January 2, 2013
JESSICA PAGAN AND ENEIDA CRUZ, PLAINTIFFS-APPELLANTS,
ST. JOSEPH'S HOSPITAL AND MEDICAL CENTER, ST. JOSEPH'S PRENATAL CLINIC, ST. JOSEPH'S CLINIC, DR. SNEIDER, DR. PETILLO, DEFENDANTS, AND FERHANA KHAN, M.D., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4991-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 23, 2012
Before Judges A. A. Rodriguez and Ashrafi.
Plaintiffs appeal from a June 15, 2011 order of the Law Division dismissing with prejudice their medical malpractice complaint against Dr. Ferhana Khan, who is a pediatrician. They contend that the trial judge erred in ruling that a published article supporting their liability expert's testimony would not be admissible at the trial and, subsequently, in ruling that plaintiffs lacked the requisite expert evidence needed to proceed to trial. We affirm in part and reverse and remand in part.
Plaintiffs Jessica Pagan and her mother, Eneida Cruz, filed their malpractice complaint in 2007, shortly before Pagan's twentieth birthday. They alleged that Dr. Khan and the other defendants were negligent when Pagan was born by breech delivery in 1987 because they failed to diagnose her congenitally dislocated left hip. Pagan's condition, also called developmental dysplasia of the hip, was diagnosed in January 1989 when she was thirteen months old. She was then hospitalized for several weeks, and the treatment included surgery followed by a foot-to-waist cast. The surgery left a scar in the area of Pagan's hip. Plaintiffs allege that the late-diagnosis caused permanent impairment and disability into the time of Pagan's adulthood, specifically, an abnormal hip joint, low back pain, a limp in her gait, risk for developing arthritis in the affected hip, and the likelihood that she will require one or more hip replacements in her lifetime.
In the course of pretrial proceedings, the trial court dismissed plaintiffs' claims against all defendants except Dr. Khan. With leave of the court, Dr. Khan filed a counterclaim alleging that plaintiff Cruz was negligent in failing to bring her infant child to doctors for follow-up care. The counterclaim stated that Dr. Khan had seen the infant in the hospital each day from the date of her birth in 1987 until mother and child were discharged three days later. She further alleged that Cruz was instructed to bring the child back for an appointment with a named doctor within one week and also to follow up for post-natal care at St. Joseph's Pediatric Clinic within two weeks. Cruz never took the infant for a follow-up examination with any doctor until the infant's first inoculation was belatedly given eleven months after her birth. At that time, a limp was noticed, which subsequently resulted in the diagnosis of the hip condition. Dr. Khan sought contribution from Cruz for her negligence in the event that plaintiffs prevailed on their malpractice claim.
In discovery, plaintiffs provided the reports of two expert witnesses. Arnold B. Wilson, M.D., an orthopedic surgeon, had reviewed Pagan's medical records and conducted physical examinations of her in 2007 and 2009, when she was nineteen and twenty-one years old. He issued a report after each examination in which he described her hip condition, its present symptoms, a prognosis of future impairment, and the treatment likely to be required in the years ahead. Reporting on the history provided by Pagan and her current complaints, Dr. Wilson's 2007 report stated:
During her childhood years, [Pagan] had relatively normal development, and was able to ambulate with no significant limp. Over the last few years, the patient has developed intermittent pain in her left hip and has noted a persistent click. This causes her marked disability and restricts her activities. She has great difficulty in participating in sports, running after her children, and is unable to dance. In addition, it has affected her ability to find gainful employment.
Doctor Wilson's physical examination in 2007 revealed "a well-healed surgical scar" in the groin area, "fairly normal range of motion in the left hip," and "only mild pain on range of motion." In 2009, the doctor made similar findings but added that "[p]atient walks with a mildly antalgic gait and favors her right side." X-rays showed "a normally developed right hip . . . [but] markedly dysplastic [left] hip." X-rays of the spine were normal. Pagan's prognosis was "very guarded" for improvement of the left hip. Dr. Wilson stated she was "at risk for the development of posttraumatic arthritis of the left hip . . . at a young age," and that she is likely to require further surgery and "eventually require a left total hip replacement." Dr. Wilson did not express an opinion in either of his 2007 and 2009 reports about the alleged negligence of the medical defendants.
During the week preceding the scheduled trial date, May 23, 2011, the attorneys conducted a de bene esse deposition of Dr. Wilson for use in lieu of his live testimony at the trial. See R. 4:14-9. In the videotaped deposition, Dr. Wilson testified consistently with his written reports. He stated that Pagan's physical condition was the result of congenital hip dislocation, that the condition and its impairment of her activities were permanent, and that her prognosis "is severely guarded." Dr. Wilson was not asked and did not express an opinion as to the alleged negligence of Dr. Khan or any other medical providers. Significant for purposes of this appeal, he was not asked and did not testify about whether the hip condition could have been diagnosed closer to the time of birth and whether earlier treatment would have made a difference in Pagan's current condition or prognosis.
Alvin Jaffee, M.D., a pediatrician, was plaintiffs' second expert witness. He issued a report dated July 8, 2010. He concluded that treatment of the hip dislocation should have started promptly after birth. He stated that Dr. Khan was negligent in failing to diagnose Pagan's dislocated hip at the time of birth and thus in failing to follow up on the care and treatment of the newborn infant. According to Dr. Jaffee, Dr. Khan should have instructed the mother about the need for follow-up examination of the infant within two to four weeks, and the follow-up should have included diagnostic imaging such as an ultrasound. Dr. Jaffee did not state what the treatment would have been if the hip condition had been more promptly diagnosed. He said he was a pediatrician and did not personally treat the condition but would have referred the infant to a pediatric orthopedist for treatment. He also did not provide an opinion about the anticipated prognosis for Pagan's hip had treatment begun immediately after birth.
Upon receiving Dr. Jaffee's report, Dr. Khan's defense counsel served a notice to produce documents on plaintiffs pursuant to Rule 4:18-1. Among other documents, counsel requested: "1. Copies of all medical literature Alvin Jaffee, M.D. intends to rely upon in giving his opinions[,]" and "5. . . . any other materials Dr. Jaffee relied upon in forming his opinions . . . ." Plaintiffs' attorney responded: "1. To be supplied by August 30, 2010[,]" and "5. None." Plaintiffs did not provide any documents by August 30, 2010, or at any time before defense counsel took Dr. Jaffee's discovery deposition on January 13, 2011.
At the deposition, defense counsel asked Dr. Jaffee: "Do you intend to rely on any articles at the time of trial in this matter?" Dr. Jaffee answered: "No, I do not." After the deposition was completed, however, but on the same day, plaintiffs' attorney wrote to defense counsel to report that "Dr. Jaffee has referred me to an article published by the American Academy of Pediatrics entitled Clinical Practice Guidelines: Early Detection of Developmental Dysplasia of the Hip, Pediatrics Volume 104, Number 4, April 2000, pages 896-905. Please advise if you would like a hard copy of this document." Defense counsel obtained a copy of the article.
The reports of Dr. Khan's two expert witnesses, James E. Hyman, M.D., and Charles A. Scott, M.D., were mostly consistent with plaintiffs' expert reports on the subject of Pagan's current condition, but they disputed Dr. Jaffee's allegations that Dr. Khan was negligent because she did not diagnose the hip dislocation. They emphasized the failure of Cruz to follow up with any medical appointments for the infant until eleven months after the birth, and they asserted the condition of the hip could not be determined at the time of birth based on the available medical records. Dr. Scott stated in his report that the term:
"congenital dislocation" . . . has been discarded and replaced by "developmental dysplasia" because it is well known that an affected newborn's hip problems are often not evident at birth and undetectable for a lengthy period despite diligent examinations. The term "congenital" erroneously implies a baby had been born with - and evidenced - dislocation/dysplasia right from birth; it may be many months - or even years - later before there is clinical evidence and abnormal examination. It is known that female breech deliveries are risk factors for dysplasia, which is why careful and regular examinations are important for infants in the risk category.
On the first day scheduled for trial, defense counsel moved to bar Dr. Jaffee from relying upon the American Academy of Pediatrics article referenced in the January 13, 2011 letter of plaintiffs' attorney. Defense counsel asserted that she had requested such medical literature in July 2010 and plaintiffs had not provided any in discovery, and also that Dr. Jaffee had testified in his deposition that he would not rely on any articles to support his opinions. Defense counsel further argued that the article, published in 2000, was not relevant to establish a standard of pediatric care at the time of Pagan's birth in 1987. After hearing argument from the attorneys, the judge granted defense counsel's motion, reasoning that the article was "an afterthought . . . that might strengthen [Dr. Jaffee's] opinion" but not an explanation of information previously referenced in his expert report or in his deposition.
The following day, still before a jury was selected, defense counsel moved orally for dismissal of the case on the ground that plaintiffs lacked an expert opinion to support all elements of their claim of malpractice. Counsel argued that neither Dr. Wilson nor Dr. Jaffee had stated an opinion about what treatment should have been undertaken immediately after Pagan's birth and how such treatment might have avoided the impairment and disability for which plaintiffs sought to hold Dr. Khan liable. Again, after hearing the arguments of counsel, the trial judge agreed with defense counsel's motion, and he dismissed plaintiffs' complaint with prejudice for lack of adequate evidence from an expert that would prove their claims of Dr. Khan's liability for Pagan's current condition.
On appeal before us, plaintiffs contend that the trial judge erred in excluding the American Academy of Pediatrics article on grounds of discovery violation, and that he erred even more critically in dismissing their complaint because of an asserted "gap" in their expert evidence.
We will consider the dismissal of plaintiffs' complaint first because our reading of the article has not revealed information that would "fill" the asserted "gap" in plaintiffs' prima facie case of medical malpractice. It appears to us, and the parties have not argued otherwise, that the article does not address specifically what early treatment of an infant would accomplish, as opposed to treatment after the child is one year old or more. The article recommends that early treatment be pursued, but it does not describe that treatment and its comparative benefits. Rather, it explains in detail the risk factors for the hip condition and the need and methodology for examinations to diagnose it. Moreover, the article by itself could not replace the need for expert testimony. We view the two points of error plaintiffs have raised on appeal as independent of each other, and the first one regarding the article is moot if the second one regarding insufficiency of their prima facie case does not warrant reversal.
With respect to sufficiency of plaintiffs' expert testimony, we must answer two questions. First, in proving a prima facie case, were plaintiffs required to present expert testimony about the treatment available immediately after Pagan's birth and the anticipated benefits of that treatment if her condition had been diagnosed earlier? Second, did the trial court err in ruling that Dr. Jaffee could not expand upon his expert report and deposition testimony by "filling in" the "missing" part of his report during his trial testimony? We answer the first question yes, plaintiffs' prima facie proofs should have included the available treatment immediately after birth and the benefits of that treatment over the surgery and other treatment Pagan received in early 1989. But we also conclude, with respect to our second question, that the applicable case law required that the trial judge explore whether sanctions less severe than dismissal of plaintiffs' complaint might have sufficed to address the apparent discovery violation that had resulted in a "gap" in plaintiffs' prima facie case.
We begin by reviewing the role of expert testimony in a trial, as well as the role of the trial judge in ruling upon the admission of expert evidence. N.J.R.E. 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." The proponent of expert testimony must establish three basic foundational requirements: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008). "Those requirements are construed liberally in light of Rule 702's tilt in favor of the admissibility of expert testimony." State v. Jenewicz, 193 N.J. 440, 454 (2008).
The qualifications of an expert and the admissibility of opinion or similar expert testimony are matters normally left to the discretion of the trial judge. State v. Torres, 183 N.J. 554, 572 (2005); State v. Summers, 176 N.J. 306, 312 (2003). In this case, however, the first question we have posed is not a matter of admitting or excluding expert evidence. The judge did not bar Dr. Jaffee or Dr. Wilson from testifying consistently with their expert reports and deposition testimony. The legal question before us is the sufficiency of their anticipated expert reports and testimony in establishing plaintiffs' prima facie case of medical malpractice.
The disputed issue is akin to the granting of summary judgment before any evidence is presented at a trial. Our standard of review, therefore, is plenary. See R. 4:46-2(c); Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).*fn1 Having conducted our own examination of the pretrial record, without deference to the trial judge's conclusion of law, see W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012), we agree with the trial judge that the expert evidence was not sufficient to prove the liability of Dr. Khan for Pagan's current condition.
We quote in full the relevant conclusions stated in Dr. Jaffee's report:
The standard of care requires that a clinical history that lists the high risk factors of female infant, breech delivery and first born should result in the education and the need to emphasize to the birth mother to have the child examined medically for follow-up care for examination of her hips shortly after birth; 2-4 weeks. The need for this examination should have [been] told to the birth mother. If the child did not appear in the medical clinic for a follow-up care [or] to the physician's office, phone calls should have been initiated to contact the infant's mother. There was a need to instruct the mother to have a reexamination of her child and to consider diagnostic imaging testing, such as an ultrasound.
With reasonable medical certainty, if the appropriate recommendations for adequate follow-up medical care after discharge of Baby Girl Cruz was strongly emphasized, it is my opinion that the diagnosis of Congenital Dislocation of the Hip would have been made and appropriate treatment could have been provided. [Emphasis added.]
The report does not state what the appropriate treatment would have been in the thirteen-month interval from Pagan's birth until the condition was diagnosed and treated, and so, it does not attempt to explain what effect such treatment would likely have had on Pagan's current condition, symptoms, impairments, and disability.
We agree with defendant that plaintiffs must prove not only that Dr. Khan deviated from the appropriate standard of care at the time of Pagan's birth but that the deviation was a proximate cause of Pagan's injuries and disability for which she seeks to hold Dr. Khan liable. Gardner v. Pawliw, 150 N.J. 359, 375 (1997). It is not enough in a malpractice case to prove that the doctor was negligent in her examination or treatment of the patient. The plaintiff must also prove that the negligence caused the plaintiff harm. Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002); Germann v. Matriss, 55 N.J. 193, 205 (1970).
Plaintiffs alleged that Pagan's hip dislocation was a congenital, that is, a pre-existing condition, but that its debilitating effects on Pagan's state of health were exacerbated by Dr. Khan's failure to diagnose it. Consequently, plaintiffs were required to prove that failure to diagnose the dislocation shortly after birth was a substantial factor in causing Pagan's current hip condition, or at least that the failure to diagnose increased the risk that Pagan would suffer the impairments and disability for which she has brought claims against Dr. Khan. See Verdicchio v. Ricca, 179 N.J. 1, 24 (2004); Reynolds, supra, 172 N.J. at 286; Gardner, supra, 150 N.J. at 378; Scafidi v. Seiler, 119 N.J. 93, 108-09 (1990); Evers v. Dollinger, 95 N.J. 399, 417 (1984); see also Model Jury Charges (Civil) 5.50E "PreExisting Condition - Increased Risk/Loss Of Chance - Proximate Cause" (2010).
Neither Dr. Jaffee nor Dr. Wilson was asked questions about symptoms, impairment, or disability that earlier treatment might have prevented. Both doctors included in their reports and also testified that Pagan faced an increased risk of developing arthritis in the left hip, but neither stated specifically that the late diagnosis increased the risk of arthritis at a young age. Moreover, Pagan did not have an arthritic condition at the time of trial. In other words, unlike the cited cases regarding increased risk of harm for failure to diagnose a pre-existing condition, Pagan had not suffered the ultimate harm arising from the increased risk.
Because of plaintiffs' failure to show how earlier treatment would have avoided some of her complaints or the risk of ultimate harm she suffered, we conclude that plaintiffs' expert evidence was insufficient to establish prima facie proof that failure to diagnose her hip dislocation earlier proximately caused the condition, impairments, and disability for which she sought compensation from Dr. Khan.
The second question pertinent to the sufficiency of plaintiffs' prima facie proofs is whether the trial judge erred in denying plaintiffs the opportunity to fill the evidential gap with expert testimony at trial. Dr. Wilson, of course, could not add to his testimony at trial because his de bene esse deposition had been completed. Plaintiffs' counsel suggested that Dr. Jaffee could testify about the proposed treatment for a newborn by an orthopedist. The judge acknowledged that a hearing pursuant to N.J.R.E. 104 could be conducted to determine whether Dr. Jaffee has the requisite expertise to testify about the available orthopedic treatment and what benefits that treatment might provide, but he ruled that Dr. Jaffee could not testify to new opinions beyond the scope of his report and deposition testimony and also that he was not qualified to give such opinion testimony. Because Dr. Jaffee did not provide orthopedic treatment in his own practice and instead referred patients to an orthopedic specialist, he did not have the personal experience and therefore the qualification to provide expert testimony on the subject of appropriate treatment for the hip dislocation.
An expert witness may be confined to the opinions contained in his or her report provided in discovery, Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App. Div.), certif. denied, 170 N.J. 210 (2001), although "the logical predicates for and conclusions from statements made in [an expert] report are not fore-closed[,]" McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987). On appeal, the trial judge's ruling with respect to the scope of expert testimony beyond the contents of the expert report is subject to the abuse of discretion standard of review. Conrad, supra, 341 N.J. Super. at 441.
However, the Supreme Court has "stongly urge[d]" trial judges not to bar otherwise admissible expert testimony because of discovery violations where the proponent can show "(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000) (quoting Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)); accord Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-32 (App. Div. 1997);
Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). Especially "when the testimony in question is 'pivotal' to the case of the party offering the testimony, a court should seek to avoid exclusion where possible." Wymbs, supra, 163 N.J. at 544 (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 582 (App. Div.), certif. denied, 142 N.J. 574 (1995)).
Here, before barring the testimony because of discovery violation and consequently dismissing plaintiffs' case, the trial court should have explored the adequacy of "granting a continuance . . . with or without an award of fees to the surprised party." Wymbs, supra, 163 N.J. at 543 (citing Ratner, supra, 241 N.J. Super. at 203). The proposed new testimony by Dr. Jaffee should have been excluded only "if such an outcome is just and reasonable." Ibid. (citing Thomas, supra, 282 N.J. Super. at 581).
Where an unexpected motion for summary judgment was made on the morning of trial and the judge was inclined to grant the motion, additional evidence should have been taken, such as from Dr. Jaffee in an N.J.R.E. 104 hearing. The purpose of the hearing would be to determine whether Dr. Jaffee was qualified to provide an opinion on the missing element of plaintiffs' prima facie case, whether he in fact would testify about that missing element, and, if so, whether an alternative sanction short of barring the new testimony would satisfy the interests of justice in addressing plaintiffs' discovery violation.
Plaintiffs' attorney certainly had no design to mislead the defense in providing discovery. The absence of the requisite expert opinion regarding available treatment and its benefits cannot be deemed purposeful conduct on the part of plaintiffs and their attorney.
Furthermore, the eleventh-hour proffer of additional opinion evidence was not a surprise to Dr. Khan and defense counsel in the true sense of that word. It was a surprise only because defense counsel did not make an earlier motion for summary judgment based on the inadequacy of plaintiffs' expert evidence. Cf. Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988) (cautioning against misuse of in limine motions to decide substantive issues immediately at the time of trial). Although defense counsel contends that she had to await Dr. Wilson's de bene esse deposition to understand the limits of his expert testimony on the causation issue, both plaintiffs' experts had provided reports that contained the scope and limits of their expert opinions. A timely summary judgment motion, or at least compliance with the pretrial exchange requirements of Rule 4:25-7 and Appendix XXIII(4), would have alerted plaintiffs' attorney and the trial court about the defense position on the adequacy of the expert reports. It would have permitted an application by plaintiffs to the court to amend Dr. Jaffee's expert report and to supplement discovery. We do not state here how the trial judge should have ruled on such a motion, but the court would also have benefited from more time to consider the available remedies.
Nor was the level of prejudice to the defense of the same caliber as that in cases where new and truly surprising evidence was first introduced at the time of trial. See Wymbs, supra, 163 N.J. at 543-45 ("pivotal" testimony of surprise defense witness should have been excluded from trial because defendant had never identified witness before trial, plaintiff's case had already been presented during eleven days of trial, and plaintiff's attorney had no ability to prepare for the new witness); Mauro v. Owens-Corning Fiberglas Corp., 225 N.J.
Super. 196, 206 (App. Div. 1988) (affirming the exclusion of expert testimony about statistics that were not included in the expert's report or in other discovery), aff'd sub nom. Mauro v. Raymark Indus., 116 N.J. 126 (1989); Murray v. Nicol, 224 N.J. Super. 303, 313-14 (App. Div. 1988) (no abuse of discretion in excluding testimony of surprise defense witness at trial who was not named in interrogatories or witness list).
Here, Dr. Jaffee had stated in his report that earlier diagnosis would have allowed "appropriate treatment," but he had not explained the nature of that treatment. We have no disagreement with the trial judge's conclusion that such additional testimony at the time of trial would have gone beyond the opinions in his expert report and not merely provided "logical . . . conclusions" from his report. McCalla, supra, 215 N.J. Super. at 171. But remedies short of exclusion and consequent dismissal of plaintiffs' case should have been explored. "[T]he sanction of exclusion of testimony is to be exercised cautiously and only after the court has exhausted all means of performing its shepherding function which do not terminate or deeply affect the outcome of a case." Murray, supra, 224 N.J. Super. at 314.
Likewise, the issue of whether Dr. Jaffee was qualified to express an opinion about available and appropriate treatment might have benefited from further exploration by means of a hearing pursuant to N.J.R.E. 104. Dr. Jaffee had obtained his medical degree in 1963 and had practiced pediatric medicine for more than forty years. He was a board certified pediatrician with an active medical license in Texas. He had experience in diagnosing newborn infants with hip dislocation and following up with those patients after their treatment. His experience and the knowledge he gained through contact with other members of his profession may have provided the requisite expertise to testify about the nature of the available treatment and its effects. See State v. Townsend, 186 N.J. 473, 495 (2006); Rosenberg v. Tavorath, 352 N.J. Super. 385, 400 (App. Div. 2002).
We do not reach any conclusion on this record regarding whether Dr. Jaffee was or was not qualified to provide the opinion testimony necessary to fill the gap in plaintiffs' prima facie case or whether he would have done so had he the opportunity. Ultimately, the question of his qualification and the admissibility of his testimony is left to the discretion of the trial judge. Torres, supra, 183 N.J. at 572; Summers, supra, 176 N.J. at 312.
Also, should the trial judge decide on remand that Dr. Jaffee can and would provide the requisite testimony, we do not reach any conclusion concerning whether an appropriate sanction should be imposed for plaintiffs' discovery deficiency at the time of the prior trial. We do not preclude the trial judge from determining that the testimony should nevertheless be barred because of undue prejudice to Dr. Khan, or alternatively, that lesser discovery sanctions are adequate.
Our disagreement is a procedural one with respect to how the trial judge should have reached appropriate conclusions on those issues. Rather than ruling on the basis of the attorneys' arguments on an oral motion brought for summary judgment as jury selection was about to begin, the judge should have given plaintiffs the opportunity to present opposing evidence. Plaintiffs should have been asked to demonstrate that they could fix the discovery violation without undue prejudice to defendant and that a lesser sanction would suffice. That alternative would have been consistent with the Supreme Court's directive to trial judges to consider less severe sanctions than barring of evidence when the exclusion is so "pivotal" that it will inevitably determine the outcome of the case. Wymbs, supra, 163 N.J. at 544.
We therefore reverse the judgment dismissing plaintiffs' complaint and remand for the trial court to conduct a hearing pursuant to N.J.R.E. 104 and to determine on the basis of a more complete factual record the appropriate resolution of the parties' dispute about plaintiffs' prima facie case. Should the judge determine that Dr. Jaffee does have the requisite qualification and would provide the necessary testimony to complete plaintiffs' prima facie case, the judge may consider whether alternative sanctions, such as requiring plaintiffs to bear defense expenses for supplemental discovery, would adequately address the discovery delinquency.
Having determined that further proceedings are necessary to address the primary ground for plaintiffs' appeal, the secondary issue regarding exclusion of the American Academy of Pediatrics article may also be considered again on remand. We note that plaintiffs' attorney provided written notice to defense counsel immediately after Dr. Jaffee's deposition and before the end of the discovery period that plaintiffs were modifying their prior discovery responses with reference to the article. If further testimony is taken from Dr. Jaffee about his expertise and opinions on the issue of causation, defense counsel may also address the disputed article and its role in the case.
We make no determination that the article is admissible for any purpose at trial. In particular, we are not addressing its relevance, or its admissibility under any other rule of evidence. We only comment that the tardy discovery of the article is mooted by the need for additional proceedings in this case.
To summarize our conclusions, we affirm the trial judge's ruling that plaintiffs lacked the requisite expert opinion to establish all aspects of their prima facie case of medical malpractice. With respect to plaintiffs' discovery violations, we reverse the ruling precluding them from attempting to establish that their expert can provide the missing opinion testimony. We remand to the trial court to hold a hearing pursuant to N.J.R.E. 104 to make the latter determination. In the course of that hearing, the trial court may also determine, if necessary, whether the disputed medical article can be used at trial. Finally, if the trial court determines that plaintiffs should be permitted to amend their discovery responses and proceed to trial, it should decide whether any sanctions should be imposed for their discovery violations.
Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.