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Johnson v. Dobrosky

July 25, 2006

EDWARD JOHNSON, GENERAL ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF ANN JOHNSON AND EDWARD JOHNSON, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
JOSEPH DOBROSKY, M.D., WEST JERSEY HEALTH SYSTEMS, HOWARD WINTER, M.D. AND SURGICAL ASSOCIATES CHARTERED, DEFENDANTS-RESPONDENTS, AND JOHN DOE(S) A-Z, (FICTITIOUS NAMES AS PERSON(S) AND/OR TREATING PHYSICIANS(S) AND SUSAN ENDEL, R.N., DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

SYLLABUS

(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 December of 1997, Ann Johnson suffered stomach pains. On the morning of December 12, she went to the West Jersey Hospital emergency room where she was examined by Dr. Joseph Dobrosky. That evening, she was taken to the operating room where emergency surgery was performed by Dr. Howard Winter. During the surgery, Mrs. Johnson lapsed into a coma from which she never awoke. She died on April 30, 1998. Ann Johnson's husband, plaintiff Edward Johnson, individually and as general administrator ad prosequendum, filed a malpractice complaint against Dr. Dobrosky on behalf of himself and his children. Dr. Dobrosky, in turn, claimed that Dr. Winter was negligent for not promptly responding to his request for a surgical consult. Johnson's complaint was later amended to add Dr. Winter as a defendant.

At trial, Johnson sought to preclude mention of his deceased wife's 1994 conviction for welfare fraud on the ground that her conviction was irrelevant and unduly prejudicial. The trial judge initially determined to exclude the conviction but, near the end of trial, changed his mind and determined to admit it. Johnson did not testify during his case but was later called by Dr. Dobrosky's counsel, who elicited information concerning Mrs. Johnson's welfare fraud conviction along with evidence that Mr. Johnson had been unemployed for five years and that he and his wife had been separated on occasion. Dr. Winter's counsel then cross-examined Johnson, adducing testimony that he had been convicted some years earlier of receiving stolen property and possessing drugs. In closing arguments, defense counsel underscored Mrs. Johnson's criminal conviction as bearing on her character. Defense counsel told the jury that Mrs. Johnson's welfare fraud conviction was admissible because one of the things the jury had to consider was not only the health of the person who died but also the person's character. The jury rejected Johnson's liability claims entirely. Although the trial judge stated that the exoneration of both doctors was a "big surprise," he denied the motion for a new trial, stating that the jury's result was "just short" of constituting a miscarriage of justice.

Johnson appealed, the Appellate Division affirmed, and this Court granted certification limited to the issue of the introduction of Mrs. Johnson's prior conviction for welfare fraud into evidence.

HELD: The trial judge erred in determining a decedent's character is generally in issue in a wrongful death case. As in any personal injury action, a decedent's "character" is not in issue in a wrongful death action except insofar as it is an element of a particular claim or defense. Where damages for the loss of advice, guidance and counsel are alleged, the physical, mental, and moral characteristics of the decedent are admissible only as they bear on the extent and likelihood of such contributions. Here, Mrs. Johnson's conviction was offered to prove her bad character and was not related to the likelihood of her rendering future advice, guidance and counsel to her family or the extent of those contributions. Accordingly, its admission was error.

1. For character evidence to be admissible under N.J.R.E. 404(c), a person's character or a trait of his character must be related to a specific claim or defense in the case. In this case, in which the sole wrongful death claim for damages was the loss of Mrs. Johnson's advice, guidance and counsel, the trial judge obviously overstated the relevant admissibility principles in ruling that Mrs. Johnson's prior welfare conviction was admissible because her character was in issue. The question is whether Mrs. Johnson's prior welfare conviction bore on some particular aspect of her claim within the meaning of N.J.R.E. 404(c). The answer requires exploration of the wrongful death cause of action. (pp. 11-12)

2. An action under the Wrongful Death Act seeks recompense for the losses suffered by the survivors as a result of the decedent's death. In a wrongful death action, damages are strictly limited to those that are pecuniary in nature. New Jersey enacted its first wrongful death stature in 1848. New Jersey's Wrongful Death Act, like almost all wrongful death legislation enacted in America, included a limitation on damages to the pecuniary injuries suffered by survivors. The pecuniary limitation continues as a component of the [present] Wrongful Death Act. (pp. 12-16)

3. The most common class of pecuniary injury under the Act is the loss of future financial contributions. That is, the Act attempts to replace the money that decedent would have contributed to his or her survivors had he lived. The calculation of these losses involves two basic determinations: is it probable that decedent would have contributed to the survivors and, if so, to what extent would contributions have been made? In a lost financial contribution case, in addition to evidence of earnings and earnings capacity, expert financial projections and, and life expectancy tables, the jury may consider any other evidence that bears on the likelihood and extent that the decedent would have made financial contributions to the survivors. (pp. 16-17)

4. As in any personal injury action, however, what is not admissible in a lost future financial support case is evidence of the decedent's "character" that does not directly relate to the likelihood or unlikelihood of future financial contributions estimable in money. The fact that some aspect of a decedent's character may properly be shown in determining the damages to be awarded in a wrongful death action does not mean, however, all his habits and qualities are relevant. That is the backdrop on which the admission of Mrs. Johnson's welfare fraud conviction must be assessed. (pp. 18-19)

5. In 1980, in Green v. Bittner, we expanded the category of pecuniary damages to include not only the loss of future financial contributions but also the lost value of services such as companionship and care (in the case of the death of a child) and the loss of advice, guidance and counsel (in the case of the death of a parent). Once the parent-child relationship is established, Green proffers an objective standard for calculating the value of advice, guidance and counsel. Although Green expanded the category of pecuniary losses to include advice, guidance and counsel, it took pains to limit those damages to the market value of the services. By measuring the loss according to the market value of a therapist, business adviser or counselor, Green eliminated any assessment by a jury of a particular deceased parent's traits of character as bearing on the high or low "quality" of the decedent and hence of the advice to be rendered. (pp. 19-22)

6. Mental, moral and physical characteristics of the decedent that actually bear on the relationship of the parent and child and the concomitant "probability" of lost advice, guidance, and counsel are legitimate factors for jury consideration. The polestar is relevance to the relationship of parent and child and the likelihood that advice, guidance and counsel would be rendered. (p.22)

7. What is not admissible is general character evidence offered to prove, for example, that the decedent was lazy, had loose morals, or was otherwise a person of bad character, and hence would give bad advice. That prohibited purpose is exactly why defense counsel proffered Mrs. Johnson's welfare fraud conviction. Defense counsel trenched on the interdiction against valuing human life by presenting her to the jury as a person of bad character. The attack should not have been allowed because it was irrelevant to the relationship of Mrs. Johnson to her children, effectively placed in issue her quality as a person, and violated the narrow margins by which Green carefully compartmentalized what damages could be allowed in an advice, guidance, and counsel case. (pp. 22-23)

8. The ultimate question is whether the improper admission of Mrs. Johnson's conviction warrants reversal. We have carefully reviewed this record and cannot say that this liability verdict was reached solely on the merits and that it was not a result of the improper admission of Mrs. Johnson's criminal record. We therefore reverse and remand for a new trial. (pp. 23-25)

9. Before the new trial, should the judge determine that other negative character evidence is admissible, he should consider whether bifurcating liability from damages is warranted. In the interim, we refer this matter to the Model Civil Jury Charge Committee to clarify section 6.16 (Wrongful Death) in accordance with the principles to which we have adverted. (p.25)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED for proceedings consistent with this opinion.

JUSTICE RIVERA-SOTO, DISSENTING, concurs with the Appellate Division's treatment of the admissibility of the welfare fraud conviction and also is of the view that the trial court's judgment should stand because Johnson did not request that the issues of liability and damages be separately tried.

CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate dissenting opinion.

The opinion of the court was delivered by: Justice Long

Argued March 7, 2006

In 2002, plaintiff, Edward Johnson, individually and in his capacity as the general administrator ad prosequendum of the estate of his wife, Ann Johnson, filed a medical malpractice action against defendants Drs. Joseph Dobrosky and Howard Winter, among others. A jury concluded that neither Dr. Dobrosky nor Dr. Winter deviated from the standard of care in their treatment of Mrs. Johnson and returned a judgment of no cause for action.

Plaintiff appealed, challenging, among other things, the introduction into evidence of Mrs. Johnson's prior conviction for welfare fraud. The Appellate Division affirmed and we granted certification limited to that issue. 185 N.J. 268 (2005).

We hold that the trial judge erred in determining that a decedent's "character" is generally in issue in a wrongful death case. As in any personal injury action, a decedent's "character" is not in issue in a wrongful death action except insofar as it is an element of a particular claim or defense.

See N.J.R.E. 404(c). Where damages for the loss of advice, guidance and counsel described in Green v. Bittner, 85 N.J. 1 (1980), are alleged, the physical, mental, and moral characteristics of the decedent are admissible only as they bear on the likelihood and extent of such contributions. Here, Mrs. Johnson's conviction for welfare fraud was offered to prove her bad character and was not related to the likelihood of her rendering future advice, guidance and counsel to her family or the extent of those contributions. Accordingly, its admission was error.

I.

On the evening of December 11, 1997, Mrs. Johnson began experiencing stomach pains. Unimproved by the next morning, she summoned an ambulance and traveled to West Jersey Hospital at approximately 10:00 a.m., accompanied by her son Kevin.*fn1

Mrs. Johnson arrived at the hospital emergency room at 10:07 a.m. and was first examined by Dr. Joseph Dobrosky, the emergency room physician on duty, at 10:40 a.m. Mrs. Johnson presented with diffuse abdominal tenderness and had a pulse of 56 and a blood pressure reading of 101/44. Dr. Dobrosky ordered blood tests, x-rays and the administration of anti-inflammatory medication. He also requested Mrs. Johnson's chart from a previous admission to the emergency room.

At approximately 1:10 p.m., the test results that were ordered at 10:40 a.m. (morning test results) were available to Dr. Dobrosky. The morning test results indicated that Mrs. Johnson's hemoglobin level was 9.5*fn2 and her hematocrit level was 27.8*fn3 --both indicating a low blood count. By 1:30 p.m., Mrs. Johnson's blood pressure had fallen 40 systolic points to a level of 61/44 and she had become hypotensive, that is, suffering from abnormally low blood pressure. In response, Dr. Dobrosky ordered the administration of intravenous fluids "open wide" in an effort to "get her blood pressure back up." Mrs. Johnson's blood pressure then rose to a normal level.

At 2:00 p.m., Dr. Dobrosky obtained Mrs. Johnson's charts from a previous emergency room visit where her blood pressure had been taken twice and measured 141/78 and 153/84. Dr. Dobrosky then consulted with Mrs. Johnson's family doctor regarding her admission to the hospital and, at approximately 3:00 p.m., called an internist, Dr. Ross, who was to be Mrs. Johnson's admitting physician. Dr. ...


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