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Timothy W. Gonteski, As Administrator Ad Prosequendum of the Estate of v. Emergency Physician Associates


August 24, 2011


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1104-03.

Per curiam.


Argued March 30, 2011

Before Judges Axelrad, Lihotz and J. N. Harris.

Plaintiff Timothy Gonteski, who is the Administrator Ad Prosequendum of the Estate of Cheryl Gonteski, his deceased wife (decedent), filed this wrongful death action against defendant Emergency Physician Associates of South Jersey, P.C. (EPA) and others. Decedent sought treatment from a hospital emergency room (ER) operated by EPA. She was treated and released. Shortly thereafter she died.

Prior to trial, plaintiff settled his claims with the attending ER physician, Tarun Ganguly, D.O., who was employed by EPA, and other defendants, leaving EPA as the sole remaining defendant. Plaintiff called Dr. Ganguly as a witness and introduced the settlement agreement he executed, which admitted his negligence in failing to diagnose decedent's condition. On cross-examination, Dr. Ganguly was permitted to retract any belief that he had been negligent and explain why he executed the settlement that stated as such. The jury returned a verdict of no cause of action. Plaintiff appeals from the final order memorializing the verdict and the order denying his motion for a new trial.

Plaintiff argues Dr. Ganguly's stipulation addressing the issues of negligence and causation binds his employer, EPA, and EPA should have been barred from contesting that fact. In the alternative, plaintiff contends the court erred in allowing Dr. Ganguly's testimony that conflicted with and repudiated the written settlement. Finally, plaintiff challenges the form of the verdict sheet submitted to the jury.

We have reviewed the arguments presented on appeal in light of the record and the applicable law. We affirm.

These facts are found in the trial record. On April 19, 2001, decedent, who was age thirty, visited the Rancocas Hospital Emergency Room complaining of a severe headache. Decedent was attended to by Dr. Ganguly. Decedent told Dr. Ganguly she had experienced a headache, nausea, and neck pain for approximately six months and the symptoms had worsened on the day she sought treatment. She had been taking Flonase and Advil, which did not abate the pain, and expressed she had not experienced vomiting, fever, chills, or upper respiratory infection symptoms.

Dr. Ganguly performed a "head to toe" examination of decedent. He noted her eyes were equally round and reactive to light, her heart had a regular rate and rhythm, and her lungs were normal. Next, Dr. Ganguly performed a neurological examination, testing decedent's pupils, cranial nerves, her grip strength and ability to walk, smile, frown, and shrug her shoulders. All of decedent's test results were "[w]ithin normal limits."

Dr. Ganguly did not believe a CT scan was necessary, stating: "I didn't feel that it was necessary, based on my physical examination, based on her symptoms, based on the nonneurologic finding, and based on how she responded to my treatment." Dr. Ganguly's impression of decedent's symptoms was

She had a headache that was pretty benign.

I wanted to do some testing to make sure there [wa]s no acute infectious process going on. So I ordered some blood work .; that was my first priority, first differential was migraine, because it's the most common cause of headaches. So I gave her some medication to treat [] her migraines, and [gave] her some fluids for the possibility of [de]hydration causing headaches.

After medications were administered (Reglan and Toradol), decedent reported she was feeling better. As Dr. Ganguly observed decedent, she appeared awake, alert and oriented; therefore, he ordered her discharge. Defendant did not return to the emergency room or see her family physician.

On April 23, 2001, decedent began employment at a local delicatessen working with Donna Endicott, her husband's cousin. About an hour after Endicott began training, decedent complained of a headache, despite the fact that she had taken medicine. Five minutes later, decedent told Endicott she could not see. Endicott took her to the back room to allow her to sit down. Shortly thereafter, decedent became unresponsive and began vomiting.

Decedent was transported by ambulance to Rancocas Hospital and then to Thomas Jefferson University Hospital where an MRI of her brain revealed she suffered a bleeding in her brain which leaked into the subarachnoid space through the ventricle, destroying brain tissue and causing destructive changes in her brain functioning. Decedent's condition failed to improve and she passed away on May 3, 2001.

Plaintiff's initial action named ten defendants, many of whom were dismissed or settled plaintiff's claims. By 2009, the only defendants remaining were EPA and Dr. Ganguly. On May 11, 2009, plaintiff and Dr. Ganguly stipulated to the terms of settlement, which provided in pertinent part:

1. Plaintiff has been offered $675,000.00 in partial settlement of plaintiff's claim against [Dr. Ganguly] and such offer shall remain open until the jurors begin deliberation . . . .

2. [Dr. Ganguly] stipulates for the purpose of the above legal action as to liability and proximate causation in connection with his care of [decedent].

3. Plaintiff stipulates that in the event of a verdict against [Dr. Ganguly], plaintiff will not execute against Dr. Ganguly or seek satisfaction of any verdict in excess of $675,000.00 against Dr. Ganguly personally or Medical Professional Mutual Insurance Company and/or Pro Select Insurance Company, but will instead seek satisfaction of any such verdict against Dr. Ganguly from [EPA] and their insurer who are vicariously responsible for the actions of Dr. Ganguly.

In pre-trial motions, the parties argued about the use and scope of the stipulation. Plaintiff asserted the stipulations on negligence and causation were binding on EPA because Dr. Ganguly was its agent. Defendant contested this position, asserting Dr. Ganguly's settlement was beyond the scope of his employment and therefore EPA should be permitted to challenge the issues of negligence and causation. On July 1, 2009, after oral argument, the court ordered "Dr. Ganguly's [s]tipulation to liability and causation does not preclude [EPA] from contesting liability and causation[.]" Plaintiff released Dr. Ganguly and his insurance companies from liability in the litigation, accepting consideration of $675,000. The release stated, "It is further expressly agreed and understood that as further consideration, [Dr. Ganguly] stipulates to liability and proximate causation in connection with his care of [decedent] on April 19, 2001."

Trial commenced on February 22, 2010. Plaintiff presented testimony from John Philip Greenberg, M.D., a neurologist, who opined decedent "suffered a sentinel, an early warning bleed from an arteriovenous malformation [(AVM)]*fn1 in the left thalamus central nucleus of her brain" when she went to the emergency room. He concluded Dr. Ganguly's "failure to take steps to properly diagnose the AVM on the 19th of April 2001, was the major factor in her suffering a catastrophic terminal bleed on the same AVM four days later, which was the direct cause of her death 11 days thereafter." When confronted with decedent's autopsy report, which did not note an AVM in decedent's brain, Dr. Greenberg testified his opinion remained unchanged, explaining

Small AVM bleeds that kind of blows itself apart, little bits and fragments of blood vessels become part of the . . . blood clot itself.

And over a period of days, they'll degenerate to the point where you won't even find them [eleven] days later, at the time of a[n] autopsy.

EPA's neurology expert, Dara Jamieson, M.D., rejected such a theory stating "the complex of symptoms" experienced by decedent on April 19, 2001 was "not consistent with bleeding inside the brain, and specifically not consistent with bleeding in the thalamus in the brain." According to Dr. Jamieson, if decedent experienced bleeding in the thalamus on April 19, 2001 in sufficient amounts to get into the subarachnoid space as plaintiff suggests, she would have been in a coma similar to what occurred on April 23, 2001. Dr. Jamieson opined decedent died as a result of a spontaneous bleed in her brain from an unknown cause, not an AVM, emphasizing that "a patient like [decedent], who comes into the ER and has literally no neurologic problems or deficits at all" could not have a bleed inside her thalamus.

Plaintiff called Dr. Ganguly as a witness. During direct examination, the following colloquy took place:

Q: Doctor, let's get the first thing out of the way, initially. Did you sign a stipulation whereby you agree[d] that you were negligent in this case?

A: Yes.

Q: And did you sign a stipulation, which is a stipulating agreement where you agree[d] that your negligence was a cause, and the proximate cause of [decedent]'s death?

A: Yes.

On cross-examination, Dr. Ganguly reaffirmed a statement he made in discovery, prior to executing the settlement agreement, asserting it remained true. That statement was: "he met each and every applicable standard of care in th[e] treatment of [decedent and] . . . has no opinion as to the cause of [decedent]'s death, as [he] . . . was not involved in her treatment after April 19, 2001." When questioned how that statement could be reconciled with the provisions of the stipulation agreement, Dr. Ganguly testified the lengthy litigation was very stressful and he signed the stipulation agreement because he wanted the litigation to end. When asked: "But you didn't believe when you signed it that your care and treatment of [decedent] on April 19, 2001 was negligent, did you?" Dr. Ganguly responded, "No." It is noted plaintiff's objection to the question was overruled.

On redirect, plaintiff again asked Dr. Ganguly whether he believed he was actually negligent when he entered into the stipulation agreement. He replied he signed the stipulation agreement because "it was putting a mental [and] physical pressure on me and my family, . . . and causing harm of my peace. So one of the reasons for stipulation of the agreement was to get peace for me and for my family."

On March 5, 2010, the jury returned a verdict in favor of defendant. Its decision was accompanied by the written responses to the questions posed on the verdict sheet as follows:

THE COURT: "When Dr. Tarun Ganguly treated [decedent] on April 19, 2001, was he acting as an employee as opposed to an independent contractor of defendant, EPA; yes or no? [FOREPERSON]: Yes.. . . .

THE COURT: Okay. And, so, you went to number two. "Did Dr. Ganguly deviate from the accepted standards of medical practice; yes or no?" [FOREPERSON]: Yes.. . . .

THE COURT: Okay. Three, . . . "Did [decedent] have an AVM that was leaking blood, a sentinel bleed, on April 19, 2001, yes or no?" [FOREPERSON]: No.

An order of judgment of no cause of action was entered in favor of defendant and the complaint was dismissed with prejudice.

On March 25, 2010, plaintiff moved for a new trial. Following oral argument, the trial court denied plaintiff's motion on May 14, 2010. This appeal ensued.

On appeal, plaintiff challenges the trial court's denial of his request for a new trial identifying three issues of claimed error: (1) allowing defendant to contest liability and causation after Dr. Ganguly stipulated as to liability and proximate causation in connection with his care of decedent; (2) admitting Dr. Ganguly's testimony that contradicted the terms of the stipulation of settlement regarding liability and proximate cause; and (3) using a special interrogatory which asked whether decedent had a specific medical condition instead of asking whether Dr. Ganguly's negligence increased the risk of harm and was a substantial factor in causing decedent's death.

A trial court may grant a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law."

R. 4:49-1(a). See also Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994). In correcting any clear error or mistake of the jury, the trial court may not substitute its judgment for that of the jury merely because he or she would have reached the opposite conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Thus, a trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). See also Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

In our review of a trial judge's decision to grant or deny a new trial motion, we apply the same standard. Dolson, supra, 55 N.J. at 7; R. 2:10-1. We must determine whether a miscarriage of justice occurred, deferring only to the trial court's determination of "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); Baxter, supra, 74 N.J. at 597-98; Dolson, supra, 55 N.J. at 7.

Plaintiff boldly asserts, "Dr. Ganguly's stipulation as to [liability] and proximate cause had the same effect and consequences as a jury's verdict against Dr. Ganguly concerning those elements." Building on this position, plaintiff argues that because Dr. Ganguly was EPA's employee, and employers are vicariously liable for their employee's torts, once plaintiff proved the employer-employee relationship, EPA was bound by Dr. Ganguly's stipulation that his negligence was a proximate causation of decedent's death. We disagree with plaintiff's syllogistic conclusion.

It is axiomatic that "an employer is vicariously liable for the torts of an employee if the employee was acting within the scope of his or her employment at the time the tort was committed." O'Toole v. Carr, 345 N.J. Super. 559, 566-67 (App. Div. 2001) (quoting DiCosala v. Kay, 91 N.J. 159, 169 (1982)). An employee acts within the scope of his employment "if the action is 'of the kind [the employee] is employed to perform; it occurs substantially within the authorized time and space limits; [and] it is actuated, at least in part, by a purpose to serve the master.'" Ibid.

The conclusions plaintiff attempts to draw from these principles are flawed. Dr. Ganguly was employed by and treated decedent while working for EPA. Plaintiff is correct that if Dr. Ganguly's negligence were proven, EPA would be vicariously liable. Although Dr. Ganguly's admissions are evidence of his negligence, the suggestion that they are conclusive is incorrect.

Generally, "a release of one tortfeasor will not release others who may also be liable to plaintiff for [the] harm unless the release" so intends. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 560 (1980) (citations and quotations omitted). Similarly, "a release of a defendant will release him only in respect of those claims by those parties as are actually or intended to be encompassed thereby." Sweeney v. Sweeney, 405 N.J. Super. 586, 596-97 (App. Div. 2009) (quoting Goncalvez v. Patuto, 188 N.J. Super. 620, 629 (App. Div. 1983)). As a result, "when liability of one defendant is wholly vicarious, settlement with the primarily liable defendant may not necessarily release the other." Cartel, supra, 81 N.J. at 559.

Here, EPA was not a party to either the settlement agreement or release. Further, Dr. Ganguly did not execute the release as an agent of EPA. Consequently, EPA cannot automatically be bound by the assertions and agreements Dr. Ganguly made with plaintiff. See Gershon, Adm'x Ad Prosequendum for Estate of Pietroluongo v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004) (holding "[a]n exculpatory release agreement, like any contract, can only bind the individuals who signed it").

EPA was free to rebut plaintiff's evidence of negligence with other proffers. It did so with expert testimony and in cross-examining Dr. Ganguly. We find no error in the trial judge's admission of defense evidence on liability or causation. Accordingly, the trial court did not err in denying plaintiff's motion for a new trial on this ground.

Plaintiff also argues that even if Dr. Ganguly's stipulation were not binding on EPA, the trial judge erred in allowing him to contradict the substance of the stipulation, stating "he did not actually believe that he was negligent and caused harm[,]" thus undermining the stipulation and opening to question his liability. We reject this contention.

Dr. Ganguly was called by plaintiff as a fact witness. Plaintiff asked whether he stipulated he was negligent, opening the door for an inquiry on cross-examination of whether he actually believed he was negligent when he signed the stipulation. In ruling on plaintiff's objection to this line of testimony, the court stated:

THE COURT: I'm allowing you to ask this gentleman what he thought when he signed the stipulation. This stipulation is a heck of a sword by the plaintiff. I think that the defendants are allowed to . . . try to erode the bona fides of that statement. I don't think what somebody thinks a year or two later [] is relevant to the issue before us in this case at this time. So you can ask what he thought at that time, and how he could say that in response to what he said in his interrogatory, and just things of that nature, but you are not to ask him anything beyond the date of the statement.

We discern no error in the trial court's determination. First, the statements elicited on direct and cross-examination were not impermissible legal conclusions. See Carey v. Lovett, 132 N.J. 44, 64 (1993) (stating a doctor who is being sued for malpractice may testify as an expert). They went directly to Dr. Ganguly's motivation in executing the stipulation, an area that is ripe for cross-examination. Plaintiff's dissatisfaction with the witnesses' responses does not make the line of inquiry inadmissible or impermissible.

Finally, plaintiff asserts the court improperly included a special jury interrogatory, over objection, rather than using the Model Jury Charges on causation. Additional background aids understanding of this issue.

Special interrogatory number three asked the jury to determine: "Did [decedent] have an AVM leaking blood (sentinel bleed) on April 19, 2001?" On appeal, plaintiff argues he sought use of the standard question "whether the deviation from the standard of care increased the risk of harm and was a substantial factor in reducing decedent's life expectancy." Plaintiff maintains the trial court's use of the specific charge "forced the jury to make a factual determination as to what precise medical condition [] decedent was suffering [from that caused her death], rather than simply determining whether Dr. Ganguly's negligence increased the risk of harm and was a substantial factor in causing the harm[.]"

No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Nevertheless, erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

While it is true that plaintiff's proposed jury interrogatories more closely followed the model charges, we disagree that counsel objected to the interrogatories proposed by the court. The proposed jury interrogatories were provided to counsel prior to summations. Following the day's trial testimony, a charge conference was held in chambers. Apparently issues were discussed and resolved and the charge was given the following morning "just the way [the judge] said [he would.]" When the jury was excused, objections by the parties were placed on the record. At that time, plaintiff did object to the fact that the first interrogatory asked whether Dr. Ganguly was an employee of EPA rather than leading with the issue of negligence. Thereafter, plaintiff offered other objections to the jury charge itself but did not object to the third proposed interrogatory.

Our review of this issue is guided by the plain error standard. R. 2:10-2. See Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 128 (2008); Das v. Thani, 171 N.J. 518, 525 (2002). Plain error occurs when the error prejudicially affects the substantial rights of a party, and is sufficiently grievous to convince us that the error possessed a clear capacity to bring about an unjust result. Caldwell, supra, 136 N.J. at 432; R. 2:10-2. A failure to object deprives the court of an opportunity to make a prompt correction and additionally suggests counsel did not perceive a potential for prejudice from the error. Aly v. Garcia, 333 N.J. Super. 195, 205 n.2 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001).

We reject plaintiff's contention that the interrogatory at issue defined plaintiff's case "too narrowly." Plaintiff's entire theory of liability centered on the fact that the AVM went undiagnosed by Dr. Ganguly at the ER visit. Moreover that fact -- whether plaintiff suffered from an AVM -- became the pivotal dispute between the experts. The experts differed on whether decedent suffered an early warning bleed from an AVM, which led to decedent's terminal bleed days later. The defense challenged that an AVM existed at all.

We do not find the inclusion of the special interrogatory prejudicially affected plaintiff's substantial rights or otherwise had a clear capacity to bring about an unjust result.

R. 2:10-2.


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