November 13, 2012
DORIS FIELDS, PLAINTIFF-APPELLANT,
HACKENSACK UNIVERSITY MEDICAL CENTER, DEFENDANT, AND DANIEL DRAGONE, M.D., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0208-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Alvarez, Waugh, and St. John.
Plaintiff Doris Fields appeals the June 22, 2010 jury verdict in favor of defendant Daniel Dragone, M.D. We affirm.
We discern the following facts and procedural history from the record on appeal.
Fields, who was sixty-three years old at the time, underwent a total knee replacement on her left knee on July 12, 2006. The surgery was performed at Hackensack University Medical Center (Medical Center). Dragone was the anesthesiologist for the surgery. Fields contends that Dragone inserted the anesthesia needles into her spinal canal at the T12-L1 or L1-L2 level, whereas the applicable standard of care called for insertion at or below the L3-L4 level. She further contends that Dragone's failure to follow the standard of care caused her permanent injury.
Fields filed a medical malpractice action against Dragone and the Medical Center in January 2008. The complaint was amended in June. The claims against the Medical Center were dismissed, and the action proceeded against Dragone only. Following a jury trial and two days of deliberation in June 2010, the jury returned a defense verdict. This appeal followed.*fn1
On appeal, Fields argues that the trial judge erred in restricting the testimony of one of her expert witnesses, while declining to restrict the testimony of Dragone's expert. She also argues that the judge erred in refusing to give a missing-witness charge after Dragone's counsel decided not to present testimony from several defense experts who were identified as witnesses. Finally, she argues that Dragone's counsel acted unfairly by failing to notify Fields' counsel in advance that he would not be calling all of Dragone's experts.
We start our discussion with the issues related to the trial judge's evidential rulings.
The admissibility of expert testimony lies in the sound discretion of the trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993); Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004). Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect an abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is not warranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
At trial, Fields presented Alexander Weingarten, M.D., a board-certified anesthesiologist, as one of her expert witnesses. He testified concerning the proper spinal-cord location for the administration of epidural anesthesia. He was then asked by Fields' attorney about the standard of care for sedation prior to the epidural. Dragone's counsel objected and the objection was sustained.
Fields sought to present testimony that Dragone was negligent in administering five milligrams of midazolam*fn2 prior to the epidural, which he opined could have caused Fields to be unresponsive to pain from the insertion of the epidural needle in her lower back. The issue was whether that opinion was reflected in Weingarten's report or deposition.
Regarding Fields' preoperative sedation, Weingarten's report states: "The patient was given IV sedation consisting of 5 mg of midazolam upon arrival to the operating room." The following appears under the comment section of the report:
The patient was also given [midazolam] 5 mg at the start of anesthesia which is a short-acting sedative and anxiolytic. It also is an effective drug in blunting recall by the patient of intraoperative events.
In performing a spinal/epidural anesthetic, the patient should not be heavily sedated because successful spinal and epidural anesthesia requires patient participation to: 1. Maintain good position[;] 2. Evaluate block height[; and] 3. Indicate to the anesthesiologist about paresthesias, if the needle contacts neural elements.
Weingarten's conclusion states:
As a result of the anatomical variations as to where the spinal cord terminates, it is generally safe to perform the procedure at the L3 level and below. The resulting paresis of the left lower extremity and pain which was noted by the patient in the early postoperative period was a direct result of spinal cord trauma as evidenced above. The patient had no prior neurological complaints preoperatively.
I therefore find that [Dragone] deviated from accepted medical standards in his anesthetic management of Doris Fields for the reasons noted above. This deviation was the proximate cause of the patient's present disabilities.
Weingarten did not opine that the administration of midazolam or the quantity administered was a deviation from the standard of care.
The following testimony was given during Weingarten's deposition:
DRAGONE'S COUNSEL: Have you ever had a patient experience any of these kind of complaints post needle placement in your career?
WEINGARTEN: Well, it's very common that patients get paresthesia where you go in at L3-4 and they complain of a shooting pain down the leg. That's why we do these patients awake, so you withdraw the needle, because nerves can't be seen going in, and you redirect the needle until you don't have these complaints.
You never go into an area or continue to go in when the patient is complaining of electric shock down the leg. Besides spearing the nerve, which the needle is doing, if you inject medicine through the needle, while it's spearing the nerve, you get an intraneural into the nerve injection, and that can cause permanent injury to the nerve.
When the patients complain of paresthesias, shooting pain, protocol and safety and the standard of care is to withdraw the needle, document that the paresthesia went away, the patient has full neurological function, you have them lift their leg while doing the procedure, you document that, you reinsert it and make sure it doesn't happen again. Then give them the medicine.
DRAGONE'S COUNSEL: Was this patient awake? WEINGARTEN: The patient was sedated.
DRAGONE'S COUNSEL: You used the term awake when you described how this procedure is done so that the patient can tell you whether or not . . . he or she has experienced any temporary weakness or nerve damage resulting from temporary nerve damage. . . . So I'll use your term. . . .
Was this patient awake?
WEINGARTEN: Well, the patient was sedated.
DRAGONE'S COUNSEL: But was she awake?
WEINGARTEN: I don't know that.
During Weingarten's direct testimony at trial, Fields' counsel sought to explore the issue of sedation.
Q: Is it [the] proper standard of care to administer drugs before you administer the spinal epidural or not?
A: Well, again, you want a patient to be responsive during the procedure. If the patient is a little anxious, you may want to give them a tiny dose of what we call anoxylitic or benzodiazepine type medicine, like a valium type medicine. . . . So you want to get them to be a little calm, but you also want the patient to be responsive. Because again, we're doing this as a blind technique. Nerves -- you can't see the nerves. You can only listen to what the patient feels if we for some reason have injury in this cauda equina.
If the needle is touching any of these horse hairs, the patient is going to start to complain of electric type pain down the leg. It's called paresthesia. The only way we're going to know that is if the patient talks to us.
So you don't want to over sedate the patient where they're non-responsive and they can't talk because then you're going to lose that safety factor of the patient feeding back to you that . . . there's a problem with the way the technique is followed.
Q: Was that done in this case?
A: Well, again, [Fields] did receive a fair amount of [midazolam], so it is possible that she was less responsive than if she would --DRAGONE'S COUNSEL: Objection . . . .
- SIDEBAR DISCUSSION -
DRAGONE'S COUNSEL: . . . . There is no claim here that [Dragone] gave [Fields] more benzodiazepine than was permitted by the standard of care so that she would be less responsive.
There is no connecting testimony whatever medication was given to sedate this patient and the injury that the patient claims.
THE COURT: . . . is that she wasn't able to respond to the doctor to say that the needle hurts. . . . [T]he problem is there's nowhere in the anesthesia record [Weingarten] has an opinion that she was given improper dosage of [midazolam].
FIELDS' COUNSEL: . . . I'm not saying that. I'm saying she shouldn't be sedated prior to the introduction of the spinal because we don't know if she is not responsive.
THE COURT: He cannot give that opinion.
FIELDS' COUNSEL: So he wrote in the final spinal epidural, the patient should not be heavily sedated because successful spinal epidural requires patient participation. And you're saying he can't testify to that even though it's in his report[?]
THE COURT: He can testify to that. . . . But he can't say that she was given too much.
FIELDS' COUNSEL: He doesn't say she was given too much, Judge.
THE COURT: The report itself states the following, "Performing a spinal epidural anesthetic, the patient should not be heavily sedated because successful spinal, and epidural anesthesia requires patient participation to maintain the position, evaluate block height, indicate to the anesthesiologist about paresthesia if the needle contacts neural elements." There is nothing in the report that says that the anesthetic given was too much or the wrong one or that [Fields] should not have been given it.
It's the statement that a patient should not be heavily sedated so that these one, two, three, can be accomplished.
There's no opinion here . . . that [Dragone] heavily sedated this patient improperly.
FIELDS' COUNSEL: I misread it.
THE COURT: No, I read it. You didn't misread it. . . . [W]e don't even know . . . why it was the wrong drug, how it was the wrong drug, how much should have been given, why it was the wrong amount. If this was his opinion, that should be in there. This is a new opinion. You can't do this first time at the time of trial.
And his deposition was taken. He had the opportunity to give all of his opinions about the deviations of the standard of care at his deposition. . . .
Also, I mean, now that I'm fully reading the report, there is a comment made under comments. First paragraph under comment, second to last sentence, "The patient was also given [midazolam], five milligrams at the start of the anesthesia which is a short acting sedative, anoxylitic. It also is an effective drug in wanting recall by the patient of intraoperative events." He doesn't say anything more than that about [midazolam]. He does not say the [midazolam] was improper or the wrong dosage.
There is nothing in this report to indicate that there was -- that the [midazolam] was improperly given or that it was the wrong dosage. Nothing. I'm not going to allow him to testify to that.
No. If the doctor had an opinion on that day [of his deposition] that [midazolam] was inappropriate, that would have come out in that time. It would have come out in this report. He's stating a fact that [Fields] was given [midazolam] at five milligrams and he said in his deposition exactly what he said in his report, it's an effective drug imbruting recall by a patient of intraoperative events which is something that apparently . . . Weingarten is a positive thing based upon his deposition testimony.
He doesn't say anything that it was an improper drug or that she was too heavily sedated or it was the wrong dosage for her. I am not allowing that line of questioning. That is the decision of this court.
Because that would be an entirely new opinion and defense counsel has not had an opportunity to have his experts respond to it.
Fields argues that Dragone's counsel "certainly could have asked . . . Weingarten at deposition, if by said statements . . . he was opining as to an additional deviation or not. He did not do so." She contends that Dragone's counsel's failure to inquire as to whether the amount of midazolam administered to Fields was excessive should not result in Weingarten's testimony being barred. Fields further argues the judge's ruling was in error because it was made without a hearing and the judge failed to consider all of Weingarten's deposition testimony.
Rule 4:17-4(e) provides that an expert's report "shall contain a complete statement of that person's opinions and the basis therefor; [and] the facts and data considered in forming the opinions." In Conrad v. Robbi, 341 N.J. Super. 424, 440-441 (App. Div.), certif. denied, 170 N.J. 210 (2001), we held that a trial judge has the discretion to exclude
[e]xpert testimony that deviates from the pretrial expert report . . . if the court finds "the presence of surprise and prejudice to the objecting party." Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000). In New Jersey, "[i]t is well settled that a trial judge has the discretion to preclude expert testimony on a subject not covered in the written reports furnished in discovery." Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990). As a result, an abuse of discretion standard of review is utilized in appellate oversight of a trial judge's decision to allow or to exclude such testimony. Velazquez, supra, 321 N.J. Super. at 576. In Westphal v. Guarino, [163 N.J. Super. 139, 146 (App. Div.), aff'd, 78 N.J. 308 (1978),] we identified a number of factors for a Law Division judge to consider in exercising his or her discretion . . . . [including] (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of evidence. Ibid.
Although a trial judge may exclude expert testimony on a subject not covered in the expert's written reports or any other discovery material, Mauro v. Raymark Indus., Inc., 116 N.J. 126, 145 (1989), "[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).
We find no abuse of discretion in the trial judge's conclusion that Weingarten could not testify that Dragone failed to comply with the applicable standard of care because Fields was improperly sedated. We also conclude that there was no need for a Rule 104 hearing. No opinion concerning a deviation based on the amount of midazolam actually administered was contained in Weingarten's report or deposition, nor was such an opinion a logical extension of the opinions he stated expressly in his report and deposition. While it is true that Weingarten stated that Fields had been sedated and, separately, that the standard of care dictates the patient should not be over sedated, he never gave an opinion that Fields had been over sedated. In fact, at his deposition he testified that he did not even know, one way or another, whether Fields was actually awake when the epidural was given.
The defense presented Adam Hecht, M.D., a board-certified radiologist, as its expert witness. He testified to his opinion that a spinal cord signal abnormality, found adjacent to the T12 level in Fields' diagnostic studies, was not likely to have been caused by the administration of the epidural at the T12-L1 or L1-L2 level. He stated that the abnormality most likely resulted from a spinal cord infarction.*fn3 Hecht was permitted to testify, over Fields' objection, that a spasm, or muscular contraction, may have caused the infarct. Fields contends that such testimony should have been excluded because that opinion was not disclosed during discovery.
In his September 2009 supplemental expert report, Hecht had responded to the opinion of one of Fields' experts that the presence of the signal abnormality at the T12 level indicated that there had been traumatic injury to the spinal cord, even though there was no direct evidence of trauma. Hecht opined that "a focal spinal cord infarct is the most likely cause for the spinal cord signal abnormality." He further stated that the "cord signal changes at the T12 level are most consistent with a cord infarct. There is no hemorrhage or swelling to suggest direct trauma."
During Hecht's direct examination at trial, Dragone's counsel questioned Hecht about the infarct.
Q: [A]ssuming there was a cord infarct, for purposes of my question, would that demonstrate somehow, that [Dragone] placed his needles at a level other than L3/L4?
Q: Why do you say that?
A: Because if it's a cord infarct, it doesn't indicate that there was direct trauma to the conus. A cord infarct can be caused by many possible reasons, entirely unrelated to the level that the procedure was performed.
Q: Do you know what a spasm is?
Q: In the context of the anatomy we're talking about?
Q: What's a spasm in that context, sir?
A: A spasm is -- when you're talking about arteries or the anterior spinal artery that supplies the blood flow to the cord -- a spasm is a -- almost like a muscular contraction. Arteries are lined by smooth muscle -- the inner wall of arteries, and so, if the artery is irritated or traumatized in any way, it can spasm down and it can kind of clamp down. And so, for a period of time, there would be decreased blood flow through that artery that's -- Q: And what would that decreased blood flow result in, if anything?
A: It could -- FIELDS' COUNSEL: I'm just going to object, Your Honor.
- SIDEBAR DISCUSSION -[Fields' counsel argues that "spasm" is not in Hecht's report or in his deposition testimony.]
THE COURT: If [Hecht] talked about decreased blood flow, he can talk about decreased blood flow.
FIELDS' COUNSEL: Well, it's a spasm.
This is something new to me.
THE COURT: He's saying it's one of the things that can cause a decreased blood flow.
At that point, the jury was excused so the judge could examine Hecht's deposition testimony. At his deposition, Hecht had testified: "I believe that a transient decrease in blood pressure during the procedure, while that could be a cause for the spinal infarct, there are also other reasons." After reviewing that segment of the deposition, the judge held: "[Hecht is] explaining that the cord infarct could be the result of an artery clamping down as a result of decrease in blood flow." The judge then permitted the line of questioning to continue.
Fields is correct that the word "spasm" was not used in Hecht's report or at his deposition. However, he clearly stated in his report that it was his opinion that the likely cause of the spinal cord signal abnormality was an infarct rather than direct trauma. At trial he testified that a spasm can cause such an infarct, although he did not testify that it did in this case. Dragone's counsel was clearly put on notice by the report that Hecht attributed the abnormality to an infarct. The causes of an infarct could have been explored at the deposition. This was especially so after Hecht's deposition testimony that a decrease in blood flow was one of several causes of an infarct. As explained above, "[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).
We see no abuse of discretion in the trial judge's ruling. Even were we to find that there was error, we would nevertheless conclude that it was harmless. The focus of Hecht's opinion was that an infarct, rather than trauma from the epidural, caused the signal abnormality. A spasm was one of several potential causes of an infarct.
Hecht's testimony also disputed the assertion of one of Fields' experts that the presence of air bubbles in the soft tissues adjacent to the T12-L1 and L1-L2 levels marked the trail of the epidural needle. Hecht testified to his opinion that the air bubbles at issue had moved within Fields' soft tissue to the level at issue. Fields argues for the first time on appeal that Hecht gave an impermissible net opinion.
Because this issue is raised for the first time on appeal, we apply the plain error standard. Plain error is error that is "clearly capable of producing an unjust result." R. 2:10-2. See Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 128 (2008); Das v. Thani, 171 N.J. 518, 530 (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. State v. Douglas, 204 N.J. Super. 265, 273 (App. Div.), certif. denied, 102 N.J. 378 (1985) (citing R. 1:7-5 and 2:10-2).
Pursuant to N.J.R.E. 703, an expert's opinion must be based on "facts, data, or another expert's opinion, either perceived or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). Hecht's opinion with respect to the movement of the air bubbles was set forth in his expert report and was the subject of examination by Fields' attorney at his deposition and at trial. Fields never challenged Hecht's qualifications for giving the opinion, nor did she ever suggest it was a net opinion. We see no basis for concluding that the trial judge's failure to exclude the evidence sua sponte constituted error with "a clear capacity to bring about an unjust result."
Although Hecht had never performed an epidural, he testified at his deposition that he had given lumbar punctures below the conus during which air was injected into the spine. Consequently, he had sufficient experience to testify on that issue. See State v. Townsend, 186 N.J. 473, 495 (2006) (finding that expert opinion is not net opinion where the foundation for that opinion is the expert's "education, training, and most importantly, . . . experience"). See also Rosenberg, supra, 352 N.J. Super. at 403 ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience.").
Fields also contends that the judge erred in refusing to grant a mistrial after Hecht testified, in response to a hypothetical question, that the location of the air bubbles could also have been caused by movement of Fields' skin so that an area of fat, referred to as the fat pannus, would not impede access to the correct location for the epidural injection. According to Fields, this was a new opinion not reflected in Hecht's report or deposition.
The trial judge denied the application for a mistrial, holding that the testimony about the movement of the skin was a further explanation of Hecht's overall opinion that the location of the air bubbles was not indicative of the location of the epidural injection.
As with the issue of the infarct, we see no abuse of discretion in the trial judge's ruling, although in this instance, it may be a closer question. In any event, we conclude that any error was harmless. With respect to this issue, the focus of Hecht's opinion was that the air bubbles were not proof of the location of the epidural injection. The movement of the skin to avoid the fat pannus was an additional explanation of how the air bubbles came to be where they were. In contrast to Weingarten, who proposed to testify to a previously unidentified deviation from the standard of care for pre-epidural sedation that had not been mentioned in his report or deposition, Hecht was asked questions related to opinions he had already given in his supplemental report and deposition.
We now turn to the issues related to Dragone's decision not to call all of his expert witnesses.
Although Dragone had named several expert witnesses, he actually called only one of them, Hecht, at trial. Hecht and Sheldon Deluty, M.D., one of the defense witnesses not called, had given conflicting opinions as to whether Fields had experienced a spinal infarct. Deluty was of the opinion that she had not, although his primary opinion was that there was no evidence of direct trauma adjacent to the level at which Fields' experts had claimed the epidural had been improperly given. Another defense expert, Aaron Rabin, M.D., was of the opinion that there had been "a tiny, tiny ischemic infarcted area." He also opined that Fields' condition was not the result of a deviation by Dragone. Consequently, none of the experts involved gave opinions that Dragone had deviated from the standard of care, even though they offered, to some extent, inconsistent reasons for the existence of the signal abnormality and the air bubbles.
Fields argues that the trial judge erred in refusing to charge the jury that it could draw an adverse inference from Dragone's failure to call expert witnesses mentioned during his opening statement. See State v. Clawans, 38 N.J. 162, 174-5 (1962). In addition, Fields argues that defense counsel was under a duty to give plaintiff's counsel advance notice that he would not be calling all of his witnesses.
We find no abuse of discretion in the trial judge's refusal to give an adverse inference charge with respect to Dragone's failure to call his other expert witnesses. In determining whether to give an adverse inference charge, the judge is called upon to determine whether the missing witness's testimony "'in respect to the fact to be proved' . . . would probably have been 'superior to that already utilized in respect to the fact to be proved.'" Wild v. Roman, 91 N.J. Super. 410, 415-416 (App. Div. 1966). "Caution is appropriate because of the variety of reasons, unrelated to fear of the content of the testimony, that may more reasonably explain a litigant's decision to refrain from producing a witness. . . . In many cases the only rational inference is that the witness's testimony would not have been helpful, which is something quite different than unfavorable or adverse." State v. Velasquez, 391 N.J. Super. 291, 307-308 (App. Div. 2007) (citations omitted). A number of cases have found adverse inference charges inappropriate where, as here, expert witnesses are at issue. See, e.g., Bradford v. Kupper Assocs., 283 N.J. Super. 556, 580 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996); McQuaid v. Burlington Cty. Mem'l Hosp., 212 N.J. Super. 472, 476 (App. Div. 1986).*fn4
The trial judge considered the likely testimony of the expert witnesses who were not called as it pertained to the facts at issue in the case, and concluded that an adverse inference charge was not warranted. We find no abuse of discretion in her denial of plaintiff's request for this charge.
The plaintiff in a medical malpractice case has the burden of proof. After hearing the testimony of Fields' expert witnesses and Dragone's first expert, Hecht, defense counsel, made a tactical decision to present no further expert testimony. We do not understand there to be a requirement that defense counsel make such a decision by a particular time during the trial or give opposing counsel advance notice of such a decision, unless directed to do so by the trial judge.
Fields argues on appeal that her attorney would have cross-examined Hecht on Deluty's opinion had he known that Deluty would not testify. That was a tactical decision he made, based on his assumption that Deluty would testify. There is no suggestion that he asked for or received specific confirmation that Deluty would actually testify before he made that tactical decision. Defense counsel did not violate any duty of candor to the tribunal and his adversary by not disclosing his trial tactics on an ongoing basis.
In summary, we find no reversible error with respect to the trial judge's evidentiary rulings or in refusing to declare a mistrial. We also conclude that the judge did not err in refusing to give an adverse inference charge. Finally, we conclude that defense counsel's tactical decision not to call all of his experts was not improper, unfair, or a violation of his duty of candor.