No New Trial for Plaintiff Who Strategically Did Not Object to Trial Testimony That Was Inconsistent With Discovery Responses

T.L. v. Goldberg, 238 N.J. 218 (2019). The issue in this medical malpractice case was whether plaintiff was entitled to a new trial because defendant, without objection by plaintiff, offered trial testimony that was inconsistent with his discovery responses. That issue produced a 2-1 split in the Appellate Division, whose ruling was reported at 453 N.J. Super. 539 (App. Div. 2018). As discussed here, the majority ordered a new trial, finding that the situation here paralleled that of McKenney v. Jersey City Med. Center, 167 N.J. 359 (2001). Judge Currier dissented.

In a unanimous decision by Justice Fernandez-Vina that applied de novo review, the Supreme Court agreed with Judge Currier. McKenney, Justice Fernandez-Vina said, “heavily depended on the prejudice caused to the party disadvantaged by the surprise change in trial testimony.” That was not so here, where “there was no demonstration that the changed testimony caused prejudice to T.L.”

In McKenney, “the change in testimony was egregious and clearly prejudicial to the plaintiffs. It implicated the potential liability of a witness who had been granted summary judgment.” Here, in contrast, the Court concluded that “Dr. Goldberg’s change in testimony was arguably favorable to T.L.’s case,” so that plaintiff’s counsel’s decision not to object to the changed testimony, but instead to cross-examine based on it, “appeared to be a conscious choice.” That confirmed the absence of prejudice.

Moreover, in McKenney, defense counsel admitted that he knew that the trial testimony would differ from the witness’s deposition. Here, however, “defense counsel’s knowledge of Dr. Goldberg’s change in testimony is disputed. In all, this case is unlike McKenney and does not require the relief [the Court] deemed necessary in that matter.”

For the same reasons, the plain error doctrine did not aid plaintiff. “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.”