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Kay M. Mckay, As General Executrix and Executrix v. Primary Care Associates and Ronald H. Dubow


December 6, 2011


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2532-07.

Per curiam.


Argued November 14, 2011 -

Before Judges Ashrafi and Fasciale.

In this medical malpractice case involving an alleged failure to diagnose a back infection, plaintiffs (Kay M. McKay, as General Executrix and Executrix ad Prosequendum of the Estate of Lawrence McKay, deceased, and Kay M. McKay, individually) appeal from a judgment of no cause of action, and an order denying their motion for a new trial. Plaintiffs argue that the judge prejudiced their case by (1) criticizing the summation of plaintiffs' counsel; (2) instructing the jury to disregard the diagnoses and testimony from a treating doctor; and (3) unfairly charging the jury concerning credibility of a defense expert. We disagree and affirm.

The events leading to the allegations of medical malpractice occurred in November and December 2004. On November 8, 2004, Lawrence McKay (Lawrence) -- a medical doctor --experienced back pain as a result of a rough plane landing. He complained to his wife Kay M. McKay (Kay) -- a nurse -- and he started taking Tylenol. The pain continued and on November 23, 2004, Lawrence sought medical treatment at Primary Care Associates (PCA). On November 29, 2004, defendant Dr. Robert Dubow, an internist and staff physician at PCA, observed tenderness on Lawrence's back. On Friday, December 10, 2004, Dubow and Lawrence communicated by phone, and the next day, Lawrence had a blood test at PCA. On Monday, December 13, 2004, Dubow learned that Lawrence had seen an orthopedist and planned to see a chiropractor.

Plaintiffs contended that Dubow learned on December 13 that Lawrence suffered from an abnormal liver, lost twenty-four pounds during the preceding ten days, and showed signs of vertebral osteomyelitis. Plaintiffs' theory was that Dubow failed to order an emergency MRI, which would have revealed the condition, which plaintiffs argued was treatable with antibiotics. Instead, Lawrence was admitted into the hospital on December 17, 2004, suffered acute renal failure, and died on November 14, 2005.

Dubow's primary defense was that Lawrence refused to follow Dubow's request to return for an examination. Dubow testified that he called Lawrence on December 13, talked to Kay, informed her about the abnormal blood test, and requested that Lawrence return to his office. At trial, Dubow contended that Lawrence was overmedicated and resisted treatment.

The nine-day trial occurred in September 2010. Plaintiffs produced three expert witnesses, a treating gastroenterologist, and three lay witnesses. Dubow testified and produced two expert witness, including Dr. Chester Robert Smialowicz, a forensic expert in infectious disease and internal medicine.

Smialowicz opined that Dubow appropriately requested Lawrence to return to his office on December 13, 2004. Smialowicz explained that a doctor cannot diagnose a condition without an office visit.

On cross-examination, Smialowicz testified that he has taught other doctors how to avoid being sued "by being careful." Smialowicz stated, for example, that doctors at Deborah Hospital asked him to teach on the subject of "how to be a successful defendant." He testified that the doctors at Deborah Hospital chose him because he has experience testifying for both patients and physicians. In describing what he taught, Smialowicz explained:

[The doctors] need me to teach them pitfalls in infectious disease that they have to be careful of, as far as patients being transferred from another hospital that had blood cultures done at the other hospital. Pick up the phone and call the microlab at the other hospital, don't wait for stuff to be sent to you, so you can find out what's going on. That type of thing. That's what I try to teach them.

In his summation, plaintiffs' attorney stated:

I suggest that[] what Smialowicz really tells doctors [is] . . . [t]his is what you have to do after you're sued, say whatever you have to say, do whatever you have to do. Hey, Smialowicz is a perfect example of it. . . . . His opinions don't change at all because he will say whatever has to be said and do whatever has to be done so that [Smialowicz] can help other doctors be, quote/unquote, successful defendants in medical malpractice lawsuits. I suggest that's what's happening in this case.

Referring to Smialowicz later in his summation, plaintiffs' counsel commented:

Say what you got to say, do whatever you have to do to be a, quote, successful defendant in a medical malpractice case.

Dr. Smialowicz is practicing what he teaches in this case. . . ..

[H]e wants to help [Dubow] be a successful defendant . . . . [Smialowicz] said exactly what no doctor could ever say because he has to. [Smialowicz] has to say something to help [Dubow's] case.

You think Dr. Smialowicz might have some bias, teaching doctors how to win lawsuits?

You think?. . . .

Smialowicz, he's out in the island all by himself.

This is the kind of witness you're going to rely upon? Dr. Smialowicz? Please. For [Lawrence's] sake, don't do that. Plaintiffs' counsel also stated in summation that "[Dubow's attorney] tried to confuse you with the dates as well."

Referring to the defense attorney, plaintiffs' counsel said, "Again, red herrings, make it up, not in the records, not even implied in any of the records, just say it, just throw it out there and see if it sticks. Let's see if the hounds get taken off the scent when they're looking for the truth." Again referring to defense counsel, plaintiffs' counsel stated that "when you are desperate, when you know the facts aren't on your side, you play the distraction game, you play the red herring game."

At 4:40 p.m., after approximately an hour and a half of summation from plaintiffs' attorney, the judge released the jury and stated that they would continue the next morning. Defense counsel moved for a mistrial and argued that plaintiffs' counsel made inappropriate comments about Smialowicz. The judge denied the motion and stated that "[i]f something needs to be commented on, I will comment on it."

The next morning, defense counsel renewed his motion for a mistrial, arguing:

[Plaintiffs' attorney] accused Dr. Smialowicz of -- and this is interesting because, as I recall Dr. Smialowicz's testimony, it was he had given a talk on how to avoid being sued because his residents and medical students knew that he did expert work, and his talk was on how to avoid being sued, and how sometimes doctors make mistakes, and how you want to make good records. It was turned into the closing, in how to be a successful defendant in a medical malpractice case.

After the judge denied the motion again, defense counsel asked for an immediate curative instruction, before plaintiffs' counsel resumed his summation. The judge agreed that a limited instruction was necessary, but, in fairness to plaintiffs' counsel, stated that he would comment at the beginning of the charge, rather than in the middle of summations. Plaintiffs' counsel stated, "That's fine." In his continued summation, before the judge gave the curative instruction, plaintiffs' counsel told the jury, "I didn't attack Smialowicz personally."*fn1

On September 21, 2010, at the beginning of the charge, the judge instructed the jury:

Now during the closing arguments yesterday, there will -- or there did come to pass certain what could be considered inflammatory comments made by the plaintiff[s'] attorney. To the extent that anything was a personal attack -- personal attack on any of the defense witnesses, or on [the defense attorney], that is improper and must be disregarded by you.

Plaintiff[s'] counsel is allowed to comment on Dr. Smialowicz, as he is allowed to comment on any defense witness, but to the extent that an inference was, well, because he instructs doctors on how to avoid malpractice, or instructs them after they've been sued on how to handle suits, there was any inference that his testimony was contrived or fabricated because of his role with other doctors, that should be disregarded by you. His integrity should not be impugned on that basis. His testimony is to be considered by you. If you accept it, fine. If you reject it, that's fine as well. That's up to you. So please keep that in mind.

Sometimes attorneys get to[o] argumentative when they're dealing with you and I have to, you know, say things as a result. But I know that you will keep your eye on the ball here, and you will consider the evidence because it's the evidence which you are to make your decision on.

On the same day, the jury returned its verdict of no cause of action. The jurors started their deliberations at 12:17 p.m. and returned their verdict at 1:58 p.m. They unanimously determined that Dubow was not negligent.

Plaintiffs filed a motion for a new trial and on November 19, 2010, the judge conducted oral argument. Plaintiffs' counsel essentially argued that the judge unfairly criticized him in summation, encouraging the defense verdict. In denying the motion and commenting on the curative instruction, the judge explained:

[Smialowicz] conceded that doctors make mistakes by rushing, by not making adequate notes in their records, and that part of his lectures, presumably to students or residents, is how to avoid mistakes and avoid being sued.

There's nothing wrong with that, and it's a far cry from saying that Dr.

Smialowicz fabricated . . . a defense in this case. . . . . His lectures deal with, quote, "how to avoid being sued." That's it. That's far different than saying that the man is a fraud, or a fabricator, or something along those lines.

On appeal, plaintiffs contend that "[t]he trial court committed a collection of errors which had the cumulative effect of prejudicing the plaintiff[s]." Plaintiffs argue that the judge erred by (1) improperly criticizing the summation of plaintiffs' counsel; (2) unfairly charging the jury concerning Smialowicz' credibility; (3) wrongly charging the jury to disregard certain testimony from the treating doctor (Cheng)*fn2 ; and (4) expressing irritation during the cross-examination conducted by plaintiffs' counsel. We conclude that plaintiffs' arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

We reject the contention that plaintiffs were denied a fair trial as a result of improper judicial interference. We find no evidence to support plaintiffs' numerous claims of prejudicial conduct by the judge. Rather, the judge employed great patience during the lengthy trial and conducted the proceedings to ensure fairness to both parties.

We have stated that "it is improper for an attorney to make derisive statements about parties, their counsel, or their witnesses." Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010). "Although attorneys are given broad latitude in summation," it is improper to "accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, or trying to deceive the jury, or of deliberately distorting the evidence." Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171 (App. Div. 2004).

Overall, the statements made by plaintiffs' counsel during his summation suggested that the defense attorney and Smialowicz worked together to fabricate a defense. Accusing defense counsel of being desperate, and Smialowicz of teaching defendants to "say whatever you have to say, do whatever you have to do," the summation of plaintiffs' counsel implied that the defense tried to confuse the jury and concoct a defense. There was an insufficient basis for any such contentions.

"To remedy the prejudice caused by untrue statements or inferences, trial courts may, depending on the severity of the prejudice, issue a curative instruction or grant a mistrial." Bender v. Adelson, 187 N.J. 411, 433 (2006). 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 v. Singh, 397 N.J. Super. 184, 202 (App. Div. 2007) (quoting State v. Winter, 96 N.J. 640, 646-47, (1984)), aff'd, 200 N.J. 82 (2009).

We have noted that "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury."

Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)). "[A] trial court has wide discretion in controlling the courtroom and the court proceedings," and any "[a]lleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26, (App. Div.) (citations omitted), certif. denied, 196 N.J. 346 (2008). A judge should never unfairly criticize counsel, especially in front of the jury. Id. at 25-26 (citing Mercer, supra, 324 N.J. Super. at 298).

Applying these standards, we find that the judge's curative instruction had no prejudicial impact and that the judge did not abuse his discretion in giving the instruction. He presided over a lengthy trial, determined that a mistrial would be unwarranted, and issued an appropriate curative instruction necessitated after plaintiffs' counsel made unwarranted remarks.


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