ESTATE OF BERNICE GOLDBERG v. MINOITYN et al

Filing 94

MEMORANDUM AND OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 8/10/17. 8/10/17 ENTERED AND COPIES MAILED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE OF BERNICE GOLDBERG,
by the Executor GARY GOLDBERG
Plaintiff,
v.
PHILIP NIMOITYN, M.D. et al.,
Defendants.

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CIVIL ACTION
No. 14-980

MCHUGH, J.

AUGUST 10, 2017
MEMORANDUM

This is a medical malpractice action brought under a tenuous theory of liability that was
rejected by a jury, leading to the present Motion for a New Trial.
Plaintiff’s theory was that his mother, Bernice Goldberg, 81 years of age and suffering
from a number of serious co-morbidities, died prematurely as a result of delay on the part of her
physician in inserting a percutaneous endoscopic gastrostomy (PEG) tube to assist in providing
her nutrition. The defense theory was principally rooted in principles of patient autonomy—Mrs.
Goldberg’s own refusal to authorize placement of the tube. But the defense also contended that
placement of the tube was contraindicated during the early days of the hospital admission that
led to Mrs. Goldberg’s death, because of a series of problems, which included an elevated
respiration rate, an elevated white blood cell count, bloody diarrhea, and the possibility of a
serious infection known as C. difficile. In addition, the defense expert cited aspiration
pneumonia as another contraindication to earlier placement of the tube. At trial, however, on
direct examination, that expert admitted that he had misinterpreted the date of certain records,
and as a result his reliance on aspiration pneumonia was therefore an error.

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Plaintiff, now proceeding pro se, contends that he was prejudiced at trial because this
admission constituted a “change” in the expert’s opinion leaving Plaintiff’s counsel surprised and
unable to cross-examine effectively. This argument lacks merit.
Mrs. Goldberg was admitted to Thomas Jefferson University Hospital a number of times
during the summer of 2011. The multiple records from these admissions were in some instances
hard to differentiate. Defendants’ expert, E. Gary Lamsback, M.D., made a serious error in his
review of those records. Dr. Lamsback identified the existence of aspiration pneumonia at the
time of Mrs. Goldberg’s final admission to Jefferson in mid-August. In fact, that diagnosis had
been reached during an earlier admission, also in August, and Dr. Lamsback confused the two:
the diagnosis he thought was rendered on August 19, was actually rendered on August 11 or 12.
In his report, Dr. Lamsback erroneously cited the existence of aspiration pneumonia as
one contraindication to placement of a PEG tube, and reiterated that opinion during his
deposition. Plaintiff contends that when the error was acknowledged at trial, his attorney was
unfairly surprised. The record squarely refutes this. When the objection was raised at trial, it
was clear that Plaintiff’s counsel, Steven Horn, has identified Dr. Lamsback’s error in advance of
trial. The critical portion of the colloquy at sidebar is as follows:
Mr. Horn: Right. And Judge, I struggled with this, whether I
should have made a motion – before yesterday. And every time I
thought about this case, I struggled with it because it’s such a
defective -- At the same time, now I don’t know what his
opinions are.
It is clear from this exchange that Mr. Horn was well aware of Dr. Lamsback’s mistake,
by virtue of his words “every time I thought about this case.” It is equally clear that Mr. Horn
contemplated filing some form of motion before trial, but chose not to. Plaintiff now seizes upon

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his counsel’s last statement in that colloquy—the assertion that “now I don’t know what his
opinions are”—as evidence of prejudice.
The contention that Plaintiff’s counsel was unaware of the expert’s opinion is
unsupportable. The opinion Dr. Lamsback rendered in court was the same as it was before trial:
there were medical contraindications to placement of a PEG tube until later in Mrs. Goldberg’s
admission, at a point where she was too weak to undergo the procedure. 1 The only thing that
changed at trial was that Dr. Lamsback was forced to admit that one of the bases for his opinion
was incorrect. Defense counsel, having identified the error, chose to address it on direct
examination of her witness.
The issue in dispute was hardly “outside the scope of the expert’s report.” To the
contrary, was squarely addressed in the expert’s report, just incorrectly. On that score, Plaintiff
was in no respect prejudiced by this turn of events; in the hands of a skilled cross-examiner, an
error like Dr. Lamsback’s is a gift. Few lines of cross-examination are more effective than one
which shows that an expert relied upon a fact or a premise that is demonstrably untrue. Indeed,
Dr. Lamsback was forced to confess his error on the stand in open court, was cross-examined by
Mr. Horn, and was further impeached with his deposition. Trial Tr. 6/29/2017 at 38–42, 43–45.
In short, as a result of this sequence of events, Plaintiff was placed in the fortunate position of
being able to demonstrate to the jury that one of the pillars of the opposing expert’s opinion was
false.
Applying the test established by the Third Circuit in DeMarines v. KLM Dutch Airlines,
580 F.2d 1193, 1201–02 (3d Cir. 1978), there was neither prejudice nor surprise. And not only
did Plaintiff have the ability to cure any “prejudice,” but the expert’s mistake actually provided
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In addition, the defense raised a strong argument that the insertion of PEG tube has little
impact on increased longevity.
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Plaintiff with a prime opportunity to attack both the validity of his conclusions and his
credibility. At all times, Dr. Lamsback’s opinion remained the same, but his ability to defend
that opinion was substantially undermined by his acknowledged error.
Consistent with the hyperbolic tone in which Plaintiff has litigated this case, he also
accuses defense counsel of suborning perjury for eliciting testimony that Dr. Lamsback’s error
was merely “typographical.” Although defense counsel’s characterization was disingenuous at
best, it hardly qualifies as perjury. Under both federal and Pennsylvania law, perjury requires the
misrepresentation of some material fact. Defense counsel’s weak attempt to minimize the
seriousness of Dr. Lamsback’s mistake had no substantive import, as the witness frankly
admitted that he was simply wrong. It was for the jury to decide how to assess the significance
of that error, and the credibility of the expert, and in doing so they had the benefit of the crossexamination conducted by Plaintiff’s counsel.
Plaintiff’s Motion for a New Trial will be denied. An appropriate Order follows.

/s/ Gerald Austin McHugh
United States District Judge

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