September 12, 2011
MARY L. WILLIAMS, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDEM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF DERRICK R. WILLIAMS, DECEASED, PLAINTIFF-RESPONDENT,
HUDSON COUNTY CORRECTIONAL CENTER, HUDSON COUNTY DEPARTMENT OF CORRECTIONS, NURSE ALICE MAMMARIL,*FN1 AND NURSE EDITHA*FN2 RESURECCION,*FN3 DEFENDANTS-APPELLANTS, AND OSCAR AVILES, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE HUDSON CORRECTIONS CENTER OR CHIEF OF CORRECTIONS, KEVIN ROBERTS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE DEPUTY DIRECTOR OF THE HUDSON COUNTY CORRECTIONS CENTER, DR. LAURENCE WYNN,*FN4 INDIVIDUALLY AND IN HIS OFFICIAL AS A PHYSICIAN AT THE HUDSON COUNTY CORRECTIONS CENTER, HUDSON COUNTY CORRECTIONS OFFICERS SGT. ANTHONY CRAWFORD, LT. CONYERS, AND C/O GLOVER,*FN5 DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5383-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 5, 2011
Before Judges Fisher, Sapp-Peterson and Fasciale.
Defendants, Hudson County Correctional Center (Center), Hudson County Department of Corrections, Alice Mammaril and Editha Resureccion, appeal from a jury verdict awarding plaintiff, Mary L. Williams, damages on her survivorship and civil rights claims stemming from the death of her son, forty-four-year-old Derrick R. Williams (Williams), who was an inmate at the Center at the time of his death. Defendants also appeal from the trial court order awarding counsel fees and costs to plaintiff as a prevailing party on her civil rights claim. The jury found defendants were negligent and violated Williams's civil rights. We affirm.
Williams was arrested on narcotics charges on November 30, 2004 and admitted to the Center. Dr. Graciano Zara performed a physical and neurological examination upon defendant during which he told the doctor that he used drugs. The examination was unremarkable except for a slightly raised pulse, which the doctor believed may have been attributed to prison anxiety. Williams's weight, upon admission, was 150 pounds. Dr. Zara prescribed a three-day supply of withdrawal medications. Williams's infirmary chart indicated that he picked up medication for one day.
At approximately 4:30 p.m. on December 6, Williams approached officers at their glass-enclosed station and, using sign language that was apparently commonly known within the Center, asked for medical help. He banged on the glass, but the correction officers did not respond. Fellow inmate Anthony Vega saw Williams draw an "M" in the air, which meant that Williams wanted to go to the infirmary. He also saw Williams cross his arms over his stomach, which meant that he was in pain, and place his fist in his mouth to indicate he was vomiting. The officers still did not respond. Williams appeared too weak to continue his efforts and another inmate took a chair over to him so that Williams could be seated while Vega also banged on the glass to get the officers' attention. Despite these efforts, Williams was not taken to the infirmary for medical care. Rather, he was returned to his cell around 10:30 p.m. and locked in.
Other inmates continued to try to get help for Williams by banging on their cell doors. At 12:35 a.m., Correction Officer Nathaniel Glover escorted Williams to the infirmary. He testified that Williams walked well and required no assistance. Vega, however, who was watching from his cell, disputed Officer Glover's observations. According to Vega, Williams walked slowly while bent over and holding his stomach. He also saw that the seat of Williams's pants was wet.
While walking to the infirmary, Glover testified that Williams told him he was "kicking," a term for withdrawing from heroin usage, and wanted some methadone. Williams was at the infirmary for approximately five minutes. There is no record of what, if any, treatment was administered to Williams at that time, and Glover was unable to say whether Williams received any treatment.
At 5:30 a.m. on December 7, Glover took Williams back to the infirmary because he realized that Williams had a problem. Once again, Williams's visit was brief and undocumented. Glover returned Williams to his cell and testified that he did not see any facial injuries on Williams at that time. Around 9:20 p.m., Williams told Theresa Brokow, the nurse who was administering medications to inmates, that he was experiencing withdrawal symptoms, could not "move," and did not "feel good." Williams appeared very weak and possibly dehydrated to her, and when she saw that he was unable to get up from the floor, she called a code white, alerting Center personnel that there was a medical emergency.
Correction officers placed Williams on a stretcher and removed him to the infirmary where he remained throughout the night. Nurse Brokow did not do a physical assessment of Williams before he was taken to the infirmary, assuming that he would be examined once he was admitted to the infirmary.
Nurse Editha Resureccion, who responded to the code white and accompanied Williams to the infirmary, checked his vital signs and found that Williams's pulse and blood pressure were significantly elevated. She left him on the stretcher in the medical waiting area for observation. She took no medical history from Williams and performed no further nursing assessment. In addition, she prescribed no medication and did not contact the on-call physician. Instead, at 10:30 p.m. she determined that since Williams did not appear to be in distress and was not voicing any complaints, he was more than likely experiencing withdrawal symptoms. Therefore, she believed that he could be returned to his cell. When Williams took a few steps towards the infirmary door, he collapsed, striking his head and face. Nurse Resureccion testified that Williams appeared dazed and was non-verbal, but she observed no visible injuries to Williams as a result of the fall. She admitted Williams to the infirmary, a measure taken only in cases of serious medical need. She did not physically examine Williams, check his vital signs, administer any medication, or contact Dr. Zara, the on-call physician. As the end of her shift approached, Nurse Resureccion did not check on Williams's condition or convey his history and condition to any nurse on the next shift. She wrote in Williams's chart that he had been brought to the infirmary on a code white, that he was suffering from withdrawal, and that he had taken a fall, from which he had suffered no ill effects.
Alice Mammaril, another nurse on duty that evening, had minimal contact with Williams. She checked on him at 1:00 a.m. to confirm that he was still breathing and she noticed around 5:00 a.m. that he had eaten some of his breakfast. She also wrote, at Williams's request, a note excusing him from a court appearance later that day. She did not perform a physical examination or any other nursing assessment upon Williams. She was aware, however, that something was wrong with Williams and wanted him to be seen by a doctor, although she did not take any action to ensure that he was seen by a physician. For the remaining six and one-half hours of her shift, she did not personally attend to Williams.
Correction Officer Shaler Jackson was on duty on December
8. He conducted rounds that included the infirmary. He recalled that around 9:30 a.m., he observed Williams seated on his bunk bed, and when he asked whether Williams had any laundry, Williams shook his head.
Dr. Zara arrived at the Center around 10:00 a.m. on December 8, and immediately began assisting Dr. Laurence Wynn, who had been covering for him while he attended a conference. Dr. Wynn, however, did not start his rounds in the infirmary. Instead, he commenced seeing inmates for sick call. Dr. Wynn testified that he was not made aware of Williams's presence in the infirmary or that he needed to be seen by a doctor. When Dr. Zara joined Dr. Wynn at sick call, he was unaware that infirmary rounds had not yet been made and was also unaware of Williams's overnight admission into the infirmary.
Later on the morning of December 8, around 11:15 a.m., an inmate worker notified Nurse Mammaril that Williams was "unresponsive." She immediately ran to Williams's infirmary cell and confirmed he had no pulse and was not breathing. She initiated CPR, to no avail. Dr. Wynn declared Williams dead at 11:35 a.m. Photographs taken of Williams shortly thereafter showed that his trousers were on backwards and inside out, there were stains on his undershirt, and there were no sheets or pillows on his mattress, which was lying on the cell floor.
An autopsy performed the next day revealed the cause of Williams's death as a perforated duodenal ulcer and peritonitis. His weight, at the time of his death, was reported as 136 pounds. His body also displayed several bloody cuts and scrapes around the left eye.
At trial, plaintiffs presented two nursing experts, Carmen Toca and Louella McIntosh, both of whom testified that the nursing care deviated from acceptable standards of nursing care and violated the Center's jail protocols for the nursing staff. Dr. Louis Roh, a forensic pathologist, testified that once Williams's ulcer perforated, bacteria-laden material and other digestive fluids leaked into his abdominal cavity, causing inflammation of the entire cavity or peritonitis. Dr. Roh explained that in response to this infection, Williams's body created one and one-half liters of pus, which eventually thickened, grew sticky, and caused the organs in his abdomen to adhere and ultimately shut down. He noted that Williams also experienced some fat necrosis or auto-digestion around his intestinal tract. Additionally, Williams choked on his own vomit, as evidenced by the digestive juices found in his lungs.
According to Dr. Roh, as a result of the initial perforation, Williams would have experienced a certain level of pain which would then intensify and ultimately become unbearable as a result of the inflammation, accumulation of pus and adhesions. Based upon the amount of pus and the adhesions in Williams's body, along with the occurrence of fat necrosis, Dr. Roh estimated that Williams suffered from peritonitis for at least twelve hours, with the initial perforation occurring twenty-four hours earlier. In total, Dr. Roh opined that Williams suffered for at least thirty-six hours. In addition, Dr. Roh testified that when Williams's intestines became immobilized, he would have experienced nausea, vomiting and diarrhea before going into shock and finally dying. He expressed disbelief that Williams could have been examined at 1:00 a.m. on December 8 and found to be perfectly normal.
Plaintiff also presented Dr. Edward Spector, a specialist in emergency medicine. In his opinion, it was "inconceivable" for medical professionals to mistake the symptoms of an acute abdomen with those of heroin withdrawal. He explained that a patient withdrawing from heroin is typically restless and agitated, with an intermittently crampy but soft abdomen, consistent bowel sounds and occasional diarrhea. By contrast, a patient with peritonitis is usually unwilling to move due to the immense pain emanating from his or her rigid abdomen from which no bowel sounds can be heard. Moreover, Dr. Spector testified that there was no reason for the nurses to have considered heroin withdrawal as a possible explanation for Williams's condition since, assuming Williams had a moderate four-bag-a-day heroin habit, his symptoms would have peaked three days after his last use of the drug, which Williams reported during his intake physical was November 30, the date of his arrest. Therefore, by December 6, when Williams first sought medical attention, Dr. Spector believed Williams's heroin withdrawal symptoms should have peaked and subsided. Further, Dr. Spector asserted that basing a diagnosis on information that was one-week old was not in accordance with the standard of care.
Dr. Spector opined that Williams's ulcer perforated at approximately 4:20 p.m. on December 6, when he first sought medical assistance. He further believed that Williams went into septic shock starting at 9:20 p.m. on December 7, when he mistakenly complained to Nurse Brokaw that he was experiencing drug withdrawal and collapsed to the ground. Dr. Spector stated that Williams had to have been in agony for hours, judging by the amount of pus in his abdomen.
Dr. Spector maintained that the seriousness of Williams's condition could have been readily detected and his death prevented had a proper examination of his abdomen been conducted and had his fluctuating vital signs been recorded, or if he had been sent to the hospital for a CAT scan after he fell and exhibited an altered mental state. He concluded the attending nurses failed to: (1) properly assess Williams's condition; (2) objectively rule out inappropriate diagnoses; (3) document Williams's symptoms and vital signs; (4) communicate with each other regarding Williams's condition and needs; (5) contact a doctor; and (6) send Williams to the hospital. Dr. Spector expressed the opinion that the nurses were totally insensitive to Williams's condition and essentially rendered no medical care to him. Because of this lack of care, he opined that Williams suffered from incredible pain as his situation gradually worsened.
Defendants presented an expert on damages only, Dr. Michael Disciglio, an internist, who testified that Williams did not experience any significant pain and suffering prior to his death. In his opinion, had Williams been in excruciating pain, he would not have been able to bang on his cell door, walk to the infirmary, eat breakfast, or sit up in bed, as had been the testimony of witnesses. Dr. Disciglio opined that the location of the perforated ulcer resulted in a "slow leak," which "smoldered" for many hours and caused Williams mild discomfort. Under cross-examination, however, he acknowledged that a perforated duodenal ulcer almost always presents with acute pain and that fat necrosis also causes pain.
The jury awarded a $600,000 verdict on plaintiff's survivorship claim, a $225,000 verdict on her civil rights claim, and the court awarded plaintiff $319,152 in counsel fees and costs. The court denied defendants' motion for a new trial, and the present appeal followed.
On appeal, defendants raise the following points for our consideration:
THE JURY VERDICT SHEET ERRONEOUSLY ALLOWED THE JURY TO ASSESS LIABILITY AGAINST THE DEFENDANT NURSES FOR THE SAME ACTS UNDER MUTUALLY EXCLUSIVE THEORIES.
A. THE TRIAL COURT MISAPPLIED THE DELIBERATE INDIFFERENCE AND SUBJECTIVE KNOWLEDGE STANDARD.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY BARRING DEFENSE COUNSEL FROM REFERENCING AND ELICITING TESTIMONY REGARDING DECEDENT'S COMPLAINTS ABOUT HIS HEROIN WITHDRAWAL. POINT III
PLAINTIFF FAILED TO PROVE PROXIMATE CAUSE.
A. PLAINTIFF FAILED TO PRODUCE EXPERT TESTIMONY DEMONSTRATING THAT THE COUNTY DEFENDANTS' NEGLIGENCE WAS THE PROXIMATE CAUSE OF DECEDENT'S PAIN AND SUFFERING.
B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON PROXIMATE CAUSE WHEN A PRE-EXISTING CONDITION EXISTS.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY PERMITTING PLAINTIFF'S COUNSEL TO INCLUDE IMPROPER AND INFLAMMATORY COMMENTS THAT WERE OUTSIDE THE RECORD IN HER OPENING AND CLOSING STATEMENTS.
A. RACE AND ECONOMIC STATUS.
B. DECEDENT'S WEIGHT LOSS.
C. JAIL CONDITIONS.
D. CONSPIRACY TO COVERUP DECEDENT'S DEATH.
E. PLAINTIFF'S COUNSEL CONFUSED THE JURY ABOUT CLAIMS AND ASKED THE JURORS TO IMPERMISSIBLY PERSONALIZE THE CASE.
F. THE TRIAL COURT'S FAILURE TO CURE THE ERRORS RESULTED IN UNFAIR PREJUDICE.
G. THE DAMAGE AWARD IN COMPARISON TO THE LENGTH OF TIME OF PURPORTED PAIN AND SUFFERING BY THE DECEDENT SHOWS THE JURY'S INTENT TO PUNISH THE DEFENDANTS, NOT COMPENSATE THE PLAINTIFF.
THE CUMULATIVE ERRORS BY THE TRIAL COURT WARRANT REVERSAL OF THE VERDICT, WHICH WAS GROSSLY EXCESSIVE RESULTING FROM PARTIALITY AND PREJUDICE.
THE TRIAL COURT ERRED BY AWARDING COUNSEL FEES AND COSTS BECAUSE THE MATTER AT BAR IS A MEDICAL MALPRACTICE CASE, NOT A CIVIL RIGHTS ACTION, AND/OR THE FEES AND COSTS AWARDED ARE EXCESSIVE.
A. THE TRIAL COURT ERRED IN AWARDING COUNSEL FEES.
B. ALTERNATIVELY, THE ATTORNEYS' FEES AND COSTS ARE EXCESSIVE AND SHOULD BE REDUCED.
After a thorough review of the record, we conclude there is no basis, as a result of defendants' arguments or the aggregate of those arguments, on which to reverse the judgment. We address some of the points raised on appeal.
There was sufficient evidence in the record, at the close of the presentation of plaintiff's case, to submit plaintiff's civil rights claim to the jury. Defendants contend the evidence at that point, viewed most favorably towards plaintiff, would not "shock the conscience" or indicate that defendants were deliberately indifferent to Williams's known medical needs. Further, defendants argue the evidence demonstrated they were unaware Williams was suffering from peritonitis, but instead they reasonably believed he was merely experiencing drug withdrawal.
In denying defendants' motion, the trial judge found that a jury could reasonably conclude no treatment was administered to Williams, which, standing alone, constituted "malpractice," and that "the failure to make any efforts whatever to diagnose and/or treat would come under deliberate indifference under [42 U.S.C.A. §] 1983."
In our review of a trial court's grant or denial of a directed verdict motion pursuant to Rule 4:40-1, we apply the same standard that governs the trial courts. Frugis v. Bracigliano, 177 N.J. 250, 269-70 (2003):
As in a summary judgment motion, we must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (internal quotation marks and citation omitted). If, giving [defendants] the benefit of the most favorable evidence and inferences to be drawn from that evidence, "reasonable minds could differ" as to the outcome, the contested issues must be submitted to a jury. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). However, if the evidence and uncontradicted testimony is "so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury." Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494 (1956).
Through its prohibition on "cruel and unusual punishments," the Eighth Amendment to the United States Constitution requires prison officials to provide humane conditions of confinement, which includes the provision of adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 259 (1976). Accordingly, "deliberate indifference to a prisoner's serious illness or injury states a cause of action under [42 U.S.C.A.] § 1983." Id. at 105, 97 S. Ct. at 291, 50 L. Ed. 2d at 260. We recently reiterated the essential elements of a civil rights action based upon a claim of cruel and unusual punishment:
[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, "sufficiently serious"; a prison official's act or omission must result in the denial of "the minimal civilized measure of life's necessities." For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.
The second requirement follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment." To violate the Cruel and Unusual Punishments Clause, a prison official must have a "sufficiently culpable state of mind." In prison-conditions cases that state of mind is one of "deliberate indifference" to inmate health or safety[.] [Bernstein v. State, 411 N.J. Super. 316, 336 (App. Div. 2010) (quoting Farmer v.
Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994)).]
"Deliberate indifference" consists of three components: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). It may be established by a showing of care so cursory as to amount to no treatment at all. Ibid. However, a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. [Farmer, supra, 511 U.S. at 837, 114 S. Ct. at 1979, 128 L. Ed. 2d at 825.]
Measured against these standards, defendants urge that their conduct "was sufficient to ensure the 'reasonable safety' of an inmate-patient who they subjectively believed was suffering from drug withdrawal." We disagree.
Defendants' liability is not established by their misconception that Williams was suffering from withdrawal symptoms, and, therefore, they did not properly respond to what in fact was peritonitis. Rather, their liability is established by evidence from which the jury could reasonably conclude that notwithstanding their subjective good faith belief that Williams was suffering from heroin withdrawal, defendants knew his condition was "serious" and provided no treatment and failed to reach out to the on-call doctor for direction. Thus, a jury could reasonably conclude that defendants acted with "deliberate indifference" to Williams's medical needs. McElliott, supra, 182 F.3d at 1255.
Further, Nurse Resureccion first encountered Williams in response to a code white that alerted her there was a medical emergency involving Williams. His pulse and blood pressure were significantly elevated. She later decided to allow him to return to his cell because she believed he was simply experiencing withdrawal symptoms and did not visibly appear to be in distress, but Williams collapsed to the floor, striking his head and face, and in her opinion, appeared dazed and confused. Thus in addition to believing that Williams was experiencing heroin withdrawal, she knew that Williams had struck his head, possibly sustaining a concussion. She took no action to attend to Williams's needs, from a nursing standard of care, either before he collapsed or after he collapsed. In addition, when Williams was first brought to the infirmary following the code white, she acknowledged that she took no history from him and performed no further nursing assessment other than the initial check of his pulse and blood pressure, which were significantly elevated. Nor did she administer any medication or contact the on-call physician. At the conclusion of her shift, she did not meet with the nursing staff relieving her to apprise them of Williams's condition, but simply left a note in his chart indicating that Williams was brought to the infirmary on a code white, was suffering from withdrawal and had experienced a fall, from which he had suffered no ill effects. The note did not describe the fall as involving Williams striking his head.
Nurse Mammaril, who came on duty after Nurse Resureccion, admitted that she never reviewed the note on Williams's chart. Although Williams was now a patient admitted to the infirmary, reserved for serious medical conditions, she failed to perform any follow-up assessment of Williams's condition, never took his vital signs and never consulted with the on-call physician. She testified that she observed no withdrawal symptoms but nonetheless knew Williams needed to see a doctor. Yet, over the next six and one-half hours of her shift, she did not personally check on Williams again or take any steps to ensure that he was seen by a medical doctor.
Thus, the evidence at the close of plaintiff's case was such that a jury could reasonably conclude that Nurses Resureccion and Mammaril exhibited "deliberate indifference" to Williams's needs, irrespective of whether they believed, in good faith, that he was experiencing heroin withdrawal. Estelle, supra, 429 U.S. at 104-05, 97 S. Ct. at 291, 50 L. Ed. 2d at 260. Therefore, the trial court properly denied defendants' motion for a directed verdict pursuant to Rule 4:40-1.
Defendants contend they were denied a fair trial as a result of inflammatory remarks made by plaintiff's counsel during her opening and closing statements which ultimately resulted in an excessive verdict. For example in her opening statement plaintiff's counsel stated:
[D]o not let anyone succeed in making you judge a person unfairly and unjustly because they're black, because they're poor and because they were in prison or because they may have had a drug history. Don't let that happen because I assure you, there will be a lot of effort in that direction.
Defense counsel did not immediately object to these remarks, but eventually raised an objection that the court did not address.
In her closing, defendants point to other comments from counsel that were inflammatory:
[Williams's] weight is documented in this record, it says 150 pounds. . . . He weighed 150 pounds on December 2. . . .
[On the] [a]utopsy report . . . .
[l]ook how much he weighed, 136 pounds. This man went from 150 pounds to 136 pounds in a span of not even three days. That's a lot of vomiting, that's a lot of diarrhea and that's a lot of not eating.
Now you mean to tell me that these nurses[,] who are trained in nursing and can eyeball a patient without doing a vital assessment, without doing a physical examination, without laying a finger on him[,] can't tell that a man that's lost [fourteen] pounds in three days is dehydrated? You know who [knew]? Nurse Brokaw knew. . . . [S]he saw him for one minute and . . . she said this guy needs help, I think he's dehydrated, I'm calling a stretcher, get him to the infirmary, he needs to be assessed and if he's dehydrated, he needs to go to the emergency room. One hundred and thirty-six pounds from 150. That's something to feel lots of shame about.
This autopsy report is [Williams's] voice. . . . It is unbelievable what's in this autopsy report. Under clothing and personal effects . . . a pair of green pants which are inside out and have the partially snapped front posteriorly . . . . There is nobody . . . a man in particular . . . that's gonna [sic] put his pants on backwards[.] . . . [I]f the pants have a way to open to go to the bathroom[,] you're not putting them on backwards[.] [I]t's just not gonna [sic] happen. .
Why am I so hung up on this? I'll tell you why. This body was found and there is no description in the record of what he was like, if he was dirty, if he was clean, nothing. I pose to you that the evidence suggests that this scene was cleaned up, that he was cleaned, he was changed[,] and because based on the evidence, based on what we know was wrong with him, he should've been covered in vomit and --
And here's two picture[s] that help you make that conclusion . . . . [H]ere's one picture, pants are up, shirt is up, sleeves are up. Here's the other picture[.]
[P]ants are down, sleeves are down, shirt's neatly tucked in. There was no reason to alter his position and his clothing and all that. All right.
Another picture . . . .
. . . [L]ook at that bed. . . . [T]here is a sheet crumpled up in a ball right here. Now if this is exactly how he was found, why isn't it under him?
This is an exhibit of a tidy scene and when you look at the evidence you make your own inferences and your own conclusion, but the clothes, the sheets, the pillow, nothing fits, it doesn't make sense.
Then you get to pain and suffering and you're gonna [sic] have to come up with a number[,] and your number, members of the jury, ha[s] to have meaning, okay? It has to be a meaningful number, all right? It shouldn't be crazy, crazy and it shouldn't be low, low, low, it has to be meaningful. It has to accurately and fairly represent dying like this for this boy --
-- under these [circumstances.]
Upon defense counsel's objection, plaintiff's counsel corrected herself as follows:
All right. This is not a death case, that's right, it's a pain and suffering case. But death is the end result, which is the culmination of the suffering. So . . . it's a very sad, prolonged, miserable journey that you will have to take with Derek Williams[.] You're gonna [sic] have to do it --
So once you do that you can answer how much the pain and suffering is worth and it should have meaning.
Plaintiff's counsel then referenced the separate civil rights claim:
Violation of a civil right is a separate element of damages[.] [I]t has nothing to do with how long he suffered[.]
[I]t has to do with what the value is of not honoring and not respecting that civil right and that's a separate component of damages and you can talk about that.
I want you [to] think . . . this is the end[.] I want you to think about the end. I want you to think about the time period over here where we know he's alive and he's laying presumably on the floor on that mattress choking surely on his vomit, feeling acid burning the lining of his peritoneum[,] and I want you to think about his emotional state. Forget -- the pain . . . must've been unimaginable, but I want you to think about his last thoughts. No one's coming, he's alone, he's suffering beyond imagination. Nobody's coming. How . . . vulnerable . . . this man [must] have felt.
After a defense objection, which was simply noted on the record by the court, plaintiff's counsel concluded her summation as follows:
That is part of his suffering. The
[j]udge will charge you on what you can consider in evaluating a person's suffering. Listen closely because one of the elements is their emotional state. In fact[,] you can consider his emotional state from the beginning of the deviation. This man was begging, he was begging for help, begging. No one should have to beg for medical help, nobody. He was.
Don't fall into the same indifference that they did. Don't let that happen.
Don't ever, ever let it happen.
Counsel is generally afforded "broad latitude in summation" to argue any legitimate inference which may be drawn from the evidence. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Counsel may also respond to arguments made by counsel's opponent. State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). However, counsel is not at liberty to misrepresent or unfairly distort the evidence, Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998), or to denigrate the defense. Geler v. Akawie, 358 N.J. Super. 437, 467-68 (App. Div.), certif. denied, 177 N.J. 223 (2003). In the event of attorney transgressions, appropriate judicial intervention may be sufficient to cure any potential prejudice. Statham v. Bush, 253 N.J. Super. 607, 615 (App. Div. 1992).
Immediately after plaintiff's counsel's summation, the trial court administered its final charge, instructing the jury in pertinent part, as follows:
In regards to the summation by plaintiff's counsel there were certain references that I am going to strike.
For instance, there was a reference to Mr. Williams having an emotional state[,] fearing perhaps impending death, knowing perhaps of impending . . . death. Number one, this is not a death case. The only issues in this case for which the plaintiff can receive a . . . jury verdict[,] can have damages awarded[,] if that is your choice[,] is in regard to Mr. Williams'[s] pain and suffering and that pain and suffering is limited to exactly the time periods that have been talked about . . . . So there is no issue here about Mr. Williams'[s] emotional state. He cannot in any way receive a verdict for pain and suffering in that regard, nor in regard to perhaps fear of impending death.
I will also note that there are no allegations in this case that Mr. Williams was treated in any way differently or that the treatment that the plaintiff alleged was not proper [or] has anything to do whatsoever as to Mr. Williams'[s] race or to Mr. Williams'[s] economic status.
In denying defendants' new trial motion, the court agreed that the comments from plaintiff's counsel were "tough," but found that none of the comments tainted the jury and denied a fair trial to defendants. The record supports the trial court's conclusion. We first address plaintiff's counsel's opening statement.
"The fundamental purpose of opening statements is to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence." Szczecina
v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010) (citation and internal quotation marks omitted). An opening statement may not be a vehicle through which counsel "make[s] derisive statements about parties, their counsel, or their witnesses." Ibid. Here, other than the fact of Williams's status as an inmate, an African-American, and a drug abuser, plaintiff presented no evidence that defendants' conduct toward Williams was influenced by any of those factors. Thus, the remarks were improper. They were not, however, repeated. In its final instructions to the jury, the court made clear that "[t]here is nothing in this issue that has anything to do with any racial, eth[n]ic or economic issues in regard to this plaintiff." Therefore, any error resulting from the court failing to give a curative instruction at the time the remarks were uttered was harmless. Rule 2:10-2.
As to the remaining comments from plaintiff's counsel during summation, the court properly concluded that the comments were either fair comments based upon the facts elicited from the witnesses or reasonable inferences gleaned from the witnesses' testimony. None of the comments in summation unfairly distorted the evidence or denigrated the defense. Diakamopoulos, supra, 312 N.J. Super. at 32; see also Geler, supra, 358 N.J. Super. at 467-68.
Turning to a number of plaintiff's counsel's misstatements, she immediately corrected herself when she stated that the time period during which Williams lost fourteen pounds was over three days. Defendants are correct that plaintiff's counsel impermissibly invoked the "golden rule" by asking the jury to "place themselves in decedent's mind and body to evaluate and quantify decedent's suffering." Botta v. Brunner, 26 N.J. 82, 94 (1958) (holding "jurors are [not] free to fix what they would want as compensation if they had sustained the injuries or what the pain and suffering would be worth to them."). The court, however, in its final instructions to the jury, directed the jury to disregard plaintiff's counsel's remarks in this regard. Next, although plaintiff's counsel at one point referenced Williams's death in the context of damages, upon defense counsel's objection, she immediately clarified that the matter was not a death case. Further, the court, in its final charge to the jury, repeatedly instructed that damages were limited to pain and suffering. We presume the jury understood and followed the court's instructions. See, e.g., State v. Burris, 145 N.J. 509, 531 (1996) (stating that with regard to proper use of evidence, "the Court presumes that juries will understand and abide by the court's instruction" (citing State v. Manley, 54 N.J. 259, 270 (1969))). Thus, the trial court properly concluded that none of plaintiff's counsel's comments, during opening or closing, tainted the jury's verdict.
Defendants next contend the verdict was excessive and plainly the result of jury bias and prejudice. To support this contention, defendants urge that Williams complained of pain on only three occasions and that there was no indication that his pain was in any way debilitating. The record reasonably supports a contrary conclusion, which the jury apparently reached.
When Williams first sought medical attention at 4:30 p.m. on December 6, he repeatedly banged on the glass enclosure, utilizing sign language to convey his need for medical attention. Vega observed him to be too weak to remain standing and saw another inmate bring over a chair on which Williams sat while Vega continued to seek assistance. When Glover first escorted Williams to the infirmary, Vega testified that Williams exhibited distress, walked slowly and bent over, holding his stomach. The next evening, Williams appeared weak to Nurse Brokaw, who observed him on the floor and to whom he reported that he did not feel good and could not move. He later collapsed in the infirmary when attempting to return, at Resureccion's direction, to his cell. He struck his head and face and appeared dazed and confused to Resureccion, who also acknowledged during her testimony that he may have suffered a concussion. The fact that his verbal complaints may have been limited to three times does not diminish the extent of pain and suffering Williams may have experienced. Rather, the three verbal complaints were facts the jury was free to consider and weigh in the context of all of the evidence relating to Williams's pain and suffering.
The evaluation of damages is a matter left to the jury's good judgment, and judicial authority to set aside a damages award on grounds of excessiveness is limited. Jastram v. Kruse, 197 N.J. 216, 228-29 (2008). To justify judicial interference, the verdict must be so wide of the mark as to constitute a miscarriage of justice. Id. at 229. In analyzing whether a damages award is excessive, the court must consider the totality of the evidence "in a light most favorable to the plaintiff." Ibid.
Here, the jury was free to disregard the testimony of (1) Glover and the defendant nurses that Williams did not manifest any signs of serious medical distress, and (2) Dr. Disciglio's expert opinion that Williams's peritonitis progressed atypically without significant pain. The jury was entitled to accept the testimony of Brokaw and Vega that Williams actually appeared very unwell, as well as the testimony of Dr. Spector and Dr. Roh that Williams had to have been in pain for a minimum of thirty-six hours and that the pain he would have experienced, specifically as a result of his unchecked peritonitis, would have been excruciating.
Because we are satisfied there was substantial credible evidence in the record to support the jury's determination that defendants subjected Williams to cruel and unusual punishment prohibited under the Eighth Amendment to the United States Constitution, plaintiff, as a prevailing party, was entitled to recover counsel fees. 42 U.S.C.A. § 1988. Thus, the sole issue for our resolution is the reasonableness of the fees awarded. "We review the reasonableness of an award of attorney's fees for an abuse of discretion." Washington v. Philadelphia Cnty. Court of Common Pleas, 89 F.3d 1031, 1034 (3d Cir. 1996) (citing Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990)). We conclude the court did not abuse its discretion in the amount of fees awarded and find no merit to defendants' contention that the fees awarded were excessive.
In calculating the appropriate counsel fee award, the court was required to first determine the lodestar, i.e., the number of hours reasonably expended, multiplied by a reasonable hourly rate. R.M. v. Supreme Court of N.J., 190 N.J. 1, 10-11 (2007). A court arrives at a reasonable hourly rate by considering "'the prevailing market rates in the relevant community[.]'" Id. at 10 (quoting Rode, supra, 892 F.2d at 1183 (3d Cir. 1990)).
Once the lodestar has been ascertained, the court may, in its discretion, reduce or enhance it upon due consideration of twelve factors:
(1) the time and labor required to litigate the suit; (2) the novelty and difficulty of the questions presented by the lawsuit; (3) the skill required properly to perform the legal service; (4) the preclusion of other employment opportunities for the attorney due to the attorney's acceptance of the case; (5) the customary fee for such services; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount in controversy involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the attorney's professional relationship with the client; and (12) awards in similar cases.
[Id. at 11 (quoting Trimper v. City of Norfolk, 58 F.3d 68, 73 (4th Cir.), cert. denied, 516 U.S. 997, 116 S. Ct. 535, 133 L.
Ed. 2d 440 (1995)).]
Plaintiff's lead counsel submitted a detailed fee application wherein she sought $310,462.50 in fees and $40,540.03 in costs. The application reflected an hourly rate of $350 for lead counsel and an hourly rate of $225 for assistant counsel. In conjunction with this application, plaintiff's counsel also submitted affidavits from three New Jersey litigators practicing out of Matawan, Hudson County and Hackensack, each of whom attested to the reasonableness of the hourly rates sought by counsel.
In its subsequent decision regarding the fee application, the trial court initially observed that lead counsel had over twenty years of experience, had tried cases in six states, and had often billed cases at more than $700 per hour. The court next noted that assistant counsel, an associate at the same firm, had been practicing law for five years. After acknowledging its receipt of the affidavits submitted by counsel, the court ruled that lead counsel's billing rate of $350 per hour was more than reasonable "considering her extensive experience, her almost amazing comprehension of every single detail in this complicated case . . . and in regard to her professionalism during the trial." The court was likewise persuaded that assistant counsel had contributed significantly throughout the case and that her billing rate of $225 was also reasonable.
The court then found there was no need to reduce the fees sought because of unsuccessful claims since plaintiff was "basically successful on all issues against the County and the nurses who were represented by counsel for the County." It did, however, find that it was necessary to fairly evaluate the time counsel expended and to "evaluate the nature [of] and [the] need [for] . . . the service[s]" provided. Accordingly, the court, line by line, reviewed the time reports and determined that the claimed fees should be reduced by $31,850, representing approximately ten percent of the fees sought. Nearly all of the reduced fees corresponded to time billed by assistant counsel, which the court concluded was insufficiently documented or excessively duplicative of work performed by lead counsel.
In sum, the court reviewed the counsel fee application in accordance with appropriate legal principles and arrived at an amount of counsel fees and costs that were reasonable and supported by the submissions. We discern no basis to disturb the award.
The remaining arguments advanced by defendants in Points II, III, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments related to Points II and III.
There was no reversible error committed as a result of the court's initial pre-trial ruling excluding, as inadmissible, statements Williams allegedly made to Glover and Nurse Brokow regarding his belief that he was "kicking" or withdrawing from drugs. After plaintiff's first witness testified, the court reversed its ruling. Thus, when Glover testified, he was permitted to repeat the statement Williams made to him that he was "kicking" and Nurse Brokow was also permitted to testify that Williams told her he was withdrawing from drugs. Therefore, defendants' contention that they were prejudiced by the court's reversal of its earlier ruling is simply not supported by the record. To the extent defendants were of the view that the ruling hampered their ability to effectively cross-examine the first witness, they did not seek to recall the witness. Moreover, the entirety of Williams's medical record was admitted into evidence. Those records included Dr. Zara's prescription for withdrawal medication. Consequently, the jury was aware of defendant's substance abuse.
Likewise, defendants' claim that plaintiff's experts failed to provide testimony on proximate cause is factually incorrect. To recover damages arising out of negligent conduct, a plaintiff must not prove that defendant breached a duty of care owed to plaintiff but that there is a causal connection between the breach of that duty and the resulting harm. Gaido v. Weiser, 115 N.J. 310, 313-14 (1989).
Dr. Spector testified that defendants' inaction resulted in Williams being forced to endure an incredibly painful infectious process for many hours prior to his death:
Here he perforates, things are moving from stomach, small intestines into -- the abdominal cavity -- forming -- the exudates -- again, the body is trying to compensate for the insult. There is also bacteria that is in there and this bacteria starts growing and form[ing] an infection, and pus is building up during the time frame.
In the meantime, you have a patient that is suffering, he's in pain -- these change[s] that are occurring. No intervention, no sending him to the hospital or --
. . . [N]o medical treatment is rendered. There [are] no IV fluids that are given, there are no antibiotics, there is no surgery that takes place.
Later, plaintiff's counsel questioned Spector further:
Q How do you know he was in pain at 9:20 p.m.? . . .
A He perforates. It's agony. . . . If you go look up perforated peptic ulcer disease, it says the hallmark symptom is severe, sudden . . . abdominal pain.
During this time frame . . . his abdomen is filling up with the acid, the digestive enzymes and now the bacteria is forming puss. If you have ever had an abscess, you know it's under pressure, it hurts. . . . And . . . he needs a surgical intervention for it to get better.
He's -- we know he's suffering . . . . [I]f you read the autopsy results . . . [t]here's one and a half liters of puss. . . . It's a huge amount of pus inside his abdomen at the . . . time of death.
That just doesn't happen in an hour or two hours. That took time to develop. In fact, the time line is perfect for perforation to death for the amount of puss that . . . he had in his abdomen.
Another exchange between plaintiff's counsel and Spector on the subject was as follows:
Q Do you have an opinion to a reasonable degree of medical certainty as to whether Mr. Williams suffered . . . during this period of time?
A Every patient that I have ever seen with peritonitis suffers . . . .
He was in agony, there were . . . inmates that were trying to get attention for him. . . .
. . . [T]here is a hole inside of his duodenum. And the acid and the digestive enzymes and . . . bacteria are going into the intra[-]abdominal cavity.
And the ultimate result shows us exudate, one and a half liters of puss, fibrous changes. That is a painful process. That is auto digestion . . . of the pancreas . . . of [the] bowel[s] . . . [and the] kidneys.
And that is a painful process. He suffered and he suffered because of that painful process, without any medical intervention[.]
Likewise, Dr. Roh testified that Williams's death was not sudden, but was preceded by thirty-six hours of suffering. Thus, although the witnesses did not spout the words "proximate cause," their testimony causally related defendants' negligence to the resulting pain and suffering Williams endured.
Turning to the claim that defendants were entitled to a Scafidi*fn6 jury instruction, a plaintiff seeks this instruction when there is an established pre-existing condition. 119 N.J. at 108. Under Scafidi, a jury is permitted to find that a defendant was negligent and that this negligence increased the plaintiff's risk of harm from an established pre-existing condition. Ibid. The jury then applies a "substantial factor" standard of causation rather than the typical "but for" standard of causation. Id. at 109. Where, however, a dispute arises as to the existence of a pre-existing condition and a defendant seeks the benefit of a Scafidi charge, it is the "defendant [who] must bear the burden of establishing the existence and identity of such a condition or disease." Anderson v. Picciotti, 144 N.J. 195, 211 (1996).
In Anderson, the Court explained that "[a] preexistent condition or disease is one that has become sufficiently associated with a plaintiff prior to the defendant's negligent conduct so that it becomes a factor that affects the value of the plaintiff's interest destroyed by the defendant." Ibid. Here, beyond Williams's self-report at the time of his admission to the Center on November 30, that he was a heroin user, there is no other evidence in the record relative to his condition as a drug abuser. Moreover, according to the testimony of Dr. Spector, any symptoms resulting from heroin withdrawal would have ended after the first three days following Williams's November 30 admission and that it was "inconceivable" for medical professionals to mistake the symptoms of an acute abdomen with those of heroin withdrawal. Thus, defendants failed to demonstrate that they were entitled to have the court, sua sponte, deliver a Scafidi instruction to the jury.