August 13, 2007
CASEY PELLICER, A MINOR, BY HIS GUARDIAN AD LITEM ARELI PELLICER, AND ARELI PELLICER, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
ST. BARNABAS HOSPITAL AND SAM EDELMAN, M.D., DEFENDANTS, AND J. RUE, R.N., DEFENDANT-RESPONDENT, AND D. KROPILAK, R.N., DELPHINE ANDERSON,*FN1 ANNE OLESNICKY, M.D.,*FN2 MICHAEL VALLEE, M.D., AND NORMAN ZEIG, M.D.,*FN3 DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2007
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 jury hears can be remedied by instruction); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998) (new trial warranted if counsel's misconduct in the aggregate rendered the trial unfair).
Appellants argue that plaintiffs' counsel improperly attributed to them an evil motive, namely accusing them of wanting plaintiff to receive lesser quality care so that plaintiff would die sooner and they would benefit financially.
Plaintiffs' counsel, referring to Waran's testimony that plaintiff's life expectancy was limited, argued that Waran's experience was confined to Willowbrook and to his treatment of fifty children with severe brain injuries, but without knowledge of the survival experience of those children. Plaintiffs' counsel then argued:
So this doctor, hired by Mr. Johnstone on behalf of the St. Barnabas Medical Center, who has privileges at the St.
Barnabas Medical Center, gives you an opinion which is worth the facts that it's founded on. Virtually nothing. And these are important issues in the context of this case because the life expectancy which you apply to . . . the numbers in the life care plan, are going to directly affect the amount of the economic damages which you award [plaintiff]. The defendants understand that. That's why . . . they want you to reduce the numbers. They want to get the benefit of [plaintiff's] death. So they bring in Dr. Waran.
Counsel continued by discussing Adler's testimony, noting that Adler opined that plaintiff could live into his forties or beyond, assuming he continued to be in "excellent health." And then counsel argued:
Life care plan, excellent health, LPN, wellness checks, excellent health. Casey can live. They don't want this life care plan. They benefit financially if Casey dies. Put it all together in your minds, think about what they're saying. Think about where they're going. If Casey doesn't have excellent health, if he doesn't have excellent care, if Casey dies, and they can convince you of that, then you reduce the number. That's the defense in this case.
[J]ust so we're clear, life care, they say it's unreasonable. Casey dies, they get a financial benefit. Quality of care equals quality of life, equals increased life expectancy. If we can reduce the quality of care, and reduce the life expectancy, you save money. And so we will hire a witness with privileges at the defendant's institution to talk to this jury.
Defendants objected, arguing that the comments were inaccurate and "highly inflammatory," and asked for a "strong curative instruction." The argument was potentially inaccurate or misleading to the extent it may have suggested to the jury that if an award was rendered for life care expenses based upon a long life expectancy and plaintiff then died prematurely, defendants could obtain a partial refund. The judge agreed to explain to the jury that no such procedure was possible, and she did so in a clear and forceful manner. Further, to the extent that the jury might understand the argument to suggest that defendants wanted plaintiff to receive poor care and die at an early age, the comments were inflammatory and improperly attributed an evil motive to defendants.
With respect to the inflammatory aspect of the comments, the judge invited counsel to submit a proposed limiting instruction. It appears that only Rue's attorney presented such an instruction, but it has not been included in the appellate record. In any event, the judge agreed to instruct the jury not to consider counsel's comments regarding opposing counsel's strategy or motives.
The court instructed the jury that "nothing that the attorneys say to you is evidence," and specifically instructed that to the extent that any one or more of the attorneys has commented upon the strategy of another attorney, or the motive of another attorney, you're not here to judge an attorney's strategy. . . . First of all, you don't have enough experience in the law, enough experience in trials or litigated matters to be able to judge an attorney's strategy.
More importantly, an attorney's strategy is not evidence . . . . Nor is any motive of . . . an attorney evidence. Again, you're going to have to decide this case based upon the evidence, not based on any strategy or any motive that any one attorney might think any other attorney has.
No counsel took exception to that curative instruction or requested amplification.
In denying defendants' motion for a new trial, the court set forth that during summation plaintiffs' counsel commented to the jury that if the defendants reduce the quality of care that is given to the infant plaintiff, then the infant plaintiff dies earlier and the defendants save money. The difficulty with this comment is that in some respects[,] mathematically speaking[,] it reflected the defendants' position that essentially the child's life care plan was such that it was excessive because they disagreed with the life expectancy and hence, since it was their position that the child would die sooner than that predicted by the plaintiff therefore the child needs less money. The problem with the comment . . . is that it went further than that. It went further than just putting into mathematical terms what the defendants' position was and it implied almost a lack of morality and strategy when [counsel] added the reference to [the comment that] if you give a lesser degree of care that way you make sure Casey Pellicer dies sooner. So although the Court is satisfied that the comment should not have been made, the Court is also persuaded that it did not influence this jury.
As previously indicated . . . [the damage] awards are in this Court's view evidence that this jury not only wasn't persuaded by passion or sympathy but they followed specifically the testimony, [and] they followed the Court's instructions . . . . [T]his jury was detached, dispassionate, cold. They showed no emotion. They deliberated for two days.
They made intelligent requests to the Court.
In summation, counsel may not use disparaging language to discredit an opposing party or witness, or to unfairly attack the opposing party's character or integrity. Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004); Geler, supra, 358 N.J. Super. at 470-71; Henker v. Preybylowski, 216 N.J. Super. 513, 518-19 (App. Div. 1987).
We agree that the comments here were improper and potentially prejudicial, in that the comments had the capacity to suggest that defendants wanted to reduce the quality of care given to plaintiff so he would die earlier. Plaintiffs contend the comments were not intentionally misleading, but only intended to suggest that defendants' "analysis of life expectancy, as presented by Waran, presumed a less than optimal level of care" and that damages would be limited if defendants established that plaintiff had a lesser life expectancy. Plaintiffs' argument is correct to the extent that defendants contested the life care plan and estimated life care expectancy, but the comments went farther than that, exceeding legitimate inferences to be drawn from the evidence and tending to disparage defendants' morals.
Nevertheless, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during . . . closing argument." City of Linden, supra, 370 N.J. Super. at 398. "'The court is bound to make his [or her] corrective instructions to the jury so clear, explicit, and emphatic as to efface, if possible, any prejudicial or injurious influence likely to have resulted from the misconduct of counsel.'" Geler, supra, 358 N.J. Super. at 471 (quoting Paxton v. Misiuk, 54 N.J. Super. 15, 24 (App. Div. 1959), aff'd, 34 N.J. 453 (1961)).
Appellants claim that "the trial court did nothing to correct" the improper comments. We do not agree. In fact the court specifically asked counsel to prepare a curative instruction, and it appears that only one defendant, Rue, did so. Appellants failed, however, to include a copy of that proposed charge in the appendices, and thus it is unclear what type of limiting instruction defendants requested.
We are satisfied that the limiting instruction here, given immediately after plaintiffs' summation and again in the main charge, was adequate to ameliorate any prejudice that may have ensued from the inflammatory aspect of counsel's comments. The instruction could have been clearer and should have specifically referred to the comments to which it pertained and instructed the jury to disregard the comments. However, defendants did not object on that basis. Moreover, as the court found, nothing in the record indicates that the jury had difficulty complying with that instruction, nor did the substance of those statements affect the outcome of this lengthy trial. In fact, the jury ultimately awarded plaintiff $10.5 million in future life care needs, substantially less than the maximum amount sought by plaintiffs, which the court instructed the jury could go as high as $15.8 million.
The next comments complained of pertain to Willowbrook. Plaintiffs' counsel argued that plaintiff's parents want the best for their child, and that means keeping him at home with the best care possible, and not have him institutionalized. Counsel argued "that's what this plan does." Counsel then noted that Waran's primary experience with disabled individuals was at Willowbrook, which counsel described as a horrendous place. And the people who lived there, who did not live beyond a certain age, received the quality of care which was as poor, as distasteful and disgusting as anything you can imagine. So if that's the experience that Dr. Waran is going to rely upon in giving you life expectancy numbers, Casey will not be at Willowbrook, or any place like it. So his [Waran's] experience in that regard does not apply.
Anderson's attorney objected, arguing the reference to Willowbrook was "very inflammatory," particularly when combined with the comments regarding defendants' desire that plaintiff have lesser care and a lower life expectancy. The court overruled the objection, finding that the comment was properly based on the evidence:
[W]hat became clear from Dr. Waran's testimony was that the difficulty in projecting life expectancy for children with these types of disabilities is that the culture, that's his word, of how we care for people has changed drastically, . . . in modern times. . . . It's perfectly appropriate on cross examination to explore the cultural changes in recent times that would affect any prior studies, any prior knowledge. So I don't think there was anything improper in any way about the testimony about the former culture and/or comments on it. So on that I'm not going to give the jury any limiting instruction on the Willowbrook issue.
Here, as the trial court found, plaintiffs' counsel's comments were based on the evidence and logical inferences. Waran testified that he based his conclusion as to plaintiff's life expectancy on his education, review of medical literature, and his professional experience in working with children, some of which he obtained while overseeing services at Willowbrook. Waran admitted that prior to his arrival, Willowbrook had been a horrible place, and the "culture" at institutions like Willowbrook had been to "park people in huge places and not see them," a culture that subsequently had "been dismantled." Waran also admitted that he had not seen any eighty-year-old severely disabled individuals at Willowbrook, and that the quality of care directly affects life expectancy. In that regard plaintiffs' counsel could properly comment on the conditions at Willowbrook and argue that the life expectations for patients cared for in that institution inapplicable to plaintiff who had, and would continue to receive, high quality care.
Olesnicky argues that plaintiffs' counsel improperly implied that her law firm hired Chervin to write a false report. Some background is necessary to place the comments in perspective.
During the first trial, the court granted Olesnicky's motion for a mistrial on the basis that the newly discovered strips might enable her to establish that plaintiff's injury occurred before she arrived in the PICU at 10:02 p.m. Thus, Olesnicky's counsel submitted the strips to her expert in pediatric neurology. Chervin authored two reports bearing the same date. In the first one, he was operating under the belief that two of the strips pertained to time frames before 10:02 p.m. On one strip, the time stamp clearly reflected 9:56 p.m., and it showed a heart rate of forty-six beats per minute. On the other strip, the time stamp was not clear, but it ended with the digit "3." Chervin believed that strip referred to 9:53 p.m. That strip reflected a heart rate of thirty-six beats per minute, and had a notation inscribed on it indicating that compressions were started and the patient was still bagged. In the first report, Chervin pointed to these two strips as strong objective evidence of an ongoing process that began sometime prior to 9:53 p.m., during which the heart rate was extremely low, when compressions needed to be started, and prior to which bagging had been started. Because of the nature and extent of the brain damage suffered by plaintiff, Chervin opined that a five to seven minute depravation of oxygen to the brain was the cause. He concluded that the five to seven minute period began at or before 9:53 p.m., was ongoing at 9:56 p.m., and thus the irreversible brain damage occurred before Olesnicky entered the PICU.
Chervin faxed the report to the office of Olesnicky's counsel, only to receive a phone call from one of the attorneys informing him that because the strips were out of order, it was not established that the strip on which the unclear time stamp ending in "3" reflected 9:53 p.m. Thus, a new report, presumably without relying on that information, was requested. Chervin wrote a new report, deleting reference to the purported 9:53 p.m. time stamp, but reaching the same conclusion as in the first report. He faxed it to Olesnicky's counsel the same day.
In his testimony, Chervin also expressed the belief that plaintiff turned his head "somewhere in the 9:45-9:50 timeframe," contrary to the overwhelming evidence from all other sources that it occurred at about 9:55 p.m.
The circumstances of the two reports bearing the same date and the nature and effect of the interaction between Chervin and Olesnicky's counsel as it affected the contents of the reports was explored extensively at trial through cross-examination of Chervin. Plaintiffs' counsel elicited from Chervin, for example, the purpose for which he was hired:
Q: You were hired by Mr. Giblin in this case to try to figure out whether or not you could time the injury.
A: That's correct.
Q: You understood that Mr. Giblin's client got there at the earliest around 10:02. You understood that?
A: Yes, I did.
Q: So that if you were able to testify in a courtroom like this, tell the jury that the injury is fixed and permanent before 10:02, even if Dr. Olesnicky did something wrong, it would seem to imply she's not at fault for the injury. You understood that?
A: I understand that.
Q: That was your mandate in this case, to see if you could testify to those facts?
A: The mandate was to review the records, come up with as much objective case as possible and to try to determine --
A: -- if the brain dysfunction which has caused intellectual and language and motor dysfunction could have transpired prior to her ability to intervene. [Emphasis added.]
Counsel also elicited from Chervin testimony about his telephone communications with counsel for Olesnicky with respect to the two reports:
Q: And later in the day you got a call from Mr. Giblin's office again?
Q: And Mr. Giblin's office, either Mr. Giblin directly or somebody else in the office, said: You know that information we told you was from the earlier period, perhaps 9:53, but certainly before 9:56, it doesn't look like that's from the before period, or at least we're not sure. That's what they told you?
A: No, that isn't what they told me. They told me that the order in which they were numbered turned out to be apparently an undocumented numbering system.
A: And they were going to speak with the individual who numbered them.
A: And therefore I couldn't use my previous statement of 36 [heart beats per minute] as fact occurring before 9:56 p.m.
A: But they still needed a report for that day and would I please retype it and send it, which I did.
Q: So the information you had from the first strip that there's a 3 somewhere in the area of the time and a 36 heart rate, and compressions started and still bagged, is something you could no longer rely upon in issuing your opinions in this case, at least at that point?
A: That's right.
Q: So what you did is you issued a second report. Yes?
A: Yes. I simply eliminated the 36, et cetera, and put 40s --
It's a second report you issued?
Q: You didn't issue a supplemental report?
Q: You issued a second report?
A: That's correct.
Q: Which has the same date on it. Yes?
Q: Which is signed by you?
Q: And which you reached the same conclusions, even though you've eliminated some of the previously thought facts. Correct?
A: Correct. . . . .
Q: Who told you to redo the report?
A: Attorney Beyea-Schroeder told me it had to be done based on the request by 4 o'clock that day, and that they had found out and were contacting the attorney or going to visit the attorney the next week, that what was listed as one, may not be one.
Q: Dr. Chervin, I asked a very simple question.
A: It's not a simple answer.
Q: Who told you to redo the report?
A: Attorney Karen Beyea-Schroeder [told] me we cannot rely on strip number one as being chronologically correct and the only thing that was certain, given that her copies were legible and mine were questionable, was the 2156 heart rate of 40.
Q: Can you answer the question the way it was phrased?
A: I don't think so.
Q: Did somebody at the law firm of Giblin & Combs, Mr. Giblin's law firm, tell you to redo the report?
A: Yes. She said that report is not satisfactory.
So somebody in Mr. Giblin's office on the telephone said to you: The expert they hired, to try to defend Dr. Olesnicky, to redo the report, it's not satisfactory. That was, in essence, what the conversation was?
A: Yes. [Emphasis added.]
And, under cross-examination by counsel for Rue, Chervin said:
When I was told after I typed this and faxed it: Whoa, now we found out that Mr. Sarno didn't label these chronologically, you can't state that it's 9:40 -- 9:53, you have to redo the report so that it states what we know at 9:56. I did that.
In the relevant portion of his summation, plaintiffs' counsel presented a lengthy explanation to the jury as to the basis upon which he urged that they find that the strip with the unclear time stamp ending in "3" reflected 10:13 p.m. Indeed, under cross-examination, Chervin acknowledged that the readings on that strip corresponded with the strips for the minutes immediately before and after 10:13 p.m. and might well have been the strip for 10:13 p.m. Chervin also acknowledged under cross-examination by Rue's counsel that because the oxygen saturation level on the 9:56 p.m. strip was normal, the heart rate of forty-six beats per minute on that isolated strip, without more, was consistent with a transitory vagal response.
Following the argument about the time that should be ascribed to the strip on which the time stamp ended with a "3," plaintiffs' counsel made the comment now complained of by Olesnicky. He argued that Olesnicky's counsel hired Chervin and told him,
I need to know whether or not we can prove that the injury occurred before 10 o'clock or 10:02, because she wasn't in the room before 10 o'clock, 10:02. And if we can prove that, even if she's negligent, we got her out on proximate cause. No harm, no foul for Dr. Olesnicky. And I got some information for you. . . . And specifically what I got for you, Dr. Chervin, and you're going to love this, I got the strip marked P-5 for identification that has a 3 on it, which indicates 9:53 or maybe even 9:43, and it says on it heart rate of 36. You're going to love this, Dr. Chervin. And it says "compressions started and still bagged" as early as 9:53 or maybe 9:43, Dr. Chervin. And then at 9:56, which is three or four minutes later, I still got a heart rate of 46, Dr. Chervin. And, man, this is cake for you. You're going to be able to show that [plaintiff's] heart rate was down in the 36/46 range for three or four minutes, and it had to get there over some period of time. So you can even extrapolate back for, you know, two or three minutes because it says, hey, still bagged. So we know they were caring for this child for a minute, two minutes before this, and you got this beautiful scenario for you there. Four, five, six minutes of heart rate in the 30s and 40s. You can help me, can't you, Dr. Chervin? And he goes: Oh, okay, I'll write a report for you.
Counsel then continued with a description of the first report and continued with his description of the purported conversations between Chervin and Olesnicky's counsel:
And in the middle paragraph he says: "And is well documented." Well, he's referring to that strip that has the 36 on it. "It's well documented with heart rates as lows as 36 and blood pressure 27/21." You know, it's low. Well documented. "Apnea, failure to resolve cardiopulmonary emergency." Those are summary sort of conclusions. Those are not found anywhere on any documents. The specific information that he relies upon, this well-documented stuff, is the heart rate and the blood pressure. And, Mr. Giblin, here you go. Here's my report. Thank you. Those descriptions, they helped. The only information I reference in my report are the strips. Based upon those strips, four, five, six, seven minutes of low heart rate, low blood pressure, and 02 levels. You got it locked, man, no proximate cause.
Dr. Chervin['s] got a problem. [Counsel] says the strip is not number one. That strip that you assumed, or that we assumed, or that we told you was the first one with the 36, doesn't look like it's the first one any more. . . . We no longer have three or four or five or six minutes of heart rates in the 30s or 40s that are well documented. Dr. Chervin, can you help us? I mean, I know we don't have much documentation now, I know we really only have one strip that shows 10 seconds of heart rate in the 40s, and at the time that that strip was taken, . . . there's an 02 level of 99 percent, . . . [Chervin then submitted] the same opinion based on an entirely different set of facts.
Defense counsel objected and moved for a mistrial, or a curative instruction. Plaintiffs' counsel responded that he asked the jury to infer that Chervin was not credible by describing a conversation about the two reports in "somewhat a satirical ma[nn]er." The court overruled the objection, stating,
I think that [plaintiffs' counsel] was clear in his closing when he was repeating what was alleged to be said on the phone that he was being sarcastic. There was no juror who could have ever have thought that he was repeating what was actually said. He was casting an argument to suggest or make an inference that what Chervin was here was a hired gun, not some, for lack of a better word, he wasn't an independent expert giving an interview. He was a person trying to get to a particular result. And it seems to me that that's a proper area for adversaries to argue, and for opposing sides to argue to a jury and present evidence about it.
The jury was wholly reliant on the expert testimony in determining whether plaintiff was injured before, or after, Olesnicky arrived in the PICU. The credibility of the experts was thus a critical issue, and counsel could properly argue that Chervin was not credible because his opinion remained unchanged, even though the facts on which he relied in forming it had. See Cogdell v. Brown, 220 N.J. Super. 330, 336 (Law Div. 1987) (credibility of experts is a paramount issue in medical malpractice cases and whether expert is a "hired gun" or one whose opinions have greater foundations of objectivity is an issue to be litigated by counsel and considered by the jury), certif. denied, 114 N.J. 517 (1989).
Nonetheless, Olesnicky argues that counsel went beyond arguing that Chervin's testimony lacked credibility, and implied that defense counsel hired Chervin to write a report absolving Olesnicky of liability even if that conclusion was not supported by the facts: in other words, that the report was fabricated or contrived. See State v. Marquez, 277 N.J. Super. 162, 172 (App. Div. 1994) (prosecutor told jury the defendant's expert's testimony was scripted), certif. denied, 141 N.J. 99 (1995).
The fact that Chervin did not change his opinion notwithstanding a material change in the facts on which it was based tended to support an inference that the report was contrived. Cf. State v. Nelson, 173 N.J. 417, 461-62 (2002) (record was completely devoid of evidence supporting the prosecutor's implications that the expert's testimony was fabricated or contrived); State v. Rose, 112 N.J. 454, 519 (1988) ("Without an adequate foundation in the record, the prosecutor's implication that the expert testimony was contrived was totally unwarranted"). In fact, Chervin conceded that his opinion could be wrong, and admitted that plaintiff's heart rate and oxygen saturation level on the strips recorded after 10:11 p.m. were much more ominous in terms of potential brain injury, than the data on the strips recorded prior to that time.
The "sarcastic" presentation of fictitious conversations used here were inappropriate and tended to strain the boundaries of propriety. Summation comments that impugn the integrity of opposing counsel are improper. See, e.g., State v. Smith, 167 N.J. 158, 177-78 (2001). We decline, however, to find the impropriety here sufficient to warrant reversal and a new trial. We first note that the trial judge, who had the feel of the case and was able to observe counsel's demeanor in making the comments and the reaction by the jurors, concluded the comments were clearly satirical and no juror would have been induced to take them literally. And, the argument had a foundation in the evidence. Trial testimony revealed that the purpose in hiring Chervin was to attempt to establish by "objective" information a timeline favorable to Olesnicky, and included telephone conversations between Chervin and Olesnicky's counsel regarding the specific contents of the two reports and the use of the objective information from the strips contained in them. Chervin testified that Olesnicky's counsel called him and told him the first report was "not satisfactory," that he "couldn't use [his] previous statement of 36 as fact occurring before 9:56 p.m.," and that he had to "redo" the report. In response, Chervin testified that he "simply eliminated the 36, and put 40s" and issued the second report. Thus, this satirical version of the conversations was not pulled out of thin air, but was related to trial testimony.
Next, appellants argue that plaintiffs' counsel misused the time-unit rule. See R. 1:7-1(b). Plaintiff argued during summation that plaintiff will live, assuming he lives a normal life expectancy, including the time that has already passed, approximately thirty-nine million minutes. . . . [T]hirty-nine million minutes of time for which [plaintiff] is entitled to be fairly and reasonably compensated. What you do with that information is up to you. How you calculate the quantum of damages to which [plaintiff] is entitled for those thirty-nine million minutes of misery is something that you have to decide.
Defense counsel objected, contending that plaintiffs' counsel did not give notice of his intention to use a time-unit argument and that counsel misused it by inferring to the jury that the unit of time used should translate into dollars. The court overruled the objection, finding that defendant gave adequate notice in a pretrial submission, and the court found that the manner in which counsel presented the argument was consistent with that allowable under the rule.
It is permissible for counsel to suggest to the jury that it calculate damages for pain, suffering and loss of enjoyment of life based on units of time applied to the plaintiff's life expectancy. See Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 123 n.4 (2004); Dehanes v. Rothman, 158 N.J. 90, 98 (1999) (counsel can relate pain and suffering to units of time without suggesting a particular figure). That is what counsel did here. We know of no prohibition limiting the use of the rule to units of time in years, months or days, as opposed to hours or minutes. And, the notice was adequate. See Henker, supra, 216 N.J. Super. at 519-20. We reject the argument that because plaintiffs' counsel did not remind defense counsel immediately prior to closing of his intention to use the rule, the guidelines set forth in Henker were violated. See Id. at 520. The required notice was given, and, in any event, no appellant has told us what they would have said differently in summation if they were given the reminder. Further, in making the time-unit argument, plaintiffs' counsel did not allude to the "golden rule." See Id. at 519. Finally, the judge gave the appropriate cautionary instruction to the jury as required by Rule 1:7-1(b).
Appellants argue that plaintiffs' counsel improperly insinuated bad faith on their part because they refused to acknowledge responsibility for plaintiff's injuries. To place the comment in context, we first look at a comment in the opening statement of St. Barnabas' counsel that defendants would present different recollections at trial of what had occurred but that each defendant had done "everything" possible for plaintiff during the time they were involved with him, thus suggesting that no one was at fault for the unfortunate result. Then, during summation, Anderson's counsel stated "I'm going to say something that nobody else has said so far: This never should have happened. [Plaintiff] is entitled to a verdict, no question about it."
In his closing, plaintiffs' counsel addressed St. Barnabas' opening statement that defendants had performed to the best of their ability, and said that counsel had made that claim [n]otwithstanding the fact that the individual attorneys who have come to this courtroom to try this case on behalf of the individual defendants have either directly or inferentially told you that [plaintiff] is entitled to a verdict, and I wrote it down, at 3:40 p.m. on November 9th, 2004, six years and six weeks after they destroyed this child's life, [Anderson's counsel] stood up in front of you and said: I'm going to say something that nobody else has said so far. He wanted to be the first, six years, six weeks after they destroyed this child's life: This never should have happened. [Plaintiff] is entitled to a verdict, no question about it. That's what he told you yesterday.
Olesnicky objected. The court overruled the objection, finding that the comment was a fair response to arguments of other counsel. We agree. We recognize that it is improper to insinuate bad faith on the part of an adversary who seeks to resolve a validly contested claim by going to trial. Geler, supra, 358 N.J. Super. at 469; Henker, supra, 216 N.J. Super. at 518. However, we do not view plaintiffs' counsel's comment here as improperly commenting on defendants' right to contest claims at trial. Counsel was pointing out the inconsistency between the representation by St. Barnabas' counsel that defendants had done everything they could and were thus not negligent and Anderson's admission that in fact someone was negligent and plaintiff was entitled to a verdict.
Olesnicky argues that plaintiffs' counsel improperly derogated Chervin during summation. Counsel urged the jury to reject Chervin's opinion as not being supported by the facts, and then commented:
I represent Casey Pellicer. Casey Pellicer is a six-year old boy with a brain injury and I take my job rather seriously. That is not a serious opinion. That is not a serious way to analyze facts. And you should absolutely not put any stock in that.
There was no objection to the comment. Failure to object deprived the trial court of an opportunity to cure any prejudice created by the allegedly improper remarks. City of Linden, supra, 370 N.J. Super. at 398. Failure to object evinces a reflection of counsel's belief that the statement was not prejudicial. Ibid. We do not find plain error in these comments. See R. 2:10-2.
Olesnicky complains that plaintiffs' counsel improperly characterized her attorney as dishonest by referring to certain defenses as "ridiculous" and "crazy." For example, counsel argued that the jury should not "put any stock" in the defense that plaintiff's injury occurred prior to 10:02 p.m., as presented by Chervin, stating that "[y]ou should not believe it. You should not give it any credence. It is ridiculous. It is unsupported by the facts. It is supported only by a recreation."
No objection was made to the comment, and although the term "ridiculous" should not have been used, we do not find plain error, particularly in light of the limiting instruction that the lawyers' strategies were not evidence. See R. 2:10-2. This comment did not approach that in Geler, supra, 358 N.J. Super. at 468, where counsel described the defendants' case as "rotten" and "garbage," and described their arguments as "garbage," "hogwash," and designed "[t]o confuse, to muddle, put up smoke screens."
Likewise, plaintiffs' counsel argued to the jury that Norcuron should not have been administered under the circumstances, and commented that doing so "is not only a deviation, its crazy." There was no objection. Counsel was referring to the decision to administer Norcuron, and not to a defense. Again, the term "crazy" should not have been used, but we do not find plain error. This is particularly so in light of the jury's exoneration of Rue, the nurse who administered the Norcuron.
Olesnicky's argument that plaintiffs' counsel improperly accused her attorney of preparing her answers to interrogatories lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Vallee argues that plaintiffs' counsel improperly attacked his attorney's character and morals when he responded to a summation comment by Rue's counsel that implied that because the defendants were criticizing each other in the presentation of their cases this was not a case of seven defendants against one plaintiff. Plaintiffs' counsel responded, "it is now and it will always be, myself and [co-counsel] versus everybody else at this table," and that defendants did not represent plaintiffs' interests. Plaintiffs' counsel then cited as an example a summation comment by Vallee's counsel, stating in an emotional manner what a tragedy plaintiff's situation is, and then, in the next breath, arguing that plaintiff's life-care plan was excessive. Plaintiffs' counsel said Vallee's attorney is "[n]o friend of mine. And he certainly doesn't represent that woman's child." He continued by telling the jury that when Rue's counsel "suggests to you that somehow I'm working with these folks or they're on my team, forget about it." We find no impropriety in this response to Vallee's argument.
In his summation, plaintiffs' counsel made several other comments that were improper and that were cured by specific limiting instructions, some of which the court issued without request. In particular, plaintiffs' counsel commented that Olesnicky had a burden to prove to whom she gave the note, that the defense strategy was deficient, that lost wages are calculated by multiplying gross wages by the number of years plaintiff would have worked, and that LPNs and home health aides are included in the consumer price index (CPI) definition of medical care. Olesnicky now argues that these comments were so prejudicial that they could not be cured by a limiting instruction. We disagree. The limiting instructions were appropriate and cured any potential prejudice. No further discussion is warranted. R. 2:11-3(e)(1)(E).
Finally with respect to plaintiffs' counsel's summation, Olesnicky and Anderson argue that plaintiffs' counsel's comment that Anderson did not call an expert was improper. We agree with the trial court that there was no impropriety. Anderson could have, but chose not to, produce her registered nursing expert as to the applicable standard of care. Likewise, Anderson could have, but chose not to, produce Thomas Hegyi, a pediatric intensivist, as to causation. Hegyi had been retained for the first trial by the attorney representing St. Barnabas, Anderson and Rue. Because it was determined that there was a conflict in that representation, separate attorneys were obtained for the second trial. For the same reason, Hegyi was prohibited from testifying about deviations by either Rue or Anderson, although there would be no conflict in his testimony about causation.
This situation is distinguishable from that in Bender, supra, 187 N.J. at 433. In that case, the plaintiff's counsel commented during summation on the failure of the defendants to call independent experts, implying that the defendants could not find any such experts willing to testify on their behalf. Ibid. But there, the plaintiff's counsel was aware that the defendants had two independent cardiologists who were precluded from testifying for procedural reasons, of which the jury was naturally unaware, thus rendering the summation comment unfair. Ibid. That was not the case here.
Vallee and Zeig argue that counsel for Rue and Anderson distorted the facts during summation by arguing that Vallee and Zeig had an obligation to provide coverage for the PICU by a person qualified to intubate an infant. They claim that such comments were identical to the arguments defense counsel had made in support of their application to charge common knowledge, an application the court denied.
As previously discussed, Bronheim opined that Vallee and Zeig deviated in failing to either assign a qualified resident to answer calls from the PICU, or to assign a resident who had been trained to call for help if necessary. However, Olesnicky, who was not trained to intubate an infant, said she had been trained to call an attending anesthesiologist in labor and delivery if she needed assistance, but was not trained to call a code. And Ciolino confirmed that residents were taught to call the attending anesthesiologist, but were not directly taught what resources to ask for if the attending physician was unavailable, although it was implied that they should seek help when necessary. Vallee and Zeig claimed that their department had no responsibility to provide resident coverage to the PICU, and thus would not have expected Olesnicky to be called.
During summation Anderson's attorney argued, in direct accord with Bronheim's testimony, that Vallee and Zeig could avoid liability by doing one of two things: either assign an appropriately-trained resident, or train the resident to call for help if needed. Counsel then disputed Zeig's and Vallee's testimony that they believed Olesnicky would have backup, arguing:
Did you have effective backup on this night? When the only backup is an anesthesiologist who may well and was performing a procedure in Labor and Delivery where you could easily foresee that any time during the night that anesthesiologist is going to be there with C sections, or administering epidurals, . . . and may not be able to respond, as Dr. Ciolini was not able to timely respond this night.
Rue's counsel argued in his summation that Vallee and Zeig did not want to "take responsibility" for the decision to let Olesnicky, who was not trained to intubate a child, cover the PICU, and that "if an experienced anesthesiology resident had walked into that room, we probably wouldn't be here."
Defense counsel objected and moved for a mistrial. The court sustained the objection and found that defense counsel's closing arguments improperly implied that the jury could find a deviation by Zeig and Vallee based solely on their failure to assign a qualified anesthesiologist to the PICU. The court instructed the jury that the only claim . . . submitted to you for your determination concerning any negligence on [Zeig's and Vallee's] part is a claim that they deviated from accepted standards of care or were negligent in that they were required to place on call either a resident who could themselves intubate or a resident who was trained what to do in the event [they] came upon a situation that they were not themselves capable of handling . . . . There is no claim being made that they were required and that they could only have placed a resident on call that night who themselves could intubate -- extubate and reintubate a child.
Any possible prejudice was cured by the court's forceful and specific curative instruction.
In conclusion, while there were some improprieties in summation comments, most were effectively dealt with by appropriate limiting and curative instructions, and we are satisfied that the improprieties, individually or in the aggregate, viewed in light of this long trial, were not of such a nature or magnitude to have deprived any party of a fair trial.
We next address the voir dire issue. Over defendants' objections, the court examined jurors in open court, rather than at sidebar, who expressed some dispute or dissatisfaction with hospitals or doctors. The same procedure was followed with respect to jurors who had favorable experiences with hospitals or doctors.
Many jurors related bad experiences, eight of which pertained to St. Barnabas. Most of the references were quite brief. Other jurors briefly discussed problems they encountered with other hospitals and doctors. Jurors who expressed an inability to put aside their life experiences and judge the case fairly were excused for cause. Conversely, many jurors described positive experiences with the care they received at St. Barnabas. Indeed, one juror said that "[g]iven my fondness of St. Barnabas and how well they've done for everybody in my family, I'd have difficulty ruling against them." Another indicated she had received such "good treatment" at St. Barnabas she could not be impartial, and another juror said she had an "excellent experience." Many other jurors indicated they had no dispute with the care they or family members had received at St. Barnabas or at other hospitals.
During the second day of jury selection, the court placed on the record its reasons for not conducting sidebar conferences, explaining that the jurors had described, in open court, both good and bad experiences with hospitals and doctors.*fn7
"In other words, what this jury has seen is they have seen life." The court explained that
[t]he reason I have not gone to sidebar was to insure that the jury panel hears all of it because, for each part of it they hear, the less tainted they are. They know that that is one person's view. They know, for example, when a person says a doctor can do no wrong[,] [t]hat person leaves this jury.
They know when a juror says a doctor always does something wrong, that person leaves this jury. And with each person we excuse, it brings home more clearly to each of the jurors . . . [the importance of] separat[ing] out personal experience and emotion from the facts and the testimony . . . .
On the third day of selection the jury was empanelled. At that time, all of the parties had peremptory challenges remaining. Prior to opening statements, the court specifically instructed the newly empanelled jury that they must disregard any opinions expressed by other prospective jurors and decide the case fairly, impartially, and based on the evidence.
A civil litigant is entitled to an unbiased jury and a responsive jury selection process. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 395 (App. Div. 2006); Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 259 (App. Div.), certif. denied, 127 N.J. 550 (1991). Article 1, Paragraph 9 of the New Jersey Constitution "guarantees a civil litigant a right to an impartial jury." Cohen, supra, 386 N.J. Super. at 395; see also Wright v. Bernstein, 23 N.J. 284, 294 (1957) ("The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts."). "[A] trial court must see to it that the jury is as nearly impartial as the lot of humanity will admit." State v. Williams, 113 N.J. 393, 441 (1988) (internal quotations omitted).
Rule 1:8-3(a) controls the examination of jurors, and provides in part that "[f]or the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath." The decision whether to hear matters at sidebar, or in open court in the presence of the jury, is within the sound discretion of the trial court. Priolo, supra, 321 N.J. Super. at 29. However, matters which might result in comments by the prospective juror which could have an adverse effect on the fairness of other prospective jurors (and, by implication, matters involving disclosure of sensitive information which the juror might wish to convey outside the hearing of the other jurors), should be discussed at sidebar in the presence of "the judge and counsel privately on the record." [State v. Lomax, 311 N.J. Super. 48, 52 (App. Div. 1998) (quoting State v. Kamienski, 254 N.J. Super. 75, 109 (App. Div.), certif. denied, 130 N.J. 18 (1992)).]
The court conducted a thorough and probing voir dire. There is no contention that the judge refused to ask questions deemed appropriate by counsel or that the judge failed to ask appropriate follow up questions in light of jurors' responses. Jurors were not asked to rely upon their recollection of questions posed to other jurors as a means of eliciting information from them, but, instead, each question was asked of each juror. See Administrative Office of the Courts, Directive No. 21-06 (Dec. 11, 2006) (Jury Selection Standard No. 1, prohibiting any voir dire method in which jurors are required to rely upon their "memory of questions previously posed to other jurors," and requiring that each juror be asked each question), as supplemented by, Directive No. 4-07 (May 16, 2007) (authorizing written questions as an alternative to asking each juror each question).
The question before us is whether the trial court abused its discretion in inquiring into these matters in open court rather than at sidebar. Plaintiffs argue that jurors bring with them to the voir dire process opinions, biases and attitudes they hold, but they do not acquire new ones based upon responses from other prospective jurors. Although there may be some support for that proposition, under our case law, the better practice would have been for the court to question potential jurors on these subjects at sidebar. See Kamienski, supra, 254 N.J. Super. at 111. However, we conclude from our review of the overall voir dire process that the jury panel was not tainted by the remarks, most of which were very brief, and which were balanced both pro and con with respect to St. Barnabas, other hospitals, and medical professionals generally. The fact that some prospective jurors had good or bad experiences with hospitals or doctors is a circumstance to be expected and did not constitute a revelation to prospective jurors of information they did not previously possess and that might affect their opinions, biases, and attitudes on the subject. Moreover, the court repeatedly instructed the jury that they must decide the case fairly, impartially, and on the evidence. All of the empanelled jurors agreed to do so. We find no abuse of discretion and conclude that the jury selection process did not deprive defendants of a fair trial.
Appellants argue that the court deprived them of a fair trial in rendering numerous erroneous and biased rulings and in the manner the court conducted the trial. During the second trial, some defendants moved for recusal and a mistrial based on the court's allegedly biased rulings. The court denied the motions, setting forth in detail her reasons.
"[A] trial court generally possesses broad discretion over the conduct of trial." State v. Bey, 129 N.J. 557, 623 (1992) (Bey III), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed. 2d 1093 (1995). "Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003).
However, "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999). That is so because "the capacity of a judge to influence or affect a jury, even subtly and indirectly, is great." State v. Tilghman, 385 N.J. Super. 45, 59 (App. Div.), certif. granted and remanded for re-sentencing, 188 N.J. 269 (2006). "Complete neutrality must be maintained, and the judge has a duty to refrain from making any comment that may be telegraphed or interpreted as judicial disparagement, disbelief or disapproval." Id. at 60. Prejudicial conduct by a trial judge is properly reviewable by an appellate court "considering the entire transcript." Mercer, supra, 324 N.J. Super. at 298 (quoting State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971)).
In support of their argument, appellants refer to numerous examples of alleged prejudicial conduct. We have carefully reviewed the full trial record. Claims such as these must be viewed in the overall context of the trial. This was a lengthy trial. The stakes were high. The case was hard fought by eight very experienced and skilled trial attorneys. The evidential issues were numerous.
We are satisfied from our review of the record that Judge Schott conducted this trial in a very competent and even-handed manner. She was careful to give thorough reasons for her rulings. On occasions when she was not sure, she reserved to avail herself of the opportunity to check the applicable law or review a transcript or discovery item before making her ruling. The incidents complained of, individually or collectively, did not deprive defendants of a fair trial.
We will discuss several of the incidents complained of in this respect which are of a more significant nature. We will not discuss the many others, because we do not view them as containing sufficient merit to warrant discussion. See R. 2:11-3(e)(1)(E).
In summation, Anderson's counsel argued that if the jury awarded pain and suffering damages, they should use their "common sense" and "best judgment." Counsel then asked the jury to do something that you understand is responsible, that is, not as has been mentioned before, a reward or a punishment.
Do all that, and you can leave this courtroom saying, as in life, maybe I didn't make everybody happy, but I did my level best. I did what I believe is the honest to God right thing to do. You do that, and there's nobody in this courtroom that can be critical, nobody that can say: I got short-changed or I got stuck.
At the conclusion of the summation, the judge sua sponte instructed the jury that their "job as jurors has nothing to do with anybody's happiness." The judge further instructed that defense counsel's reference to the "honest to God right thing to do" was improper, explaining that
I certainly don't . . . engage myself in a debate with the separation of church and state [and] . . . my charge will not invoke the name of God and counsel should not do so either in closing arguments . . . . God does not enter into your deliberations, your discussions or the law . . . in connection with this case.
Counsel objected, and the court said that "[t]he combination of the interjection of people's concerns or reactions to a verdict, coupled with the reference to somehow satisfying one's God that they did the right thing . . . [was] improper . . . ."
In the first portion of her comments to the jury, the court agreed with Anderson's counsel's argument that the jurors should not be concerned with making anyone happy or unhappy by their verdict. Thus, there was no prejudice there. While the second aspect of the judge's comments might be viewed as an overreaction to what could be characterized as a common figure of speech, "honest to God," we do not find an abuse of discretion or resulting prejudice in the judge's comments on the subject. The court merely admonished the jury that their decision should be based on the evidence and the law, without reference to God. This admonition cut both ways, and would also tend to caution the jury not to lean in plaintiffs' favor as some sort of charitable act.
Anderson argues that the court exhibited bias in allowing plaintiffs' counsel to cross-examine Waran about conditions at Willowbrook. Waran admitted under cross-examination that prior to his arrival, Willowbrook had been a horrible place. He further acknowledged that the quality of care directly affects life expectancy. And, he based his opinion as to plaintiff's life expectancy, in part, on his experience in treating patients with similar symptoms. Some of those patients were at Willowbrook. As the court noted in overruling the objection, the testimony about Waran's experience "does go to the heart of his opinions." Allowing this cross-examination was not a mistaken exercise of discretion and did not demonstrate bias against any defendant.
Anderson also argues that the court erred in allowing Areli to testify in support of her emotional distress claim. Areli testified as to the severe emotional distress, including nightmares, crying, and feelings of anger and bitterness, that she experienced as a result of her son's injury. As we have discussed, Areli's emotional distress claim was ultimately dismissed by the court and not submitted to the jury. Some aspects of this testimony were relevant to the difficulty in caring for the severely disabled child, and the court provided the jury with a limiting instruction to that effect:
[That evidence] may only be considered by you to the extent that you find it appropriate to do so in connection with the issue of whether the services requested to be provided by the life care plan are reasonable and/or necessary.
Further, as the court later commented, the jury would naturally expect a parent to be upset, stressed, and bitter in circumstances such as these whether they heard the testimony or not. And, the testimony in this regard was brief and straightforward. We are satisfied that the court handled this issue appropriately.
Olesnicky and Anderson argue that the court improperly limited Ham's testimony regarding annuities. The trial court granted plaintiffs' in limine motion to bar Ham from "discussing annuities as a means of reducing an amount of compensation to be awarded to the plaintiff for damages." The court explained that the law of damages in New Jersey does not recognize "a concept of an annuity . . . as a means of reducing the total amount of damages." Ham was, however, permitted to testify about discounting the cost of the life-care plan to present value, and as a result he opined that the present value of the plan was $4.4 million.
The admission or exclusion of evidence is within the sound discretion of the trial court. State v. Torres, 183 N.J. 554, 567 (2005). Relevant evidence is defined as evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Here it appears that appellants are arguing that the annuity evidence was admissible as an alternative means of proving the present value of future damages. Annuities are commonly used in structured settlements. See e.g., Owen v. CNA Ins./Cont'l Cas. Co., 167 N.J. 450, 465 (2001).
However, appellants cite no New Jersey case law which permits the introduction of annuity evidence for the calculation of damages, and we are aware of no such authority. Decisions in other jurisdictions have held that evidence of an annuity is not admissible to establish present value of future damages. Farmers Union Federated Coop. Shipping Ass'n v. McChesney, 251 F.2d 441, 444 (8th Cir. 1958) (cost of annuity is not measure of recovery for lost or diminished earning power); Garhart v. Columbia/Healthone, L.L.C., 95 P.3d 571, 590 (Colo. 2004) (annuity evidence speculative and had tendency to confuse jury); Gusky v. Candler Gen. Hosp., Inc., 385 S.E.2d 698, 701 (Ga. Ct. App. 1989) (expert testimony on annuities irrelevant as antithetical to requirement that jury reduce future damages to present value); Adams v. Children's Mercy Hosp., 848 S.W.2d 535, 544 (Mo. Ct. App. 1993) (annuitist's testimony had potential of confusing and misleading jury); Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 134 (Tenn. 2004) (annuity testimony speculative and had potential to mislead jury); Herman v. Milwaukee Children's Hosp., 361 N.W.2d 297, 306 (WiS.Ct. App. 1984) (annuity evidence could mislead jury into awarding a lesser sum than the present value of the future losses).
We conclude from our review of the entire record that the court's proper and unbiased rulings did not deprive defendants of their fundamental right to a fair trial.
Olesnicky argues that the verdict apportioning fifty percent of the negligence to her was not supported by substantial credible evidence, and therefore the trial court erred in denying her new trial motion on that basis. We first note that it is unclear whether Olesnicky moved for a new trial on that basis, although she moved for a new trial on the basis that the verdict was against the weight of the evidence. Nevertheless, we address the argument on the merits. See R. 2:10-1.
A trial court must grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The standard for appellate review is also whether "a miscarriage of justice under the law" occurred. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
A jury verdict is entitled to a presumption of correctness. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). A jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). On appeal, the court will overturn a jury verdict "'only if [that] verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality.'" Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 134 (1990) (quoting Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957)). "The fact that the evidence may also support a different outcome does not render the jury's verdict irrational or against the weight of the evidence." Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 468 (1999). It is well established that "New Jersey law favors the apportionment of fault among responsible parties." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). "[T]he quantum of evidence required to qualify for an apportionment charge is low." Id. at 384. In fact, the "law favors apportionment even where the apportionment proofs are imprecise, allowing only for rough apportionment by the trier of fact." Ibid.
To apportion liability, "the factfinder should compare the fault of all parties whose negligence was a proximate cause of the plaintiff's injuries." Campione v. Soden, 150 N.J. 163, 177 (1997). When more than one defendant is found negligent, the factfinder must determine each party's percentage of negligence. N.J.S.A. 2A:15-5.2a(2); Verni v. Harry M. Stevens, Inc. of N.J., 387 N.J. Super. 160, 206-07 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007). However, where the apportionment of negligence is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality, courts will grant a motion for a new trial. See Warshany v. Supermarkets Gen., Corp., 161 N.J. Super. 515, 519-20 (Law Div. 1978).
Applying these principles, we have no hesitancy in concluding that there is no basis to upset the verdict apportioning fifty percent of the fault to Olesnicky. The jury had before it ample evidence to establish that Anderson deviated in failing to call a code at 9:55 p.m. and that Vallee and Zeig deviated in failing to train Olesnicky to call a code. However, there was also more than ample evidence to support a greater apportionment of liability to Olesnicky than to those defendants.
Olesnicky was in charge of plaintiff's care during the critical period between 10:02 p.m. and 10:14 p.m. when his condition drastically declined. The jury could well have rejected Olesnicky's contention that she gave a note to an unidentified male staff member at 10:02 p.m. And, the jury could well have found that she delayed asking for any help until 10:10 p.m., which is consistent with substantial other evidence in the case. Indeed, Olesnicky's expert, LaFevere, conceded that if Olesnicky did not ask for help 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. And, there is no dispute that Olesnicky did not call a code, she rejected Rue's offer to call a code, and she did not inform others in the PICU that she was unqualified to intubate an infant. The jury could also have believed that Olesnicky twice rejected Simard's offer to reintubate and, if in doubt about his qualifications, failed to inquire in that regard.
These multiple deviations are well supported by the evidence, and there is nothing irrational about the jury's finding that fifty percent of the liability should be apportioned to Olesnicky.
Olesnicky further argues that the alleged "improper apportionment" must have been the result of the biased manner in which the judge conducted the trial and the inappropriate summation comments. We have discussed these issues previously, and, for the same reasons we rejected them as a basis for reversal, we reject them as a basis for upsetting the jury's apportionment.
Olesnicky also argues that she was prejudiced because plaintiffs' counsel was allowed to yell at her while cross-examining her, thus allowing the jury to draw parallels to Anderson's yelling at her on the night of the incident. There was no objection in that regard, and, in the context of this lengthy trial and given the overwhelming evidence in support of the jury's verdict, we cannot find any prejudice in this regard.
Similarly unpersuasive is Olesnicky's argument that she was prejudiced by being barred from having an expert reconstruct the proper sequence of the monitor strips. Indeed, her mistrial motion was granted over plaintiffs' objection when the strips were discovered during the first trial, and she was given sufficient time to have the strips analyzed.
Olesnicky argues that the trial court erred in denying her new trial motion even though the verdict was allegedly internally inconsistent and against the weight of the evidence. In essence, her argument is that the jury was asked to consider multiple deviations on her part, that one of those deviations was that she declined Simard's offer to reintubate, that the evidence did not support that alleged deviation, and that because the jury returned a general verdict finding that she deviated from the applicable standard of care without specifying on what grounds, there is no way of knowing whether her negligence was based solely on her failure to accept Simard's offer, and thus she is entitled to a new trial.
In support of her argument, Olesnicky relies on Kulas v. Public Service Electric & Gas Company, 41 N.J. 311, 314 (1964), where the plaintiff alleged two separate theories of liability, namely, that the defendant failed to properly install a gas pipe, and that the defendant failed to timely respond to an emergency call. The Court held that "[s]ince the question of defendant's liability for negligent installation of the service pipe was erroneously submitted to the jury and since we are unable to determine whether the jury predicated defendant's liability on this issue or on the issue regarding delay, which was properly submitted to the jury, there must be a new trial." Id. at 320.
In contrast here, the issue of whether Olesnicky deviated in declining Simard's offer to reintubate the child was properly submitted to the jury. That is so because Simard testified that he twice asked Olesnicky if she wanted him to reintubate plaintiff, but she said "no," and Bronheim testified that such a refusal constituted a deviation from the applicable standards of care.
However, as Olesnicky points out, she denied that Simard offered to reintubate the infant, 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. But Ciolino testified that, although possibly not directly taught, "it was inferred that if [a resident was] having a problem [and] if someone else has more experience in the room and they state so, then they could certainly be an aid to the patient."
Thus even if Olesnicky had never been trained that respiratory therapists can reintubate infants, the jury could have rationally found, in light of Simard's offer to reintubate and Ciolino's testimony, that Olesnicky at the very least should have followed-up and asked Simard about his qualifications.
The verdict was not internally inconsistent and was not against the weight of the evidence. Olesnicky is not entitled to a new trial on this basis.
Vallee and Zeig argue that the court erred in denying their motions for an involuntary dismissal. At the close of plaintiffs' case, Vallee and Zeig moved for an involuntary dismissal, arguing it was undisputed that Olesnicky had been trained to call for assistance if she was unable to handle a situation. The court denied the motion, finding there was evidence that Olesnicky delayed asking Rue to call for help.
During the charge conference, defense counsel asked the court to instruct the jury that if they found Vallee and Zeig had properly instructed Olesnicky, then Vallee and Zeig would not be liable, but if the jury found Olesnicky was "telling the truth about the lack of training and education," then Vallee and Zeig would be liable. Plaintiffs' counsel responded that the court should enter judgment against either Olesnicky, or against Vallee and Zeig. Defense counsel said, "I don't know that the directed verdict is appropriate, but I think the instruction to the jury would lead to an outcome of a verdict against one or the other on that issue." The court said it would not enter judgment, but agreed to specifically charge the jury on the alleged deviations.
In denying Vallee's and Zeig's new trial motions, the court found that the evidence amply supported the jury's determination that they deviated in failing to train Olesnicky to get help if the attending labor and delivery anesthesiologist was unavailable.
"After having completed the presentation of the evidence on all matters other than the matter of damages . . . the defendant . . . may move for a dismissal of the action . . . on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). "[S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid. In determining a motion for an involuntary dismissal, the trial court must accept as true all of the evidence which supports the plaintiff's position and must accord that party the benefit of all legitimate inferences which can be deduced therefrom; if reasonable minds could differ, the motion must be denied. Dolson, supra, 55 N.J. at 5. The court is "not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence." Id. at 5-6.
As the trial court found, there was ample evidence to sustain a judgment in plaintiffs' favor against Zeig and Vallee because Olesnicky testified that she was not properly trained to call for help by calling a code or to accept Simard's offer to reintubate the infant. Instead, Olesnicky insisted that her department's protocol was simply to call the attending labor and delivery anesthesiologist. Indeed, Vallee and Zeig admitted at the charge conference that there existed an issue of fact as to the level of training received by Olesnicky.
The court did not err in denying Vallee's and Zeig's motions for involuntary dismissal.
Finally, we address appellants' argument that the damages awarded were excessive and the trial court erred in failing to grant their new trial motion or order remittitur. In particular, appellants challenge the non-economic award for pain, suffering, disability, and loss of enjoyment of life, and two aspects of the economic award, future lost wages and future life care needs. Appellants also contend that the court erred in awarding prejudgment interest.
We begin our analysis by setting forth certain well established principles. Trial courts should not interfere with jury damage awards unless so disproportionate to the injury as to shock the judicial conscience. Baxter, supra, 74 N.J. at 596-97; see also Mahoney v. Podolnick, 168 N.J. 202, 229 (2001); Carey v. Lovett, 132 N.J. 44, 66 (1993); Boryszewski, supra, 380 N.J. Super. at 391. "A trial court should set aside excessive verdicts only in 'clear cases.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). "In assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Id. at 432; see also Boryszewski, supra, 380 N.J. Super. at 391 (damages evidence viewed in the light most favorable to prevailing party with deference given to trial court's feel of the case). Thus, "a trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence." Caldwell, supra, 136 N.J. at 432.
However, "should the court determine that the damages award was excessive, remittitur should be considered as a remedy to avoid the unnecessary expense and delay of a new damages trial." Verdicchio v. Ricca, 179 N.J. 1, 39 (2004). And N.J.S.A. 2A:53A-42 provides that
[a] judge presiding over an action alleging medical malpractice, in which the jury has rendered a verdict in favor of the complaining party, shall, upon a motion by any party for additur or remittitur on the issue of the quantum of damages, consider the evidence in the light most favorable to the non-moving party and determine whether the award is clearly inadequate or excessive in view of the nature of the medical condition or injury that is the cause of action or because of passion or prejudice by the jury.
See also Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super. 108, 117 (App. Div. 2006) (language of the statute largely mirrors standard traditionally applied under the common law), certif. denied, 190 N.J. 392 (2007).
We dispose first of the arguments pertaining to the economic awards and prejudgment interest. These do not require extended discussion.
Appellants argue the court erred in denying their motion for a new trial because the verdict awarding $1.6 million in future lost wages was not supported by the evidence.
Bialsky concluded that, assuming plaintiff obtained a high school diploma, he would have been able to earn $25,000 annually. Bialsky did not distinguish between gross and net income, but the court correctly instructed the jury to use net income. Defendants presented no evidence on this issue, and do not contest the court's instruction on future lost wages. In denying defendants' motion for a new trial, the court found the verdict for future lost wages was not excessive, reasoning that the jury could have found that plaintiff would have earned approximately $40,000 per year for 40 years.
Although the verdict exceeded Bialsky's estimate, Bialsky testified that his estimates were conservative and, thus, the jury could fairly have based their award on a higher estimate of plaintiff's earning capacity. See Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 542 (App. Div.), certif. denied, 151 N.J. 77 (1997). The jury was not constrained by the conservative estimates provided by Bialsky and were permitted to use their own life experiences and judgment. We find nothing unreasonable in the award.
Appellants argue that the $10.5 million future life-care verdict was excessive, and not supported by the evidence, and that an award of $8,352,585 to $9,652,585 would have been consistent with the evidence. We disagree. Bialsky concluded that a conservative estimate of plaintiff's life-care costs totaled from $9,447,469 to $13,152,585, and he carefully explained the components of that plan. With tax adjustments, it was undisputed that as much as $15.8 million could be required under Bialsky's plan. Thus the award was amply supported by the evidence.
Appellants argue that the court erred in awarding prejudgment interest on $50,162,000 of the verdict, including the $11 million settlement, and contend that at the very least prejudgment interest should have been suspended as of the date of the settlement. We find no error.
In tort cases, except where prohibited by statute, prejudgment interest is mandatory. R. 4:42-11(b). The interest is to be calculated "from the date of the institution of the action or from a date 6 months after the date the cause of action arises, whichever is later . . . ." Ibid. A court "may suspend the running of" prejudgment interest "in exceptional cases." Ibid. However, that authority should "be most cautiously exercised, and always with consideration of the underlying purpose and philosophy of the rule," which is that "prejudgment interest is not a penalty but is rather a payment for the use of money" that was "rightfully the plaintiff's" as of the accrual of the cause of action on which the plaintiff prevailed. Pressler, Current N.J. Court Rules, comment 2 on R. 4:42-11(b) (2007); see also N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 575 (1999) (exception should be used sparingly).
It is settled that "the awarding of prejudgment interest is subject to the trial judge's broad discretion in accordance with principles of equity," and that the court's decision merits appellate deference "unless it represents a manifest denial of justice." Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div.), certif. denied, 165 N.J. 607 (2000). However, the discretion to suspend prejudgment interest "is to be guided essentially by the . . . policies which gave birth to the Rule," which are the encouragement of early settlement and fair compensation for the use of the sums that the defendant owed to the plaintiff once the cause of action accrued. Kotzian v. Barr, 81 N.J. 360, 362-64 (1979).
Here the complaint was filed in April 2000, the parties entered into a partial settlement in October 2004 just days before the second trial began, and the jury ultimately entered a verdict in November 2004. Prejudgment interest is not ordinarily applicable to a judgment following a settlement. Pressler, supra, comment 2 on R. 4:42-11(b). And a jury verdict subject to a high-low settlement agreement has been held not to qualify for prejudgment interest. Benz v. Pires, 269 N.J. Super. 574, 579 (App. Div. 1994). The partial settlement agreement in this case was not a traditional high-low agreement. If it were, appellants would be precluded from arguing that the verdict, which was less than the $108 million cap,*fn8 is excessive. And, as part of the agreement, plaintiffs specfically reserved the right to seek prejudgment interest on the $11 million, but agreed with the court that "[i]n calculating the prejudgment interest, whatever date the 11 million is transferred to . . . the plaintiff, that obviously stops the accrual of interest on that first 11 million . . . of whatever judgment is entered." Plaintiffs claim that the $11 million was not paid until after the trial concluded, and appellants have provided no contrary information. We find no error in the award of prejudgment interest on the entire verdict, given that the settlement was not entered until one month before the verdict and defendants had the use of the money during the four years prior to trial.
Appellants also argue that the court erred in awarding prejudgment interest on that portion of the verdict that will be paid to counsel for fees. However, Rule 4:42-11(b) does not contain such an exclusion, and the case upon which appellants rely, North Bergen Rex Transport, Inc., supra, 158 N.J. at 575, is a contract, not tort case.
The interest award was proper.
We next address the $50 million award for plaintiff's pain, suffering, disability, and loss of enjoyment of life. In denying the new trial motion, the court said this:
This is a very seriously damaged child, a child who was perhaps brought as close to death as one can come without actually crossing over. The jury had a foundation in the evidence for determining that the child is aware. To the extent that some argument is made that the child doesn't sense frustration or doesn't sense pain, I think there was evidence before this jury and it need not have been in the form of expert evidence. There was evidence before the jury from the videos that were shown to them that this child is indeed aware. He does sense joy. He senses pain. He cries. He laughs. He knows and responds to care and affection and love. And the jury had that before them. The jury had before them a serious dispute about life expectancy. And it was for them to make those decisions, not for me to make a decision about the infant plaintiff's life expectancy. It was for the jury to make that decision and to make their determinations with regard to the amount of pain and suffering in accordance with what they had determined to be life expectancy and what they determined to be the amount of pain and suffering the child has now, will have, the quality of life issues.
The defendants' own expert testified that this child will suffer pain that a healthy child won't suffer. The defendants' own expert testified that this child's life can't be a normal life expectancy because the child will suffer, his words, suffer through repeated infections as a result of the impairments that came about from being deprived of oxygen. And so the 50 million dollars does not shock my conscience.
Moreover, the court found that there was evidence that plaintiff was not so cognitively impaired that he was unaware, explaining that
[w]hile it may always remain . . . an unknown or a mystery exactly what . . . plaintiff does or does not comprehend, the day in the life video and the testimony of . . . plaintiff's parents provided evidence to this jury which they obviously accepted; that . . . plaintiff does, in fact, feel pain. He feels and expresses frustration. The day in the life video revealed that the child's way of movement is to roll on the floor. He cries what the jury could have interpreted a cry of frustration when he hits a dead end, so to speak. In other words, if he hits one wall he needs assistance to sort of roll him over so he can roll back in the other direction. From the day in the life video . . . more particularly the interaction between the child and his mother as well as his therapists the jury had evidence before it that this child does respond to love and affection. He clearly became excited and happy at various things his mother would do or the therapist would do.
Perhaps the most compelling evidence that . . . plaintiff herein did have the ability to comprehend and some cognitive functioning was presented to the jury by way of a videotape of the child with his therapist. It appears in the videotape [that] the therapist has the child secured in a [rocking] chair . . . . And the therapist rocks the child . . . . The child laughs. Clearly, when the rocking and the shaking is over . . . there was a look of disappointment on the child's face. The therapist then says to the child, quote: Casey want earthquake? And after building the suspense . . . plaintiff, who as I indicated . . . apparently lacks the ability to communicate in words, responds, quote, air quake, close quote. From this evidence it was perfectly competent for the jury to determine that Casey Pellicer is, in fact, . . . cognitive of his pain, cognitive of his suffering, cognitive of the frustration and feels all of those things.
In further support of her finding that the award was not excessive, the court cited a recent $30 million verdict in a neighboring county for pain and suffering in Verni, supra, 387 N.J. Super. at 160.
"Assigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is 'not gauged by any established graduated scale.'" Caldwell, supra, 136 N.J. at 442 (quoting Cermak v. Hertz Corp., 53 N.J. Super. 455, 465 (App. Div. 1958), aff'd, 28 N.J. 568 (1959)). That is so because pain and suffering have no known dimensions, mathematical or financial. There is no exact correspondence between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this reason, the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation. [Botta v. Brunner, 26 N.J. 82, 95 (1958).]
Reasonable compensation should include compensation for his bodily injuries, for the pain and suffering resulting therefrom, past, present and future, for the effect of those injuries upon his health according to their degree and probable duration, and for any permanent disability which in reasonable probability has resulted or will result. [Goss v. Am. Cyanamid, 278 N.J. Super. 227, 241 (App. Div. 1994) (quoting Theobold v. Angelos, 40 N.J. 295, 304 (1963)).]
Such awards nonetheless must "be reviewed to determine whether they are 'fair and reasonable.'" Caldwell, supra, 136 N.J. at 442 (quoting Botta, supra, 26 N.J. at 92). And the "law abhors damages based on mere speculation." Ibid. (Internal quotation omitted).
The court's instruction to the jury on this subject correctly followed the model jury charge. See Model Jury Charges (Civil), Damages - Personal Injuries: Disability, Impairment, Loss of Enjoyment of Life, Pain and Suffering §6.11F (Dec. 1996). Accordingly, the jury was instructed that plaintiff is entitled to recover "the full extent of the harm caused" for his injury "resulting in disability to or impairment of his faculties, health, or ability to participate in activities." Ibid. The jury was told that disability or impairment means a "worsening, weakening or loss of faculties, health or ability to participate in activities" and "includes the inability to pursue one's normal pleasure and enjoyment." Ibid. The jury was instructed to "determine how the injury has deprived [plaintiff] of his customary activities as a whole person." Ibid. It was further explained that the jury should "consider the nature, character and seriousness of any injury, discomfort or disfigurement" and "their duration." Ibid. Because there is no available "table, schedule or formula," the amount to reasonably compensate plaintiff for these damages was left to the jury's "sound discretion" in an "attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy." Ibid. The ultimate determination was thus left to the jurors' "own impartial judgment and experience." Ibid.
It is undisputed that plaintiff's injuries are permanent. In the course of this instruction, the court also reminded the jury to consider the charge it had just given regarding life expectancy.
Our Supreme Court recently said this about the determination by juries of pain and suffering awards:
[A] civil plaintiff has a constitutional right to have a jury decide the merits and worth of her case. Our civil system of justice places trust in ordinary men and women of varying experiences and backgrounds, who serve as jurors, to render judgments concerning liability and damages. Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion. That is so because there is no neat formula for translating pain and suffering into monetary compensation. Although the measure of damages is what a reasonable person would consider to be adequate and just under all the circumstances, reasonable people may differ on what is fair compensation in any particular case. The reasonable person standard, however objective it might be, can be illusory. Our model jury instructions on pain and suffering recognize the inherently subjective nature of the damage-calculating process. [Johnson v. Scaccetti, ___ N.J. ___, ___ (2007) (slip op. at 29-30) (citations and internal quotations omitted).]
On appeal, appellants first argue that the award was excessive because plaintiff had limited awareness of his pain and suffering. It is well established that "[a]n award for pain and suffering is appropriate only for suffering that is conscious." Carey, supra, 132 N.J. at 67; see also Smith v. Whitaker, 160 N.J. 221, 236 (1999); Jablonowska v. Suther, 390 N.J. Super. 395, 404 (App. Div.), certif. granted, ___ N.J. ___ (2007); Lewis v. Read, 80 N.J. Super. 148, 174 (App. Div.), certif. granted, 41 N.J. 121 (1963).
Viewing the evidence in the light most favorable to plaintiffs, plaintiff was conscious and suffered pain at the time of his injury. Adler so testified. And Waran admitted that plaintiff can experience pain, and that as a result of his injury is susceptible to several complications, including bladder and bowel infections which can be extremely painful, will make his life miserable, and may eventually kill him. He also stated that plaintiff is susceptible to choking on his own vomit, which can also result in a very painful death. According to Waran, plaintiff's life will be "absolutely miserable," and he will experience "pain, suffering, and misery" "for as long as he lives."
Additionally, although plaintiff could not testify as to his level of consciousness, plaintiff's parents testified that he is aware of his surroundings, responds to voices and noise, rolls on the floor, has some control over his left hand, and expresses joy by throwing kisses and laughing. Moreover, plaintiff is required to wear leg braces, an elbow and 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, even though he does not like being confined.
The most compelling evidence was, as the court found, the video, which demonstrated that plaintiff was in fact conscious of his surroundings. Thus, based on the evidence and testimony regarding the child's injuries, physical actions, responses, and reactions, it was well within the province of the jury to find that plaintiff consciously experiences pain and suffering. See Lewis, supra, 80 N.J. Super. at 173-74.
Moreover, the cases cited by appellants for the proposition that because plaintiff suffers cognitive deficiencies he should receive a lesser award, are distinguishable. For example, in Carey, supra, 132 N.J. at 67, the jury awarded the infant plaintiff $550,000 for pain and suffering experienced during the child's ten-day life. The Court found the award was excessive, and wrote
Dr. Costarino carefully qualified his testimony by stating that the baby likely experienced "some pain." He added that "she may have been unconscious to the experience so in a sense of the fear and anxiety and the things that we usually associate with pain, she may have been not experiencing them in that same way." Furthermore, as the baby's condition deteriorated, her suffering diminished. Another of plaintiffs' medical experts, Dr. Richardson, concluded that although the baby probably was experiencing "some pain" when she was taken to Children's Hospital, she probably was not feeling any pain as of the sixth day. Consequently, we conclude that the verdict for pain and suffering was excessive. [Ibid.]
Here plaintiff survived for six years as of the time of trial and the evidence established that he continued to experience pain and frustration.
Similarly unpersuasive is appellants' reliance on Hinojo v. New Jersey Manufacturers Insurance Company, 353 N.J. Super. 261, 266-67 (App. Div.), certif. denied, 175 N.J. 76 (2002), where the jury awarded the plaintiff $675,000 for the loss of his pinky finger. The court granted the defendant's motion for a new trial, subject to remittitur, and found that the award was excessive. Id. at 278-79. The court held that although the jury could properly have taken into consideration the plaintiff's "own emotional reaction" to loosing his finger in awarding pain and suffering damages, the award on the whole shocked its conscience. Ibid. Contrary to appellants' representation, the court did not, however, hold that a jury must limit damages to a plaintiff's "own emotional reaction." Ibid.; see also Eyoma v. Falco, 247 N.J. Super. 435, 453 (App. Div. 1991) (the plaintiff's unconscious state may prevent pain and suffering damages, but damages for loss of enjoyment of life may be awarded for total disability which exists when tortious injury causes a comatose or vegative state); Lewis, supra, 80 N.J. Super. at 175 ("[c]onsidering the nature of the conceded abnormalities, physical and mental, of the infant and the fact that she has never known and presumably will never know normality, precautionary instructions should have been given to the jury respecting the probable duration of her life").
Furthermore, the $50 million award was not based only on pain and suffering, but was also based on disability and the loss of enjoyment of life. It is well established that "conscious perception is not needed for disability and impairment damages, because such damages 'compensate for interruption of function which diminishes the individual's capacity for physical and mental activity.'" Arenas v. Gari, 309 N.J. Super. 1, 26 (App. Div. 1998) (quoting Eyoma, supra, 247 N.J. Super. at 451). Without a doubt, plaintiff experienced a catastrophic deterioration in the quality of his life. Adams v. Cooper Hosp., 295 N.J. Super. 5, 15 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997). And the court properly charged the jury that in awarding damages it should consider "the nature and the character and the seriousness of any injury or discomfort." Obviously, plaintiff's injuries were simply devastating.
The evidence in this case is very compelling. From our review of the testimony and viewing of the day-in-the-life video, we gain a clear picture of a child who, although severely impaired cognitively and physically, remains aware of his surroundings, experiences a wide range of emotions, including joy, sadness, love, excitement, and frustration. And, by his facial expressions, body language and very limited verbalization, he expresses how he feels. He is obviously very attached to those around him, most notably his immediate family, and also the therapists with whom he regularly interacts. During this stage of his life, he can be carried about and held on the laps of his loved ones. That circumstance will change as he grows into a teenager and a mature adult and is deprived of that loving contact of which he has become accustomed in his early years.
Plaintiff will never have any degree of independence in his life. He will continue to require intensive therapy to keep his musculoskeletal system and organs as healthy as possible. He will never have control over his bodily functions. He has outgrown diapers and now wears disposable underwear, which his mother changes about six times a day. This will be a lifelong circumstance. The list could go on and on.
One of the things that brings joy to plaintiff is movement. He cannot walk or crawl, but he is able to move by rolling across the floor. He can only roll in one direction. When he inevitably hits a fixed object, he cannot reverse his direction, and he expresses his frustration until he is turned around to roll away. We observed in the video his pleasure while being washed by his mother in a specially designed shower chair. He obviously enjoys the feeling of water running upon his body. Part of his therapy involves swimming, which likewise brings him great joy, with the feeling of the water and the freedom of movement of his body. Again, these are but limited examples of the activities in plaintiff's life and the emotions they evoke. It is difficult to imagine a more profound disability, impairment, loss of enjoyment of life, and deprivation of the ability to engage in activities as a whole person.
In evaluating whether we view the $50 million award as a reasoned result of the jurors' "impartial judgment and experience" "based upon reason and sound judgment, without any passion, prejudice, bias or sympathy," we give substantial consideration to the trial court's feel of the case. See Johnson, supra, ___ N.J. at ___ (slip op. at 33). On that point, Judge Schott said:
On grounds raised for a new trial, in the Court's view there are no grounds for a new trial. The Court's instructions were clear to the jury. My sense of this jury was that they followed my instructions clearly quite apart from the first jury that, quite candidly, was very emotional about this case. On more than one occasion in the first trial before the mistrial we had to stop and give people time to --jurors at one time after the -- an episode of crying and I took a break and I sent the officer to bring them back into the courtroom the jurors sent out a note and said they couldn't come out yet. They --they couldn't catch their breath. They needed more time. That was not this jury.
If anything, candidly, to the extent that this Judge's feel of the case becomes an important consideration in making these decisions, my feel of this jury is that they were cold. They warmed up to no one, not to the attorneys, not to the parties, not to the Court, not to my staff. They kept to themselves. They gave very little indication during the trial that they had any -- normally as -- as people progress in a long trial like this you start to get a sense that they feel an attachment maybe to the Court, to their fellow jurors or you start to sense that they favor one side over the other. This Court had none of that sense. They were as much strangers the day they left as they were the day they came in.
And so my feel of this jury is that indeed they were not persuaded by any emotion; that they followed my instructions that I gave them.
In evaluating whether the jury's verdict was the result of passion, prejudice, bias or sympathy, we also consider it significant that the verdict was a discriminating one in material ways. For example, the jury exonerated Rue. And, although the jury was instructed that they could return a verdict for future life care expenses up to $15.8 million, their verdict for that item was only $10.5 million.
Another item that we consider in a very limited sense is an aspect of the partial settlement. Part of the consideration for the settlement was plaintiffs' agreement to pursue no recovery against the individual defendants in excess of their available coverage, which was $102 million (including the $11 million) for the defendants found liable. We agree with the trial court that this was not a typical high-low settlement, and thus defendants did not acknowledge that any award up to $102 million would be reasonable. Nevertheless, to the extent that St. Barnabas negotiated that consideration on behalf of defendants, who were third party beneficiaries of the agreement, we cannot help but note the inconsistency between that consideration and the present argument of appellants that the substantially lower verdict shocks the conscience.
Both parties cite numerous cases, mostly unreported, some the result of settlements, in which the awards were lower or higher than the award in this case. While our cases instruct that courts should look to their own experience and to comparable awards in other cases for guidance, any such consideration has very limited value because of the uniqueness of each claim, particularly one such as plaintiff's. The results in many of the unreported opinions are at best inconclusive and, more to the point, simply not comparable to this case. With settled cases, relevance is even more attenuated because many factors enter into settlements, including liability, causation and coverage issues, that have the capacity to distort any possible comparison. "[N]o case of personal injuries is ever an exact and binding precedent for another upon the question of excessiveness of a verdict even where there is a close parallelism of facts and circumstances." Thalman v. Owens-Corning Fiberglas Corp., 290 N.J. Super. 676, 682-83 (App. Div. 1996) (internal quotation omitted).
We will comment here only on two reported New Jersey decisions on which both sides present significant argument and on our Supreme Court's most recent pronouncement on the subject in Johnson.
In Verni, supra, 387 N.J. Super. at 175-76, although not disclosed in the reported opinion, the parties appear to agree that of the very substantial award, which included punitive and compensatory damages for the two-year-old plaintiff and her mother, $30 million was awarded to the child for pain and suffering. The child suffered a spinal cord injury and was rendered a ventilator-dependent quadriplegic, but did not suffer a brain injury. Id. at 211. The trial court denied the defendants' new trial motion, finding that the verdict did not shock its conscience. Id. at 194. On appeal, the defendants raised several challenges to decisions of the trial court, but did not challenge the $30 million pain and suffering award to the child. Id. at 186-215. Plaintiffs argue that this provides guidance to the effect that a child with severe physical injuries, but who is not brain damaged received a pain and suffering verdict close in time and location to the verdict in this case, which the defendants did not even bother to challenge on appeal as excessive. Plaintiffs reason that the injury in this case and the consequent disability and loss of enjoyment of life are much more devastating and should result in a higher award than in Verni. Factoring in the substantial deference granted to the jury and the trial court, we find this argument persuasive.
In Fertile, supra, 169 N.J. at 487-89, the jury awarded $15 million in damages to a child who suffered a brachial plexus injury during birth, resulting in permanent damage to her arm, including paralysis. The trial court found the verdict was excessive and remitted $10 million. Id. at 489. The Supreme Court affirmed, noting that "[t]he trial court fully and carefully explained how it determined that the jury verdict was excessive and how it reached the remitted number." Id. at 501. Additionally, the Court found that the trial court "based the decision on its own common knowledge, as well as its experience with other injury verdicts, and particularly on [the plaintiff's] extended life expectancy." Ibid.
Both sides make arguments based on Fertile. Appellants point to the remittur which was ultimately sustained by the Supreme Court and the resulting verdict of only $5 million, notwithstanding a $15 million jury award. Plaintiffs, on the other hand, argue that there is virtually no comparison between the injury to the child in Fertile and that suffered by plaintiff in this case. The Fertile plaintiff suffered a significant but very limited injury, affecting only one appendage. She had no brain damage and could live a relatively full and normal life. Consequently, plaintiffs see no inconsistency in an award ten times higher in this case, suggesting that the injury is at least ten times worse. And, the trial court in this case, having the feel of the case, rendered a persuasive explanation of why she did not find the award excessive and declined to remit any portion of it. Again, we find plaintiffs' argument the more persuasive one.
In Johnson, supra, ___ N.J. at ___ (slip op. at 3-10, 34-35) the trial judge remitted to $1,500,000 a $2,500,000 pain and suffering award in favor of a thirty-nine-year-old plaintiff whose primary injuries were herniated discs at C6-7 and L5-S1. The former was treated medically; the latter was surgically fused. The prognosis was poor, with spinal deterioration expected, and the plaintiff experienced daily pain and limitations in her customary activities. But she was able to walk, drive, sit, and function reasonably well. We reversed the remittitur and reinstated the jury's award. Id. at ___ (slip op. at 3). The Supreme Court affirmed our determination. Ibid. Suffice it to say that the injury and its sequela to the thirty-nine-year-old plaintiff in that case pales in comparison to that suffered by the four-month-old plaintiff here.
Although plaintiff's life expectancy was a matter of some dispute between the experts, the jury had before it evidence from which it could reasonably find that with good quality care plaintiff could live to his full life expectancy of seventy-five years. We must consider the evidence in the light most favorable to plaintiff.
The trial judge may not substitute his or her judgment for that of the jury merely because the judge would have reached a different conclusion. Dolson, supra, 55 N.J. at 6. The judge "is not a thirteenth and decisive juror." Ibid. We are bound by the same constriction. "A trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injuries and resulting disabilities shown as to shock his [or her] conscience and to convince him [or her] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 599. Again, we are similarly restricted.
A verdict should not be remitted or a new trial ordered unless the award is clearly disproportionate to the injury, is plainly wide of the mark, and is pervaded by a sense of wrongness. Johnson, supra, ___ N.J. at ___ (slip op. at 32). And, when it is a close question whether a "perhaps overly generous" award should be sustained, "the tie must go to the jury." Id. at ___ (slip op. at 35-36).
Considering the potential life expectancy of seventy-five years (or even fifty or sixty or seventy), and viewing the evidence of pain, suffering, disability and loss of enjoyment of life in the light most favorable to plaintiff, we do not find a basis to interfere with the jury's award. We cannot say that $50 million is so disproportionate to the devastating injuries and disabilities suffered by this plaintiff, and which will be with him for the rest of his life, as to shock our judicial conscience and clearly convince us that to let the award stand would be manifestly unjust.
We have considered the multitude of arguments presented by all parties. Any arguments that we have not specifically addressed in this opinion are deemed to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The judgment of the trial court is affirmed.