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Fred J. Winter, As Executor For the Estate of Pamela Winter, and v. Sherene Henderson


February 22, 2012


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9830-07.

Per curiam.


Argued September 12, 2011

Before Judges Parrillo, Grall and Alvarez.

Plaintiff Fred J. Winter, individually and as the executor of the estate of his late wife Pamela Winter, filed suit for damages against defendants Sherene Henderson, R.N., Solaris Health System, Inc., and the Community Hospital Group, Inc. trading as JFK Medical Center. Plaintiff alleged that defendants' negligence in treating decedent resulted in her death. At the conclusion of the trial, the jury rendered a verdict of no cause of action in favor of defendants. Plaintiff appeals, asserting that the trial court erred: (1) in permitting defendants' expert to testify to an opinion not previously expressed; (2) by prohibiting cross-examination on that "surprise" opinion; and (3) by barring plaintiff's proposed testimony regarding certain statements allegedly made to him by employees of defendant hospital. Plaintiff also contends that the prejudicial cumulative effect of these errors warrants a new trial. We reverse and remand.

The events giving rise to plaintiff's claims can be briefly described. Decedent was admitted to JFK Medical Center on October 30, 2005, while suffering from clostridium difficile colitis, which she contracted while caring for her mother, who eventually succumbed to the disease. After admission, decedent developed hospital-acquired pneumonia, an infection in her bloodstream that may have been the product of a perforated intestine, and anemia. Her condition became so severe that she was placed on a ventilator while being treated with antibiotics and other medications.

At approximately 4:30 a.m. on November 21, 2005, after about three weeks of hospitalization, the high pressure alarm on decedent's ventilator sounded, indicating a blockage in the endotracheal tube which pumped air into her lungs. It was Henderson's job to respond. During the episode, decedent became cyanotic, her face turned ashen and blue, and she suffered a precipitous drop in her oxygenation levels. Reduced to its essential elements, plaintiff's theory of the case, based on the incident and his reading of Henderson's notes about it, was that Henderson breached her duty of care by delaying for a minimum of five minutes in clearing decedent's airways.

Plaintiff's experts opined that as a result of the five-minute loss of proper oxygenation decedent suffered significant brain damage, slipping into an irreversible coma. The condition eventually resulted in her death just over a month later, on December 23, 2005.

Plaintiff presented an expert in the field of nursing who testified in person at the trial. The medical expert's testimony, however, was presented via de bene esse deposition. The medical expert was a Florida-based internist, pulmonologist, and hospitalist, as well as a professor of internal medicine, hospitalist medicine, and pulmonary medicine. Plaintiff's experts agreed that the extent of decedent's brain damage was proof that the delay in restoring her respiration lasted several minutes (more than five, according to the medical expert), thereby establishing her caregivers' breach of their duty of care.

Dr. John J. Stern, a professor of medicine and internist specializing in infectious diseases, was proffered as one of defendants' experts. In neither his report nor deposition did he directly comment on plaintiff's premise that defendants negligently failed to maintain appropriate oxygenation levels for decedent for a minimum of five minutes. Instead, Stern attributed the death to decedent's multiple potentially life-threatening ailments, including clostridium difficile colitis, pneumonia, a possibly perforated bowel, "gram-negative rod, and gram-positive sepsis."

Before trial, counsel stipulated that Stern would testify solely as to causation and not liability. During trial, plaintiff's counsel noted on the record that the testimony was intended to be presented in the context of Scafidi v. Seiler, 119 N.J. 93 (1990), in other words, for the jury to parse out whether, within a reasonable degree of medical probability, the incident increased decedent's pre-existing risk of death and if so, to what extent, and whether the increased risk was a substantial factor in causing her eventual death. See id. at 108.

During trial, on direct examination, defendants' counsel first asked Stern:

[Defendant's Counsel]: Doctor, in this case plaintiffs allege that Nurse Henderson did not respond rapidly enough to a ventilator high pressure alarm, that she spent 'many minutes', according to Nurse Pierce, and 'more than five minutes', that's a quote from Dr. Goldstein, plaintiff's expert, 'Waiting until the patient was cyanotic with oxygenation stats in the 60's before calling for assistance, removing the patient from the ventilator and bagging the patient.'

I would like you to focus only on the second part . . . of the patient's allegation of malpractice that for this patient it would take [over five minutes] to further sustain the type of brain damage she did.

Plaintiff's counsel's objection was overruled. Defendants' attorney reiterated the question by asking the following:

Do you have an opinion whether that approach to analyze this saying she has this much brain damage, . . . there must have been a delay by Nurse Henderson to have caused that. Is that a valid approach to this case?

Stern responded that in his opinion, it was not "a valid way to think through what happened to [decedent]."

Some minutes later, Stern was asked:

[L]et me focus you with a question. The allegation in this case is that because she had the amount of brain damage she had that it must [have] taken five minutes for that to occur.

As Stern responded, plaintiff's counsel again objected and requested a side bar. He told the trial judge that the testimony was a complete surprise and prejudicial because Stern had not opined upon plaintiff's theory of the case in discovery. Plaintiff's counsel also reminded the court that Stern's testimony was being admitted solely to substantiate defendants' position that decedent would have died "even if" the cyanotic episode had not occurred. In other words, Stern's testimony was to be properly limited to addressing causation, i.e., the increased risk feature in Scafidi's substantial factor analysis, and not liability, in the sense of addressing the professional nursing norm and any deviation therefrom. Plaintiff's counsel also told the judge that he could not present expert testimony by way of rebuttal, as his expert was a Florida practitioner and not available on short notice for trial.

After listening to counsels' arguments, which took place after the jury was excused from the courtroom, the judge asked the doctor to tell him "what it is that you would tell the jury." Stern said:

At the time that [decedent] mucus plugged and required suctioning out by Nurse Henderson, I believe that given her profound debilitation that if done perfectly, which I believe Miss Henderson did, suction her out and get help and so on, she was at profound risk for developing hypoxia and encephalopathy because she was so debilitated.

This version dovetailed with Stern's report and deposition. However, it was fundamentally different from his direct testimony before the jury, in which he outright contradicted plaintiff's medical expert and instead opined that decedent could have suffered extensive brain damage even if oxygen-deprived for less than five minutes. In doing so, Stern sought to undermine the essential premise of plaintiff's theory of liability, namely that the extent of brain damage indicated a nursing delay of more than five minutes (i.e., appropriate oxygenation levels were not maintained for a minimum of five minutes), constituting a breach of the professional standard of nursing care.

Despite the disparity between Stern's pre-trial and trial accounts, the court ruled that defendants gave plaintiff ample notice of the testimony and that, as a result, there was no surprise or prejudice. The deposition and report, the trial judge concluded, focused solely upon the various grave illnesses from which decedent suffered and which, in Stern's opinion, resulted in her death and matched the answer he gave outside the presence of the jury.

Once the jury returned to the courtroom, Stern's direct examination continued. He reiterated his earlier statements:

So if you simply look at a human who is enduring this, you can see that it would take certainly less than five minutes, it's hard to quantitate [sic], but certainly less than five minutes for her to develop an anoxic event given all of these medical problems and that the five minutes that we think of as sort of necessary to cause brain damage is in the robust 20-year-old college kid, you know, who goes down -- it's not, unfortunately, [decedent]. [Emphasis added.]

Of course, implicit in Stern's refutation of plaintiff's theory is the obvious notion that nurse Henderson's response time in attempting to clear the patient's airways and maintain the appropriate level of oxygenation was within the professional norm.

Yet when plaintiff's counsel on cross-examination attempted to test defendant's counter-theory, he was precluded from doing so. Specifically, for instance, plaintiff's counsel tried to question Stern about the role of waiting until the patient's oxygenation saturation was down to 60% before sounding the alarm, but defendant's counsel objected and the court sustained the objection. This, despite plaintiff's counsel repeated arguments in support of his efforts:

[Plaintiff's counsel]: a call was made to the hospital intensivist and respiratory therapist. . . . [Stern] has to at least be able to explain if he was considering in his opinion what caused this drop in the oxygen rate and the -- and the cyanosis and how there was a response to it in which caused the -- an injury. I am certainly allowed to go over with him his review of the record to reach that conclusion.

Well, in order for her -- him to -- in order for you to testify as to how long the delay was in . . . to reach a conclusion as to whether . . . this insult to the brain, this anoxic encephalopathy happened as a result of a delay in response or as a result of her pre-existing morbidities, we have to know how [Stern] believe this happened. Isn't that right?

Right. And I would like to cross-examine [Stern] on that issue, Your Honor. And, certainly, if his belief is that -- which it certainly is, that Miss Henderson did not address these issues until the oxygenation level was down to 60 percent and he -- and the patient had turned blue, I would like to know how that impacts his conclusion that there was not a delay, it was just the comorbidities?

Judge, [Stern] is opining as to the mechanism of this injury. I want to be able to cross-examine him as to -- you know how he believed the mechanism of this injury occurred based on his report. That's why I have a report, okay. He says at his deposition he's a non-pulmonologist and he doesn't feel qualified to answer the question of . . . whether waiting caused or didn't cause this injury --

How did the injury occur. [Stern's] saying even though he knows that the response to the alarm and taking Mrs. Winter off of the ventilator and -- calling in for help didn't happen until after the oxygenation level was down to the 60's and she had experienced cyanosis, he's saying none of that had anything to do with how this injury occurred because she was so sick, that's why the injury occurred. Well, I'm certainly allowed to cross-examine him, that he understands that these -- those delays occurred. He's saying it happened quick and his report makes it clear he does -- he should know that it didn't happen quick.

As noted, after hearing argument, the court barred cross-examination on the point, saying:

I've reflected on the issue before the court. . . . [T]he jury would have to be deaf, dumb and blind not to understand . . . the plaintiff's theory of the case. We've covered that.

In this instance, the doctor was asked a very specific question. I think [defense counsel] limited his questions so that we don't go through the whole issue, again, he did that purposely, I think, and it's . . . proper for him to do that and . . . I don't think there's any unfairness that there's any impropriety in limiting the cross-examination to that which was testified . . . on direct examination and; so, again, for that reason and for the reasons I've already expresse[d], I'm sustaining the objection to your inquiring into liability.

I think the . . . jury understands it. I don't think we're precluding them. This doctor only addressed a very limited area of inquiry that was made by [defense counsel], so to go into the other part of the question that [defense counsel] specifically excluded and only asked the doctor to address a specific portion . . . is not proper to open it all up because . . . he might have mentioned it or discussed it in his report or in his deposition.

Additionally, defendants presented the testimony of an internist, who was also a pulmonary and critical care specialist, Dr. Scott Manaker, who opined that it was "totally impossible" that Nurse Henderson failed to respond appropriately for five minutes. He testified that the saturation, blood pressure, and apnea alarms on the ventilator would have automatically sounded, alerting staff to immediately respond to the crisis and go to Henderson's aid. Manaker maintained it would be impossible for decedent to have gone untreated by others on duty for five minutes, much less by Henderson. He agreed with Stern that the causes of decedent's death were the innumerable complications which stemmed from her clostridium difficile colitis.

We review evidentiary rulings employing an abuse of discretion standard, so long as those rulings are not inconsistent with applicable law. Tarr v. Bob Ciasulli's Mack Auto Mall, 390 N.J. Super. 557, 563 (App. Div. 2007), aff'd, 194 N.J. 212 (2008). We apply that same standard when reviewing a trial court's decision to admit expert testimony, when it is claimed that the testimony deviates from opinions provided during pretrial discovery. See Conrad v. Robbi, 341 N.J. Super. 424, 442 (App. Div.), certif. denied, 170 N.J. 210 (2001).

In order to be excluded, we must find the testimony results in "surprise and prejudice to the objecting party." Id. at 440 (quoting 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)). Preliminarily, we consider "(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." Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd, 78 N.J. 308 (1978). Moreover, "[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).

Here, as noted, plaintiff's cause of action was supported by the claim that in order for decedent to have suffered such extensive brain damage, she must have lacked proper oxygenation for a minimum of five minutes. Up until trial, plaintiff knew that the defense would be, in part, that plaintiff misconstrued Henderson's notes as to the timing of the care she administered, bolstered by Manaker's testimony that it was physically impossible for there to have been a five-minute delay because the loud warnings emitted by the ventilator would have led other staff to immediately come to Henderson's aid. Plaintiff knew that the defense would also rely on Stern's testimony that decedent likely died from the combination and extent of the grave conditions she suffered before the incident, and inevitably would have died, even if the incident had not occurred.

Plaintiff could not reasonably have anticipated from anything supplied prior to trial, however, that the very theory upon which his claim of negligence was premised - i.e., the more than five minute lapse in response time - would be directly refuted by Stern. Indeed, in his report, Stern said that focusing on the events which occurred on the morning of November 21, 2005, was simply "missing the big picture" of decedent's medical condition, which included "a cornucopia of profound and life-threatening infections, which all, [unintelligible word] nonquantifiable manner, contributed to her untimely death." In deposition, when repeatedly asked directly about whether he considered a four or five-minute delay to be too long, Stern responded indirectly, by saying, for example, that he did not "think it's fair to be pinned down to a specific quantitative amount of time that would suggest that [Henderson] was then acting inappropriately by waiting too long." His eventual answer was that no standard response time existed.

The focus of Stern's report and his deposition testimony is patently clear: Henderson's response was within the universe of competent nursing care and the treatment of critically ill patients is always highly subjective. Never, prior to trial, did Stern offer any opinion regarding the effect oxygen deprivation would have on any patient much less this patient. Nothing in discovery, therefore, would have put plaintiff on notice that Stern would state, as he did at trial, that decedent's weakened medical condition meant that severe brain damage would result from a loss of proper oxygenation of less than five minutes. His testimony on this point was beyond that reasonably anticipated from discovery. He was, after all, neither a neurologist nor a pulmonologist. He was an internist specializing in infectious diseases.

Stern clearly said on at least four occasions during trial - except when the trial judge asked him questions about the precise nature of his testimony outside the presence of the jury - that the coma proved nothing about the timeliness and competence of Henderson's care.*fn1 Ironically, the fourth and final time he repeated the opinion came immediately after the judge ruled he could express it because it related solely to causation. Outside the presence of the jury, the judge heard Stern say nothing at variance with his deposition testimony or the material contained in his report. But, in the courtroom, before the jury, Stern said: "it would take certainly less than five minutes . . . certainly less than five minutes for her to develop an anoxic event . . . that the five minutes that we think of as sort of necessary to cause brain damage is in the robust twenty-year-old college kid . . . it's not, unfortunately, [decedent]."

The prejudicial impact of admitting the surprise testimony was compounded by the trial judge's decision not to allow plaintiff's counsel to cross-examine on the subject. A trial judge has broad discretion to control cross-examination of witnesses pursuant to N.J.R.E. 611(b). Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). We do not interfere with a trial court's discretion absent a clear abuse of that discretion. Ibid. "An abuse of discretion occurs where the trial court decision was 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Van Horn v. Van Horn, 415 N.J. Super. 398, 409 (App. Div. 2010) (quoting United States v. Scurry, 193 N.J. 492, 504 (2008)). By the same token, experts should be subjected to searching cross-examination. Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990); State v. Wakefield, 190 N.J. 397, 452 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

In this case, plaintiff was asserting that defendants' conduct, the delay in clearing the obstruction, was a deviation from the professional standard of nursing care and therefore a breach of duty, as well as, ultimately, the proximate cause of death. Defendants succeeded in convincing the court, however, that because Stern's statements addressed causation only, decedent's pre-existing ailments made her more vulnerable than a healthy, younger person to the sequelae from loss of oxygen, plaintiff's counsel could not cross-examine defendant's expert on other matters. Therefore, plaintiff was barred from testing the expert's expressed premise that given the patient's pre-existing condition, the decedent would have suffered an anoxic event within a much shorter period of time than plaintiff's expert opined. However, what defendants failed to acknowledge then, and even now, is that by attempting to "disprove" that the harm, i.e., the ensuing coma, established the five-minute delay, Stern's opinion testimony touched upon issues impacting both liability and causation and therefore should have been subjected to further scrutiny on cross-examination than otherwise allowed by the trial judge.

Thus, the characterization of Stern's testimony with regard to plaintiff's five-minute theory as going merely to causation, and not liability, is sheer sophistry. The distinction is without a difference. Stern's testimony with regard to the crucial five minutes, although certainly implicating causation, as well, directly refuted plaintiff's proof of Henderson's claimed deviation from the professional standard of nursing care. The two categories are indistinguishable in this particular case. The court in our view therefore erred in characterizing the testimony as related solely to causation.

That plaintiff was unable to cross-examine was highly prejudicial and an abuse of discretion. The decision to bar the examination because the jury already understood plaintiff's theory of the case was an "impermissible basis" for the decision because the rationale was unrelated to the purpose of the examination. See Van Horn, supra, 415 N.J. Super. at 409.

The trial court also prevented plaintiff from testifying about the statements allegedly made to him by an unidentified intensivist and nurse in decedent's hospital room shortly after his wife's ventilator crisis on the theory that it was irrelevant and that the hospital was not a party opponent. This is not correct. The hospital is clearly a party opponent. It is a named defendant and the facility where decedent was cared for during her final illness. Thus this basis for exclusion was improper. We leave the issue of whether the statements are relevant or otherwise admissible to the circumstances as they may develop in the next trial of the matter.

Reversed and remanded for a new trial.

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