An orthopedic surgeon who was suspended by a professional organization after the law firm that hired him as an expert witness used what he claimed was an unfinished expert report during a settlement conference has won a $392,000 verdict against the firm and the organization, a lawyer for the doctor has said.
On April 27, following a 12-day trial and about four hours of deliberations, an eight-member jury unanimously handed down the verdict in favor of plaintiff Dr. Steven Graboff in the courtroom of U.S. District Judge Joel H. Slomsky of the Eastern District of Pennsylvania.
According to court papers in Graboff v. The Colleran Firm , Graboff was hired by attorney Francis T. Colleran of The Colleran Firm in Philadelphia to serve as an expert witness in a medical malpractice case captioned Jones v. Meller in which the plaintiff, a 66-year-old diabetic, blamed two doctors for failing to prevent infections that ultimately required an above-the-knee amputation.
In his draft report, Graboff faulted two doctors — Alan Hibberd and Menachem Meller — for failing to recognize that wires installed in Paul Jones’ leg during a surgery were harboring a persistent infection and should have been removed, according to court papers.
But Graboff claimed that he cautioned Colleran that his report was preliminary and that he needed to see more of the medical documentation, including radiology reports, before rendering his final opinion, court papers said.
Graboff’s suit, filed April 16, 2010, alleged Colleran ignored those warnings and, without notifying Graboff, “whited out” the words “draft report” in order to use the document in a settlement conference.
Colleran secured a settlement for Jones, according to court papers, but Graboff’s suit alleged that Colleran’s use of the draft report triggered new problems when Graboff received a letter from defendant American Academy of Orthopaedic Surgeons that said Meller had initiated proceedings against Graboff for violations of its “standards of professionalism.”
In hearings before the AAOS, Graboff claimed he was thwarted in his attempts to present a complete defense in which he would have explained the report was merely a draft and had been misused and altered by Colleran, according to court papers.
But the AAOS refused to accept some of Graboff’s evidence, the suit alleged, and ultimately suspended Graboff for two years and published news of the suspension in its newsletter, “AAOS Now.”
Graboff’s suit alleged breach of contract on the part of Colleran, his firm and the AAOS, as well as defamation on the part of the AAOS.
The AAOS argued in court papers that Graboff did not assert the defense that his expert report was only a draft until about six weeks before the AAOS Committee on Professionalism’s hearing regarding Meller’s grievance took place.
Colleran and his firm also alleged in court documents that Graboff made no mention of this defense in his initial written response to Meller’s grievance with the AAOS.
“It was not until five months after receipt of Dr. Meller’s grievance, and three months after the submission of Dr. Graboff’s written response to the AAOS that Dr. Graboff contacted the AAOS by letter dated Sept. 18, 2008, and pointed out that the words ‘draft report’ had been removed from the first page of his Dec. 5, 2007 report,” Colleran and his firm said in court papers. “That being said, even in his supplemental submission to the AAOS, he did not recant the conclusions in the December 2007 report criticizing Dr. Meller.”
The AAOS said in court papers that the committee questioned both Meller and Graboff during its hearing and that Graboff gave conflicting testimony.
“Although Dr. Graboff told the committee that his report was only a ‘draft,’ and that attorney Colleran had removed the words ‘Draft Report,’ Dr. Graboff nonetheless initially stood by his opinion that Dr. Meller was negligent and had violated the standard of care,” the AAOS said in court papers. “During questioning, however, Dr. Graboff contradicted himself and admitted that he had not previously reviewed the X-rays or CT-scan films, but now that he had seen them at the hearing, he no longer believed that Dr. Meller was negligent or violated the standard of care.”
The AAOS also said in court papers that, following the hearing, the committee found that Graboff had committed a number of professional violations, including providing false expert testimony, failing to give fair and impartial expert testimony, failing to consider accepted standards when evaluating Meller’s care and improperly condemning Meller’s performance.
Graboff alleged in court papers that after the AAOS published news of his suspension on the Internet, his “credibility as an expert was destroyed.”
According to court papers, Graboff lost existing contracts to serve as an expert witness, stopped receiving referrals from three insurers and was threatened with legal action by an attorney in another personal injury case who believed Graboff’s suspension had caused him to lose the case.
Ultimately, the federal jury entered separate judgments of $196,000 each against the AAOS and The Colleran Firm, according to court records.
Graboff’s attorney, Clifford Haines of Haines & Associates in Philadelphia, told The Legal on Tuesday that there were some “contentious moments” during the trial but he believed it was Graboff’s nearly three-and-a-half days on the witness stand that ultimately swayed the jury.
Haines said he was pleased with the verdict because it will allow Graboff to continue his work as an expert witness.
“I’m delighted in the outcome because it gave Dr. Graboff the ticket he needs to be able to testify in a courtroom and there are no reasonable blemishes on his character or his ability as an expert witness,” he said. “That taint has been lifted from him, which is the most significant thing he could have gotten from this lawsuit.”
Counsel for Colleran and his firm, Daniel Sherry at Marshall, Dennehey, Warner, Coleman & Goggin in King of Prussia, Pa., declined to comment.
Counsel for the AAOS, Marc Wolin at Saiber LLC in Newark, N.J., could not be reached for comment at press time.
Zack Needles can be contacted at 215-557-2493 or email@example.com. Follow him on Twitter @ZNeedlesTLI. •