KAREN SCHWARTZ v. GERARDO GOLDBERGER M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1034-12T1

KAREN SCHWARTZ and SHELDON

SCHWARTZ, her husband,

Plaintiffs-Appellants,

v.

GERARDO GOLDBERGER, M.D., and

CENTRASTATE MEDICAL CENTER,

Defendants-Respondents.

________________________________________________

May 20, 2013

Telephonically argued April 25, 2013

Before Judges Hayden and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-504-09.

John R. Connelly, Jr., argued the cause for appellants (Drazin & Warshaw, P.C., attorneys; Mr. Connelly on the brief).

Richard A. Amdur, argued the cause for respondent Gerardo Goldberger, (Amdur, Maggs & Shor, P.C., attorneys; Mr. Amdur on the brief).

Lauren H. Zalepka, argued the cause for respondent Centrastate Medical Center (Ronan, Tuzzio & Giannone, attorneys; Ms. Zalepka on the brief).

PER CURIAM

Plaintiffs Karen and Sheldon Schwartz1 appeal from the October 1, 2012 Law Division order granting the motion to dismiss made by defendants Gerardo Goldberger and Centrastate Medical Center. We affirm.

The relevant facts are undisputed. On February 9, 2007, plaintiff came under the medical care of Goldberger, an orthopedic surgeon at CentraState Medical Center, for an injury to her foot. In 2008, she moved to Florida, where she began treatment with Myles Samotin, an orthopedist. On January 29, 2009, plaintiff filed a civil complaint against both defendants for medical malpractice, claiming permanent injury to her foot. Samotin became plaintiff's expert witness and provided a report stating that Goldberger's treatment deviated from the accepted standard of care, thereby causing injury to plaintiff.

During the discovery period, plaintiff s expert participated in a deposition in February 2011. Before the trial scheduled for May 2011, the expert informed plaintiff's attorney that he was unwilling to come to New Jersey for the trial or to participate in a de bene esse deposition. Thereafter, the trial was scheduled peremptorily for September 17, 2012.

On the scheduled trial date, plaintiff moved for permission to read the discovery deposition of its expert to the jury to prove plaintiff s claim of medical negligence. Defendants vigorously opposed the motion. The judge denied it. Plaintiff then asked for an adjournment to obtain another expert. The judge denied that request because the trial was scheduled peremptorily and plaintiff had known since May 2011 that her expert witness would not co-operate. As a result, plaintiff informed the judge she was unable to present expert testimony to support her medical malpractice claims. Defendants immediately moved to dismiss plaintiff s case, which the judge granted. This appeal followed.

On appeal, plaintiff contends that the judge erred in dismissing the case because her expert's deposition testimony was admissible under Rule 4:16-1 and N.J.R.E. 804(b), since he was outside of the jurisdiction and unavailable. We find no merit in this argument.

The law concerning use of an expert witness s deposition at trial is well-settled. Rule 4:14-9 controls depositions of experts for use at trial in lieu of live testimony. Such depositions must be videotaped before they can be used at trial, with certain exceptions not applicable here. R. 4:14-9(e). Moreover, this rule controls the admission of experts testimony, whether or not they are within the jurisdiction. Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230, 254 (App. Div. 1988).

The general admissibility of depositions in the same action is covered in Rule 4:16-1(c), which provides in pertinent part:

Except as otherwise provided by R. 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition . . . if the court finds that the appearance of the witness cannot be obtained because . . . [he] is out of this state . . . provided, however, that the absence of the witness was not procured or caused by the offering party.

[Emphasis added.]

Thus, Rule 4:16-1(c), relied on by plaintiff for admission of its expert s deposition testimony, clearly excludes from its coverage "the use of discovery depositions of experts as substantive evidence in lieu of live testimony." Avis Rent-A-Car, Inc. v. Cooper, 273 N.J. Super. 198, 203 (App. Div. 1994).

Moreover, plaintiff s claim that the expert s unavailability, since he is beyond the reach of this jurisdiction, permits the deposition to be used pursuant to N.J.R.E. 804 is equally unpersuasive. N.J.R.E. 804(b)(1) provides that the deposition testimony of a witness may be introduced at trial if the witness is unavailable. N.J.R.E. 804(a) provides that a witness is unavailable if the proponent is unable by service of process or other reasonable means to obtain the witness s attendance at trial. Again, this does not pertain to expert witnesses' availability. [E]xpert witnesses are not unavailable simply because they are not subject to service of process. Thompson, supra, 229 N.J. Super. at 252. The reason for treating expert testimony differently than lay witnesses is clear-cut. As we explained in Thompson:

[W]hen a fact witness is unavailable a unique knowledge of the facts will be lost unless the prior testimony is allowed. But, . . . an expert witness generally has no knowledge of the facts and even if one expert is unavailable, there is no need to use the previous testimony to present the evidence because there usually would be other experts available to give similar testimony orally.

When an expert to support the litigant s position is found, it behooves counsel to consult with the expert witness to review the facts, examine the record and discuss the theory of the claim or a defense of the client. At the same time, it is the responsibility of trial counsel to discuss . . . voluntary attendance at trial. If the expert is beyond the jurisdiction of the court to compel attendance at trial, it is the responsibility of the party offering the expert to ascertain the willingness and availability of the expert to appear at trial. . . . Since the expert is under the control of the offering litigant, due diligence must be used to secure the attendance of the witness at trial.

[Id. at 252-53 (citations omitted).]

While Samotin has declined to attend the trial or participate in a de bene esse deposition, he is voluntarily absent but not unavailable. Accordingly, as neither Rule 4:16-1 nor N.J.R.E. 804 support plaintiff s request to use the expert s deposition as substantive testimony, we conclude that the trial judge properly denied admission of plaintiff's expert deposition.

Affirmed.

1 We will henceforth refer to Karen Schwartz singularly as "plaintiff" since her husband Sheldon Schwartz is joined per quod.