Before Judges Stern, Kleiner and Kimmelman.
The opinion of the court was delivered by: Kleiner, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Defendant, Sri Kantha (Kantha), appeals from a jury verdict in favor of plaintiff, Jane Moore, in this medical malpractice case. Defendant also appeals from the denial of his motion for a new trial.
Defendant alleges that the trial Judge erred in: 1) allowing plaintiff's counsel to read portions of defendant's expert's videotaped deposition into evidence; 2) directing a verdict on the issue of informed consent; 3) failing to instruct the jury that the partial judgment for plaintiff on informed consent could not form the basis for its finding as to whether defendant deviated from the accepted standards of care on the medical malpractice claim; 4) denying his motion for a new trial even though the jury verdict was excessive, and in failing to grant a remittitur; and 5) imposing sanctions as a result of defendant's failure to provide plaintiff with her treating physicians' records.
We conclude from the unique facts of this case that the trial Judge's deviation from the dictates of Graham v. Gielchinsky, 126 N.J. 361 (1991), and his Conclusion that the use of defendant's retained expert's de bene esse deposition constituted an exceptional circumstance within the purview of R. 4:10-2(d)(3), was reasonable and within the trial Judge's discretion. Alternatively, even were we to conclude that the trial Judge erred, that error was harmless, thus not justifying a reversal of the jury verdict and the order for judgment entered thereon. We find that defendant's remaining contentions are without merit. Accordingly, we affirm.
The trial in this case was the third trial following two prior mistrials. Prior to the first trial, a discovery and de bene esse deposition of defendant's medical expert was conducted and videotaped. On August 21, 1995, the first trial commenced. Prior to opening statements, defendant withdrew Robert B. King, M.D. as an expert witness. Plaintiff's counsel moved to admit portions of King's videotaped de bene esse deposition. Judge Yanoff concluded that plaintiff had been unfairly surprised by defendant's decision not to use King as an expert witness, and therefore held that the videotaped deposition was admissible.
Prior to the close of plaintiff's case and after plaintiff's medical expert had testified, plaintiff's counsel moved to bar defendant's medical expert, Jerold B. Graff, from using medical records obtained from plaintiff's treating physicians, Kevin Leen and Gary Rombough, which were not provided to plaintiff by defendant in discovery. The Judge granted a mistrial after concluding that defendant's counsel should have provided the records to plaintiff, and that the records were "absolutely crucial" to plaintiff's case. Plaintiff's counsel moved for sanctions, costs and counsel fees. Ultimately, a sanction of $12,500 was imposed, but payment was stayed until the Conclusion of the new trial.
A second trial before Judge Yanoff and a jury commenced on November 18, 1996. During plaintiff's counsel's opening statement, he informed the jury that they would see the videotaped deposition of King. Defendant's counsel objected to the comment and the use of the videotape at trial. The trial Judge sustained the objection and held that King's deposition was not admissible. The Judge granted plaintiff's motion for a mistrial.
The third trial, which forms the basis for this appeal, took place in June 1997 before Judge Yanoff and a jury. Prior to opening arguments, plaintiff's counsel again moved to admit King's videotaped deposition. This time the Judge held that portions of the deposition were admissible. At the Conclusion of the trial the jury found in favor of plaintiff and awarded her $150,000 in compensatory damages. Defendant's subsequent motion for a new trial was denied. However, the judge reduced the sanctions and costs previously imposed against defendant from $12,500 to $2,500.
In 1983, plaintiff suffered an initial outbreak of shingles or herpes zoster, *fn1 which resulted in blisters in the area under her right breast and around her right side, for which she was hospitalized for approximately one week. After her discharge, plaintiff's blisters "burst," resulting in scars which looked like white patches. Plaintiff testified that after the blisters healed, she continued to experience a constant itch in the affected areas which she described as "sometimes . . . bad, and other times . . . alright." Plaintiff indicated that she also experienced pain if she "pressed" on the affected area.
Plaintiff was diagnosed with postherpetic neuralgia, an acute, chronic condition which occurs following an initial outbreak of shingles in approximately twenty percent of patients. Symptoms of postherpetic neuralgia are ...