Opinion
DOCKET NO. A-4448-15T4
01-05-2017
PETER ONYEKAOMELU AND KAMILAH ONYEKAOMELU, Plaintiffs-Appellants, v. UNIVERSITY OF MEDICINE AND DENTISTRY - INSTITUTE OF OPTHAMOLOGY & VISUAL SCIENCE, DAVID SHU-CHIH CHU, M.D., AND HAMED LARI, M.D., Defendants-Respondents.
Christopher T. Howell argued the cause for appellants. Robert E. Spitzer argued the cause for respondents University of Medicine and Dentistry of New Jersey and Hamed Lari, M.D. (MacNeill, O'Neill & Riveles, L.L.C., attorneys; Jay Scott MacNeill, of counsel; Mr. Spitzer, of counsel and on the briefs). Michael J. Keating argued the cause for respondent David S. Chu, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr. Keating, of counsel and on the brief; Cyndee L. Allert, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti, Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0870-13. Christopher T. Howell argued the cause for appellants. Robert E. Spitzer argued the cause for respondents University of Medicine and Dentistry of New Jersey and Hamed Lari, M.D. (MacNeill, O'Neill & Riveles, L.L.C., attorneys; Jay Scott MacNeill, of counsel; Mr. Spitzer, of counsel and on the briefs). Michael J. Keating argued the cause for respondent David S. Chu, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr. Keating, of counsel and on the brief; Cyndee L. Allert, on the brief). PER CURIAM
In this medical malpractice case, Peter Onyekaomelu and his wife, Kamilah Onyekaomelu, (plaintiffs) appeal from a May 13, 2016 order setting aside a jury verdict, granting a motion for a new trial on all issues filed by University of Medicine and Dentistry (UMDNJ) Institute of Ophthalmology & Visual Science, David Shu-Chih Chu, M.D., and Hamed Lari, M.D. (collectively defendants). The trial court also granted defendants' motion for a remittitur. We reverse the order granting a new trial on liability. We also reverse the order granting a new trial on damages, remand, and direct the judge to consider anew defendants' motion for a new trial on damages, or in the alternative, a remittitur.
We discern the following facts from the evidence adduced at the trial. Mr. Onyekaomelu experienced difficulty in both eyes and received treatment at UMDNJ in March 2011. Doctors there recommended Mr. Onyekaomelu remove growths by undergoing pterygium excision conjunctival graft (PECG) surgeries on both eyes. They recommended doing the left eye surgery first because it was in worse condition.
On December 21, 2011, Dr. Lari, who had been a resident at UMDNJ, performed the surgery on the left eye. Dr. Chu, the attending surgeon, oversaw the operation. Mr. Onyekaomelu testified that the surgery was successful and he had no complications.
On February 8, 2012, Mr. Onyekaomelu returned to UMDNJ intending to receive PECG surgery on his right eye. But Drs. Lari and Chu operated on Mr. Onyekaomelu's left eye. The trial testimony conflicted as to the reasons for the repeated left-eye surgery.
Drs. Lari and Chu testified that Mr. Onyekaomelu signed a consent form acknowledging risks associated with the second left-eye operation. They explained that the growth had reoccurred in the left eye because Mr. Onyekaomelu had not taken his prescribed medications. They also testified that Mr. Onyekaomelu had been awake during the surgery.
Mr. Onyekaomelu, however, testified that the doctors did not speak to him about repeating the procedure on his left eye. He stated that they did not discuss with him the existence of a reoccurring growth in his left eye, and he testified that no one pre-marked his left eye for surgery. Mr. Onyekaomelu testified further that he had heard Dr. Lari state during the surgery that "[i]t looks like this eye [has] been operated [on] before."
Plaintiffs' expert, Dr. Robert S. Shapiro, a board-certified ophthalmologist, testified that Drs. Lari and Chu deviated from the accepted standards of medical care. Dr. Shapiro testified that the PECG surgeries were not medically necessary, the recurrence in the left eye was not documented in Mr. Onyekaomelu's medical records, which he said were poor and inadequate, and that the second surgery was planned for the right eye, but erroneously performed on the left eye.
Defendants produced expert testimony from Dr. Witlin, an ophthalmologist. Dr. Witlin opined that Dr. Chu's and Dr. Lari's care provided to Mr. Onyekaomelu at UMDMJ complied with the applicable standard of care, and that the doctors intended to perform the second surgery on the left eye. As a result, defendants maintained that they were not negligent.
Mr. Onyekaomelu testified that he suffered from serious complications after the second left-eye surgery. Mr. Onyekaomelu testified that since the second surgery, he has had permanent partial loss of vision, a foreign body sensation, tearing, redness, sensitivity to light, and frequent migraine headaches. Although doctors prescribed Restasis after the second surgery, Mr. Onyekaomelu testified that he did not fill the prescription because it was too expensive.
At the jury charge conference, plaintiffs advocated for the inclusion of an informed consent charge because defendants asserted at trial that Mr. Onyekaomelu had consented to the second left-eye procedure. Defendants' counsel responded that informed consent should not be addressed in the jury charges because it was never pled as a separate claim in the complaint. The judge gave the charge.
The verdict sheet did not include a separate question addressing whether Mr. Onyekaomelu gave informed consent for the second surgery. Instead, the jury interrogatories simply asked if defendants were negligent, and if so, what amount of money would fairly compensate Mr. Onyekaomelu for his pain and suffering. The jury found that Dr. Lari and Dr. Chu were equally negligent, and returned a verdict for Mr. Onyekaomelu in the amount of $1,000,000 for pain and suffering, $15,000 in future medical expenses, and $6,000 in past medical expenses. They rejected Mrs. Onyekaomelu's per quod claim.
UMDNJ was vicariously liable through its employee, Dr. Lari.
Defendants moved for a new trial on all issues. They argued the informed consent charge was misleading to the jury and against the weight of the credible evidence. Plaintiffs opposed the motion contending the informed consent charge was proper because defendants asserted an informed-consent defense. In granting the motion for a new trial, the judge stated "I think I confused the jury in all candor." The judge then granted defendants' motion for remittitur and reduced the jury verdict from $1,021,000 to $200,000.
The order provided that the parties had thirty days to accept the $200,000 remittitur and resolve the case or, in the alternative, the new trial on all issues would proceed as scheduled. --------
On appeal, plaintiffs argue the judge erred by granting a new trial on all issues. They contend that defendants did not demonstrate the inclusion of an informed consent charge resulted in a miscarriage of justice, and that the judge failed to articulate a sufficient basis for granting a new trial. Plaintiffs also assert that the judge erroneously granted the remittitur motion.
We recognize the fundamental principle that jury trials are a bedrock part of our system of civil justice and that the fact-finding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "'impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).
Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Jury verdicts are thus "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 ( 1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (indicating that "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice"), certif. denied, 186 N.J. 242 (2006).
In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in a light most favorable to the party opposing the new trial motion. Caldwell, supra, 136 N.J. at 432. Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter, supra, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
Here, defendants did not argue they were entitled to a new trial because of evidentiary errors. Instead, they contended that they were entitled to a new trial because of an improper jury charge given against the weight of the evidence. That is, despite raising the issue of informed consent during the trial, defendants asserted that the inclusion of an informed consent charge confused the jury and that the confusion consequently caused a miscarriage of justice warranting a new trial.
We conclude the judge's statement, that "I think I confused the jury in all candor," did not amount to a "carefully reasoned and factually supported (and articulated) determination, . . . that the continued viability of the judgment would constitute a manifest denial of justice." Baxter, supra, 74 N.J. at 597-98. Plaintiffs' theory of the case was essentially that the second surgery on the left eye was unnecessary. As a result, plaintiffs claimed that the doctors were negligent. The jury interrogatories did not address whether Mr. Onyekaomelu gave his informed consent for follow-up surgery to the left eye. Instead, the jury simply found that defendants were negligent.
We acknowledge that proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). The failure to provide clear and correct jury charges may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). Using this standard, we see no error, or at most, harmless error.
The trial judge also did not articulate, however, how giving the informed consent charge clearly and convincingly demonstrated that there was a miscarriage of justice under the law. The judge did not explain how the jury's verdict should be considered "so distorted and wrong" or unjust, when viewed in the light most favorable to plaintiffs. As a result, we reverse the order granting a new trial on all issues.
We also reverse that part of the order granting defendants' a new trial on damages and a remittitur. We remand the matter to the trial court, and direct the court to consider anew defendants' motion for a new trial on damages, or in the alternative, a remittitur. As to defendants' request for a remittitur, the judge should consider the motion in light of the new standard recently articulated by the Supreme Court.
[A] jury verdict is presumed to be correct and entitled to substantial deference, that the trial record underlying a remittitur motion must be viewed in the light most favorable to the plaintiff, and that the judge does not sit as a decisive juror and should not overturn a damages award falling within a wide acceptable range -- a range that accounts for the fact that different juries might return very different awards even in the same case.Because of the importance of the jury, the system requires "judicial restraint in exercising the power to reduce a jury's damages award." Id. at 485. A jury award should stand unless it "is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience." Ibid. The award must be so "disproportionate" that it would "constitute a miscarriage of justice" to allow it to stand. Id. at 487. Furthermore, if the judge makes those findings, the remitted amount must be "what a reasonable jury, properly instructed, would have awarded." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500 (2001).
[Cuevas v. Wentworth Group, 226 N.J. 480, 486 (2016) (overruling He v. Miller, 207 N.J. 230 (2011)).]
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION