On appeal from Superior Court of New Jersey, Law Division, Union County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
[186 NJSuper Page 468] In this action for conscious pain and suffering to plaintiff's decedent and for dependency damages in a wrongful death action, all predicated upon alleged medical malpractice, the jury returned a verdict in the amount of $7,500 in the survival action and in the amount of $1,150,000 in the death action. Following the denial of the motion of Dr. Mullen for a new trial on all issues, a remittitur or in the alternative a new trial as to damages only, and the denial of plaintiff's motion for additur, defendants Mullen, Porter, Frantz and Warren Hospital filed timely notices of appeal. Plaintiff cross-appealed from the
denial of her motion for additur. The latter appeal has been abandoned.*fn1
Expressed in five points, defendants' complaints on this appeal distill into three areas: (1) the charge, (2) the qualification of Dr. Coombs and (3) the amount of the verdict. We consider those in that order.
The objections to the charge are subdivided into four areas. The first of these accuses the trial judge of having charged the jury in a manner which was "rambling, anecdotal and laced with prejudice against the defendant." The second and third criticize the charge with respect to the definition of proximate cause and burden of proof, respectively. Finally, a challenge is leveled at "error in instructing the jury with respect to pre-existing pain and suffering."*fn2 At the outset we observe that in connection with the charge in this case, the transcript of which totalled 113 pages, the only objection raised by defendants was that of counsel for Dr. Mullen who objected only to so much of the charge as "switched" the burden of proof of the allocation of damages for pain and suffering, following the determination of the existence of such actionable damages, to defendant. The other complaints respecting the charge were not raised below, a fact not reported to us in the table of contents of defendants' brief (R. 2:6-2(a)(1)) although said to be a "conceded fact" in the reply brief of defendants. Accordingly, we need consider those complaints only to the extent that they demonstrate plain error, i.e., error which is of such a nature as to have been clearly capable of producing an unjust result. R. 2:10-2. In this respect we note as well the wisdom of Judge Labrecque as it appears in Nesta v. Meyer, 100 N.J. Super. 434 (App.Div.1968):
Relief under the plain error rule is to be sparingly granted. Ford v. Reichert, 23 N.J. 429, 435 (1957). The purpose of the rule requiring objection to the charge is to alert the trial judge to the asserted error and thus afford him an opportunity of correcting it before the jury retires to deliberate. Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J. Super. 8, 18 (App.Div. 1963). Frequently, for reasons of trial strategy or otherwise, experienced counsel elects to overlook an omission or inadvertence on the part of the trial judge. In such case an inference of passive indifference, if not acquiescence, may be drawn. Cf. Priest v. Poleshuck, 15 N.J. 557, 564 (1954); Valls v. Paramus Bathing Beach, Inc., 46 N.J. Super. 353, 357 (App.Div. 1957). But counsel may not be permitted to overlook alleged error in the charge as given to gamble on a favorable verdict and, upon the coming in of an adverse one, seek a "second bite of the apple" on the basis of plain error. Cf. Lippman v. Ostrum, supra, 22 N.J.  at p. 26. [100 N.J. Super. at 446]
It is difficult to reconcile the "passive indifference" demonstrated here by the absence of objection following this lengthy charge with the unrestrained assertions in the brief before us of such events as the trial judge's having "instantly prejudiced the defendants by his opening comments to the jury," and having engaged in a "needless whetting of the jury's appetite" and, by virtue of "comments [which] were totally gratuitous and the product of misguided zeal to render an esoteric subject intelligible to the average juror," having "sowed the seeds of a large pecuniary verdict against the defendant." Nor is an explanation for this inconsistency between the conduct of trial counsel and the concerns of counsel on the brief made more understandable by the fact that in at least two places in defendants' brief, misstatements (which are inadvertent, we are certain) appear. For instance, defendants claim apropos of the charge that the jury might find more than one defendant responsible, "[t]he Court neglected, however, to tell the jury that they might find none of the defendants responsible." This simply is not so. After announcing his intent to consider damages with the jury and before the damage charge was given, the judge stated, "This assumes that you find somebody who was negligent, it assumes that you find the negligence was a proximate cause of death and in the wrongful death claim or of unnecessary pain in the survival action." Later on, discussing the verdict sheets, he mentioned that which was "certainly a possibility that . . . you
found that none of the defendants is liable." Beyond this, counsel complains of the judge's "directing the jury to be Monday morning quarterbacks with respect to the cause of death [and having] impermissibly allowed the jury to judge the defendants' conduct by hindsight." The fact of the matter is that after the judge pointed out the benefits available to the jury by a backward look, he concluded with the instruction that when the jury was
And, the claim against Dr. Mullen is that as an orthopedist and from what he observed, from what he knew of Mr. Hudgins' condition, he should have done, should have done more. [Emphasis supplied]
Be all that as it may, in the interest of justice and without regard for this "passive indifference" of trial counsel or the zeal of the brief writer reflected in the misstatements, we have been assiduous in our review of the charge. With respect to defendants' first three subdivisions of this issue, we find that the charge read as a whole, as it must be, State v. Wilbely, 63 N.J. 420 (1973); State v. Council, 49 N.J. 341 (1967), in its over-all effect fairly apprised the jury of its obligations in this trial and certainly was not clearly capable of producing an unjust result. We cannot disagree with the contention of defendants that the charge was rambling and anecdotal. To this we would add that it was verbose. We believe, as did the court in State v. Council, supra, that the charge was not as clear or as comprehensive as it might have been, but as was the case in Council, we are unable to say that our careful review of it revealed prejudicial error in all this. We find no prejudice to defendants, either intentional or unintentional, emanating from the charge. As a matter of fact, a careful reading reveals a fairly even spreading of examples and comments pointing toward an unhappy result for plaintiff and defendants. As suggested above, "The failure to object points up the fact that experienced counsel did not consider that the use of the words detracted from the clear meaning which the charge as a whole
conveyed." State v. Wilbely, supra, 63 N.J. at 422. We are satisfied that both with respect to proximate cause and the burden of proof, the jury went into the jury room having been adequately advised as to their duty.
We have separated the fourth subsection of the complaint on the charge from the others because an objection in this respect was forwarded. With consideration for the fact that a number of defendants had participated in the medical care offered decedent between the time of his admission to the hospital and his death some seven hours later, and with proper regard for Fosgate v. Corona, 66 N.J. 268 (1974), the trial judge instructed the jury that if it found the "unnecessary" pain and suffering endured by decedent was the fault of one or more of the defendants, it would be necessary for the jury to make an evaluation and in this respect the burden was upon defendants to convince the jury of the probabilities respecting apportionment. We have no doubt of the propriety of this charge as a statement of the principle of Fosgate v. Corona. There it is said respecting malpractice involving the treatment of a pre-existing disease that
The justification for this rests upon the fact that a choice must be made, as to where the loss due to failure of proof shall fall, between an entirely innocent plaintiff and defendants who are clearly proven to ...