In a recent unpublished opinion, Onello v. Isa, 2019 WL 166300, Docket No. A 3382-16T4, the Superior Court of New Jersey, Appellate Division barred the testimony of a physician at trial who was not identified as a possible witness by Plaintiff, despite the fact that the physician examined Plaintiff for the purpose of determining her eligibility for personal injury protection (PIP) benefits following a motor vehicle accident. In upholding the Trial Court’s decision, the Appellate Court held that the Trial Court appropriately excluded the physician’s testimony as he was never identified by Plaintiff as an expert, and did not qualify as a “medical provider/treating physician” as his role was limited to examining Plaintiff as to her PIP benefits, only. Additionally, the Appellate Division cautioned that permitting a PIP independent medical examiner to serve as an expert may create a chilling effect on the prompt, payment of PIP medical benefits as it could create an incentive for the insurance carriers to decline payment.
As to the underlying facts of the case, on May 18, 2012, Plaintiff was rear ended by a motor vehicle being operated by Defendant. Plaintiff applied for, and was provided PIP benefits through State Farm Fire and Casualty Company (“State Farm”). To determine Plaintiff’s eligibility for PIP benefits, on October 15, 2012, State Farm arranged for an independent medical examination (“IME”) of Plaintiff with Dr. Mark Berman. As a result of the examination, Dr. Berman opined that while Plaintiff’s left shoulder, cervical spine, right hip and knee injuries were all causally related to the May 18, 2012 accident, her knee and cervical complaints had resolved. Additionally, Dr. Berman noted that Plaintiff had a pre-existing history of various complaints which were unrelated to the accident. Dr. Berman did not provide any medical treatment to the Plaintiff.
In 2014, Plaintiff filed a personal injury complaint asserting a claim of negligence against the Defendant driver, and subsequently asserted a claim for underinsured motorist benefits (“UIM”) against State Farm. In response to Form Interrogatories, Plaintiff provided that she intended to call as witnesses “all treating physicians” identified within the Answers to Interrogatories and depositions, together with any persons who would be revealed in discovery. During discovery, Defendant served a copy of State Farm’s PIP file, as an amendment to interrogatories, which included Dr. Berman’s report and provided that Defendant’s reserved the right to call as a witness any of the “medical providers” named in the records. None of the parties, including State Farm, specifically named Dr. Berman as a witness who may testify at the time of trial.
At the close of discovery, Plaintiff moved and was granted summary judgment on the issue of liability. Accordingly, the sole issue remaining was whether Plaintiff’s injuries were proximately caused by the accident as opposed to being pre-existing in nature. During pre-trial exchange, Plaintiff first gave notice that she intended to call Dr. Berman as an expert witness to testify at the time of Trial. In response, Defendants moved to bar Dr. Berman’s testimony at Trial, as Plaintiff had not previously named him as a fact or expert witness during discovery. After conducting a hearing pursuant to N.J.R.E. 104, the trial court barred Dr. Berman’s testimony at Trial. In doing so, the Trial Court concluded that permitting Dr. Berman to testify “would be akin to . . . trial by ambush.” The Trial Court reasoned that the mere fact that Dr. Berman conducted an examination for PIP benefit determinations did not, in and of itself, make him available as a witness as it deprived the defense an opportunity to to challenge or depose him during discovery. In denying Plaintiff’s Motion for Reconsideration, the Trial Court held that Dr. Berman did not fall within Defendant’s amendment which reserved the right to call the “medical care providers” identified within the PIP file to testify at the time of Trial, as Dr. Berman’s role was limited to examining Plaintiff as to the issue of causation. Following a nine-day jury trial during which Plaintiff presented four expert witnesses, two of whom opined on the issue of causation, the jury returned a unanimous “no-cause” verdict, concluding that Plaintiff’s alleged injuries were not causally related to the accident in question.
Plaintiff’s subsequent appeal of the Trial Court’s decision to bar Dr. Berman’s testimony was denied. In reaching its decision, the Appellate Division held that Plaintiff failed to timely amend her answers to interrogatories to identify Dr. Berman as required by Rule 4:17-7. The Appellate Division noted that even if the failure to identify Dr. Berman was inadvertent, the untimely identification of Dr. Berman as a witness surprised the Defendants and precluded them from an opportunity to rebut his findings during discovery. The Appellate Division also agreed that Dr. Berman was not a “medical provider”, as he did not provide any treatment to Plaintiff, and therefore did not fall within defendant’s catch-all language which designating all “medical care providers” identified in the PIP file. Finally, the Appellate Division noted that allowing a PIP IME doctor to be called as an expert witness without the appropriate disclosure “has the potential to thwart the important legislative goal of ensuing prompt payment of PIP medical benefits.” Bardis Bardis v. First Trenton Ins. Co. 199 N.J. 265, 278 (1999).
The Onello decision is significant as it illustrates the potential consequences of failing to abide by discovery rules and deadlines, including the identification of a witness whose relevance in the litigation may have otherwise been obvious. This decision highlights that litigants should not rely upon general, “catch-all” language when amending interrogatories with hopes that it would be sufficient to preserve a party’s ability to call any medical professional identified in the records. Rather, litigants should be cognizant of the manner in which they ultimately wish to present their case at Trial, and ensure that each witness is clearly identified. Moreover, given the Court’s narrow interpretation of who constitutes a “medical provider” in a PIP context, may also extend to other matters involving benefit determinations, such as workers compensation or disability applications. Indeed, while the Court did not explicitly bar the use of a PIP IME physician to serve as an expert in a subsequent tort action, its decision does suggest that it does not encourage this practice. As such, caution should be used by litigants as they prepare their case in discovery to ensure that favorable findings by independent physicians are corroborated by admissible experts to avoid being caught in the situation Plaintiff’s counsel in Onello was in.
 Russ M. Patane, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Russ can be reached at firstname.lastname@example.org.
 G. William Delaney, Esq. is an Associate in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. William can be reached at email@example.com.