T.L. v. Goldberg, 453 N.J. Super. 539 (App. Div. 2018). The Appellate Division split 2-1 in this medical malpractice case. The issue was whether the defendant doctor’s unexpected change in his sworn testimony, from an interrogatory answer that stated that he would not rely on expert evidence other than that offered by plaintiffs and analogous deposition testimony, to trial testimony by the doctor himself in which he justified his course of treatment by referring to a journal article, called for a new trial after the jury returned a non-unanimous defense verdict. Plaintiffs had even gotten an order, following a motion in limine, that barred the defense from adducing expert testimony given the prior disclaimers of any intent to do so.
Writing for the majority, Judge Nugent, with whom Judge Geiger joined, ruled that a new trial was required. Judge Currier dissented.
After noting that the standard of review of a decision to grant or deny a new trial is one that gives “due deference” to the trial judge’s “feel of the case,” the majority held that the defense had unfairly surprised plaintiffs with the unexpected change of testimony on the key issue of expert evidence. The majority found McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001), which had highlighted the need for trial counsel to be candid with the court and opposing counsel, and condemned turning a trial into “blind man’s [bluff],” to be dispositive. Though plaintiffs’ counsel did not object to the change in testimony, and did not raise it at all until the motion for a new trial, this was plain error, so counsel’s silence, which Judge Nugent labeled “inexplicable,” did not defeat plaintiffs.
Judge Currier disagreed. She felt that plaintiffs’ counsel had pursued a “well-founded strategy” and had made a “tactical decision” not to object to the doctor’s changed testimony. She asserted that plaintiffs’ counsel was familiar with the study to which the doctor referred at trial, and had taken the course he did because the study actually favored plaintiffs. Given that, Judge Currier found no “miscarriage of justice” that “clearly appear[ed]” from the record, which is what would be required to mandate a new trial.
Judge Currier’s dissent enables the defense to appeal to the Supreme Court as of right. Thus, this split decision may not be the last stop on this train.