NANCY SISCO VS. CHAN W. PARK, M.D. (L-0789-16, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4442-18
NANCY SISCO and
CARLA IRUSTA, Individually,
and NANCY SISCO as
Administratrix Ad Prosequendum
for the Estate of Rosa
Rodriguez-Sanchez, Deceased,
Plaintiffs-Appellants,
v.
CHAN W. PARK, M.D.,
Defendant-Respondent,
and
ALEJANDRO VAZQUEZ, M.D.,
ZIAD C. SIFRI, M.D., EDWARD
ANDRAOS, M.D., KARTIK
DANDU, M.D., UNIVERSITY
HOSPITAL, RUTGERS
BIOMEDICAL and HEALTH
SERVICES, and STATE OF
NEW JERSEY,
Defendants.
_____________________________
Argued December 14, 2020 – Decided April 26, 2021
Before Judges Messano, Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-0789-16.
G. Martin Meyers argued the cause for appellants (Law
Offices of G. Martin Meyers, PC, attorneys; G. Martin
Meyers, on the briefs).
Beth A. Hardy argued the cause for respondent (Farkas
& Donohue, LLC, attorneys; Evelyn Farkas, of counsel;
Beth A. Hardy, on the brief).
PER CURIAM
Plaintiffs Nancy Sisco and Carla Irusta are respectively the daughter and
grand-daughter of Rosa Rodriguez-Sanchez, who, on June 15, 2015, at the age
of eighty-three, underwent surgery to remove a Stage III cancerous lesion in the
anterior portion of the floor of her mouth. In addition to excising the cancer,
the procedure required defendant Dr. Chan W. Park, board-certified in
otolaryngology with a sub-specialty in head and neck surgery, to graft a piece
of skin from Rosa's forearm onto the surgical site, make surgical vascular
connections, and remove some lymph nodes in her neck to assure the cancer had
A-4442-18
2
not spread.1 Defendant elected not to perform a tracheostomy 2 intraoperatively,
concluding it was unnecessary to keep Rosa's airway open during or after
surgery. Following the seven-to-eight-hour surgery, Rosa remained sedated,
was moved to the surgical intensive care unit (SICU) and left with an
endotracheal breathing tube in place.
Rosa was generally in good health and tolerated the surgery well.
According to defendant, he checked his patient's status early the following
morning and noted she was in no acute distress, nor was there extensive swelling
in her mouth. Plaintiffs, however, disputed defendant's characterization of
Rosa's post-operative condition. They said Rosa was uncomfortable for most of
the day and her mouth was swollen. There was a discharge of bloody fluid from
Rosa's mouth and neck, and they were frustrated by unsuccessful attempts to
speak with defendant, except for a short conversation on the hospital elevator.
Defendant said he checked on Rosa again around 2 p.m., after she was
extubated, to examine the skin graft. He expressed some concern about the
1
We sometimes use the first names of plaintiffs and decedent in this opinion
for ease of reference. We intend no disrespect by this informality.
2
A tracheostomy, or tracheotomy, is "[t]he operation of opening into the
trachea, usually intended to be temporary." Stedman's Medical Dictionary 1830
(26th ed. 1995).
A-4442-18
3
swelling and blood flow to the "flap" of skin and removed two of the twenty
sutures, which, he concluded, improved the situation. According to defendant,
Rosa was "breathing comfortably," speaking to him and her family, and had
experienced no swelling of her tongue. Defendant said he checked her again at
6 p.m. and Rosa was "breathing, talking, no swelling, no airway issues."
However, it was undisputed that at approximately 3:15 a.m., an "acute
event" occurred. Rosa's blood oxygen saturation levels dropped precipitously,
and she went into cardiac arrest. The SICU staff performed a cricothyrotomy 3
to access her airway and alerted defendant, who arrived at the hospital and
performed an emergency tracheostomy. By then, Rosa had suffered an anoxic
brain injury that left her unable to walk or speak for the remainder of her life.
She died approximately eighteen months later, in February 2017.
In the interim, plaintiffs filed suit alleging lack of informed consent and
medical malpractice by defendant and other medical providers. Upon Rosa's
demise, plaintiffs amended the complaint adding claims for her wrongful death
and survival damages; the amended complaint added other health care providers
3
A cricothyrotomy is an "[i]ncision through the skin and cricothyroid
membrane for relief of respiratory obstruction; used prior to or in place of
tracheotomy in certain emergency respiratory obstructions." Stedman's Medical
Dictionary 411 (26th ed. 1995).
A-4442-18
4
as defendants. Ultimately, the court dismissed the wrongful death claim and all
claims against the other defendants, and the case proceeded to trial solely against
defendant on plaintiffs' survival action. See Warren v. Muenzen, 448 N.J. Super.
52, 57 (App. Div. 2016) (explaining the nature of and differences between a
wrongful death claim and a survival action).
After deliberating for slightly less than one hour, the jury found no cause
of action on both the informed consent and negligence claims. Plaintiffs moved
to set aside the no cause judgment pursuant to Rule 4:50-1(c), arguing that
without prior notice, defendant had materially changed his trial testimony from
that given during his deposition. See McKenney v. Jersey City Med. Ctr., 167
N.J. 359, 370 (2001) ("Where . . . an attorney knows that his client or a material
witness intends to deviate from his deposition testimony in a crucial way, we
believe that the attorney has an ethical obligation to convey that fact to his
adversary."). Plaintiffs also moved for a new trial, alleging various trial errors.
The judge denied both motions, and this appeal ensued.
Before us, plaintiffs appeal the orders denying their motions for a new
trial and to vacate the judgment of no cause by essentially reasserting the
arguments made in their post-verdict motions. We have considered these
contentions and affirm.
A-4442-18
5
I.
We set some well-known guideposts for our review. Rule 4:49-1(a)
provides that the trial court shall grant a motion for 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, however, are "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.'" Hayes v.
Delamotte, 231 N.J. 373, 385–86 (2018) (quoting Risko v. Thompson Muller
Auto. Grp., Inc., 206 N.J. 506, 521 (2011)).
We review the denial of a motion for a new trial using the same standard
as the trial judge, "whether there was a miscarriage of justice under the law."
Id. at 386 (quoting Risko, 206 N.J. at 522). "[A] 'miscarriage of justice' can
arise when there is a 'manifest lack of inherently credible evidence to support
the finding,' when there has been an 'obvious overlooking or under -valuation of
crucial evidence,' or when the case culminates in 'a clearly unjust result.'" Ibid.(quoting Risko, 206 N.J. at 521–22).
A-4442-18
6
In our review, however, we "must give 'due deference' to the trial court's
'feel of the case.'" Risko, 206 N.J. at 522 (quoting Jastram v. Kruse, 197 N.J.
216, 230 (2008)).
Although an appellate court has a duty to canvass the
record to determine whether a jury verdict was
incorrect, that verdict should be considered
"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."
[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130,
135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355,
360 (1979)).]
Rule 4:50-1(c) permits a court to vacate a judgment based upon "fraud
. . . misrepresentation, or other misconduct of an adverse party[.]" In arguing
their post-verdict motion, plaintiffs alleged defendant perjured himself at trial.
Perjured testimony that warrants disturbance of a
final judgment must be shown by clear, convincing and
satisfactory evidence to have been, not false merely, but
to have been willfully and purposely falsely given, and
to have been material to the issue tried and not merely
cumulative but probably to have controlled the result.
[Gilgallon v. Bond, 279 N.J. Super. 265, 267 (App. Div.
1995) (quoting Shammas v. Shammas, 9 N.J. 321, 330
(1952)).]
A-4442-18
7
II.
The trial record patently reveals the highly contentious nature of the
proceedings. Judge Bruno Mongiardo, now retired, did a commendable job
maintaining the order and dignity of the courtroom, but only by frequently
cautioning both lawyers, who constantly spoke over each other and oftentimes
interrupted the judge.
Plaintiffs argue that alleged "McKenney violation[s]" resulted in a "trial
by ambush." The claim is premised upon comments in defense counsel's
opening statement, defendant's trial testimony, and the trial testimony of defense
liability expert, Dr. Rod Rezaee. We provide context for each leg supporting
plaintiffs' overarching claim.
A.
i
As we discuss in greater detail below, the trial court limited plaintiffs'
claim of deviation from accepted standards of medical care to defendant's
decision not to perform a tracheostomy "intraoperatively." Plaintiffs contended
that failure meant swelling in Rosa's oral cavity resulted in an airway obstruction
that triggered the cascading series of events leading to her anoxic brain injury
and final vegetative state. In her opening statement, defense counsel sought to
A-4442-18
8
rebut any inference that a tracheostomy was a benign procedure posing little risk
of complications. She told the jury:
[Defendant] will tell you that in his experience, in all
of the cases where he made the intraoperative decision
not to do a tracheostomy, he's never had this happen
ever.
....
[A] tracheostomy is another operative procedure.
. . . You're making an incision . . . and . . . putting a
tube . . . into the trachea. The risks include bleeding,
infection. They include obstruction of the airway . . . .
[Y]ou can have an obstruction of the airway if you do a
tracheostomy or you don't do a tracheostomy.
So, in [defendant's] experience, he's actually had
very good success with this surgery, but he has actually
had a patient die from bleeding from a tracheostomy,
one of his patients. . . . [I]t's not a benign nothing
procedure . . . and you have to decide does this patient
need it.
[(Emphasis added).]
Plaintiffs' counsel did not object, and immediately after openings concluded,
Carla was called as a witness and testified for approximately forty-five minutes
before the trial recessed for the day.
At the start of the following day's proceedings, plaintiffs' counsel asked
for a curative instruction regarding the reference to defendant's unidentified
patient who died after he performed a tracheostomy. Counsel noted that
A-4442-18
9
defendant never previously disclosed that incident or that it was "a reason for
anything he did or didn't do." He accused defendant of "willfully conceal[ing]"
the incident during discovery, likened the remark to "drop[ping] a bomb" and a
"classic example of trial by ambush," and claimed the comment was so
prejudicial that a curative charge was necessary.
After listening to defense counsel's response, the judge noted it was fair
for defendant to assert that, contrary to plaintiffs' position, a tracheostomy posed
risks that outweighed its necessity in this case. However, he correctly concluded
it was improper for defense counsel to refer to a specific, unidentified patient
who suffered a fatal result, particularly because the judge would not permit
defendant to testify about it since it was never revealed in discovery. Noting the
passage of time since defense counsel's remarks and Carla's intervening
testimony, the likelihood that jurors would forget the comments certainly by the
end of trial, and that expert testimony would explain for the jurors the risks of
such a procedure, the judge declined to give a curative instruction. 4 In rendering
his decision on the post-verdict motions, the judge did not specifically address
the issue.
4
Defendant did not reference the incident at all during his testimony.
A-4442-18
10
ii
In interrogatory answers, defendant referred plaintiffs to his operative
report (the report) explaining the procedure he performed on Rosa. Plaintiffs
posed a specific supplemental interrogatory that asked why defendant had not
performed a tracheostomy "in the course of or immediately following" the
surgery. Defendant answered by directing plaintiffs to the report, which said he
observed no swelling of Rosa's tongue and no significant swelling of the skin
graft, so defendant decided not to perform a tracheostomy "due to the minimal
swelling and to just leave [Rosa] intubated til tomorrow or until swelling
resolved."
At defendant's deposition, which took place before any of the liability
experts' reports were served, plaintiffs' counsel referred to this portion of the
report and asked, "Were there any other considerations that you took into
account in connection with your decision about whether or not to perform a
tracheostomy?" Defendant responded, "I don't believe so." However, that
exchange was immediately followed by questions regarding other factors, for
example, Rosa's age and that she was asthmatic. Earlier, plaintiffs' counsel
asked defendant to explain why a tracheostomy would sometimes be performed
in connection with Rosa's type of surgery, and defendant explained it would
A-4442-18
11
"bypass" "anticipated swelling," avoid prolonged ventilator status and aid post -
operative pulmonary care and "toilet." At trial, plaintiffs' expert, Dr. Michael
Morris, said that his analysis of four factors — the location of the surgery in the
oral cavity, the size and extent of the resection, the swelling visible at the end
of the surgery, and the concurrent neck dissection — led him to opine that the
requisite standard of medical care required an intraoperative tracheostomy in
anticipation of a possible airway obstruction.5
When he testified on direct examination at trial, defendant was asked to
explain his "thought process during the surgery as to whether or not a
tracheostomy needed to be done." He described the location of the surgery in
the anterior of Rosa's mouth, removal of a limited number of lymph nodes on
only one side of her neck, and the lack of significant swelling after the lengthy
surgery. Defense counsel referred defendant to the report's reference to these
issues. Plaintiffs' counsel posed a single objection, which the judge overruled,
when defendant was asked why he had performed tracheostomies in other cases.
On cross-examination, plaintiffs' counsel almost immediately referenced
defendant's deposition testimony. Defendant did not deny the answer previously
5
In summation, plaintiffs' counsel broke these down into "five increased risk
factors."
A-4442-18
12
given and said his answer — a lack of any significant swelling — reflected his
"intraoperative decision." Counsel continued in his attempt to have defendant
admit that he never cited any other factors that militated against performing the
tracheostomy, and defendant responded by stating his deposition answer was
limited and in response to a question about his report. Ultimately, the attorneys
went to sidebar, where the judge said:
[Defendant's] answer is very clear. He's already
answered it twice. Now he has basically said his
interpretation of that question at the dep had to deal
with an intraoperative decision. . . . Whether you
(plaintiffs' counsel) like that or not, you can deal with
it. But I can't allow it to be asked over and over.
In his summation, plaintiffs' counsel argued extensively that defendant's trial
testimony was inconsistent with his deposition testimony and his failure to
consider other factors resulted in the erroneous decision not to perform a
tracheostomy.
As noted, plaintiffs' Rule 4:50-1 motion was premised on defendant's
"perjured" testimony at trial and the Court's holding in McKenney. Judge
Mongiardo noted that counsel "had the opportunity to thoroughly deal with"
defendant's allegedly inconsistent testimony "on cross-examination" and in
summation. The judge also noted his final instructions told the jury to consider
inconsistencies in the testimony of all the witnesses, and explanations given for
A-4442-18
13
those inconsistencies, when judging credibility. In his oral decision issued after
argument on the motions, the judge rejected any claim that defendant had
perjured himself or there was a McKenney violation.
iii
It was undisputed Rosa suffered a heart attack at approximately 3:15 a.m.
on June 17. Plaintiffs moved in limine to bar defendant from presenting any
evidence that Rosa had "a heart problem aside from the cardiac arrest that
occurred on [June] 17." Defense counsel responded, "We're not going to blame
her situation on a heart problem that resulted in her cardiac arrest." Plaintiffs'
counsel told the judge: "[T]hey can say that there was a cardiac arrest . . . that
they don't know the cause . . . I just don't want the argument to be made that
there's reason to believe that this woman simply had a heart attack."
Dr. Rezaee testified that no one could say with certainty what caused the
acute incident in the early morning of June 17; defense counsel asked, "What
are some of the possibilities?" He responded, "Mucous plugging," a collection
of mucous that suddenly blocked Rosa's windpipe, or an "arrhythmia . . . a short
circuiting of the heart causing it to beat funny . . . ." Plaintiffs' counsel objected,
and the judge sustained the objection. Plaintiffs cited the doctor's testimony as
further support for a new trial.
A-4442-18
14
In his oral decision denying plaintiffs' motions, the judge noted that while
it was undisputed Rosa suffered a cardiac arrest, the reason was disputed. "The
fact that there were other possible causes for the arrest was a permissible area
of inquiry, particularly, when defendant's . . . expert's report commented . . . that
the [failure to perform the] tracheostomy was not the cause of [Rosa's] arrest."
Judge Mongiardo observed that plaintiffs' counsel "was well aware of this fact.
In essence, plaintiff[s] sought to shift the burden of proof to . . . defendant."
The judge determined that having decided defendant was not negligent for
failing to perform an intraoperative tracheostomy, the jury never needed to
decide what caused Rosa's cardiac arrest. The judge cited the Court's opinion in
Campo v. Tama, where it held, "because the jury found that [the defendant
doctor] had not been negligent in treating [the plaintiff], it properly did not reach
the issue whether the alleged negligence" was a proximate cause of the spread
of the plaintiff's cancer. 133 N.J. 123, 133 (1993).
B.
Having reviewed the complete record, none of these contentions support
plaintiffs' claim that they were entitled to a new trial for alleged McKenney
violations or, as it relates solely to defendant's trial testimony, pursuant to Rule
4:50-1(c).
A-4442-18
15
In McKenney, the plaintiffs sued the medical center and several staff
members involved in the birth of their child who was afflicted with spina bifida.
167 N.J. at 364. The plaintiffs argued that the medical center and its staff failed
to inform them that their child's condition, claiming that such information should
have been seen on sonograms prior to the time that an abortion could have been
lawfully performed. Ibid.In his deposition, the defendant, Dr. Hu, the chief Obstetric/Gynecological
(OBGYN) resident at Jersey City Medical Center (JCMC), acknowledged
viewing the scans well in advance of the child's birth. Id. at 366. However, at
trial, Dr. Hu changed his testimony, stating that upon review of a JCMC
sonogram logbook that plaintiffs' counsel had unsuccessfully sought during
discovery, he determined that he probably did not review the sonogram until
weeks later after an abortion was no longer an option. Id. at 366–67. Another
witness, a certified ultrasound sonographer who was previously a defendant in
the case, also changed her testimony during trial from what she initially provided
in her deposition. Id. at 367. It was later revealed that defense counsel learned
of the change in testimony the night before trial and failed to notify plaintiffs'
counsel. Id. at 369.
A-4442-18
16
The Court concluded that "defense counsel had a continuing obligation to
disclose to the trial court and counsel for plaintiffs any anticipated material
changes in a defendant's or a material witness's deposition testimony." Id. at
371. Such a rule was consistent with the principles of fairness surrounding the
obligation of candor between adversaries in the legal system. Ibid.Individually or collectively, the three issues cited by plaintiffs fail to
demonstrate a McKenney violation, or that defendant clearly and convincingly
perjured himself, a necessary predicate to vacate a judgment pursuant to Rule
4:50-1(c).
Judge Mongiardo properly considered that defense counsel's opening
remarks were made in advance of days of future testimony and would not likely
be remembered by the jury. See, e.g., Amaru v. Stratton, 209 N.J. Super. 1, 16
(App. Div. 1985) ("The remarks by plaintiff at this early stage of the proceedings
were not of such moment as to threaten [defendant's] enjoyment of a fair trial.").
Defense counsel's comments were brief, and the substance of the comments was
not repeated. See, e.g., Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div.
2009) ("Fleeting comments, even if improper, may not warrant a new trial,
particularly when the verdict is fair."). Moreover, plaintiffs' expert, Dr. Michael
A-4442-18
17
Morris, acknowledged in his testimony that there were inherent risks in
performing a tracheostomy.
Defendant's trial testimony, in which he acknowledged consideration of
other factors in deciding not to perform a tracheostomy, was hardly akin to that
which justified a new trial in McKenney. Both experts agreed that there were
several factors to be considered in performing or not performing a tracheostomy
intraoperatively, including factors mentioned in defendant's operative report.
Defendant may not have cited them specifically in his deposition testimony;
however, defendant was specifically asked in the deposition about other
considerations. Moreover, as Judge Mongiardo explained, this trial was a battle
of experts, and Dr. Morris admitted on cross-examination that although he had
performed many tracheostomies, he was not qualified to and had never
performed the same surgery as that which defendant performed on Rosa.
Finally, we do not agree with some of Judge Mongiardo's analysis of Dr.
Rezaee's testimony. Whether a tracheostomy would have avoided the potential
consequence of a blocked airway, i.e., cardiac arrest, was inexorably connected
to plaintiffs' theory of the case. The jury's finding of no deviation does not mean
the causation question was of no consequence.
A-4442-18
18
However, we do agree with the judge's recognition that plaintiffs bore the
burden of proof, not defendant. It was their burden to prove by a preponderance
of the evidence that oral swelling blocked Rosa's airway, as Dr. Morris posited,
and that defendant should have anticipated this and performed a tracheostomy
intraoperatively. Thus, whether some other conditions, e.g., a mucous plug or
temporary arrythmia, caused the cardiac arrest were medically plausible
alternative explanations that the jury was entitled to consider in evaluating
whether plaintiffs shouldered their burden. Defendant was under no obligation
to prove, within a reasonable degree of medical certainty, what caused Rosa's
cardiac arrest. These alternative causes were mentioned in Dr. Rezaee's report
and, when plaintiffs' counsel objected to defendant's attempt to go further on
cross-examination, the judge sustained the objection.
In sum, we affirm the orders denying a new trial based upon alleged
McKenney violations and plaintiffs' motion to vacate the judgment pursuant to
Rule 4:50-1(c).
III.
Plaintiffs cite several alleged evidentiary errors as singly or collectively
justifying a new trial. We address them seriatim by first recognizing the "well-
established principle that '[e]videntiary decisions are reviewed under the abuse
A-4442-18
19
of discretion standard because, from its genesis, the decision to admit or exclude
evidence is one firmly entrusted to the trial court's discretion.'" Rodriguez v.
Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019) (alteration in original) (quoting
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010)).
Ultimately, it is the job of the trial court to exercise its broad discretion "to
determine both the relevance of the evidence presented and whether its probative
value is substantially outweighed by its prejudicial nature." Ibid. (citing Wymbs
v. Twp. of Wayne, 163 N.J. 523, 537 (2000)). Reversal based on alleged errors
in evidentiary rulings is only proper when those rulings are "so wide off the
mark that a manifest denial of justice resulted." Griffin v. City of E. Orange,
225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,
492 (1999)).
In summation, plaintiffs' counsel argued that defendant failed to produce
a cardiologist to support the claim that Rosa experienced cardiac arrythmia;
defense counsel objected, and the judge sustained the objection. Citing Bender
v. Adelson, 187 N.J. 411, 433 (2006), plaintiffs now argue this was error.
The facts in Bender are inapposite. There, after barring a defense expert
from testifying because of a discovery violation, the trial judge blocked the
plaintiff's counsel's attempt to argue in summation that the defendant failed to
A-4442-18
20
produce an expert that rebutted the plaintiff's case. The Court determined that
was reversible error. Id. at 433–35.
In preliminary proceedings here, defense counsel agreed not to assert Rosa
had an underlying heart condition that caused her cardiac arrest. For the reasons
already expressed, defendant did not assert, nor was he required to prove, that
Rosa suffered cardiac arrest as the result of an arrythmia. Plaintiffs were fully
able to argue there was no proof that she did, noting that Rosa's heart rhythm
returned to normal shortly after SICU doctors intervened, and she never
experienced cardiac problems again.
Next, plaintiffs argue Judge Mongiardo improperly allowed Dr. Rezaee
to cite an article that was published a year after Rosa's surgery in support of his
position that failure to perform an intraoperative tracheostomy was not a
deviation from accepted medical standards. Plaintiffs claim the article
supported a standard of care other than that recognized at the time of Rosa's
surgery.
"In a medical-malpractice action, the plaintiff has the burden of proving
the relevant standard of care governing the defendant-doctor[.]" Komlodi v.
Picciano, 217 N.J. 387, 409 (2014). The standard must be based on the state of
A-4442-18
21
scientific knowledge at the time of the alleged malpractice. Kimmel v. Dayrit,
301 N.J. Super. 334, 356 n.11 (App. Div. 1997).
The article in question, "Unfavorable Results After Free Tissue Transfer
to Head and Neck: Lessons Learned at the University of Washington," was not
published until October 2016. However, the data used in the study was collected
over twenty years at the University of Washington, and defendant himself was
involved in the research during his fellowship training. Essentially, the article
supported the proposition that many surgical patients like Rosa suffered no
adverse consequences when a tracheostomy was not performed.
Dr. Rezaee referred to the article in his expert report, and plaintiffs' expert,
Dr. Morris, also referenced the article in his supplemental report. Dr. Morris
was questioned about it at trial. Plaintiff mischaracterizes the article by claiming
it enunciated a new standard of care. Rather, the article provided support for
one opinion over another regarding the same standard of care, i.e., whether given
the nature of Rosa's surgery, an anticipatory tracheostomy should have been
performed.
Defendant wrote two prescriptions for Rosa to undergo pre-operative
scans. Although the first took place, the surgery was scheduled before the
second pre-operative CT scan was to occur. Carla testified in support of
A-4442-18
22
plaintiffs' informed consent cause of action, stating defendant "didn't say
anything" about the risks that accompanied Rosa's surgery. Plaintiffs sought to
introduce testimony that when Carla brought to defendant's attention that the
second scan had not taken place, he simply tore up the prescription and
proceeded to perform the surgery.
Plaintiffs did not assert that the second scan was a prerequisite for the
surgery or the failure to perform it compromised the surgery's success. In
explaining his decision to bar the testimony, Judge Mongiardo explained:
It's going to be for the jury to decide whether risks were
or were not discussed. But to add that little extra to it,
I think, is not going to add anything insofar as probative
value is concerned. And it's certainly going to inject
into the case prejudice. And that prejudice is going to
greatly outweigh the questionable probative value, if
any. So I'm not going to allow that.
"N.J.R.E. 403 specifically allows a judge, in his or her discretion, to
exclude otherwise admissible evidence under specified circumstances. These
decisions are reviewed under the abuse of discretion standard." Benevenga v.
Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126
N.J. 112, 131 (1991)). Here, the evidence lacked any probative value on the
question of informed consent and was intended to show, as the judge noted,
defendant's alleged "arrogance." We find no mistaken exercise of discretion.
A-4442-18
23
Plaintiffs contend the judge's decision to preclude the reading of the
deposition of Dr. Andraos to the jury was in error. Dr. Andraos was a resident
at the hospital and observed Rosa around 9 p.m. on the night following surgery
and hours before the acute event that led to her anoxic brain injury. He noted
swelling in the oral cavity and consulted the ENT team but not defendant
directly.
Defendant said that Dr. Andraos did not contact him with any concerns
about Rosa, and he was not notified until he was summoned to perform the
emergency tracheostomy in the early morning hours of the following day. Dr.
Andraos had moved to Texas by the time of trial and was unavailable for trial.
In support of his decision to bar the deposition testimony, Judge Mongiardo
explained:
[A]rguably you might have a stronger argument if Dr.
Andraos testified that he communicated this
information to [defendant].
....
He never did. And I can't have the jury then
speculate, well, maybe he communicated to the ENT
team or to the intensivists and maybe they then
communicated. . . . No matter what Dr. Andraos may .
. . have observed, if he did not specifically
communicate that observation to [defendant,] it's too
speculative.
A-4442-18
24
Plaintiffs appropriately argue the deposition testimony should have been
admitted if only to support their testimony that Rosa was in distress because of
the oral swelling and claims regarding defendant's unavailability. However, we
cannot conclude the exclusion of the evidence, even if error, requires reversal.
See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of producing an
unjust result . . . .").
Lastly, plaintiffs contend the judge erred in limiting Dr. Morris's
testimony, arguing the decision was in response to defendant's "unannounced"
motion in limine, was "clearly erroneous" and was so "highly prejudicial" as to
require reversal of the jury’s verdict. We again disagree.
Before Dr. Morris testified, defense counsel asked the judge to limit the
doctor's opinion to that expressed in his reports and at his deposition, namely,
that defendant's only deviation from accepted standards was his failure to
perform a tracheostomy intraoperatively in anticipation of a possible airway
collapse. Plaintiffs' counsel objected, claiming the expert should be able to
speak to "a couple of red flags in the developments afterwards that gave
[defendant] the opportunity to change that decision and [defendant] should have
acted . . . ."
A-4442-18
25
Following an extended colloquy, Judge Mongiardo agreed with defendant.
He explained that Dr. Morris's report and deposition addressed the factors that
should have been anticipated at the time of the surgery, and that defendant
deviated from the standard of care because he failed to anticipate a potential
blockage of Rosa's airway and manage that possibility through an intraoperative
tracheostomy. Now, the judge reasoned, plaintiffs were trying to add an
additional alleged deviation, i.e., defendant's failure to perform a tracheostomy
during Rosa's post-operative stay in the SICU.
An "expert's testimony at trial may be confined to the matters of opinion
reflected in that report, . . . [h]owever, the logical predicates for and conclusions
from statements made in the report are not foreclosed." Congiusti v. Ingersoll-
Rand Co., 306 N.J. Super. 126, 131 (App. Div. 1997) (alteration in original)
(quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.
1987)). The decision to exclude expert testimony on the ground that it was not
covered in the written report provided in discovery lies within the discretion of
the trial court. Ibid. Generally, however, the testimony should not be excluded
where there is "(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
A-4442-18
26
result from the admission of the evidence." Id. at 131–32 (quoting Ratner v. Gen.
Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990)).
We agree with Judge Mongiardo's rejection of plaintiffs' argument that
permitting Dr. Morris to add defendant's post-operative acts or omissions as
deviations from accepted medical standards of care was not a logical predicate
or conclusion of his previously-expressed central opinion, i.e., that defendant
should have anticipated the possibility of an airway collapse and performed a
tracheostomy as part of the surgery. In fact, plaintiffs had named several doctors
who attended Rosa in the SICU as defendants, and Dr. Morris addressed their
potential liability in his initial report. However, those defendants were no longer
in the case, and nothing in Dr. Morris's report or deposition opined that
defendant deviated from accepted standards of care during that period of time.
Affirmed.
A-4442-18
27