Opinion
DOCKET NO. A-1140-13T1
08-16-2016
GLORIA REIN, Plaintiff-Respondent/Cross-Appellant, v. DENISE FOG, D.O., BOOTH RADIOLOGY, INC., Defendants-Respondents, and JOAN F. O'SHEA, M.D., I/J/S/A, Defendant-Appellant/Cross-Respondent.
Thomas M. Walsh argued the cause for appellant/cross-respondent (Parker McCay, P.A., attorneys; Mr. Walsh, on the brief). John A. Talvacchia argued the cause for respondent (Stahl & DeLaurentis, P.C., attorneys; Mr. Talvacchia, on the brief; Sharon K. Galpern, on the brief). Gary D. Ginsberg argued the cause for respondent/cross-appellant (Ginsberg & O'Connor, P.C., attorneys; Mr. Ginsberg, on the brief; Stephen P. Burke, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, O'Connor and Suter. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4964-08. Thomas M. Walsh argued the cause for appellant/cross-respondent (Parker McCay, P.A., attorneys; Mr. Walsh, on the brief). John A. Talvacchia argued the cause for respondent (Stahl & DeLaurentis, P.C., attorneys; Mr. Talvacchia, on the brief; Sharon K. Galpern, on the brief). Gary D. Ginsberg argued the cause for respondent/cross-appellant (Ginsberg & O'Connor, P.C., attorneys; Mr. Ginsberg, on the brief; Stephen P. Burke, Jr., on the brief). PER CURIAM
There were two successive trials in this medical malpractice action. At the conclusion of the first trial, the jury found defendant Denise Fog, D.O., deviated from accepted standards of medical care, but were hung on whether defendant Joan O'Shea, M.D., had also deviated. The jury also determined thirty-five percent of plaintiff's ultimate injury was due to her pre-existing condition and sixty-five percent was due to a delay in treatment, and awarded plaintiff $1,940,000 in damages.
The record informs us that there was no issue as to proximate causation.
On April 1, 2013, the trial court granted Fog's motion for a new trial on liability and vacated the verdict against her, ruling that the case be tried anew against both defendants. On May 24, 2013, the court denied O'Shea's motion for reconsideration of the April 1, 2013 order.
At the conclusion of the second trial, the jury found that both Fog and O'Shea had deviated from accepted standards of medical care, and determined Fog was forty and O'Shea sixty percent negligent. On September 27, 2013, the court denied O'Shea's motion for a new trial.
O'Shea appeals from all of the above orders. Plaintiff cross-appeals, contending the court erred by permitting the jury to apportion damages between her pre-existing condition and the damages she sustained because of the delay in treatment. After examining the briefs, the record, and the applicable legal principles in this rather idiosyncratic litigation, we affirm.
I
Plaintiff was a patient of O'Shea, a neurosurgeon. On November 12, 2007, O'Shea performed a cervical fusion upon her. On Saturday, February 2, 2008, plaintiff contacted O'Shea complaining of pain and difficulty moving one of her arms. Aware an MRI of plaintiff's cervical spine had been taken the previous day, O'Shea telephoned and spoke with Fog, a radiologist at defendant Booth Radiology, Inc., to learn what the MRI revealed. Fog and O'Shea differ sharply on what Fog reported was depicted on the MRI during that telephone conversation, a pivotal issue that bore directly upon whether the doctors had deviated from accepted standards of medical care.
During the first trial, Fog contended she told O'Shea the MRI indicated there was an infection in the area of the cervical spine. Specifically, Fog claims she told O'Shea there was significant abnormal prevertebral swelling and edema, perithecal enhancement, spinal cord compression, spinal stenosis, and that overall the findings were "concerning for infection." Fog conceded that if she had failed to report any of these findings to O'Shea on February 2, 2008, she would have deviated from accepted standards of medical care.
Fog explained prevertebral swelling and edema meant there was fluid and an enlargement of the soft tissues near the spinal cord.
O'Shea testified she had seen plaintiff on January 22, 2008 because plaintiff had complained of feeling electrical shocks in her arms. An x-ray taken on January 18, 2008 revealed prevertebral swelling, but O'Shea considered such swelling to be normal for one who had recently undergone a cervical fusion. Suspecting the likely cause of the sensation of electrical shocks was caused by nerve root irritation, O'Shea advised plaintiff to get an MRI and an x-ray.
O'Shea claimed that when she spoke with Fog on February 2, 2008 to learn the results of the MRI, Fog advised the MRI depicted "some" prevertebral swelling, but that Fog did not indicate the swelling was either abnormal or significant to the point of indicating the presence of an infection. O'Shea further testified Fog failed to mention to her any other findings suggestive of infection.
O'Shea acknowledged that an infection in the spine is very serious and has to be immediately treated. She testified that had Fog mentioned any findings indicative of an infection, O'Shea would have advised plaintiff to report to the hospital immediately, where she would have met, evaluated, and, if necessary, treated plaintiff.
After speaking with Fog, O'Shea telephoned plaintiff and advised her to come to her office the following Tuesday, February 5, 2008, but further instructed that if plaintiff's symptoms deteriorated, she was to go immediately to the emergency room.
On Monday, February 4, 2008, plaintiff appeared in O'Shea's office complaining of difficulty walking and weakness in both arms. Plaintiff brought with her a copy of the MRI films. When O'Shea viewed the films, she found there was significant prevertebral swelling and edema, as well as significant perithecal enhancement; these findings indicated infection. Further, the spinal cord was extremely swollen and appeared to be compressed.
O'Shea performed emergency surgery upon plaintiff's cervical spine that day in order to release the pressure upon the spinal cord. During the operation she discovered that, while there was no "frank infection," there was "phlegmon" on top of the spinal cord. She explained phlegmon is a thrombosed vein seen after an infectious or inflammatory process and is "extremely rare."
It is not disputed in the aftermath of these events that plaintiff currently has difficulty walking and some bladder incontinence. O'Shea testified the delay in treatment from February 2, 2008 to February 4, 2008 increased the risk of harm to plaintiff, but attributed the delay to Fog's failure to accurately communicate to her the results of the MRI on February 2, 2008.
Plaintiff's expert witness, neurosurgeon Stephen Bloomfield, M.D., opined that the subject MRI revealed significant prevertebral swelling and edema, stenosis, cord compression, and perithecal enhancement. He testified that if Fog relayed such findings to O'Shea on February 2, 2008, then O'Shea deviated from accepted standards of medical care because O'Shea failed to evaluate and treat plaintiff that same day. In fact, he opined that even if Fog had advised O'Shea of only the presence of prevertebral swelling and edema, the standard of care still required that O'Shea evaluate and treat plaintiff on February 2, 2008.
In Bloomfield's opinion, the presence of prevertebral swelling eleven weeks after a cervical fusion warranted that O'Shea personally exam plaintiff, as few processes other than infection would have been the cause of persistent prevertebral swelling. Further, plaintiff's complaint of pain and weakness in one arm on February 2, 2008 suggested there was a progression of neurological deficits and probable infection. Bloomfield proffered that had O'Shea operated upon plaintiff on February 2, 2008, more likely than not the injury to the spinal cord would have been averted and plaintiff would have "recovered back to her neurological baseline."
Fog did not call an expert witness on the issue of deviation, but did call neurosurgeon Gregory Przybylski, M.D., on the question of the apportionment of damages between the delay in treatment and plaintiff's pre-existing condition. See Verdicchio v. Ricca, 179 N.J. 1, 37 (2004); Fosgate v. Corona, 66 N.J. 268, 272-73 (1974). Przybylski initially testified plaintiff would have had the same injuries even if there had not been a delay in treatment. However, he subsequently altered his opinion and conceded the delay did cause "some" portion of plaintiff's spinal cord injury, but was unable to quantify the degree of injury caused by the delay.
O'Shea's expert witness, neurosurgeon Donlin Long, M.D., testified that if on February 2, 2008 Fog had merely conveyed, as O'Shea claimed, that there was "some" prevertebral swelling and edema, the standard of care did not require O'Shea to examine plaintiff and view the MRI on that day, as that kind of swelling can persist for a long period of time following surgery.
Donlin also opined that while it was "possible" treatment at an earlier stage may have produced a "better outcome," he claimed no one could state within a reasonable degree of medical probability that treatment on February 2, 2008 would have made a difference, as the spine would have been damaged before the antibiotics could take effect. In fact, he claimed there is no data to suggest phlegmon can be treated effectively.
At the conclusion of the first trial, the jury found Fog had deviated from accepted standards of medical care, but could not agree on whether O'Shea had also deviated. Because the jury was at an impasse on the question of O'Shea's negligence, it was unable to determine the relative fault between the two defendants. However, the jury did find that sixty-five percent of plaintiff's spinal cord injury was caused by the delay in treatment and thirty-five percent was caused by her pre-existing condition.
Finally, the first jury rejected defendants' claim that plaintiff failed to follow O'Shea's instruction to seek immediate medical attention when her condition deteriorated. The jury awarded plaintiff $500,000 for past pain and suffering, $1,000,000 for future pain and suffering, $140,000 for past lost income, and $300,000 for future lost income.
Fog filed a motion for a new trial on liability and plaintiff filed a motion for judgment notwithstanding the verdict on the issue of apportionment or, in the alternative, a new trial on all issues. The trial court denied plaintiff's and granted Fog's motion. In granting Fog's motion, the court found the jury at the second trial would be impaired from determining O'Shea's negligence and the percentage of negligence between the two doctors if the jury were aware Fog previously had been found to be negligent. Thus, the court vacated the verdict against Fog and ordered a new trial on liability. All of the other verdicts remained intact. O'Shea's subsequent motion for reconsideration of the order granting a new trial on liability was denied.
In addition to setting forth the evidence at the second trial that is relevant to the issues on appeal, because pertinent to a claim by O'Shea that plaintiff and Fog entered into a "Mary Carter" agreement during the second trial, we also briefly address how the evidence was presented, as well as plaintiff's and Fog's asserted motives for introducing certain evidence.
The term "Mary Carter" agreement, which is discussed in more detail infra, derives from the case Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967). In general, this kind of agreement refers to
[a] contract (usu[ually] a secret one) by which one or more, but not all, codefendants settle with the plaintiff and obtain a release, along with a provision granting them a portion of any recovery from the nonparticipating codefendants. In a Mary Carter agreement, the participating codefendants agree to remain parties to the lawsuit and, if no recovery is awarded against the nonparticipating codefendants, to pay the plaintiff a settled amount. Such an agreement is void as against public policy in some states but is valid in others if disclosed to the jury.
[Black's Law Dictionary 1064 (9th ed. 2009).]
At the outset of the second trial, the court informed the jury that damages had already been determined, and that the only issue it was going to have to decide was which of the two defendants, if not both, was liable. During her case, plaintiff did not call any witnesses. The evidence she introduced was limited to reading portions of Fog's and O'Shea's testimony from the first trial. She presented no expert testimony.
Specifically, plaintiff read that portion of Fog's testimony in which she claimed to have advised O'Shea of those findings on the MRI indicative of infection, as well as Fog's admission that if she failed to advise O'Shea of such findings, she would have deviated from accepted standards of medical care.
Those portions of O'Shea's testimony that were read revealed her claim that Fog failed to advise her of those findings on the MRI that suggested infection and that, while Fog advised her "some" prevertebral swelling was present, the presence of merely some swelling is not indicative of infection. Also read from O'Shea's testimony was her admission that if Fog advised O'Shea of what was in fact depicted on the MRI and O'Shea did not evaluate and treat plaintiff that same day, then O'Shea would have deviated from accepted standards of medical care.
Fog then commenced her case, calling as her own witness — to which O'Shea notably did not object - plaintiff's expert, Dr. Bloomfield. During his direct testimony, Bloomfield opined O'Shea deviated from accepted standards of medical care if Fog had in fact advised her of those findings Fog claimed to have conveyed to O'Shea on February 2, 2008, as such findings indicated the presence of an infection, which necessitated that O'Shea exam plaintiff and view the MRI that same day.
But Bloomfield also opined that even if Fog had merely conveyed there was some prevertebral swelling, the standard of care still required O'Shea to view the MRI and to examine plaintiff that same day, because plaintiff's complaints of pain and weakness in the arm in light of prevertebral swelling on the MRI suggested plaintiff had an infection. Later in his testimony, he expressed the opinion that even if there were no indication of infection, O'Shea deviated from accepted standards of medical care by failing to personally examine plaintiff and view the MRI on February 2, 2008.
O'Shea extensively cross-examined Bloomfield. Plaintiff also cross-examined Bloomfield, drawing out testimony adverse to O'Shea. But as Bloomfield had not, of course, testified about Fog's alleged deviations from the standard of care during his direct examination, neither O'Shea nor plaintiff explored this topic on cross-examination. See N.J.R.E. 611(b).
Fog then testified, during which O'Shea cross-examined her about, among other things, the implausibility of Fog's claim she advised O'Shea of all aspects of the MRI that indicated there was an infection. For example, following the telephone call between Fog and O'Shea, O'Shea wrote a note into plaintiff's office chart that same day, setting forth what Fog had advised was on the MRI. That note did not include all of the information Fog claimed she provided. Plaintiff then cross-examined Fog, during which plaintiff seemingly sought to rehabilitate Fog from any damaging testimony elicited by O'Shea during her cross-examination.
At the conclusion of Fog's testimony, she and plaintiff settled. The court informed the jury of the settlement and instructed that it was not to speculate about the reasons for the settlement or the amount, if any, that may have been paid to resolve the claim against Fog. Thereafter, O'Shea and her liability expert testified.
According to the questions it answered on the verdict sheet, the second jury found that: (1) O'Shea proved Fog had "deviated from accepted standards of medical practice in her telephone communication of the findings of the MRI on February 2, 2008;" (2) plaintiff proved O'Shea "deviated from accepted standards of medical practice in regard to her telephone communication concerning the findings of the MRI on February 2, 2008;" and (3) plaintiff failed to prove O'Shea "was negligent on February 2, 2008 by not personally evaluating Gloria Rein and the MRI on that date based upon the information documented in her note." The jury determined Fog was forty and O'Shea sixty percent negligent.
Neither party has raised an issue about the form of the questions on the verdict sheet.
The trial court entered an order for judgment against O'Shea for $877,052.29. O'Shea filed a motion for a new trial and relief from judgment, alleging evidentiary errors during the second trial and that plaintiff and Fog had entered into a Mary Carter agreement.
The adjusted jury verdict, which included stipulated medical expenses and deductions for social security benefits, totaled $1,938,899.18. That figure was reduced by thirty-five percent in accordance with the first jury's verdict on apportionment, augmented for pre-judgment interest, and then reduced by forty percent in accordance with the second jury's verdict on relative fault. The parties do not challenge the court's calculations, although plaintiff challenges the thirty-five percent reduction for apportionment.
In response to O'Shea's motion, plaintiff's counsel submitted an affidavit in which he denied that plaintiff and Fog had entered into this kind of agreement. Counsel explained that, before the second trial, plaintiff had rejected all of Fog's offers of settlement but, just before the second trial commenced, plaintiff and Fog initiated settlement discussions and even advised O'Shea they were engaging in "settlement negotiations." A settlement was finally reached after Fog testified, at which time O'Shea was immediately informed of the settlement.
A claims representative of the ProSelect Insurance Company (ProSelect), Fog's medical malpractice insurance carrier, also submitted an affidavit in response to O'Shea's motion, in which he asserted that just weeks before the second trial, he contacted the claims representative of O'Shea's insurance carrier, Princeton Insurance Company (Princeton), to inquire whether Princeton was interested in putting together a global settlement package to resolve the claims against both doctors. Princeton responded that it was taking a "no pay" position on behalf of O'Shea.
The claims representative from ProSelect then reached out to plaintiff's counsel to try and settle the matter between Fog and plaintiff. ProSelect made a settlement offer to plaintiff, but it was rejected. According to the claims representative, plaintiff and Fog were "substantially far apart in terms of the dollar amount." The trial then commenced.
There were no further settlement discussions until the day Fog testified when, during the lunch break that day, Fog's attorney informed the ProSelect claims representative, who was present in court, of what he "viewed to be a potential counter offer by plaintiff's counsel." However, it was unclear whether plaintiff had actually made a counteroffer, not to mention the amount plaintiff had mentioned in connection with her tentative counteroffer was above the claims representative's settlement authority. Fog's testimony continued into the afternoon. At the mid-afternoon break, Fog's counsel confirmed with the claims representative that plaintiff had in fact made a formal counteroffer. The claims representative then called his claims manager to relay the offer.
At 3:22 p.m., the claims representative received an email from his claims manager giving him authority to accept, with certain conditions, plaintiff's counteroffer. At that moment, Fog was still testifying. When her testimony was completed, the claims representative advised Fog's counsel of the authority he had been given to settle the case. After confirming with Fog that she wanted the matter settled, the claims representative spoke to plaintiff's counsel and, after negotiating certain terms, the case between plaintiff and Fog settled.
Fog's counsel also submitted a certification, in which he likewise denied there was any collusion between plaintiff and Fog. Counsel pointed out that because the jury was going to find at least one of the doctors culpable, plaintiff did not need to call her expert, Dr. Bloomfield, as a witness on the issue of liability and, of course, the issue of damages had been resolved.
However, Bloomfield's testimony was valuable to Fog because, apart and aside from the dispute about what Fog told or failed to tell O'Shea concerning what was depicted on the MRI, there was the contention O'Shea deviated from accepted standards of medical care for failing to examine plaintiff and the subject MRI on February 2, 2008. As counsel wanted the jury to find O'Shea liable or at least have the jury apportion to O'Shea as much of the fault as possible and Fog did not have a liability expert against O'Shea, Fog's counsel called Bloomfield as her expert. Fog's counsel certified he prepared Bloomfield for his testimony and that ProSelect compensated Bloomfield for his time in doing that.
As Fog's counsel recounted it, during a break from Fog's trial testimony, plaintiff's counsel made a counteroffer of settlement, which was "quickly" conveyed to the ProSelect claims representative just before Fog's testimony resumed following the lunch break. During a mid-afternoon break, Fog's counsel confirmed with plaintiff's counsel he in fact had made a counteroffer, and advised the ProSelect claims representative, accordingly. After Fog's testimony was complete, the case against Fog settled. The settlement was disclosed to O'Shea's counsel that afternoon and to the court the following morning.
The trial court denied O'Shea's motion for a new trial in its entirety, as well as her motion for post-verdict discovery to probe into the issue whether plaintiff and Fog entered into a Mary Carter agreement. The trial court stated:
I obviously had the opportunity to oversee both these trials. The dynamic of the
trials was somewhat unique, because the trials, as they unfolded, really had the two doctors pointing [their] fingers at each other, and the plaintiff stepping back and saying, you know, they're both responsible for the unfortunate outcome that Ms. Rein suffered.
. . . .
[In] [t]he second [trial], the plaintiff's case was put on by simply reading statements from the earlier trial establishing the alleged negligence of each of the doctors. The case then unfolded again, with the doctors pointing fingers at each other . . . I find based upon what I observed through the trial, that there was no conspiracy or secret agreement.
Looking at the definition of a Mary Carter Agreement, one of the elements is that the settling defendant continues to actively participate in part or all of the trial notwithstanding the agreement.
In this case, once there was a settlement agreement, [Fog's counsel] removed himself from the case. It was explained to the jury, under the settling defendant charge, which I gave to the jury at that time as well as charging him [sic] again at the end of the trial, that there was a settling defendant and they had to make a determination.
Based upon all of the facts as they unfolded themselves to me, I can find there's no basis for making a determination that there's a Mary Carter Agreement. I have the certifications of two trial counsel that I highly respect in the way they've conducted themselves in these trials before me, both [Fog's counsel] and [plaintiff's counsel] asserting that there was no clandestine agreement. I see no basis for additional
fishing expedition on the part of counsel for Dr. O'Shea into the mind set of the adjuster for Dr. Fog.
. . . .
Certainly, Dr. O'Shea had a right to have her day in court. She did. She had it twice. And we stand here now with a verdict having been entered against her.
The trial court also rejected O'Shea's claim that any alleged evidentiary errors warranted a new trial.
II
On appeal, O'Shea contends the trial court erred because (1) it vacated the verdict against Fog after the first trial, even though the court made no findings of "legal error or clear and convincing evidence of clear error or clear mistake by the jury;" (2) it precluded O'Shea from cross-examining Bloomfield on his alleged limited knowledge about phlegmon during the second trial; (3) it precluded O'Shea from introducing evidence about the nature and characteristics of phlegmon during the second trial; and (4) denied O'Shea's motion for a new trial on the claim plaintiff and Fog entered into a Mary Carter agreement.
Plaintiff cross-appeals, contending the trial court erred by allowing the jury to apportion damages between her pre-existing condition and the damages she sustained as a result of the delay in treatment.
A
Because our disposition on the issue of whether plaintiff and Fog entered into a Mary Carter agreement implicates another argument O'Shea raises, we first address the claim O'Shea is entitled to a new trial because plaintiff and Fog improperly entered into this kind of agreement during the second trial.
In general, a Mary Carter agreement has three characteristics:
(1) the liability of the settling defendant is limited and the plaintiff is guaranteed a minimum recovery; (2) the settling defendant remains a party to the pending action without disclosing the full agreement to the nonsettling defendants and/or the judge and jury; and (3) if judgment against the nonsettling defendant is for more than the amount of settlement, any money collected will first offset the settlement so that the settling defendant may ultimately pay nothing.
[England v. Reinauer Transp. Cos., 194 F.3d 265, 274 (1st Cir. 1999) (quoting Banovz v. Rantanen, 649 N.E.2d 977, 980, (Ill. App. Ct. 1995)), appeal den'd, 657 N.E. 2D 616 (1995).]
See also Langer v. Monarch Life Ins. Co., 966 F.2d 786, 793 n.3 (3d Cir. 1992) (A Mary Carter agreement is "any agreement between the plaintiff and some, but less than all, defendants whereby the parties place limitations on the financial responsibility of the agreeing defendants, the amount of which is variable and usually in some inverse ratio to the amount of recovery which the plaintiff is able to make against the nonagreeing defendant or defendants."). We have characterized a Mary Carter agreement, as "a settlement device . . . [that] secretly and unfairly allies one defendant with plaintiff to the prejudice of the other defendant." Benz v. Pires, 269 N.J. Super. 574, 578 n.2 (App. Div. 1994).
In Dosdourian v. Carsten, 624 So. 2d 241 (Fla. 1993), the Supreme Court of Florida observed that "[u]nique to the scheme of Mary Carter agreements, settling defendants retain their influence upon the outcome of the lawsuit from which they settled: so-called settling defendants continue 'defending' their case." Id. at 243. Further, "settling defendants often acquire a substantial financial interest in a trial's outcome should a jury rule favorably for the plaintiff." Id. at 244. As a consequence, "[r]ather than cooperating with their codefendants to minimize the culpability of all defendants and to minimize the jury's assessment of plaintiff's damages, Mary Carter defendants offer to the plaintiff their counsel's services for the purpose of persuading the jury to apportion to nonsettling defendants the greatest percentage of fault . . . ." Ibid.
Here, the trial court did not make any rulings about the form of the settlement agreement, see England, supra, 194 F.3d at 274, between plaintiff and Fog to determine if the agreement constituted a Mary Carter agreement. Because the trial court did not address this discrete issue, we would decline to pass upon this issue in the first instance even if we had access to the agreement. See Ins. Co. of N. Am. v. GEICO, 162 N.J. Super. 528, 537 (App. Div. 1978).
The settlement agreement is not part of the record on appeal. It is unclear whether the trial court was provided with a copy of the agreement.
Second, we reject O'Shea's arguments that certain conduct by plaintiff's and Fog's counsel demonstrates the parties entered into a Mary Carter agreement. Initially, we note that, given the dynamics among the three parties during the second trial, plaintiff had nothing obvious to gain by colluding with Fog. At the outset of the trial, the jury was instructed it had to decide that one or both defendants was culpable. Damages were already established. Regardless of the outcome, plaintiff was guaranteed to get a verdict against one or both defendants. The record also informs us that each defendant had sufficient insurance coverage to pay for the entire verdict.
O'Shea contends the fact plaintiff introduced limited evidence and failed to call either plaintiff or her expert witness indicates plaintiff and Fog colluded to manipulate the outcome of the trial. We reject this contention. Plaintiff did not need to do more than she did at trial to prevail. Neither plaintiff nor Bloomfield had any relevant testimony to offer about what was said between Fog and O'Shea during the February 2, 2008 telephone call. Further, during oral argument before us, O'Shea conceded it was "rational" for plaintiff to not have testified during her case.
O'Shea also maintains that the fact Fog called plaintiff's expert witness is evidence there was a Mary Carter agreement between plaintiff and Fog. We disagree. Fog had a strong motive to call Bloomfield as her own expert witness. The second trial was one in which Fog and O'Shea were pitched against each other as adversaries. Each doctor needed to impugn the other to minimize her own and maximize the other doctor's exposure.
Bloomfield could provide the opinion that even if on February 2, 2008 Fog had only informed O'Shea of "some prevertebral swelling" — information O'Shea admits Fog conveyed on that date - then O'Shea deviated from accepted standards of medical care. Even more compelling, Bloomfield could also provide the opinion that O'Shea was liable merely for failing to examine plaintiff and look at the MRI films on February 2, 2008. In our view, there was nothing at all untoward about Fog using Bloomfield as her expert witness.
O'Shea points out that after she cross-examined Fog, plaintiff questioned Fog in a way that sought to rehabilitate Fog from the damaging testimony O'Shea had elicited during her own cross-examination of Fog. O'Shea argues plaintiff's examination of Fog evidences a collaboration between plaintiff and Fog that is indicative of the existence a Mary Carter agreement between them. We reject this argument for the following reasons.
First, it was immaterial to plaintiff which doctor the jury found liable. That is, plaintiff did not need to enter into a Mary Carter agreement to achieve any of her objectives — after reading those portions of Fog's and O'Shea's testimony from the first trial, plaintiff had nothing to gain or lose by targeting either one of the doctors. As we have noted, each defendant had ample insurance coverage. Second, as plaintiff points out in her brief, had Fog not settled, plaintiff would have conducted a similar cross-examination upon O'Shea to establish Fog's liability.
Once Fog settled, it of course served plaintiff's interests to maximize O'Shea's percentage of liability, as plaintiff had by then recovered from Fog all that she could have by virtue of her settlement with her. --------
Third, we recognize that an underlying premise of a Mary Carter agreement is that a plaintiff and a defendant or defendants secretly align and help each other out to the prejudice of another defendant or defendants. See Benz, supra, 269 N.J. Super. at 578 n.2. Here, there was nothing difficult or remarkable about plaintiff's cross-examination of Fog that her own counsel could not have achieved on redirect examination. Fog's counsel did not require plaintiff's help to rehabilitate her.
While Fog's counsel could not have used leading questions, her counsel could have easily extracted the same evidence through the use of non-leading questions. Although it could be said plaintiff's cross-examination would not be inconsistent with the existence of a Mary Carter agreement, it hardly establishes such an agreement existed. Plaintiff's cross-examination does not smack of the kind of assistance indicative of collusion.
Fourth, Mary Carter agreements are those which are formed between or among parties that are adversaries in a particular matter. As previously cited, in Dosdourian, supra, 624 So. 2d, the Supreme Court of Florida observed that "[r]ather than cooperat[e] with their codefendants to minimize the culpability of all defendants and to minimize the jury's assessment of plaintiff's damages, Mary Carter defendants offer to the plaintiff their counsel's services for the purpose of persuading the jury to apportion to nonsettling defendants the greatest percentage of fault . . . ." Id. at 244.
Here, while plaintiff was an adversary of Fog and O'Shea as plaintiff was seeking a verdict against either or both defendants, as previously noted, it was recognized by all three parties from the outset of the second trial that plaintiff needed to do little to prevail. The true adversaries in this matter were Fog and O'Shea, a point not likely lost on the jury. It was more than apparent each defendant could escape liability only if she were able to convince the jury that the other defendant was solely responsible for plaintiff's damages. Although Fog and O'Shea factually disputed what Fog said during the telephone call, either reason could be used by plaintiff's counsel to her advantage.
O'Shea complains plaintiff's cross-examination of Fog improperly prejudiced O'Shea because it indicated to the jury plaintiff was siding with Fog and signaling that plaintiff believed O'Shea was the only culpable defendant. We need not address the issue of whether plaintiff improperly displayed to the jury a preference for one defendant over the other because, even if plaintiff's actions in connection with the settlement were improper, the jury clearly rejected plaintiff's opinion Fog was not culpable, as evidenced by it attributing some forty percent of defendants' combined negligence to Fog.
"An appellate court will not reverse a trial court's determination of a motion for a new trial 'unless it clearly appears that there was a miscarriage of justice under the law.'" Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 572 (2016) (citing R. 2:10-1). For the reasons outlined above, we cannot say the trial court erred when it denied O'Shea's motion for a new trial on the claim the parties entered into a Mary Carter agreement. The reasons advanced by O'Shea in support of this contention are insufficient to establish such an agreement existed.
For the same reasons, buttressed by plaintiff's and ProSelect's claims representative's affidavit and Fog's counsel's certification setting forth how the settlement unfolded, the trial court did not abuse its discretion when it denied O'Shea's motion for post-trial discovery on the question of whether plaintiff and Fog entered into a Mary Carter agreement. There was insufficient indicia that plaintiff and Fog entered into this kind of agreement to warrant post-trial discovery, and "[a] trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." See State v. Stein, ___ N.J. ___ (2016) (slip op. at 20) (internal citation omitted). In addition, it was not unreasonable in these circumstances to accept as truthful the sworn statements of the adjuster and Fog's counsel.
B
The jury at the first trial found, among other things, that Fog was negligent, but reached an impasse on the question of O'Shea's negligence. The trial court vacated the verdict against Fog on the ground that, on retrial, the jury would not be able to fairly consider O'Shea's negligence or apportion liability between the two doctors if it were aware Fog had been found negligent. O'Shea appeals the order vacating the verdict against Fog, as well as the order denying O'Shea's motion for reconsideration of the former order.
O'Shea's primary arguments are that there was no basis in law to vacate the first jury's verdict against Fog because: (1) no errors or acts of misconduct on the part of any party, attorney, or juror were committed during the course of the trial; (2) O'Shea lost "an indispensable and necessary stepping stone to a verdict that Dr. O'Shea herself was not negligent"; (3) O'Shea was prejudiced by Fog being given the opportunity to persuade the second jury that her treatment of plaintiff met accepted standards of medical care; and (4) O'Shea suffered irreparable injury because plaintiff and Fog entered into a Mary Carter agreement.
We need not dwell on whether or not the court erred by vacating the verdict against Fog. Even if there were any error, it was harmless; O'Shea did not suffer any demonstrable, let alone irreparable, injury or prejudice.
There is no dispute the case against O'Shea had to be retried. Although Fog had another opportunity to prove she was not culpable, a jury again found her negligent. Thus, O'Shea's concern she lost an indispensable "stepping stone" to a verdict of no cause of action for herself was not realized. In light of our disposition above on the Mary Carter agreement, we need not address O'Shea's contention she suffered irreparable injury due to plaintiff and Fog entering into this kind of agreement.
C
O'Shea contends she was improperly precluded from cross-examining Bloomfield during the second trial on his alleged unfamiliarity with phlegmon. Specifically, O'Shea claims that during the first trial, Bloomfield testified he did not understand what the term phlegmon meant and, during the second trial, she sought but was barred by the court from confronting Bloomfield with that prior testimony. O'Shea wanted to use the prior testimony to show Bloomfield lacked the knowledge necessary to render an expert opinion in this matter. O'Shea argues the court's ruling unfairly precluded her from attacking Bloomfield's overall credibility.
The trial court concluded that whether or not the infection in the spinal cord was caused by phlegmon as opposed to some other infectious process was immaterial, as O'Shea allegedly deviated because she failed to examine and view the MRI on February 2, 2008, not because she failed to accurately diagnose the precise infectious process that was afflicting plaintiff.
Further, when read in context, Bloomfield did not testify during the first trial that he himself did not understand what phlegmon was. He instead testified he did not know how O'Shea had used this word in her operative report. Further, in what was an obvious reference to phlegmon, he noted that, during his deposition, he testified there is no "good textbook" that discusses this kind of infection, but that there are "good journal articles that describe it." Clearly, this latter testimony reveals Bloomfield knew what phlegmon was.
"'[O]rdinarily, the scope of cross-examination of a witness rests in the discretion of the trial' court and a decision to limit cross-examination will not be disturbed on appeal 'unless clear error and prejudice are shown.'" Casino Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.) (quoting Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990)), certif. denied, 165 N.J. 607 (2000) (alteration in original). "[T]he extent of cross-examination is measured by the trial judge in light of the effect such examination may have upon substantial justice." Ibid. (internal quotation marks omitted). Here, given Bloomfield's prior testimony does not in fact convey he was unaware of what phlegmon is, we find no error in the court's decision to restrict O'Shea from confronting Bloomfield on this particular aspect of his prior testimony.
D
O'Shea contends she was improperly precluded from introducing evidence establishing the February 2, 2008 MRI was not "obvious" for infection. She argued that it was "fundamental to Dr. O'Shea's defense to establish that the MRI of February 1, 2008 could accurately be characterized as only 'questionable' for infection . . ." We are mystified by the argument. During the second trial, O'Shea clearly testified to the contrary. She stated that when she reviewed the February 1, 2008 MRI on February 4, 2008, she saw that there was significant prevertebral swelling and epidural enhancement, and that what was depicted on the MRI films was "highly suspicious for infection."
O'Shea also complains the court erred when it barred her from introducing evidence about the characteristics of phlegmon, which would have demonstrated why the phlegmon was not visible on the MRI. She contends such evidence was essential to refuting plaintiff's and Fog's arguments that the MRI was "obvious" for infection.
First, as previously mentioned, during her testimony O'Shea admitted it was obvious from the MRI that an infection was present. Second, the kind of infection that was afflicting plaintiff's spinal cord is immaterial. There was no allegation O'Shea deviated from accepted standards of medical care because she failed to correctly diagnose the kind of infection in the area of plaintiff's spinal cord. Certainly, no one challenged the adequacy of her treatment once plaintiff was admitted to the hospital on February 4, 2008. Accordingly, the court did not abuse its discretion by precluding the subject evidence about phlegmon.
E
Plaintiff alleged the two-day delay in treatment increased her risk of harm. Plaintiff's expert testified that plaintiff would not have sustained her current injuries had plaintiff been treated on February 2, 2008.
Fog's expert, Przybylski, testified that even if plaintiff had been treated on February 2, 2008, it is probable she still would have sustained "some portion" of her current neurologic dysfunction, but he was unable to quantify that portion. He explained that plaintiff's injury was progressive and the degree of impairment she suffered was related to the time treatment was commenced.
Specifically, he noted the phlegmon plaintiff developed was an inflammatory process that restricted blood flow to the spine, resulting in spinal cord compression and injury. The only treatment for phlegmon is the administration of antibiotics and the surgery O'Shea performed, which has a "decompressive effect" and enables a doctor to irrigate the area to reduce the volume of infectious material. But antibiotics take time to infiltrate into the epidural tissues. For that reason, even if antibiotics were administered two days sooner, in all probability plaintiff would still have incurred some degree of neurologic dysfunction. The treatment would have had some, but little, impact on plaintiff's ultimate outcome. If treatment had been delayed for several days or weeks, the impact upon plaintiff's spinal dysfunction would have been greater.
O'Shea's expert, Long, noted that the phlegmon plaintiff had is "extremely rare." There is no data or empirical studies quantifying the length of time it takes for a patient with this condition to respond to treatment. In his opinion, no one could say within a reasonable degree of medical certainty that earlier treatment would have made a difference in the ultimate outcome in this case.
As our Supreme Court said Fosgate, supra, 66 N.J. 268,
[w]here the malpractice involves treatment of a preexisting disease, . . . . in a situation where the malpractice or other tortious act aggravates a preexisting disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are.
[Id. at 272-73.]
Thus a defendant has the "'burden of segregating recoverable damages from those solely incident to the preexisting disease.'" Anderson v. Picciotti, 144 N.J. 195, 212 (1996) (quoting Fosgate, supra, 66 N.J. at 273). A defendant must show, by a fair preponderance of the evidence, that the ultimate harm reasonably could be apportioned or at least offer an apportionment scheme. Ibid.; Humenik v. Gray, 350 N.J. Super. 5, 19 (App. Div.), certif. denied, 174 N.J. 194 (2002); Golinski v. Hackensack Med. Ctr., 298 N.J. Super. 650, 655 (App. Div. 1997).
However, it is also well recognized that quantification of an increased risk is not possible. Anderson, supra, 144 N.J. at 212; Evers v. Dollinger, 95 N.J. 399, 406 (1984). A defendant need not produce proofs "amounting to scientific or mathematical precision as to how much each [causal factor] contributed in percentage points to [the] ultimate death." Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 60 (App. Div.), certif. denied, 165 N.J. 138 (2000). The nature and quantum of evidence need not be ample or precise. See, e.g., Boryszewski v. Burke, 380 N.J. Super. 361, 384 (App. Div. 2005) ("Regardless of which party bears the burden of proof, the quantum of evidence required to qualify for an apportionment charge is low."), certif. denied, 186 N.J. 242 (2006).
Plaintiff contends defendants failed to show that an apportionment reasonably can be made between the injuries she suffered due to delay in treatment and the injuries she would have sustained even if treatment had been timely. Thus, she claims, it was error for the court to permit the jury to apportion damages, and requests that the verdict apportioning thirty-five percent of plaintiff's ultimate injury to her pre-existing condition and sixty-five percent to the delay in treatment be vacated.
Bearing in mind a defendant need not provide ample or even precise proofs and that the quantum of evidence required to qualify for an apportionment charge is low, we are satisfied there was sufficient evidence in the record for the jury to allocate damages.
Clearly, the jury did not find the delay had no impact on the ultimate outcome or that the delay caused all of plaintiff's current complaints. However, there was testimony that a delay in treatment of just a few days would have contributed in part to her current impairments, albeit one of "little impact" on plaintiff's ultimate outcome. Given the verdict, it is evident the jury credited that testimony, and allocated the damages, accordingly. We thus perceive no basis to vacate the verdict apportioning damages.
F
In the final analysis, we discern no basis to require this case to be tried a third time or to compel any other relief. To the extent any argument raised by O'Shea or plaintiff has not been explicitly addressed in this opinion, it is because we are satisfied the argument lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION