Sullivan, Foley and Leonard. Sullivan, S.j.a.d. (dissenting).
Plaintiffs in this medical malpractice suit appeal from a judgment of dismissal entered by the trial court at the termination of their case. Plaintiffs primarily contend that the court erred in excluding the testimony of their medical expert, Dr. Robert J. Mulvaney, and in denying their motions for a mistrial and for a new trial.
The complaint herein was filed on October 24, 1964. Trial was originally set for September 13, 1966, but was adjourned and set down peremptorily for September 26, 1966.
Plaintiffs in response to an appropriate interrogatory had advised defendant on August 20, 1965 that their medical expert witness would be Dr. Emanuel Josephson. On September 20, 1966, six days before trial, plaintiffs sent defendant's counsel a letter, received the next day, wherein they "informally" amended the above noted answer by adding, as an additional medical expert witness, the name of Dr. Robert J. Mulvaney, "a licensed practicing physician practicing internal medicine."
Trial commenced on the scheduled date, and on the second day thereof, plaintiffs called Dr. Mulvaney as a witness. After he answered one preliminary question as to his qualifications, defendant objected to any further testimony from him and moved that he be excluded as a witness. Following lengthy argument, the trial court sustained defendant's objection and excluded Dr. Mulvaney from testifying. Plaintiffs immediately moved for a mistrial on the ground that they could not complete their case. This motion was likewise denied. Plaintiffs offered some routine exhibits and "of necessity" rested. Thereupon, defendant moved for a judgment of involuntary dismissal asserting that there was no proof of a casual connection between the plaintiff wife's claimed physical condition and the defendant's alleged negligence. This motion was granted. Thereafter, plaintiffs moved for a new trial, which motion was denied.
Plaintiffs' counsel in an affidavit filed in connection with the motion for a new trial states that, eight days before trial, he "formed the professional judgment that the best interests
of the plaintiffs' case would not be served by calling Dr. Josephson." He further states that, on September 20, 1966, he made arrangements to have Dr. Mulvaney testify and that he immediately forwarded the aforementioned amended answer to defendant's attorney.
Plaintiffs contend that under R.R. 4:23-12 an amendment may be made to answers to interrogatories within twenty days prior to trial "for extraordinary or compelling reasons" and that the necessity for the change of an essential expert witness is such an "extraordinary or compelling" reason. However, the record is devoid of any explanation of the basis of the determination by counsel "that the best interest of plaintiffs' case would not be served by calling Dr. Josephson." Nor do we find any reason why this determination was not made earlier than six days before trial.
Further, it is to be noted that the letter amendment did not state that there was to be a substitution in medical experts. Rather, it indicated that both doctors were to be called.
Defense counsel asserts that it was impossible to make an adequate check on the background and qualifications of Dr. Mulvaney within five days, particularly since a week-end was included therein.
The trial judge determined that the situation was governed by R.R. 4:23-12 and that, although he had authority to relax the rules, he would not do so. In reaching this conclusion, he considered that the witness involved was a key medical witness and that defendant was entitled to an opportunity to investigate his qualifications which it could not adequately do within five days. He further noted that no request for an adjournment was made by plaintiffs' counsel.
We do not find that defense counsel was under any obligation to notify his adversary that he objected to the late attempt to amend the answer to interrogatories. He had the ...