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Lawyers wondering whether to videotape experts as a precaution should consider what just happened in Morris County, N.J. A plaintiff who claimed he lost $400,000 because an expert failed to show up and testify to a jury put his attorneys and the expert on trial for negligence. Plaintiff Eric Kranz sued orthopedist Arthur Tiger of Dover, N.J., for simple negligence and pursued lawyers Noel Schablik of Parsippany, N.J., and Harold McGovern of Newton, N.J., for malpractice. He claimed their part in a September 1999 scheduling mix-up impelled him to accept a settlement for less than what a jury would have granted. On Dec. 1, Superior Court Judge W. Hunt Dumont dismissed the malpractice case, Kranz v. Tiger, MRS-L-3661-00, because the mix-up wasn’t Tiger’s fault. The lawyers hadn’t violated any professional standards, nor had Kranz proved that the nonappearance cost him money, the judge ruled. But the controversy survived long enough for a three-week trial that almost went to a jury. It put the professionals’ busy practices on hold and exposed them to six-figure losses, plus counsel fees. They face an appeal. Though the professionals won, many of Dumont’s legal rulings during the case reinforce the principle that the nonappearance can be negligence under the right circumstances. The two reported cases on the issue, in 1971 and 1988, were about treating physicians whose failure to show up for trial were considered violations of their professional or contractual duties to patients. This one was about an expert who didn’t appear. McGovern says the lesson is simple: If you don’t videotape for strategic reasons, get the client to sign off on the decision in writing. Andrew Kyreakakis, a Bloomfield, N.J., solo who represented the malpractice plaintiff in the case, adds, “You show 1,000 lawyers the facts in this case and 990 of them will say, ‘I should have videotaped.’” DEFENDANT’S BANKRUPTCY DELAYS SUIT Plaintiff Kranz is a former police lieutenant from Blairstown in Warren County, N.J., who achieved notoriety in 1982 as the chief investigator of an unsolved crime, the case of “Princess Doe,” a murder victim found in Blairstown and never identified. Ten years later, Kranz was an electrician installing cable for Sammons Communications of New Jersey. On April 8, 1992, while working in an apartment building in Morristown, a fire escape tread gave way, causing him to fall and suffer serious leg and back injuries. Kranz turned to McGovern and Schablik to pursue a negligence case against the owner of the apartment building. They had reason to be optimistic. Tiger wrote an expert opinion saying Kranz was totally disabled, and the defendants had $1 million in coverage. But the matter dragged on after the defendant filed for bankruptcy. By 1999, trials had been adjourned almost 20 times. As far as Presiding Civil Judge David Cramp was concerned, enough was enough. He told counsel in a June 24, 1999, letter that the case would not be adjourned again, “especially for the reason that an expert is unavailable. In order to assure that your experts are available, we strongly suggest that you videotape the testimony of the experts.” Schablik and McGovern apparently weren’t concerned. Orthopedist Tiger, a veteran of hundreds of forensic expert assignments, is not only considered to be a persuasive witness, particularly for plaintiffs, he has a reputation for accommodating lawyers who hire him, attorneys in the case say. Nevertheless, a crisis over Tiger’s appearance surfaced when the trial started. His office called the day before he was to testify to say he couldn’t appear because of a scheduled trip to London. That was a cruel blow. On notice that an adjournment was out of the question, the plaintiff’s lawyers accepted a deal that left Kranz with $285,000 net after $100,000 to the lawyers and $115,000 for a worker’s compensation lien. Kranz, livid that the case hadn’t gone to the jury and convinced he could have gotten more, sued Tiger. The doctor, in turn, sued the lawyers as third-party defendants, saying it was their fault for what happened and Kranz later added the lawyers to his suit, too. EXPERT: ‘I WAS AVAILABLE’ As it turned out, the evidence suggested that Tiger was available. His office manager informed Schablik that Tiger would be unavailable for his scheduled appearance on a Tuesday because he was leaving for London on a Wednesday. But the evidence also showed that Tiger had told McGovern previously that if there were ever a problem, he would respond to a direct call and be available in a pinch if necessary. Tiger was in New Jersey and available to testify on Tuesday if he had gotten the call, he told the jurors in the malpractice case. “They panicked and settled the case,” he said in an interview last Wednesday. “I was available.” During the three-week trial before Dumont, plaintiff’s lawyer Kyreakakis presented evidence that Kranz’s injuries were as serious as Tiger said they were in 1994, and that if Tiger had testified at the underlying trial in 1999 and the case had gone to a jury, Kranz would have come away with the $1 million of the slip-and-fall defendants’ coverage. Cramp’s warning letter, plus their duty as professionals, required the lawyers to videotape Tiger’s testimony in advance. Dumont disagreed. He dismissed the case against the lawyers, finding there was no legal standard that requires videotaping of experts who are expected to appear in court. He found that the medical evidence showed that Kranz’s settlement was fair and reasonable. As for Tiger, the judge found that because the doctor was indeed available to testify, despite the mix-up, he couldn’t be held liable for not showing up. “In hindsight, it would have been better if I had conferred with my client that we weren’t going to videotape Tiger and say why,” McGovern said in a brief interview. VIDEOTAPE GIVES DEFENSE A PREVIEW McGovern says he didn’t videotape for the same reason most lawyers eschew the practice. Videotaping in anticipation of presenting “canned” testimony allows the other side to depose the witness and learn the ins and outs of an opinion and prepare the opposing expert better. The lesson of his case is, “Make sure you discuss it with your client and that he or she is fully aware of the decision and that they consent to it,” he says. Some lawyers are fond of videotaping. While it is generally viewed as a costly measure, it’s actually cheaper in the long run, says Raymond Gill Jr. of Woodbridge, N.J.’s Gill & Chamas. That’s because doctors will charge less for a video session held at their convenience after hours than for testifying live during a working day, Gill says. The new civil court rules, loosely known as “best practices,” have increased the pressure on lawyers to videotape because the rules sharply limit the number of adjournments that can be granted for expert nonavailability. Even before the new rules, there was a judicial culture change that called for closer attention to calendars, says George Conk, of South Orange, N.J.’s Tulipan & Conk, an expert in legal malpractice cases. “The inflexibility in the rule has created a new set of problems,” like the one highlighted in the Kranz case, he says. Schablik’s lawyer, Mark Tallmadge of Florham Park, N.J.’s Bressler, Amery & Ross, says the evidence in the case showed, however, “If the witness assures you he is available live, it’s not a practice to have a backup video. It’s too expensive. There is no standard about videotaping experts when they are supposed to be available to testify live.” It’s not likely that a case like Kranz’s will arise again because it’s rare for dissatisfied litigants to sue their experts, Tallmadge says. The few cases that have received notoriety in recent years are about substandard performance by experts, not failure to appear. Courts in some states have expressed concern about the chilling effect of suits on experts’ candor and have made experts immune from civil suit for what they say in testimony. In New Jersey, there is no such bar. Such cases are “not common, but not unique,” Tallmadge says. In Massachusetts last month, a judge imposed thousands of dollars in sanctions on Fred Hochberg, a neurologist found to have misrepresented a medical study in defense of a doctor. Whether a doctor’s malpractice insurance covers “expert malpractice” is an open issue in New Jersey. Tiger’s carrier, MIIX, provided a defense but reserved the right to deny coverage. If Tiger had been found liable for damages, he and the carrier would have been embroiled in a declaratory judgment action, says his counsel at the trial, Craig Combs Jr. of Morristown, N.J.’s Giblin & Combs. While malpractice as an expert seems to be different from malpractice as a treating physician, it could be argued that testifying is an integral part of being a doctor these days, especially for orthopedists like Tiger, Combs says. “The argument is that being sued for not showing up for court would come under the negligence aspect of his practice,” Combs says. It’s not going to be a common problem because “generally speaking, the medical profession is pretty good at showing up and testifying.” Tiger says that because of his experience, he now gives his cell phone number to all lawyers, not just those who ask for it, and confirms dates for testimony in writing. “I try to cover my ass a lot more,” he says.

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