Change in Testimony at Trial Held not to be Reversible Error

In a recent opinion, the New Jersey Supreme Court held that a change in the trial testimony of a defendant-physician in a medical malpractice litigation did not warrant a new trial.   ​In the underlying trial, the physician's testimony deviated from that given in his discovery responses, including his deposition.  Plaintiff's counsel did not object to this deviation at trial, and ultimately a jury found in favor of the physician defendant.  The Appellate Division, in as split opinion, overturned the verdict and ordered a new trial.  However, the Supreme Court reversed the appellate court's decision, holding that there was no prejudice to Plaintiff in the failure of plaintiff's counsel to object at trial regarding the difference in testimony.  On the contrary, they noted that counsel for Plaintiff indicated it was "strategic and tactical" why no objection was made.  Specifically, Plaintiff's counsel believed that the changed testimony now favored the Plaintiff because the defendant-physician admitted to reviewing data from a clinical trial of the prescribed medication and same was rife with dangerous side effects.  Thus, Plaintiff's counsel believed that Plaintiff's position that the physician must have known the dangers prior to prescribing was supported by the testimony.  However, the jury ultimately denied compensation to the Plaintiff.  The Supreme Court's main focus was on whether or not the change in testimony prejudiced the Plaintiff. Citing to a prior decision named McKenney that the Appellate Division relied upon, the Supreme Court recapitulated that in McKenney the change in testimony was "egregious and clearly prejudicial" while in the matter at bar, the change was "arguably favorable" to the Plaintiff.  Consequently, the jury verdict was affirmed.  (T.L. v. Jack Goldberg, M.D.)