Appellate Court Affirms that Plaintiff May Read in Testimony of Unavailable Treating Physicians – Sheets V. Siegler (Decided March 27, 2015) (A-1836-11T4)
In this dental malpractice case, the plaintiff experienced excruciating pain following a wisdom tooth extraction performed by the defendant dentist. She later developed numbness in her tongue and shooting pain from the back of her jaw, causing her difficulty speaking and swallowing. The patient, thereafter, underwent surgery to repair an apparent injury to her right lingual nerve. However, her difficulties remained, and she began receiving steroid injections to treat what was diagnosed as a neuroma of the right lingual nerve.
At trial, a jury returned a verdict against the defendant dentist in the amount of $2,300,035. The defendant appealed, arguing that trial judge improperly applied R. 4:16-1, whereby plaintiff’s counsel had been allowed to read portions of the treating doctors’ deposition testimony to the jury; it was claimed this procedure deprived defense counsel of the opportunity to cross examine these witnesses.
The Appellate Court disagreed with the defendant, on the grounds that R. 4:16-1(c) authorizes a party to read deposition testimony of a fact witness if the witness is unavailable, and the witness’ unavailability was not caused by the party seeking the admission of said testimony. In upholding the Trial Court’s decision, the Appellate Division held that the trial court properly characterized the doctors as fact witnesses, because they treated plaintiff for her injury and were not retained to opine as to whether the defendant deviated from the standard of care and/or support her damages claims. The Court further held that the doctors’ affidavits properly established their unavailability to testify and, therefore, plaintiff’s counsel was permitted to read the their testimony at trial in accordance with R. 4:16-1(c).