September 22, 2009

On August 6, 2009, in Drinkard v. Hernandez (“Drinkard”) (unpublished opinion), the Appellate Division of the Superior Court of New Jersey concluded that the trial court abused its discretion when it barred the testimony of the defendant’s medical expert (an orthopedic surgeon, Dr. Bachman) at the time of trial. Plaintiff sought to bar the expert on the basis that the doctor did not personally review the MRI films he was commenting upon.

At the time of the Dr. Bachman’s de benne esse deposition, he testified that in addition to taking plaintiff’s medical history and examining her, he reviewed her medical records and reports of diagnostic studies, such as MRI reports, although he did not personally read plaintiff’s MRI films. Dr. Bachma testified that the MRI revealed a small disc herniation, but that the herniation may not have been a result of the subject accident as plaintiff alleged. He also found that the MRI of plaintiff’s lumbar spine did not indicate that she had a pinched nerve, and that pursuant to his examination, the plaintiff did not have any evidence of radiculopathy.

After Dr. Bachman was deposed, plaintiff’s counsel filed a motion in limine to bar his testimony at the time of trial, relying upon Brun v. Cardoso, (“Brun”)390 N.J.Super. 409 (App. Div. 2006) (which held that plaintiff’s treating physician, a chiropractor, could not testify about MRI findings; rather, a radiologist qualified to read the films would have to be called as a witness to testify because the chiropractor was not qualified to interpret the films. Thus, the MRI report could not be “bootstrapped” into evidence through the testimony of the chiropractor.) The plaintiff in Drinkard argued that Brun made the radiologist’s report of MRI findings inadmissible hearsay and must be subject to cross-examination. The defense countered that plaintiff’s reliance on Brun was misplaced because Brun concerned different interpretations of what an MRI revealed, which was not the case here given that Dr. Bachman did not dispute the diagnosis, but only the proximate cause of the diagnosis reflected by the MRIs.

The trial court granted plaintiff’s motion and ordered that Dr. Bachman’s deposition testimony be barred at the time of trial. The matter proceeded to trial, and the jury returned a $254,000 verdict for the plaintiff. After the court denied defendant’s motion for a new trial, the defendant filed an appeal contending that the trial court erred when it granted plaintiff’s motion in limine to bar Dr. Bachman’s testimony.

In reversing, the Appellate Division in Drinkard found that Brun was distinguishable because the defense was not seeking to establish the substance of the MRI report of a non-testifying doctor through Dr. Bachman. Rather, in Drinkard, the radiologist’s findings would have been presented to the jury through the testimony of plaintiff’s medical experts prior Dr. Bachman’s testimony. Thus, Dr. Bachman was entitled to rely upon the prior trial testimony of plaintiff’s experts regarding the MRI report. Lastly, the Court noted that Dr. Bachman’s opinions were not limited to conclusions drawn from the MRIs, but was also based on his years of experience as a board-certified orthopedic surgeon.

Jennifer L. Reed is an associate of Hill Wallack LLP in the Princeton office where she is a member of the Litigation Division and the Trial & Insurance Defense and Insurance Coverage Practice Groups. Ms. Reed focuses her practice in the defense and representation of insurance companies and their insureds in complex claims and litigation.