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Flip-Flop Prior Testimony, No Problem (NJ)

June 21, 2019

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<p style="text-align: justify;">In the seminal case of <em>McKenney v. Jersey City Medical Center</em>, the court held that the plaintiff was entitled to a new trial when defense counsel failed to alert plaintiff’s attorney to a change in the treating doctor’s testimony from his deposition to the time of trial.</p>
<p style="text-align: justify;">The New Jersey appellate division recently revisited this important decision in<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2019/06/TL-v-Goldberg.pdf">TL v Goldberg</a>.</em>   In<em> TL</em>, the plaintiff filed suit against a treating physician for injuries she sustained by taking prescribed medication. At his deposition, the defendant-physician testified that he was unaware of any medical literature specific to the allegations.  In addition to this testimony, pursuant to an <em>in limine</em> motion, the court also barred the defendant from relying on any medical literature at trial that was not produced during discovery.</p>
<p style="text-align: justify;">At trial, the defendant testified that he was aware of a specific study related to the medication.  Plaintiff’s counsel moved for a new trial pursuant to <em>McKenney,</em> since the defendant’s trial testimony was materially different from his deposition testimony.  The appellate division denied the plaintiff’s request for a new trial, finding that the plaintiff was not prejudiced by the change in testimony.</p>
<p style="text-align: justify;">Attorneys in New Jersey still have a continuing obligation to disclose to the trial court and adverse counsel any anticipated material changes in a key witness’s deposition testimony. However, failure to do so does not necessarily mandate a new trial, unless a party is prejudiced by the material change.</p>
<p style="text-align: justify;">Thanks to Heather Aquino for her contribution to this post.  Please contact <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>

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