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Cogdell v. Brown

Decided: June 26, 1987.

MALESHA COGDELL, AN INFANT BY HER GUARDIAN AD LITEM, RUTH COGDELL AND RUTH COGDELL, INDIVIDUALLY, PLAINTIFFS,
v.
THOMAS BROWN, M.D. AND DAVID R. SNEAD, M.D., DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

Plaintiffs brought this malpractice action against an obstetrician and a pediatrician as a result of the birth of a handicapped baby.

Plaintiffs at the trial sought to call as their witness an examining doctor initially consulted by one of the defendants. Defendants objected to his appearance on behalf of plaintiffs, as a breach of loyalty and allegiance.

The primary issue is whether a plaintiff can call as a trial witness an examining doctor who submitted a report on behalf of a defendant.

The court supplements its oral ruling made during the trial that plaintiffs may do so.

The jury found both doctors were not negligent.

On October 16, 1982, Malesha Cogdell was born after a caesarean section was performed by Dr. Thomas Brown, an obstetrician and gynecologist, who called Dr. David Snead, a pediatrician to be present at the delivery. Malesha sustained permanent injuries, allegedly at or shortly after her birth, which have caused her to be physically and mentally handicapped. She has a cerebral palsy of the severest spastic quadriparetic type with microcephaly and mental retardation.

In March 1986, the attorney for defendant, Dr. Brown submitted the report of his examining doctor, Dr. Lawrence Taft to plaintiffs' attorney, who was aware of Dr. Taft because he had used him seven or eight times. Since plaintiffs' attorney had confidence in Dr. Taft and was pleased with the report, he notified both defendants' attorneys in April 1986 that he intended

to use Dr. Taft as his witness and would rely on the report already submitted to him.

Just before jury selection the attorney who was recently assigned to represent Dr. Brown made a motion in limine to prevent Dr. Taft from testifying on behalf of plaintiffs on the ground that, since the expert was originally consulted by a defendant, he had an obligation of allegiance to said defendant and it would deter defendants from having examinations made of plaintiffs. The attorney for plaintiffs could have used any number of witnesses with Dr. Taft's qualifications, i.e., a neuro- developmental pediatrician, but it was too late during the trial to obtain another expert.

Since defendants knew for more than one year that plaintiffs were going to call Dr. Taft as their expert witness, there was no intent by plaintiffs' attorney to mislead defendants nor could they be surprised. There was also no prejudice other than what takes place when any expert testifies. Therefore, the court permitted Dr. Taft to testify for plaintiffs or they would have been deprived of a fair trial. This accords with the overriding objective of giving a defaulting party his day in court, with due regard, however, to protecting the opposing party from the effects of surprise or other prejudicial factors. Westphal v. Guarino, 163 N.J. Super. 139, 145-146 (App.Div.1978), aff'd o.b. 78 N.J. 308 (1978).

R. 4:21-6(d) regarding medical malpractice litigation specifically permits a doctor member of the panel to be called at a subsequent trial of the action as a witness by any of the parties. Koch v. ...


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