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Bender v. Adelson

July 19, 2006

KATHLEEN BENDER, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT F. BENDER, DECEASED, AND KATHLEEN BENDER, INDIVIDUALLY, PLAINTIFF-RESPONDENT,
v.
RICHARD ADELSON, M.D., MAURICE WEISS, M.D. AND SHORE HEART GROUP, DEFENDANTS-APPELLANTS, AND
JANE ROES, R.N. 1-6 (FICTITIOUS NAMES, TRUE NAMES BEING UNKNOWN) AND JOHN DOES, M.D. 1-6 (FICTITIOUS NAMES, TRUE NAMES BEING UNKNOWN), DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court addresses the propriety of comments made by counsel for Kathleen Bender (Bender) during summation and whether the trial court abused its discretion when it barred the testimony and submission of three defense experts' reports.

After experiencing back and jaw pain, forty-three-year-old Robert Bender (decedent), in March 1999, sought treatment from Dr. Richard Adelson, an interventional cardiologist. Dr. Adelson determined that decedent required cardiac catheterization, an invasive diagnostic procedure used to evaluate the status of a patient's arteries. Decedent was admitted to Jersey Shore Medical Center where Dr. Adelson performed the procedure with the assistance of Dr. Maurice Weiss. During the procedure, the doctors noticed clots in the right and left arteries of the heart and determined that a percutaneous coronary intervention (PCI) was needed. PCI involves the use of angioplasty and stent placement to unclog the arteries. Prior to and during the PCI procedure, decedent was given anti-coagulants used to decrease the blood's clotting. Complications during the PCI procedure necessitated decedent's undergoing open-heart surgery, which was unsuccessful and resulted in his death.

On April 5, 2000 Kathleen Bender (Bender), decedent's wife, filed a complaint against Dr. Adelson, Dr. Weiss, Shore Heart Group, and unnamed doctors and nurses (hereinafter, defendants), alleging negligence in the treatment and care of decedent. The pre-trial proceedings involved various delays and extensions. Discovery was originally scheduled to end on September 27, 2001, but on September 5, 2001 the parties and the trial court agreed to a sixty-day extension. The trial court then set a January 28, 2002 trial date. On September 25, 2001, Bender submitted her expert reports to defendants. Those reports were prepared by an interventional cardiologist and a hematologist. On January 11, 2002, the court adjourned the trial date until July 11, 2002.

On March 27, 2002 Bender moved to compel the production of defendants' expert reports, which the trial court granted, entering an order requiring the service of expert reports by April 29, 2002 and stating that any reports not submitted by that date would be barred from use at trial. To comply with that order, Drs. Weiss and Adelson identified themselves as experts and sought additional time to identify additional experts. With Bender's consent, the trial court entered an order allowing expert reports to be submitted by May 2, 2002 along with the same limitation that any reports not submitted by that date would be barred from admission at trial. Eight days prior to the deadline, defendants provided the report of Dr. Mark Hochberg, a cardiac surgeon.

In letters dated June 25 and July 8, 2002, defendants requested Bender's consent to amend their answers to interrogatories and submit the names of three additional experts; two interventional cardiologists and a pathologist. Bender objected and, thereafter, defendants moved before the court for admission of these three experts and an adjournment of the trial date. At a hearing on the issue of the admission of the expert reports, defendants argued before the court that it was a difficult process obtaining experts with the right expertise and the willingness to get involved. Defense counsel also argued that these experts were necessary because Dr. Hochberg did not have the requisite expertise. Bender countered that the submission of these reports is untimely and that Dr. Hochberg could adequately testify as an expert on defendants' behalf. The motion judge denied defendants' motions to submit the untimely expert reports and to extend discovery, citing the need to follow Best Practices, which are amendments to the New Jersey Rules of Court enacted to streamline and systematize the discovery process. Defendants' motions for reconsideration were denied, the judge determining that Rule 1:2-2, the catch-all "relaxation rule," did not apply because defendants' request for relaxation was nothing more than a request that the court excuse a lack of diligence. The judge adjourned the trial date pending resolution of defendants' motion for leave to file an interlocutory appeal. The Appellate Division subsequently denied that motion, declining to review the issue on its merits.

At trial, the parties presented competing theories in respect of decedent's cause of death. Bender's experts testified that the decedent suffered from cardiac tamponade, a condition whereby fluid in the pericardial sac pressures the heart and prevents it from pumping properly. According to Bender's experts, this condition was caused by defendants' administration of excessive amounts of anti-coagulants to the decedent, causing spontaneous bleeding. The defense experts, including the defendants and Dr. Hochberg, testified that decedent did not suffer from tamponade but, rather, suffered from anaphylaxis, an allergic reaction to the dye or drugs administered at the time of catheterization.

During summation, Bender's counsel asked the jury to draw an adverse inference from defendants' failure to present testimony from outside independent experts in cardiology and hematology; contended that Dr. Hochberg was not qualified to give an expert opinion in this case; commented on substantial drops in decedent's hematocrit levels; and referenced certain medical journals supporting his experts' theory on excessive anti-coagulation. Defense counsel moved for a mistrial based on Bender's counsel's summation, arguing that counsel's comments regarding the lack of independent experts and his statement that Dr. Hochberg was not qualified to serve as an expert violated the doctrine of judicial estoppel, in light of counsel's prior representation to the motion judge. In addition, defendants claimed that the medical journal articles referred to by Bender's attorney did not involve excessive coagulation and the mention of falling hematocrit levels was inappropriate because no expert had testified on that subject.

The trial court reserved on defendants' motion and gave a curative instruction to the jury regarding the medical journals and comments about decedent's low hematocrit levels. The jury subsequently found for Bender and awarded damages of $1,625,000. The trial court later granted defendants' motion for a mistrial, finding that the "cumulative effect" of counsel's summation comments was "clearly capable of producing an unjust result" and that the comment that Dr. Hochberg was not qualified to testify as an expert violated principles of judicial estoppel.

Bender appealed and a divided panel of the Appellate Division reversed, holding that counsel's summation comments were factually accurate, did not exceed the bounds of proper advocacy, and the comments that were inaccurate were redressed by the trial court's curative instruction. The dissent found that the representations made by Bender's counsel to the motion judge had the capacity to mislead on the issue of Dr. Hochberg's qualifications to testify as an expert. These issues were addressed again by the Appellate Division following the denial of defendants' motion for judgment notwithstanding the verdict. The Appellate Division unanimously denied the appeal, finding that the motion judge did not abuse his discretion when he barred the experts' reports because of a lack of diligence on defendants' behalf.

Defendants appealed to the Supreme Court as of right on the issue of the propriety of counsel's summation comments. The Court granted defendants' petition for certification on the question of whether the trial court abused its discretion when it barred the testimony and submission of defendants' experts' reports.

HELD: Although the trial court did not abuse its discretion when it barred defendants' experts, the comment made by Bender's counsel on summation concerning the absence of those experts had the capacity to mislead the jury and effected a "miscarriage of justice under the law," requiring a new trial.

1. Pursuant to Best Practices, Rule 4:17-7 now requires that untimely requests to amend answers to interrogatories be accompanied by a showing of due diligence. Rule 4:24-1 enables a court, for good cause shown, to extend discovery for a stated period, unless a trial date or arbitration is fixed and the movant has not demonstrated exceptional circumstances. Applying an abuse of discretion review standard to the trial court's decision to bar defendants' request to amend interrogatories and to deny a further discovery extension, the Court finds that the trial court did not abuse its discretion because defendants failed to show "due diligence" or "exceptional circumstances." Defendants' attempted untimely submission of the expert reports violated two mandatory court orders expressly precluding submission of reports after dates specified. Defendants' failed to provide an adequate explanation for the delay in obtaining these reports or for failing to request an extension prior to the expiration of the court ordered submission deadline. Lastly, the catch-all relaxation Rule 1:2-2 is inapplicable. (Pp. 16-25)

2. Counsel's comment asking the jury to draw an adverse inference from defendants' failure to call any independent cardiologists necessitates a new trial. The trial court did not abuse its discretion when it concluded that counsel's statement was so prejudicial that it resulted in a miscarriage of justice warranting a new trial. Hearing Bender's counsel infer that no independent cardiologist was willing to testify on defendants' behalf likely influenced the jury's weighing of the evidence and ultimate decision-making. (Pp. 25-33)

3. The Court agrees with the Appellate Division that the summation comment regarding decedent's hematocrit levels was improper but that the curative instruction provided adequate redress. The same is so for counsel's comment about the medical journal articles. While counsel was entitled to rebut statements made by defense counsel in summation, in light of counsel's prior statement to the motion judge that Dr. Hochberg was competent to testify, the Court disapproves of that portion of the summation in which counsel stated that Dr. Hochberg is clearly not qualified to give opinions in this case. (Pp. 33-35)

Judgment of the Appellate Division is REVERSED, the trial court's ordergranting a mistrialis REINSTATED and the matter is REMANDED for further proceedings consistent with this opinion.

JUSTICE|RIVERA-SOTO, concurring in part and dissenting in part, agrees with the conclusion that the trial judge did not abuse his discretion in barring defendants' experts based on a lack of due diligence. He dissents from the majority's conclusion that counsel's comment asking the jury to draw an adverse inference from defendants' failure to call any independent cardiologists necessitates a new trial. In Justice Rivera-Soto's view, the summation was entirely proper based on evidence before the finder of fact.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, and WALLACE join in JUSTICE ZAZZALI's opinion.

JUSTICE RIVERA-SOTO filed a separate opinion concurring in part and dissenting in part.

The opinion of the court was delivered by: Justice Zazzali

Argued March 20, 2006

After plaintiff's husband died during a heart procedure, plaintiff sued his doctors for negligence, and a jury awarded plaintiff $1.6 million. The trial court, however, granted defendants' motion for a mistrial. It found that comments that plaintiff's counsel made during summation asking the jury to draw an adverse inference from defendants' failure to present certain independent experts were unfair and prejudicial because defendants had been barred from submitting the names and reports of three experts as untimely. Plaintiff appealed, and a divided Appellate Division panel reversed, holding that counsel's summation comments were factually accurate, did not exceed the bounds of proper advocacy, and that those comments that were not accurate were redressed by the trial court's curative instruction. The question concerning the propriety of counsel's summation comments is before us because defendants appealed to this Court as of right. We granted defendants' petition for certification on the issue whether the trial court abused its discretion when it barred the testimony and submission of defendants' experts' reports.

We hold that the trial court's order granting a mistrial must be reinstated. Although we find that the trial court did not abuse its discretion when it barred defendants' experts, we conclude that the summation comment made by plaintiff's counsel concerning the absence of those experts had the capacity to mislead the jury and effected a "miscarriage of justice under the law" thus requiring a new trial under Rule 4:49-1(a).

I.

A.

In March 1999, after experiencing pain in his back and jaw, Robert Bender, the decedent, sought treatment from Dr. Richard Adelson, an interventional cardiologist. Dr. Adelson concluded that the decedent required a cardiac catheterization, an invasive diagnostic procedure that is used to assess the status of a patient's arteries. Thereafter, the decedent was admitted to Jersey Shore Medical Center, and Dr. Adelson performed the procedure with Dr. Maurice Weiss assisting.

During the procedure, Drs. Adelson and Weiss (defendants) observed clots in the right and left arteries of the decedent's heart and determined that a percutaneous coronary intervention (PCI) was necessary. PCI involves the use of angioplasty and stent placement to unclog arteries. In the morning before the PCI began, defendants initially gave the decedent 5,000 units of Heparin, an anticoagulant used to decrease the blood's clotting. While finishing the angioplasty on the right artery, defendants administered an additional 7,500 units of Heparin and prepared for a second angioplasty on the decedent's left arteries. During that second angioplasty, the decedent's left anterior descending artery and diagonal artery closed, and defendants administered 2,000 additional units of Heparin and two doses of Integrilin, another anticoagulant, to the decedent.

After finishing that procedure, defendants moved the decedent to a holding area. A half-hour later, the decedent became restless, experienced back pain, vomited, and had seizures. Later, the decedent experienced low blood pressure, had another seizure, and defendants administered CPR. The decedent was rushed to the operating room where another doctor performed open-heart surgery. Unfortunately, that effort was unsuccessful, and the decedent entered into a coma and died. The decedent was forty-three years old at the time of his death and had two children, who were eighteen and ten years old.

B.

On April 5, 2000, plaintiff Kathleen Bender, the decedent's wife, filed a complaint alleging negligence and naming Dr. Adelson, Dr. Weiss, Shore Heart Group, and unnamed doctors and nurses as defendants. The pre-trial proceedings, which we detail here because they serve in part as the basis for this appeal, involved various extensions and delays.

Discovery originally was scheduled to end on September 27, 2001, but on September 5, 2001, the parties and the trial court agreed to a sixty-day extension. Soon thereafter, the trial court set a January 28, 2002 trial date. On September 25, 2001, plaintiff submitted her expert reports to defendants. Those reports were prepared by Dr. Michael Lux, an interventional cardiologist, and Dr. Ronald Sacher, a hematologist, and were dated April 7 and October 21, 2000. Then, on January 11, 2002, the court again extended discovery until July 11, 2002, and adjourned the trial date as a result of defendants' unopposed motion.

Because defendants had not yet submitted their expert reports, on March 27, 2002, plaintiff moved to compel their production by April 29, 2002. The trial court granted plaintiff's motion, ordering that "any defense expert whose report is not served by April 29, 2002 [will be barred] from testifying at trial." To comply with the order's deadline, defendants identified themselves as experts on April 26, 2002. Defendants also sought more time to identify additional experts. Plaintiff consented, and, on May 17, 2002, the trial court entered an order allowing expert reports until May 29, 2002.

The order contained the same exclusionary language as the prior month's order, indicating that "any defense expert whose report is not served by May 29, 2002 shall be barred from testifying at trial." Eight days prior to the May 29 deadline, defendants submitted to plaintiff the name and report of Dr. Mark Hochberg, a cardiac surgeon. After the May 29 deadline, in letters dated June 25 and July 8, 2002, defendants requested plaintiff's permission to amend their answers to plaintiff's interrogatories and submitted the names and reports of three additional experts: Drs. Samin Sharma and E. Scott Monrad, interventional cardiologists, and Dr. Stephen M. Factor, a pathologist.

Plaintiff responded in a letter dated July 11, 2002, formally objecting to defendants' untimely submission of the three additional experts. Also, in a notice dated July 11, 2002, the trial court set a new trial date for September 11, 2002. Then, on July 19, 2002, defendants moved before the trial court to admit the names and reports of the three experts, extend discovery, and adjourn the trial date. At a hearing before the motion judge, defense counsel explained the untimely submission of the three experts by stating that "we litigants are to a vast degree at the mercy of people who are willing to be experts in cases like this. It was a long process of trying to find the right people, and some of them just didn't want to become involved." Defense counsel also argued that admission of the late experts was necessary to ensure a fair trial because Dr. Hochberg, the only independent and timely expert, did not have the requisite expertise.

[Dr. Hochberg is] not an evasive [sic] cardiologist. He's done maybe six procedures. He's not a pathologist. He's not a hematologist. We've got him because we had these deadlines and we were trying to find somebody who would write a report. So he's been deposed and he is vaguely knowledgeable about this area, but nowhere near the kind of ...


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