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Rhamstine v. Scott

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2010

ELIZABETH RHAMSTINE AND STEPHEN P. RHAMSTINE, PLAINTIFFS-RESPONDENTS,
v.
DR. GEORGE SCOTT, DEFENDANT-APPELLANT, AND DR. RICHARD MERCURIO, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1646-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 11, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

In this professional negligence matter, defendant George Scott appeals from a jury verdict in favor of plaintiff Elizabeth Rhamstine, as well as the Law Division's denial of his motions for a new trial and judgment notwithstanding the verdict. On appeal, defendant submits eight points, arguing the verdict was against the weight of the evidence and asserting plaintiff's expert lacked requisite qualifications and testified beyond the scope of his report. Defendant also claims various hearsay statements admitted into evidence warrant the grant of a mistrial or, alternatively, a new trial under the plain error standard. Finally, defendant contends cumulative errors require a new trial. We reject each of defendant's assertions and affirm.

These facts are taken from the trial record. Concerned about a gap developing between her front teeth, plaintiff contacted her general dentist, Dr. Richard Mercurio.*fn1 Dr. Mercurio referred her to defendant, an orthodontist. During plaintiff's first visit with defendant, she completed an entrance form and defendant conducted a visual examination with a tongue depressor. Defendant did not take x-rays or request a patient treatment history from Dr. Mercurio.

Defendant recommended using an invisible tray system involving a series of three color-coded, pre-adjusted trays to correct the gap. He took impressions of plaintiff's teeth to create molds for the dental trays. When the trays were completed, defendant instructed plaintiff would use the red tray for two weeks followed by the white one for two weeks.

Plaintiff purportedly followed this procedure for the first two trays, then returned to defendant's office for an examination and to obtain a replacement after she misplaced the third tray. Plaintiff remarked that her teeth were loose and she was experiencing difficulty eating bread, apples, and other hard foods. Defendant reassured her some loosening was normal because her "teeth [were] shifting back to the memory of where they once were."

Several weeks later, plaintiff presented with an abscess and defendant advised her to return to Dr. Mercurio for treatment. Later that day, Dr. Mercurio x-rayed plaintiff's teeth, and determined plaintiff had experienced significant bone loss and was in danger of losing her two front teeth. At trial, plaintiff testified Dr. Mercurio called her the next day because:

[H]e wanted to see how I felt, how I was doing, and I was very upset. I mean, he said, well, I realize, and I don't understand. I'm a little perplexed on how this happened. He said in reviewing your charts, I must have missed something, he said, but Dr. Scott, he made a big blunder. He never took x-rays.

Defendant objected and the trial judge instructed the jury to disregard this testimony.

In an effort to save her teeth, plaintiff consulted with Dr. Zaskin, a periodontist. Plaintiff underwent allograft surgery, which involves an insertion of cadaver bone grafts into the maxilla to spur bone growth, setting the stage for dental implants. During direct testimony, plaintiff discussed the procedure:

Q: Okay. And did you in fact submit to treatment by Dr. Zaskin?

A: Yes.

Q: What was that treatment?

A: When I went to see him and after he examined and took the x-rays, I explained to him the situation and at this point I wanted to try and save my teeth. I would have done anything if somebody would tell me this might help save your two front teeth. Dr. Zaskin said we can possibly do -- we can do an allograft surgery on you. There's no guarantee, and in fact it's a very heroic attempt, but that was my only option at the time to try to save my front teeth. So I decided to go with him on that.

Q: Okay. And can you tell us what was done for you?

A: The allograft procedure?

Q: Yes.

A: They cut open your gums. In the process, you lose a lot of your gum line, a little disfiguring and then they put cadaver bone up there and it takes a couple months to heal and set and they're trying to build the bone in your mouth. He said that's why I didn't have enough bone to get an implant for my two front teeth. My only options . . . would have been like a detachable denture that you can plop in a little glass with water.

Q: At some point after the procedure, did you become aware as to whether the procedure, the allograft surgery was effective or not?

A: It brought down the -- the bone mass on the top of my mouth was ten and a half millimeters, a severe bone loss. After Dr. Zaskin did the surgery, it brought it down to about nine and a half. It helped a little bit but not enough to get an implant.

Q: So was it determined whether or not it was successful?

A: It was unsuccessful.

Plaintiff further testified she obtained another opinion from dentist Dr. Kenneth Fieldstone, because "a lot of the dentists all know each other in this area." The trial court sustained defendant's objection to this comment and instructed the jury to disregard it.

In February 2004, plaintiff next treated with Dr. DiTuri, who extracted her front teeth and fit her with a permanent seven-unit fixed bridge denture. Dr. DiTuri "felt that the best plan for my dental situation would be, he wanted to rebuild my mouth because I was losing [] the function of my mouth." Defendant objected based on hearsay grounds, and the trial court agreed, sustaining the objection. Subsequently, plaintiff testified "[DiTuri] decided that a fixed partial denture would be the sturdiest and best device for my mouth." Defendant did not object.

At the conclusion of plaintiff's direct testimony, defendant moved for a mistrial based on the various hearsay statements, including the statement attributed to Dr. Mercurio that defendant must have done something wrong. Finding the hearsay statement inadvertent and "without conscious intent to circumvent the Rules of Evidence," the trial court denied the motion for mistrial and instructed the jury as follows:

You may recall the moment during the court of that testimony when a statement was attributed to her treating dentist, Dr. Mercurio[,] and on the basis of the objection which I sustained, I ordered that that comment be stricken from your minds, and I reiterate that. It is appropriate to strike that.

After the curative instruction, the trial court continued to explain hearsay is not proper evidence and should not be considered in deciding the standard of care for defendant.

Before trial, plaintiff and defendant stipulated to their respective expert's qualifications. Plaintiff presented expert testimony by Dr. Thomas Tagliani, a prosthodontist specializing in crowns, bridges, dentures, oral cancer cases, trauma, accidents, dental implants and treatment planning. Dr. Tagliani testified his knowledge of orthodontics arose from his involvement in a lot of complex cases in addition to some simple dentistry. And in those complex cases many times an orthodontist and/or an oral surgeon is necessary. I work in kind of a team situation and I've been doing so for a very long time, actually, we were taught to do that in dental school if you were motivated; and, certainly, in the prosthodontic training program . . . I'm not an orthodontist; however, I work with an orthodontist very closely on many of these cases.

Dr. Tagliani opined the loss of plaintiff's bone mass, leading to the loss of her teeth, was caused by a deviation from the appropriate standard of care and the life span of plaintiff's permanent dentures was five years. Dr. Tagliani testified defendant deviated from the standard of care by failing to take an adequate patient history, conduct x-rays or inspect plaintiff's teeth for pocketing, mobility, or other defects. He testified "[t]eeth in an adult that are somehow out of position [are] a slight red flag because it's those teeth that could be mobile or have problems. And you really want to look at that. You want to really probe." Dr. Tagliani concluded that this deviation caused the loss of plaintiff's upper front teeth and surrounding bone mass, which precluded implants and required a fixed bridge.

At the close of plaintiff's case, defendant moved to dismiss, based on plaintiff's unqualified expert opinion. Defendant claimed "Dr. Tagliani was not a specialist in orthodontics and could not give the jury reasons to create a fact question." The trial judge denied the motion in light of the pre-trial stipulation and because Dr. Tagliani rendered "an opinion that the defendant ha[d] in fact deviated from the orthodontic standards of care and the jury is entitled to give that whatever weight it deems appropriate subject to the information that defendant elicited in cross-examination."

Defendant, an orthodontist for forty years, testified on his own behalf. Defendant explained the general dentist making a referral is responsible for checking the vitality of teeth and gums of the patient so that he only receives "healthy people." Further, defendant related the extent of his initial examination of plaintiff's teeth, stating the gap was slight, the teeth were not mobile and no disease was detected, making x-rays unnecessary for the procedures planned for plaintiff.

Defendant's expert, Dr. Ralph Moore, is a general practitioner, not an orthodontist. He testified that the loss of plaintiff's teeth stemmed from a quickly developing bone physiology issue resulting from a combination of smoking, clenching, grinding, and noncompliance with the final phase of orthodontic treatment. After reviewing her prior history of dental treatment, Dr. Moore stated plaintiff showed evidence of periodonic disease with bone loss. Further, Dr. Moore testified the life span of plaintiff's final denture was ten to twenty years, noting the five-year period identified by Dr. Tagliani was the minimum.

At the close of evidence, defendant's motion for a directed verdict was denied. The trial judge charged the jury, reinforcing its prior instruction that "[a]ny testimony that I've stricken from the record is not evidence and should not be considered by you in your deliberations. This means that even though you may remember that testimony, you're not to use it in your discussions or deliberations in the jury room."

The jury returned a verdict for plaintiff awarding a total of $154,644.18, consisting of compensatory damages for past and future dental expenses, in addition to those for pain and suffering. Defendant moved for a new trial, again claiming plaintiff's expert was unqualified to render an opinion, and plaintiff's hearsay testimony, especially the remark attributed to Dr. Mercurio, warranted a mistrial. The court denied the motion, finding the "testimony[,] combined with other evidence offered during the plaintiffs' case[,] was sufficient to support a jury finding in favor of the plaintiff on the issue of liability." Regarding the hearsay statements, the trial court believed its curative "instruction was sufficient to remedy any prejudice caused by [the] statement," and thus was not grounds for a mistrial.

On appeal, defendant requests our review of these issues. We concur with the trial court's determinations and reject defendant's contentions of error.

In a medical malpractice case, a plaintiff must prove the applicable standard of care, typically via expert testimony. Adamski v. Moss, 271 N.J. Super. 513, 518 (App. Div. 1994). Deviations from the established standard of care must also be established by expert testimony, "as average jurors lack the 'requisite special knowledge, technical training and background' to make those determinations without an expert's assistance." Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 103 (App. Div.) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div. 1997)), certif. denied, 170 N.J. 205 (2001). N.J.R.E. 702 states: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

Expert testimony must be relevant to disputed issues in the case, N.J.R.E. 401; see Muise v. GPU, Inc., 371 N.J. Super. 13, 59-60 (App. Div. 2004), and "[t]he test of an expert witness's competency in a malpractice action is whether he or she has sufficient knowledge of professional standards to justify the expression of an opinion." Carey v. Lovett, 132 N.J. 44, 64 (1993) (citing Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)). "Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Ibid.; Rempfer v. Deerfield Packing Co., 4 N.J. 135, 141 (1950).

"When the subject matter of [expert] testimony falls distinctly within the province of a particular profession, the witness should generally be a licensed member of that profession." State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied., 127 N.J. 321 (1990); see also Suanez v. Egeland, 353 N.J. Super. 191, 196 (App. Div. 2002) (holding an expert with background in physics and mechanical engineering unqualified to give an opinion regarding injuries resulting from low-speed collisions). "It is for the jury to determine the credibility, weight[,] and probative value of the expert's testimony[,] and the opinion of an expert can rise no higher than the facts and reasoning upon which it is based." Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48 (App. Div. 1990) (internal citations omitted), modified on other grounds, 125 N.J. 421 (1991).

Defendant first asserts "[p]lantiff's expert's qualifications were so woefully inadequate as to render any verdict based upon them to be against the weight of the evidence because Dr. Tagliani was a prosthodontist and not an orthodontist, like defendant." Defendant contends the pretrial withdrawal of the in limine cross-motions challenging the parties' respective experts "did not constitute a stipulation by either party as to the accuracy, strength or weight of any of the opposing experts' opinions or qualifications."

Our review determines that the testimony offered by plaintiffs' expert could rationally support a finding in favor of the plaintiff. We conclude the attack on Dr. Tagliani's qualifications lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

Both parties withdrew any objections to the qualifications of their respective experts and allowed the court to instruct the jury that both were qualified in that regard. The stipulation was not limited as defendant suggests. Further, the court provided this instruction regarding the parties' stipulation, prior to Dr. Tagliani's testimony:

And consistent with or the stipulation of counsel, [] earlier discussed between counsel and the [c]court on this particular topic[,] I'm instructing the jury that the doctor has been stipulated to be able to testify as to his opinion in regarding the standard of care in matters pertaining to dentistry, as well as orthodontic practice in this case. And you are to consider those opinions as evidence . . . in this case.

Dr. Tagliani was cross-examined on his qualifications and experience, which showed the skills, knowledge, and training to allow him to testify as an expert. He properly recited the foundation for his opinion and acknowledged he was not an orthodontist. However, Tagliani possessed sufficient specialized knowledge to express an expert opinion and to explain the basis of that opinion. Hake v. Manchester Tp., 98 N.J. 302, 314 (1985). His testimony was relevant and addressed the standard of care and defendant's alleged deviation from that standard. Defendant's challenge goes to credibility, an issue properly left to the province of the jury. Rosenberg v. Tavorath, 352 N.J. Super. 385, 400-01 (App. Div. 2002). We discern no abuse of discretion in allowing Dr. Tagliani to testify as an expert and denying defendant's motion for a mistrial. Muise, supra, 371 N.J. Super. at 58.

Defendant's related challenge argues "Tagliani improperly gave an opinion outside the scope of his reports as to the adequacy of defendant['s] dental entrance form." At trial, Dr. Tagliani was shown defendant's new patient form and asked whether the form would have elicited an adequate medical or dental history. Defendant's objection that the entrance form exceeded the scope of the expert report, which addressed failure to "perform[] a proper diagnostic workup," was overruled.

A trial court has the discretion to exclude [e]xpert testimony that deviates from the pretrial expert report . . . if the court finds "the presence of surprise and prejudice to the objecting party." Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000). In New Jersey, "[i]t is well settled that a trial judge has the discretion to preclude expert testimony on a subject not covered in the written reports furnished in discovery." Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). As a result, an abuse of discretion standard of review is utilized in appellate oversight of a trial judge's decision to allow or to exclude such testimony. Velazquez, supra, 321 N.J. Super. at 576. In Westphal v. Guarino, [163 N.J. Super. 139, 146 (App. Div.), aff'd, 78 N.J. 308 (1979),] we identified a number of factors for a Law Division judge to consider in exercising his or her discretion . . . [including] (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. Ibid. [Conrad v. Robbi, 341 N.J. Super. 424, 440-441 (App. Div.), certif. denied, 170 N.J. 210 (2001).]

See also Mauro v. Raymark Indus., Inc., 116 N.J. 126, 145 (1989) (holding the trial court may exclude expert testimony on a subject not covered in the expert's written reports or any other discovery material).

The trial judge concluded defendant's entrance form was encompassed within the issue of a diagnostic "workup," an area that was the subject of the malpractice allegations. Allowing the expert's comments in this regard was not a surprise, and we reject defendant's claims of undue prejudice. "A party cannot claim to be surprised by expert testimony, when it contains 'the logical predicates for and conclusions from statements made in the report.'" Conrad, supra, 341 N.J. Super. at 441 (quoting Velazquez, supra, 321 N.J. Super. at 576).

In several points raised on appeal, defendant identifies hearsay statements by plaintiff, which he asserts were admitted in error. Generally, the statements relate to comments made by plaintiff's treating physicians and address the basis for treatment. The most significant item centers on plaintiff's testimony that Dr. Mercurio stated defendant "made a big blunder. He never took x-rays." Defendant argues the statement was so prejudicial it was incapable of being cured by a curative instruction. Further, the inclusion of the final instructions was "too little too late." Thus, the trial judge abused his discretion in not granting a mistrial. For the first time, defendant also contends the jury instruction should have included a charge on the net opinion rule. We disagree with both of these assertions.

"[D]uring a trial, inadmissible evidence may come to the attention of the jury." Khan v. Singh, 397 N.J. Super. 184, 202 (App. Div. 2007), aff'd, 200 N.J. 82 (2009). Generally, a limiting instruction is the accepted remedy for such an occurrence. In the event of significant prejudice caused by inadmissible evidence, trial courts may grant a mistrial. Bender v. Adelson, 187 N.J. 411, 433 (2006). This results only when the trial judge concludes a cautionary instruction will not overcome the prejudicial impact of the evidence. Tomeo v. N. Valley Swim Club, 201 N.J. Super. 416, 421 (App. Div 1985).

We give deference to the court making such a determination, which rests "'within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.'" Khan, supra, 397 N.J. Super. at 202 (quoting State v. Winter, 96 N.J. 640, 647 (1984)); see also Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 230 (2008) (stating "the appellate court must afford due deference to the trial court's feel of the case, with regard to the assessment of intangibles, such as witness credibility") (internal quotations omitted). Accordingly, a trial court's "denial of a mistrial will not be found erroneous on appeal unless there is a clear showing of mistaken use of discretion," Greenberg v. Stanley, 30 N.J. 485, 503 (1959), or where "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Absent evidence to the contrary, we presume juries follow curative instructions. Verdicchio v. Ricca, 179 N.J. 1, 36 (2004) (citing Williams v. James, 113 N.J. 619, 632 (1989); Winter, supra, 96 N.J. at 647). Here, the multiple instructions given by the trial judge effectively alerted the jury to ignore the inadmissible comments.

The trial court provided three curative instructions: first, immediately in response to defense counsel's objection; second, following the conclusion of plaintiff's direct testimony and the denial of defense counsel's motion for a mistrial; and third, in the final jury instructions. The second instruction after argument of the request for mistrial was detailed. The court stated:

Ladies and gentlemen, before we continue with cross-examination, the plaintiff in this case [ ] tried to elaborate a little bit about . . . something that took place earlier during direct testimony. You may recall . . . when a statement was attributed to her treating dentist, Dr. Mercurio[,] and on the basis of the objection which I sustained, I ordered that th[e] comment be stricken from your minds, and I reiterate that. It is appropriate to strike [it]. But I believe it is necessary [ ] to explain why . . . it [was] stricken, so you understand why you should give no weight to that particular comment.

First of all, it's hearsay. Our Rules of Evidence are clear that if someone[ ] [else's] statement is . . . attributed to [them], that person needs to be here to testify . . . because that statement may or may not have been given. It may not have been explained thoroughly and accurately. It may have been an entirely different context[. I]f something is said by a person it can be explored . . . through cross examination[, but] [y]ou can't cross-examine somebody . . . about what somebody else said[. O]ur rules say that information is unreliable and must be excluded. Obviously it wasn't preplanned that [it] be said by counsel; and therefore, there's no opportunity to prevent [the statement in] advance[.] It was not intended . . . to have [ ] statements by an individual not present in court presented to the jury[.] [In that case, the] proper solution is to call that witness and have that witness testify. There's nothing that would preclude the calling of Dr. Mercurio . . . for that [purpose].

So[,] for all of those reasons, ladies and gentlemen, you are to disregard and provide no consideration [to] any statement that may have been attributable [to Dr. Mercurio] about the appropriate standard of care . . . in this particular matter. You all understand that and I'm sure you can address that.

We determine Judge Kapalko's curative instructions were thorough and timely. The judge fully identified the errant comment without further prejudicing defendant by restating its substance, neutralizing any negative effect. Further, the judge reinforced these instructions in the full charge. In fact, we discern the only jury impression could be that the statement was improper, inappropriate, and must be ignored. We find no abuse of discretion.

Regarding the other identified statements repeating instructions allegedly given by various treating doctors, we note some remarks were not met with defendant's objection or request for a curative instruction. These are reviewed under the plain error standard. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 128 (2008); Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001). To warrant reversal, the error must be sufficient to raise a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached.

R. 2:10-2.

When defendant did object, the court sustained the objection and instructed plaintiff not to relate comments she was told. We do not take issue with the trial judge's handling of each of the instances cited. We discern no injustice inured to defendant, and the fairness of the trial was not compromised.

Similarly, we reject defendant's claims of error in the court's discretionary exclusion of his attempt to cross-examine plaintiff using a statement she made during depositions that Dr. Mercurio said, "I don't know how we missed this" when reviewing her x-rays, suggesting the difficulty of diagnosing her problem. A trial judge's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); see also Pressler, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2010). Guided by this standard, we conclude the evidentiary determination was proper.

For the first time on appeal, defendant suggests Dr. Mercurio's alleged comment was admissible as a statement against interest. See N.J.R.E. 803(c)(25). We decline to consider this contention as [i]t is a well-settled principle that our appellate courts will decline to consider questions of issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest. [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation omitted).]

Defendant also argues three statements made by plaintiff's counsel during summation warrant a new trial. Specifically, defendant argues plaintiff's counsel "twice mischaracterized [plaintiff's] life expectancy" as 38 years, rather than the 32 years correctly instructed by the trial court. Another comment was that all other doctors treating plaintiff took x-rays except for defendant, without mentioning the other doctors were not orthodontists. No objection was made. The third comment disparaged defendant and was met with an objection. We address our standard of review generally and as applied to these three instances of alleged error.

As we previously noted, the first two contentions, not preceded by an objection or request for curative instruction at trial, are reviewed under the plain error rule. Fertile, supra, 169 N.J. at 493; R. 1:7-2. We note the "failure to object may be a reflection of counsel's belief that the statements are not prejudicial." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004); see Hudgins v. Serrano, 186 N.J. Super. 465, 470 (App. Div. 1982) (recognizing that trial strategy or other reasons may cause experienced counsel not to object and merely overlook an omission or inadvertence on the part of the trial judge).

However, the trial judge properly acted to remove any prejudicial impact by fulfilling his obligation to correct the misstatement. The trial court correctly stated the life expectancy at 32 years. Further, the judge gave the jury the general instruction that the attorneys' comments should be ignored if they conflicted with the court's instructions. Plaintiff's counsel's misstatement did not warrant a new trial.

The second statement about other physicians taking x-rays was supported by plaintiff's testimony. The remarks were not inappropriate and no plain error is shown.

In analyzing the third challenge, we need to provide additional factual background. In summation, defense counsel stated: "I have never met anyone who enjoyed going to the dentist. Maybe that goes double for orthodontists." Plaintiff's counsel referring to those remarks stated "Isn't that true? Couldn't you imagine going to see Dr. Scott? Wouldn't you dread to have to go see a dentist?" Defendant objected. The trial judge immediately corrected the statement and clarified the context of the defense statement:

Ladies and gentlemen, with regard to the comments attributable to [defense counsel], it is my clear recollection that the context in which that statement was given to the jury was to the effect that people dread going to the dentist, not to his client in particular as if it were a[] [re]flection on his client's abilities; and, therefore, to the extent that there was any suggestion that it would be characterized as a comment about his client's competency and capabilities, that should not be considered as such. Evaluate this case and the performance of the doctor based upon the facts of this case.

Defendant asserts the instructions were "not sufficient to erase the prejudice caused by this inflammatory comment."

In general, counsel has "broad latitude in closing arguments . . . , however, [argument] should be centered on the truth and counsel should not 'misstate the evidence nor distort the factual picture.'" Tartaglia, supra, 197 N.J. at 128 (quoting Bender, supra, 187 N.J. at 431). "[A] clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden, supra, 370 N.J. Super. at 398. As we have discussed, reversal is warranted only upon a showing that the offending comment raises a reasonable doubt as to whether it "'led the jury to a result it otherwise might not have reached.'" Neno v. Clinton, 167 N.J. 573, 586 (2001) (quoting State v. Hightower, 120 N.J. 378, 410 (1990)).

Defendant's arguments are not persuasive and do not sustain a determination that the trial court abused its discretion in issuing a curative instruction rather than granting a new trial. The clear and concise curative instruction, given by Judge Kapalko immediately after the objection, adequately removed any taint or prejudice.

Finding none, we reject defendant's request for a new trial bottomed on "the cumulative effect of the trial court's errors." Certainly, "a trial is a dynamic organism which can be desensitized by too much error or too much curative instruction." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998). Our review of this record, however, determines, this is not such a case.

Affirmed.


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