Before Judges Pressler, Wefing and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2001
In this medical malpractice case, the jury found no cause of action against the cardiothoracic surgeon who implanted an artificial mitral valve in plaintiff's heart. Plaintiff claims he was prejudiced by the trial court's refusal to let his expert witness refer to a pamphlet provided by the manufacturer of the valve, outlining the proper method for its installation. That ruling, plaintiff argues, which followed questioning by defense counsel designed to indicate that there was no professional literature which supported the expert's position, left the jury with the impression that plaintiff's expert was a "lone wolf" with respect to his position and that there was no professional support for his thesis. Plaintiff contends his expert should have been permitted to refer to the pamphlet under the Learned Treatise provision of the Rules of Evidence, N.J.R.E. 803(c)(18), particularly after defendant had raised the issue. We agree, and accordingly we reverse and remand the matter for a new trial.
In October 1991, plaintiff underwent surgery for implantation of a prosthetic mitral valve, which regulates the flow of blood in the heart between the left atrium and the left ventricle. The surgery was performed by defendant, Dr. Lynn McGrath, and the replacement valve was manufactured by St. Jude Medical, Inc.
During the years following the surgery, plaintiff continued to have cardiac problems related to the mitral valve. In August 1996, he underwent corrective surgery and in January 1999, he had still more surgery. According to plaintiff, he nevertheless remains disabled. His contention is that all the problems following the initial surgery stemmed from defendant's faulty surgical technique, which improperly anchored the valve into his heart.
Plaintiff's expert trial witness was Dr. James Finnegan. He testified that proper implantation technique is to sew the replacement mitral valve to the annulus, a fibrous portion of the heart which lies at the base of the mitral valve and is the seating mechanism which holds the valve in place. Defendant, however, did not attach the mitral valve to the annulus, but rather stitched it to adjoining parts of the heart known as leaflets. According to Dr. Finnegan, the annulus "is a little thicker, a little fibrous," whereas the leaflets
are quite thin and very floppy and pliable, if you will, normally. They're meant to do almost like sort of a parachute effect, so they have to be soft and moveable, okay? The annulus is part of what anatomists would call the fibrous skeleton of the heart. In other words, it's the base anchor tissue in — — built inside the heart to hold everything in place. So, the annulus generally has some firmness and structure to it, whereas the leaflets tend to be soft and mobile.
As Dr. Finnegan described attaching the mitral valve to the annulus, the stitches are "put in place all around that ring, all around that annulus," and when the surgeon is finished, "you now have this valve sitting, sewn snugly into that annulus."
Dr. Finnegan was next asked if there were "circumstances where sewing the valve not to the annulus but solely to the leaflets is appropriate." He responded that such a procedure would be appropriate in only "very rare circumstances" where the annulus was "filled with calcium." In plaintiff's case, however, that did not exist and thus there was no reason not to attach the valve to the annulus.
After that testimony, Dr. Finnegan was asked whether he had an opinion "within a reasonable degree of medical certainty, as to what the standard of care required with regard to implantation of mitral heart valve in October 1991"? He answered that he did have such an opinion, and when he was then asked what that opinion was, he began to respond by saying, "I think, if you — — my opinion is that the valve should be sewed to the annulus. And, the reason I say that is, if you look at any textbook — — ."
At that point, defense counsel objected. He said that during pre-trial depositions Dr. Finnegan had been asked whether his opinion depended on any particular textbook or treatise in the field. His response had been equivocal, and he had said, "I certainly could do that if asked," but he continued by saying that his conclusion was "general knowledge" in the field. When he had then been asked essentially the same question a second time, he had responded that, "I don't recall . . . that I have specifically referred to specific literature in my report."
In view of that pre-trial testimony, defense counsel's objection at trial when Dr. Finnegan began to say, "If you look at any textbook . . .," was understandable. He argued that Dr. Finnegan should not be permitted to volunteer the name of a textbook or treatise that supported his opinion, when during deposition he had not provided the title of any such work. After some colloquy between court and counsel, the court sustained the objection.
Had the matter ended there, plaintiff would have had no basis to complain. However, the matter did not end there. Instead, defense counsel set out to demonstrate that Dr. Finnegan's opinion was not supported by any authority except his own subjective notion of the best way to proceed. He asked the witness about standards that may have been promulgated by two thoracic surgical societies. Dr. Finnegan responded that those standards supported his position, ...