On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, Dreier and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
Defendant William Pollen, M.D. appeals from a default judgment entered against him in this medical malpractice case. This is our second opportunity to review plaintiff's claim. Initially, we reversed and remanded a judgment in favor of defendant Pollen based upon a jury verdict. On remand, the trial Judge hearing the matter as a proof case entered judgments in favor of John Jugan for $2,041,450 and in favor of
Carol Jugan in the amount of $750,000, with prejudgment interest of $1,655,358.25. We are again constrained to reverse and remand for a new proof hearing. For an understanding of our decision on this appeal we must relate in some detail the procedural history of this matter, the facts, and so much of our earlier decision as will explain our actions and give guidance to the trial Judge on remand.
The facts briefly summarized are that in the fall of 1982, Mr. Jugan was put in traction, operated upon unnecessarily by both defendant Dr. Pollen and then-defendant Stuart Friedman, M.D., for a laminectomy (disc removal and spinal fusion surgery). He was then post-operatively mistreated. Not only did the mistreatment cause severe pain, but Dr. Friedman, an addict, appropriated for himself the pain medication (Demerol) intended for the patient, leaving Mr. Jugan to suffer with little or no pain medication following the back surgery. Further, Dr. Pollen left the plaintiff unattended at the hospital for long vacation periods, and upon his return from one of these vacations attempted to discharge Mr. Jugan prematurely. Another physician at the hospital countermanded Dr. Pollen's order of discharge.
As a result of the disability which was caused by the operation and lack of proper post-operative care, plaintiff, although a 42-year-old formerly active man, was forced to undergo additional surgery, and apparently is now reduced to the life of an elderly, crippled man. Plaintiff asserts that his 35-year-old wife must care for him or make arrangements for his care because of what will be the life-long impairment suffered by Mr. Jugan at the hands of defendants Drs. Friedman and Pollen.
Plaintiffs filed their complaint on September 13, 1984. Dr. Pollen's answer was filed February 5, 1985. At a status conference on May 3, 1985, the court ordered Dr. Pollen to answer interrogatories within 40 days. Defense counsel, however, notified plaintiff's attorney that the interrogatories could
not be answered because Dr. Pollen's whereabouts were unknown. According to newspaper articles of which the present trial Judge took judicial notice, Dr. Pollen was absent from the jurisdiction for varying periods concealing assets in Europe, Canada, the Caribbean and South America. He is now in the custody of federal officials.
On November 22, 1985 the court entered an order denying Dr. Pollen's motion for a protective order regarding his obligations to answer interrogatories, and granted plaintiff's cross motion to dismiss the answer and all affirmative defenses for failure to file a timely response to the interrogatories. On December 18, 1985, Dr. Pollen's attorney answered the interrogatories to the best of his knowledge and requested that his client's answer be restored. The court denied this application on January 10, 1986. Thereafter Dr. Pollen's attorney who had been retained by his malpractice carrier moved to be relieved from the case, but the court denied this motion on July 3, 1986.
The matter was tried before a jury in March of 1988, and judgment was entered on April 20, 1988 awarding plaintiffs $10,000 in compensatory damages and $150,000 in punitive damages against Dr. Friedman on the issue of the conversion of the drugs. The jury determined, however, that there was no cause of action against either defendant based upon the alleged unnecessary surgery. Plaintiffs' motion for a new trial was denied and plaintiffs filed their initial appeal to this court.
In plaintiffs' initial appeal they claimed first, that the trial Judge had exceeded his discretion in permitting Dr. Pollen's counsel to open and close to the jury and to offer affirmative evidence through the testimony of the codefendant. Second, plaintiffs claimed that the Judge mistakenly and without proper limiting instructions admitted hearsay evidence offered by defendant Friedman which included opinions upon which Dr. Pollen could have been cross-examined had he not absented himself from the trial. Third, plaintiffs asserted that the trial Judge should not have prohibited all reference to Dr. Pollen
having absented himself from the trial, nor should the court have specifically declined both to give a charge under State v. Clawans, 38 N.J. 162, 173, 183 A.2d 77 (1962), and to permit comment upon any negative inference that could be drawn from Dr. Pollen's failure to appear. In fact, when plaintiffs' counsel, frustrated by the sustaining of the objection to counsel's statement that Dr. Pollen merely was absent, stated that "they didn't rest, they quit," the court imposed a $250 sanction against plaintiffs' counsel. We noted in our initial opinion that while the language that Dr. Pollen had "quit"
was somewhat inappropriate, . . . we can appreciate plaintiffs' frustration when he successfully had Dr. Pollen's answers stricken and defenses suppressed, and yet the jury was left in a position of assuming that Dr. Pollen may have merely been sick, busy caring for patients, or otherwise unavoidably unable to come to court. In summation, Dr. Pollen's attorney was permitted to state merely that Dr. Pollen was "unavailable," and the Judge in his charge reiterated that Dr. Pollen was "absent" and that the jury should not speculate why.
In our earlier opinion we laid down certain guidelines for the trial Judge on remand, and we restate them here. With regard to a defendant who refuses to cooperate in the discovery process and absents himself voluntarily from trial, there is no doubt that even such a defendant might be granted some limited participation in the trial. The interest both of that defendant and of the carrier providing the defense must be balanced. In this case we understand that the defense has been and now is being provided under a reservation of rights, and that the liability of the carrier is the subject of a pending declaratory judgment action.
At the initial trial plaintiffs claimed that the court had granted too much clemency to counsel retained for Dr. Pollen by the carrier. Specifically, plaintiffs objected to the court having permitted opening and closing statements and cross-examination of witnesses. We there noted, and now reiterate:
Default judgments entered by the court are governed by R. 4:43-2(b). According to cases decided under this rule, it is well-settled that whether a defaulting party may cross-examine liability witnesses against him is a matter of judicial discretion. In most of the reported cases, however, cross-examination has been permitted. B.L.J. Leasing Corp. v. Whittington, Singer, Davis,
We noted that in Fox, the decision to limit cross-examination was based upon the Judge's findings; that the plaintiffs claims were simple ones; and that more stringent limitations might be proper under other fact situations. In fact, the court in Perry v. Crunden, distinguished Fox on that basis. 79 N.J. Super. at 291 [191 A.2d 316].
We also stated that while other types of participation were possible, namely the offering of direct liability witnesses and the making of opening and closing statements to the jury, both of these areas are usually foreclosed to such a defaulting defendant.
It is well-settled that absent special circumstances a defaulting party may not offer his own liability witnesses, despite the language in Fox stating "a defendant . . . [may] even present counter proofs." Fox, supra, [76 N.J. Super. ] at 604 [185 A.2d 230]. See Scott v. Scott, 190 N.J. Super. 189, 195 [462 A.2d 614] (Ch.Div.1983), and Metric Inv., Inc. v. Patterson, 98 N.J. Super. 130, 133 [236 A.2d 187] (Law Div.1967), aff'd, 101 N.J. Super. 301 [244 A.2d 311] (App.Div.1968) ("entry of a default precludes defendant from offering testimony in defense . . . ."); Perry, supra, [79 N.J. Super. at 293 [191 A.2d 316] ("defaulting defendant would be prohibited from offering direct evidence in support of his case . . . ."). We note that in Beech Forest Hills, Inc. v. Morris Plains, 127 N.J. Super. 574, 581-582 [318 A.2d 435] (App.Div.1974), the trial court had allowed the defaulting defendant to present evidence, but only on the "novel" issue of damages. This ...