The New Jersey Supreme Court recently denied a petition for certification in Blessing v. Chiu, effectively upholding the Appellate Division’s per curiam reversal of a trial court order barring the plaintiff’s testimony pursuant to cognitive impacts. In denying the certification, the Appellate Division ruled that the trial judge’s denial of the plaintiff’s right to testify amounted to an abuse of discretion. The result shows the importance of evaluating not only deposition testimony when evaluating liability and damages exposure, but also the deponents themselves.

In this case, the plaintiff (Blessing) underwent an endoscopic procedure in December 2010. The defendant (Dr. Chiu) was acting as an anesthesiologist. During the procedure, the plaintiff’s oxygen saturation rate began to decline. The oxygen saturation rate dropped again, despite the defendant performing procedures intended to alleviate airway obstructions. At some point, the plaintiff went into respiratory arrest, causing him to be deprived of oxygen for approximately eleven minutes. The plaintiff suffered cognitive defects and remains significantly compromised, requiring long-term care.

At trial, plaintiff’s counsel sought to have Blessing testify regarding his inability to perceive and recall ordinary events. During an evidential hearing, the trial judge found that the plaintiff understood the meaning of taking an oath to testify, the importance of telling the truth, and the repercussions of false testimony. The judge nonetheless barred the plaintiff’s testimony, ruling that his inability to recite his age or the year would prejudice a jury over the probative value it was intended to offer. The trial ultimately resulted in a no-cause verdict against the plaintiff.

On appeal, the New Jersey Superior Court Appellate Division ruled the trial judge abused his discretion in barring the plaintiff’s testimony, and reversed and remanded for a new trial. The Court reasoned that since the plaintiff was offered to testify to show the extent of his injuries relating to the alleged negligence, which would have contradicted testimony from defense witnesses to the contrary, the probative value of such testimony would have outweighed its prejudicial nature. The jury would therefore have the opportunity to hear probative testimony from a cognitively-impaired plaintiff.

This case epitomizes the need to evaluate not only a deponent’s testimony, but also the deponents themselves as well as how they will appear before a jury of their peers. Sympathetic witnesses can alter the scope of an entire trial, and must be on the client’s radar when it comes to liability and damages exposure evaluations.

Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto by email with any questions.