McLean v. Liberty Health System, A-1793-11T4; Appellate Division; opinion by Ashrafi, J.A.D.; decided and approved for publication March 28, 2013. Before Judges Fuentes, Ashrafi and Hayden. On appeal from the Law Division, Hudson County, L-3890-08. [Sat below: Judge Velazquez.] DDS No. 29-2-9407 [25 pp.]

Kevin McLean, then 16 years old, was stabbed in the thigh and arm. He was treated at Jersey City Medical Center and the wounds appeared to heal.

However, about six weeks later, Kevin complained of low back pain radiating into his left leg. Plaintiff Lisa McLean, his mother and administratrix of his estate, took him to the emergency room at Greenville Hospital. Neither Kevin nor his mother volunteered information about the stabbing injuries. Dr. Anwar Khan examined Kevin. He ordered urinalysis and an X-ray of the back, both of which were normal. He diagnosed Kevin with a back sprain, administered pain medication, and discharged him.

Two days later, the pain had worsened. Kevin returned to the hospital and again was seen by Khan, who ordered two CT scans without intravenous contrast. The scans were unremarkable. Khan diagnosed sacroiliitis and discharged Kevin with prescriptions for a pain reliever and a muscle relaxant.

Several days later, Kevin was admitted to St. Joseph’s Medical Center, where he went into cardiac arrest and became comatose. He eventually was diagnosed with methicillin-resistant staphylococcus aureus (MRSA).

The infection and cardiac arrest caused brain damage that paralyzed Kevin from the neck down. Two years later, he died of complications from his quadriplegia.

This medical-malpractice action, claiming that Khan was negligent in not discovering the MRSA, followed.

Although there is no record of a formal pretrial motion, defendant apparently moved to limit each side to one expert on any subject or specialty relevant to the case and the trial court informally indicated its inclination to grant the motion.

Therefore, although plaintiff was prepared to call James Bagnell, M.D., and Alan Schechter, M.D., both emergency department physicians, Bagnell was named as plaintiff’s expert on deviation from accepted standards of medical care for an emergency department physician.

However, during opening statements, Khan’s attorney remarked that "no emergency room physician with a possible exception of Dr. Bagnell … would ever have thought … that this is a patient with an infection." Plaintiff’s attorney moved for reconsideration of the limitation on expert witnesses, asking that the court allow Schechter to testify or inform the jury that plaintiff had a second emergency department expert. The court denied the motion, concluding that the statement would not affect the jury and that Schechter’s testimony was duplicative.

The jury returned a verdict that defendant was not negligent in his treatment of Kevin. Plaintiff appealed.

Held: The trial court erred in limiting expert witnesses to only one per side for each relevant field of medicine, in particular, on the crucial issue of deviation from accepted standards of medical care. The ruling was a mistaken exercise of discretionary authority to control the presentation of evidence at the trial. Nothing in the rules of evidence, or other laws or rules, gives a trial court authority to balance the number of witnesses presented by each side at the trial. Nor is the trial court authorized to bar crucial evidence merely on the ground that it duplicates another witness’s testimony.

The panel says a trial court would likely abuse its discretion if it imposed a limitation of only one witness for each side to testify on a factual matter that is vital to the resolution of a disputed issue. There is no reason that expert testimony should be treated differently with respect to vital opinions that go to the heart of the disputed issues. Especially where, as here, the jury’s truth-finding function required choosing between expert opinions, the parties should have been permitted to corroborate their experts’ testimony with other experts who reached similar conclusions.

Although a trial court has discretion under N.J.R.E. 403 to exclude expert testimony that may unduly delay or complicate the trial without sufficient probative value, such a ruling must be made formally, on the record, and in accordance with the rules of evidence. The informal procedure used in this case is disapproved.

The panel notes that its holding does not preclude a trial judge from excluding expert evidence when its cumulative nature substantially outweighs its probative value. Rather, it holds that two expert witnesses on the central issue of liability in a medical-malpractice case do not per se reach the level of needless cumulative evidence that substantially outweighs its probative value.

Moreover, whatever discretionary authority the trial court may have had to limit each side to a single emergency department expert dissipated once defense counsel falsely told the jury that no emergency medicine expert save one would have considered an infection as the cause of Kevin’s symptoms. An attorney may not take advantage of a favorable evidentiary ruling and make statements that are contrary to facts that the other party was precluded from adducing.

Defense counsel’s false assertion struck at the core of the dispute. It required a response, which plaintiff was prepared to give. The court should have allowed plaintiff to present Schechter as an expert witness.

Plaintiff also contends that the trial court erred in denying her motion for a directed verdict on apportioning of damages between defendant’s alleged negligence and the pre-existing infection. The panel says the issue is moot because the jury did not reach any question on the verdict form on proximate causation and its apportioning. It nevertheless comments on the issue because it may be presented on a retrial.

Under Scafidi v. Seiler, 119 N.J. 93 (1990), plaintiff had the burden of proving that defendant’s negligent diagnosis and treatment increased the risk of the injuries and death caused by the infection, but defendant had the burden of proving an appropriate apportionment of proximate causation in terms of percentages.

The trial court appropriately viewed the defense case as contending that the jury should allocate 100 percent proximate causation to the pre-existing condition and 0 percent to defendant’s alleged negligence. Thus, the court correctly denied plaintiff’s motion for a directed verdict on whether the pre-existing condition was the proximate cause of Kevin’s injuries and death. However, defendant presented no evidence to satisfy the defense burden of proof on apportionment of proximate cause in any different percentages.

Plaintiff correctly argues that a question asking the jury to determine percentages of proximate causation was not warranted on the evidence presented. Instead, the jury should only have been asked whether plaintiff proved that the increased risk of harm resulting from defendant’s negligence was a substantial factor in causing Kevin’s injuries and death.

For appellant — Drazin & Warshaw (John R. Connelly Jr. on the brief). For respondents: Liberty Health System and Greenville Hospital — Wahrenberger & Pietro (Judith A. Wahrenberger of counsel; Lindsay B. Beaumont on the brief); Khan — James B. Sharp & Associates (Sharp and Peter Espey on the brief).