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Wednesday, September 18, 2019

Conflicting testimony creates new trial for med-mal plaintiff in New Jersey

By Tomas Kassahun | Mar 26, 2018

TRENTON, N.J. (Legal Newsline) – The Superior Court of New Jersey Appellate Division has ordered a new trial in a lawsuit involving a doctor who was alleged to have prescribed a drug that partially paralyzed a woman.

According to the court's March 8 ruling, "We conclude defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing that defendant's trial testimony would differ materially from defendant's certified interrogatory answers and sworn deposition testimony resulted in plain error that deprived plaintiffs of a fair trial. We thus reverse and remand for a new trial."

Judge William E. Nugent wrote the opinion for the court.

After the plaintiff, only identified as T.L., alleged that the drug caused her a severe neurological condition resulting in partial paralysis of her right side, the jury for the Superior Court of New Jersey, Law Division, Middlesex County said defendant Dr. Jack Goldberg applied the proper standard of care, according to the opinion.

The appeals court said the plaintiffs didn’t get a fair trial because Goldberg made contradictory remarks in his testimony.

During the discovery part of the case, 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,” the opinion states.

During the deposition, the court said “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 plaintiff.”

While explaining his decision to prescribe the medicine, the opinion said Goldberg relied “heavily on, and testified extensively about, a published medical article.”

“He did not produce the article; rather, he explained its contents,” the opinion said.

In the trial court's order denying plaintiff a new trial, it acknowledged that the plaintiff argued that Goldberg violated the court's own order that barred him from using any medical literature at trial, the opinion said. 

“Yet, the court did not specifically address that issue in its opinion,” the appeals court opinion said. “Rather, the court found no impropriety in defendant's testimony.”  

The trial court said defendant "did not specifically cite to the 2009 article or reference any specific medical studies such to create a miscarriage of justice under the law," the opinion states.

The trial court added that Goldberg "'testified as to his knowledge' when he prescribed Pegasys for plaintiff 'that the medication was the subject of on-going clinical trials' which 'had been favorable for patients,'" according to the appeals court. 

The appeals court said that statement doesn’t address the remaining issues with the trial.

“None of those reasons addressed the material difference between defendant's trial testimony and pre-trial averments, defense counsel's disclosure obligations, or relevant precedent concerning the remedy for such non-disclosure,” the opinion said. 

In overturning the ruling to deny a motion for a new trial, the appeals court cited McKenney v. Jersey City, saying "[f]or plaintiffs to proceed to trial without being informed of the surprise testimony create[s] a 'make believe' scenario [for plaintiffs], the legal equivalent of half a deck.'" 

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Superior Court of New Jersey Appellate Divison