March 10, 2008
STEPHEN ROMEO, PLAINTIFF-APPELLANT,
GEORGE T. BENNETT, D.C., DEFENDANT-RESPONDENT, AND STUART G. DUBOWITCH, D.O., DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2645-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Cuff, Lisa and Simonelli.
In this medical malpractice action, a jury returned a verdict of no cause against defendant George T. Bennett, a chiropractor.*fn1 Plaintiff Stephen Romeo appeals from the order of October 6, 2006, denying his motion for a new trial. He contends the trial judge erred in denying the motion because (1) Bennett changed his testimony about a central issue in the case relating to whether he saw an abnormality on a thoracic x-ray taken on November 15, 2000; and (2) Bennett's chiropractic expert, Anthony F. Calzaretto, D.C., gave surprise testimony that he had reviewed the thoracic x-ray prior to issuing his reports and saw no abnormality. We reject these contentions and affirm.
Bennett treated Romeo for injuries sustained in an auto accident.*fn2 On November 15, 2000, Bennett took and reviewed x- rays of Romeo's cervical, thoracic and lumbar spines. In a report, dated November 19, 2000, Bennett concluded the x-rays showed, among other things, cervical, thoracic, lumbar and pelvic malposition, but there was "no evidence of clinical pathology." However, it was later determined the thoracic x-ray revealed an abnormality: an increased density surrounding the heart evidencing cardiac enlargement, later diagnosed as Stage IV-B Hodgkin's lymphoma.
Romeo alleged that Bennett deviated from accepted standards of chiropractic care and treatment by failing to properly read the thoracic x-ray, which revealed the abnormality, and by failing to refer him to a family physician or radiologist for follow-up treatment. Romeo claims that as a result of the deviation, there was an eight-month delay in diagnosis and treatment, resulting in the disease progressing to a more advanced stage requiring more intense treatment, and in a more remote chance of cure.*fn3
Bennett was deposed on April 15, 2004. Prior to that time, Calzaretto had reviewed all of the x-rays and stated in a report, dated March 26, 2003, as follows:
In view of the x-rays forwarded to my attention, I see no evidence of any gross soft tissue or skeletal abnormalities that would directly indicate caution in [pursuing] [c]hiropractic treatment. Nor do I view any indication for a referral to a specialist for pathological disorders since none are visualized.
This report was not provided to Romeo's counsel.
Calzaretto later reviewed the case file, and issued a report, dated November 6, 2003, noting that Bennett had "performed x-rays of the cervical, thoracic and lumbar region finding no evidence of clinical pathology," and opining that Bennett "followed the customary and reasonable treatment parameters dictated by his state license." The doctor specifically noted that he had reviewed Bennett's November 19, 2000 report (where Bennett reported he found "no evidence of clinical pathology").
Romeo's chiropractic expert, Edwin F. Barry, D.C., issued a report, dated November 5, 2004, opining that the thoracic x-ray revealed a large density which would "lead a reasonable examiner to conclude, minimally, . . . the existence of cardiac enlargement[,]" and which "should have motivated the clinician to at least suspect the existence of some underlying pathophysiological condition." Barry concluded that Bennett's failure "to observe and note this abnormality," and "failure to make the appropriate referral," "constitute[d] a deviation from what would be considered a reasonable degree of skill and care in attending to this particular patient."
After reviewing Barry's report, Calzaretto again reviewed all of the x-rays, and issued another report, dated October 19, 2005, acknowledging that the thoracic x-ray revealed an enlarged heart. However, he opined that Bennett did not deviate from the accepted standard of chiropractic care because the doctor treated Romeo structurally, the x-rays assisted Bennett "in determining [Romeo's] neuromusculoskeletal injuries," and "[t]he radiographic structural analysis performed by [Bennett] in conjunction with the history and clinical evaluation findings supports the diagnostic and treatment program that [Bennett] had imposed."
Calzaretto was never deposed. By the time Bennett was deposed, he knew the thoracic x-ray showed an enlarged heart and mass, and that Romeo had been diagnosed with Stage IV-B Hodgkin's lymphoma. Thus, he testified in hindsight about what the x-ray revealed. However, as to what he observed on November 15, 2000, Bennett testified as follows:
Q: Have you had a routine over the years that you've been practicing chiropractic as to what you would do if you observed one of these tumors that you were taught about in chiropractic school on a chest x-ray?
A: If I saw something that appeared to be cancer or something that needed further treatment, I would -- if it happened, I would have referred the patient to their family physician to further review the picture.
Q: Okay. Let's . . . try to make sure we're on the same page here. Right. For the moment, I just asked you to point to the heart and you've done that. Can you describe in words what you're pointing to?
A: It's a lighter structure in the middle of the chest x-ray.
Q: That's something that I've asked you to describe for me today. Is that something, the heart something that you would routinely have at least recognized as you would have been viewing these films back in November of 2000?
Q: Okay. Just so I understand that, . . . do you see any white in the lung fields on either the left side or the right side?
A: There's -- there is a gray area on the left side.
Q: Okay. Would you point that out to me?
Q: All right. Is that area something which is present in symmetry on the right side?
Q: That is something that you certainly notice as you are here today. Do you know whether or not that's something you would have noticed back in November of 2000?
A: In November of 2000, I would have thought that was part of the heart.
Q: And you described before an area of gray on the left side; is that correct?
Q: And you indicated that you believed that area of gray on the left side in its entirety would also be the heart?
Q: Taking into consideration his age, would this be an average size heart or typical heart or how would you describe it?
A: I would say a big heart.
Q: Okay. Are we talking about both sides of the spine or one side or the other?
A: The left side.
Q: Okay. This is about five inches on the left side. Typically how large is the heart on the left side that you see in your practice for 17 or 18 year olds or 16 or 17 year olds?
A: Oh, half that.
Q: Half of that. Do you know if this shadowing being twice the -- approximately twice [the size] than the average heart size for a 16 or 17-year-old, whether you would see that as being something abnormal back in 2000?
A: Well, it's something I probably would have looked at but it didn't strike me as --as something that needed attention at the time.
Q: If you felt it was something that needed attention, what would your routine have been?
A: I would have suggested that he see his family physician about it.
Q: What I'm asking you is is there a point that you would have made a referral based on the size on the left side and what would that point have been?
A: Well, I don't usually look at the heart. So I don't really analyze the size of the heart and I never really had occasion to send somebody. I really don't. I can't say at what point. I mean now looking at this and we're bringing the subject up, it's something that I'd probably pay attention to in the future[.]
I can't say at what point we would refer. It's not something that I would look for. Typically there would be other symptoms. If a person had a heart problem, something like nausea, vomiting and -- and if you listen to a person's heart and it's irregular.
Q: Okay. Looking at that -- looking at that x-ray, that gray area to the left side of the spine, you've told me that you believe that to be the heart. Any other considerations that you have concerning that gray side -- that gray area to the left side of the spine?
A: Okay. At the time I would have thought that whole thing was the heart.
Q: Do you know what was -- do you know --let me ask you this: At any time that he complained of chest pain during the course of his treatment with you, did you ever attempt to correlate it with the findings you had on the November, 2000 x-ray?
A: No. Typically you look at the x-ray once and we don't repeatedly go back to look at the x-ray. I looked at the x-ray the first time I saw it and I ruled out what I thought was any pathology and so I wouldn't have had reason to go back and review that x-ray again.
Trial began on July 19, 2006. Prior to opening statements, Bennett's counsel confirmed that Bennett would testify (1) he saw no abnormality on the thoracic x-ray November 15, 2000; and (2) his deposition testimony about the abnormality was based on knowledge he gained after November 15, 2000 of its existence. Romeo's counsel alleged that this was a change in testimony because Bennett had testified at deposition he saw the abnormality on November 15, 2000, but thought it was part of the heart. Nevertheless, counsel agreed to continue with the trial, and later questioned Romeo's radiology expert, James Abraham, M.D., about Bennett's alleged change in testimony as follows:
Q: If the facts of this case are that one of these two doctors did not see or did not notice, did not appreciate the abnormality, was that a deviation?
A: Because they're taking on the responsibility of interpreting -- taking these and interpreting them and there's a certain standard that all physicians or all medical people that are doing this have to have to interpret these.
Romeo's counsel also questioned Barry about Bennett's alleged change in testimony as follows:
Q: Okay. Doctor, in your opinion, if a chiropractor failed to notice this area where you -- that you've described as an enlarged cardiac silhouette, would he have deviated from accepted standards of medical care?
A: In my opinion, yes.
Q: -- chiropractic care?
Q: And why is that, sir?
A: Well, this is Basic Radiology 101. I -- would assume that any chiropractor going through chiropractic -- regular chiropractic education would have been taught this and would have been taught to recognize an enlarged heart shadow or cardiac silhouette to be an abnormal finding.
On the fifth day of trial, and after the completion of Romeo's proofs, his attorney made a motion to bar Bennett from testifying that he did not see the abnormality on November 15, 2000. Because Romeo's counsel believed Calzaretto did not review the thoracic x-ray prior to issuing his October 19, 2005 report, counsel also made a motion to bar the doctor from testifying that it was not a violation of the standard of care for a chiropractor to have seen the abnormality and fail to report it or recommend follow-up treatment. However, Bennett's counsel responded:
[Calzaretto is] going to say that he reviewed it, the x-ray. He did not see on his initial review of the x-ray an enlarged heart. He didn't see this outline on the left-hand side of the x-ray. And he would not expect Dr. Bennett to have seen it either and it would not have been a deviation on the standard of care for a chiropractor to have not either seen a mass or an enlarged heart. So the question that counsel [is] worried about will only come out if he asked the hypothetical[.]
Judge Baldwin denied both motions. As to Calzaretto, the judge permitted the doctor to testify that Bennett's reading of the thoracic x-ray was not a deviation, but barred him from testifying that Bennett did not see the abnormality on November 15, 2000, unless this evidence was elicited on cross- examination. As to Bennett, utilizing the analysis set forth in McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001), the judge concluded as follows:
I don't think [McKenney is] read so broadly that minor changes in testimony get the [McKenney] treatment. In my view, they just get the treatment of vigorous cross-examination to show inconsistencies in prior testimony. I think there's a huge chasm between our case factually and the [McKenney] case factually and our case legally based on those facts and the [McKenney] case legally based on those facts. So I don't think the [McKenney] approach applies in this matter.
I'm not sure I see a -- well, let me look at the language here. I'm not sure that prior deposition was incorrect when listening to the arguments for the entirety of the deposition. I don't think it's a material respect, and I gauge that, those two words in terms of the result giving my denial of plaintiff's application and how, and whether that eviscerates the plaintiff's, whether that materially damages the plaintiff's theories against the defendant. And I don't think it does in this matter. And I'm going to deny the application under [McKenney].
Bennett then testified on direct examination as follows:
Q: Now, when you did the initial scan of the x-ray in this case, did anything jump out at you?
Q: That gray area that was represented by that outside left line, is that something that you observed when you evaluated the patient in November of the year 2000?
Q: Hypothetically, if you had seen that gray area in November of 2000, what would you have thought it was?
A: I would have thought it was the heart.
Q: And again, in November 2000, would you have perceived that as being an enlarged heart?
Q: And if you had perceived an enlarged heart on an x-ray of a patient back in November of 2000, what would you have done?
A: Well, first I would make a note in the chart and then I would send him somewhere.
Q: All right. Is there any such note in your chart or in any of your records that indicated back in November of 2000 that you saw an abnormality in the heart?
A: Not on -- no there's no notation there.
Q: All right. Did you know there was a mass ultimately discovered on the left side of his chest at the time of your deposition in April of 2004?
Q: Were you aware that there was an allegation that the mass that was ultimately discovered in this case that led to the diagnosis of Hodgkin's disease was present on the x-ray that you took back in November of 2000?
A: I believe I did know that, yes.
Q: And at the deposition when you were looking at these x-rays and you were preparing that overlay, were you doing so with the knowledge that you had learned since the institution of the lawsuit?
A: I mean, I couldn't ignore the knowledge. I mean, you know, it was there.
Q: Now, Doctor, going back to November of 2000 --
Q: At that point in time did you have any reason to suspect that  Romeo had a mass in his chest?
Q: Did you have any reason to suspect that he had an enlarged heart?
Q: And if you had suspected either of those findings, what would you have done?
A: I would have zeroed in on -- I would have looked at the x-ray more carefully for soft tissue pathology.
Q: And would you have made a note of those findings?
Q: And would you have made a referral to some sort of physician?
A: If I found something, yeah.
Plaintiff's counsel extensively cross-examined Bennett about his alleged change in testimony. Calzaretto testified on direct examination that when he initially viewed the thoracic x-ray he did not observe an enlarged heart and was unaware of the allegation the x-ray showed such an abnormality; and after reviewing Barry's report, he again reviewed the x-ray and saw the abnormality. Bennett's counsel specifically did not question Calzaretto about the March 26, 2003 report because it had not been provided in discovery. However, on cross-examination, Romeo's counsel elicited testimony about the report. Instead of making a motion for a mistrial or to strike the doctor's testimony, counsel made a motion to review the March 26, 2003 report, which was granted. After counsel reviewed the report, the following colloquy took place:
[DEFENSE COUNSEL]: Okay. But, . . . [the March 26, 2003 report is] not addressed to anybody, so I don't know if he just did this so when he went back and did his report, he had his notes. I think there's been an agreement that, and I specifically told Dr. Calzaretto that he could not refer to the xray review that he did prior to the November , 2003 report. And no matter what the questioning is of him, his testimony can only be that he reviewed it twice, both subsequent to the November 2003 report, one time before applying Dr. Barry's report to it, and another time without that knowledge.
[PLAINTIFF'S COUNSEL]: We're going to have to take it further when he's asked about whether it's documented in his report of October 19th of 2005, he will answer that question without reference to --
[DEFENSE COUNSEL]: Yeah, he'll say no, it's not, it's not mentioned.
[PLAINTIFF'S COUNSEL]: Okay.
THE COURT: Okay. [Plaintiff's counsel], you on board with that?
[PLAINTIFF'S COUNSEL]: Yes, I am, sir.
THE COURT: Okay. And [defense counsel], you're on board with that?
[DEFENSE COUNSEL]: Yes, I am, Judge.
THE COURT: Thank you for working this out and saving the trial; I appreciate it very much.
Calzaretto's cross-examination proceeded without further objection, and without the doctor mentioning the report. The jury eventually returned a verdict of no cause. In his motion for a new trial, Romeo again contended that Bennett changed his testimony. Again relying on McKenney, Judge Baldwin denied the motion, finding as follows:
All right. Well, it's a tough hurdle [plaintiff's counsel] has to get over whether it clearly [has] convinced me if there's a miscarriage of justice under the law. I don't think there was in this case for the following reasons and it's a very close call.
If there was a change in testimony it has to get to the [McKenney] level to merit a retrial. It's very, very clear from my notes that Dr. Barry did address the issue of the failure to appreciate -- the failure to recognize the enlarged cardiac silhouette. So in his report, in his testimony, he did address what [plaintiff's counsel] argues was changed testimony. It would be unbelievably prescient for the expert to proffer an opinion about a theory that was never ever offered before in discovery.
I don't -- I think it was murky. I think it was as murky as that gray area on the film. And I . . . don't think there's clearly 180 degree change in testimony from discovery to the trial. I don't think this is a [McKenney] case. I think the plaintiff had [an] expert who addressed that issue. I think a fair reading of discovery and the deposition -- and the trial testimony is that a heart's a heart. If it's in my purview I look at it, I don't analyze it,  structural.
And then I think the testimony and the deposition is not crystal clear whether --it's very hard when you look at something at one point not knowing what's there and you look at something later and you know it's there and then you say, my God, there it is, and I think that was throughout the entire discovery and I think it was part of the defense in the trial.
I think Dr. Calzaretto in the second report puts it at issue. I think Dr. Barry in his testimony addresses the issue of non-recognition. So I don't think there's the [McKenney] prejudice, I don't think there's the [McKenney] diametrically opposed testimony. So I'm going to deny the application for the reason I just articulated.
A trial judge shall grant a new trial only where "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1; see also Dolson v. Anastasia, 55 N.J. 2, 7 (1969). We review a trial judge's decision on a new trial motion under the same standard. Dolson, supra, 55 N.J. at 7; R. 2:10-1. We must make our own determination as to whether there was a miscarriage of justice, and defer to the trial judge only with respect to "intangible aspects of the case not transmitted by the written record[,]" namely, "witness credibility and demeanor and the 'feel of the case.'" Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979) (quoting Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (1979)); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 7.
Based upon our review of the record, we determine no miscarriage of justice occurred here. Bennett never unequivocally testified he saw the abnormality or noticed an enlarged heart but decided not to refer Romeo for follow-up treatment. Also, Bennett's November 19, 2000 report makes clear he did not observe the abnormality on November 15, 2000; Calzaretto's November 6, 2003 report confirmed this; and Barry, Romeo's expert, addressed this issue in his November 5, 2004 report, where he concluded that Bennett deviated from a reasonable degree of skill and care because he failed "to observe and note [the] abnormality." Although some ambiguity may exist in Bennett's deposition testimony as to what he saw on November 15, 2000, there was no material change or deliberate concealment, McKenney, supra, 167 N.J. at 371, no surprise testimony from Calzaretto, and no violation of the discovery rules.