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Lawlor v. Kolarsick

Decided: October 14, 1966.

ETHEL LAWLOR AND JOSEPH LAWLOR, PLAINTIFFS-APPELLANTS,
v.
A. J. KOLARSICK AND CHARLES W. PATERNO, DEFENDANTS-RESPONDENTS



Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.

Foley

In this medical malpractice case plaintiffs appeal from a judgment for defendants entered upon a jury verdict of no cause of action.

Plaintiffs contend that the trial court abused its discretion in permitting "extensive cross-examination of an expert witness on inflammatory matters not relevant to the issues" of the case.

Consideration of plaintiffs' argument requires reference to the "Excerpts from Transcript" contained in the appendix, which consist solely of the testimony of Dr. Emanuel M. Josephson. The doctor was called as a witness by plaintiffs to render an opinion that defendants in their care and treatment of plaintiff Ethel Lawlor departed from standards of care recognized in the medical profession. In the course of the preliminary examination relative to qualifications, the doctor testified to his premedical and medical training and experience, his research of the surgical problem involved in the action, and the nature and extent of his activities as a practicing member of the medical profession. In the latter connection he stated:

"I have been engaged primarily in general medical work with special interest at various times in various fields. I am engaged in the practice of medicine as well as research. Research has been the basis of publication of numerous papers and leading journals here and abroad and also three books embodying my researches in medicine." (Emphasis added)

At this juncture the following occurred:

"Mr. Burns [plaintiffs' attorney]: My hypothetical is going to take some time. Do you wish to cross-examine on the qualifications before I start, rather than have me read a question for twenty minutes?

The Court: Is there any cross on the qualifications?

Mr. Carton [defendants' attorney]: Well, it will be rather extended. I don't know whether I should do it now or as part of my general cross-examination. I will do it either way the Court wants.

The Court: I think perhaps we had better dispose of it at this point."

Defendants' attorney then conducted the cross-examination which is under review. Strictly speaking, it might well be said that portions of the cross-examination, if proper, were more appropriate to general cross-examination, as distinguished from cross-examination on qualifications, as defendants' attorney anticipated. However, plaintiffs make no point of this in their brief and the attorney for plaintiffs frankly stated on oral argument that the same objections to the cross-examination would have been made had it been a part of the general cross-examination. Furthermore, the witness was not held to be disqualified by the court, and the weight and sufficiency of the testimony was submitted to the jury subject to its determination of credibility. Thus, the meritorious question before us is whether the trial judge, regardless of the stage of the case, mistakenly exercised his discretion in granting the latitude of cross-examination which appears in the record.

In this connection it should be pointed out that the scope of cross-examination is a matter for the control of the trial judge and that an appellate court will not interfere with such control unless clear error and prejudice is shown. Soronen v. Olde Milford Inn, 84 N.J. Super. 372, 373, 381 (App. Div. 1964). Accord, Rivera v. Grill, 65 N.J. Super. 253 (App. Div. 1961), ...


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