Opinion
DOCKET NO. A-4704-13T3
03-08-2016
SYLVIA M. EMERS, EXECUTOR OF THE ESTATE OF ALBERT J. EMERS and INDIVIDUALLY, Plaintiff-Appellant, v. KEVIN S. LYONS, D.P.M. and BURLINGTON COUNTY FOOT & ANKLE ASSOCIATES, INC., Defendants-Respondents.
Gary F. Piserchia argued the cause for appellant (Parker McCay, P.A., attorneys; Stacy L. Moore, Jr., of counsel; John D. Cirrinicione, on the brief). Sharon K. Galpern argued the cause for respondents (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-792-11. Gary F. Piserchia argued the cause for appellant (Parker McCay, P.A., attorneys; Stacy L. Moore, Jr., of counsel; John D. Cirrinicione, on the brief). Sharon K. Galpern argued the cause for respondents (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief). PER CURIAM
In this wrongful death action, plaintiff Sylvia Emers, both individually and as executrix on behalf of the estate of her late husband, Albert J. Emers (decedent), appeals from the Law Division's denial of her motion for a new trial after a jury returned a verdict of "no cause" in favor of defendants, Dr. Kevin Lyons, D.P.M., decedent's podiatrist, and Burlington County Foot & Ankle Associates, Inc.
Plaintiff's complaint alleged causes of action for wrongful death, survivorship, and loss of consortium, asserting Dr. Lyons deviated from the proper standard of care while treating decedent for various foot ailments stemming from diabetes. Further, plaintiff maintained this deviation ultimately resulted in decedent's death.
On appeal, plaintiff argues a new trial is required because prejudicial evidentiary admissions by the trial judge resulted in the defense verdict. These include: improperly allowing defendants to impeach plaintiff's liability expert regarding his prior expert engagements; not requiring defendant's production of professional medical guidelines used in cross-examining plaintiff's liability expert; and uttering improper and prejudicial comments during trial. Plaintiff maintains these cumulative errors resulted in a miscarriage of justice and require a new trial. Following our review of the record and applicable law, we disagree and affirm.
We reprise the facts necessary to examine the challenges raised on appeal. Defendant's treatment of decedent began on March 9, 2009. Decedent suffered preexisting conditions of diabetes, diabetic neuropathy (described at trial as an altered sensation in the foot), cardiac problems, and foot deformities predisposing him to foot ulcers. He consulted defendants because of a sore on his toe and for advice for care of his feet, toes, and toenails.
After a May 4, 2009 follow-up appointment, decedent's daughter-in-law observed decedent's left foot was bandaged. When decedent returned from the appointment with Dr. Lyons, plaintiff noticed a "hole" in decedent's left foot, which, although not bleeding, was covered in gauze. However, later that evening, the wound began to bleed "uncontrollably." The condition of decedent's left foot worsened over the ensuing two weeks, including spreading redness and swelling throughout the foot.
On May 15, 2009, decedent again sought medical care from defendants. After Dr. Lyons examined decedent, he had him admitted to Virtua Hospital. A few days later, Dr. Lyons advised decedent his toes required surgical removal. He operated upon decedent on May 19, 2009, removed decedent's first and second toes and a portion of the first metatarsal and debrided a portion of the underlying soft tissues. Dr. Lyons advised the decedent he needed a second surgery to remove additional gangrenous portions of decedent's foot.
Plaintiff and her children decided to consult different doctors and transferred decedent to Cooper Hospital. On June 12, 2009, decedent underwent mid-foot amputation performed by Cooper physicians. Decedent passed away on June 15, 2009, at age seventy-two.
During the five-day trial, each party presented experts who testified regarding the condition of decedent's foot and whether defendant's professional actions or omissions contributed to decedent's condition and death. Following the jury's no-cause verdict, plaintiff moved for a new trial, which was denied. This appeal ensued.
Plaintiff's first argument on appeal centers on what she suggests was impermissible cross-examination of plaintiff's expert, James Christopher Connor, D.P.M. Dr. Connor opined defendants deviated from the recognized standard of care by not culturing the wound; not performing an MRI, in addition to x-rays, which were negative, to determine whether the bone was infected; and not performing the required more extensive amputation.
On cross-examination, defendants asked Dr. Connor whether he prepared a list of cases when he testified as an expert. When defendants pressed Dr. Connor for the specifics of his prior expert presentations, plaintiff objected. The judge overruled the objection.
As background, defendants initially requested the list during Dr. Connor's deposition. Prior to trial, Dr. Connor had not produced the list. Further, Dr. Connor mentioned his prior engagements during his direct examination, prompting questions on cross—examination. Plaintiff objected and the trial judge was asked to determine whether Dr. Connor was required to respond. He concluded the information was relevant and directly pertained to the expert's credibility.
On appeal, plaintiff suggests defendants' failure to follow up on the pre-trial request prevented them from raising the issue at trial. Further, she argues allowing the request at trial caused the jury to evaluate Dr. Connor's credibility based on his failure to prepare the list, not his medical opinion. We conclude these claims are unavailing.
The scope of cross-examination is restricted "to the subject matter of the direct examination and matters affecting the credibility of the witness." N.J.R.E. 611(b). Undoubtedly, a primary objective of cross-examination is "to shed light on the credibility of the direct testimony." Janus v Hackensack Hosp., 131 N.J. Super. 535, 541 (App. Div. 1974), certif. denied, 67 N.J. 95 (1975). Experts generally are subject to a "searching cross-examination." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.) (quoting DaGraca v. Laing, 288 N.J. Super. 292, 302 (App. Div.), certif. denied, 145 N.J. 372 (1996), certif. denied, 165 N.J. 607 (2000)). Not only may medical experts be questioned regarding "testimonial and experiential weakness[es]," Janus, supra, 131 N.J. Super. at 541 (quoting Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961)), but also the "expert's multiple appearances in court are fair game for cross-examination[,]" Espinal v. Arias, 391 N.J. Super. 49, 61 (App. Div.), certif. denied, 192 N.J. 482 (2007), to challenge the opinion offered as biased. See also Gensollen v. Pareja, 416 N.J. Super. 585, 590 (App. Div. 2010) (stating information regarding prior testimony is relevant and allows "the requesting party to argue to a factfinder that the expert is a 'professional witness' or 'hired gun' who mostly offers opinions that largely seek to vindicate a particular position").
Plaintiff takes issue with the manner used to narrow in on whether Dr. Connor maintained a list of cases he worked on, suggesting any credibility challenge focused on a collateral issue, that is, his failure to prepare the list. The argument ignores Dr. Connor's statements, elicited on direct, regarding his expert witness practice, including his proclamation he appeared as an expert witness in medical malpractice cases for "at least 25 years" and "[m]ost often for plaintiffs." Plaintiff also asked why Dr. Connor testified on behalf of plaintiffs and how many times he had done so in the past year, evoking this statement: "[T]he only cases I do take are those that I do find that there's been a significant deviation from the standard of care on the part of the doctor involved as a defendant." Not surprisingly, Dr. Connor's asserted justification for testifying on behalf of plaintiffs in medical malpractice cases was probed as a central point of contention during cross-examination. The inquiry properly examined the expert's bias, which directly related to his credibility.
We also find unavailing the suggestion defense counsel interjected his personal opinion that Dr. Connor was a "hired gun," by raising the nature of Dr. Connor's testimony in other matters. The comments of prior interaction arose when Dr. Connor suggested he did not recognize the need to maintain a list of cases he worked on, despite that this exact issue had arisen in a different trial prior to his testimony in this matter. Counsel's questions highlighted that Dr. Connor in fact had been told his failure to keep records prevented scrutiny of his oft-repeated claim he reviewed six to ten cases and rejected four per year.
Following our consideration of the entire record, we conclude defendants attacked what appeared to be a stock response by Dr. Connor given on direct and repeated on cross-examination, which dodged the question seeking to pin him down as testifying only for plaintiffs. We reject as unavailing plaintiff's assertions of error. We conclude Judge Baldwin properly exercised his discretion in allowing the examination, relevant to Dr. Connor's past trial appearances, to aid the jury's assessment of his objectivity. See Janus, supra, 131 N.J. Super. at 541 (holding "[c]redibility of the competing medical witnesses [is] a paramount factor to be first determined by the jury in resolving the controversy[,]" making it reversible error for a trial judge to preclude a defense attorney from questioning an expert witness regarding the number of times he had recently appeared in court). Plaintiff's claims of a miscarriage of justice are rejected as lacking merit.
Next, plaintiff maintains the judge erred by refusing to require defense counsel to provide Dr. Connor with a physical copy of the infectious disease standards, which were the basis of cross-examination. This claim lacks merit. R. 2:11-3(e)(1)(E). We add these brief comments.
Dr. Connor stated while in medical school he was trained to recognize clinical signs of wound infection, took continuing medical education, and read articles on the topic. He was asked whether there were "recognized criteria, signs and symptoms for diabetic wound infection" to which he responded, "[c]ould you state them?" Examination continued regarding whether he agreed with guidelines that included practice recommendations for treatment and whether he was familiar with the Infectious Disease Society of America (IDSA) and its "clinical classification of a diabetic foot infection." He responded: "I'd have to look at it." In response to other questions, Dr. Connor offered his opinion regarding specific guidelines mentioned. During this exchange, defense counsel responded to one particular remark stating, "Okay. Maybe I didn't hear you. I thought you agreed with the IDSA guidelines."
Plaintiff believes the questions and statement were inappropriate because the guidelines were not produced in response to her discovery requests, or shown to the jury and Dr. Connor, rendering their admission prejudicial.
Looking at the pre-trial discovery, defendants' response to the document request included an objection citing work product and privilege. Plaintiff did not move to require a more complete answer.
Also, questions regarding the guidelines were properly permitted as the "learned-treatise rule 'allows texts to be established as reliable authority by experts other than the cross-examined expert, as well as by judicial notice.'" DaGraca, supra, 288 N.J. Super. at 299 (quoting Jacober v. St. Peter's Medical Ctr., 128 N.J. 475, 489-90 (1992)). "[T]he rule 'avoid[s] the possibility that the expert may at the outset block cross-examination by refusing to concede reliance or authoritativeness.'" Jacober, supra, 128 N.J. at 490 (second alteration in original) (quoting Fed. R. Evid. 803(18) advisory committee's note).
Further, this line of questioning aimed to undermine Dr. Connor's expertise and opinion regarding Dr. Lyons' liability. Such an inquiry was fair game for cross-examination. See DaGraca, supra, 288 N.J. Super. at 299-301 (quoting Jacober, supra, 128 N.J. at 494-95) (stating how it is illogical and unfair "to permit witnesses to give expert opinions based on book knowledge, and then deprive the party challenging such evidence of all opportunity to interrogate them about divergent opinions expressed in other reputable books.").
For all of these reasons, we discern no error occurred. We have no basis to interfere with the trial judge's determinations or require a new trial.
Plaintiff's final argument identifies six comments by the judge, one of which was uttered at side-bar, which plaintiff interprets to suggest plaintiff's counsel was inexperienced, Dr. Connor was not credible, Dr. Lyons was credible, and plaintiff's theory of liability was implausible. Plaintiff maintains the cumulative effect amounted to a miscarriage of justice as the statements sent a message to the jury plaintiff's case "was ludicrous."
"[T]he cumulative effect of small errors may be so great as to work prejudice" and may, where warranted, afford a new trial. Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 53 (2009). On this issue, plaintiffs carry a "heavy burden" to clearly demonstrate these trial errors shifted the jurors' attention away from their fair evaluation of the evidence. Id. at 52, 55.
In our consideration of the trial record, we do not simply count mistakes. Id. at 55. Indeed, the Supreme Court has "never implied . . . that the simple addition of small and otherwise inconsequential mistakes will amount to cumulative error that supports relief." Id. at 51. Instead, our review must be qualitative, not quantitative.
We have considered each of the five exchanges conducted in the presence of the jury, along with their context. We detect no prejudice by any remark, when considered individually or cumulatively, to warrant a new trial. Plaintiff's attempt to isolate the judge's statements and characterize their perceived impact is rejected. When sustaining a hearsay objection, the judge's remark concerning plaintiff's argument as "not even close" and "directly contrary to the law," was neither erroneous nor demeaning. Commentary explaining the basis of rulings was not so prejudicial to warrant a new trial. Finally, the judge's interjection during plaintiff's cross-examination of Dr. Lyons, requesting a more complete question to avoid any jury misunderstanding, was innocuous.
Even ascribing the most sardonic interpretation to the judge's comments, as suggested by plaintiff, we cannot agree these comments affected the trial by "shift[ing] the jury's focus from a fair evaluation of the evidence." Id. at 55. We conclude the trial was fair and the verdict was supported by the evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION