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Onwudinjo v. Boffard


August 11, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, L-10033-02.

Per curiam.


Argued April 2, 2008

Before Judges Payne, Sapp-Peterson and Messano.

Decedent, Julia Haynes, died on October 25, 2000 of a pulmonary embolism occurring after unsuccessful gynecological surgery. A medical malpractice suit was filed. After settlement with the surgeon, defendant Daryl Boffard, M.D., and dismissal of the other named physician, defendant Isaac Victor, M.D., who demonstrated his lack of involvement in decedent's care, trial focused on the liability of defendant St. Barnabas Medical Center, which, it was alleged, either failed to place Flowtron pressure devices designed to prevent blood clots on decedent's legs in the period after her surgery and prior to her death, or failed to ensure that such devices were operating properly. Both of decedent's sisters testified at deposition and at trial that they had observed no Flowtron devices on decedent's legs while visiting decedent in her hospital room, and if such devices had been present, they would have seen them when a nurse inspected decedent's legs following her complaints of pain in that location.

Prior to institution of litigation, plaintiff had received a copy of decedent's medical records from the hospital. In response to discovery, plaintiff was furnished with a second copy of the records. Neither contained evidence that the Flowtron devices had been employed while decedent was in her hospital room.

During the deposition of Dr. Boffard, counsel for the hospital noted to the other attorneys present that her own records contained a document that demonstrated that Flowtron devices were purportedly in use on October 25, 2000 while decedent was in her hospital room. After being informed that none of the other attorneys possessed the document, on November 3, 2004, the single, undated and untitled page, with no patient or room reference, was produced. The document, signed by registered nurse Yvonne Cort, contained entries commencing at 7:30 a.m. and concluding at 2:15 p.m. following death. The 7:30 a.m. notation stated, among other things, "Flowtron wrap intact bilaterally."

Plaintiff's attorney forwarded the document to plaintiff's expert, Pius U. Chikezie, M.D., who in a supplemental report dated November 16, 2004, served after the close of discovery*fn1 with the court's permission, described Dr. Boffard's deviations, and then stated in respect to the hospital:

St. Barnabas Medical Center, its staff and employees failed to maintain a flowtron device on the person of Ms. Julia Haynes, as ordered by Dr. Boffard, for a dangerously prolonged period of time.

On December 1, 2004, on the first day of Dr. Chikezie's deposition, counsel for the hospital produced by facsimile a second page of handwritten notes, also undated and untitled, but purportedly relating to decedent's care on October 24, 2000, indicating in the entry for 9:15 p.m. that plaintiff had been transferred and that "flowtron wraps on/functioning." The transmittal letter stated:

Please allow this to further confirm, as we had indicated at the time of Dr. Boffard's deposition, the existence of handwritten nurse's notes from October 24, 2000 which were inadvertently never Xeroxed with the hospital chart due to the folded nature of the original chart. As we have previously advised, you are welcome to arrange a convenient time to meet counsel at the hospital to examine the original chart.

We now amend defendant's interrogatories to specifically identify a copy of hand written nurse's notes covering the period from 9:15 p.m. on October 24, 2000 through 6:30 a.m. on October 25, 2000.

Defendant further amends interrogatories to again*fn2 identify as trial witnesses Nurses Regina Cardona, Geraldine McQuade and Yvonne Cort, each of whom will testify in accordance with their contemporaneous records from October 24-25, 2000. Those contemporaneous records confirm that at all relevant times, flowtron devices/wraps/PAS stockings were applied, maintained and intact bilaterally on plaintiff's decedent, which devices were in place and intact throughout the entire period which forms the basis of plaintiff's Complaint.

On November 18, 2004, the court entertained a motion, filed by plaintiff prior to receipt of the additional hospital records, to compel production of any peer reviews conducted with respect to decedent's death. The motion was denied as untimely.

On December 17, 2004, the court heard oral argument on the hospital's motion for summary judgment, plaintiff's motion to bar the hospital's amendment to interrogatory answers, and the hospital's cross-motion to bar plaintiff's expert from testifying at trial to any opinions identified in his November 16, 2004 expert's report regarding negligence on the part of the hospital and to any opinions regarding the hospital's liability offered at his December 1 and 8, 2004 depositions that were not contained in previous reports dated June 10, 2003 and August 18, 2004, neither of which specified acts of negligence on the hospital's part. Following argument, the hospital's motion for summary judgment was denied as was plaintiff's motion to bar the introduction at trial of the newly-produced medical records. However, the motion judge permitted plaintiff to take the depositions of the three newly-identified nurses and permitted Dr. Chikezie to submit an additional expert's report addressing the new evidence, while indicating that, thereafter, Dr. Chikezie's trial testimony would be limited to his reports, regardless of testimony provided at his deposition. The hospital was authorized to retain an expert, serve his report, and produce the expert for his deposition prior to a scheduled trial date of March 1, 2005.

The order submitted to the judge and signed on December 23, 2004, over the objection of plaintiff's counsel, mistakenly limited Dr. Chikezie to his existing reports, and did not provide him with the alternative of supplementation. The order stated in relevant part:

Defendant's motion to bar the November 16, 2004 report of Dr. Pius Chikezie, served beyond the November 5, 2004 discovery end date, is denied, however, it is further Ordered that Dr. Chikezie's trial testimony and opinions given at trial shall be specifically limited to the scope of his reports authored on June 10, 2003, August 18, 2003 and November 16, 2004, and he shall not be permitted to give opinions at trial which extend beyond the opinions given within his served reports. It is specifically ordered that Dr. Chikezie shall not be permitted to give any opinions as to defendant Saint Barnabas Medical Center which are not contained within his reports of June 10, 2003, August 18, 2003 or November 16, 2004.

In accordance with the motion judge's oral authorization, but contrary to her December 23 order, plaintiff obtained a further expert report from Dr. Chikezie, dated January 16, 2005, that addressed negligence on the part of Dr. Boffard and the hospital. With respect to the hospital, Dr. Chikezie found negligence on its part as the result of its failure to weigh decedent, since her stated weight was high in relation to her height, and obesity is a risk factor for deep vein thrombosis and resultant pulmonary embolism. Additionally, the Doctor challenged the conclusion that Flowtron devices were utilized consistently on decedent until the time of her death, noting inconsistencies in the records in this regard. The Doctor additionally noted that the existing entries lacked documentation of the pressure settings of the devices after decedent was moved from the operating room. Further, he noted the lack of documentation regarding the time and date of application and reapplication, neurovascular checks, skin integrity, and other pertinent findings with respect to the operation of the Flowtron devices, which he asserted should have been recorded every eight hours, and he hypothesized that inadequate inspection and maintenance of the devices had led to their unobserved malfunction.

The report of Dr. Chikezie was not served by plaintiff until shortly before a rescheduled trial date of May 15, 2005, plaintiff's attorney having regarded the stay entered regarding trials involving persons insured by the Medical InterInsurance Exchange (MIIX), such as Dr. Boffard, who then remained a defendant, as applying as well to discovery. Upon production of the report, the hospital moved in limine to bar Dr. Chikezie from providing any opinions at trial as to the hospital other than those contained in his June 10, 2003, August 18, 2003 and November 16, 2004 reports. Although the motion judge had been furnished with the transcript of the December 17, 2004 hearing, which had occurred before a different judge, and although that transcript disclosed the judge's authorization to plaintiff to serve an additional expert report as a consequence of the late production of the two pages of hospital records, the judge granted the hospital's motion.

Following an unsuccessful motion for leave to appeal addressed to us, the matter was assigned to a third judge for trial, which commenced on October 11, 2006. At trial, some testimony consistent with Dr. Chikezie's January 16, 2005 report was presented to the jury by the Doctor. However, upon objection by the hospital, the judge specifically instructed the jury:

Ladies and gentlemen of the jury, for purposes of this trial, you will not be hearing anything about any report by this witness subsequent to the November 16, 2003 report. And I'm going to direct you to disregard the testimony that you just heard in that regard. I'll limit your questioning.

Although the judge's instruction mistakenly mentioned a 2003 report, when in fact the subject report was issued in 2004, the judge adamantly rejected the proposed correction of plaintiff's counsel in the following exchange:

[COUNSEL]: Judge, I think you mean November 16, 2004.

THE COURT: That's what you said.

[COUNSEL]: Now, I'm just saying, you said 2003, I think you mean 2004.

THE COURT: I said - no. I was very clear in what I said, subsequent to the November 16, 2003, they're not to consider it.

[COUNSEL]: Judge, again, the report -

THE COURT: Sir, I made my ruling-

[COUNSEL]: Judge, I'm not challenging your ruling. I'm only clarifying, you're saying not to -

THE COURT: What I said, is what I said. I don't think it needs clarification. Let's move on.

[COUNSEL]: Judge, I'm not saying that's the report is November 16, 2004. You're telling them not to consider anything after the November 16, 2003 report. All I'm saying is it's 2004.

THE COURT: Are you looking for a mistrial?

[COUNSEL]: Judge, I'm not. I'm only saying -

THE COURT: How many times do you want me to repeat it? I'm going - and if you insist, I'm going to cite you. Ladies and gentlemen, I'll say it again, you are not to consider anything about any report subsequent to Dr. Chikezie's November 16, 2003 report. Period. That does not need any further clarification, counsel.

Following trial, a no-cause verdict was entered in the hospital's favor.

Plaintiff has appealed, arguing that the court erred when it denied her motion to bar the hospital's late amendment of interrogatories, and that it misused its discretion in denying her access to peer review materials, in precluding a further expert's report by Dr. Chikezie, and by limiting his trial testimony to the content of his November 16, 2004 report.

Our review of the record in this matter satisfies us that, regardless of the underlying merits of plaintiff's claims, a miscarriage of justice occurred that is sufficient to warrant a new trial in this matter. In this regard, we find no misuse of discretion on the part of the first motion judge when she permitted the hospital to amend its answers to interrogatories to include the two pages of nurses' notes produced in November and December 2004 and to specifically identify the authors of those notes as trial witnesses. Rule 4:17-7 imposes a continuing obligation upon counsel to supply any information that renders prior discovery responses incomplete or inadequate. The circumstances of the hospital's late production, raising issues as to the authenticity of the documents at issue, remains a legitimate subject for exploration at re-trial.

However, fundamental fairness required that plaintiff be afforded an opportunity to address the content of the documents and the deposition testimony of the nurse-witnesses through submission of a supplemental expert report. The first motion judge recognized that fact at oral argument, but mistakenly signed an order that failed to accurately embody her oral ruling. In this circumstance, that oral ruling should have been found by the second motion judge to be controlling, but it was not. Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (2002) (stating that "[w]here there is a conflict between a judge's written or oral opinion and a subsequent written order, the former controls"); see also State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). The error was perpetuated at trial, thereby depriving plaintiff almost entirely of the expert evidence necessary to establish negligence on the hospital's part.

We further find no basis for entry of the orders barring testimony by Dr. Chikezie that conformed to the opinions rendered by him at his December 1 and 8, 1995 depositions. We have previously "strongly urged" trial judges, in the exercise of their discretion, to suspend the imposition of the sanction of exclusion when there was "(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence." Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131-32 (App. Div. 1997) (quoting Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990), further quoting Westphal v. Guarino, 163 N.J. Super. 139, 145-46 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)).

We find it significant in this regard that one of the two missing documents was not even produced until the first day of Dr. Chikezie's deposition, and thus he lacked any ability to have anticipated its content or responded to it in his November 16, 2004 report. Moreover, after Dr. Chikezie's deposition had occurred, the first motion judge authorized the retention of an expert by the hospital to meet the opinions expressed by plaintiff's expert. The hospital retained Dr. John K. Edoga, who issued a report on January 3, 2005 that addressed Dr. Chikezie's deposition testimony, and Dr. Edoga testified at trial. Under these circumstances, no basis existed for the restrictions placed by the motion and trial judges upon Dr. Chikezie's trial testimony - restrictions whose effect was further compounded by the trial judge's intemperate adherence to a misstatement of the year of the Doctor's November report in his instruction to the jury limiting the evidence it could consider.

As a final matter, in the unusual circumstances of this case, and despite the hospital's claim of privilege, see, e.g., McClain v. College Hosp., 99 N.J. 346 (1985), we find it appropriate on remand for the court to conduct an in camera review of any peer review materials existing with respect to decedent's care and demise for the limited purpose of ascertaining whether there is any reference to the presence or absence of nurses' notes for October 24 and 25, 2000 or reference to the use of Flowtron devices during this period. We leave to the court's sound discretion how to further proceed, depending on the result of the document review.

Reversed and remanded for a new trial.

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