon any medical text or publication in connection with his diagnosis or treatment of plaintiff. During his deposition, the defendant denied being aware of any studies in the Journal of Clinical Oncology pertaining to the use of Pegasys to treat patients with the blood disorder that afflicted the plaintiff.

The plaintiff filed a motion in limine in which she moved “[t]o bar defendants from utilizing medical literature at the time of trial,” because the defendant had provided none in response to discovery requests. Based on the defense attorney’s representation that he intended to use only the medical literature “referred to and relied upon by plaintiff’s witnesses,” the court granted the plaintiff’s motion.

During the defendant’s trial testimony, he explained his decision to prescribe Pegasys, relying heavily on, and testifying extensively about, a published medical article. He did not produce the article but explained its contents.

The plaintiff did not object to the defendant’s reference to the article and did not raise any issue about the material differences between the defendant’s discovery responses and trial testimony until she made her motion for a new trial.

The New Jersey medical malpractice jury returned a defense verdict (the jurors did not reach the questions on the verdict sheet concerning the cause of the plaintiff’s injuries and damages because in a six to one vote, they found the defendant had not deviated from the applicable standard of care), and the plaintiff appealed.

New Jersey Appellate Court Opinion

The New Jersey Appellate Court stated that despite the defendant’s averments and the court’s in limine order, during the defendant’s direct trial testimony he not only claimed to have relied on the 2009 article in the Journal of Clinical Oncology, but also erroneously explained some of its contents.

The New Jersey Appellate Court stated that aside from a party’s obligation to amend his interrogatory answers, defense counsel has a continuing obligation to disclose to the trial court and counsel for the plaintiffs any anticipated material changes in a defendant’s or a material witness’s deposition testimony. In the present case, the New Jersey Appellate Court stated that disclosure by the defendant of his anticipated change in testimony was mandatory.

The New Jersey Appellate Court stated: “Lawyers and parties should be able to rely on the averments and sworn deposition testimony of witnesses and other parties. Those of our State’s lawyers who routinely prosecute and defend medical malpractice actions are among the most skilled trial counsel. But, with some exceptions, they are not doctors. They need to rely on the assistance of their medical witnesses and experts to prepare their direct and cross-examinations. In the case before us, plaintiff was deprived of that opportunity as to defendant’s testimony concerning the study and article, which directly implicated one of the action’s central issues: whether defendant conformed to or deviated from the applicable standard of care. We also note the jury’s verdict was not unanimous and a different vote by one majority member would have changed the trial’s outcome.”

With regard to the plaintiff’s medical malpractice attorney’s failure to object to the testimony or seek relief at trial, the New Jersey Appellate Court stated, “even if counsel decided for strategic reasons not to object at trial, the absence of an objection is not dispositive of whether the client has been prejudiced by improper testimony … Moreover, the entire issue would have been avoided had defense counsel discharged his obligation of candor to the court and plaintiff’s counsel … Defendant’s undisclosed, material change in testimony was plain error. R. 2:10-2. The plain error requires a new trial.”

Source T.L. and M.L. v. Goldberg, Docket No. A-5544-14T1.

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