A Capehart Scatchard Blog

Defense Doctor Permitted to Testify as to Lack of Necessity of Plaintiff’s Surgical Procedures Despite Failing to Include that Opinion in his Report

By on August 25, 2017 in Court Rulings with 0 Comments

Plaintiff Silvano Collado was rear-ended by defendant Eli Salzman while driving a min-commuter bus in Jersey City, New Jersey. Defendant stipulated to liability and the matter proceeded to a damages only trial. In Collado v. Salzmann, 2017 N.J. Super. Unpub. LEXIS 2144 (App. Div. Aug. 22, 2017), the plaintiff appealed the no cause entered against him on the basis that the defense orthopedist was permitted to testify that the plaintiff underwent two unnecessary surgical procedures, despite not including that opinion in one of his reports.

The plaintiff was subject to the verbal threshold in his insurance policy, which required him to prove that he suffered “a permanent injury within a reasonable degree of medical probability.” At trial, the defense orthopedist, Dr. Thomas Helbig, testified that plaintiff suffered only soft tissue sprains and strains in connection with the accident. Further, he testified that 2 surgical procedures performed on plaintiff were unnecessary. The jury found in defendant’s favor, finding that plaintiff had not suffered a permanent injury related to the accident.

The plaintiff appealed, arguing that the trial court abused her discretion in permitting Dr. Helbig to opine that the plaintiff’s surgeries were unnecessary. Plaintiff argued that this testimony went beyond the four corners of the pre-trial reports prepared by Dr. Helbig. Plaintiff asserted that this trial error required the appeals court to vacate the jury’s verdict and remand for a new trial. The Appellate Division, however, rejected this argument and affirmed the jury verdict.

Dr. Helbig had opined in his pre-trial reports that the plaintiff suffered only sprains and strains as a result of the accident and the trial judge found that the doctor’s opinion as to the necessity of plaintiff’s surgeries was “merely the logical extension of these reports.” Further, Dr. Helbig had previously made clear that the plaintiff’s MRIs he reviewed showed injuries that were degenerative in nature and unrelated to trauma.

The Appellate Division noted that a trial court’s admission of expert testimony is “entitled to deference absent a showing of an abuse of discretion.” Further, an abuse of discretion arises “on demonstration of manifest error or injustice.”

The court may exclude expert testimony that deviates from the pretrial report if the court finds the presence of surprise and prejudice to the objecting party. In determining if the trial court judge abused her discretion in permitting the defense doctor to testify as to the need of plaintiff’s surgeries, the Appellate Division considered whether there was: “(1) an absence of a design to mislead; (2) an absence of the element of surprise; and (3) an absence of prejudice.” Because the trial judge concluded that plaintiff’s counsel was not surprised, misled, or prejudiced by Dr. Helbig’s opinion, the Appellate Division concluded that that trial judge did not abuse her discretion in permitting the testimony.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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