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Maccarone v. Edison Metuchen Orthopedic Group


October 31, 2008


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2956-03.

Per curiam.


Argued September 16, 2008

Before Judges Wefing, Parker and LeWinn.

Plaintiff Guiseppe Maccarone*fn1 appeals from a judgment entered on July 17, 2007 after a jury rendered a verdict of no cause for action. We affirm.

Plaintiff was employed by Pepsi Cola and was delivering cases to Maggie's Deli in Jersey City in June 2000 when he slipped and fell. He testified that, as he descended a stairway into the deli's basement, his "foot just gave way." He immediately felt pain in his lower back and knee.

After seeing several physicians recommended by the employer's workers' compensation carrier, he saw defendant, Dr. Matthew Garfinkel of the Edison Metuchen Orthopedic Group, in February 2001. Dr. Garfinkel recommended arthroscopic surgery to repair plaintiff's damaged knee. Plaintiff underwent the procedure on February 12, 2001.

Plaintiff testified that after the surgery he experienced a great deal of pain and returned to defendant's office to discuss it. Defendant told plaintiff that he was "doing fine" and recommended physical therapy. Plaintiff endured physical therapy, experiencing pain, which he described as "the worst possible stabbing." During this time, plaintiff also experienced pain in his back "on and off."

Two months to ten weeks after the first surgery, defendant recommended another arthroscopic procedure, known as an osteochondro autograft transplantation (OATS). Defendant testified that he recommended the OATS procedure because plaintiff was not improving. Nevertheless, defendant continued "conservative treatment with some physical therapy, . . . Celebrex, which is an anti-inflammatory medication, . . . therapy and follow up in two weeks." By May 17, 2001, plaintiff was more than three months post-surgery and had not improved significantly. Defendant again discussed the OATS procedure with plaintiff and explained the procedure and its risks. On May 23, 2001, defendant performed the OATS procedure arthroscopically on plaintiff's left knee.

Plaintiff testified that after the OATS surgery, he felt "horrible" and experienced "excruciating pain" while driving home. He testified further that defendant told him "to stay off [his] leg for approximately six to eight weeks, absolutely no weight bearing." His leg was fitted with a straight leg brace from the upper thigh to the ankle.

Defendant testified that he saw plaintiff a week after the surgery and that the incision "was clean, dry and intact which means the incision was healing nicely, no evidence of any problems with the incision, no evidence of any infection. The left lower extremity [was] neurovascularly intact. So no evidence of any nerve or circulation problems in the left lower extremity." Nor, did defendant find any evidence of a blood clot in the lower leg.

On June 12, 2001, however, plaintiff was admitted to the hospital because he had a fever and there was concern about infection inside the knee joint. Two of defendant's partners examined plaintiff and undertook tests to determine whether, in fact, plaintiff did have an infection in the knee joint. The tests indicated no infection. The doctors also found no evidence of a blood clot.

Plaintiff testified that he went to the hospital because he was in pain. He met with one of defendant's associates, who admitted him because of concern about infection. When he saw defendant a few days later, defendant told him "everything was fine." Although plaintiff indicated he had been trying to reach defendant before he went to the hospital, defendant's records did not reflect any attempts by plaintiff to contact him. Defendant saw plaintiff in the hospital and consulted with the infectious disease specialist who was treating plaintiff for the fever. Defendant discharged plaintiff from the hospital with instructions for home physical therapy to start the next day and for a continuous passive motion machine (CPM) to be used at home. The CMP machine slowly and continuously moves the leg between a straight to bent position.

Defendant next saw plaintiff on June 26, 2001, when defendant noted that plaintiff had been doing the CPM machine at home and was "compliant and non-weightbearing." Plaintiff had no fever, no redness or warmth about the knee and no drainage from the incision. Defendant took X-rays that day and the X-rays showed that the graft "was now fitting and incorporated well, healed and well." Plaintiff was scheduled to start physical therapy the next day.

Plaintiff testified that he wanted to change doctors because he was not satisfied with defendant's treatment, but the workers' compensation carrier would not allow him to do so. Ultimately, plaintiff disregarded the workers' compensation carrier and had a total knee replacement at New York Hospital. He testified that even after the knee replacement, he continues to experience pain in "the whole left leg" and is not able to walk without a cane.

Plaintiff's expert, Dr. Gerald A. Coniglio, an orthopedic surgeon, testified at trial by videotape. In his opinion, defendant's two surgeries on plaintiff were not warranted and resulted in plaintiff's total knee replacement. He was particularly critical of the OATS procedure. During cross-examination, defense counsel attacked Dr. Coniglio's credibility by questioning his inability to obtain a medical license in Nevada and the "twelve to fifteen" malpractice suits filed against him.

Defendant's expert, Dr. Jack M. Bert, an orthopedic surgeon, also testified by videotape. Dr. Bert disagreed with Dr. Coniglio's diagnosis and opinion as to the procedure defendant performed. Dr. Wendell Scott, an orthopedic surgeon, also testified as defendant's expert and opined that defendant's treatment of plaintiff did not deviate from the standard of care. Dr. Scott also disagreed with Dr. Coniglio's opinion that defendant treated plaintiff improperly. During her closing remarks, defense counsel referred to the malpractice suits filed against Dr. Coniglio and plaintiff's counsel did not object.

After the jury found in defendant's favor, plaintiff appealed and argues: (1) the trial court erred in admitting "unredacted negative information" about Dr. Coniglio into evidence; (2) the trial court showed favoritism and bias in favor of defendant; and (3) the trial court erred in precluding evidence, which led to an unjust verdict.

Plaintiff initially argues that the "[j]udge's improper failure to limit wholesale negative information about plaintiff['s] expert[,] Dr. Coniglio[,] permitted the jury to be unduly biased in [its] evaluation of his testimony." On cross-examination, defense counsel questioned Dr. Coniglio about his credentials. She initially inquired about his attempts to become a member of the American Academy of Orthopedic Surgeons. Dr. Coniglio acknowledged that he was rejected on two occasions by that organization because he had on other occasions taken positions contrary to what orthopedic surgeons in the community believe to be the standard of care. Defense counsel then inquired about Dr. Coniglio's inability to obtain a medical license in Nevada "based upon the excessive number of malpractice claims against him which have been settled on his behalf . . . and his continued pattern of receiving adverse reports from nearly every facility in which he has practiced." Dr. Coniglio acknowledged that was true. He further acknowledged that twelve to fifteen lawsuits had been filed against him. He claimed, however, that some of these lawsuits were settled by the insurance company against his will because he believed that he had not done anything wrong or deviated from the standard of care.

Dr. Coniglio acknowledged that he had never performed an OATS procedure, never attended any seminars or lectures on the OATS procedure and had not written any articles regarding either arthroscopy, chondroplasty or the OATS procedure.

Defense counsel further cross-examined Dr. Coniglio respecting his application for re-licensing in New York. Dr. Coniglio acknowledged that on the New York application he answered "yes" to the following question:

[H]as any licensing or disciplinary author[ity] ever revoked, annulled, cancelled, accepted, surrendered, suspended or placed on probation or refused to issue or renew a professional license or certificate held by you now or previously or fined, censored, reprimanded or otherwise disciplined you?

Ultimately, Dr. Coniglio was re-licensed in the State of New York.

To counter defendant's cross-examination of Dr. Coniglio regarding his licensing applications, plaintiff sought to have the court admit into evidence a brief prepared for Dr. Coniglio's appeal of an Ohio State Medical Board order issued on October 11, 2006, imposing limitations and restrictions on his certificate to practice medicine in Ohio. The Ohio brief articulated Dr. Coniglio's arguments to the Franklin County, Ohio, Court of Common Pleas as to why the Ohio Medical Board's limitations and restrictions on his license to practice in that state should be lifted. On March 5, 2007, however, the Ohio court affirmed the decision of the medical board. In its written decision, the Ohio court reviewed Dr. Coniglio's history of approximately ten medical malpractice suits filed against him while he was practicing in North Carolina and three in Michigan. The Ohio court also reviewed his application for a medical license in Nevada and ultimately concluded that there was sufficient evidence and reasoning to support the limitations and restrictions imposed by the Ohio Medical Board.

Although plaintiff argues that the Ohio brief and judgment should have been admitted into evidence, we are at a loss to understand why plaintiff would have wanted that presented to the jury. In any event, the brief and judgment were cumulative of evidence already presented in testimony. Consequently, through testimony, plaintiff provided the jury with all of the favorable information contained in the Ohio brief without having the entire document or the judgment and decision of the Ohio court, which contained significant negative information, in the jurors' hands.

Dr. Coniglio's practice and disciplinary history are relevant to the issue of credibility. N.J.R.E. 607. The trial court correctly found that Dr. Coniglio's "credibility, reliability, his qualifications are at the very heart of his testimony" and properly concluded that the probative value of the testimony outweighed the potential prejudicial effect.

We have previously held that cross-examination of an expert witness in a medical malpractice case may include evidence that "the witness's purported knowledge of the medical problem presented by the case was less than he claimed, and that such deficiency affected his credibility." Lawlor v. Kolarsick, 92 N.J. Super. 309, 312-13 (App. Div.), certif. denied, 48 N.J. 356 (1966). We reiterated that "the test of relevancy" in impeaching a witness's credibility "is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness." Id. at 314 (quoting McCormick, Evidence, §29, 54-55 (1954)).

In short, we find no error in the trial court's permitting defense counsel to cross-examine Dr. Coniglio regarding his credentials and disciplinary history, nor do we find any error in the trial court's preclusion of the Ohio brief.

During her summation, defense counsel referred to the number of malpractice cases against Dr. Coniglio and stated, "That's huge . . . . Come on. Maybe one or two, but twelve to fifteen?" Plaintiff did not object to this remark at trial and his argument here is subject to the plain error rule. R. 2:10-2.

Plaintiff contends that "[t]his caustic comment" should have been addressed by the court in a curative instruction. In reviewing defendant's closing argument as a whole, we find counsel's remarks regarding the malpractice suits to be fair comment on the testimony. State v. Frost, 158 N.J. 76, 84 (1999). Moreover, when counsel fails to object, it deprives the court of the opportunity to give a curative instruction. See State v. Macon, 57 N.J. 325, 336 (1971).

Plaintiff next argues that the trial court erred in precluding statements defendant purportedly made to plaintiff and his wife. Plaintiff claims that Dr. Garfinkel told him and his wife that the surgery did not go well and that he would do it in a hospital setting next time because it took longer than he expected. The court stated that it precluded the evidence because there was "no claim in this case that the procedure itself was negligently performed. So it's prejudicial. It outweighs any probative value. In fact, it has no probative value, so far as I am concerned, given the issues in this case." We agree.

In his complaint, plaintiff alleged that defendant (1) failed "to make a proper diagnosis and treatment plan and perform[ed] unnecessary surgery on plaintiff Maccarone's left knee;" (2) failed "to diagnose infection and fail[ed] to treat infection following the surgery;" (3) misled plaintiff "in advising him that the surgery was successful;" (4) rejected "Dr. Charles Dacknis' request to have plaintiff Maccarone tested at Jefferson University in Pennsylvania;" (5) overruled "Dr. Angelo Scotti's prescription for a second bone scan;" (6) instructed plaintiff "to return to work even though plaintiff had not recovered from his injuries and was not able to perform his duties;" (7) failed "to properly diagnosis plaintiff's condition and participat[ed] in the surgery which was performed."

Nowhere in the complaint did plaintiff allege that the surgeries were negligently performed. Moreover, Dr. Coniglio's testimony focused on the two surgeries, particularly the OATS procedure, which in Dr. Coniglio's opinion resulted in plaintiff's having a total knee replacement.

N.J.R.E. 401 defines relevant evidence 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. 403 provides that even relevant evidence "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time or needless presentation of cumulative evidence." We will not reverse on a trial court's determination that the probative value of evidence is substantially outweighed by undue prejudice "unless it can be shown that the trial court palpably abused its discretion." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). In Pelose v. Green, 222 N.J. Super. 545, 552 (App. Div.), certif. denied, 111 N.J. 610 (1988), we affirmed the trial court's exclusion of expert testimony that had the capacity to mislead the jury "into believing a failure to use [a particular technique] was a deviation from acceptable medical standards."

Here, we are satisfied that the trial court correctly excluded testimony by plaintiff and his wife respecting defendant's alleged statements.

Plaintiff further argues that the trial court showed such favoritism to defendant that we should reverse the verdict and order a new trial. We note initially that plaintiff did not move for a new trial after the jury rendered its verdict, so we presume that the alleged favoritism was not so blatant and determinative as plaintiff now argues. We have, nevertheless, combed the record to determine whether the trial court's conduct was, in fact, prejudicial to plaintiff to the extent that a new trial is warranted, but we have found no indication in the record of the bias alleged by plaintiff, nor have we found any basis for reversing the jury's verdict.

Our standard of review in this instance is whether there was clearly a miscarriage of justice under the law. R. 2:10-1. We defer to the trial court with respect to the "intangible aspects of the case" not transmitted by the record, e.g., credibility, demeanor and "feel of the case." Carrino v. Novotny, 78 N.J. 355, 360 (1979). We otherwise make an independent determination of whether a miscarriage of justice has occurred. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

This case was, in essence, a battle of the experts. Das v. Thani, 171 N.J. 518, 524 (2002). Plaintiff's expert had obvious credibility issues and there were substantial, legitimate questions respecting his credentials. Credibility of an expert is uniquely within the province of the jury. State v. Vandeweaghe, 177 N.J. 229, 239 (2003). The jury is never bound to accept the testimony of an expert witness, State v. M.J.K, 369 N.J. Super. 532, 549 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005). The jury may accept some of an expert's testimony and reject the rest. Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993). An expert's opinion may not be given any greater weight than the facts and reasoning upon which it is predicated. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). That was the problem with plaintiff's expert. His opinion not only differed from defendant's experts' opinions, but differed from the American Academy of Arthroscopic Surgeons with respect to the OATS procedure. The jury heard all of the expert testimony, weighed that testimony and made its determination.

Plaintiff has raised a number of additional claims of bias by the trial court. We have carefully reviewed the record, however, and we are satisfied that the case was tried fairly and even-handedly. We find no evidence of bias against plaintiff or in favor of defendant. Plaintiff's remaining arguments lack sufficient merit to warrant further discussion in this opinion.

R. 2:11-3(e)(1)(E). We are satisfied that there was sufficient evidence to support the jury's verdict. R. 2:11-3(e)(1)(B).


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