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Molan v. McDivitt


November 2, 2009


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-2070-04.

Per curiam.


Argued October 14, 2009

Before Judges Carchman and Lihotz.

This appeal arises from a medical negligence action wherein plaintiff Catherine Molan, General Administrator and Administrator Ad Prosequendum of the Estate of Catherine Lawlor*fn1, deceased, suffered a burn to her knee caused by the negligence of defendant Joseph Benjamin McDivitt, a licensed physical therapist. Following a jury trial on damages only, plaintiff was awarded a verdict of $2,910 for economic damages and $7,500 for non-economic damages. Plaintiff moved for a new trial or additur, which was denied. Plaintiff now appeals, and we affirm.

The facts adduced at trial reveal that on June 22, 2003, plaintiff suffered injuries as a result of a motor vehicle accident. These injuries necessitated additional medical treatment including the physical therapy services provided by defendant.

Plaintiff had an extensive and unfortunate pre-accident medical history. In 1997, at age 73, she suffered a stroke resulting in right-side weakness and a limited ability to verbally communicate. In addition, she suffered from congestive heart failure, pulmonary edema, arteriosclerosis cardiovascular disease, peripheral vascular disease, anemia and hypertension. In addition, she had a history of diverticulitis, malnutrition, dehydration, respiratory insufficiency, pulmonary disease and peptic ulcer. She utilized both a walker and wheelchair.

As a result of the accident, plaintiff suffered soft tissue injuries, which required physical therapy, and she was referred by a treating physician to defendant for that therapy. In June 2004, while being treated with moist heat on her right knee, plaintiff developed a two-inch blister, which was diagnosed as a second-degree burn requiring topical and wound treatment. During this same period, plaintiff was hospitalized for osteomyelitis and other conditions unrelated to the blister. During this hospitalization, plaintiff underwent two debridements to the blister area.

Plaintiff began treatment with Thomas Steffe, M.D., a plastic surgeon in August 2004. During the course of treatment with Dr. Steffe, the wound was reduced in size from approximately two inches to one and one-half inches. Treatment included topical dressing and debridements ultimately resulting in a healing of the wound in February 2005, without the necessity of surgical intervention. During this period, plaintiff suffered a contracture of her right knee, a condition alleged by plaintiff to be related to the burn but challenged by defendant as being related to the stroke. Within one month of the wound being healed, plaintiff died, but her death was not related to the burn or its sequelae.

At the commencement of trial, the judge and counsel participated in a Rule 1:8-3 hearing to select a jury. Although the judge asked the jurors the standard questions required by Administrative Office of the Courts, Directive #21-06, Standards for Jury Selection (December 11, 2006) and Administrative Office of the Courts, Directive #04-07, Jury Selection -- Model Voir Dire Questions Promulgated by Directive #21-06 -- Revised Procedures and Questions (May 16, 2007). However, the judge did not ask any open-ended questions as mandated by Directive #04-07. Plaintiff's counsel participated fully in the voir dire process but did not raise any objection or offer any proposed questions.

Following jury selection, the trial commenced with plaintiff proffering plaintiff's son-in-law, Robert Molan, who indicated that he and his wife, Catherine, had devoted 1,466 hours caring for plaintiff as a result of the burn. Included in the services provided were wound care, administration of medications, transportation, coordination of medical services as well as providing routine household chores. From June 16, 2004 until March 14, 2005 (except for the brief interval of hospitalization), plaintiff resided with her daughter and was in her daughter's care. According to this witness, the impact of the burn changed plaintiff's happy life into one of "pain and suffering and misery." The market value of these services were estimated at $181,439, which formed the basis of plaintiff's economic claim.

Expert medical testimony submitted to the jury by plaintiff linked the osteomyelitis of the patella to the burn as well as the leg contracture. Similarly, there was constant debridement of necrotic tissue necessitating approximately sixteen office visits with Dr. Steffe as well as the need for mechanical aids and casting to promote healing and deal with the contractures.

Defendant's expert, Dr. Robert Ponzi joined the issue and opined that the contractures were related not to the burn but to the stroke that predated the burn accident. He also concluded that the burn wound was completely healed as of January 2005, and plaintiff showed no signs of persistent infection.

Following the jury verdict, plaintiff moved for a new trial or additur. That application was denied, and this appeal followed.

On appeal, plaintiff asserts that she was denied a fair jury selection process consistent with the standards mandated by the Supreme Court; the judge should have recused herself when it was revealed that she had a prior social relationship with defendant; and the trial judge erred by not granting a new trial.

We are once again faced with a failure of both the judge and counsel to adhere to the Supreme Court's mandates for the jury selection process. In Gonzales v. Silver, 407 N.J. Super. 576 (App. Div. 2009), we again reiterated the need for judges to ask three open-ended questions of each prospective juror during voir dire as required by Directive #04-07. Id. at 597. We considered such failure to be error but recognized that a certain residual discretion resides in the trial judge. Ibid. We temper that observation with a recognition that the judge's discretion in failing to adhere to a Supreme Court mandate is limited, at best. Our concern here is that plaintiff, both at trial and on the motion for a new trial, neither objected nor offered any argument that the failure to administer the open-ended questions impacted the jury or its verdict.

Considering this record on appeal, we are reluctant to overturn the verdict where counsel has acquiesced in the selection process, and our independent review of the trial proceeding fails to support even the slightest hint of bias or prejudice on the part of the jury. The nature of plaintiff's damage claims were sharply contested, and the issues were clearly framed for the jury's consideration.

While judges have the affirmative obligation to adhere to Administrative Directives, State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007) (stating that Administrative Directives are "unquestionably binding on all trial courts"), counsel has a similar obligation to challenge the selection process. Gonzales, supra, tacitly recognized counsel's "seeming[] satisf[action] with the court's voir dire questions," 407 N.J. Super. at 597, and the suggestion of waiver.

In her memorandum opinion on the motion for a new trial, the judge carefully analyzed the proofs before the jury and concluded that while the award was low, there was a rational basis for the jury's award. She declined to disturb the verdict.

We cannot say that the failure to present the open-ended questions was plain error. Plaintiff's prior medical condition, the nature and quantum of the damages sought and the relatively short time that plaintiff suffered as a result of the burn all contributed to the potential for a low verdict. That is what happened here, and we find no basis for our intervention.

We likewise reject plaintiff's argument that the judge should have recused herself because she had served with defendant in the Rotary Club many years before. The judge also noted that she had not seen him in years. She then asked counsel if there was any problem, and there was no response. Counsel made no application for recusal.

The standard for recusal is "if there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). The decision to recuse is left to the sound discretion of the trial judge. Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001). We do not deem this historical common membership in a service organization to provide a basis for recusal, especially where counsel made no comment or application for such relief. We cannot accept plaintiff's belated argument that nothing in the record suggests that counsel heard the judge's comments. We reject that argument without further discussion.

Finally, we reject plaintiff's argument that the judge improperly denied plaintiff's motion for a new trial or additur. In deciding the motion, the trial judge carefully analyzed the proofs presented and concluded that while the verdict was low, it was not unconscionable. We conclude that she did not err and we affirm her denial of the motion for the reasons set forth in her memorandum opinion of October 3, 2008.


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