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T.L. v. Goldberg

Supreme Court of New Jersey

June 10, 2019

T.L. and M.L., Plaintiffs-Respondents,
v.
Jack Goldberg, M.D., and Penn Medicine Cherry Hill, Defendants-Appellants.

          Argued February 26, 2019

          On appeal from the Superior Court, Appellate Division, whose opinion is reported at 453 N.J.Super. 539 (App. Div. 2018).

          Walter 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 the brief).

          FERNANDEZ-VINA, J., writing for the Court.

         In this 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).

         T.L. 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.

         In 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.

         At 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.

         T.L. 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.

         In 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).

         Dr. Goldberg appealed as of right, based on the dissent. See R. 2:2-1(a)(2).

         HELD: 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.

         1. In 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. 14-17)

         2. In 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)

         3. In 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)

         4. Nor 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)

         The judgment of the Appellate Division is REVERSED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA'S opinion.

          OPINION

          FERNANDEZ-VINA, JUSTICE.

         In this 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.

         In this 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.

         Dr. 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.

         After a 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.

         On 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.

         The 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 ...


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