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Drody v. Plastic Surgery Arts

November 6, 2008

MARLENE DRODY, PLAINTIFF-RESPONDENT,
v.
PLASTIC SURGERY ARTS AND EILEEN SLIMM, DEFENDANTS-APPELLANTS, AND KEVIN T. NINI, M.D., ROBERT M. OLSEN, M.D., AND PHILIP WEY, M.D., DEFENDANTS.
MARLENE DRODY, PLAINTIFF-APPELLANT,
v.
PLASTIC SURGERY ARTS AND EILEEN SLIMM, DEFENDANTS-RESPONDENTS, AND KEVIN T. NINI, M.D., ROBERT M. OLSEN, M.D., AND PHILIP WEY, M.D., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10634-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2008

Before Judges Cuff, Fisher and Baxter.

In these appeals, we consider whether the trial judge erred by permitting an expert's testimony even though plaintiff did not serve the expert's report until the first day of trial. Although the judge had the discretion to allow the testimony, defendants were prejudiced in having to depose the expert during the course of the trial in order to adequately prepare. This and other erroneous evidence rulings compel our remand for a new trial.

The evidence adduced at trial revealed that for years plaintiff was bothered by redness and ruddiness in the creases underneath her nose and cheekbones. She sought treatment for this rosacea condition in 1994 without success, and later utilized a product she found on the Internet with disappointing results.

On November 30, 2000, plaintiff presented to defendant Plastic Surgery Arts to inquire about makeup for her condition. During that visit, she met with defendant Eileen Slimm, L.P.N., who suggested a skin care analysis. Slimm examined plaintiff and recommended a rosacea protocol marketed by Physician's Choice of Arizona. Plaintiff consented, and Slimm performed dermatological peels on that date, on January 25, 2001, and on March 12, 2001, when she received her third and final treatment at the hands of defendants Plastic Surgery Arts and Slimm (defendants).

Plaintiff was subsequently examined by other health care providers with complaints of increased pore size and scarring in the area where the peels were applied. She was of the view that these additional problems resulted from defendants' treatment of her condition.

Plaintiff filed her complaint in this action against defendants and others on November 25, 2002.*fn1 In addition to her alleged physical injuries, plaintiff claimed she had sustained psychological injuries, which have inhibited her socially and in the furtherance of her career. More than four years later, the case was tried to a jury, which returned a verdict that found defendant Slimm negligent and awarded $650,000 in damages. The jury also found 35% of plaintiff's condition was pre-existing, thereby requiring a reduction in her net recovery. Defendants' subsequent motion for a new trial was denied, but the judge remitted the award from $650,000 to $500,000. With the 35% reduction, and the addition of prejudgment interest, judgment was entered in plaintiff's favor in the amount of $380,418.64.

In No. A-4116-06T3, defendants appealed the order that denied their motion for a new trial, arguing that: (1) the judge erred in permitting plaintiff's expert to testify because the expert's report was not served until the first day of trial; (2) the judge erred in admitting several photographs of plaintiff that had not been produced in discovery; (3) the judge erred in admitting hearsay documents relating to the product utilized by defendants in treating plaintiff; (4) the judge erred in permitting expert testimony about defendants' alleged failure to explain the risks of the procedure when plaintiff had not claimed a lack of informed consent; (5) the judge erred in permitting plaintiff to testify about her inability to further her career because her economic damage claim had been barred; (6) the accumulation of errors rendered the verdict a miscarriage of justice and warranted a new trial; and (7) the verdict was against the weight of the evidence. In No. A-4645-06T3, plaintiff appealed that part of the judge's order that reduced the jury's award from $650,000 to $500,000. We conclude that by refusing to preclude expert testimony based on a report that was not served until the first day of trial, the judge mistakenly placed unreasonable burdens on defendants' attempt to meet this new expert testimony. We also conclude that the judge erroneously admitted into evidence photographs, which were not produced in discovery, as well as hearsay statements regarding the products of Physician's Choice of Arizona. Because these errors warrant the granting of a new trial, we need not reach defendants' other arguments or the issue raised by plaintiff in her appeal. We reverse the order denying defendants' post-trial motion and remand for a new trial.

We, first, conclude that the judge erred in his choice of a remedy warranted by plaintiff's late submission of an expert report. The record reveals that plaintiff originally provided in pretrial discovery the report of Doris Rothman, Ph.D. However, because Dr. Rothman refused to provide her file to defense counsel, the trial court entered an order on August 25, 2004, which barred Dr. Rothman's testimony and provided plaintiff with an additional ninety days to retain a new expert; that order also extended the discovery end date to November 29, 2004.

As a result of what occurred with Dr. Rothman, plaintiff retained Frederick Evans, Ph.D., who opined that plaintiff's psychological injury was caused by defendants' negligence. Dr. Evans was deposed, but later passed away, generating a case management conference on August 3, 2006, which produced an order requiring plaintiff's submission of a new expert report no later than October 15, 2006, extending the discovery end date to December 30, 2006, and rescheduling the trial date for January 8, 2007.

On September 18, 2006, defense counsel received a letter from Peter Krakoff, Ph.D., which was dated September 12, 2006, and which stated only the following:

Marlene Drody was referred to me by her attorney . . . . Ms. Drody is involved in a medical malpractice case. She alleges that a treatment she was given for Rosacea was contraindicated and resulted in increased, reddening, inflammation and scarring. As she realized that the alleged error was permanent she became increasingly depressed and anxious. The psychologist who most recently ...


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