The New Jersey Supreme Court won’t intervene in a medical malpractice case, already ordered for retrial, where the plaintiff originally was prevented from testifying based on the potentially prejudicial effect of his cognitive impairments.
The Appellate Division in April ordered a new trial in the plaintiff’s suit against his anesthesiologist after the first trial resulted in a no-cause verdict.
In an order dated Sept. 12, the Supreme Court denied the defendant’s petition for certification in the case, Blessing v. Chiu.
The plaintiff’s lawyer, David Fried of Chatham’s Blume Forte Fried Zerres & Molinari, said he is preparing to try the case a second time, with the plaintiff’s testimony.
“We’re glad the court accepted the Appellate Division’s decision,” he said.
The defendant doctor’s attorney, Timothy Crammer of Crammer, Bishop, Marczyk & O’Brien in Absecon, did not return a call about the certification denial.
In a decision last April 9, Appellate Division Judges Douglas Fasciale and Scott Moynihan held that Ocean County Superior Court Judge Mark Troncone erred in ruling that the plaintiff, Guy Blessing of Forked River, could not testify before the jury.
According to the decision, Troncone had ruled during the July 2016 trial that allowing Blessing to testify would be prejudicial to the defendant, Dr. Nicholas Chiu, because of the severe nature of Blessing’s cognitive impairments, which Blessing claims were the result of complications during surgery.
Blessing underwent an endoscopic procedure in December 2010, with Chiu acting as the anesthesiologist. During the procedure, the lawsuit claims, Blessing went into respiratory arrest and was deprived of sufficient oxygen for approximately 11 minutes. As a result, Blessing sustained severe brain damage and claims he now requires long-term care, the court said.
During the trial, Fried sought to have Blessing testify. Troncone barred the testimony at Chiu’s request because, he said, the testimony’s prejudice to Chiu would outweigh its probative value, per Evidence Rule 403.
The trial ultimately resulted in a no-cause verdict in Chiu’s favor.
Blessing appealed, and the Appellate Division reversed in a per curiam decision, deeming Troncone’s ruling an abuse of discretion.
In a per curiam decision, the Appellate Division said, “Relevant and probative evidence is often prejudicial to one party, and we ‘would ill-serve the cause of truth and justice if we were to exclude relevant and credible evidence only because it might help one side and adversely affect the other,’” quoting the state Supreme Court’s 1995 ruling in Stigliano v. Connaught Labs.
“Although the testimony may have been prejudicial to Chiu, it would have had probative value in the jury’s determination,” the appeals court judges said. “In other words, it would have not been substantially more prejudicial than probative.”
The appeals court sided with Chiu on one point: it rejected claims from Blessing that Troncone should have given the jury a charge about Chiu changing his testimony between his deposition and the trial to say that the length of one procedure was one to two minutes instead of five to seven minutes. There was no evidence, the appeals court said, that Chiu intended to create a false record. The panel did, however, say Chiu should have alerted the other parties to a change in the testimony.
The new trial has not been scheduled, and it is unclear whether Troncone will again be the presiding judge.