Conde v. Brown

• Court: New Jersey Superior Court
• Writing for the Court: MILLER
• Citation: Conde v. Brown, 416 A.2d 915, 174 N.J.Super. 351 (N.J. Super. 1980)
• Decision Date: 31 March 1980
• Parties: Atilio CONDE and Sara Conde, Plaintiffs, v. Stanley L. BROWN, M.D., et al., Defendants.

Page 351

174 N.J.Super. 351

416 A.2d 915

Atilio CONDE and Sara Conde, Plaintiffs, v. Stanley L. BROWN, M.D., et al., Defendants.

Superior Court of New Jersey, Law Division Cumberland County.

Decided March 31, 1980.

John Callinan, Wildwood, for plaintiffs (Perskie & Callinan, P. A., Wildwood, attorneys).

G. Paul Crawshaw, Westmont, for defendants (Martin, Crawshaw & Mayfield, Westmont, attorneys).

MILLER, J. S. C.

Plaintiffs seek to amend interrogatories in a medical malpractice action to include a new expert subsequent to the panel hearing mandated by R. 4:21. The basis of plaintiffs' claim is that defendant performed an unnecessary back operation. A medical malpractice panel hearing was convened on December 12, 1979. Afterward the addition of a new expert is sought to enforce the theory of plaintiffs' case.

In support of the motion plaintiffs contend that their expert recommended that an opinion from a neurosurgeon be obtained. The present expert submitted a report but was not deposed. Plaintiffs emphasize that the new expert will testify, either by deposition or in person, to the same opinion as previously submitted. Additionally, it is argued that the substitution of an expert will not impede the trial nor surprise defendant.

Defendant objects to the motion on several grounds, namely, the unknown credentials of a new expert, the potential variation in expert testimony and the tactical advantage to plaintiff in enlarging his battery of experts for the time of trial. Defendant also questions the possible effects of new testimony on the issues decided by the malpractice panel and the validity of the panel's order at the trial wherein different testimony may be heard.

Amendments of answers to interrogatories, including the addition of an expert's name, is permitted not later than 20 days prior to the first date fixed for trial. R. 4:17-7, R. 4:17-4(e). The initial listing for trial was the first week of March 1980. Since the requested amendment is untimely, R. 4:17-7 requires that

. . . Thereafter amendments may be allowed only for extraordinary or compelling reasons and to prevent manifest injustice, and upon such terms as the court directs . . .

Normally, great liberality is accorded in permitting the testimony of witnesses whose names are not supplied by timely amendment. See Falcone v. N.J. Bell Tel. Co., 98 N.J.Super. 138, 236 A.2d 394 (App.Div.1967), certif. den. 51 N.J. 190, 238 A.2d 475 (1968); Brown v. Mortimer, 100 N.J.Super. 395, 242 A.2d 36 (App.Div.1968); Westphal v. Guarino, 163 N.J.Super. 139, 394 A.2d 377 (App.Div.1978), aff'd o. b. 78 N.J. 308, 394 A.2d 354 (1978). As stated in Brown,

. . . ordinarily such witness should be permitted to testify where the failure to supply his name in answers to interrogatories was not the result of a design to mislead and where there is no surprise or prejudice to the opposing party if the testimony is allowed. (at 401, 242 A.2d 36)

The objection to adding the expert witnesses is focused upon the elements of surprise and prejudice to defendant. At this juncture these considerations must be tested against the medical malpractice procedure mandated by R. 4:21.

In September 1978 the Supreme Court adopted rules establishing radical new procedures for the conduct of medical malpractice cases. In brief, the new procedure calls for the submission of such cases to a special panel composed of a doctor, a lawyer and a judge. This panel conducts a hearing with a view to determining whether or not malpractice exists. If the panel so finds unanimously either way, this fact is disclosed to the jury at the subsequent trial. See "Medical Malpractice Procedure Under Rule 4:21," 105 N.J.L.J. 17 (1980).

R. 4:21-2(c) mandates a pretrial conference and order, a unique requirement. This conference precedes the panel hearing. The R. 4:21 judge must make sure that everything is in order for a panel determination. Either the pretrial order or the notice of the panel hearing should contain a directive that all records and pertinent data be supplied directly...