Opinion
DOCKET NO. A-1063-13T4
02-02-2015
ROBERT PILUKAITIS and CYNTHIA PILUKAITIS, Plaintiffs-Appellants, v. STEPHEN GEORGESON, M.D., Defendant-Respondent, and ANTHONY FRISOLI, M.D., and ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, Defendants.
Anthony J. Macri, attorney for appellants. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Walter F. Kawalec, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6923-10. Anthony J. Macri, attorney for appellants. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent (Walter F. Kawalec, III, on the brief). PER CURIAM
In this medical malpractice case, Robert and Cynthia Pilukaitis (hereinafter "plaintiffs") appeal from a July 27, 2012 order barring an expert report and testimony from Dr. Joseph Klapper; and a September 4, 2013 judgment of no cause of action entered after a jury trial dismissing their complaint against Stephen Georgeson, M.D. and Anthony Frisoli, M.D. (collectively referred to as "defendants"). We affirm.
There are two orders dated July 21, 2012: one barred plaintiff from using Dr. Klapper as an expert; the other barred "the supplemental expert report and expert testimony of Dr. Klapper for portions relating to causation." The combined effect of both orders barred plaintiffs from using Dr. Klapper as a witness.
Dr. Frisoli has not participated in this appeal.
Mr. Pilukaitis had a congenital heart condition known as a bicuspid aortic valve, where his aortic valve had two instead of three leaflets, causing abnormal blood flow and increased likelihood of endocarditis. In 2009, Mr. Pilukaitis saw Dr. Georgeson, his cardiologist, who initially believed that he had suffered from a viral illness. The doctor referred Mr. Pilukaitis to Dr. Frisoli, an internist.
Endocarditis is an inflammation of the inner lining of the heart. 7 Attorneys Textbook of Medicine ¶ 30.80 (3d ed. 2015).
Mr. Pilukaitis saw Dr. Frisoli within a week for a consult. One week later, Mr. Pilukaitis returned to Dr. Georgeson, who ordered blood cultures for the first time. Dr. Georgeson then diagnosed him with endocarditis. Dr. Mark Anderson performed open-heart surgery to replace Mr. Pilukaitis' aortic valve within two weeks of his first visit with Dr. Georgeson.
Plaintiffs filed the complaint against defendants, alleging that they were negligent in failing to diagnose Mr. Pilukaitis' endocarditis sooner, "resulting in severe complications necessitating aortic valve replacement."
Dr. Frisoli's counsel informed plaintiffs' counsel that he would be producing Dr. Anderson as a witness to testify on "his treatment of Mr. Pilukaitis, the necessity [for] treatment[,] and for its causal relationship to Mr. Pilukaitis' overall health." Dr. Georgeson's counsel subsequently conducted, with the consent of plaintiffs' counsel, a Stempler interview of Dr. Anderson. After that, Dr. Frisoli's counsel noticed Dr. Anderson for a deposition.
Stempler v. Speidell, 100 N.J. 368 (1985) (allowing defense counsel to conduct informal interview with plaintiff's treating physician upon notice to plaintiff).
Before the deposition occurred, plaintiffs' counsel filed a motion to compel Dr. Anderson to produce an expert report, or alternatively, to bar expert testimony from Dr. Anderson. Plaintiffs' counsel argued that they were entitled to such a report because Dr. Anderson was essentially acting as an expert witness. The judge denied the motion.
Plaintiffs have not appealed from this order denying that motion.
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During discovery, plaintiffs retained several experts and served various expert reports, including one from Dr. Leonard J. Moss, a cardiologist. The parties continued with discovery, but were unable to complete the depositions of the experts by the discovery end date. In May 2012, the court entered a consent order (the "discovery order"), stating that "depositions of all experts are to be completed by July 31[, 2012]" and that "[t]he Discovery End Date shall be extended to July 31[, 2012]." The judge entered the discovery order before defendants' counsel learned of plaintiffs' intention to use Dr. Klapper.
In June 2012, after Dr. Anderson's deposition, plaintiffs' counsel informed defendants' counsel that Dr. Moss was "too busy" to testify. As a result, plaintiffs' counsel told them that Dr. Moss would no longer be able to serve as plaintiffs' expert.
Plaintiffs' counsel then sought to replace Dr. Moss with Dr. Klapper. Dr. Frisoli filed a motion seeking to bar Dr. Klapper's testimony on "portions relating to causation" and Dr. Georgeson joined the motion seeking to bar the report and any testimony by Dr. Klapper at trial. Plaintiffs maintained that there were "no major changes" between the reports from Dr. Moss and Dr. Klapper, but Dr. Georgeson's counsel asserted that there were "three new things in Dr. Klapper's report: an issue about not giving antibiotics, not in the case before; an issue about improperly interpreting the echocardiogram, not in the case before; and a more extensive opinion on causation." Defendants maintained that they would be prejudiced by allowing plaintiffs to rely on the new report of Dr. Klapper. The judge granted defendants' motions and entered the July 27, 2012 orders.
Dr. Moss subsequently became available and testified at trial. Dr. Georgeson's counsel read portions of Dr. Anderson's deposition into the record because Dr. Anderson was personally unavailable to testify at trial as he was out of the state. The jury returned a verdict of no cause of action for defendants.
On appeal, plaintiffs argue that the judge erred by (1) barring the expert report and testimony from Dr. Klapper and (2) permitting defendant's counsel to read into the record Dr. Anderson's deposition testimony.
I.
We begin by addressing and rejecting plaintiffs' contention that the judge erred by barring Dr. Klapper from testifying at trial. A trial court's decision on discovery matters is reviewed under an abuse of discretion standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). "That is, '[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law.'" Ibid. (alteration in original) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)).
In barring Dr. Klapper's report and testimony, the motion judge found that
by consent [of the parties], discovery was extended, it was for the specific reason[] to complete the depositions of the experts, the experts that were already in this case.
[Plaintiffs are] all of a sudden substituting in a new plaintiffs' expert and then indicating, well, my other expert is too busy. Plaintiff[s] should have demonstrated exceptional circumstances as to why now a new expert report is being served, because that impacts [defendants] in this case and does require a review of the discovery schedule, as well as the trial date.
Based on argument[s] of counsel and the fact that there has been no exceptional circumstances demonstrated as to why [Dr.] Klapper is now being substituted in place of [Dr.] Moss, [defendants'] motion to bar [Dr.] Klapper is granted.
And I would recommend, being that the trial date has been set, that counsel seek leave before the presiding judge . . . who would appropriately hear the motion, and to demonstrate exceptional circumstances to her as to why [Dr.] Moss is not available and to allow [Dr.] Klapper into this case. And
that would certainly need to revisit all of the defense experts who may need to supplement their reports based upon any new theories that are advanced.
So, at this time, defendant's motion is granted in its entirety.
[(Emphasis added).]
The discovery order states that "depositions of all experts are to be completed by July 31[, 2012]." A plain reading of the discovery order indicates that discovery was extended for the parties to finish deposing existing experts. Moreover, when the motion judge barred the report from Dr. Klapper, she suggested that plaintiffs seek a discovery extension from the presiding judge, based on exceptional circumstances. Plaintiffs never filed that motion. We also note that Dr. Moss did, in fact, testify at trial.
Plaintiffs' reliance on McLean v. Liberty Health System, 430 N.J. Super. 156, 169 (App. Div. 2013), to argue that by barring testimony from Dr. Klapper, the trial court indirectly "infring[ed] on [plaintiffs'] right to present their proofs through their chosen witnesses," is misplaced. Although it is true that plaintiffs had the right to present their case at their discretion, they were still bound by the discovery order, which they failed to abide by when they served Dr. Klapper's untimely expert report.
II.
We reject plaintiffs' argument that defendants misused the discovery deposition and that Dr. Anderson therefore impermissibly testified as an expert at trial.
The admissibility of evidence, including expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001) (citation and internal quotation marks omitted).
It is well established that a treating doctor testifying as a fact witness is permitted to testify about the cause of the patient's disease or injury, because causation is an essential part of diagnosis and treatment. Stigliano ex rel. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995) (holding "the characterization of [such] testimony as 'fact' or 'opinion' creates an artificial distinction"). Testimony "about the likely and unlikely causes of [a patient's condition] is factual information, albeit in the form of opinion." Ibid.
Dr. Anderson's stated at his deposition that a "bicuspid valve is an abnormal valve. It is going to need to be replaced [nearly] 100 percent of the time. Bicuspid valves are replaced 99 percent of the time." Dr. Anderson further stated:
I would say that in my experience . . . [b]icuspid valves and normal valves basically all get replaced at some point in the spectrum.
The common ages [are] in the [fifties and sixties], where we are replacing bicuspid valves. . . . [Ninety-nine] percent of patients born with a bicuspid valve will get their valve replaced at some point in their life.
Dr. Anderson did not opine about the applicable standards of care and he was not produced as an expert witness for that purpose. Although the statements do "imply[] that surgery was necessary no matter what the stage of the endocarditis," as plaintiffs contend, these statements are still permissible testimony by a treating physician because they describe Dr. Anderson's diagnosis and treatment plan.
The judge did not err by permitting defendants' counsel to read Dr. Anderson's deposition testimony into the record at trial because Dr. Anderson was unavailable. Rule 4:16-1(c) states that
the deposition of a witness . . . may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition
or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because . . . [the witness] is out of this state . . ., provided, however, that the absence of the witness was not procured or caused by the offering party.Dr. Georgeson was permitted to use Dr. Anderson's deposition testimony for any purpose against plaintiffs, and used it here pursuant to Stigliano. Plaintiffs' reliance on Avis Rent-A-Car, Inc. v. Cooper, 273 N.J. Super. 198, 203 (App. Div. 1994) (holding that Rule 4:16-1(c) prohibits "the use of discovery depositions of experts as substantive evidence in lieu of live testimony"), is unpersuasive because Dr. Anderson did not provide expert testimony. In fact, Dr. Anderson testified as a fact witness, explained the nature of his diagnosis and treatment plan, and his absence was not procured or caused by the offering party. Id. at 202.
Finally, plaintiffs' argument that they were not given an opportunity to cross-examine Dr. Anderson is inaccurate because plaintiffs were given ample notice of defendants' intent to depose Dr. Anderson and had the opportunity to cross-examine Dr. Anderson at the deposition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION