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