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Plaintiff Barred From Calling PIP IME Doctor as Expert at Trial

By on January 18, 2019 in Litigation with 0 Comments

Plaintiff Jo Ann Catello Onello appealed from an order dismissing her complaint with prejudice following a jury verdict of no cause of action and an oral ruling barring the testimony at trial of her IME PIP doctor, Dr. Mark Berman. Plaintiff had been injured in a motor vehicle accident and sued the defendant who rear-ended her vehicle. She also had made a claim to her automobile insurance company to obtain personal injury protection (PIP) benefits for her injuries suffered in the accident. The issue on appeal in Onello v. Isa, ­­­­­­­­­­­­­­­­ 2019 N.J. Super. Unpub. LEXIS 66 (App. Div. Jan. 10, 2019), was whether the trial court correctly ruled that the PIP doctor, who had not been named as an expert during discovery by the plaintiff, was barred from testifying on plaintiff’s behalf at the time of trial.

Plaintiff and defendant Ulysses Isa were involved in a motor vehicle accident when a vehicle operated by Isa and owned by defendant Johanna Velasquez rear-ended plaintiff’s vehicle while plaintiff was stopped in traffic. Although plaintiff initially declined medical attention, ultimately, she obtained medical treatment for her injuries and submitted her medical bills to her own automobile insurance company, State Farm Fire and Casualty Company (State Farm), to obtain PIP benefits to pay for her bills incurred. State Farm obtained an IME (Independent Medical Examination) from Dr. Mark Berman, an orthopedic surgeon, for purposes of determining eligibility for benefits. Thereafter, Dr. Berman issued a report which included, among other opinions, that the plaintiff’s injuries to her left shoulder, cervical spine, right hip, and bilateral knees were causally related to the accident. Dr. Berman, however, was not involved in plaintiff’s treatment.

Plaintiff initially filed a pro se complaint in this matter. Thereafter, she retained counsel to represent her. Her counsel filed an amended complaint, naming State Farm as a defendant and asserted claims for UIM (underinsured motorist coverage) under her policy.

The plaintiff claimed that the accident caused an injury to her left shoulder, left knee, neck, left elbow, right knee, right hip. She underwent three cervical fusion surgeries, two left shoulder surgeries, and a left knee surgery.

The parties answered interrogatory questions in discovery. The plaintiff answered the interrogatory question concerning the identity of experts by referring to “all treating physicians, radiologists, x-rays, physical therapists.” At no time during discovery, did the plaintiff amend her answers to interrogatories to name Dr. Berman specifically as an expert witness. State Farm did not retain Dr. Berman as an expert in this case and did not identify him as an expert witness.

During discovery, defense counsel forwarded the State Farm PIP file to plaintiff’s counsel, which included Dr. Berman’s IME report. Defense counsel’s letter stated that the defendant’s answers to interrogatories were deemed to be amended to the extent that the defendant reserved the right to call as witnesses at trial any of the medical providers named in the PIP file.

The plaintiff was granted summary judgment on liability. Thus, the trial was limited to damages with the main issue being proximate causation. Causation was contested because the plaintiff had treated for years for some of her injuries.

Plaintiff first gave notice that she intended to call Dr. Berman as an expert in her pretrial exchange, which requires parties to provide a list of all witnesses, seven days before the first scheduled trial date. On the first day of trial, defendants moved to bar the testimony of Dr. Berman because he was not named as plaintiff’s expert witness during discovery. The trial court granted the motion, ruling that Dr. Berman was barred from testifying because he had not been identified as an expert during discovery by plaintiff. The court stated that the utilization of Dr. Berman with regard to a PIP benefit determination did not automatically make him available as an expert witness without being named and “affording the defense an ability to challenge or depose him during discovery.”

The court did note that the plaintiff had presented the testimony of four experts, including a radiologist, an orthopedic surgeon, a second radiologist, and a spine surgeon. Two of the experts did opine as to causation.

At trial, the defendants presented evidence in support of their claim that plaintiff’s injuries were entirely pre-existing and not proximately caused by the accident. They presented evidence of prior slip and fall accidents causing similar injuries, as well as MRI studies showing degenerative disc disease in the plaintiff’s cervical and lumbar spine. Further, the defendants presented evidence that a spinal surgeon had opined that plaintiff may need cervical spine surgery long before this accident.

At the end of a nine day trial, the jury issued a unanimous verdict for the defendants. Thereafter, the plaintiff appealed the ruling to bar Dr. Berman’s testimony.

The Appellate Division noted that an appellate review of evidentiary rulings of the trial judge is limited. Those rulings are entitled to deference absent a showing of an abuse of discretion, i.e. that there has been a clear error of judgment.

The Court noted that defendants had propounded interrogatories on the plaintiff, requiring her to disclose her experts. Plaintiff did not name Dr. Berman as an expert in her answers to interrogatories, nor did she amend her answers to interrogatories to include his name. She had been well aware of the IME performed by Dr. Berman long before the close of discovery. By failing to timely amend her answers to interrogatories, plaintiff’s untimely, informal attempt to amend answers to interrogatories months after the discovery end date, by first identifying Dr. Berman in her pretrial exchange with the defendants, was properly disregarded by the trial court. The plaintiff’s inclusion of Dr. Berman as an expert in the pretrial exchange, months after the end of discovery, did not cure her discovery violation.

The Appellate Division pointed out that even though Dr. Berman was not permitted to testify, the plaintiff was able to present other expert testimony as to the nature and extent of her injuries and the proximate causation of her injuries. Thus, the Court concluded that barring his testimony did not unfairly prejudice the plaintiff. Accordingly, the Appellate Division upheld the trial court’s ruling, barring Dr. Berman’s testimony at trial.

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Betsy G. Ramos

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.

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