No Cause Verdict Reversed Where Trial Court Improperly Excluded Defendant Surgeon’s Statements Against Self Interest – Parker v. Poole (A-1874-12) (Decided March 2, 2015)

The Plaintiff, after a biopsy of a tumor, was diagnosed with invasive adenocarcinoma of the colon, and was referred to the defendant surgeon to undergo an operation to remove the tumor. A transverse colon resection and open anastomosis was performed. Three days later, the plaintiff developed a dehiscence. The next day, the defendant performed a second surgery to investigate whether there was an anastomotic leak. Defendant testified “[w]e never saw a hole, we never saw a perforation,” yet he decided to remove the anastomosis, explaining that the anastomosis was not perfect. Approximately two days later, Mr. Parker had a cataclysmic rapid demise caused by sepsis. The parties disputed the source of the sepsis at trial. Central to the dispute was the defendant’s deposition testimony wherein he stated, “I have to assume [the sepsis] was related to the anastomotic leak.”

However, the trial court excluded the evidence on the ground that the testimony was speculative. Defendant also testified at trial that the plaintiff had no evidence of sepsis at the time leading up to the second surgery, at the time of the surgery, nor while in the recovery room after the surgery, despite the fact that the defendant’s operative report stated, “I did not want to take the chance the anastomosis was leaking and would cause further sepsis.” During cross‑examination, the defendant, nonetheless, disputed that he observed evidence of an anastomotic leak during the second surgery, despite his operative report listing “probable anastomotic leak” among the post‑operative diagnoses. After completion of defendant’s trial testimony, plaintiff moved for reconsideration of the Court’s decision to exclude defendant’s deposition testimony, which the Trial Court again denied on the ground that defendant’s comment was speculative. The jury returned a verdict for defendant.

On appeal, the Court rejected the Trial Court’s suggestion that defendant’s deposition testimony about the cause of Mr. Parker’s sepsis might be excludable because “it converts defendant into an expert witness,” and asks “him to render an opinion when, in fact, he’s being called as a fact witness.” The Court found that a defendant doctor in a medical malpractice case can be asked questions “which seek to elicit expert opinions relevant to the diagnosis and treatment of the plaintiff” because the defendants are competent professionals. Further, the Court found that a treating doctor testifying as a fact witness is permitted to testify about the cause of the patient’s disease or injury, because causation is an essential part of diagnosis and treatment. Defendant was in the best position to make these determinations because he performed both operations, and, made the determinations by diagnosing a “probable anastomotic leak” and that he “did not want to take the chance the anastomosis was leaking and would cause further sepsis.”

The Court next found that the Trial Court erred in excluding defendant’s deposition testimony on the ground that it was speculative. Party‑opponent statements are not subject to personal knowledge foundation, nor are they subject to trustworthiness considerations, and federal precedent supports the position that N.J.R.E 701 does not independently bar speculative testimony admitted under N.J.R.E. 803(b)(1). The fact that a statement is speculative or in opinion form is not of consequence. Defendant’s deposition testimony regarding the cause of Mr. Parker’s sepsis was admissible under N.J.R.E. 803(b)(1) because it was made by a defendant, a party to the action, and was offered by plaintiff against him at trial. In regard to the application of N.J.R.E. 403, the Court found that defendant’s testimony carries compelling probative worth, because he was the surgeon performing the procedures, and that prejudice to the defendant was minimal because the statements were his own rather than a third party’s. The Court concluded that the Trial Judge’s decision to exclude defendant’s deposition testimony was “clearly capable of producing an unjust result,” because defendant’s credibility was central to the outcome of the case.

Related Articles: