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By: Thomas Paschos, Esq.
Thomas Paschos & Associates, PC
Haddonfield, New Jersey

In Castello v. Wohler, 2016 WL 3369247 (N.J. App. June 20, 2016), Castello first visited Wohler because she was having difficulty breathing. Wohler discovered that Castello's stomach was in her chest as opposed to its usual place below the diaphragm and immediately performed a hernia operation in June 2010. When Castello experienced post-operative discomfort, Wohler performed an exploratory surgery to repair a tear to the gastroesophageal junction and discharged her to a rehabilitation facility. More complications led to Castello's transfer to a Pittsburgh hospital, where an esophageal surgeon diagnosed an esophageal leak and performed various medical procedures, including an esophagectomy, thoracotomy and laparotomy.

In October 2011, Castello filed a malpractice complaint alleging that Wohler had negligently performed the hernia repair, leading to multiple additional medical procedures and substantial pain and suffering,

Plaintiff retained Dr. John E. Edoga, a general surgeon, to prepare an affidavit of merit (AOM) and expert report. Plaintiff's attorney used a copy of Dr. Edoga's curriculum vitae he had in his office and simultaneously served defendant with the complaint, AOM, and original CV.

In his AOM, Dr. Edoga stated he had been in "surgical practice for more than [thirty-five] years[,] which is set forth in my [CV] attached hereto." The original CV attached to the AOM reflected Dr. Edoga was an attending surgeon. Defendant's attorney waived the need for a Ferreira conference and signed a consent order waiving "any objection" to Dr. Edoga's qualifications.

In discovery, plaintiff's counsel produced Dr. Edoga's updated CV and expert report. The updated CV stated that Dr. Edoga was an attending surgeon since 1976. Defendant's counsel deposed Dr. Edoga and learned, contrary to the information in the AOM and original and updated CVs, he had been retired for approximately five years before the medical procedure in question was performed.

Defendant moved to dismiss for failure to comply with the statutory expert foundation requirement primarily arguing Dr. Edoga was unqualified to testify because he retired from the practice of medicine. The trial court granted the motion and denied re-opening of discovery.

On appeal, the court reversed as to the denial of discovery deadline extension.  The court held that because the expert did not actively practice at the time of the surgery he was disqualified.  He was not credentialed by a hospital to treat the condition at issue when plaintiff's claim arose nor was he board certified in defendant's specialty.  But the appeals court held that the trial court erred in not allowing plaintiff additional time to find a replacement expert.  The purpose of the AOM procedure is to weed out frivolous suits.  Here there was no evidence the suit was frivolous.  Evidence showed plaintiff's counsel tried in good faith to satisfy the requirements.  Counsel did not know the expert had retired.  In light of the strong preference for adjudication on the merits, the court concluded that an extension of discovery was warranted.