On certification to the Superior Court, Appellate Division, whose opinion is reported at 334 N.J. Super. 43 (2000).
The opinion of the court was delivered by: Long, J.
The core issues presented on this appeal are rather straightforward: in the face of a concededly excessive damages award, when is the remedy of a new damages trial conditioned on plaintiffs' acceptance of a remittitur order appropriate; when is a new trial on all issues mandated; and by what standard is the amount of a remittitur order to be assessed?
On April 4, 1996, plaintiffs, Danialie Fertile, an infant by her guardian ad litem, Marlene Fertile, and Marlene Fertile, individually, (collectively, plaintiffs) filed a complaint against Dr. Angela Buontempo and St. Michael's Medical Center (collectively, defendants).*fn1 The complaint alleged that Danialie was severely injured as a result of Dr. Buontempo's malpractice and that Mrs. Fertile suffered severe emotional distress as a result. The gravamen of the complaint, as elucidated in discovery, was that Dr. Buontempo delivered Danialie vaginally when a caesarean (c-section) section was indicated.
A five day trial ensued at which the following evidence was introduced. On June 24, 1994, Mrs. Fertile was admitted to St. Michael's Medical Center in the early morning hours experiencing labor. At approximately 6:45 p.m., Dr. Cecil Holgado, a second- year resident, examined Mrs. Fertile and found her labor progressing satisfactorily. At his 9 p.m. examination, Dr. Holgado observed that Mrs. Fertile's cervix had stopped dilating, probably because of fetal pelvic disproportion, a condition in which the mother's pelvis cannot accommodate the size of the baby. Because the baby showed no signs of distress, Dr. Holgado recommended to Dr. Debra Rosenzweig, the attending physician, that Mrs. Fertile deliver by c-section. At approximately 9:15 p.m., Dr. Holgado asked Dr. Buontempo (another second-year resident) to follow Mrs. Fertile while he performed a c-section on another patient. Dr. Holgado advised Dr. Buontempo of his plans to perform a c-section on Mrs. Fertile.
After speaking to Dr. Holgado, Dr. Buontempo reviewed Mrs. Fertile's charts. At the time, Mrs. Fertile was connected to a fetal monitor that followed the baby's heart rate and assessed the intensity of Mrs. Fertile's labor contractions, recording both on fetal monitoring strips. Dr. Buontempo testified that the fetal monitor revealed prolonged reduced heart rate and beat- to-beat variability evidencing an impaired oxygen supply. At 9:40 p.m., because Mrs. Fertile was fully dilated and the baby's head was at the vaginal opening, Dr. Buontempo concluded that a caesarian section was no longer an appropriate option and that the baby had to be delivered vaginally. Accordingly, she sent a nurse to the operating room to inform Dr. Rosenzweig, who along with Dr. Holgado, was engaged in another delivery.
Dr. Buontempo summoned assistance. She recognized the potential that Danialie would be a large baby, given Mrs. Fertile's obesity and her substantial weight gain during pregnancy. Such large babies present a risk of shoulder dystocia, a condition that occurs when the baby's shoulder is stuck against the mother's pubic bone and obstructed in its passage from the vagina.
Danialie was large, and her shoulder was wedged behind Mrs. Fertile's pubic bone. Dr. Buontempo freed the baby by changing Mrs. Fertile's position, pressing on her pubic bone, and enlarging the surgical incision to expand her vagina. In the course of her birth, Danialie was injured, resulting in an atrophied and partially paralyzed arm.
Both plaintiffs and defendants presented expert testimony. Briefly, plaintiffs' expert, Dr. Stephen Leviss, testified that by delivering Danialie vaginally Dr. Buontempo deviated from acceptable standards. According to Dr. Leviss, the length of the labor (18 hours) and the size and position of the baby required a c-section and nothing in the fetal monitor tracing compelled a different result. Indeed, Dr. Leviss stated that the changes in fetal heart rate revealed on the monitoring strips just prior to delivery resulted from the pressure Dr. Buontempo was exerting in attempting to deliver Danialie vaginally. Dr. Leviss concluded that Dr. Buontempo should have anticipated shoulder dystocia and that a properly performed c-section would not only have been less risky but also would have avoided Danialie's injuries.
Dr. Sidney Wilchins, defendants' expert obstetrician, agreed that because labor was not progressing at 9:00 p.m., the earlier decision to deliver Danialie by c-section was appropriate. However, he stated that once Mrs. Fertile's cervix had fully dilated and Danialie had begun to move through the birth canal, the necessity for a surgical delivery was eliminated. Dr. Wilchins interpreted the fetal monitor strips to reveal that the baby was experiencing an environmental insult that caused her heart rate to change and that she was incapable of overcoming the insult to return to a normal heart rate. That environmental insult could include such things as compression of the umbilical cord or the baby's head. In the face of fetal compromise, Dr. Wilchins testified that the physician's first obligation is to attempt to correct the situation and, if those attempts do not relieve the fetal distress, to deliver the baby as quickly and expeditiously as possible.
Dr. Wilchins said that by 9:45 p.m. the hospital record indicated that Danialie's head had reached the vaginal opening and that Dr. Buontempo acted "by the book" in proceeding to deliver Danialie vaginally. Defendants' second expert, Dr. Richard Luciani, essentially supported the conclusions of Dr. Wilchins.
A pediatric neurologist, Dr. Daniel Adler, testified for plaintiffs that as a result of traction on her head during birth Danialie suffered a brachial plexus injury, paralyzing some of her arm muscles and weakening others, resulting in a limited range of right arm motion. She is unable to move her right hand, thumb or fingers but can place a light object in her right hand and hold it there; her condition will not improve.
Danialie has seen various specialists and has undergone therapy for her arm. According to her mother, Danialie's arm has never moved. A five year old kindergartner at the time of trial, Danialie is disappointed and frustrated by her disability. Mrs. Fertile testified that Danialie needs assistance with tasks that would ordinarily require the use of two hands, such as washing herself and combing her hair. Her father attested that Danialie requires assistance in engaging in the tasks of daily living. Although she is doing well in school she has difficulty with writing. The jury was shown a videotape of Danialie performing her daily activities, that was entitled "Day in the Life of Danialie Fertile." That videotape showed the extent of Danialie's impairment.
A social worker testified that Danialie is bright, self- confident, exceptionally well spoken in both French and English, but requires more opportunities for adaptation and rehabilitation. She recommended counseling and education for both Danialie and her parents to help them understand Danialie's development and to encourage them to properly impose discipline and normal limitations.
A career counselor testified for plaintiffs that, in her opinion, Danialie would have serious limitations as an adult because most of the fastest-growing job fields require two hands. Assuming that Danialie completed high school, the counselor opined that, with only one hand, any job would be frustrating. Moreover, even if Danialie completed additional education, she still would be unable to perform required tasks in a field such as medicine. The counselor added that a disabled person such as Danialie is more likely to encounter discrimination in hiring due to the perception of reduced productivity.
Defendants do not contest that Danialie suffered a brachial plexus injury, but disagree concerning its effects. Defendants' expert in rehabilitation testified that although Danialie has limitations imposed by her arm, she is intellectually, socially, and physically able to attend regular school classes and that nothing suggests that she could not graduate from high school or pursue higher education to qualify her for a professional position. He predicted no income loss as a result of her disability.
A jury awarded Danialie damages in the amount of $15 million and Mrs. Fertile damages in the amount of $3 million. Defendants filed a motion for a new trial or, in the alternative, a remittitur. The trial court denied a new trial concluding that no trial error had occurred. However, stating that the verdict "took my breath away," the court concluded that it was excessive and remitted $10 million of the $15 million dollar award to Danialie and all but $250,000 of the award to Mrs. Fertile, on the condition that plaintiffs accept that amount. Otherwise, defendants would be entitled to a new damages trial. Plaintiffs agreed to the remittitur order.
Defendants appealed, arguing entitlement to a new trial on all issues. They based their claim on three trial errors bearing on liability: that the trial court erred in excluding certain testimony of Dr. Rosenzweig; that a prejudicial comment by plaintiffs' expert, Dr. Stephen Leviss, about Dr. Buontempo's mismanagement of the dystocia warranted a mistrial; and that improper comments in plaintiffs' counsel's summation skewed the jury verdict. Defendants also argued that Mrs. Fertile's emotional distress claim should not have been submitted to the jury; that the liability verdict was against the weight of the evidence; that the mere quantum of damages awarded warranted a new trial on all issues; or in the alternative, that the remittitur amount was excessive. Plaintiffs cross-appealed, arguing that the remittitur should not have been granted at all and that the original damage award to Danialie was not excessive in light of her injuries.
The Appellate Division ruled that Mrs. Fertile's emotional distress claim was insufficient as a matter of law under Carey v. Lovett, 132 N.J. 44, 58 (1993), and should have been dismissed prior to submission of the case to the jury. In addition, it found that certain comments in plaintiffs' counsel's summation constituted plain error, clearly capable of producing an unjust result. The panel concluded that the "grossly excessive" verdict was indicative of the prejudicial effects of the misstatements and remanded the case for a new trial on all issues regarding Danialie. That ruling made it unnecessary for the court to address any of defendants' other claims of trial error.
Plaintiffs filed a petition for certification challenging that portion of the Appellate Division judgment that remanded the case for a new trial on all issues. Plaintiffs did not challenge the vacation of the verdict in favor of Mrs. Fertile or the determination that the verdict in favor of Danialie was excessive. Defendants did not file a protective cross-petition pursuant to Rule 2:12-11. We granted certification. 165 N.J. 679 (2000). The only question properly before us is whether defendants are entitled to a new trial on all issues.
Plaintiffs argue that there was no trial error in this case; that the jury's finding of liability was not tainted by the concededly excessive damages verdict; and that the remittitur order should stand. Defendants counter that the summation comments by plaintiffs' lawyer were "plain error"; that that error, coupled with the gross excessiveness of the verdict, bespoke passion and prejudice, warranting a new trial on all issues; that the size of the verdict alone requires a new trial on all issues; and alternatively, that the remitted amount is still too high.
Rule 4:49-1 prescribes the standard applicable to a motion ...