T.L. and M.L., Plaintiffs-Appellants,
JACK GOLDBERG, M.D., and PENN MEDICINE CHERRY HILL, Defendants-Respondents.
January 18, 2018
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-7154-11.
Michael B. Zerres argued the cause for appellants (Blume,
Forte, Fried, Zerres & Molinari, PC, attorneys; Michael
B. Zerres, of counsel and on the briefs).
J. Lynch argued the cause for respondents (Christie &
Young, PC, attorneys; Peter J. Lynch, Christina G.
Tershakovec, and Michael A. Cavaliere, on the brief).
Judges Nugent, Currier and Geiger.
medical malpractice action, plaintiffs appeal from an order
that denied their motion for a new trial. The jury rejected
plaintiffs' claim that defendant Dr. Jack Goldberg's
management of plaintiff T.L.'s blood disorder fell below
medical standards of care when he prescribed a drug that
should not have been prescribed for a patient with her
medical history. We conclude defense counsel's failure
to discharge his duty of candor to the court and counsel by
disclosing that defendant's trial testimony would differ
materially from defendant's certified interrogatory
answers and sworn deposition testimony resulted in plain
error that deprived plaintiffs of a fair trial. We thus
reverse and remand for a new trial.
action's procedural history began in 2011 when plaintiffs
filed a complaint against defendant and others. Plaintiffs
alleged defendant was liable for his medical negligence in
prescribing a new drug, Pegasys, to manage plaintiff's
blood disorder. Plaintiff's ingestion of the drug
allegedly caused her to develop a severe neurological
condition, which resulted in partial paralysis of her right
side. Defendants answered and denied deviating from any
standard of care. They also denied that plaintiff's use
of Pegasys caused the neurological condition she developed.
discovery, defendant certified in an interrogatory answer
that he did not recall relying upon any medical text or
publication in connection with his diagnosis or treatment of
plaintiff. When deposed, defendant denied being aware of any
studies in the Journal of Clinical Oncology
pertaining to the use of Pegasys to treat patients with the
blood disorder that afflicted plaintiff.
presented a list of motions in limine when trial began. Among
such motions, plaintiff moved "[t]o bar defendants from
utilizing medical literature at the time of trial, "
because defendant had provided none in response to discovery
requests. Based on defense counsel's representation that
he intended to use only the medical literature "referred
to and relied upon by plaintiff's witnesses, " the
court granted the motion.
trial began on March 30, 2015. On April 24, 2015, by
agreement of six jurors with a seventh disagreeing, the jury
returned a verdict for defendant. In response to the first
question on the verdict sheet, the jury found defendant had
not deviated from the relevant standard of care. Plaintiffs
filed a motion for a new trial, which the trial court denied.
This appeal followed.
parties developed the following proofs at trial. In 2003,
doctors diagnosed plaintiff with a blood disorder, essential
thrombocythemia (ET). According to the medical witnesses, ET
occurs when stem cells in the bone marrow, which divide and
"give birth to" red blood cells, white blood cells,
and platelets, overproduce platelets. Platelets aid blood
clotting. In a person with ET, the platelets rapidly
proliferate. If left unmanaged, ET can significantly increase
the risk of life-threatening clotting and bleeding. A normal
platelet count is no more than 300, 000. An abnormal platelet
count in a person with ET averages around one to two million.
pre-ET medical history included a 1996 work-related accident
in which she sustained a crush injury to her left shoulder,
after which she developed a condition known as sympathetic
reflex dystrophy. In 1997, she underwent surgery involving
her cervical and lumbar spine following an automobile
accident. Relevant to the issue of whether defendant should
have prescribed Pegasys for plaintiff, plaintiff also had a
history of depression.
her diagnosis of ET in 2003, plaintiff came under the care of
a hematologist, Dr. George Karp. In January 2 005, after
conferring with two other specialists, plaintiff came under
defendant's care. Defendant managed plaintiff's ET
exclusively from her first visit in January 2 005 until he
prescribed Pegasys on October 21, 2010, her last office visit
doctors first diagnosed plaintiff with ET, the condition was
generally managed with aspirin and one of three medications:
anagrelide, interferon, or hydroxyurea,  all of which
produced side effects. Dr. Karp started plaintiff on
anagrelide. Plaintiff developed serious reactions to
anagrelide, and the doctor discontinued its use.
Karp next prescribed interferon. Plaintiff experienced severe
side effects, including flu-like symptoms, nausea, and
dizziness. She became so fatigued she was nearly bedridden.
Dr. Karp discontinued interferon after a trial period of a
discontinuing interferon, Dr. Karp prescribed hydroxyurea.
Although plaintiff experienced side effects from this drug,
she tolerated it better than she had tolerated the anagrelide
and interferon. Plaintiff took hydroxyurea for nearly six
years, from late 2004 until October 2010, when defendant
to one medical expert, Pegasys is a slow-release type of
interferon. The expert explained that when plaintiff was
given interferon originally, it had to be given often,
because it does not stay in one's body very long. Pegasys
implicates a term called pegylated, "which is a molecule
that's added and it gives a slow absorption." The
expert added, Pegasys is "like taking a slow release
tablet of any medication."
plaintiff's husband insisted she should not take Pegasys
due to the devastating side effects she had experienced on
interferon, defendant urged plaintiff to try Pegasys. He did
not believe her previous intolerance of interferon was
disqualifying. Plaintiff testified she weighed her concerns
about the risk of leukemia from hydroxyurea and the potential
for resolving her ET symptoms with Pegasys, as explained by
defendant. She ultimately decided to try the drug.
defendant initially prescribed four 180 microgram dosages, he
had plaintiff start a trial period by injecting only 80
micrograms each week. She administered three doses of
Pegasys. According to plaintiff, after she administered the
first dose she began to experience flu-like symptoms, as well
as dizziness and numbness and tingling on the right side of
her body. Her husband reported the reaction to defendant, but
he said they needed to give her body time to adjust, so she
administered two more doses. Plaintiff testified that after
each dose she experienced the same side effects. Each time
that happened, her husband phoned and informed defendant of
her reaction. A subsequent blood test revealed
plaintiff's platelet levels had fallen, but her white
blood cell count had fallen as well.
about the white blood cell count, plaintiff discontinued
Pegasys after the third dose. Plaintiff had taken the three
doses during the first three weeks of November 2010. She and
her family were scheduled to start a vacation in Jamaica on
November 27. The day they arrived, plaintiff received word
her father had died. She and her family returned home the
her father's funeral, plaintiff sought treatment from two
psychologists. Neither recommended medication for her
depression, and she took none.
December, plaintiff began to experience intense migraine
headaches. The headaches were accompanied by an
"aura" which caused plaintiff to lose partial
vision in her left eye and experience numbness in the left
side of her tongue, face, and left hand. She went to the
emergency room on December 13, 2010. The emergency room
doctors had her undergo a CT scan and afterward told her she
had a severe migraine and should see a neurologist. Plaintiff
saw a neurologist who prescribed Medrol. The Medrol relieved
December 26, 2010, plaintiff began to experience severe neck
pain, which radiated down both arms. She applied heating pads
to her arms and went to bed. The next day, after resting on
the couch, she could not get up. She thought she was
paralyzed. Her husband called an ambulance, which transported
her to JFK Medical Center.
remained at the medical center for a week and then
transferred to a rehabilitation center where she remained for
approximately three more weeks. Doctors eventually diagnosed
her with transverse myelitis.
testified she began to regain some movement on her right side
after steroids administered to her "started to
work." While at the rehab center, she also took part in
daily occupational and physical therapy. During therapy, she
suffered a partial dislocation of her right shoulder. Upon
discharge, her movement remained limited. Plaintiff testified
she required a wheelchair or walker in order to get around.
While plaintiff regained some movement in her right side, she
continued to experience weakness in her right arm and right
parties presented experts with differing opinions as to
whether defendant deviated from the applicable standard of
care. Plaintiff's expert, Dr. Louis Aledort, a specialist
in hematology, testified defendant deviated from the relevant
standard of care by prescribing Pegasys for plaintiff. Dr.
Aledort explained plaintiff's intolerance to interferon
had been well noted, so much so she had sought a second
opinion concerning her intolerance. In addition, Dr. Aledort
noted that a history of depression alone is a reason not to
start somebody on Pegasys, because one can become profoundly
depressed from the drug even with no previous history of
depression. Plaintiff had a history of depression, a fact of
which defendant was aware. More importantly, there was no
medical reason to start plaintiff on Pegasys because she was
being well maintained on hydroxyurea at the time. According
to Dr. Aledort, the appropriate therapy for her ET would have
been to continue her on hydroxyurea.
expert, Dr. Azra Raza, a hematologist and oncologist,
testified defendant did not deviate from a medical standard
by recommending and prescribing a trial of Pegasys. Dr. Raza
explained doctors treating ET always face the quandary of
whether a patient's symptoms are due to the disease or
the drugs. In such situations, doctors must balance and
decide what is worse: the disease or symptoms from the drugs
used to control the disease. The ultimate goal is to strike a
balance and provide a patient with the best quality of life
possible under the circumstances.
Raza testified that in October 2010, plaintiff's platelet
count had exceeded one million, which was dangerously high.
Plaintiff was not tolerating the hydroxyurea well during this
time and she was using it intermittently. Given these
circumstances, it was appropriate to try something else, and
Pegasys was available. Dr. Raza opined defendant
appropriately started plaintiff's Pegasys trial with low
doses to monitor the side effects.
Raza did not agree plaintiff's ET was controlled by
hydroxyurea over the years. Plaintiff's platelet count
was up and down for two reasons: her intolerance to
hydroxyurea, and her refusal at times to take it due to the
symptoms she ascribed to the drug. The doctor did not believe
plaintiff's psychological history was a contraindication
to prescribing Pegasys. She explained that it was certainly
necessary for both defendant and plaintiff to be aware of the
"black box" warnings on the drug. According to the
doctor, however, defendant and plaintiff had extensive
discussions about such warnings. Dr. Raza also opined
plaintiff had been less tolerant of hydroxyurea than the
interferon that she had taken after her blood disorder was
first diagnosed. Dr. Raza did not believe the Pegasys caused
plaintiff's transverse myelitis.
parties also presented experts with opinions about causation.
Plaintiff's expert neurologist, Dr. Martin Gizzi, opined
plaintiff's right-sided weakness or paralysis was caused
by the transverse myelitis, which in turn was caused by
Pegasys. Dr. Gizzi further opined the conditions caused by
plaintiff's transverse myelitis were permanent.
expert neurologist, Dr. Terry Heiman-Patterson, disagreed
with Dr. Gizzi. Dr. Heiman-Paterson acknowledged plaintiff
had suffered an injury to her spinal cord but opined Pegasys
did not cause the injury.
Barbara Ziv, a psychiatrist, testified for the defense. Dr.
Ziv testified that many of plaintiff's symptoms were
inconsistent with a physiological cause and were likely a
result of a combination of somatization disorder and
diagnosed plaintiff with somatization disorder and conversion
disorder based on multiple factors, including an examination,
a review of plaintiff's medical and personal history, and
a Minnesota Multiphasic Personality Inventory
(MMPI). Dr. Ziv explained that somatization
disorder is essentially the physiological manifestation of
psychological and emotional stresses. She explained that
conversion disorder is a condition characterized by the
development of signs and symptoms of neurological problems
such as paralysis, weakness, or numbness as a result of a
psychological issue. Dr. Ziv opined plaintiff's
conversion disorder caused her paralysis. The doctor
acknowledged plaintiff had lesions on her spinal cord, but
testified the lesions did not fully account for
her testimony, Dr. Ziv recounted numerous details regarding
plaintiff's relationships with her parents, siblings, and
son. She explained these facts were relevant to her
[I]n order to find out who somebody is from a psychiatric or
psychological point of view, you need to start at the
beginning, you need to understand where they came from, what
forces shaped them as an individual.
And you . . . can't just have somebody come into your
office and say ["]here are my complaints["] without
understanding the context in which those complaints present.
. . . .
So, I asked [plaintiff] about her childhood and the forces