New Jersey Supreme Court Justice Faustino Fernandez-Vina. Photo by Carmen Natale.

The state Supreme Court has ruled that there's no cause for a new trial in a medical malpractice case where a doctor's pretrial testimony, about whether he relied on a medical journal's article to prescribe medication that caused adverse effects, differed materially from what he subsequently said on the witness stand.

In T.L. v. Goldberg, the unanimous court on Monday ruled that defense counsel's failure to disclose that the defendant doctor's trial testimony differed from his interrogatory answers and deposition testimony, without objection from plaintiff's counsel, didn't amount to plain error.

The court sided with a lower court and reversed a majority opinion by an appellate panel last year that held the plaintiff, known only as T.L., was entitled to a new trial after the first trial ended in a defense verdict.

The Appellate Division majority in the March 2018 decision ordered a new trial in the medical malpractice suit, relying on McKenney v. Jersey City Medical Center, a case in which an expectant mother, Jannie McKenney, sued over proper medical care for her unborn son and whether sonograms had been timely to detect a birth defect that would have given her time to terminate the pregnancy.

A dissenting judge, however, determined that T.L.'s counsel did not object to Dr. Jack Goldberg's testimony for “strategic reasons” and concluded the change in testimony did not violate McKenney, decided by the Supreme Court in 2001, or require a new trial.

“For the reasons set forth, we agree with the dissent,” wrote Justice Faustino Fernandez-Vina for the court. “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.

“In sum, because neither McKenney nor plain error review compels the conclusion that the result below was unjust, we reverse the Appellate Division's judgment.”

The McKenney court wrote in 2001: “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.”

Walter Kawalec III of Marshall, Dennehey, Warner, Coleman & Goggin in Mount Laurel, counsel to Goldberg and his employer, Penn Medicine Cherry Hill, did not return a call for comment.

Michael Zerres of Blume Forte Fried Zerres & Molinari in Chatham represented T.L. Zerres also didn't return a call for comment.

The New Jersey Association for Justice joined as an amicus on the position that every McKenney violation should result in a mistrial or any lesser remedy suggested by the aggrieved party. The NJAJ didn't immediately comment on the ruling.

According to court documents, T.L. consulted with Goldberg, a hematologist, for a blood condition: thrombocythemia, which causes the body to overproduce platelets.

She sued him and Penn Medicine in October 2011. She claims Goldberg deviated from accepted standards of care and thus committed medical malpractice when he prescribed Pegasys on a weekly basis to her a year earlier for her blood condition, despite her being diagnosed with and taking medication for chronic depression.

After taking Pegasys, T.L. experienced a number of symptoms, she would testify to, but Goldberg advised her to continue taking the medication. In December 2010, T.L. began experiencing severe pain in her neck and both arms, requiring hospitalization and rehabilitation. She was diagnosed with inflammation of the spinal cord and experienced partial paralysis on her right side, she claims.

During Goldberg's deposition, according to court documents, 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, Goldberg answered “no.”

On T.L.'s motion, the court barred Goldberg from using any medical literature at trial that was not produced during the course of discovery, the court noted.

At trial, however, Goldberg testified that he prescribed Pegasys to T.L. because he relied on a clinical trial, published in the Journal of Clinical Oncology in 2009, that included patients with a history of depression. T.L.'s counsel at the time did not object to the new information, according to the decision.

The exchange, according to court documents, was:

“'Defense counsel: [D]idn't [T.L.'s] prior experience with the older form of interferon and her prior history of … depression … disqualify her from Pegasys in 2010?

“Dr. Goldberg:  No, absolutely not.

“Defense counsel:  And briefly, why?

“Dr. Goldberg: Very briefly, the clinical trial in 2005 that was produced and done by M.D. Anderson included patients with depression. … [T]he patients … had been on Hydrea [another medication]. And guess what. They were on interferon. And so they were treated, retreated, this time with Pegasys. … So, that influenced me to [discuss Pegasys with T.L.].'”

The decision said medical experts for both sides provided conflicting testimony as to whether Pegasys caused T.L.'s injury.

After 12 days of trial in Middlesex County Superior Court, the jury found that 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 Goldberg's discussion of the 2009 publication constituted reversible error. The trial court denied T.L.'s motion. T.L. appealed, and the Appellate Division ruled 2-1 that T.L. was entitled to a new trial.

Citing McKenney, Appellate Division Judges William Nugent and Richard Geiger said Goldberg's failure to disclose the anticipated material change in testimony misled the plaintiff, and the failure to grant a mistrial was an abuse of discretion. Nugent and Geiger said the remedy of a reversal and new trial “serves a salient purpose: trial counsel should not be rewarded for violating a duty of candor to the court and other counsel.”

The dissenter, Judge Heidi Currier, disagreed that failure to raise the discrepancy was plain error. Currier opined that T.L.'s counsel declined to object to Goldberg's testimony for strategic and tactical reasons, and T.L. thus was not prejudiced by that testimony. The judge said the majority's reliance on McKenney was “misplaced” and she could not agree that his brief references to the 2009 study constituted a clear miscarriage of justice.

Goldberg appealed as of right, based on Currier's dissent.

The court said in an appeal from the denial of a motion for a new trial, that 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 laid out in McKenney.

Fernandez-Vina noted that McKenney heavily depended on the prejudice caused to the party disadvantaged by the surprise change in trial testimony, and is distinguishable from the change in testimony with Goldberg.

“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, such as T.L., with a history of depression,” he wrote. “And thus, T.L.'s counsel's decision not to object was likely strategic.”

He added that “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.”

“In all, this case is unlike McKenney and does not require the relief we deemed necessary in that matter. Nor is plaintiff entitled to relief by operation of the plain error standard of review,” said the court.

“To warrant reversal and entitlement to a new trial, the plain error must have been clearly capable of producing an unjust result,” Fernandez-Vina wrote. “We cannot conclude that standard has been met here.”