DOCKET NO. A-5938-10T3
Irene M. McLafferty argued the cause for appellant (Messa & Associates, attorneys; Ms. McLafferty, on the brief). John Zen Jackson argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Jackson and Cecylia Hahn, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0594-06.
Irene M. McLafferty argued the cause for appellant (Messa & Associates, attorneys; Ms. McLafferty, on the brief).
John Zen Jackson argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Jackson and Cecylia Hahn, on the brief). PER CURIAM
Plaintiff commenced this action on behalf of the estate of her daughter, Dawn Witman, claiming defendant Robert Gordon, M.D., among others, failed to accurately diagnose the medical condition that plaintiff claims caused Dawn's death at the age of twenty-eight years. A jury determined that Dr. Gordon deviated from the standard of care but his deviation was not a proximate cause of Dawn's death. Plaintiff appeals, arguing that the trial judge erred in permitting the assistant county medical examiner to express an opinion, which plaintiff claims was a net opinion, on the cause of death, and in admitting evidence of: the death certificate's declaration of the cause of death; Dawn's use of Bextra; and Dawn's alleged consumption of alcohol prior to her death. We find no abuse of the judge's exercise of discretion in ruling on these matters and affirm.
To put plaintiff's arguments in context, we briefly summarize the events preceding and surrounding Dawn's death and the nature of the theories concerning the cause of death that were espoused by the parties at trial.
Over the course of a seven-day trial, the jury heard evidence that, on April 22, 2004, at 10:45 p.m., plaintiff brought her daughter Dawn to the emergency department of Kennedy Memorial Hospital in Washington Township, because of Dawn's complaints, during the prior four days, of shortness of breath, abdominal pain, nausea, diarrhea, vomiting, cough, severe headache and joint pain. There, at Dr. Gordon's directions, Dawn received intravenous fluids and several medications. Dr. Gordon ordered blood studies, a urinalysis, a cardiogram and a chest x-ray. Dawn was sent home from the hospital in the early morning hours of April 23, with the instruction that she follow up with her family doctor within two days.
Dawn was examined by her family doctor, Barclay Wilson, M.D., on Monday, April 26, 2004. According to Dr. Wilson's records, there was some improvement in Dawn's condition since her emergency room visit. She was able to tolerate liquids and had less abdominal pain.
On Saturday, May 1, 2004, Dawn began to feel ill and collapsed at home, where she was pronounced dead at 4:41 p.m. The county medical examiner took custody of Dawn's body. The death certificate signed by Dr. Ian Hood, the Assistant Gloucester County Medical Examiner, declared the immediate cause of death as cardiovascular disease. The death certificate made note of "diabetes mellitus" and "morbid obesity" as "other significant conditions contributing to death but not resulting in [the] underlying cause" of cardiovascular disease. Dr. Hood did not perform an autopsy.
Plaintiff relied on the opinions of three experts, Dr. Kenneth Williams, who specializes in emergency medicine, Dr. John Stern, who specializes in infectious diseases, and Dr. Cyril Wecht, who specializes in pathology, in advancing the theory that, while at the hospital, Dawn had an abdominal infectious process with fulminating diabetic ketoacidosis leading to sepsis, which was not suspected or treated at the hospital and which resulted in a cardiac arrhythmia that caused her death. The defense relied on the opinions of Dr. Glenn Birnbaum, who specializes in emergency medicine, and Dr. Chester R. Smialowicz, who specializes in infectious diseases, in rebutting plaintiff's claim that the cause of death was brought about through sepsis. The defense also subpoenaed Dr. Hood to testify about his findings.
In this appeal, plaintiff argues that the trial judge erred in allowing the jury to hear: (1) what plaintiff claims was the net opinion of Dr. Hood that Dawn's death was caused by cardiovascular disease; (2) testimony that the death certificate declared the cause of death as cardiovascular disease; (3) testimony that Dawn was prescribed and ingested Bextra for approximately eleven months, ending approximately two months prior to her death; and (4) testimony that suggested Dawn consumed alcohol shortly before her death. We reject these arguments.
DR. HOOD'S TESTIMONY
Plaintiff contends that the trial judge erred in permitting Dr. Hood to testify about the cause of death because, in plaintiff's view, Dr. Hood lacked an appropriate foundation for his opinion. A trial judge's determination to admit expert testimony is reviewed against an abuse of discretion standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
To be admissible, expert testimony must be offered by one who is "qualified as an expert by knowledge, skill, experience, training, or education" to offer a "scientific, technical, or . . . specialized" opinion that will assist the factfinder. N.J.R.E. 702. The opinion "must be based on facts or data of the type identified by and found acceptable under N.J.R.E. 703." Pomerantz Paper, supra, 207 N.J. at 372. In applying these standards, our courts have recognized that "net opinions" are impermissible. Ibid. (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). In explaining the net-opinion rule, we have said that "[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable [the expert] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990); see also Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.), certif. denied, 146 N.J. 569 (1996). These principles require exclusion of expert testimony when "based merely on unfounded speculation and unqualified possibilities." Vuocolo, supra, 240 N.J. Super. at 300. In other words, to avoid exclusion of an opinion, the expert must "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Pomerantz Paper, supra, 207 N.J. at 372 (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). An expert's opinion is not a net opinion, however, simply because the expert has "fail[ed] to account for some particular condition or fact which the adversary considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989)).
In claiming Dr. Hood provided only a net opinion, plaintiff refers to the fact that an autopsy was not performed and that Dr. Hood relied on a visual external examination of the body. Plaintiff also criticizes Dr. Hood's failure to speak with any of Dawn's treating physicians or examine any medical records. Dr. Hood, however, testified that he considered
what [was] reported to me from the medical examiner's investigator who first got the case and usually that is then reported to that person by generally from an ER person, a person taking the pronounced dead, ER, and they're often reporting third hand information as well, so the history that we get we accept as being passed through several mouths before it gets to us and it's often incomplete and sometimes, frankly, inaccurate, but it's what we have when we start the case.Dr. Hood also recounted that he was then told that Dawn "had a sudden collapse while being assisted in the bathroom by her mother," that the emergency medical personnel "attempted resuscitation briefly but pronounced her dead at the scene," that Dawn "had a history of diabetes mellitus and was morbidly obese," and that Dawn had been in the hospital "a week before and at the time her blood sugar had been noted to be high."
Based on this history, which Dr. Hood viewed as the starting point for his determination, Dr. Hood ordered and reviewed a toxicology report and externally examined the body. He did not view sepsis as a cause of death, explaining that "by and large sepsis is going to make you progressively more and more ill" and that "[v]ery few people die of sepsis suddenly at home." Dr. Hood provided the following additional observations that he believed contraindicated sepsis:
We can smell sepsis. It's pretty characteristic and I certainly had no historical evidence to suggest that she was developing sepsis. Nobody's saying that she's getting kidney pain, got obviously smelly infected urine.
She certainly had no cellulitis, no areas of her body that were infected, which is a common problem in diabetics and she didn't have it. I had no reason to suspect sep-sis[,] either anatomically or by history[,] in her.
In explaining why an autopsy was not performed, Dr. Hood referred to the medical examiner's heavy caseload, that the county had "a very small morgue, really only . . . one functional table," and there may have been other cases that day. In addition, Dawn was "large, nearly 300 pounds," and without assistance it "would have been technically difficult" to "move the body around." Homicides, according to Dr. Hood, take precedence and "there was nothing suspicious" about Dawn's death, "in terms of foul play." He summarized the decision not to do an autopsy by reference to staffing concerns and the circumstances surrounding Dawn's death in the following way:
Normally if you're 28 years old and you die suddenly you would get an autopsy, unless you had some pretty good underlying, well-documented natural disease. She was borderline, but she did. Then, again, I don't know what the circumstances were on that
day, but I would strongly suspect that I had other more pressing cases that were taking up the time available to deal with cases that day.
Although plaintiff may fairly argue that the investigation prior to Dr. Hood's declaration that the cause of death was cardiovascular disease could have been more thorough, Dr. Hood's failure to uncover and consider every potentially relevant fact before reaching his determination does not warrant imposition of the "net opinion" label that plaintiff urges. As we have mentioned, an expert is not required to account for every condition or fact. The trial judge acted well within his discretion in permitting Dr. Hood to provide an opinion because that opinion was based on sufficient facts to enable Dr. Hood "to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo, supra, 240 N.J. Super. at 299.
THE DEATH CERTIFICATE
Plaintiff additionally argues that the trial judge erred in permitting testimony that the death certificate attributed the cause of death to "cardiovascular disease."
In ruling on an in limine motion, the trial judge agreed with plaintiff that the death certificate itself was not evidentiary and would not be admitted. But the judge also held that the defense could elicit testimony from Dr. Hood as to the cause of death contained in the death certificate.
N.J.S.A. 52:17B-92 declares that "[t]he records of . . . the county medical examiners, made by themselves or by anyone under their direction or supervision, or transcripts thereof certified by such medical examiner, shall be received as competent evidence in any court in this State of the matters and facts therein contained." Because the circumstances required for admission pursuant to this statute were met, see also N.J.R.E. 803(c)(8), the trial judge likely erred by excluding the death certificate. To be sure, limits on the scope of the admissibility of a medical examiner's records have been recognized. For example, legal conclusions embodied in such records are not admissible. See Biro v. Prudential Ins. Co. of Am., 57 N.J. 204, 205 (1970), rev'g on dissent, 110 N.J. Super. 391, 405-06 (App. Div.) (Matthews, J.A.D., dissenting) (holding that a county medical examiner's conclusion that death was brought about by suicide was inadmissible); Pearson v. St. Paul, 220 N.J. Super. 110, 118-19 (App. Div. 1987) (determining that the county medical examiner's report was admissible, pursuant to N.J.S.A. 52:17B-92, because it "was not prepared for litigation," "was solicited by the medical examiner's office and relied upon by that office in certifying to the cause of death," and related to the medical cause of death "rather than non-medical opinions based on medical facts"). But none of the disqualifying circumstances suggested in our case law were present here.
Because the trial judge erroneously excluded the death certificate, we find no error in permitting testimony of the death certificate's content. Indeed, plaintiff's arguments in that regard are no different than those urged as a basis for excluding Dr. Hood's expert testimony and, for the same reasons, we conclude the argument regarding the content of the death certificate to be without merit.
Given the fact that N.J.S.A. 52:17B-92 authorized admission of the death certificate, the admission of testimony regarding its content -- even if arguably erroneous -- was undoubtedly harmless.
In a pretrial in limine motion, plaintiff argued that references to plaintiff's ingestion of Bextra for approximately eleven months prior to her death should have been excluded because no expert was expected to opine that Bextra ingestion was a contributing factor in Dawn's death. The judge denied that motion, concluding that
given the fact that it would seem to be a significant possibility that the jury may conclude that the cause of death was a pulmonary embolism, which Bextra and other . . . similarly chemically engineered drugs like VIOXX have been associated with, I find the probative value outweighs any unfair prejudicial value in that it's certainly a consideration that should have been taken into account by anyone that was provided that information, and each expert that will be speaking on causation, I find it appropriate to have them address it, as to why the presence of Bextra is relevant in support of a particular diagnosis or why it really does not explain what happened to this unfortunate young woman.The judge did, however, preclude Dr. Hood from opining that Bextra was a contributing factor because Dr. Hood did not have any information regarding Dawn's ingestion of Bextra when he determined that death was caused by cardiovascular disease.
As a result of this ruling, plaintiff's counsel elicited testimony from Dr. Wecht in which he excluded Bextra as a contributing cause:
Q. There's also been some suggestion that the death could have resulted from the prescription Bextra. You were asked [during your deposition], I believe, questions about that. Did you rule out Bextra as a cause?During cross-examination, defense counsel elicited from Dr. Wecht that Dawn likely had ingested Bextra on a daily basis for approximately eleven months, from April 2003 to March 2004. The defense, however, never offered expert testimony to support a contention that Bextra ingestion contributed to Dawn's death.
A. I was asked about that and I'm aware that that has been raised. . . .
It was taken off the market in 2005, the earlier part of '05 after some studies revealed that it had produced problems, including death in people, but the study showed that overwhelmingly those deaths
occurred in people who had undergone surgery, coronary artery bypass graph surgery . . .[,] that those deaths occurred in such individuals and also in people who had been steadily taking Bextra usually for a long period of time.
There [were] some cases of a shorter time, but most for a longer time and almost all, in the one big study of the people who had coronary artery bypass graph surgery, which, of course, Ms. Witman never had, so I don't think that it would be valid to -- I mean it's okay to consider and raise the question, but I don't think that there's a basis for anybody to express an opinion with reasonable medical certainty or probability that Bextra caused this death.
Whether testimony regarding Bextra ingestion should have been permitted presented a close question because it could have had the effect of suggesting to the jury a cause of death without requiring expert testimony to support that suggestion. Our standard of review, however, does not permit intervention because we may have ruled otherwise on a discretionary evidence ruling. We find no abuse of discretion in the judge's determination that the probity of this evidence outweighed any undue prejudicial effect. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (holding that "[t]he trial court is granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature"). We are satisfied that the judge's ruling did not result in a manifest denial of justice, Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); Green, supra, 160 N.J. at 492, because the testimony that specifically dealt with Bextra -- Dr. Wecht's testimony -- forcefully rejected it as a contributing cause.
Defendant has argued that plaintiff should not be heard to complain about any error that may have been made in this regard because plaintiff's counsel opened the door by first asking Dr. Wecht, during direct examination, about Bextra. Defendant's argument in this regard is disingenuous. Plaintiff was forced into dealing with Bextra ingestion because the judge's in limine ruling opened the door to this evidence. By attempting to defuse the problem before it came out in cross-examination, plaintiff cannot be said to have waived the right to later complain of the judge's ruling.
Plaintiff's last argument also relates to a determination, pursuant to N.J.R.E. 403, that the probity of certain evidence outweighed its prejudicial effect.
In this regard, plaintiff argues that the trial judge erred in permitting Dr. Hood to testify that Dawn's blood alcohol content of 0.029 suggested she had imbibed prior to her death. The defense elicited this testimony to contradict plaintiff's version as to Dawn's condition prior to her death and to rebut plaintiff's theory that sepsis was the cause of death because alcohol consumption suggested that Dawn's condition had improved following her hospital visit, whereas, according to defendant's theory, the health of a patient with sepsis would progressively worsen.
That is, plaintiff factually attempted to demonstrate that Dawn's condition had not improved but had worsened after her hospital visit. Plaintiff testified that in the week following Dawn's release from the hospital, she was not eating because "food, even the smell, was making her sick," and Dawn "tried to drink . . . Gatorade and drinks like that" but "couldn't keep it down." Dr. Hood's testimony -- in which he excluded as unlikely all other possible sources for the alcohol in Dawn's system other than through "the consumption of 2 to 3 drinks, 10 ounce glasses of beer or a 200cc glass of wine or 1 ounce shot of liquor" -- was relevant to rebut this, the defense theory being that someone in the condition described by plaintiff would not likely imbibe alcohol.
The alcohol evidence was also an appropriate subject in light of Dr. Wecht's testimony in plaintiff's case-in-chief that Dawn's blood alcohol content was attributable to "an artefactual post-mortem production" that "would relate . . .to a combination of the diabetic condition, the hyperglycemia, and some infectious process with some kind of microorganism capitalizing on the presence of the sugar and producing a little bit of alcohol." Dr. Hood refuted this and, as observed above, attributed the blood alcohol content to Dawn's consuming alcohol prior to her death.
In his disposition of the in limine motion on this subject, the trial judge concluded that evidence regarding Dawn's blood alcohol content was "fair game." The judge explained this ruling in the following way:
[W]hile I understand that plaintiff's expert or experts have an explanation for it, I find that's for the jury to sort out. It certainly is evidence of potential -- possible evidence of alcohol consumption. And I don't find that . . . the unfair prejudicial value would outweigh the probative value. It's part of the constellation of information that was available to all the experts, but particularly the causation experts. And I think it is a fair matter to be debated, and may be helpful when convincing the jury which expert or experts is more qualified or more credible, as to whether or not the alternative explanation is accepted or not.We agree there was a legitimate dispute about the significance of Dawn's blood alcohol content to be decided by the jury. The only prejudicial effect was the likelihood that the jury might have determined that if Dawn was imbibing then her illness was not getting progressively worse -- a conclusion which would have damaged plaintiff's theory that sepsis was the cause of death. That relevant evidence contradicts the objecting party's theory of the case, however, is not the type of prejudice to be balanced in determining admissibility pursuant to N.J.R.E. 403. See Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 317 (1995) (recognizing it "would ill-serve the cause of truth and justice if we were to exclude relevant and credible evidence only because it might help one side and adversely affect the other"). It is "undue prejudice" that triggers application of N.J.R.E. 403 and, like the trial judge, we are satisfied that any prejudice to plaintiff's theory of liability urged at trial was not undue. As the judge determined, the impact of this evidence on the parties' contentions was debatable and for the jury to resolve.
If, on the other hand, the . . . decedent was consuming alcohol, while that would seem highly unusual, I think that's information that should not be excluded from the jury.
We conclude that the judge properly exercised his discretion in admitting this evidence. Like our disposition of plaintiff's argument regarding evidence of Bextra ingestion, the applicable standard of review requires our deference to the trial judge's exercise of his discretion in permitting the admission of Dawn's blood alcohol content. See Verdicchio, supra, 179 N.J. at 34; Green, supra, 160 N.J. at 492.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION