NANCY SISCO VS. CHAN W. PARK, M.D. (L-0789-16, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4442-18

NANCY SISCO and

CARLA IRUSTA, Individually,

and NANCY SISCO as

Administratrix Ad Prosequendum

for the Estate of Rosa

Rodriguez-Sanchez, Deceased,

Plaintiffs-Appellants,

v.

CHAN W. PARK, M.D.,

Defendant-Respondent,

and

ALEJANDRO VAZQUEZ, M.D.,

ZIAD C. SIFRI, M.D., EDWARD

ANDRAOS, M.D., KARTIK

DANDU, M.D., UNIVERSITY

HOSPITAL, RUTGERS

BIOMEDICAL and HEALTH

SERVICES, and STATE OF

NEW JERSEY,

Defendants.

_____________________________

Argued December 14, 2020 – Decided April 26, 2021

Before Judges Messano, Hoffman and Suter.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Docket No. L-0789-16.

G. Martin Meyers argued the cause for appellants (Law

Offices of G. Martin Meyers, PC, attorneys; G. Martin

Meyers, on the briefs).

Beth A. Hardy argued the cause for respondent (Farkas

& Donohue, LLC, attorneys; Evelyn Farkas, of counsel;

Beth A. Hardy, on the brief).

PER CURIAM

Plaintiffs Nancy Sisco and Carla Irusta are respectively the daughter and

grand-daughter of Rosa Rodriguez-Sanchez, who, on June 15, 2015, at the age

of eighty-three, underwent surgery to remove a Stage III cancerous lesion in the

anterior portion of the floor of her mouth. In addition to excising the cancer,

the procedure required defendant Dr. Chan W. Park, board-certified in

otolaryngology with a sub-specialty in head and neck surgery, to graft a piece

of skin from Rosa's forearm onto the surgical site, make surgical vascular

connections, and remove some lymph nodes in her neck to assure the cancer had

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not spread.1 Defendant elected not to perform a tracheostomy 2 intraoperatively,

concluding it was unnecessary to keep Rosa's airway open during or after

surgery. Following the seven-to-eight-hour surgery, Rosa remained sedated,

was moved to the surgical intensive care unit (SICU) and left with an

endotracheal breathing tube in place.

Rosa was generally in good health and tolerated the surgery well.

According to defendant, he checked his patient's status early the following

morning and noted she was in no acute distress, nor was there extensive swelling

in her mouth. Plaintiffs, however, disputed defendant's characterization of

Rosa's post-operative condition. They said Rosa was uncomfortable for most of

the day and her mouth was swollen. There was a discharge of bloody fluid from

Rosa's mouth and neck, and they were frustrated by unsuccessful attempts to

speak with defendant, except for a short conversation on the hospital elevator.

Defendant said he checked on Rosa again around 2 p.m., after she was

extubated, to examine the skin graft. He expressed some concern about the

1

We sometimes use the first names of plaintiffs and decedent in this opinion

for ease of reference. We intend no disrespect by this informality.

2

A tracheostomy, or tracheotomy, is "[t]he operation of opening into the

trachea, usually intended to be temporary." Stedman's Medical Dictionary 1830

(26th ed. 1995).

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3

swelling and blood flow to the "flap" of skin and removed two of the twenty

sutures, which, he concluded, improved the situation. According to defendant,

Rosa was "breathing comfortably," speaking to him and her family, and had

experienced no swelling of her tongue. Defendant said he checked her again at

6 p.m. and Rosa was "breathing, talking, no swelling, no airway issues."

However, it was undisputed that at approximately 3:15 a.m., an "acute

event" occurred. Rosa's blood oxygen saturation levels dropped precipitously,

and she went into cardiac arrest. The SICU staff performed a cricothyrotomy 3

to access her airway and alerted defendant, who arrived at the hospital and

performed an emergency tracheostomy. By then, Rosa had suffered an anoxic

brain injury that left her unable to walk or speak for the remainder of her life.

She died approximately eighteen months later, in February 2017.

In the interim, plaintiffs filed suit alleging lack of informed consent and

medical malpractice by defendant and other medical providers. Upon Rosa's

demise, plaintiffs amended the complaint adding claims for her wrongful death

and survival damages; the amended complaint added other health care providers

3

A cricothyrotomy is an "[i]ncision through the skin and cricothyroid

membrane for relief of respiratory obstruction; used prior to or in place of

tracheotomy in certain emergency respiratory obstructions." Stedman's Medical

Dictionary 411 (26th ed. 1995).

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4

as defendants. Ultimately, the court dismissed the wrongful death claim and all

claims against the other defendants, and the case proceeded to trial solely against

defendant on plaintiffs' survival action. See Warren v. Muenzen, 448 N.J. Super.

52, 57 (App. Div. 2016) (explaining the nature of and differences between a

wrongful death claim and a survival action).

After deliberating for slightly less than one hour, the jury found no cause

of action on both the informed consent and negligence claims. Plaintiffs moved

to set aside the no cause judgment pursuant to Rule 4:50-1(c), arguing that

without prior notice, defendant had materially changed his trial testimony from

that given during his deposition. See McKenney v. Jersey City Med. Ctr., 167

N.J. 359, 370 (2001) ("Where . . . an attorney knows that his client or a material

witness intends to deviate from his deposition testimony in a crucial way, we

believe that the attorney has an ethical obligation to convey that fact to his

adversary."). Plaintiffs also moved for a new trial, alleging various trial errors.

The judge denied both motions, and this appeal ensued.

Before us, plaintiffs appeal the orders denying their motions for a new

trial and to vacate the judgment of no cause by essentially reasserting the

arguments made in their post-verdict motions. We have considered these

contentions and affirm.

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I.

We set some well-known guideposts for our review. Rule 4:49-1(a)

provides that the trial court shall grant a motion for a new trial if "having given

due regard to the opportunity of the jury to pass upon the credibility of the

witnesses, it clearly and convincingly appears that there was a miscarriage of

justice under the law." Jury verdicts, however, are "entitled to considerable

deference and 'should not be overthrown except upon the basis of a carefully

reasoned and factually supported (and articulated) determination, after

canvassing the record and weighing the evidence, that the continued viability of

the judgment would constitute a manifest denial of justice.'" Hayes v.

Delamotte, 231 N.J. 373, 385–86 (2018) (quoting Risko v. Thompson Muller

Auto. Grp., Inc., 206 N.J. 506, 521 (2011)).

We review the denial of a motion for a new trial using the same standard

as the trial judge, "whether there was a miscarriage of justice under the law."

Id. at 386 (quoting Risko, 206 N.J. at 522). "[A] 'miscarriage of justice' can

arise when there is a 'manifest lack of inherently credible evidence to support

the finding,' when there has been an 'obvious overlooking or under -valuation of

crucial evidence,' or when the case culminates in 'a clearly unjust result.'" Ibid.

(quoting Risko, 206 N.J. at 521–22).

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In our review, however, we "must give 'due deference' to the trial court's

'feel of the case.'" Risko, 206 N.J. at 522 (quoting Jastram v. Kruse, 197 N.J.

216, 230 (2008)).

Although an appellate court has a duty to canvass the

record to determine whether a jury verdict was

incorrect, that verdict should be considered

"impregnable unless so distorted and wrong, in the

objective and articulated view of a judge, as to manifest

with utmost certainty a plain miscarriage of justice."

[Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130,

135 (1990) (quoting Carrino v. Novotny, 78 N.J. 355,

360 (1979)).]

Rule 4:50-1(c) permits a court to vacate a judgment based upon "fraud

. . . misrepresentation, or other misconduct of an adverse party[.]" In arguing

their post-verdict motion, plaintiffs alleged defendant perjured himself at trial.

Perjured testimony that warrants disturbance of a

final judgment must be shown by clear, convincing and

satisfactory evidence to have been, not false merely, but

to have been willfully and purposely falsely given, and

to have been material to the issue tried and not merely

cumulative but probably to have controlled the result.

[Gilgallon v. Bond, 279 N.J. Super. 265, 267 (App. Div.

1995) (quoting Shammas v. Shammas, 9 N.J. 321, 330

(1952)).]

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II.

The trial record patently reveals the highly contentious nature of the

proceedings. Judge Bruno Mongiardo, now retired, did a commendable job

maintaining the order and dignity of the courtroom, but only by frequently

cautioning both lawyers, who constantly spoke over each other and oftentimes

interrupted the judge.

Plaintiffs argue that alleged "McKenney violation[s]" resulted in a "trial

by ambush." The claim is premised upon comments in defense counsel's

opening statement, defendant's trial testimony, and the trial testimony of defense

liability expert, Dr. Rod Rezaee. We provide context for each leg supporting

plaintiffs' overarching claim.

A.

i

As we discuss in greater detail below, the trial court limited plaintiffs'

claim of deviation from accepted standards of medical care to defendant's

decision not to perform a tracheostomy "intraoperatively." Plaintiffs contended

that failure meant swelling in Rosa's oral cavity resulted in an airway obstruction

that triggered the cascading series of events leading to her anoxic brain injury

and final vegetative state. In her opening statement, defense counsel sought to

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rebut any inference that a tracheostomy was a benign procedure posing little risk

of complications. She told the jury:

[Defendant] will tell you that in his experience, in all

of the cases where he made the intraoperative decision

not to do a tracheostomy, he's never had this happen

ever.

....

[A] tracheostomy is another operative procedure.

. . . You're making an incision . . . and . . . putting a

tube . . . into the trachea. The risks include bleeding,

infection. They include obstruction of the airway . . . .

[Y]ou can have an obstruction of the airway if you do a

tracheostomy or you don't do a tracheostomy.

So, in [defendant's] experience, he's actually had

very good success with this surgery, but he has actually

had a patient die from bleeding from a tracheostomy,

one of his patients. . . . [I]t's not a benign nothing

procedure . . . and you have to decide does this patient

need it.

[(Emphasis added).]

Plaintiffs' counsel did not object, and immediately after openings concluded,

Carla was called as a witness and testified for approximately forty-five minutes

before the trial recessed for the day.

At the start of the following day's proceedings, plaintiffs' counsel asked

for a curative instruction regarding the reference to defendant's unidentified

patient who died after he performed a tracheostomy. Counsel noted that

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defendant never previously disclosed that incident or that it was "a reason for

anything he did or didn't do." He accused defendant of "willfully conceal[ing]"

the incident during discovery, likened the remark to "drop[ping] a bomb" and a

"classic example of trial by ambush," and claimed the comment was so

prejudicial that a curative charge was necessary.

After listening to defense counsel's response, the judge noted it was fair

for defendant to assert that, contrary to plaintiffs' position, a tracheostomy posed

risks that outweighed its necessity in this case. However, he correctly concluded

it was improper for defense counsel to refer to a specific, unidentified patient

who suffered a fatal result, particularly because the judge would not permit

defendant to testify about it since it was never revealed in discovery. Noting the

passage of time since defense counsel's remarks and Carla's intervening

testimony, the likelihood that jurors would forget the comments certainly by the

end of trial, and that expert testimony would explain for the jurors the risks of

such a procedure, the judge declined to give a curative instruction. 4 In rendering

his decision on the post-verdict motions, the judge did not specifically address

the issue.

4

Defendant did not reference the incident at all during his testimony.

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ii

In interrogatory answers, defendant referred plaintiffs to his operative

report (the report) explaining the procedure he performed on Rosa. Plaintiffs

posed a specific supplemental interrogatory that asked why defendant had not

performed a tracheostomy "in the course of or immediately following" the

surgery. Defendant answered by directing plaintiffs to the report, which said he

observed no swelling of Rosa's tongue and no significant swelling of the skin

graft, so defendant decided not to perform a tracheostomy "due to the minimal

swelling and to just leave [Rosa] intubated til tomorrow or until swelling

resolved."

At defendant's deposition, which took place before any of the liability

experts' reports were served, plaintiffs' counsel referred to this portion of the

report and asked, "Were there any other considerations that you took into

account in connection with your decision about whether or not to perform a

tracheostomy?" Defendant responded, "I don't believe so." However, that

exchange was immediately followed by questions regarding other factors, for

example, Rosa's age and that she was asthmatic. Earlier, plaintiffs' counsel

asked defendant to explain why a tracheostomy would sometimes be performed

in connection with Rosa's type of surgery, and defendant explained it would

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"bypass" "anticipated swelling," avoid prolonged ventilator status and aid post -

operative pulmonary care and "toilet." At trial, plaintiffs' expert, Dr. Michael

Morris, said that his analysis of four factors — the location of the surgery in the

oral cavity, the size and extent of the resection, the swelling visible at the end

of the surgery, and the concurrent neck dissection — led him to opine that the

requisite standard of medical care required an intraoperative tracheostomy in

anticipation of a possible airway obstruction.5

When he testified on direct examination at trial, defendant was asked to

explain his "thought process during the surgery as to whether or not a

tracheostomy needed to be done." He described the location of the surgery in

the anterior of Rosa's mouth, removal of a limited number of lymph nodes on

only one side of her neck, and the lack of significant swelling after the lengthy

surgery. Defense counsel referred defendant to the report's reference to these

issues. Plaintiffs' counsel posed a single objection, which the judge overruled,

when defendant was asked why he had performed tracheostomies in other cases.

On cross-examination, plaintiffs' counsel almost immediately referenced

defendant's deposition testimony. Defendant did not deny the answer previously

5

In summation, plaintiffs' counsel broke these down into "five increased risk

factors."

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given and said his answer — a lack of any significant swelling — reflected his

"intraoperative decision." Counsel continued in his attempt to have defendant

admit that he never cited any other factors that militated against performing the

tracheostomy, and defendant responded by stating his deposition answer was

limited and in response to a question about his report. Ultimately, the attorneys

went to sidebar, where the judge said:

[Defendant's] answer is very clear. He's already

answered it twice. Now he has basically said his

interpretation of that question at the dep had to deal

with an intraoperative decision. . . . Whether you

(plaintiffs' counsel) like that or not, you can deal with

it. But I can't allow it to be asked over and over.

In his summation, plaintiffs' counsel argued extensively that defendant's trial

testimony was inconsistent with his deposition testimony and his failure to

consider other factors resulted in the erroneous decision not to perform a

tracheostomy.

As noted, plaintiffs' Rule 4:50-1 motion was premised on defendant's

"perjured" testimony at trial and the Court's holding in McKenney. Judge

Mongiardo noted that counsel "had the opportunity to thoroughly deal with"

defendant's allegedly inconsistent testimony "on cross-examination" and in

summation. The judge also noted his final instructions told the jury to consider

inconsistencies in the testimony of all the witnesses, and explanations given for

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those inconsistencies, when judging credibility. In his oral decision issued after

argument on the motions, the judge rejected any claim that defendant had

perjured himself or there was a McKenney violation.

iii

It was undisputed Rosa suffered a heart attack at approximately 3:15 a.m.

on June 17. Plaintiffs moved in limine to bar defendant from presenting any

evidence that Rosa had "a heart problem aside from the cardiac arrest that

occurred on [June] 17." Defense counsel responded, "We're not going to blame

her situation on a heart problem that resulted in her cardiac arrest." Plaintiffs'

counsel told the judge: "[T]hey can say that there was a cardiac arrest . . . that

they don't know the cause . . . I just don't want the argument to be made that

there's reason to believe that this woman simply had a heart attack."

Dr. Rezaee testified that no one could say with certainty what caused the

acute incident in the early morning of June 17; defense counsel asked, "What

are some of the possibilities?" He responded, "Mucous plugging," a collection

of mucous that suddenly blocked Rosa's windpipe, or an "arrhythmia . . . a short

circuiting of the heart causing it to beat funny . . . ." Plaintiffs' counsel objected,

and the judge sustained the objection. Plaintiffs cited the doctor's testimony as

further support for a new trial.

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In his oral decision denying plaintiffs' motions, the judge noted that while

it was undisputed Rosa suffered a cardiac arrest, the reason was disputed. "The

fact that there were other possible causes for the arrest was a permissible area

of inquiry, particularly, when defendant's . . . expert's report commented . . . that

the [failure to perform the] tracheostomy was not the cause of [Rosa's] arrest."

Judge Mongiardo observed that plaintiffs' counsel "was well aware of this fact.

In essence, plaintiff[s] sought to shift the burden of proof to . . . defendant."

The judge determined that having decided defendant was not negligent for

failing to perform an intraoperative tracheostomy, the jury never needed to

decide what caused Rosa's cardiac arrest. The judge cited the Court's opinion in

Campo v. Tama, where it held, "because the jury found that [the defendant

doctor] had not been negligent in treating [the plaintiff], it properly did not reach

the issue whether the alleged negligence" was a proximate cause of the spread

of the plaintiff's cancer. 133 N.J. 123, 133 (1993).

B.

Having reviewed the complete record, none of these contentions support

plaintiffs' claim that they were entitled to a new trial for alleged McKenney

violations or, as it relates solely to defendant's trial testimony, pursuant to Rule

4:50-1(c).

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In McKenney, the plaintiffs sued the medical center and several staff

members involved in the birth of their child who was afflicted with spina bifida.

167 N.J. at 364. The plaintiffs argued that the medical center and its staff failed

to inform them that their child's condition, claiming that such information should

have been seen on sonograms prior to the time that an abortion could have been

lawfully performed. Ibid.

In his deposition, the defendant, Dr. Hu, the chief Obstetric/Gynecological

(OBGYN) resident at Jersey City Medical Center (JCMC), acknowledged

viewing the scans well in advance of the child's birth. Id. at 366. However, at

trial, Dr. Hu changed his testimony, stating that upon review of a JCMC

sonogram logbook that plaintiffs' counsel had unsuccessfully sought during

discovery, he determined that he probably did not review the sonogram until

weeks later after an abortion was no longer an option. Id. at 366–67. Another

witness, a certified ultrasound sonographer who was previously a defendant in

the case, also changed her testimony during trial from what she initially provided

in her deposition. Id. at 367. It was later revealed that defense counsel learned

of the change in testimony the night before trial and failed to notify plaintiffs'

counsel. Id. at 369.

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The Court concluded that "defense counsel had a continuing obligation to

disclose to the trial court and counsel for plaintiffs any anticipated material

changes in a defendant's or a material witness's deposition testimony." Id. at

371. Such a rule was consistent with the principles of fairness surrounding the

obligation of candor between adversaries in the legal system. Ibid.

Individually or collectively, the three issues cited by plaintiffs fail to

demonstrate a McKenney violation, or that defendant clearly and convincingly

perjured himself, a necessary predicate to vacate a judgment pursuant to Rule

4:50-1(c).

Judge Mongiardo properly considered that defense counsel's opening

remarks were made in advance of days of future testimony and would not likely

be remembered by the jury. See, e.g., Amaru v. Stratton, 209 N.J. Super. 1, 16

(App. Div. 1985) ("The remarks by plaintiff at this early stage of the proceedings

were not of such moment as to threaten [defendant's] enjoyment of a fair trial.").

Defense counsel's comments were brief, and the substance of the comments was

not repeated. See, e.g., Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div.

2009) ("Fleeting comments, even if improper, may not warrant a new trial,

particularly when the verdict is fair."). Moreover, plaintiffs' expert, Dr. Michael

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Morris, acknowledged in his testimony that there were inherent risks in

performing a tracheostomy.

Defendant's trial testimony, in which he acknowledged consideration of

other factors in deciding not to perform a tracheostomy, was hardly akin to that

which justified a new trial in McKenney. Both experts agreed that there were

several factors to be considered in performing or not performing a tracheostomy

intraoperatively, including factors mentioned in defendant's operative report.

Defendant may not have cited them specifically in his deposition testimony;

however, defendant was specifically asked in the deposition about other

considerations. Moreover, as Judge Mongiardo explained, this trial was a battle

of experts, and Dr. Morris admitted on cross-examination that although he had

performed many tracheostomies, he was not qualified to and had never

performed the same surgery as that which defendant performed on Rosa.

Finally, we do not agree with some of Judge Mongiardo's analysis of Dr.

Rezaee's testimony. Whether a tracheostomy would have avoided the potential

consequence of a blocked airway, i.e., cardiac arrest, was inexorably connected

to plaintiffs' theory of the case. The jury's finding of no deviation does not mean

the causation question was of no consequence.

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However, we do agree with the judge's recognition that plaintiffs bore the

burden of proof, not defendant. It was their burden to prove by a preponderance

of the evidence that oral swelling blocked Rosa's airway, as Dr. Morris posited,

and that defendant should have anticipated this and performed a tracheostomy

intraoperatively. Thus, whether some other conditions, e.g., a mucous plug or

temporary arrythmia, caused the cardiac arrest were medically plausible

alternative explanations that the jury was entitled to consider in evaluating

whether plaintiffs shouldered their burden. Defendant was under no obligation

to prove, within a reasonable degree of medical certainty, what caused Rosa's

cardiac arrest. These alternative causes were mentioned in Dr. Rezaee's report

and, when plaintiffs' counsel objected to defendant's attempt to go further on

cross-examination, the judge sustained the objection.

In sum, we affirm the orders denying a new trial based upon alleged

McKenney violations and plaintiffs' motion to vacate the judgment pursuant to

Rule 4:50-1(c).

III.

Plaintiffs cite several alleged evidentiary errors as singly or collectively

justifying a new trial. We address them seriatim by first recognizing the "well-

established principle that '[e]videntiary decisions are reviewed under the abuse

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of discretion standard because, from its genesis, the decision to admit or exclude

evidence is one firmly entrusted to the trial court's discretion.'" Rodriguez v.

Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019) (alteration in original) (quoting

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010)).

Ultimately, it is the job of the trial court to exercise its broad discretion "to

determine both the relevance of the evidence presented and whether its probative

value is substantially outweighed by its prejudicial nature." Ibid. (citing Wymbs

v. Twp. of Wayne, 163 N.J. 523, 537 (2000)). Reversal based on alleged errors

in evidentiary rulings is only proper when those rulings are "so wide off the

mark that a manifest denial of justice resulted." Griffin v. City of E. Orange,

225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480,

492 (1999)).

In summation, plaintiffs' counsel argued that defendant failed to produce

a cardiologist to support the claim that Rosa experienced cardiac arrythmia;

defense counsel objected, and the judge sustained the objection. Citing Bender

v. Adelson, 187 N.J. 411, 433 (2006), plaintiffs now argue this was error.

The facts in Bender are inapposite. There, after barring a defense expert

from testifying because of a discovery violation, the trial judge blocked the

plaintiff's counsel's attempt to argue in summation that the defendant failed to

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produce an expert that rebutted the plaintiff's case. The Court determined that

was reversible error. Id. at 433–35.

In preliminary proceedings here, defense counsel agreed not to assert Rosa

had an underlying heart condition that caused her cardiac arrest. For the reasons

already expressed, defendant did not assert, nor was he required to prove, that

Rosa suffered cardiac arrest as the result of an arrythmia. Plaintiffs were fully

able to argue there was no proof that she did, noting that Rosa's heart rhythm

returned to normal shortly after SICU doctors intervened, and she never

experienced cardiac problems again.

Next, plaintiffs argue Judge Mongiardo improperly allowed Dr. Rezaee

to cite an article that was published a year after Rosa's surgery in support of his

position that failure to perform an intraoperative tracheostomy was not a

deviation from accepted medical standards. Plaintiffs claim the article

supported a standard of care other than that recognized at the time of Rosa's

surgery.

"In a medical-malpractice action, the plaintiff has the burden of proving

the relevant standard of care governing the defendant-doctor[.]" Komlodi v.

Picciano, 217 N.J. 387, 409 (2014). The standard must be based on the state of

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scientific knowledge at the time of the alleged malpractice. Kimmel v. Dayrit,

301 N.J. Super. 334, 356 n.11 (App. Div. 1997).

The article in question, "Unfavorable Results After Free Tissue Transfer

to Head and Neck: Lessons Learned at the University of Washington," was not

published until October 2016. However, the data used in the study was collected

over twenty years at the University of Washington, and defendant himself was

involved in the research during his fellowship training. Essentially, the article

supported the proposition that many surgical patients like Rosa suffered no

adverse consequences when a tracheostomy was not performed.

Dr. Rezaee referred to the article in his expert report, and plaintiffs' expert,

Dr. Morris, also referenced the article in his supplemental report. Dr. Morris

was questioned about it at trial. Plaintiff mischaracterizes the article by claiming

it enunciated a new standard of care. Rather, the article provided support for

one opinion over another regarding the same standard of care, i.e., whether given

the nature of Rosa's surgery, an anticipatory tracheostomy should have been

performed.

Defendant wrote two prescriptions for Rosa to undergo pre-operative

scans. Although the first took place, the surgery was scheduled before the

second pre-operative CT scan was to occur. Carla testified in support of

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plaintiffs' informed consent cause of action, stating defendant "didn't say

anything" about the risks that accompanied Rosa's surgery. Plaintiffs sought to

introduce testimony that when Carla brought to defendant's attention that the

second scan had not taken place, he simply tore up the prescription and

proceeded to perform the surgery.

Plaintiffs did not assert that the second scan was a prerequisite for the

surgery or the failure to perform it compromised the surgery's success. In

explaining his decision to bar the testimony, Judge Mongiardo explained:

It's going to be for the jury to decide whether risks were

or were not discussed. But to add that little extra to it,

I think, is not going to add anything insofar as probative

value is concerned. And it's certainly going to inject

into the case prejudice. And that prejudice is going to

greatly outweigh the questionable probative value, if

any. So I'm not going to allow that.

"N.J.R.E. 403 specifically allows a judge, in his or her discretion, to

exclude otherwise admissible evidence under specified circumstances. These

decisions are reviewed under the abuse of discretion standard." Benevenga v.

Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126

N.J. 112, 131 (1991)). Here, the evidence lacked any probative value on the

question of informed consent and was intended to show, as the judge noted,

defendant's alleged "arrogance." We find no mistaken exercise of discretion.

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Plaintiffs contend the judge's decision to preclude the reading of the

deposition of Dr. Andraos to the jury was in error. Dr. Andraos was a resident

at the hospital and observed Rosa around 9 p.m. on the night following surgery

and hours before the acute event that led to her anoxic brain injury. He noted

swelling in the oral cavity and consulted the ENT team but not defendant

directly.

Defendant said that Dr. Andraos did not contact him with any concerns

about Rosa, and he was not notified until he was summoned to perform the

emergency tracheostomy in the early morning hours of the following day. Dr.

Andraos had moved to Texas by the time of trial and was unavailable for trial.

In support of his decision to bar the deposition testimony, Judge Mongiardo

explained:

[A]rguably you might have a stronger argument if Dr.

Andraos testified that he communicated this

information to [defendant].

....

He never did. And I can't have the jury then

speculate, well, maybe he communicated to the ENT

team or to the intensivists and maybe they then

communicated. . . . No matter what Dr. Andraos may .

. . have observed, if he did not specifically

communicate that observation to [defendant,] it's too

speculative.

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Plaintiffs appropriately argue the deposition testimony should have been

admitted if only to support their testimony that Rosa was in distress because of

the oral swelling and claims regarding defendant's unavailability. However, we

cannot conclude the exclusion of the evidence, even if error, requires reversal.

See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court

unless it is of such a nature as to have been clearly capable of producing an

unjust result . . . .").

Lastly, plaintiffs contend the judge erred in limiting Dr. Morris's

testimony, arguing the decision was in response to defendant's "unannounced"

motion in limine, was "clearly erroneous" and was so "highly prejudicial" as to

require reversal of the jury’s verdict. We again disagree.

Before Dr. Morris testified, defense counsel asked the judge to limit the

doctor's opinion to that expressed in his reports and at his deposition, namely,

that defendant's only deviation from accepted standards was his failure to

perform a tracheostomy intraoperatively in anticipation of a possible airway

collapse. Plaintiffs' counsel objected, claiming the expert should be able to

speak to "a couple of red flags in the developments afterwards that gave

[defendant] the opportunity to change that decision and [defendant] should have

acted . . . ."

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Following an extended colloquy, Judge Mongiardo agreed with defendant.

He explained that Dr. Morris's report and deposition addressed the factors that

should have been anticipated at the time of the surgery, and that defendant

deviated from the standard of care because he failed to anticipate a potential

blockage of Rosa's airway and manage that possibility through an intraoperative

tracheostomy. Now, the judge reasoned, plaintiffs were trying to add an

additional alleged deviation, i.e., defendant's failure to perform a tracheostomy

during Rosa's post-operative stay in the SICU.

An "expert's testimony at trial may be confined to the matters of opinion

reflected in that report, . . . [h]owever, the logical predicates for and conclusions

from statements made in the report are not foreclosed." Congiusti v. Ingersoll-

Rand Co., 306 N.J. Super. 126, 131 (App. Div. 1997) (alteration in original)

(quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.

1987)). The decision to exclude expert testimony on the ground that it was not

covered in the written report provided in discovery lies within the discretion of

the trial court. Ibid. Generally, however, the testimony should not be excluded

where there is "(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

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result from the admission of the evidence." Id. at 131–32 (quoting Ratner v. Gen.

Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990)).

We agree with Judge Mongiardo's rejection of plaintiffs' argument that

permitting Dr. Morris to add defendant's post-operative acts or omissions as

deviations from accepted medical standards of care was not a logical predicate

or conclusion of his previously-expressed central opinion, i.e., that defendant

should have anticipated the possibility of an airway collapse and performed a

tracheostomy as part of the surgery. In fact, plaintiffs had named several doctors

who attended Rosa in the SICU as defendants, and Dr. Morris addressed their

potential liability in his initial report. However, those defendants were no longer

in the case, and nothing in Dr. Morris's report or deposition opined that

defendant deviated from accepted standards of care during that period of time.

Affirmed.

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