T.L. and M.L., Plaintiffs-Respondents,
Jack Goldberg, M.D., and Penn Medicine Cherry Hill, Defendants-Appellants.
February 26, 2019
appeal from the Superior Court, Appellate Division, whose
opinion is reported at 453 N.J.Super. 539 (App. Div. 2018).
F. Kawalec, III, argued the cause for appellants (Marshall
Dennehey Warner Coleman & Goggin, attorneys; Walter F.
Kawalec, III, on the briefs).
Michael B. Zerres argued the cause for respondents (Blume
Forte Fried Zerres & Molinari, attorneys; Michael B.
Zerres, of counsel, and Robin A. Donato, on the brief).
William L. Gold argued the cause for amicus curiae New Jersey
Association for Justice (Bendit Weinstock, attorneys; William
L. Gold, of counsel and on the brief, and Kay A. Gonzalez, on
FERNANDEZ-VINA, J., writing for the Court.
medical malpractice action, the Court considers whether
plaintiff T.L. is entitled to a new trial because -- without
objection from T.L. -- defendant Jack Goldberg, M.D., gave
trial testimony inconsistent with his discovery responses.
The majority of a split Appellate Division panel held that
T.L. was entitled to a new trial, citing McKenney v.
Jersey City Medical Center, 167 N.J. 359 (2001).
consulted Dr. Goldberg for a blood condition. In October
2010, Dr. Goldberg told T.L. about a new medication, Pegasys.
After taking Pegasys, T.L. experienced a number of symptoms,
but Dr. Goldberg advised that T.L. should continue taking
Pegasys. T.L. began experiencing severe pain in her neck and
both arms, requiring hospitalization and rehabilitation. T.L.
was diagnosed with inflammation of the spinal cord and
experienced partial paralysis on her right side.
October 2011, T.L. brought suit against Dr. Goldberg and his
employer, Penn Medicine Cherry Hill. T.L. claimed that Dr.
Goldberg deviated from accepted standards of care by
prescribing Pegasys to her because she was diagnosed with,
and took medication for, chronic depression. During Dr.
Goldberg's deposition, when asked whether he was aware of
any studies in the Journal of Clinical Oncology pertaining to
the use of Pegasys to treat patients with T.L.'s
condition, Dr. Goldberg answered "no." On
T.L.'s motion, the court barred Dr. Goldberg from using
any medical literature at trial that was not produced during
the course of discovery.
trial, Dr. Goldberg testified that he prescribed Pegasys to
T.L. because he relied upon a clinical trial, published in
the Journal of Clinical Oncology in 2009, that included
patients with a history of depression. T.L.'s counsel did
not object. The jury found that Dr. Goldberg did not deviate
from the applicable standard of care. T.L. filed a motion for
a new trial, arguing for the first time that Dr.
Goldberg's discussion of the 2009 publication constituted
reversible error. The trial court denied T.L.'s motion.
appealed, and an Appellate Division majority held that T.L.
was entitled to a new trial. 453 N.J.Super. 539, 557 (App.
Div. 2018). Citing McKenney, the majority found that
Dr. Goldberg materially contradicted his sworn deposition
when he testified at trial that he relied on the 2009
publication, and that defense counsel's nondisclosure of
that anticipated change in testimony constituted plain error
and warranted a new trial. Id. at 556, 558-59.
dissent, Judge Currier opined that T.L.'s counsel
declined to object to Dr. Goldberg's testimony for
strategic and tactical reasons, and T.L. thus was not
prejudiced by that testimony. Id. at 562, 564
(Currier, J., dissenting).
Goldberg appealed as of right, based on the dissent. See
The circumstances at issue in McKenney, which
heavily depended on the prejudice caused to the party
disadvantaged by the surprise change in trial testimony, are
distinguishable from the change in testimony here. Here there
was no demonstration that the changed testimony caused
prejudice to T.L., and the plain error standard does not
compel reversal, especially because counsel's failure to
object was likely strategic. Under the circumstances, T.L. is
not entitled to a new trial.
McKenney, the plaintiffs alleged that the defendants
failed to provide proper medical care before and during
Jannie McKenney's delivery of her son. 167 N.J. at
364-65. The plaintiffs contended that the defendants should
have discovered that the fetus had a defect. Ibid.
The critical issue was whether Dr. Hu reviewed sonograms on
or after August 13, 1990, after which McKenney could no
longer obtain a legal abortion. Id. at 366-67,
375-76. During his deposition, Dr. Hu claimed that he likely
reviewed the sonograms on August 13 because they were taken
where he was then working. Id. at 366. At trial,
however, Dr. Hu claimed he did not review the sonograms until
after August 13 because they were taken at another medical
center. Ibid. The Court observed that Dr. Hu's
"change in testimony was critical." Ibid.
In addition, Sipra De, a sonogram technician, testified at
her deposition that she did not make a notation on one of the
sonograms but admitted at trial that she had made the
notation. Id. at 367. The Court held that
"defense counsel had a continuing obligation to disclose
to the trial court and counsel for plaintiffs any anticipated
material changes in a defendant's or a material
witness's deposition testimony." Id. at
371. The Court found the unanticipated testimony prejudicial
because some of De's surprise testimony was extremely
beneficial to Dr. Hu; because De's trial testimony
inculpated her; and because Dr. Hu's change in testimony
was critical to the jury's verdict on causation.
Id. at 372-75. Accordingly, the Court held that a
mistrial should have been granted. Id. at 376. (pp.
an appeal from the denial of a motion for a new trial, courts
decide whether there was a miscarriage of justice under the
law. When a party specifically argues that a change in
testimony warrants a new trial, a court's assessment of
the motion is informed by the principles discussed in
McKenney. (p. 17)
McKenney, the change in testimony was egregious and
clearly prejudicial to the plaintiffs. Here, on the other
hand, Dr. Goldberg's change in testimony was arguably
favorable to T.L.'s case because it showed Dr. Goldberg
was aware that the 2009 studies indicated Pegasys posed a
risk to patients with a history of depression -- and thus
T.L.'s counsel's decision not to object was likely
strategic. T.L. has not shown prejudice, and that important
and clear difference distinguishes this case from the relief
granted in McKenney. In addition, counsel in
McKenney objected to De's change in trial
testimony during the trial, and the attorney for the medical
centers conceded that he knew De's trial testimony would
differ from her deposition. In all, this case is unlike
McKenney and does not require the relief deemed
necessary in that matter. (pp. 17-18)
is T.L. entitled to relief by operation of the plain error
standard of review. As already explained, strategic reasons
can be inferred from counsel allowing Dr. Goldberg to testify
on the path he proceeded down, and the failure to object
itself suggests that it was not perceived to be as fatal as
is now argued. (pp. 18-19)
judgment of the Appellate Division is REVERSED.
JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA'S
case, we must determine whether plaintiff T.L. is entitled to
a new trial because -- without objection from T.L. --
defendant Jack Goldberg, M.D., gave trial testimony
inconsistent with his discovery responses.
medical malpractice action, T.L. claims Dr. Goldberg
committed malpractice by prescribing a medication that she
asserts should not be prescribed to individuals, who, like
her, have a history of depression. During discovery, Dr.
Goldberg claimed that he did not recall relying upon any
medical publications when prescribing the medication to T.L.
and, more specifically, was "not aware of any studies in
the Journal of Clinical Oncology" relating to the
medication. The trial court thus granted T.L.'s motion to
bar the doctor from referring to medical literature at trial.
Goldberg's testimony at trial, however, was inconsistent
with his discovery responses. Dr. Goldberg claimed he relied
upon a 2009 publication from the Journal of Clinical Oncology
indicating that individuals with a history of depression
could be prescribed the medication. T.L.'s counsel did
not object to Dr. Goldberg's change in testimony.
jury found that Dr. Goldberg did not deviate from the
standard of care and commit malpractice, T.L. filed a motion
for a new trial. She argued that allowing Dr. Goldberg's
change in testimony constituted reversible error. The trial
court denied T.L.'s motion -- finding that T.L. was given
a fair opportunity to present her case and raise any
inconsistencies with Dr. Goldberg's testimony.
appeal, an Appellate Division panel split over whether Dr.
Goldberg's change in testimony warranted a new trial. The
majority held that T.L. was entitled to a new trial, citing
McKenney v. Jersey City Medical Center, 167 N.J. 359
(2001), because defense counsel failed to alert T.L. to Dr.
Goldberg's change in testimony. The dissenting judge,
however, determined that T.L.'s counsel did not object to
Dr. Goldberg's testimony for strategic reasons because
counsel viewed Dr. Goldberg's testimony as helpful to
T.L.'s case. Accordingly, the dissent concluded Dr.
Goldberg's change in testimony did not violate
McKenney or require a new trial.
panel's opinions present the following questions: whether
T.L. is entitled to a new trial pursuant to McKenney
and whether the admission of Dr. Goldberg's testimony
pertaining to the publication, notwithstanding the motion to
bar, satisfies the plain error standard -- that is, whether