T.L. AND M.L. VS. JACK GOLDBERG, M.D., ET AL.
A-5544-14T1
In this medical malpractice action, defendant's trial testimony concerning reliance on a medical publication in treating plaintiff was materially different from his denial during discovery of any knowledge of such literature. The court's majority holds defense counsel's failure to discharge his duty of candor to the court and counsel by disclosing the anticipated material change in defendant's testimony resulted in plain error, and the trial court erred by denying plaintiff's motion for a new trial.
The dissent concludes counsel's failure to object to defendant's testimony was part of a deliberate trial strategy, as the publication at issue supported plaintiffs' theory of the case. Considered in the context of the extensive expert testimony presented during a lengthy trial, defendant's testimony about the medical article did not constitute plain error, and the trial court did not err by so holding when it denied plaintiff's motion for a new trial.
