This is a medical malpractice appeal in which the trial judge ruled on a so-called "in limine" motion by defendant Paul P. Krikorian, M.D. just before the jury was to be chosen. In a pre-trial order the judge barred plaintiff's liability expert from testifying on the ground that he was relying on his own personal opinion and hence his report constituted a "net opinion." As plaintiff was thus left unable to prove his case on liability, his complaint was dismissed. We reverse and remand for trial.
Defendant physician treated plaintiff's mother in 1962 for obesity and depression, and prescribed various medications, including Tofranil, 25 mg. three times a day. The prescription provided for 100 pills with four refills. Plaintiff's mother took that drug as prescribed from September 1962 through January 1963, during which time she remained under defendant's care. During the course of treatment of plaintiff's mother, Krikorian performed one pregnancy test, reported as negative, on September 22, 1962. He never repeated that test, despite the fact that plaintiff's mother missed her December and January menstrual periods.
Plaintiff was conceived while his mother was on the prescribed Tofranil medication. He was born on July 2, 1963 with numerous birth defects, allegedly the result of his mother's ingestion of Tofranil. Plaintiff retained an expert who prepared a report which concluded that Krikorian's actions were below accepted medical standards and constituted a deviation from acceptable medical standards at the time he was treating plaintiff's mother. The report pointed out that she was in her childbearing years and defendant did not take adequate steps to assure that plaintiff's mother was not pregnant when he prescribed the drug, or consider her possible pregnancy thereafter and advise her of the dangers of an adverse reaction from the drug. Plaintiff's attorney submitted his expert's report dated
Plaintiff's expert was deposed and stated unequivocally in response to defense counsel's question that defendant violated "the standard of medicine which existed in 1962." The plaintiff's witness said in those depositions that it was essential for a doctor to question and inquire about pregnancy or possible pregnancy when a drug that is known to affect fetal development in the first trimester is prescribed. Defense counsel pressed the witness at the deposition with respect to the existence of the standard in 1962 and asked "can you prove that to me?" The witness answered:
The trial judge in the instant matter appeared at one point to erroneously consider the matter as a question of the competency of plaintiff's witness since he was not in medical school at the time of the alleged malpractice.
Plaintiff distinguishes Buckelew primarily on the grounds that it deals with proximate cause. He argues that the expert whose testimony was disallowed was offered only to establish a
In our view, defendant's reliance on the quotation, "evidential support, experiential or the like," from Buckelew is misplaced. Counsel relied on the requirement for evidential support, but such evidence is not limited to treatises or any type of documentary support. In Buckelew the Supreme Court concluded that it had been error for the trial court not to apply res ipsa loquitur. Ibid. The court there noted that for an opinion to be admissible under Evid.R. 56(2)(a), it must be based "primarily on facts, data or other expert opinion established at the trial...." 87 N.J. at 525. After pointing out that Parker v. Goldstein's underpinnings are no longer viable, Id. at 525 n. 3, the court then commented:
Obviously, the support for such expert opinion can be based on what the witness has learned from personal experience or from persons with adequate training and experience. Moreover, we point out that the quoted language refers directly to testimony of the plaintiff's expert in Buckelew who opined that "it is common knowledge within the medical community that the type of accident that took place in this case [accidental cutting of the bladder] does not ordinarily occur in the absence of the surgeon's negligence." Id. at 528. In Buckelew the court was concerned with the applicability of the res ipsa loquitur doctrine. Plaintiff correctly notes that the court in Buckelew did not find a "net opinion" and was discussing proximate cause and its application to the res ipsa loquitur doctrine, rather than imposing additional requirements before an expert could testify with respect to the appropriate medical standard of care. This is clarified by the language "mishap in question would not have occurred." Id. at 529.
It has long been established that an expert may rely on his own knowledge, as well as on facts supplied to him by others. Of course, "the weight to which an expert opinion is entitled can rise no higher than the facts upon which the opinion is predicated." Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (quoting N.J. Rules of Evidence Comment 7 to Evid.R. 56). See Parker v. Goldstein, supra (78 N.J. Super. at 484). See also Evid.R. 56(2). Obviously the expertise of a witness may be based on knowledge or experience acquired over a period of years. See Correa v. Maggiore, 196 N.J.Super. 273, 282 (App. Div. 1984).
A doctor who entered medical school after the asserted occurrence of the malpractice may still be able to express an opinion as to what accepted medical standards in the profession and in the community were at the time of the occurrence. Presumably text books and treatises used or available to the witness would have been available the year before he entered medical school or even earlier. Moreover, the expert is not required to produce a treatise to support his opinion. Aside
We have noted an increase in in limine rulings on evidence questions in recent times. Such rulings are often in the abstract and not in the context of facts adduced at trial. Requests for such rulings should be granted only sparingly and with the same caution as requests for dismissals on opening statements. See Passaic Valley Sewerage Com'rs. v. Geo. M. Brewster, etc., Inc., 32 N.J. 595, 605-607 (1960); Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J.Super. 300, 305 (App.Div. 1958).
We reverse and remand for trial.