On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3571-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Holston, Jr.
These are the consolidated appeals of four medical malpractice defendants from an adverse judgment entered against them following a jury verdict and denial of defendants' post-trial motions.
Following successful lumbar surgery, plaintiff Casey Pellicer (plaintiff), then four months old, suffered a devastating brain injury while in the Pediatric Intensive Care Unit (PICU) at defendant St. Barnabas Hospital (St. Barnabas). It was undisputed that at some point plaintiff's endotracheal tube, which was connected to a ventilator, dislodged and was not replaced for several minutes, resulting in significant oxygen deprivation, and brain injury.
Plaintiff and his mother, Areli Pellicer (Areli), brought this action. The jury returned a verdict against defendants Delphine Anderson, a registered nurse, Anne Olesnicky, a first-year resident anesthesiologist, Michael Vallee, an anesthesiologist and coordinator of the anesthetic residency program at St. Barnabas, and Norman Zeig, chairman of the Anesthesia Department and director of residency programs at St. Barnabas. No independent claims were brought against St. Barnabas, which was a defendant only by virtue of its status as an employer of the individual defendants. Two other defendants were named and went to trial, Jean Rue, a PICU nurse, and Sam Edelman, a pediatric intensivist. At the close of all of the evidence, Edelman's dismissal motion was granted, and the jury found that Rue did not deviate from the applicable standard of care. Plaintiffs have not cross-appealed from those determinations.
The trial that is the subject of this appeal followed a mistrial. The first trial, which began in early June 2004, was presided over by Judge Schott. On June 21, 2004, during plaintiffs' case, counsel for St. Barnabas discovered in the original hospital records the existence of heart monitor strips generated on the night of the incident, which had not been furnished to the other parties in discovery. Counsel noted that the strips had been folded and taped onto two pieces of paper and that the aging scotch tape had worn away some of the information. He surmised that when the records were photocopied an unknown hospital employee copied them without opening the folded pages. Counsel thus represented that St. Barnabas had committed an inadvertent copying error, rather than withholding evidence.
When counsel announced this situation to the court, plaintiffs moved to bar defendants from using the strips at trial. Olesnicky cross-moved for a mistrial, arguing that the strips demonstrated that plaintiff's heart rate had dropped dramatically before she arrived in the PICU. St. Barnabas, Anderson, and Rue, who at that time were represented by the same counsel, also moved for a mistrial. Plaintiffs opposed the motions and moved for judgment against Anderson, stating that, if granted, they would dismiss the case against the other defendants.
On June 28, 2004, the court conducted a plenary hearing, and expressed "outrage" regarding the late discovery of this evidence. The court granted Olesnicky's mistrial motion, recognizing that the newly discovered evidence created "the potential" for her to "develop more of a defense." The court awarded plaintiffs $215,100 in fees and costs.
On October 4, 2004, on the eve of the second trial, a partial settlement was made. St. Barnabas' primary insurer, Princeton Insurance Company (Princeton) and its first layer excess insurer, Medical Inter-Insurance Exchange (MIIX), agreed to pay the full limits of their coverage, namely $2 million from Princeton and $9 million from MIIX. In exchange, plaintiffs agreed not to pursue any defendant for a verdict in excess of $108 million,*fn4 which represented the available insurance (including the $11 million settlement). This partial settlement was apparently prompted by the fact that MIIX was experiencing financial difficulties and it was deemed in the mutual best interest of all parties that the settlement be effected before any potential insolvency of MIIX.
After a friendly hearing to approve the partial settlement was conducted on October 6, 2004, the second trial began before Judge Schott and a jury. No mention of the partial settlement was made during the trial. The jury assessed fault as follows: Anderson, ten percent; Olesnicky, fifty percent; Vallee, fifteen percent; and Zeig, twenty-five percent. The jury awarded plaintiffs $75,967,140 in damages, as follows: $50 million (pain, suffering, disability, and loss of enjoyment of life), $1.6 million (future lost wages), $10.5 million (future life care needs), $162,000 (past services by Areli), $432,640 (services by Areli from present to plaintiff's twenty-second birthday), $132,500 (future services by Areli), and $13,140,000 (loss of plaintiff's services).
St. Barnabas and Anderson moved for a new trial on damages only. Olesnicky, Vallee and Zeig moved for a new trial on liability and damages. The court set aside the $13,140,000 award for loss of plaintiff's services, having determined that the award was not supported by the law. Plaintiffs have not cross-appealed from that determination. In all other respects, the court denied defendants' motions and entered judgment on October 25, 2005, awarding plaintiffs $62,827,140 in damages ($75,967,140 - $13,140,000) and $8,064,641.59 prejudgment interest, for a total of $70,891,781.59. These appeals followed.
We summarize the appeal arguments as follows:*fn5 (1) Appellants argue that (a) various summation comments by plaintiffs' counsel or co-defendants' counsel warrant a new trial, (b) the court erred by refusing to question at sidebar some of the jurors during voir dire, (c) the court's erroneous and biased rulings deprived them of a fair trial, and (d) the court erred in denying their new trial motion on the grounds that the verdict was excessive; (2) Olesnicky argues that the court erred in denying her new trial motion because the verdict apportioning fifty percent of the liability to her was against the weight of the evidence and because the verdict was internally inconsistent; and (3) Vallee and Zeig argue that the court erred in denying their motion for an involuntary dismissal.
We reject these arguments and affirm.*fn6
A. Surgery and Post-Operative Care
On September 25, 1998, plaintiff, then four months old, who suffered from spinal dysraphism or spinal bifida, underwent a successful multi-level lumbar laminectomy at St. Barnabas. Plaintiff's injuries were not caused during the spinal surgery or as a result of the spinal bifida. After the surgery, the neurosurgeon who performed the operation and a pediatric anesthesiologist brought plaintiff to the PICU. En route the anesthesiologist "bagged" plaintiff, meaning he manually forced air into plaintiff's lungs through an endotracheal tube.
Upon arrival in the PICU at approximately 9:05 p.m., the neurosurgeon spoke to Edelman regarding plaintiff's "postoperative management." Anderson and Rue, registered nurses, were also in the PICU room. At that time the staff connected plaintiff's endotracheal tube to a ventilator, and plaintiff was ventilated at least partially by the machine, although he was also taking some breaths on his own. The neurosurgeon then told the staff that plaintiff should remain on his stomach, immobilized, and attached to the ventilator for twenty-four to forty-eight hours.
At about the same time, Edelman independently assessed plaintiff and determined that the unconscious infant was "stable." In the post-operative order, Edelman directed the nursing staff to administer Valium as needed for "agitation," and Norcuron, a paralytic agent, for "severe agitation." Edelman explained that "agitation" referred to any movement that would be injurious to the surgical repair, and that "severe agitation" referred to either head movement or coughing against the ventilator. Rue said the neurosurgeon wanted Norcuron administered only after the staff assessed that plaintiff had the ability to move, which would confirm that the spinal surgery was successful.
Sometime between 9:35 and 9:45 p.m., Edelman, who lived approximately fifteen minutes from the hospital, left the hospital and drove home. Edelman was on call that evening, but hospital policy did not require him to remain in-house.
At approximately 9:45 p.m., the anesthesiologist returned to the PICU and assessed and "cleared" plaintiff. Anderson, who had been assigned to plaintiff's care, monitored plaintiff's vital signs at five minute intervals, and determined that everything was satisfactory.
At approximately 9:50 p.m., Anderson left the PICU to get a call bell for Areli, who was with plaintiff, to turn the monitors on at the nurse's station, and to get tape to retape the endotracheal tube. Infant endotracheal tubes are secured only with tape and, unlike adult tubes, are not held in place with an inflatable cuff. Anderson explained that the nurses in the PICU did not like the pink tape used by the operating room staff to secure infant endotracheal tubes because the tape caused abrasions and tended to loosen, and thus they generally replaced the pink tape with more porous white tape. Anderson also testified at depositions that she believed there was insufficient tape holding plaintiff's tube in place. Prior to leaving the PICU, Anderson told Areli to inform her if plaintiff moved.
Plaintiff lifted his head at approximately 9:55 p.m., shortly after Anderson left. Areli immediately notified Anderson and Rue, who were at the nurse's station, and they responded directly. Upon entering the room Rue and Anderson observed that plaintiff, who was still lying on his stomach, had turned his head from one side to the other. The movement apparently caused plaintiff's tube to become dislodged. The monitor strip showed that at 9:56 p.m. plaintiff suffered an episode of bradycardia, or a very low heart rate of forty-siX beats per minute, although his oxygen saturation rate was normal.
Anderson and Rue turned plaintiff's head back to the original position and listened to his lungs with stethoscopes for breath sounds. They heard breath sounds and believed the tube had not been dislodged. Rue explained that they repositioned his head because she was concerned plaintiff had caused the tube to press against an area of the trachea called the carina, causing a vagal response, meaning it triggered the vagus nerve which resulted in a drop in heart rate. They turned plaintiff onto his back, disconnected the ventilator and began to manually bag him through the tube. Anderson said that manually bagging a patient can be more effective than a ventilator.
Rue then assessed the position of the tube by looking into plaintiff's mouth and listening for breath sounds, and again determined that the tube was still in place. However, at some point plaintiff's heart rate fell so low that Anderson began performing chest compressions on him. Anderson then told another PICU nurse to get the "intubation box," containing the equipment for replacing an endotracheal tube, which she did.
At about that same time, Rue and Anderson decided to administer Norcuron to plaintiff because he was still moving.
Rue, who admitted she had not seen the written post-operative order, said she believed the administration of Norcuron was necessary and consistent with the neurosurgeon's instructions, and believed the tube had not been dislodged. Rue administered the Norcuron. This rendered plaintiff paralyzed and entirely dependant upon the ventilator. It was undisputed that shortly thereafter, plaintiff's heart rate dropped to fifty to sixty beats per minute.
As a result, Rue again left the room to call Edelman and the anesthesia department because she wanted someone who could assess plaintiff's airway and if necessary, extubate, or remove the tube, and then reintubate, or replace it. Edelman said he received his first call from Rue at approximately 9:58 p.m., and immediately began driving back to the hospital. Rue explained that it was their practice to call the anesthesia department when the on-call pediatric intensivist was not in-house and they needed "airway management," because an anesthesia resident was always on-call. It was undisputed that the call to the anesthesia department was appropriate because anesthesiologists are airway management experts.
Nonetheless, at the time of this incident St. Barnabas had in place a code 222 red policy, under which the attending nurse, in this case Anderson, was required to alert the staff that a code situation had occurred, although any health care professional could call the code. A code situation was defined as an immediate or impending cardiac arrest or respiratory arrest. To do so, a health care professional simply had to push the call button located in the PICU room, and the code team would immediately respond. The code team consisted of several people, including an attending pediatric intensivist, pediatric hospitalist, emergency room attending physician or senior pediatric resident, surgical resident, anesthesia resident, respiratory therapist, nursing supervisor and the patient's nurse. No one called a code in the PICU that evening.
Andre Simard, a respiratory therapist who was qualified to perform pediatric intubations, arrived sometime after Rue administered the Norcuron. He observed that plaintiff's oxygen saturation level was low and he took over bagging plaintiff. Simard said that at that time the endotracheal tube "seemed secure."
At approximately 10:00 p.m., Olesnicky, the on-call anesthesiologist resident, received a page on her beeper. She immediately returned the call and was told by the unit secretary that she was needed in the PICU "right away." Olesnicky asked the secretary how old the child was, but the secretary did not know. Olesnicky, who was two-and-a-half months into her first year of residency, was only qualified to intubate an adult. Intubating an infant was a difficult and risky procedure, something Olesnicky would not be trained to do until the second year of her three-year residency training. Indeed, Olesnicky had never even observed an infant intubation.
As a result, Olesnicky said she had been trained to call an attending anesthesiologist in labor and delivery, who was always in-house, if she needed assistance, but claimed she was not told to call a code 222 red. Vallee, an attending anesthesiologist and coordinator of the anesthesia residency program, and Zeig, the chairman of the anesthesia department and director of residency training, who were responsible for Olesnicky's training, confirmed that they had instructed Olesnicky to call the attending anesthesiologist in labor and delivery if she needed assistance, but said they had also instructed her that in the event the attending physician was not available, to call a code.
Vallee and Zeig, however, claimed their department had no responsibility to provide resident coverage to the PICU, and thus they would not have expected Olesnicky to be called. Vallee and Zeig said they believed that a pediatric intensivist was in-house twenty-four hours, and that the intensivist, not the resident anesthesiologist, would be called for PICU airway management issues. They assumed the PICU made arrangements for coverage, and said no one from the PICU ever asked general anesthesia to provide such coverage. Vallee stated that he had selected first-year residents to provide on-call coverage because he believed an intensivist would always be present in the PICU. But Anderson and Rue said their practice was to call the anesthesia department if the intensivist was unavailable, and that resident anesthesiologists had, on several occasions, reintubated infants.
Nevertheless, Olesnicky, who had never been to the PICU, immediately responded to the call and arrived in plaintiff's room at approximately 10:02 p.m. Upon entering, Olesnicky realized she was not qualified to manage plaintiff's airway problem, so she said she handed to an unidentified male medical staff member, who she had testified at depositions was Simard, a piece of paper with the beeper number of the attending anesthesiologist in labor and delivery, and asked him to page the attending physician "stat." Simard denied, however, receiving a slip of paper from Olesnicky or being told by her to call labor and delivery. At trial, Olesnicky admitted that during her depositions she had "jumped to the wrong conclusion" and assumed the man was Simard, because discovery revealed he was the only male therapist in the room. Nonetheless, Olesnicky claimed she asked an unidentified male staff member on at least four occasions to page labor and delivery, although she admitted she never directly told anyone in the PICU that she was not qualified to intubate the infant.
Similarly, Anderson set forth in her incident report:
Anesthesia called to code. Dr. Olesnicky arrived "stated hesitant to intubate infant." Was asked by . . . Rue RN whether she was comfortable running code or wanted code button hit. Dr. Olesnicky stated: Yes, she was comfortable. Just call L and D [Labor and Delivery] or neonatology to intubate.
Anderson initially said that Olesnicky asked Rue to page the labor and delivery anesthesiologist at approximately 10:02 p.m., but on cross-examination claimed she could not remember when the request was made. Rue said she was still on the phone with Edelman at 10:02 p.m., when Olesnicky arrived in the PICU. And Rue said that when she returned to plaintiff's room she observed Olesnicky listening to breath sounds, but did not speak to her.
Olesnicky confirmed that upon entering plaintiff's room she listened for breath sounds and checked plaintiff's vital signs. Olesnicky, who said she was not aware that plaintiff had been given Norcuron, then took over manually bagging plaintiff, and claimed that as a result of the vigorous bagging, plaintiff's oxygen saturations "increased drastically," which reassured her that they could adequately ventilate him through the tube.
Olesnicky noted that Anderson and Simard also heard breath sounds.
A few minutes later, at approximately 10:05 p.m., Edelman, who was in his car en route to the hospital, called and spoke to Rue, who again left the room to talk to him. Rue relayed plaintiff's vital signs, as displayed on the monitors located at the nurse's station. Edelman told her to tell the resident to reintubate. Upon returning, Rue made a "general announcement" that Edelman had "said to reintubate." But according to Rue, Olesnicky did not respond, other than to say she heard breath sounds. At about the same time, Olesnicky ordered that plaintiff be given Atropine to increase his heart rate.
Shortly thereafter, Edelman, who was still en route, called Rue a third time. Rue again relayed plaintiff's vital signs, but then lost the phone connection, so she returned to plaintiff's room. Upon entering, Rue asked Olesnicky, who Rue believed was qualified to intubate an infant, why she had not reintubated plaintiff. Rue described Olesnicky as calm and competent, and said she responded that she "heard breath sounds." It was at that point, and not earlier, when Rue said she asked Olesnicky if Olesnicky was comfortable with the situation, or whether she wanted Rue to "hit the code button." According to Rue, Olesnicky said she was comfortable, but asked Rue to call the labor and delivery anesthesiologist. Olesnicky admitted that she told the medical staff not to hit the code button because I was the one who was responsible for the respiratory component of this situation. I was already present there. I was the only one that would respond in that regard if a code had been called.
And Olesnicky further explained:
Q: What did you consider, if anything would occur if a code was called?
A: I considered that I would still be responsible for the airway and I would still have to proceed in the same manner that I had already and that's to get the attending anesthesiologist from Labor and Delivery.
Q: And what was your basis for that understanding?
A: That was my training. That was what I was instructed by my department to do. That was our chain of command.
However, Olesnicky said she had never seen the PICU's code red protocol, and admitted she was unsure who would have responded to the code.
Meanwhile, at approximately 10:10 p.m., Rue, at Olesnicky's request, asked the unit clerk to call the labor and delivery attending physician, and to call the neonatology department, which the clerk did. Robert Ciolino, the attending labor and delivery anesthesiologist, confirmed that his department had received "[m]ultiple calls" from an unidentified caller in the PICU, but that he could not leave his patients at that time.
At about that same time plaintiff was given a second dose of Atropine on Olesnicky's orders, which was initially successful but then plaintiff's heart rate again declined. At 10:12 p.m. plaintiff was given a dilating agent for bronchial spasms, which resulted in some brief increase in plaintiff's oxygen saturation level. However, at approximately 10:14 p.m. plaintiff's heart rate and oxygen saturation rate, which continued to decline, fell so low that Anderson again performed compressions. Olesnicky maintained that she still "had confidence that we would be able to at least maintain this child and I was waiting for my attending anesthesiologist to arrive."
However, Anderson, Rue, and Simard recognized that plaintiff, whose heart rate and oxygen saturation levels continued to decline, was not getting adequate ventilation and needed to be reintubated. In fact, Anderson said that at approximately 10:10 p.m. she "yelled" at Olesnicky, "[w]hy don't you want to reintubate." And Simard said he twice asked Olesnicky if she wanted him to reintubate plaintiff, but she said "no." Olesnicky denied that Simard offered to reintubate plaintiff, and further claimed that she had never seen a respiratory therapist intubate a patient, and had "no idea whether anyone else in the [PICU] room was qualified" to do so. Moreover, Vallee, who trained Olesnicky, admitted he did not know if respiratory therapists were qualified to intubate infants.
It was, however, undisputed that Olesnicky was in charge of giving orders for plaintiff's care and that the nurses and respiratory therapist could not override her, although they could independently call a code. Anderson explained that she did not call a code, even though this had become a "code situation" at about 10:14 p.m., because we had "everybody present for a code situation" and she thought Olesnicky was qualified to, and would, reintubate plaintiff. It was undisputed that by 10:14 p.m. plaintiff had suffered irreversible brain damage.
Shortly thereafter, Edelman called for a fourth time, and Rue again relayed plaintiff's vital signs. At 10:16 p.m. Olesnicky gave plaintiff another drug to increase his heart rate. However, Olesnicky admitted that at that point plaintiff's oxygen saturation rate had decreased to "somewhere in the 40s," and his heart rate had also decreased to about 40 beats per minute. As a result, Olesnicky said she obtained an infant laryngoscope, which she had never been trained to use, and intended to determine if the endotracheal tube was in place.
However, at approximately 10:18 p.m., before Olesnicky could make that assessment, Ciolino, who was finally able to leave labor and delivery, arrived in the PICU and immediately reintubated plaintiff, who was cyanotic, or blue. The procedure, although difficult, took only about a minute, and as a result plaintiff's heart rate and oxygen saturation levels rebounded. Ciolino estimated that he had received the first call from the PICU at least five minutes before he left labor and delivery, and that it took him one or two minutes to get to the PICU. This would place the timing of the first call to Ciolino at about 10:10 p.m. Edelman entered the PICU just minutes after Ciolino.
B. Expert Testimony on Liability
Plaintiff sustained a hypoxic ischemic encephalopathy, or a brain injury resulting in cortical blindness, spastic quadriparesis, and global developmental delay meaning he had intellectual, verbal, and neuro motor deficits, solely as a consequence of being deprived, post-operatively, of sufficient oxygen. With regard to liability, the dispute centered on when the injury occurred, and correspondingly, who was ultimately responsible.
As to the timing of the injury, Daniel Adler, plaintiffs' expert in the area of pediatric neurology, opined that plaintiff suffered a significant brain injury resulting in "severe and permanent neurological injury" by 10:14 p.m., when plaintiff's heart stopped and Anderson began again performing heart compressions. Adler opined that if plaintiff had been reintubated prior to 10:14 p.m., he would not have sustained a permanent brain injury. Defendant nurses agreed that the injury occurred at 10:14 p.m.
However, Paul Chervin, Olesnicky's expert in the area of pediatric neurology, opined that plaintiff's injury, which he described as an on-going process over a period of five to seven minutes, occurred sometime between 9:45 and 10:02 p.m., prior to Olesnicky's arrival. Chervin based that conclusion on information contained in one of the monitor strips, which contained graphs and readings of heart rates, oxygen saturation levels, and handwritten notations. The strip, which documented a ten second interval, revealed that plaintiff's heart rate dropped to approximately forty beats per minute at 9:56 p.m. Chervin explained that the sentinel event in this case is the insufficient supply of oxygen via an endotracheal tube which became dislodged or moved somewhere in the 9:45-9:50 timeframe.
And [as a result of] the absence of a restitution of oxygen production by 9:56, a heart rate in the 40s reflects brain damage which had already occurred.
Chervin admitted, however, that when he first reviewed the strips he believed they were in chronological order, and thus thought plaintiff had suffered two instances of bradycardia before 10:02 p.m. The first strip, which Chervin thought referred to approximately 9:53 p.m. because the time was not clearly marked, indicated that plaintiff's heart rate was thirty-six beats per minute and his blood pressure was 27/21, and the second strip, which was clearly marked 9:56 p.m., showed plaintiff's heart rate was forty-six beats per minute. Based on that information, Chervin concluded that by 10:02 p.m. plaintiff had suffered an episode of severe hypoxia resulting in irreversible brain damage. But Chervin later learned that the strips were not in chronological order and that only the second strip, the one recorded at 9:56 p.m., contained information recorded before 10:02 p.m.
Nonetheless, Chervin said his conclusion as to the time of the injury remained. He explained that "once the heart rate has reached 40 and is not spontaneously resurrectable, it reflects brain damage which has gone on for a number of minutes and which is unlikely to be resolvable by restoration of normal cardiopulmonary function." However, he agreed that a vagal response can cause the heart rate, very briefly, to rapidly decline, and he admitted that it was possible that plaintiff's heart rate had declined at 9:56 p.m. on that basis. Chervin admitted that the fact that plaintiff's oxygen saturation rate had remained high at 9:56 p.m. was more consistent with a vagal response than with several minutes of oxygen deprivation.
Chervin further agreed that the data regarding plaintiff's heart and oxygen saturation rates on the strips recorded after 10:11 p.m. were much more ominous than the data on the strips recorded prior to that time in terms of potential brain injury. Thus, Chervin conceded as follows:
Q: So you'll agree with this, will you not. You've made some assumptions and come up with an opinion that the damage to this baby occurred [from] . . . 9:50-9:55 up to the time that Dr. Olesnicky came on the scene. Right?
Q: Would you agree . . . that opinion [may be] wrong?
A: Yes, I will, it's possible.
With regard to liability, David Bronheim, plaintiffs' expert in the area of anesthesia, critical care, general medicine, hospital policy, and nursing, opined that all of the defendants had deviated from the accepted standards of care. Bronheim explained that after plaintiff moved, at approximately 9:55 p.m., his oxygen saturation and heart rate went down.
These declines were consistent with a lack of adequate ventilation and "with the endotracheal tube having come out of place." As a result, there was a short period during which plaintiff did not have adequate profusion, and the staff performed CPR, which raised his heart and oxygen rate, although not to normal levels. Over the next ten to fifteen minutes the staff attempted to ventilate plaintiff through an endotracheal tube that was no longer in place. Plaintiff then experienced another cardiopulmonary event, before the tube was finally replaced.
Bronheim opined that Anderson, the attending nurse, was "primarily responsible" for initiation of the code and that she deviated in failing to call a code at 9:55 p.m. when plaintiff suffered cardiopulmonary arrest. He also opined that Anderson deviated in leaving plaintiff alone with Areli when she thought the endotracheal tube was inadequately taped, and in assisting in the administration of Norcuron.
Anderson did not present any expert testimony, but testified that she complied with all applicable standards of care.
Bronheim opined that Rue deviated in administering Norcuron, not Valium, because the paralyzing agent prevented plaintiff from breathing on his own, and increased the risk that he would be deprived of oxygen. Bronheim also opined that if Olesnicky had asked Rue to call the labor and delivery anesthesiologist when she arrived at 10:02 p.m. and Rue did not do so until 10:10 p.m., then Rue deviated in failing to timely call for assistance. But he found that Rue did not deviate in failing to call the code because she called the anesthesia department and because Anderson, the attending nurse, was responsible for calling the code.
Rue produced Maureen Madden, an expert registered nurse specializing in pediatric critical care, who opined that Rue did not deviate in administering Norcuron. Madden explained that an infant's airway "is fairly tenuous," and thus excessive movement can cause the endotracheal tube to become dislodged and can compromise the surgical site. She noted that in her practice she often utilizes Norcuron to limit an intubated infant's movement post-operatively. Moreover, prior to administering Norcuron, Rue had appropriately assessed that the tube was in position by listening for breath sounds. And Madden stated that plaintiff's rapid decrease in heart rate shortly after he moved was an "isolated incident" or vagal response to the tube pressing on the carina, because plaintiff's heart rate increased after compressions. She concluded that administration of Norcuron by Rue, in light of Rue's assessment that the tube was properly in place, was "appropriate." However, Madden admitted that administration of Norcuron to an infant with a compromised airway can be devastating.
Bronheim opined that Olesnicky committed a "gross deviation" in failing to call the labor and delivery anesthesiologist at 10:02 p.m., delaying asking for help until 10:10 p.m., failing to inform the staff that she was not qualified to reintubate the infant, failing to accept Simard's offer to reintubate, and declining Rue's offer to call a code. He explained that it was undisputed that upon entering the PICU at 10:02 p.m. Olesnicky immediately recognized that she was not qualified to manage plaintiff's airway. She was thus obligated to directly call for assistance from anyone who was "capable of handling the situation," which she did not do until 10:10 p.m.
In contrast, and presumably regardless of whether plaintiff actually suffered the injury at 10:02 or 10:14 p.m., Gerald LaFevere, Olesnicky's expert anesthesiologist, opined that Olesnicky did not deviate from the accepted standards of care. He explained that Olesnicky, as a first-year resident, was not qualified to reintubate an infant and should never have been called to the PICU. Nonetheless, once Olesnicky arrived she appropriately asked someone to page Ciolino, assisted in vigorously ventilating plaintiff, appropriately prescribed Atropine to raise the infant's heart rate, and then repeatedly requested that the staff page Ciolino. He explained that
Olesnicky was in a very difficult spot . . . . On the one hand, you can conclude that although the airway is very tenuous, they're hanging on by a thread while they're waiting for help by Dr. Ciolino . . . the attending anesthesiologist. On the other hand, clinical science point[s] to a worsening situation where you have to take action. Her problem in taking action was she didn't know how to do it and she knew she didn't know how to do it. And the concern was causing more harm by attempting a laryngoscopy and taking the endotracheal tube out, replacing it, or not being able to replace it, and then you have no airway rather than staying in the situation she was in, with a very tenuous airway while she was awaiting Dr. Ciolino's arrival.
LaFevere admitted, however, that plaintiff needed to be reintubated and that Olesnicky did not directly tell the staff she was not qualified to do so. And he conceded that if Olesnicky did not ask someone to call labor and delivery until 10:10 p.m., she would have deviated from the accepted standards of care because she should have called for help within two or three minutes of assessing plaintiff's condition.
Nonetheless, LaFevere opined that Olesnicky did not deviate in failing to call a code, or in declining Rue's offer to do so, because Olesnicky had not been trained and was not aware of the code protocol. However, he admitted that someone else should have called a code.
Finally, Bronheim opined that Vallee and Zeig deviated from the accepted standards of care in failing to have either a qualified resident available to answer calls from the PICU or someone who was qualified to know what to do "if they came up against something they weren't qualified to do," such as calling a code if the attending labor and delivery anesthesiologist was unavailable.
The extent of plaintiff's injuries is undisputed. Although plaintiff has some movement of his arms and legs, he is unable to walk or crawl and has no meaningful motor development. Plaintiff will always be delayed and will not make any meaningful gains in motor abilities, nor will he be able to speak. Plaintiff can only track light and see shadows because the part of the brain that interprets images from the eye, not the eye itself, was damaged. As a result of these injuries plaintiff will always require full-time supervision and will never live independently, attend school, or work.
According to Adler, plaintiff was aware of the events on September 25, 1998, and felt pain beginning at 9:55 p.m., when he started to wake up. Plaintiffs played for the jury a compelling day-in-the-life video, which showed plaintiff consciously responding to his surroundings, interacting with his mother, older twin brothers, and therapists. The video is in the appellate record, and we have viewed it. Sandy Waran, St. Barnabas' expert in pediatric neurology, acknowledged that plaintiff can experience pleasure, pain, and discomfort.
Henry Pellicer, plaintiff's father, testified that as a result of therapy plaintiff was starting to get more vocal and could move by rolling on the floor. Plaintiff could also play "a little bit more" and grab things, and expressed joy by throwing kisses and laughing. Similarly, Areli, plaintiff's primary caretaker, said plaintiff has incredible hearing and smiles and laughs when he hears his brothers or his father. When plaintiff hears the door open, he often lifts his arms to show that he wants to go outside. And Areli noted that plaintiff has some control over his left hand and attempts to drink from a cup and bring food to his mouth.
Plaintiff cannot, however, walk or crawl, and has to roll to move. Moreover, plaintiff is required to wear leg braces, an elbow splint, a hand splint, and uses a wheelchair. As part of his therapy, for up to an hour every day plaintiff has to be strapped into a device that allows him to remain erect and provides some weight bearing for his muscles. Areli maintained that plaintiff did not like to be "confined and strapped down." She also described a grueling caregiver schedule, including getting up five or six times a night to turn plaintiff over, and lifting plaintiff into the bathtub and his highchair.
The day-in-the-life video corroborates the description by plaintiff's parents of the plaintiff's condition, activities, responses, awareness, expressions of joy, sadness, frustration and other emotions, and the like.
With regard to life expectancy, Adler explained that
[t]he life expectancy of individuals with chronic neurological disabilities is determined by . . . number one, their age. How old are they when you're evaluating them? Because children with chronic neurological problems tend to live longer if they show that they have survived and are capable of living in spite of their neurological disabilities. So you can make stronger statements about children who are six than you can about children who are two years of age. So Casey is already six.
Children with head control and the ability to take food by mouth, both of which Casey has or can do, [tend to have] . . . a longer life span . . . [as compared to] children who are immobile, don't take any of their nourishment by mouth. So the combination of Casey's age, the fact that he can eat, and despite his reduced mobility, the fact that he has some head control indicates to me that his life expectancy need not be significantly shortened. I would see him alive in his 40s and could see him living beyond that, assuming that he continues to be in excellent health.
Adler stated that the quality of care received by a disabled child "[w]ithout a doubt" translated into life expectancy.
Thus, he concluded that, assuming plaintiff had a good quality of care, plaintiff could reach his normal life expectancy of seventy-five.
In contrast, Waran, St. Barnabas' expert in pediatric neurology, who had hospital privileges at St. Barnabas, opined that plaintiff would probably only survive into his twenties or thirties. Waran explained that he arrived at that conclusion based on his education in Sri Lanka, his review of medical literature, and his professional experience in working with children with similar symptoms, some of which he obtained while overseeing services at the Willowbrook State Institution. Waran, a former professor of neurology at the State University of New York, explained that after the conditions at Willowbrook had been exposed to the public, he and a colleague were assigned to consult, oversee and improve services at the institution. Waran said that his first experience in working with profoundly disabled adults in an institutional setting was at Willowbrook.
In a series of comments that would later serve as the basis for objections, Waran admitted that prior to his arrival, Willowbrook had been a horrible place, where children like plaintiff were warehoused, malnourished, dehydrated, left in their cribs for days without care, or left to lie on concrete floors. He explained that the "culture" at institutions like Willowbrook had been to "park people in huge places and not see them," a culture that had subsequently "been dismantled." Waran had not seen any eighty-year-old severely disabled individuals at Willowbrook. And Waran conceded that the quality of care directly affected life expectancy. Moreover, Waran admitted that some of the disabled individuals referred to in the Eyman study, a study conducted in California of profoundly handicapped individuals, and that supported his conclusion as to life expectancy, had probably been cared for in an institution with a culture similar to Willowbrook's.
In any event, Waran explained that children like plaintiff with severe brain injuries tend to experience medical complications, including bladder and bowel infections, silent aspirations, pneumonia, and epilepsy. However, he admitted that to date plaintiff had not experienced any of those complications, except for epilepsy which was well controlled and did not require medication. Moreover, although Waran said he had treated approximately fifty children with injuries similar to plaintiff's, he did not know how many of those children lived into adulthood. As to exactly how long plaintiff might live, the following exchange took place between counsel and Waran:
Q: You agree he may in fact live into his forties, fifties, sixties, seventies, you agree that may happen?
A: It's possible. Anything is possible, counsel, how can I say no?
Harold Bialsky, plaintiffs' certified life care and vocational planner concluded that a conservative estimate of plaintiff's life-care costs totaled from $9,447,469 to $13,152,585. The largest component of the plan was for hired primary care givers, who would assume most of the care provided by Areli. Bialsky explained that Areli, who had given up her job, had been plaintiff's primary care giver. Bialsky included the costs for a daytime home health aide and a licensed practical nurse (LPN) in his plan, explaining that an LPN, as opposed to a home health aide, can provide preventative care and administer medication.
However, Roger Ham, St. Barnabas' expert economist, opined that the total cost of the plan should have been reduced to present value, or the amount of money needed to provide plaintiff with approximately $10.7 million dollars, the average of Bialsky's plan costs, over plaintiff's lifetime. Ham explained that generally interest exceeds inflation by two or three percentage points, referred to as a net discount rate. Thus, accepting the $10.7 million cost of Bialsky's plan and applying a 2.5% net discount rate which Ham derived from a government study of interest and inflation, he concluded that the present value of the plan was $4.4 million. Ham also calculated the plan based on different life expectancies as follows: 25 years - $2.1 million; 35 years - $3.6 million; and 45 years - $5.2 million. Ham conceded that he had failed to consider the tax consequences in deriving the present value of the plan, which, accepting Bialsky's estimate, could total $15.8 million.
As to lost wages, Bialsky concluded that, assuming plaintiff obtained a high school diploma, he would have been able to earn $25,000 annually. And Areli testified that she left her job, where she earned $13 an hour plus benefits, to care for plaintiff.
Appellants argue they were deprived of a fair trial because of improper remarks in summation by opposing counsel. In particular, Olesnicky, Anderson and Vallee argue that some comments by plaintiffs' counsel were inflammatory and caused a miscarriage of justice, warranting a new trial. Vallee and Zeig argue that some comments by counsel for Rue and Anderson were improper and also warrant a new trial.
We view the comments complained of in the context of the summations given by that attorney, in reference to summations by other attorneys, and, of course, in relation to the trial evidence. In determining whether any improper comments warrant a new trial, we also consider whether objections were made and whether curative instructions were given. And, we consider the potential impact of any improper statements on the outcome of the trial with a view of the entire trial record, rather than viewing the specific comments in isolation. Applying these considerations, we conclude that although certain comments were improper, those comments, either individually or in the aggregate, do not warrant reversal and a new trial.
Closing arguments are permitted pursuant to Rule 1:7-1(b), and attorneys are generally afforded broad latitude in making such statements. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001); Geler v. Akawie, 358 N.J. Super. 437, 467 (App. Div.), certif. denied, 177 N.J. 223 (2003). Thus, "counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd . . . ." Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). But arguments "must be based in truth, and counsel may not 'misstate the evidence nor distort the factual picture.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting Colucci, supra, 326 N.J. Super. at 177). It is "improper to construct a summation that appeals to the emotions and sympathy of the jury." State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006).
However, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). Juries are presumed to follow such instructions. State v. Winter, 96 N.J. 640, 649 (1984). However, "[w]hen summation commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a trial court must grant a party's motion for a new trial if the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender, supra, 187 N.J. at 431 (quoting R. 4:49-1(a)); see also Priolo v. Compacker, Inc., 321 N.J. Super. 21, 29 (App. Div. 1999) (wrong to suggest that anything ...