The mother of a deceased patient brought this medical malpractice action against the hospital and emergency room physician, alleging that defendants had negligently failed to detect and treat an infection, causing patient to become paralyzed and die.
In preparation for trial, plaintiff consulted with and prepared to call at the trial five medical expert witnesses, two of whom were expected to testify on the standard of care in emergency medicine. However, the trial court had informally granted a defense pretrial motion that restricted each side to one expert witness on any subject or specialty relevant to the case. At this time, plaintiff’s attorney accepted the courts ruling and did not formally object to the limitation on the number of experts.
However, during opening statements defense counsel stated that, “no emergency room physician with a possible exception of Dr. Bagnell…would ever have thought…this is a patient with an infection.” This declaration prompted plaintiff’s attorney to move for reconsideration of the limitation on expert witnesses because the defense had essentially told the jury that no other expert in the world would offer testimony supporting plaintiff’s case besides Dr. Bagnell. When in fact, plaintiff’s second proposed emergency department physician expert, Dr. Schechter, had also offered a report which concluded that defendant emergency physician, Dr. Anwar Khan, deviated from the appropriate standard of care. However, the trial court denied plaintiff’s request to allow Dr. Schechter to testify because it concluded that the two expert’s testimony was “duplicative,”and during the trial plaintiff was only able to call Dr. Bagnell testify as to the standard of care of an emergency department physician.
After a jury trial, the Superior Court, Law Division, Hudson County, entered judgment on verdict in favor of defendants. Plaintiff appealed, asserting that several errors at the trial tainted the jury’s verdict, and also, that the verdict was against the weight of the evidence. The Appellate Division reversed and ordered a new trial. (430 N.J. Super.156 (App. Div. 2013))
Specifically, the Appellate Division held that the trial court erred in prohibiting plaintiff from presenting the testimony of a second expert witness on the subject of medical malpractice because his testimony would be duplicative. The Court went on to note that the trial court’s pretrial ruling was a mistaken exercise of its discretionary authority to control the presentation of evidence at trial under N.J.R.E. 611(a). Furthermore, the Appellate Division concluded that, in general, “a trial court would likely abuse its discretion if it imposed a limitation of only one [expert] witness for each side to testify on a factual matter that is vital to the resolution of a disputed issue.”
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