Blessine v. Chiu No. A-5202-15T4 N.J. Super. (App. Div. Decided Apr. 9, 2018)

By Michael Zerres

Plaintiff appealed from an Order entering a Judgment of no cause of action and an Order denying plaintiff s motion for a re-trial. The Appellate Division reversed and remanded for a new

On appeal, plaintiff argued that the Trial Judge erred by baring his testimony at trial; rejecting a proposed jury charge, which would have accurately explained why plaintiff did not testify; and refusing to adequately address that defendant doctor’s change in testimony from deposition to trial.

First, at Trial plaintiff s counsel requested that plaintiff testifies concerning his inability to perceive and recall ordinary events. The Judge barred plaintiffs testimony finding that its prejudicial impact outweighed its probative value pursuant to N.J.R.E. 403. The Appellate Division held that, although the testimony may have been prejudicial to the defendant, it would have had significant probative value, especially in light of the numerous witnesses who testified that this was the plaintiff’s condition. The Appellate Division concludes that the Judge abused his discretion in barring plaintiffs testimony.

Secondly, plaintiff contended that the trial Judge erred in failing to read a proposed jury charge explaining why plaintiff was banned from testifying at trial. and. that such failure preiudiced plaintiff. The proposed charge intended to inform the jury of the Judge’s specific ruling so the issue existed as to why the plaintiff did not testify. The Judge’s charge did not explain why plaintiff did not testify, except to the extent that it was generally due to the Judge’s ruling. The Appellate Division held that although the Judge directed the jury not to consider the absence of plaintiffs testimony in its determination, the charge created a prejudicial effect of having the jury contemplate why plaintiff failed to testify at his own trial. Therefore, the Appellate Division concludes that the Judge committed an error in denying plaintiff’s proposed jury charge.

Thirdly, plaintiff argues that defendant’s change in testimony from his deposition to Trial amounted to a violation ofMcKenney, The Appellate Division noted that the inconsistent testimony changed the scope and ability of plaintiffs expert to testify as to defendant’s possible negligence. Thus, it left plaintiffs expert having to provide an expert opinion on newly learned information at trial, rather than the information that defendant provided at his deposition. The Appellate Division held that the defendant violated McKenney by failing to alert the other parties of his changed testimony prior to trial and that he harmed plaintiff in doing so.

The Appellate Division reversed and remanded for a new Trial on all issues.