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Markmann v. Destefano

Decided: April 5, 1982.


On appeal from Superior Court of New Jersey, Law Division, Cumberland County.

Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by McElroy, J.A.D.


[185 NJSuper Page 412] This is a medical malpractice matter. We granted plaintiffs leave to appeal from an order, dated June 25, 1981, denying them the right to amend answers to interrogatories to add the name and the report of an additional medical expert, well in

advance of the date of trial but after plaintiff's case had been presented to a R. 4:21 medical malpractice panel.

This case, like Goddard v. Orthopedic Consultant Associates, 177 N.J. Super. 319 (App.Div.1981), a case now on appeal to the Supreme Court of New Jersey and as yet undecided, presents the troublesome problem of the inherent conflict between the underlying purposes of R. 4:21-1 et seq. and R. 4:17-7 which, subject to R. 4:17-4(e), permits amendment to answers to interrogatories up to 20 days before the first trial date.*fn1 As was true in Goddard, the new expert in this case was not utilized before the R. 4:21 malpractice panel. Here this was so because this

expert was obtained by plaintiff after the panel hearing was started and during the recess of the panel. The trial court, in an order dated October 14, 1980, which preceded the one here under review, refused to permit plaintiffs to use the new expert at the continued panel hearing. Leave to appeal that order was denied by this court on November 26, 1980 and plaintiffs do not now argue the correctness of that earlier order. Thus, the question presented is whether a party, prior to trial, may seek to add an expert not used before the R. 4:21 panel. Although the issue is facially similar to that presented in Goddard, it is not of that character because here the eventual decision of the panel, unlike the panel decision in Goddard, was a 2-1 decision, thus inadmissible at trial (R. 4:21-5(e)). The new expert's report, moreover, added in material degree to the opinions and reports of the experts used by plaintiffs before the R. 4:21 panel. The following are the additional facts necessary to our decision. They require reversal of the order entered below.

The case involves claims of malpractice arising out of the onset of cardiac arrest and resulting permanent brain damage to a 29-year-old female. Suit was brought against a group of physicians, hereafter designated as the Rosenblatt group, consisting of Morton and Alfred Rosenblatt, Samuel Stetzer and William B. Aarons, Jr. Also joined were Dr. A. E. Fontanilla, a surgical resident at Atlantic City Medical Center, and Dr. Maurice Elovitz, house surgeon at the same hospital. The Atlantic City Medical Center was sued as well.

Plaintiffs initially submitted expert reports to all defendants from Dr. Chodoff and Dr. Coombs in March 1979. In September 1979 plaintiffs amended answers to interrogatories to supply reports dated July 30, 1979 and August 1979 from Dr. Rachmel Cherner. On February 12, 1980 plaintiffs' counsel advised defendants that he no longer intended to use Dr. Chodoff or Dr. Coombs as expert witnesses. Defendants deposed Dr. Cherner in March 1980.

The pretrial order, apparently dated December 19, 1978 (1979?), provided, "All discovery to be completed by March 1, 1980. Panel hearing will be held on or after April 1, 1980." Item 10 of this order (R. 4:25-1(b)[10]), intended by the rule to limit experts, stated "No limit."

On March 28, 1980, 27 days after the pretrial order cut-off date for discovery, plaintiffs' counsel submitted to defendants a report dated March 24, 1980 from Dr. Eugene N. Binder of Brookline, Massachusetts. By this time the medical malpractice panel hearing had been scheduled for April 15, 1980. On April 3, 1980 counsel for the Rosenblatt group wrote to the R. 4:21 panel judge and requested an adjournment of the panel hearing. On April 15, 1980 the judge adjourned the hearing to June 20, 1980 and advised all attorneys that the panel hearing would not be adjourned again. Defendants then deposed Dr. Binder. It is apparent that neither counsel for the parties nor the court regarded the pretrial order's discovery cut-off date of March 1, 1980 as absolute and controlling.

On June 20, 1980 the malpractice panel convened. It heard presentation of plaintiffs' case and that of the Rosenblatt group. The attorney member of the panel noticed a discrepancy between a page of one copy of the hospital record and the same page as it appeared in a second copy submitted to the panel. By agreement the hearing was adjourned (apparently without date) to obtain the original hospital records. When the panel recessed on June 20, 1980 the cases of Dr. Fontanilla and Dr. Elovitz had not been heard. We do not know if the hospital participated as a party to the hearing. See R. 4:21-5(c).

The present controversy began during the panel recess when, on July 15, 1980, plaintiffs' counsel wrote to all counsel for defendants advising that he intended to use Dr. Edward Frank as an expert witness and on August 18, 1980 forwarded Dr. Frank's expert report. During July and August defendants filed motions to strike Dr. Frank's ...

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