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JAKELSKY v. FRIEHLING

January 26, 1999

THOMAS G. JAKELSKY, PLAINTIFF,
v.
JANE S. FRIEHLING, D.O., DEFENDANT.



The opinion of the court was delivered by: Orlofsky, District Judge.

  OPINION

On the morning of trial, Defendant, Dr. Jane S. Friehling ("Dr.Friehling"), moved for summary judgment on the medical malpractice claims alleged by Plaintiff, Thomas G. Jakelsky ("Jakelsky"). The resolution of this motion requires this Court to penetrate the fog engendered by the elusive legal doctrine known as "proximate cause." Indeed, the facts of this case present what would be an utter nightmare for a first year law student taking his or her final exam in torts.

In her motion for summary judgment, Dr. Friehling argues that this Court should grant judgment as a matter of law against Jakelsky, because Jakelsky's medical expert, Dr. Michael L. Schilsky, did not reach his conclusions with a reasonable degree of medical certainty, and because he cannot testify that any alleged acts of malpractice by Dr. Friehling caused Jakelsky's alleged injuries. See Brief in Support of Jane S. Friehling, D.O.'s Motion for Summary Judgment, filed January 25, 1999, at 8-18. Essentially, Dr. Friehling argues that Jakelsky's alleged injuries relating to his employment and automobile accident are not the foreseeable results of, and thus not proximately caused by, any of the three acts of medical malpractice that Jakelsky alleges Dr. Friehling committed, which are: (1) failing to diagnose Jakelsky's Wilson's Disease in a timely manner; (2) providing Jakelsky with a release to return to work on July 7, 1995, when Jakelsky was not emotionally ready to return; and (3) abandoning Jakelsky as a patient on July 7, 1995.

In response, Jakelsky argues that the Federal Rules of Evidence, namely Rule 702,*fn1 and federal case law, most particularly Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), apply in this case, which merely require that an expert provide reliable and relevant testimony that will assist the trier of fact with scientific evidence which is beyond the ken of the average layperson. According to Jakelsky, under this standard, Dr. Schilsky's testimony is reliable, relevant and, thus, admissible.*fn2 This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1367.

In addition to Dr. Friehling's motion for summary judgment, during discussions with counsel yesterday morning prior to jury selection, I requested that Jakelsky provide me with a copy of the Settlement Agreement and Release, entered into between Jakelsky and Defendants, Siemens Business Communications Systems, Inc., Richard Pagano, John Deex, Eric Hall'eus, Charles Hess, Mario D'Agostino, Thomas Kelly, and Dorothy Sharp (collectively, "Siemens"), to determine whether Jakelsky has already recovered for the claims relating to his alleged workplace injuries that he now asserts against Dr. Friehling.

To determine if recovery is duplicative, I must first consider whether Jakelsky has asserted claims against Dr. Friehling for the same injuries that he claimed Siemens caused. If I find that Jakelsky has, in fact, alleged claims for the same injuries, then I must determine whether Dr. Friehling and Siemens are joint tortfeasors, because if Dr. Friehling is a joint tortfeasor, then, under New Jersey law, she is permitted to present evidence at trial that Jakelsky has already received full satisfaction of his damages. Thus, to the extent that Jakelsky has already recovered from Siemens, he may not also recover from Dr. Friehling.

For the reasons set forth below, I find that no reasonable jury could determine that the fatal car crash was a foreseeable result of any of Dr. Friehling's alleged acts of medical malpractice. In addition, I hold that no reasonable jury could find that Dr. Friehling's alleged medical malpractice that resulted in a delay in the diagnosis of Jakelsky's Wilson's Disease caused any damages to accrue after Dr. Friehling diagnosed Jakelsky's condition on April 7, 1995. Finally, I find that there is no evidence in the summary judgment record to suggest that Dr. Friehling's alleged abandonment of Jakelsky had any effect on the events that occurred in Jakelsky's life through July 13, 1995, the last day he claims any injuries. As a result, I hold that the alleged abandonment could not have proximately caused any of the injuries that Jakelsky alleges he sustained. Accordingly, I will grant Dr. Friehling's motion for summary judgment with respect to: (1) Jakelsky's claims of injury as a result of the car accident; (2) all claims of injury that accrued after April 7, 1995, which allegedly resulted from any delay in Dr. Friehling's diagnosis of Jakelsky's Wilson's Disease; (3) all claims of injury that accrued before July 7, 1995, which allegedly resulted from Dr. Friehling's decision to provide Jakelsky with a release to return to work; and (4) all claims of injury allegedly resulting from Dr. Friehling's alleged abandonment of Jakelsky as a patient.

With respect to the Settlement and Release entered into between Jakelsky and Siemens, I find that Siemens could only be held liable for any damages that accrued after it had notice that Jakelsky had Wilson's Disease on April 7, 1995. As a result, Dr. Friehling is solely liable for all damages, if any, that accrued from the date of her first consultation with Jakelsky on February 25, 1994, until April 7, 1995, the date on which she diagnosed Jakelsky's condition as Wilson's Disease and Jakelsky informed Siemens of this diagnosis. After April 7, 1995, Siemens may be held liable, and after July 7, 1995, Dr. Friehling may again be held liable, for Jakelsky's alleged workplace injuries, if the jury concludes that they result from any acts of alleged negligence. Thus, for all damages, if any, that the jury may award Jakelsky for injuries accruing after July 7, 1995, Dr. Friehling will have the opportunity to prove that Jakelsky has already received full satisfaction from his settlement with Siemens.

I. BACKGROUND

On February 25, 1994, Jakelsky first consulted with Dr. Friehling, a gastroenterologist, complaining of digestive problems, headaches, and emotional distress. See Memorandum in Support of Plaintiff's Cross-Motion to Disqualify Defendant's Expert and in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Opposition"), filed Jan. 25, 1999, Ex. 3 (Letter from Dr. Friehling to Dr. Neuman, dated Feb. 25, 1995). For the next approximately thirteen months, until April 7, 1995, Jakelsky continued to see Dr. Friehling to ascertain the cause of his difficulties. See id., Exs. 3-10 (Letters from Dr. Friehling reporting on Jakelsky's continued medical care under her supervision); Amended Complaint ¶¶ 28-33. His condition remained undiagnosed for those months, until Jakelsky mentioned that his sister had been diagnosed with Wilson's Disease. See Amended Complaint ¶ 33. After learning that Jakelsky's sister had been diagnosed with Wilson's Disease, a rare genetic disorder that affects one in thirty thousand people worldwide, Dr. Friehling ordered tests to confirm that Jakelsky did, in fact, have Wilson's Disease. See Plaintiff's Opposition, Ex. 8 (Letter from Dr. Friehling to Dr. Tan, dated Apr. 7, 1995, noting that she ordered tests to check Jakelsky's serum ceruloplasmin level and to check for Kayser-Fleischer rings in his "eyegrounds").

Ultimately, on April 7, 1995, Dr. Friehling told Jakelsky that he had Wilson's Disease. See id. Jakelsky immediately informed his employer, Siemens Rolm Communications Company,*fn3 that he had Wilson's Disease, and explained that the disease can cause behavioral problems. See Amended Complaint ¶ 37.

In May, 1995, Jakelsky took a medical leave of absence to undergo a six-week period of treatment for Wilson's Disease at the University of Michigan, under the care of Dr. George Brewer. See Joint Final Pretrial Order ("JFPO"), filed Oct. 21, 1998, at Part II, ¶ 1. On July 2, 1995, upon the completion of this course of treatment, Dr. Brewer released Jakelsky, determining that his symptoms from Wilson's Disease were completely under control, and that he was ready to return to work. See Plaintiff's Opposition, Ex. 14 (Medical log from Siemens, noting that on July 5, 1995, "received fax from [treatment] facility in MI. Dr. Brewer indicates [Jakelsky] on maintainance [sic] [treatment] for copper toxicity, controlled and eligible for [return]"). Dr. Brewer sent a letter permitting Jakelsky's return to work on July 5, 1995, which stated:

    Thomas Jakelsky is under my care for the management
  and treatment of his Wilson's Disease. This disease
  is an inherited disorder in which too much copper
  accumulates in the body. The sickness which develops
  may involve the liver or the brain or both.
  Fortunately, this is a disease which can be treated.
  Copper accumulation can be prevented by taking an
  anti-copper medication such as zinc.
    Thomas takes 50 milligrams of zinc acetate salt
  three times a day. As long as he takes this
  medication properly, further copper accumulation will
  be prevented and this disease will not progress. His
  Wilson's Disease is well controlled and is expected
  to remain that way. He's expected to live a ...

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