Opinion
DOCKET NO. A-0565-13T2
02-18-2015
RONALD B. JONES, Individually and as Executor of the Estate of Darlene B. Jones, Deceased, Plaintiff-Respondent, v. ANDREW M. ALLOY, D.O., Defendant-Appellant, and KENNEDY MEMORIAL HOSPITAL - STRATFORD DIVISION, KENNEDY HEALTH SYSTEM, UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY SCHOOL OF OSTEOPATHIC MEDICINE - NEWARK, SCHOOL OF OSTEOPATHIC MEDICINE - THE CENTER FOR AGING, RITCHELL R. DIGNAM, M.D., HALINA M. KEDZIORA, M.D., JOHN C. CHIESA, D.O., PRAMEELA M. PALLI, M.D., LOUIS H. BALSAMA, D.O., TERRIE B. GINSBERG, D.O., S. WARREN GROSS, M.D., ALFRED M. DIPIERO, D.O., and RICHARD F. LISZEWSKI, D.O., Defendants.
Jay J. Blumberg argued the cause for appellant (Blumberg & Wolk, L.L.C., and Crammer, Bishop & O'Brien, P.C., attorneys; Mary Ann C. O'Brien, on the briefs). Joshua Van Naarden argued the cause for respondent (Ross Feller Casey, L.L.P., attorneys; Mr. Van Naarden, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3681-07. Jay J. Blumberg argued the cause for appellant (Blumberg & Wolk, L.L.C., and Crammer, Bishop & O'Brien, P.C., attorneys; Mary Ann C. O'Brien, on the briefs). Joshua Van Naarden argued the cause for respondent (Ross Feller Casey, L.L.P., attorneys; Mr. Van Naarden, of counsel and on the brief). PER CURIAM
Defendant Andrew M. Alloy, D.O., appeals from a final jury verdict for plaintiff Ronald Jones, individually and as executor of the estate of Darlene B. Jones, his wife (decedent), rendered in this medical negligence matter. On appeal, among his challenges of error are the trial judge erroneously denied his motion for a new trial because plaintiff's summation exceeded the bounds of permissible argument and his request for inclusion of the medical judgment charge. On these two issues, we agree error occurred. Accordingly, we reverse, vacate the judgment, and remand for a new trial.
All of the other listed defendants named in the July 18, 2007 complaint were dismissed from the litigation at or before the time of trial.
I.
These facts are taken from the trial record. In our discussion of the individual issues raised on appeal, we will provide additional facts relevant to defendant's arguments.
On November 9, 2005, decedent was admitted to Kennedy Memorial Hospital, complaining of nausea, vomiting, and abdominal pain. The on-call gastroenterologist examined decedent and diagnosed her as suffering from a partial small bowel obstruction.
Two days later, defendant, a gastroenterologist, was consulted by decedent's primary care team and asked to examine her. He reviewed the results of a CT scan, which revealed a "distended colon" and a "thickening of the wall" of the stomach, suggesting a mass. He also was aware of two prior CT scans from January and February 2005, which included findings of sigmoid diverticulosis.
At the time of defendant's exam, decedent reported no pain. As a result of her symptoms and his examination, defendant diagnosed a partial bowel obstruction and recommended procedures and medication to alleviate the problem. Additionally, he ordered X-rays and advised an upper endoscopy should be performed when decedent stopped vomiting. The X-ray results revealed an obstruction.
The next day, decedent's complaints of nausea, vomiting, and abdominal pain were gone; her abdomen was soft, she had normal bowel sounds, and she reported a bowel movement. Based on this information, defendant concluded the obstruction was resolving.
Decedent's primary care and surgical team suggested a colonoscopy be performed, with an endoscopy to follow. Defendant rejected this course of treatment. He defended his decision, stating his concern decedent was not able to undergo the preparations for the colonoscopy, which included drinking a gallon of prep liquid known to cause vomiting even in people not experiencing an obstruction. If decedent suffered from an obstruction, this also presented the worry vomiting would cause aspiration, with gastric contents getting into the lungs, with resultant possibilities of pneumonia, the need for a ventilator, or death. Also, because decedent was vomiting, a nasogastric tube was placed through the nose into the stomach to remove the contents. Were a colonoscopy performed, the tube would need to be removed, and if determined necessary, again reinserted. Finally, defendant's physical examination revealed decedent's symptoms abated: she was not nauseous, not vomiting, had no abdominal pain, was passing gas, and had a soft abdomen with normal bowel sounds. Defendant's ordered course of treatment included continued medications, a clear liquid diet, and an upper endoscopy to rule out lesions in the small intestine. A colonoscopy was ordered to be performed as an outpatient procedure.
On November 15, defendant performed his last examination of decedent during her hospital stay. He found no localized pain and normal bowel movement, although he noted signs of abdominal distention. The radiologist declined to perform the endoscopy because decedent vomited during preparation for the procedure. Defendant concluded, in his medical opinion, scheduling a colonoscopy at that time was not prudent because decedent could not tolerate the less rigorous endoscopy preparation. He observed no symptoms of diverticulitis or any other condition to trigger medical necessity for an emergency colonoscopy.
Defendant's file notes include inquiries directed to the surgical team attending decedent, asking whether a laparoscopy should be performed to discern whether her difficulties resulted from possible adhesions. Defendant did not participate further in decedent's hospital treatment. Decedent was discharged from the hospital by a different physician on November 16 with instructions to follow-up with defendant to arrange a colonoscopy, as an outpatient.
Decedent called defendant's office complaining of nausea, vomiting, and no bowel movement on December 1. Defendant instructed her to go to the emergency room for evaluation. The record suggests decedent did not seek emergency care. Eventually, decedent scheduled an office appointment with defendant for December 20, 2005.
On that date, decedent reported no pain, had bowel movements every few days, and experienced daily nausea and vomiting. Defendant performed a physical evaluation, recording decedent's abdomen was soft, non-tender with no distension, and noted loud bowel sounds. At trial, decedent's daughter, Monique Jones, and plaintiff both testified they saw decedent wince when her lower abdomen was touched that day, although not necessarily while in defendant's office.
Concerned about the vomiting, defendant sought to first rule out Celiac disease and ordered an upper endoscopy to rule out a bacterial infection. Defendant prescribed Reglan four times per day to treat decedent's vomiting and heartburn. Thereafter, when the vomiting subsided, defendant would proceed with a colonoscopy. An endoscopy was scheduled for January 4, 2006 followed by a colonoscopy on January 25. Defendant intended to use the time between the endoscopy and the colonoscopy to monitor decedent's response to the medication and evaluate her ongoing condition.
On December 21, defendant telephoned decedent's primary care physician, Dr. Ritchell Dignam, who confirmed decedent had started taking the Reglan and her nausea and vomiting had improved. Unfortunately, thereafter, decedent's condition declined. Her family "pushed" her to seek care in the hospital emergency room on December 24. She passed away later that day.
Plaintiff filed this action, alleging defendant was medically negligent for failing to perform the colonoscopy within two weeks of decedent's discharge from the hospital. The eight-day jury trial commenced on July 8, 2013.
A private autopsy was performed soon after decedent's death by Dr. Dante Ragasa, who testified the potential cause of decedent's death was "acute and chronic necrotizing diverticulitis with intestinal obstruction." Dr. Maxwell Chait, plaintiff's standard of care expert, maintained defendant failed to timely order a colonoscopy, which was the definitive test necessary to diagnose decedent with diverticulitis. More specifically, Dr. Chait asserted a colonoscopy should have been performed during decedent's hospitalization or within two weeks after discharge.
Defendant and his experts disputed decedent's death resulted from necrotic diverticulitis. Defendant distinguished diverticulitis from diverticulosis, acknowledging decedent suffered from diverticulosis in the past. He explained diverticulosis, or diverticular disease, results when "small pouches in the lining of the colon bulge outward." When those pouches are perforated and become inflamed, the condition is diverticulitis. Defendant listed the symptoms of diverticulitis, which include localized pain, fever, an elevated white blood cell count, guarding or muscle tension when pressed, rebound or more intense pain when the pressure is relieved, absent or diminished bowel movements, and gas or flatus. Defendant's testimony also suggested diverticulitis should be visible on a CT scan. None of these signs of diverticulitis were present in his examinations of decedent during her November hospitalization. Further, no radiology examination, other tests, or any treating professional examination diagnosed signs of diverticulitis.
Defendant's standard of care expert, Dr. Steven R. Peikin, maintained the cause of decedent's death was urosepis or sepsis. The defense pathologist, Dr. Gregory J. Davis, reviewed the autopsy slides and he too found no evidence of acute diverticulitis, no bowel perforation, and no bowel wall necrosis. He opined the cause of death was "more likely than not . . . a sudden cardiac dysrhythmia . . . due to complications of [decedent's] underlying . . . cardiovascular disease" from hypertension, atherosclerosis, and being overweight. From his review, a further question arose of whether decedent suffered from urosepis.
At the conclusion of the trial, the jury returned a plaintiff's verdict and assessed total damages of $1,001,564. Defendant's motion for a new trial was denied. This appeal ensued.
II.
On appeal, defendant raises numerous arguments supporting his request to vacate the verdict and award a new trial. Defendant challenges as error: certain evidentiary rulings; the denial of requested jury instructions addressing medical judgment and decedent's conduct; and the denial of his motion for a new trial based on counsel's conduct in summation, which he asserts exceeded the bounds of fair comment. Finally, defendant argues the verdict was against the weight of the evidence and, instead, was the result of passion, partiality, or prejudice caused by that impermissible conduct by plaintiff's counsel. We review each of these arguments.
A.
Two issues challenge the admission of trial testimony. The first concerns whether the trial judge impermissibly allowed plaintiff to present testimony regarding a theory of liability not disclosed in discovery (Point One). The second challenges cross-examination of Dr. Peikin, the defense standard of care expert, regarding the cause of decedent's death (Point Five).
1.
Generally, plaintiff's theory was defendant failed to properly undertake a necessary diagnostic test, which readily would have disclosed decedent's condition and allowed proper treatment, and his failure to do so caused decedent's death. At trial, plaintiff's liability expert also stated defendant should have directed decedent to the hospital or at least prescribed antibiotics when he saw decedent on December 20.
During trial, plaintiff first called defendant as a witness and commenced discussing the difference between diverticulosis and diverticulitis. Addressing treatment of diverticulitis, plaintiff pursued a series of questions directed to the use of "intravenous antibiotics." An objection was made because there was "no allegation in this case that [defendant] in any way, shape or form deviated [from the standard of care] by not giving antibiotics." Defendant argued the only theory of liability noticed by plaintiff was limited to the failure to order a timely colonoscopy, and no theory regarding the failure to prescribe antibiotics was ever offered. Plaintiff insisted he was permitted to ask defendant about treatment for diverticulitis because he alleged defendant failed to properly diagnose this as decedent's condition. The objection was overruled.
Thereafter, once plaintiff's expert, Dr. Chait, was qualified as an expert in gastroenterology, defendant moved to limit his standard of care testimony to the theories set forth in his report related to the timing of the colonoscopy, and to specifically preclude development of a new theory regarding the institution of intravenous antibiotics to treat diverticulitis. The objection was sustained and Dr. Chait was not permitted to testify regarding any alleged failure to prescribe antibiotics on December 20. He did, however, discuss the use of antibiotics to treat "chronic bouts of diverticulitis[.]"
Prior to calling Dr. Peikin, defendant's standard of care expert, the defense sought to limit cross-examination to the timeliness of performing a colonoscopy as the sole area of alleged deviation from the standard of care. The trial judge ruled a disputed factual issue was created by defendant's testimony stating he would have directed decedent to the emergency room had she complained of pain in the lower left abdominal quadrant when palpated during the December 20 office examination and her family's factual testimony decedent experienced pain on that date. Therefore, limitation was not warranted and the defendant's request was denied.
The issue resurfaced at the charge conference when plaintiff argued defendant should have referred decedent to a hospital following his December 20 examination. Plaintiff maintained had defendant done so, and the hospital staff diagnosed and treated defendant for diverticulitis on that date, decedent would have survived. Defendant challenged this argument, which he maintained was not supported by Dr. Chait's expert opinion. The judge permitted plaintiff to argue the evidence showed defendant deviated from the acceptable standard of care on December 20, as long as he "ke[pt] it general."
Based on these events, defendant maintains the trial judge improperly allowed plaintiff to present for the first time during trial new theories of liability stemming from his treatment on December 20. Defendant argues no supplemental discovery was presented on this issue and Dr. Chait's testimony should have been confined to the substance of his expert report.
"An expert's testimony at trial may be confined to the matters of opinion contained within the expert's report." Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (App. Div. 1988), aff'd sub nom., Mauro v. Raymark Indus., Inc., 116 N.J. 126 ( 1989). See also Maurio v. Mereck Constr. Co., 162 N.J. Super. 566, 569 (App. Div. 1978) ("[W]hen [an expert's] report is furnished, the expert's testimony at trial may be confined to the matters of opinion reflected in the report.").
While a trial judge may in his or her discretion preclude expert testimony on a subject not covered in the written reports furnished by an adversary, in Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990), we strongly urged the trial judge in the exercise of his discretion to "suspend the imposition of [the] sanction[] [of exclusion]" when certain factors were present. These were "(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of
prejudice which would result from the admission of the evidence." Ibid. (quoting Westphal v. Guarino, 163 N.J. Super. 139, 145-46 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)).
[Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-32 (App. Div. 1997) (alterations in original).]
Following our review of the record, we reject as unfounded defendant's claim of error. First, the trial judge determined Dr. Chait's mention of prescribing antibiotics was tied to the failure to timely undertake a colonoscopy and his report did not separately articulate that "antibiotic treatment should have been given with or without the performance of a colonoscopy" as a separate breach of the standard of care. Thus, he was precluded from testifying as to a theory of liability regarding use of antibiotics. See McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.) ("[T]he logical predicates for and conclusions from statements made in [an expert] report are not foreclosed."), certif. denied, 108 N.J. 219 (1987).
On the other hand, defendant acknowledged if decedent suffered from diverticulitis, antibiotic treatment was the appropriate course of action. The summation comments mentioning antibiotics were limited and tied to the failure to timely perform a colonoscopy to diagnose diverticulitis. Counsel stated: "You put them on antibiotics until you get the [CT] Scan or until you get the colonoscopy," then referenced Dr. Peikin's testimony. Tying this comment to the theory of liability, counsel asserted a colonoscopy was necessary and when a patient presents with symptoms of diverticulitis, you treat them with antibiotics. "[Decedent] had all th[e] symptoms [of diverticulitis] in [defendant's] office. Never started her on antibiotics."
These brief comments do not warrant reversal. No objection was lodged the comments were linked to the evidence, and we determine defendant suffered no prejudice from this point. Congiusti, supra, 306 N.J. Super. at 132.
Next, after examining the trial judge's decision permitting plaintiff to present testimony regarding whether defendant should have directed decedent to the hospital following his December 20 examination, even though such a theory of deviation from the acceptable standard of care was not presented in Dr. Chait's expert report, we disagree with defendant that this warrants a new trial.
The judge properly assessed whether the testimony should be excluded, id. at 131-32, and concluded a factual dispute regarding whether decedent was experiencing localized abdominal pain was presented. Defendant himself acknowledged if decedent was experiencing such localized pain she should have been directed to the hospital. He testified during his exam she neither revealed she was in pain nor showed signs of discomfort during the palpitation. Consequently, plaintiff established a rational basis for the assertion, which was admissible. See Hutchinson ex rel. Hutchinson v. Atl. City Med. Ctr., 314 N.J. Super. 468, 478 (App. Div. 1998) (holding a defendant's testimony in a medical negligence matter may provide evidence of deviation, despite the lack of an independent expert opinion on the issue); Lanzet v. Greenberg, 126 N.J. 168, 191 (1991) ("Proof of deviation elicited from the defendants themselves, because they are competent professionals, could be relied on by the jury.").
During summation, plaintiff's counsel merely highlighted defendant's testimony regarding whether decedent presented with pain during the December 20 examination. Defendant fails to demonstrate how these comments were misleading or caused surprise or prejudice. Ratner, supra, 241 N.J. Super. at 202. Defendant was afforded the opportunity to clarify his remarks about record notations of decedent's reported lack of pain on December 20 and his own findings of her symptoms. Also, Dr. Chait on cross-examination agreed his report was limited to defendant's failure to timely order a colonoscopy.
Following review of this record, we reject as unsupported the assertion a new theory of liability was introduced for the first time at trial. We find no support for defendant's claim of trial error in admitting the expert's testimony.
2.
Defendant also contends plaintiff improperly exceeded the scope of direct when cross-examining Dr. Peikin regarding decedent's cause of death. See N.J.R.E. 611(b) ("Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness."). We reject this assertion.
We will not interfere with a trial judge's decision defining the scope of cross-examination unless we conclude "a clear abuse of discretion, which has deprived a party of a fair trial," is presented. Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). In theory, the scope of cross-examination is narrow. Applicable here, "[e]xtensive cross-examination of experts is generally permitted, subject to reasonable limitations imposed by the trial court in its discretion." Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 290 (App. Div.), certif. denied, 141 N.J. 95 (1995).
The trial judge initially restricted plaintiff's questioning of Dr. Peikin, finding questions regarding cause of death exceeded the bounds of direct testimony, which was confined to the standard of care, and the witness was "not offered as a witness on causation." Thereafter, plaintiff's counsel questioned Dr. Peikin regarding statements in his report suggesting it was less likely that decedent suffered from diverticulitis not evident on a CT scan. Mentioning the accuracy of a CT scan, Dr. Peikin said:
A: And that's why . . . T didn't think it was the cause of her death because . . . it wasn't picked up on [the CT] scan. Tt couldn't have been severe.Upon defendant's objection, the trial court allowed the testimony, as well as Dr. Peikin's opinion regarding the cause of death because he "opened the door." We find no abuse of discretion here, as Dr. Peikin volunteered his opinion as to decedent's cause of death.
[PLAINTIFF'S COUNSEL]: [A]nd you came to an opinion as to the cause of her death[?]
B.
Defendant asserts the trial judge erred in omitting the medical judgment charge (Point Two) and decedent's contributory conduct (Point Four) when instructing the jury. We examine these issues.
1.
Defendant argues the trial judge erred by denying his request to include the medical judgment charge when instructing the jury regarding the timeliness of the colonoscopy. Plaintiff counters the evidence was merely a deviation from the standard of care, not medical judgment.
Not all medical decisions implicate the medical judgment rule. Adams v. Cooper Hosp., 295 N.J. Super. 5, 8 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997). A physician will be responsible for the consequences of decisions that depart from the requirements of acceptable medical practice. Schueler v. Strelinger, 43 N.J. 330, 346 (1964). If, however, a defendant-doctor's actions constitute an exercise of acceptable medical judgment, he or she will be excused from liability for a poor result. Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 632 (1999).
The model civil jury instructions include a charge on medical judgment, which provides:
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the standard of care for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
[Model Jury Charge (Civil), 5.50G, "Medical Judgment" (2009).]
The charge on medical judgment was updated in June 2014. The current charge provides:
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis/treatment choices must be in accordance with accepted standards of medical practice. Therefore, your focus should be on whether accepted standards of medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the accepted standards of medical practice for treatment or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved] did not allow for the diagnosis/treatment alternatives the defendant doctor made here, then the doctor would be negligent. If you determine that the accepted standards of medical practice for treatment or diagnosis with respect to [specify what type(s) of treatment or diagnosis is involved] did allow for the diagnosis/treatment alternatives the defendant doctor made here, then the doctor would not be negligent.
[Model Jury Charge (Civil), 5.50G, "Medical Judgment" (2014).]
In deciding whether to provide the jury with a medical judgment charge as part of its instruction on the standard of care, the facts must present a "'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Das v. Thani, 171 N.J. 518, 527 (2002) (quoting Velazquez v. Portadin, 163 N.J. 677, 687 (2000)). When a physician's decision involves a clear choice between medical alternatives, "the course of treatment followed must be an 'equally acceptable approach' in order not to be considered a deviation from the appropriate standard of care." Id. at 527-28 (quoting Velazquez, supra, 163 N.J. at 690). See also Shectman v. Bransfield, 403 N.J. Super. 487, 497-500 (App. Div. 2008) (holding that the trial court erred by failing to give the charge, where experts testified there were two different "schools of medical treatment" with respect to how a psychiatrist monitors a patient, and that the choice was a matter of judgment); Saks v. Ng, 383 N.J. Super. 76, 95-97 (App. Div.) (holding that the defendants were entitled to the charge where the issue related to choice of anesthesia), certif. denied, 186 N.J. 605 (2006). "Otherwise, '[i]f the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a physician for "mistakes" would enable the physician to avoid responsibility for ordinary negligence.'" Das, supra, 171 N.J. at 528 (alteration in original) (quoting Aiello, supra, 159 N.J. at 632).
Here, the trial court denied defendant's request to give the charge after considering arguments offered during the charge conference and once all expert testimony was presented. Unfortunately, no explanation was included, depriving this court of the judge's rationale after he "analyz[ed] the parties' testimony and theories in detail . . . to determine whether the [medical judgment] charge [was] applicable at all . . . ." Velazquez, supra, 163 N.J. at 690.
Plaintiff's theory of liability in part was based on defendant's misdiagnosis of diverticulitis. Neither party disputed the need to conduct a colonoscopy to aid in the diagnosis of decedent's condition. The issue was the timing of that test and whether defendant was correct in delaying administration of the test until after decedent was discharged, and again for not conducting the colonoscopy when decedent presented in defendant's office on December 20. Thus, liability was premised on showing that, considering all evidence of decedent's condition, defendant's decision to delay the colonoscopy in favor of first resolving decedent's other symptoms, particularly vomiting, departed from accepted medical procedure.
Defendant's testimony asserted performing a colonoscopy while decedent was hospitalized in November was unsafe and "potentially dangerous" because of her unabated vomiting. Although defendant ordered an endoscopy, decedent could not withstand the preparation for that test, which was not nearly as rigorous as the preparation necessary for a colonoscopy. Ultimately, Dr. Chait agreed with this view and stated the failure to conduct a colonoscopy in the hospital was not a breach of the accepted standard of care. Also, on direct, Dr. Chait maintained the standard of care required a colonoscopy be performed within seventy-two hours of decedent's hospital discharge. However, on cross-examination he conceded a colonoscopy reasonably could have been conducted within two weeks of decedent's discharge, suggesting the exact timing to conduct the test was not specifically fixed.
During the office exam on December 20, decedent again complained of vomiting, but according to defendant, no pain. Dr. Peikin, defendant's expert witness, opined decedent's symptoms, as recorded during the office visit, along with her radiographic results did not suggest an immediate need for a colonoscopy, and the decision to first control decedent's vomiting was appropriate. Dr. Chait maintained a colonoscopy was needed on "an urgent basis."
In light of these expert opinions, we conclude evidence supported the timing of a colonoscopy implicated medical judgment for which the charge applied. The jury would then determine whether in accordance with the standard of care defendant properly delayed the colonoscopy in November and again in December.
We contrast this with defendant's alleged failure to prescribe antibiotics following his December 20 examination. That decision does not present a choice of two accepted medical courses of treatment. Plaintiff's experts opined decedent's symptoms on December 20, including reports of abdominal pain, nausea and constipation, aligned with diverticulitis, which indisputably must be treated with antibiotics. Of course, defendant argued decedent displayed no symptoms of diverticulitis, and none of the three CT scans revealed signs of the disease. Most specifically, the material dispute for the jury to resolve was whether decedent complained of pain. If the jury rejected defendant's position and concluded the symptoms of diverticulitis were displayed, defendant's own testimony along with plaintiff's experts supported a theory antibiotics should have been given. Further, if decedent expressed pain, defendant stated hospitalization was warranted. Thus, on this issue, the medical judgment charge was not applicable because resolution of the factual dispute guides to required result.
To avoid jury confusion, a jury charge must be tailored to assure its applicability to specific facts. Ibid. "It is axiomatic that clear and correct jury charges are essential to a fair trial, and the failure to provide them may constitute plain error." Das, supra, 171 N.J. at 527. Certainly, the court's legal instructions act as "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations . . . ." Ibid. (citation and internal quotation marks omitted).
The trial judge's failure to provide an analysis of the facts before rejecting defendant's request for inclusion of the medical judgment charge erroneously led to the omission of the charge when instructing the jury. "[E]rroneous instructions are poor candidates for rehabilitation . . . and are ordinarily presumed to be reversible error." Ibid. (citation and internal quotation marks omitted). Following our review, we conclude the question of medical judgment arose regarding the timing of the colonoscopy. The failure to include the proper charge was not harmless and may have erroneously misled the jury in reaching its conclusion. A new trial is required.
2.
Defendant argues the trial judge improperly omitted reference to decedent's negligence resulting from her failure to heed defendant's direction to seek emergency treatment on December 1 in the charge and as "an element of potential negligence to be placed on the verdict sheet." We do not agree. It is not clear whether defendant was requesting a comparative negligence charge, which has the potential to bar recovery, or simply a charge to limit his damages.
"Usually, comparative fault is not an issue in medical malpractice actions . . . ." Mitchell v. Procini, 331 N.J. Super. 445, 457 (App. Div. 2000). "[C]omparative or contributory negligence generally may not be charged when a professional breaches his or her duty to a client" because of the public's "heightened expectations of professional services in this State." Aden v. Fortsh, 169 N.J. 64, 75-83 (2001) (noting comparative negligence may be charged in a professional malpractice action where the client was the "sole proximate cause of the alleged tort" or "substantially contributed to the defendant's nonperformance"). See also Hofstrom v. Share, 295 N.J. Super. 186, 193 (App. Div. 1996) (noting a "particularly acute danger" in permitting a jury to focus on plaintiff's alleged comparative negligence in professional negligence action), certif. denied, 148 N.J. 462 (1997).
For a detailed discussion about when comparative negligence applies in a professional malpractice action, see Aden, supra, 169 N.J. at 75-83.
The judge found defendant's theory, ascribing decedent's December 1 omission as contributing to her death, was speculative because there was no evidence showing the consequences had she sought the emergency treatment. We agree defendant produced no evidence decedent's failure to seek emergency care on December 1 was the sole proximate cause of her death or substantially contributed to defendant's alleged malpractice. Therefore, a comparative negligence instruction was properly found inappropriate.
C.
Defendant also challenges comments by plaintiff's counsel during summation (Point Three). Defendant moved for a new trial asserting plaintiff's summation violated the bounds of fair comment. Defendant argues summation exceeded fair advocacy and infected jury deliberations with mistake, passion, prejudice, and partiality, causing "a miscarriage of justice under the law," requiring a new trial. R. 2:10-1.
Included in the record is a disc of the parties' closings, included to allow the court to hear counsel's mocking and amplified tone. Although we note both attorneys incorporated sarcasm into their closings, the demonstrated tone alone is insufficient to warrant reversal.
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A "miscarriage of justice" has been described as a "'pervading sense of "wrongness" needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, [or] a clearly unjust result . . . .'"
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521-22 (2011) (alterations in original) (quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977))).]
We agree with defendant's assertions. Because this matter must be retried, we review the challenges to guide counsel against future missteps.
In the context of summations, it is understood "[c]ounsel's arguments are expected to be passionate, 'for indeed it is the duty of a trial attorney to advocate.'" Jackowitz v. Lang, 408 N.J. Super. 495, 504-05 (App. Div. 2009) (quoting Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003)). Although accepting "'counsel is allowed broad latitude,'" Brenman v. Demello, 191 N.J. 18, 33 (2007) (quoting Bender v. Adelson, 187 N.J. 411, 431 (2006)), our Supreme Court has repeatedly warned against inappropriate summation commentary. Ibid. Summations "must be based in truth, and counsel may not misstate the evidence nor distort the factual picture." Ibid. (citation and internal quotation marks omitted). Improper comments may avoid the need for a new trial if fleeting. See id. at 33-34. But a jury's deliberative process "must be insulated from influences that could warp or undermine the jury's deliberations and its ultimate determination." Risko, supra, 206 N.J. at 523 (citations and internal quotation marks omitted).
Counsel "'may not use disparagng language to discredit the opposing party, or witness, or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence.'" NuWave Inv. Corp. v. Hyman Beck & Co., 432 N.J. Super. 539, 566 (App. Div. 2013) (quoting Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004)), certif. granted, 217 N.J. 303 (2014). Therefore, recurring improper statements such as "[u]nfair and prejudicial appeals to emotion" or "insinuations of bad faith on the part of defendants who sought to resolve by trial validly contested claims against them" carry the "potential to cause injustice." Jackowitz, supra, 408 N.J. Super. at 505 (alteration in original) (citations and internal quotation marks omitted).
Here, although defendant cites several comments as improper, an objection was made to repeated suggestions that the defense was a "fabricated defense," derived from "courtroom medicine" and a "concocted" "story," even though defendant "knew the truth." Further, statements were made suggesting defense counsel aided defendant's fabrication by getting the experts to change their story and by handing them "a script."
The trial judge declined the request to curb such commentary. The defendant's motion for a mistrial or, at the very least, for the issuance of a curative instruction were also denied.
Following review of the trial record, including summations, we conclude plaintiff's summation comments stray from proper conclusions drawn from the evidence. See, e.g., Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999) (holding "counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd"), certif. denied, 163 N.J. 395 (2000). In this matter, counsel suggested the jury reach conclusions based on a distorted factual picture, painted with the eye of a purposefully created conspiracy between defendant, his attorney, and his experts to produce or create a defense based on false, distorted facts. See Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010) ("[I]t is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses."). Such commentary is not permitted and must not be repeated.
Many other comments uttered in this matter have been found to be inappropriate. See id. at 180 (condemning counsel's remarks that the defense had a "game plan" to hire "spin doctors" to prevent plaintiff from recovering and referring to medical experts as "hired guns"); Rodd, supra, 373 N.J. Super. at 171-72 (condemning counsel's comments stating defendant's expert "was 'a professional witness' who 'adjust[ed] his testimony for every case'"); Geler, supra, 358 N.J. Super. at 469 ("We have previously found wrongful such insinuations of bad faith on the part of defendants who sought to resolve by trial validly contested claims against them."); Henker v. Preybylowski, 216 N.J. Super. 513, 518 (App. Div. 1987) (condemning counsel's remarks "accusing defendant's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, of deliberately distorting the evidence, [and] of playing 'a game'"); Tabor v. O'Grady, 59 N.J. Super. 330, 340-41 (App. Div.) (condemning counsel's remarks suggesting the defense was "'replete with misleading red herrings'" and was "based on trickery, shameful conduct, and the pulling of 'stunts'"), modified on other grounds, 61 N.J. Super. 446 (App. Div. 1960).
Specific examples taken from plaintiff's summation are as follows. Using the term "courtroom medicine," counsel defined it as "very different than [sic] medicine when you go to a doctor's office. . . . It is a story." Plaintiff's counsel impugned the integrity of defense counsel by insisting defense expert witnesses were told "[w]hatever you say, do not say that [defendant] was negligent in any way, no matter what you're presented with." In a different attack, plaintiff's counsel suggested his adversary, when faced with the facts, stated "Gosh I can't — I can't deal with this, because there's no way to defend it." Consequently, counsel and defendant concocted a story; "a fabricated defense to keep your eye off the ball." Counsel also referred to certain testimony as offering "red herrings" described as the "kind of things just like thrown against the wall that [defendant is] kind of hoping, that when you go back there, you think about it." Plaintiff's counsel also urged the jury make defendant "accept responsibility" for his conduct, which was repeated in various forms.
Following our review, we conclude counsel did much more than challenge the validity of the defense. Rather, without evidential support, counsel accused defendant of conspiring with his counsel and experts to conceal and distort the truth. Even considering these and other comments indulgently in the context of a highly contested trial, we do not agree with the trial judge that they are close, but "do not cross the line." Rather, we conclude the reiterated remarks are utterly improper. This summation unmistakably had "the ability or 'capacity' to improperly influence the jury's 'ultimate decision making . . . .'" Risko, supra, 206 N.J. at 522.
When summation "cross[es] the line beyond fair advocacy [or] comment," and instead is directed and designed to improperly influence the jury's decision, "the trial judge must take action." NuWave Inv. Corp., supra, 432 N.J. Super. at 567 (citation and internal quotation marks omitted). Here, the trial judge declined to do so. That was error. The cumulative effect of counsel's inappropriate commentary, unmitigated by a curative instruction, affected the jury's deliberations and decision. The verdict must be set aside in favor of a new trial.
Counsel is cautioned: the jury's role in a trial is to weigh the evidence and find the facts. In its search for the truth, a trial is not a contest of popularity or sympathy. The role of a legal advocate is to provide "[r]easoned analysis of the evidence and the credibility of testimony . . . ." Geler, supra, 358 N.J. Super. at 467. The judge as gatekeeper must assure counsel's comments remain within the bounds of permissible zealous advocacy and do not cross over to improperly inflame the jury's passion or draw their attention away from assessing trial evidence.
D.
Our conclusion a new trial must be conducted obviates the need to consider defendant's challenge to the sufficiency of the evidence, as well as his assertions of cumulative error (see Point Six). We reverse the order denying defendant's request for a new trial, vacate the judgment, and remand for a new trial.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION