FRANCES PARKER, Individually and as General Administratrix of the ESTATE OF DALE S. PARKER, Plaintiff-Appellant,
JOHN W. POOLE, M.D., Defendant-Respondent, and HOLY NAME HOSPITAL and DOUGLAS BENSON, M.D., Defendants
Argued October 7, 2014
Approved for Publication March 17, 2015.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7098-09.
Dennis T. Smith argued the cause for appellant ( Pashman Stein, attorneys; Mr. Smith and David G. White, on the briefs).
Philip F. Mattia argued the cause for respondent ( Mattia & McBride, P.C., attorneys; Mr. Mattia, on the brief).
Before Judges YANNOTTI, HOFFMAN and WHIPPLE. The opinion of the court was delivered by HOFFMAN, J.A.D.
[440 N.J.Super. 11] OPINION
Plaintiff Frances Parker, individually and as administrator of the estate of her late husband, Dale Parker (" Mr. Parker" ), appeals from the no cause jury verdict returned in the medical malpractice case against her husband's surgeon, defendant John W. Poole, M.D., and from the order denying plaintiff's motion for a new trial. Plaintiff contends that the trial court erred in excluding certain evidence. For the reasons that follow, we reverse and remand for a new trial.
We begin by summarizing the most pertinent trial evidence. Mr. Parker was diagnosed with colon cancer when a tumor was discovered during a colonoscopy. A biopsy had revealed that Mr. Parker had an invasive adenocarcinoma of the colon, and he was referred to defendant to immediately undergo surgery to remove the tumor. Defendant, a board-certified general surgeon, saw decedent for a surgical consult on February 13, 2009. Defendant performed the surgery, a transverse colon resection, to remove the tumor on February 19, 2009. After removing the tumor, [440 N.J.Super. 12] defendant performed an open anastomosis, sewing the colon back together, to close the opening. Defendant reported no difficulties during the surgery.
After the surgery, Mr. Parker remained in the hospital. At some point between February 22 and 23, he developed complications. On February 23, nurses observed blood-tinged fluid coming from the surgical site. Examination by defendant revealed that Mr. Parker had developed a dehiscence. Based on the risk of the incision
re-opening, defendant decided to perform a second operation to repair the dehiscence.
On February 24, defendant performed the second surgery. During the procedure, defendant noticed some " murky fluid in the abdominal wound." As a result, he investigated to determine if there was an anastomotic leak, a hole or perforation in the intestine that allows intestinal contents to leak into the abdomen. While defendant testified, " We never saw a hole[,] [w]e never saw a perforation," he nevertheless decided to resect or remove the anastomosis. He explained, " I felt the anastomosis was not perfect[; ] . . . my job as a surgeon was to make the anastomosis perfect." Defendant continued to follow Mr. Parker after the surgery on the 24th; however, " he had a cataclysmic rapid demise and ultimately expired early on the 26th."
Plaintiff's theory in the case was that defendant negligently performed the first anastomosis, creating a leak, which led to sepsis, and that defendant then negligently failed to address the sepsis. Specifically, plaintiff contended that, because defendant encountered evidence of infection in the second surgery, he should have performed an ileostomy, a procedure where a loop of small bowel would have been externalized to stop feces from coming into the abdomen, and then drained the abdomen to remove the purulent fluids, and allowed Mr. Parker to heal. Once healed, Mr. [440 N.J.Super. 13] Parker could have undergone a re-anastomosis. Defendant indicated that he performs such " ostomy" procedures " all the time." 
The defense disputed the source of the sepsis which caused Mr. Parker's death, as well as the timing of the onset of the sepsis. At trial, plaintiff sought to introduce defendant's deposition testimony, specifically, an exchange in which defendant responded to a question about the cause of Mr. Parker's death:
Q: Why did Mr. Parker die?
A: It appears that he got septic, though I'm not sure why he had such a rapid demise.
Q: To what did you attribute the sepsis?
[Defendant's Counsel]: Objection, but you can answer.
A: I have to assume that it was related to the anastomotic leak.
When plaintiff sought to read this deposition excerpt into the record as part of her case, defendant objected, arguing that the language he used in response (" I would have to assume" ) was speculative. Plaintiff argued that it was an admission by a party-opponent and thus admissible under N.J.R.E. 803(b)(1), regardless of any claimed speculative nature.
The trial court sustained the objection, finding the testimony speculative. The court also appeared to question the propriety of plaintiff attempting to elicit expert testimony from defendant.
Essentially, what plaintiff urges -- it converts [defendant] into an expert witness. It's asking him to render an opinion when, in fact, he's being called as a fact witness. Now we have a number of expert witnesses who have opined as to Mr. Parker's cause of death. [I]t's not really a [ N.J.R.E. ] 701 [issue], where we're asking for opinion testimony of a lay witness because it's not [an] opinion as to . . . how fast was he going in your common experience.
It's an opinion that requires expertise. The reality, it seems, is that the . . . cause of death isn't so much the ultimate question here. . . . [T]he ultimate question is, whether or not [defendant] departed from the standard of care required of him. And I do think that it is asking for, again over the objection of [defendant's] attorney, for him to become an expert witness against himself.
[440 N.J.Super. 14] And in addition to that, it is cumulative and it is calling for speculation on his part. And therefore, I'm going to uphold [defendant's] objection and I'm not going to allow it to be read into evidence[.]
On direct examination, defendant testified that " Mr. Parker had no evidence of sepsis at the time leading up to the [second] surgery, at the time of the surgery, and immediately in the recovering room after the surgery."  Nevertheless, in the operative report defendant dictated immediately after the second surgery, he wrote, " I did not want to take the chance the anastomosis was leaking and would cause further sepsis." (Emphasis added). Defendant attempted to explain this apparent contradiction in the following colloquy, still on direct examination:
Q: When you said you were concerned it would cause further sepsis what did you mean by further sepsis?
A: I meant at a point in time. I might have actually dictated future sepsis but I mean, further down the road. I would -- a chance at this would cause sepsis. So unfortunately -- I probably ...