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An appellate court in New Jersey has affirmed a trial court's decision barring a physician's testimony on behalf of an insured at his trial against an insurer where the insured had not identified the physician as a possible witness, notwithstanding that the physician previously conducted an independent medical examination (“IME”) of the insured on behalf of her insurer.

The Case

State Farm Fire and Casualty Company obtained an IME from Dr. Mark Berman, an orthopedic surgeon, for purposes of determining Jo Ann Catello Onello's eligibility for personal injury protection (“PIP”) benefits after she said she was involved in an automobile accident. Dr. Berman opined that Ms. Onello had suffered bilateral contusions to her knees, a possible medial meniscus tear to her left knee, a left shoulder contusion with labral tear and rotator cuff tendonitis, and an acute cervical sprain. In his report, Dr. Berman stated that the injuries to the left shoulder, cervical spine, right hip, and bilateral knees were causally related to the accident. Dr. Berman further opined that the bilateral knee contusions and acute cervical sprain had resolved and that Ms. Onello had a pre-existing history of fibromyalgia. He noted that Ms. Onello had suffered an elbow injury in the past and had a history of migraine headaches that were both unrelated to the accident.

Dr. Berman was not involved in Ms. Onello's treatment.

Ms. Onello sued State Farm, among others. She sought, among other things, to recover underinsured motorist (“UIM”) benefits under the policy she had obtained from State Farm.

The parties conducted discovery. In response to interrogatories, Ms. Onello stated:

We will be calling all parties to the action, their agents, servants, employees, all treating physicians, radiologists, X-rays, physical therapists . . . within the Answers to Interrogatories and depositions together with – with any and all persons who shall be revealed by continuing discovery and investigation in this matter.

At no time during the course of discovery did Ms. Onello cite Dr. Berman as an expert witness.

State Farm did not retain Dr. Berman as an expert in the case and did not identify him as an expert witness.

Defense counsel forwarded the State Farm PIP file to Ms. Onello's counsel, which included Dr. Berman's IME report. Defense counsel stated in a letter that State Farm's answers to interrogatories were to be deemed amended to the extent that it reserved the right to call as witnesses at trial any of the medical providers named in the PIP file.

Ms. Onello first gave notice that she intended to call Dr. Berman as an expert in her pretrial exchange submitted pursuant to the New Jersey court rule requiring parties to provide a list of all witnesses seven days before the first scheduled trial date.

On the first day of trial, the defendants moved to bar the testimony of Dr. Berman because he was not named in discovery as a fact or expert witness. The trial court conducted a hearing and barred Dr. Berman from testifying. The trial court found that Dr. Berman was not identified as an expert witness during discovery. It concluded that allowing Dr. Berman to testify “would be akin to . . . trial by ambush.”

The trial court further concluded that the fact that Dr. Berman was used with respect to PIP benefit determinations did “not automatically somehow make him available . . . as an expert witness without being named” and affording the defense an ability to challenge or depose him during discovery.

The trial court denied reconsideration, concluding that Dr. Berman was not a medical provider for Ms. Onello and did not provide any medical treatment to her.

At the conclusion of the nine-day trial the jury issued a unanimous verdict in favor of the defendants.

Ms. Onello appealed, arguing that the trial court had committed a manifest abuse of discretion by barring Dr. Berman's testimony without any finding of intent to deceive, surprise, or prejudice.

The Appellate Court's Decision

The appellate court affirmed.

In its decision, the appellate court explained that Ms. Onello had not named Dr. Berman as an expert in her answers to interrogatories or in any amendment to those answers. The appellate court added that Ms. Onello failed to timely amend her answers to interrogatories and said that the trial court had properly disregarded her attempt to informally amend her answers to interrogatories months after the discovery end date by identifying Dr. Berman in her pretrial exchange with the defendants. “The inclusion of Dr. Berman as an expert in the pretrial exchange, months after the end of discovery, did not cure [Ms. Onello's] discovery violation.”

The appellate court added that even if Ms. Onello's failure to name Dr. Berman as an expert was inadvertent, “it still surprised defendants by not putting them on notice of [Ms. Onello's] intention to call him as an expert, thereby precluding them from deposing him as part of pretrial discovery.”

The appellate court also found that Dr. Berman was not a medical provider because he provided no medical treatment to Ms. Onello, so that the “catch-all language” regarding medical providers used by defense counsel in his letter to Ms. Onello did not apply to Dr. Berman.

Finally, the appellate court concluded that allowing Ms. Onello to call a PIP independent medical examiner as an expert witness without appropriate disclosure during discovery in a subsequent personal injury action had “the potential to thwart the important legislative goal of ensuring prompt payment of PIP medical benefits.” The appellate court reasoned that insurers that paid PIP medical benefits in the ordinary course “should do so safe in the knowledge that the evidence of that payment will not be admissible in the event there is a civil suit, in order to avoid creating an incentive to decline payment.”

The case is Onello v. Isa, No. A-3382-16T4 (N.J. Super. Ct. Jan. 10, 2019). Attorneys involved include: Natalie A. Zammitti Shaw argued the cause for appellant (Law Offices Rosemarie Arnold, attorneys; Natalie A. Zammitti Shaw, on the briefs). Caesar D. Brazza argued the cause for respondent Ulysses Isa (Sponder & Sellitti, attorneys; Caesar D. Brazza, on the brief). Carl A. Mazzie argued the cause for respondent State Farm Fire and Casualty Company (Foster & Mazzie, LLC, attorneys; Carl A. Mazzie and Jennifer Sanyshyn, on the brief).

Steven A. Meyerowitz, Esq., is the Director of FC&S Legal, the Editor-in-Chief of the Insurance Coverage Law Report, and the Founder and President of Meyerowitz Communications Inc. As FC&S Legal Director, Mr. Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Mr. Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.