Judge Orders a Single Trial for Claims Against Expert, Referral Service, & Attorney

    A New Jersey federal district court recently denied motions to sever first-party and third-party actions and to bifurcate a long-fought medical malpractice case. This complex case stems from a dismissed initial lawsuit due to a withdrawn medical expert witness. Following years of subsequent lawsuits and motions, the judge determined it would be most efficient and least prejudicial to try all the related actions together. Here, we’ll walk through the complicated legal procedures leading to this recent “better together” ruling.

    The Initial Malpractice Case

    The estate of Patricia Grieco sued Ms. Grieco’s surgeon for medical malpractice after she died from a pulmonary embolism following a bariatric lap-band procedure in 2007. Attorney Joseph Collini represented the family in the case, Estate of Grieco v. Schmidt, et. al. Collini also retained the services of National Medical Consultants PC (NMC), a litigation expert referral service. He sought assistance in finding a medical expert.

    NMC connected the plaintiff with a bariatric surgery expert witness. However, five days before pretrial hearings and 17 days before jury selection, the expert refused to testify at trial. Her withdrawal, “allegedly resulted in the dismissal of the Schmidt action with prejudice.”

    Another Lawsuit Post Dismissal

    After the case dismissal and their expert’s abrupt exit, the plaintiff filed an action against the expert services company, NMC, its president, and the expert herself. The current lawsuit alleges breach of contract and negligence against NMC. It further alleges professional malpractice, breach of fiduciary duty, and gross negligence against the bariatric surgery expert.

    In response, the defendants filed a third-party complaint against the plaintiff’s attorney. This complaint alleged contribution and indemnification. The defendants further alleged that the attorney’s mishandling of the malpractice case and failure to secure a new expert makes him a joint tortfeasor.

    The Push for Separate Trials

    Given the complexity of the crisscrossing claims, the plaintiff sought to separate the third-party claims for contribution and indemnification from their claims for negligence, malpractice, breach of fiduciary duty, and gross negligence. The plaintiff argued that the third-party actions are “conceptually secondary” to the primary case and are only viable actions after the plaintiffs receive a judgment.

    Meanwhile, NMC cross-moved for bifurcation of the underlying Schmidt action from the plaintiff’s first-party claims. The expert also joined in on this bifurcation effort. NMC says bifurcation is the “most effective means” for plaintiffs to show actual damages—the “case within the case.” NMC along with the expert explained that splitting the Schmidt action and the first party claims is the most efficient option and would eliminate further litigation.

    Judge Says “Better Together”

    The presiding judge denied both the severance and bifurcation motions. Unlike the case’s parties, he saw efficiency and protections against prejudice in trying all these claims together. Judge Edward S. Kiel denied the severance motion using a four-factored test set out in prior cases. The four factors in granting a motion for severance are:

    1. The issues sought to be tried separately are significantly different from one another
    2. The separable issues require the testimony of different witnesses and different documentary proof
    3. Severance would prejudice the party that opposes the severance
    4. Not granting severance would prejudice the party seeking severance

    Here, Judge Kiel did not find any of these factors applied. “[A]t bottom this lawsuit is about who is responsible for the dismissal of the Schmidt action,” he explained. He also swatted down the plaintiff’s assertion that the third-party claims for indemnification and contribution “are not ripe because such claims do not accrue until judgment is entered” as rejected under Gonzalez v. New Jersey.

    Judge Kiel rejected the defendants’ claim that bifurcation of the Schmidt action would “conserve judicial resources” and “further judicial economy.” Instead, he says a separate trial of the Schmidt action “would be inefficient, impractical, and a waste of judicial resources.”

    Exiting Experts Beware

    Experts will want to be cautious about withdrawing from cases this late in the game. The expert in this case faces some potentially daunting liability for her last-minute exit. Devising and acting on strategies such as locating possible substitutes may be good moves for experts and expert services that find themselves unable to make good on the promise to provide expert services.