On appeal from Superior Court, Law Division, Mercer County.
Matthews, Crane and Morgan. Crane, J.A.D. (dissenting).
In this medical malpractice case primarily involving evidential problems associated with the issue of informed consent and, secondarily, the alleged obligation of drug companies to advise physicians, and others, of matters beyond that of the hazards inherent in the drug's use, plaintiff appeals a trial court order granting defendants' motion for summary judgment. The facts which figured in the challenged order, drawn from the procedural aspects of the case and from the disclosures, and deficits therein, encountered during pretrial discovery, are without substantial dispute.
On November 23, 1971 plaintiff Carmine Calabrese, then a student at defendant Trenton State College, was bitten
by a dog while on the campus of the college. The dog was not found and could not, therefore, be tested for rabies. Consequently, plaintiff received a series of injections of an anti-rabies vaccine, the first group of which was administered by defendant Dr. William Eames, at the College infirmary, and completed by defendant Dr. Alexander Farina, plaintiff's family physician, from vaccine received by plaintiff from Dr. Eames. According to plaintiff, neither doctor provided him with any information concerning possible adverse side effects associated with administration of the vaccine.
After the 13th or 14th injection plaintiff began experiencing some of the neurological side effects from the vaccine, which later progressed in severity to the degree that now forms the basis of his complaint. It started with confusion and an inability to concentrate. Later, the simplest of tasks became major projects. He was forced to leave college, and a job requiring administrative skills which he attempted later proved too much for him. He was demoted to a job with lesser demands. Ultimately he left that employment. He has been declared totally disabled for Federal Social Security purposes.
His treating doctors diagnose his condition variously as encephalomyelitis secondary to rabies vaccine, chronic severe organic brain damage secondary to rabies vaccine, acute depressive reaction associated with and resulting from rabies vaccination. Presently, plaintiff is unable to concentrate, think clearly, read or retain information, complete college or even hold a job. He suffers from frequent headaches, undergoes episodes of bizarre behavior and personality changes, and is otherwise unable to lead a normal life.
On July 8, 1974 plaintiff commenced suit against Doctors Eames and Farina, and Trenton State College as the employer of Dr. Eames, alleging negligence on the part of the doctors in the administration of the vaccine and their failure to warn him of its hazards, and against the College as vicariously responsible for the defaults of Dr. Eames. This complaint
was amended on June 3, 1975, almost a year later, to join Eli Lilly and Company (manufacturer of the vaccine), Ketchum Distributors (its distributor), and Robbins Pharmacy (the store which sold the vaccine to the College).
During the entire course of this litigation defendants encountered difficulty in securing discovery from plaintiff. With respect to his experts' reports, orders were obtained compelling their production, first on October 17, 1975 on motion of defendant Ketchum, and then on June 18, 1976 and July 12, 1976, on motion of the drug defendants and Dr. Eames, respectively. These orders required plaintiff to supply such reports by October 18, 1976 or to move before that date for a further extension of time. Plaintiff did neither. On October 22, 1976, four days after the date on which the reports were to be supplied, defendants Lilly, Ketchum, and Robbins (hereinafter "drug defendants"), moved for an order dismissing the complaint for plaintiff's failure to comply with the prior orders. It was in response to that motion that plaintiff sought a further extension of time within which to procure expert testimony in support of his case. By order dated November 3, 1976 the trial judge barred plaintiff from introducing expert testimony by any person whose name and report had not been supplied to defendants by the end of the day of October 22, 1976. Plaintiff did not appeal this interlocutory order. Nor did he seek to name experts and produce their reports at any time before defendants moved for summary judgment, heard by the trial judge on April 20, 1977. We add, parenthetically, that even by the time this appeal was argued no expert reports on the issue of "informed consent," relevant either to plaintiff's case against Doctors Eames and Farina or to the adequacy of the drug company's warnings, had been secured, and this was over three years after initiation of suit and over six years after plaintiff was bitten.
A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that ...