The New Jersey Supreme Court held in its opinion filed on June 10, 2019 that the New Jersey medical malpractice plaintiff was not entitled to a new trial where the jury found in favor of the defendant. In the case it was deciding, the defendant physician’s trial testimony was inconsistent with his discovery responses but the plaintiff’s lawyer did not object to the changed testimony during the trial.
The plaintiff claimed in her New Jersey medical malpractice lawsuit that the defendant doctor committed medical malpractice by prescribing a medication that should not be prescribed to individuals, who, like her, have a history of depression. During discovery, the defendant claimed that he did not recall relying upon any medical publications when prescribing the medication to the plaintiff and, more specifically, was “not aware of any studies in the Journal of Clinical
Oncology” relating to the medication. The trial court thus granted the plaintiff’s motion to bar the defendant from referring to medical literature at trial.
The defendant, however, testified at trial that he relied upon a 2009 publication from the Journal of Clinical Oncology indicating that individuals with a history of depression could be prescribed the medication. The plaintiff’s lawyer did not object to the defendant’s change in testimony. The New Jersey medical malpractice jury found that the defendant doctor did not deviate from the standard of care. The plaintiff subsequently filed a motion for a new trial, which the trial judge denied. The plaintiff then appealed.
The Appellate Division panel split over whether the defendant’s change in testimony warranted a new trial, the majority ruling that the plaintiff was entitled to a new trial because defense counsel failed to alert the plaintiff to the defendant’s change in testimony. The dissenting judge stated, however, that the plaintiff’s lawyer did not object to the defendant’s testimony for strategic reasons because counsel viewed the defendant’s testimony as helpful to the plaintiff’s case. Accordingly, the dissenting judge concluded that the defendant’s change in testimony did not require a new trial.
New Jersey Supreme Court Opinion
The New Jersey Supreme Court stated that there was no demonstration that the changed testimony caused prejudice to the plaintiff (“Counsel most likely did not object because he thought that it was even more inculpatory that [the defendant] knew the studies excluded patients with depression and yet he still prescribed Pegasys to [the plaintiff] … it appeared to be a conscious choice to cross-examine [the defendant] rather than to object to the testimony”) and “we do not perceive that the plain error standard compels reversal, especially because counsel’s failure to object was likely strategic” (“To warrant reversal and entitlement to a new trial, the plain error must have been clearly capable of producing an unjust result. We cannot conclude that standard has been met here … strategic reasons can be inferred from counsel allowing [the defendant] to testify on the path he proceeded down, and the failure to object itself suggests that it was not perceived to be as fatal as is now argued.”). Thus, the New Jersey Supreme Court reversed the Appellate Division’s judgment.
Source T.L. v. Jack Goldberg, M.D. (A-11-18) (081135).
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