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Birmingham v. Marcus


October 24, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. BER-L-10079-02.

Per curiam.


Argued September 19, 2007

Before Judges Wefing, Parker and Lyons.

Plaintiffs sued defendant John W. Marcus, M.D., alleging negligence in the manner in which he operated upon plaintiff Marie Birmingham.*fn1 The jury's verdict was that defendant had not deviated from the standard of care, and a judgment of no cause for action was entered. Plaintiffs have appealed from that judgment. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant is an obstetrician/gynecologist who had treated plaintiff for several years prior to the incidents giving rise to this suit. In December 2000, plaintiff, who had earlier gone through menopause, consulted with defendant with complaints of vaginal bleeding. Defendant scheduled a sonogram, the results of which indicated that plaintiff's left ovary was significantly larger than would be expected in a woman of plaintiff's age. Defendant informed plaintiff of this finding and recommended exploratory surgery to determine the cause of this abnormality. Plaintiff agreed and the surgery was performed on December 30, 2000. During the course of the surgery, defendant observed that plaintiff had extensive intestinal adhesions which surrounded and obscured plaintiff's left ovary. Using surgical scissors, defendant released the adhesions. When he was able to visualize the ovary, he determined that plaintiff had a cyst, rather than a suspicious mass. Plaintiff drained the cyst and, in accordance with his earlier discussions with plaintiff, removed her right ovary because her medical history indicated she was at a heightened risk for developing cancer. After several days recuperating in the hospital, plaintiff was discharged.

Following her discharge on January 2, 2001, plaintiff experienced increasing discomfort and abdominal pain. She consulted with defendant by telephone, and he recommended she try an enema and milk of magnesia. She elected to try the milk of magnesia, but it produced no relief. Her pain worsened, and she returned to the emergency room on January 4 and was readmitted to the hospital. On January 7, a second surgery was performed, this time by Joseph J. Licata, M.D., who found peritonitis and inflammation of plaintiff's colon. Dr. Licata removed the inflamed portion of the colon and made a colostomy. After several months, when Dr. Licata was confident no infection remained, he performed a second surgery to reconnect the segments of plaintiff's colon. This surgery was successful, and plaintiff's colon resumed its normal functions.

Plaintiff alleged in this litigation that Dr. Marcus was negligent in his initial surgery; specifically, she contended that her bowel was damaged during that surgery and that defendant failed to discover that fact and repair the damage.

That unrepaired damage, plaintiff alleged, resulted in a rupture of her colon, necessitating the additional surgeries. Plaintiff presented two expert witnesses to support her allegations--Joel A. Roth, M.D., an anatomic pathologist, and David Befeler, M.D., a surgeon. Her general physician, Dr. Shahamat, also testified on her behalf.

Defendant denied any negligence in the surgery. He attributed plaintiff's peritonitis to a rupture caused by diverticulitis, which, in turn, developed from plaintiff's pre-existing diverticulosis. Defendant testified as to the manner in which he performed the surgery upon plaintiff, contending it was impossible for him to have injured plaintiff's colon. Defendant's expert witness was Anthony C. Quartell, M.D., an obstetrician/gynecologist, who testified that defendant's conduct of the operation complied with the appropriate standard of medical care.

Plaintiff contends on appeal that the cross-examination conducted by defendant's attorney, and remarks he made in summation, deprived her of a fair trial. She also argues that the verdict was against the weight of the evidence and that she should receive a new trial.

Analysis of plaintiff's first argument requires that we set forth certain additional background facts as well as a portion of the challenged exchanges. Dr. Licata, as part of the surgery of January 7, 2001, sent the portion of plaintiff's colon that he had removed to the hospital pathology lab for analysis. The pathologist who examined the slides made no mention in his report of a perforation.

By the time the matter came on for trial, that pathologist had died and was thus not available. Plaintiff's liability expert, Dr. Befeler, requested that Dr. Roth examine the slides to determine if they showed a perforation of the colon and what caused the perforation. Dr. Roth, after examining the slides, reached the conclusion that there was a perforation of plaintiff's colon that was caused by an injury, and not her pre-existing diverticulosis. Dr. Roth stated:

Well, my opinion in this case is that it's more than a--a reasonable medical certainty that Mrs. Birmingham's perforation was caused by an injury rather than by a pre-existing medical condition such as diverticula disease. So, it's more than just 51 percent.

Neither plaintiff's counsel nor defense counsel questioned Dr. Roth further about his use of the phrase "more than just 51 percent." Dr. Roth also testified that based upon the physical characteristics of the tissue, it was his opinion that the perforation had occurred less than seven days prior to Dr. Licata's surgery.

When Dr. Befeler, plaintiff's liability expert, testified, he told the jury that it would not be negligence to cause some injury to a patient's colon in a surgery such as Dr. Marcus had performed, but that it would be negligence not to recognize and repair the injury. The following colloquy occurred during Dr. Befeler's cross-examination.

Q: Okay. But in either way, the end result what you described, that injury, whether it's a rupture or a poking a hole in or a nick or a slice or a cut, either way you use the term perforation interchangeably.

A: Well, it ends with a perforation.

It starts with a defect. It starts with an injury. It starts with, if you will, as you've said before, a nick. If that nick doesn't go all the way through, if the hole doesn't go all the way through, if the bowel injury doesn't go all the way through that's what it starts with. Then in time if there is inflammation or it becomes a through and through process then you have the full perforation. But it doesn't necessarily start as a perforation and in all probability did not start as a perforation here.

Dr. Befeler, relying on the opinion of Dr. Roth that plaintiff had a perforation in her colon unrelated to her diverticulosis, expressed the opinion that defendant had deviated from the appropriate standard of care when he failed to recognize that plaintiff's colon had received an injury and thus did nothing to repair that injury. Dr. Befeler conceded that his opinion as to deviation rested upon Dr. Roth's interpretation of the slides, i.e., that there was a perforation unrelated to diverticulosis. Defense counsel's cross-examination of Dr. Befeler concluded in the following manner:

Q: Did Dr. Roth tell you how sure? And I don't mean like, you know, the (indiscernible) filled in, is that your final answer or the--

A: We never had that discussion.

Q: The syntax or confidence level, if somebody is 50 percent sure or 51 percent sure that's a relatively modest confidence level, is it not?

MS. DEMAS: Objection, Your Honor.

Q: In your experience.

A: I'm not sure that it refers to pathological and you have to get that from Dr. Roth. If Dr. Roth rendered this opinion to me it means to me that he's highly confident in his report.

Q: Okay

A: Not 51 percent, but highly confident. That's how I assume.

Q: Tell me doctor, when you said he had a--would your testimony be that he would have a very high degree of confidence?

A: That's how I interpreted.

Q: Okay. And are you able to, in your mind, quantify that?

A: I don't quantify it. I assume when Dr. Roth renders an opinion, any pathologist, when I send a biopsy it's cancer or it isn't cancer. I need to do more slides, whatever it is. In this particular case he's given me an answer that's a definitive answer. Not a 51 percent answer. He's given me an answer. I've relied on it as being a surety.

Q: If it had been, for purposes of this question, doctor, I want you to assume that it had been a 51 percent answer. Would you have the same degree of confidence in his interpretation of that one slide which is 180 degrees from Dr. Kabis's as you have with other instances when he's had that high degree of confidence?

A: I would expect that if he was 51 percent he would tell us. And there are ways that pathologists tell you.

Q: I understand that.

A: But this is not--this is a definitive answer. It's not a vacillating answer, it's not a 51 percent answer.

Q: But if it was, and I know you dispute or we haven't gotten to that point yet--

THE COURT: Assuming.

Q: Assuming that it was a 51 percent answer would you still have the same degree of confidence and conviction in basing the opinion on that 51 percent confidence level--

A: I'd be 51 percent sure.

Q: Okay. You'd follow along and you'd be 51 percent sure.

A: I have to rely on his assessment.

That's what I'm relying on.

Plaintiff's counsel objected to this line of cross-examination, saying that Dr. Roth had not testified that it was 51% likely that plaintiff's perforation was the result of injury, rather than her diverticulosis. The trial court overruled the objection, saying the jury would recall the testimony. Plaintiff's counsel did not address the topic in her redirect examination of Dr. Befeler, and it did not come up again in the trial until defendant's summation in the course of which counsel stated:

[W]hen we ask him how confident is Roth, what's he say? Fifty one percent. Beffler [sic] says, oh, I can't believe it. But if he's 51 percent then I'm 51 percent. Is that the degree of assuredness that satisfies you that plaintiff has met her burden?

Plaintiff complains that these remarks misrepresented Dr. Roth's testimony and resulted in a verdict based on confusion and mistake. We do not agree. Dr. Roth volunteered the comment as to his opinion being more than 51 percent, and defendant was entitled to explore that testimony in cross-examination and comment upon it in summation.

Plaintiff, moreover, responded to these comments in her summation, telling the jury several times that Dr. Roth had testified with a "high degree of confidence" that plaintiff's rupture was not the result of diverticulosis and that he had a "high degree of certainty" on that topic. She also stressed to the jury that Dr. Roth's opinion was not simply "maybe I'll toss a coin and maybe it will be a little bit over to 51 percent."

The jury heard the conflicting testimony of the parties and the experts as well as the opposing arguments of experienced counsel and reached its determination after receiving correct instructions as to the applicable law. Our review of the record reveals no basis for appellate intervention.

Plaintiff's second argument is that she is entitled to a new trial because the jury's verdict is against the weight of the evidence. The trial court denied plaintiff's motion for a new trial, appending to the order the statement that plaintiff "has not met the burden to set aside [the] verdict pursuant to R. [4:]49-1."

[A] trial court's obligation on a motion for a new trial involves a process of evidence evaluation,--'weighing.' The object is to correct clear error or mistake by the jury. The court is to take into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible feel of the case which it has gained by presiding over the trial. The trial court's ruling on such a motion should not be reversed unless it clearly appears that there was a miscarriage of justice under the law. [Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997) (citations omitted).]

The fact that the trial court's abbreviated statement does not indicate its assessment of the factors entering into the decision to grant or deny a new trial does not entitle plaintiff to relief. It has simply increased our burden in scrutinizing the trial record to assure ourselves that a miscarriage of justice did not occur.

Plaintiff in her reply brief complains of another incident in defendant's summation. It is improper to raise new issues in a reply brief. Randolph Town Ctr. v. County of Morris, 374 N.J. Super. 448, 452 n.2 (App. Div. 2005); aff'd in part, vacated in part on other grounds, 186 N.J. 78 (2006). It is, however, appropriate to note that when an audiotape or videotape is played during a trial, the record should reflect exactly what portions are played. The simple notation "Video tape played" is insufficient.

The judgment under review is affirmed.

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