Opposition Brief — O'Grady v. Oberhand

No. 89-1275 (») —.

In The we]

Supreme Court of the Huited stake

——

October Term, 1989

ROSELLA O’GRADY and FRANK O’GRADY,

Petitioners,

VS.

ROBERT I. OBERHAND, M.D., JOSEPH DiLALLO, M.D.,

PAUL R. FRANZ, D.C., PHYLLIS LaFLAMME, R.N., MARY

C. MAJOR and MARY ANN HAMBURGER,

Respondents.

On Petition for a Writ of Certiorari to the Supreme Court of

New Jersey

BRIEF IN OPPOSITION FOR RESPONDENT

JOSEPH DiLALLO, M.D.

NEIL P©=ISEMAN

REISEMAN MATTIA & SHARP

Attorneys for Respondent

Joseph DiLallo, M.D.

Five Becker Farm Road

Roseland, New Jersey 07068

(201) 992-9300

JANE S. KELSEY

On the Brief

10293

tz *NJ (201) 257-6850+(800) 3 APPEAL*NY (212) 840-4640¢MA (617) 542-1114

: en DC (202) 783-7288ePA (215) 925-6500°USA (800) 5 APPEAL

ee)

‘

‘ ; od

‘

‘

‘ .

’

‘

rest.

;

; -

;

e

rf

TABLE OF CONTENTS

a ee oo ok ou Wa ete euw ann

Counter-Statement of the Case ...................000-

Reasons for Denying the Writ ..... POT ei SEN

I.

II.

The United States Supreme Court is without

jurisdiction to grant the writ of certiorari where the

petitioner has failed to properly or adequately raise

a claim under the Fourteenth Amendment of the

United States Constitution in the New Jersey Courts.

Even if it is determined that the federal question was

adequately presented below, petitioner’s writ of

certiorari should be denied since the trial record taken

as a whole does not demonstrate any violation of

petitioner’s due process rights. .................

A. The Court’s Charge Did Not Constitute Plain

er ee Ar ree ger re

B. It Is Sheer Conjecture for Petitioners to Suggest

That the Verdict Was Based on Extraneous

Evidence, Confusion and/or Juror Misconduct.

C. Consideration of the Trial Record as a Whole

Substantiates the Jury’s Verdict in Favor of Dr.

DiLallo and Did Not Result in Denial of

Petitioner’s Due Process Rights. ...........

Ne a eee Gee ha nae

10

15

16

23

il

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Amaru v. Stratton, 209 N.J. Super. 1 (App. Div. 1985)

pocorn cones even ne cetera ye nee ean 24

Carbone v. Warburton, 22 N.J. Super. 5 (App. Div. 1952),

aff'd, 11 N.J. 485 (20GB, oc cccvsdaaceneee ee eree ee 21

Cote v. Louisiana, 394 U.S. 437 (1969)............ 12

Chambers v. Mississippi, 410 U.S. 284 (1973) .......... 12

Evers v. Dollinger, 95 N.J. 399 (1984)..... 7 .9, 16, 17, 18, 19

Fuller v. Oregon, 447 U.S. @ Ge oes kaperetoreeene 12

Gaido v. Weiser, 115 NJ. SIO (ities. 6 cee rcitvevenes 16, 18

Germann v. Matriss, 55 N.J. 193 (1070) 3.025 .s0eces sss 26

Hake v. \fanchester Township, 98 N.J. 302 (1985)...... 16

Lamedola v. Mizell, 115 N.J. Super. 514 (Law Div. 1971)

i+ vueseee ch 6 keel ee ree ee

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

S48 (196) . onc vc cenwye es) eee ee eee 15

Moore v. Illinois, 408 U.S. 786 (1972)................. 12

il

Contents

Page

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928)

ENS te Ontiegaua oie 45 4000 0 «3085.6 6468s 12

Schueler v. Strelinger, 43 N.J. 330 (1964) ............. 21, 26

State v. Lamb, 134 N.J. Super. 575 (App. Div. 1975) aff’d,

rer err rye a4, 23

serent v. New York, 394 U.S. 576 (1969)............... 12

Tacon v. Arizona, 410 U.S. 351 (1973) ............. is

United States v. Lane, 474 U.S. 438 (1986)............. 15

Wedd v. Webb, 451 U.S. 493 (1961)........... 11, 12, 13, 14

Statute Cited:

gee a 10

United States Constitution Cited:

pci ccc nach eneses saan enue ps 10

Articie IV, Section 1 ..... Rea ee aks AE ae eae eee 12

Rules Cited:

Supreme Court Rule 21.1(h)................cceeneee, 10, 11

iv

Contents

Page

New Jersey Rule of Evidence 41 ..........-.-.50---055 26

New Jersey Rules of Court:

gS | errr rer ret shee rr res ee 19

ee ONG ca wivcccavae seek AVR OS OE RESO eee RD oer 23

ie SS. Rene perro re erry renee ee res 19

No. 89-1275

In The

Supreme Court of the United States

———

October Term, 1989

ROSELLA O’GRADY and FRANK O’GRADY,

Petitioners,

VS.

ROBERT I. OBERHAND, M.D., JOSEPH DiLALLO, M.D.,

PAUL R. FRANZ, D.C., PHYLLIS LaFLAMME, R.N., MARY

C. MAJOR and MARY ANN HAMBURGER,

Respondents.

On Petition for a Writ of Certiorari to the Supreme Court of

New Jersey

BRIEF IN OPPOSITION FOR RESPONDENT

JOSEPH DiLALLO, M.D.

COUNTER-STATEMENT OF THE CASE

The first time that respondent Joseph DiLallo, M.D. saw

petitioner Rosella O’Grady as a patient was August 24, 1982

tr

25T106: 21-23). Previously, she had been seen by his office

associate, Dr. Mary Herald on November 20, 1975. Mrs. O’Grady

presented on several occasions with sinus-type headaches running

over the front of her head (25T107: 11-17). Dr. Herald’s impression

was sinusitis (25T109: 35).

On August 20, 1977 Mrs. O’Grady again appeared at Dr.

DiLallo’s office complaining of headaches and head congestion

(25T110: 1-2). On January 9, 1981 Mrs. O’Grady called Dr.

DiLallo’s office once again indicating that she was suffering from

headaches. On this occasion she indicated that she had headaches

for three days with eye pain (25T111: 1-2). Therefore, between

1975 and 1982, Dr. DiLallo was aware from Mrs. O’Grady’s

history that this was a woman plagued with periodic sinus-type

headaches. This history necessarily plays an important part in

assessing the overall condition in March of 1983.

Dr. Paul Franz, the petitioner’s chiropractor, also

substantiated the petitioner’s headache history. On October 22,

1982, Mrs. O’Grady filled out a confidential medical history at

which time she checked Dr. Franz’ form indicating that she

suffered from headaches frequently. Furthermore, she advised

him that she had them for twenty years, experiencing them two

to three times a week and lasting two to three hours. She

experienced them ‘*. . .behind the eyeballs, radiating to the back

of her head.’’ They were sometimes associated with nausea (24T57:

25; 24T58: 10).

When Dr. Oberhand saw Mrs. O’Grady on March 7, 1983

her complaints were as follows: severe cervical sprain, pain in

the forehead, pains in the back of the neck and over the top of

the head, pain behind the eyes, pressure in the face, congestion,

post-nasal discharge, ear blockage and hearing loss, all present

for five days (25T37: 15-21). Counting back five days, the onset

of the complaint coincided with a neck injury which petitioner

sustained while exercising on March 2, 1983.

Mrs. O’Grady testified that as a result of this neck injury

she went to see a chiropractor, Dr. Franz, on March 2 (23T30:

11-15). Dr. Franz examined Mrs. O’Grady on March 2, and found

that there were subluxation compressions present from the cervical

spine which wouid account for her neck pain (24T74: 10-22).

Furthermore, x-rays revealed a degenerative joint disease of her

cervical spine (24T76: 15-25; 24T77: 1).

In his evaluation of Mrs. O’Grady’s headache, Dr. Oberhand

explained that he evaluates how comfortable or in obvious distress

the patient is, whether the patient is distracted in any way, and

he evaluates the patient’s posture and demeanor, for abnormalities

(25T39: 1-7). On this particular day Mrs. O’Grady had driven

herself to the office, she was unattended, comfortable, and not

in any abnormal distress. It was Dr. Oberhand’s conclusions

following his physical examination that she was suffering from

another sinus infection (25T40: 6-7). His course of treatment at

that time was to prescribe an antibiotic (25T40: 15-16); to inject

cortisone into the nose (25T40: 20-21), and to advise her to return

in one week.

Additionally, he discussed the possibility of a sub-mucous

resection (25T41: 1-7). Mrs. O’Grady did not ask for any

medication for pain at that time (25T41: 20-23).

Following the office visit of March 7, 1983, Mrs. O’Grady

called Dr. Oberhand’s office on two occasions between March

7 and March 14, regarding insurance information. There were

no complaints with respect to headaches during either of the two

telephone conversations with Dr. Oberhand’s office (25T45: 16-18:

25T46: 18-21).

Her next visit with Dr. Oberhand was March 14, 1983. Her

complaints at that time were cervical spinal pain radiating to the

forehead, chronic eye pain and ear aches. She also reported for

the first time that she was seeing a chiropractor for her pain

(2ST47: 8-11).

In addition to her complaints of headaches, she also had nasal

complaints and neck complaints, but at that time, the neck pains

were more severe than the sinus pains (25T51:10-13).

Dr. Oberhand again evaluated Mrs. O’Grady’s complaints

of headaches by evaluating her appearance and by performing

a physical examination during the office visit.

Mrs. O’Grady appeared comfortable. She had driven herself

to the office, and showed no distress or discomfort throughout

the examination (25T48: 11-25). Dr. Oberhand properly advised

Mrs. O’Grady that the neck complaints were probably not related

to his specialty, but it was his feeling that it was related to the

muscles of the neck and could be an arthritic problem (25T51:_

8-22). Accordingly, he advised her to consult her family physician,

Dr. DiLallo, for evaluation of the neck pain, he ordered sinus

x-rays and advised her to return in two months to have her hearing

rechecked (25T52: 15-25; 25T53: 1).

At that time, Dr. Oberhand also sent a letter to Dr. DiLallo

vit a copy to the petitioner dated March 14, 1983. See DOa

113-114. In that letter Dr. Oberhand advised Dr. DiLallo that

Mrs. O’Grady was complaining of severe, disabling headaches.

He indicated that he was referring Mrs. O’Grady back to Dr.

DiLallo, ‘‘for treatment of cervical arthritis and medication or

possibly with orthopaedic consult for further evaluation.’’ He

further stated that her pain was related to an otolaryngologic

problem. Mrs. O’Grady acknowledged receiving a copy of Dr.

Oberhand’s letter, but did not follow up with Dr. DiLallo because

at that time the headaches had gone away (23T41: 13; 23T42: 5).

Dr. Oberhand explained that he did not call Dr. DiLallo on

the telephone because there was absolutely nothing urgent or

emergent in the appearance of Mrs. O’Grady in his examination.

She appeared to be perfectly comfortable (25T57: 17-20). He

further explained that if the situation was in any way urgent, he

would have sent her to the emergency room after calling her family

physician (25T58: 3-10).

With respect to the letter of March 14, 1983 written by Dr.

Oberhand, Dr. DiLallo did not see that letter until after Mrs.

O’Grady had her hemorrhage on March 31, 1983 (25T112: 5-9).

The letter was apparently filed by an office employee before Dr.

DiLallo had an opportunity to review it. Assuming that he had

seen the letter, Dr. DiLallo testified that he did not see any urgency

in the letter which would have caused him to cail Mrs. O’Grady

upon receiving it (25T113: 3-12). Despite the fact that there was

. nothing urgent contained within the letter, he might possibly have

called her anyway because he would have been interested in

knowing what was happening with her (25T113: 13-19).

Following Mrs. O’Grady’s second visit with Dr. Oberhand

on March 14, 1983, she again saw her chiropractor, Dr. Franz

on March 16, 1983. At that time he found a subluxation of the

cervical spine and treated her with chiropractic manipulations

(24T81: 13-16). During her next visit to Dr. Franz on March 21.

1983, Mrs. O’Grady told him that her headaches were :one.

(24T81: 22-25). Therefore, assuming further that Dr. DiLallo had

called Mrs. O’Grady on either March 17 or March 18 following

his receipt of Dr. Oberhand’s letter, the patient would have advised

him that she had no complaints of headache ar thar time. Dr.

DiLallo testified that under the circumstances that he would have

indicated to her that if she has any further problems. thar she

should iet him know (2ST114: 13-23).

At tnal each defense expert testified with literally no

contradiction that there was nothing urgent or emergent in the

substance of the letter of March 14, 1983, and that had a call

been made to the patient, there was no requirement under the

circumstances to follow up with that patient if she no longer

complained of headaches (25T186: 7-20; 26T40: 1-10). In fact,

petitioner’s own expert, Dr. Roger Rose, an otolaryngologist,

agreed that the letter which was sent to Dr. DiLallo ‘‘does not

convey any sense of urgency.’’ (20T169: 13-16). He also agreed

that the letter indicates that the patient is being referred specifically

for cervical arthritis, or perhaps an orthopaedic problem and there

is no sense of urgency or emergency in these conditions (20T 170:

6-12). Ultimately, it was his opinion that urgent problems are

not handled by the mail (20T176: 1-4). He furthermore conceded

that people who complain of pain radiating from the back to the

front of the neck and from the front to the back, are in the

overwhelming number of cases nor connected with subarachnoid

hemorrhage (20T178: 5-12).

The expert testimony offered at trial established on March

31, 1983 that Rosella O’Grady suffered a spontaneous

subarachnoid and intracerebral hemorrhage from a congenital

aneurysm of the middle cerebral artery. This was the opinion of

Dr. Howard Medinets, a neurosurgeon who was called as an expert

witness on behalf of Dr. Oberhand and Dr. DiLallo (25T152:

23; 25T153: 1). Additionally, it was his opinion that even if a

CAT scan had been taken between March 7, 1983 and March

14, 1983, it would have been perfectly normal (25T158: 23-25;

25T159: 1). He based the fact that the subarachnoid hemorrhage

occurred spontaneously on March 31, 1983, based on the /ocation

of the aneurysm. Specifically, he testified that a rupture from

the middle cerebral artery is a catastrophe, like an explosion inside

the head (25T167: 11-12). Damage also occurs because the blood

vessels in the brain go into a spasm in an attempt to control the

bleeding and decrease the amount of blood flow (25T 167: 20-23).

Thus, Dr. Medinets drew the conclusion that Mrs. O’Grady could

not possibly have been suffering from a leak at the time that she

saw Dr. Oberhand without suffering severe neurologic symptoms

(25T180: 3-5). In all of his experiences, Dr. Medinets had never

seen someone who could walk with a hemorrhage such as the

one suffered by Mrs. O’Grady (25T180: 18-20).

Furthermore, he found it significant that Mrs. O’Grady’s

neck had been found to be supple during Dr. Oberhand’s

examination of March 7, 1983. He explained that one of the signs

of subarachnoid hemorrhage is a rigid or stiff neck. This was

not the case upon examination of Mrs. O’Grady (25T173: 5-6).

Thus, he agreed with Dr. Oberhand’s diagnosis that prior to March

31, Mrs. O’Grady was suffering from cervical arthritis as

confirmed by his review of the cervical x-rays taken by her treating

chiropractor, Dr. Franz (25T182: 1-15). Dr. Medinets concluded

that even if a CAT scan had been taken prior to March 31, 1983,

it would have failed to show any aneurysm. He testified that the

aneurysm would have been too small to have been detected on

a CAT scan (25T158: 13; 25T159: 8). In fact, the CAT scan taken

on March 31, 1983 following the plaintiff’s rupture, failed to show

the aneurysm (25T154: 25; 25T155: 4). The aneurysm was only

later confirmed by an arteriogram done on July 18, 1983 (25T166:

11-17). Even Mrs. O’Grady’s own expert, Dr. Derby, admitted

that plaintiff was a Class I patient without neurological signs up

to the time that the aneurysm ruptured on March 31 (19T252:

15; 19T253: 2).

Kenneth Jacobson, M.D., a board certified internist with a

subspecialty in cardiovascular disease, also testified on behalf of

Dr. DiLallo. From his review of the medical records in this case,

it was Dr. Jacobson’s opinion that Mrs. O’Grady had a long

history of headache problems and that, this was certainly a factor

that a physician can consider in evaluating the patient (26TS81:

22-25; 26182: 1-4). He essentially agreed with Dr. Medinets that

with a middle cerebral artery bleed, that one would expect to find

some neurological signs in the patient (26T85: 4-10). Following

his review of the materials, it was his opinion that within a

reasonable degree of medical probability, that the basis of Mrs.

O’Grady’s complaints of headaches prior to March 31, 1983 was

either cervical arthritis or a sinus headache (26T90: 1-6).

With respect to the actions of Dr. DiLallo in this case, it

was Dr. Jacobson’s opinion that there was no obligation to do

any follow up after receiving the letter of March 14, 1983 from

Dr. Oberhand because it was not an urgent or compelling letter

(26T58: 3-19). Further, assuming that Dr. DiLallo had called the

patient and she did not have any complaints of headaches, it would

have been Dr. DiLallo’s obligation only to advise her that if her

headache problems should come back, that she should call him

(26T40:1-10). There would surely not have been any obligation

on the part of Dr. DiLallo to inquire into the details surrounding

the headaches which are referred to in the letter of March 14,

1983 (26T40: 11-16).

Plaintiff’s expert, Dr. Bennett Derby, testified that with

respect to Dr. DiLallo’s conduct, he should have immediately

contacted the plaintiff to verify for himself if the complaints were

severe and disabling. He should then have referred the plaintiff

to a neurologist or neurosurgeon (19T 197: 6-13). However, there

was no question that in his mind that if Dr. DiLallo had received

the letter and made the phone call to Mrs. O’Grady on March

16 or March 17, and asked her how her headaches were, she would

have responded that her headaches were gone and she was being

treated with a chiropractor (19T259: 1-10). Similar testimony was

offered by Charles Duncan, M.D., a neurosurgeon who testified

on Mrs. O’Grady’s behalf (20T63:11-17).

The trial in this matter concluded on March 26, 1987.

Following the court’s charge to the jury there was no objection

made by plaintiffs, nor was a request made for a ‘‘loss of chance’’

charge as enunciated by the New Jersey Supreme Court in Evers

v. Dollinger, 95 N.J. 399 (1984) (26T221: 12-16). During the course

of the jury’s deliberation, the jury requested that a portion of _

the deposition transcript of Dr. Oberhand be read back. After

discussion with counsel, a passage was selected to be read to the

jury. It should be noted that at no time did plaintiff's counsel

ever object to the portion of Dr. Oberhand’s deposition testimony

that was read back to the jury in response to their question

(26T243-248). In fact on the following morning, March 27, 1987,

the jury requested that the passage be read to them once again

in order to refresh their recollection. Mrs. O’Grady’s counsel again

voiced no objection to the passage which was read back to the

jury (27T: 3-4).

On March 27, 1987 the jury returned a verdict that Dr.

Oberhand and Dr. DiLallo were not professionally negligent. Since

the jury concluded that neither defendant was negligent, they did

not render a verdict on the issue of proximate cause.

On April 24, 1987 the plaintiffs moved for a new trial on

the ground that the verdict was against the weight of the evidence.

Plaintiff's motion was denied. On April 20, 1989 the Superior

Court of New Jersey, Appellate Division, affirmed the judgment

below. Plaintiff’s petition for certification to the Supreme Court

of New Jersey was denied on September 6, 1989.

At no time was a federal question ever adequately raised,

preserved or passed upon in the state court below.

10

REASONS FOR DENYING THE WRIT

I.

THE UNITED STATES SUPREME COURT IS WITHOUT

JURISDICTION TO GRANT THE WRIT OF CERTIORARI

WHERE THE PETITIONER HAS FAILED TO PROPERLY

OR ADEQUATELY RAISE A CLAIM UNDER THE

FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION IN THE NEW JERSEY COURTS.

The petitioners invoke the jurisdiction of this court pursuant

to 28 U.S.C. § 1257(a). That statute, as applied to the

circumstances of this case,requires that in the state courts that

the petitioners have ‘‘specially set up or claimed under the

Constitution or the treaties or statutes or any commission held

or authority exercised under the United States,’’ that night which

they now seek to have this court enforce.

In this regard, Rule 21.1(h) of the Rules of the Supreme Court

specifically require the petitioner to specify in his or her statement

of the case:

The stage in the proceedings, both in the court

of first instance and the Appellate Court, at which

the federal questions sought to be reviewed were

raised; the manner or method of raising them, and

the way in which they were passed on by the court;

such pertinent quotation of specific portions of

the record of summary thereof with specific

reference to the places in the record where the

matter appears .. . as will show that the federal

question was timely and properly raised so as to

give this court jurisdiction to review the judgment

on the Writ of Certiorari.

11

It should be noted initially that the petition for a writ of

certiorari is procedurally defective in that petitioners have failed

to include any of the information required by Rule 21.1(h) of

the Rules of the Supreme Court of the United States as set forth

above. There is no mention by the petitioners as to where in the

proceedings, both at the trial level and in the Appellate Division,

at which the federal questions sought to be reviewed were raised,

the method or manner in raising them and the way in which they

were passed upon the courts. Additionally, the petitioner’s

statement of the case fails to include any pertinent quotations

of specific portions of the record which make specific reference

to the places in the record where the matter appears, as will show

that the federal question was timely and properly raised.

Notwithstanding this procedural defect, a canvassing of the

record below does, in fact, reveal that there was a brief reference

to a violation of petitioner’s procedural due process rights which

was included in a one paragraph discussion on the subject in the

brief which was filed on the petitioner’s behalf to the Appellate

Division of the Superior Court of the State of New Jersey.

However, nowhere in the opinion of the Appellate Division of

the Superior Court of New Jersey is any federal question

mentioned; let alone expressly passed upon (Petition for Writ of

Certiorari at 3(a)-5(a))'

Thus, the issue before this court is the adequacy of the manner

and presentation in which the federal question was raised below.

It is well settled that the jurisdiction of this court to reexamine

a final judgment of the state court can arise only if the record

as a whole shows expressly of by implication that a federal claim

was adequately presented in the state system. Webd v. Webb,

451 U.S. 493, 497 (1981); New York ex rei. Bryant v. Zimmerman,

|. Petitioner’s petition for certification to the Supreme Court of New Jersey

was denied without opinion.

12

278 U.S. 63 (1928); Oxley Stave Company v. Butler County, 166

U.S. 648 (1897). This court has consistently refused to decide

federal constitutional issues raised here for the first time on review

of state court decisions. Cardinale v. Louisiana, 394 U.S. 437

(1969); Tacon v. Arizona, 410 U.S. 351 (1973); Moore v. Illinois,

408 U.S. 786 (1972).

In the Webb decision supra, this court considered the dismissal

of a writ of certiorari for want of jurisdiction based upon the

petitioner’s inadequate presentation of a federal question in the

state court’s below. The Webb decision involved a custody dispute

resulting in conflicting results of the states court of Florida and

Georgia. Jd. at 395. The mother’s petition for writ of certiorari

raised a federal question under the full faith and credit <iause

of Art. IV, Sec. I of the United States Constitution. /d. This court

initially noted that nowhere in the opinion of the Georgia Supreme

Court was there any mention of the federal question, nor was

any federal issue discussed in the dissenting opinion of that court

acknowledging that when ‘‘the highest state court has failed to

pass upon a federal question, it will be assumed that the omission

was due to want of proper presentation in the state courts unless

the aggrieved party in this court can affirmatively show the

contrary.’’ Citing Street v. New York, 394 U.S. 576, 582 (1969);

see also, Fuller v. Oregon, 417 U.S. 40, 50, n.11 (1974); Chambers

v. Mississippi, 410 U.S. 284, 290 n.3 (1973). The petitioner in

the Webb decision rebutted the Court’: assumption pointing to

the fact that she did use the phrase ‘‘full faith and credit’’ on

several occasions in the proceedings below. Webb, supra, at 396.

Additionally, this Court took note of the fact that the

petitioner did not claim anywhere in her petition for a rehearing

before the Georgia Supreme Court that the court’s failure to reach

the federal claim was error. /d. at 397, 398. Ultimately the Webb

Court was not persuaded that petitioner had made an adequate

presentation of her federal claim in the state courts below and

13

accordingly, petitioner’s writ was dismissed for want of

jurisdiction. Jd. at 400. The Court’s reasoning emphasized

significant policy considerations underlying the statutory

requirement that the federal challenge be adequately presented

first in the state courts. Among these considerations was the

Court’s acknowledgement of principles of comity in our federal

system.

Principles of comity in our federal system require

that the state courts be afforded the opportunity

to perform their duty which includes responding

to attacks on state authority based on the federal

law, or if the litigation is wholly private, construing

and applying the applicable federal requirements.

Id. at 500.

Aside from principles of comity, the Court further

acknowledged that there are practical reasons for insisting that

federal issues be presented first in the state court system. These

would include ‘‘the opportunity for the parties to develop the

record below on the issue, the identification of independent state

grounds that might pretermit the federal issue, and the adjudication

of the federal claim in the state tribunal in the first instance which

would obviate the need for plenary review in the Supreme Court

of the United States.’’ /d.

At the very minimum, this Court has cautioned that there

should be no doubt from the record that the federal issue was

adequately presented and passed upon below.

At the minimum, however, there should be no

doubt from the record that a claim under a federal

statute or the federal constitution was presented

in the state courts, and that those courts were

14

apprised of the nature or substance of the federal

claim at that time and in the manner required by

the state law. Otherwise, we cannot be sufficiently

sure, when the state court whose judgment is being

reviewed has not addressed the federal question

that is later presented here, that the issue was

actually presented and silently resolved by the state

court against the petitioner or the appeilant in this

court.

Id. at 502.

In the present case, aside from the procedural omissions in

the petition for writ of certiorari as discussed supra, petitioners

have only made the briefest reference to their constitutional claim

in a one paragraph discussion embodied in the brief which was

submitted to the Appellate Division of the Superior Court of the

State of New Jersey. As in the Webb decision, nowhere in the

opinion of the Appellate Division of the State of New Jersey is

there any federal question mentioned, let alone expressly passed

upon. Thus, it is to be assumed that this omission on the part

of the Appellate Division of the State of New Jersey was due

to want of proper presentation by the petitioner in the state courts.

Webb, supra, at 496. The petitioners have failed to show the

contrary.

It is also significant to note that petitioners never raised the

federal question on petition for certification Supreme Court of

the State of New Jersey, nor did petitioners claim in their petition

for certiorari that either the Appellate Division or the New Jersey

Supreme Court’s failure to reach the federal claim was error.

Finally, principles of comity require that the parties be

afforded the opportunity to develop the record in the state level

necessary for adjudicating the issue in order to allow the state

courts to exercise their authority. The record was obviously not

15

developed sufficiently for the state courts to determine the issue

in the first instance. There is obviously no basis for this Court

to determine whether or not the state court whose judgment is

being reviewed had the opportunity to address the federal question

that is now being asserted.

Petitioner’s failure to adequately present their federal claims

in the state courts below mandate denial of petitioner’s writ of

certification as this Court is without jurisdiction to hear the federal

question.

II.

EVEN IF IT IS DETERMINED THAT THE FEDERAL

QUESTION WAS ADEQUATELY PRESENTED BELOW,

PETITIONER’S WRIT OF CERTIORARI SHOULD BE

DENIED SINCE THE TRIAL RECORD TAKEN AS A WHOLE

DOES NOT DEMONSTRATE ANY VIOLATION OF

PETITIONER’S DUE PROCESS RIGHTS.

In general, standards of review dictate that this Court is to

ignore harmless errors that do not affect the essential fairness

of the trial. McDonough Power Equipment, Inc. v. Greenwood,

464 U.S. 548 (1984). It is the duty of the reviewing court to consider

the trial record as a whole and to ignore harmless errors including

most constitutional violations. United States v. Lane, 474 U.S.

438 (1986).

It is submitted that in the present case, the trial record taken

as a whole demonstrates overwhelming credible evidence to support

the verdict of the jury. The focus of the petition for certiorari

is two-fold: first, the court’s charge to the jury, which was never

objected to by the petitioner (26T221: 12-23), and sheer speculation

with respect to so-called ‘‘juror misconduct’’ (Petitioner’s Brief

at 46).

16

A. The Court’s Charge Did Not Constitute Plain Error.

Petitioners assert that the trial court erred by failing to include

a ‘‘loss of chance’’ charge first enunciated by the New Jersey

Supreme Court in Evers v. Doilinger, 95 N.J. 399 (1984). In Evers,

the court held that ‘‘the plaintiff should be permitted to

demonstrate within a reasonable degree of medical probability

that . . . defendant’s failure to make an accurate diagnosis and

to have rendered proper treatment increased the (plaintiff’s] risk

of [injury] . . . and that such increased risk was a substantial factor

in producing the condition from which plaintiff currently suffers.’’

Id. at 417. Thus, the plaintiff must establish that the defendant

had a duty ‘‘to try and save the plaintiff and that there was a

substantial possibility that defendant’s actions would save the

plaintiff . . .’’ Hake v. Manchester Township, 98 N.J. 302, 311

(1985).

In the present case, petitioners assert that the negligent acts

of commission and omission on behalf of the respondent doctors

deprived Mrs. O’Grady of her chance to escape from ‘“‘intercranial

emergency’’ (Petitioner’s Brief at 31).

The New Jersey Supreme Court has recognized that in the

absence of evidence that a jury was substantially misled or seriously

diverted from their careful consideration of the evidence presented,

that a failure to include an Evers charge of increased risk of harm,

justifying ‘‘the lost chance of survival’’ modification of

traditional proximate cause causation does not constitute plain

error. Gaido v. Weiser, 115 N.J. 310, 315 (1989).

The Gaido decision involved a medical malpractice action

against a psychiatrist for the suicide of plaintiff’s husband one

day before his appointment with the psychiatrist. Plainuff alleged

that the defendant’s refusal to see the decedent prior to his

scheduled appoint was negligence causing her husband’s death.

a

17

The defendant alleged that even if he was negligent, his conduct

was not the proximate cause of decedent’s death. /d. at 311-312.

The Court charged the jury employing a standard proximate cause

charge. The plaintiff never requested, nor did the Court consider

a ‘‘lost change exception.’’ The jury returned a verdict that the

defendant was negligent, but that his negligence was not the

proximate cause of the decedent’s death. Jd. 312.

On appeal, the dissenting judge found that the factual scenario

of the case fell within the Evers theory of increased risk of harm,

thereby justifying a ‘‘lost change of survival’’ charge.

On appeal to the Supreme Court, this case was affirmed.

The concurring opinion recognized that while a proper charge

on proximate cause would have incorporated the Evers doctrine,

that it was not clear that ‘‘substantial justice’ had not been done

as a result of the erroneous action. /d. 314-315.

In this case none of the parties perceived the issues

as implicating the increased risk-of-harm doctrine

..., the plaintiff did not ask for such a charge

and did not object to the jury charge based on

traditional definitions of proximate causation and,

understandably, in the circumstances, the trial

court did not, on its own, define proximate cause

in terms suggested by Evers. inese are strong

indications that the presentation of the case to the

jury was not considered by those closest to the

litigation to be misleading.

Moreover, it does not appear that the jury was

substantially mislead or seriously diverted from a

careful consideration of the critical evidence and

the ultimate issues. It had a full presentation of

the evidence that was further explained and

amplified by counsel’s summations.

18

Id.

Thus, the Supreme Court of New Jersey failed to conclude

that the error by the trial court constituted plain error requiring

reversal. Jd. at 316.

In the present case, as in Gaido, it is significant that the trial

court never considered charging the jury on the definition of

proximate cause using the Evers standard and petitioners never

asked for this type of charge. It is also significant that petitioners

did not object to the jury charge based on traditional definitions

of proximate cause and the trial court did not, on its own, define

proximate cause in terms suggested by Evers. Specifically, the

court stated:

Now you have just heard me use the term

proximate cause. By proximate cause it means that

the negligence of the defendant in this case, either

or both doctors, was an efficient cause of the

condition. That is, a cause which necessarily set

the other causes in motion and was a substantial

factor in bringing the condition about. And you

have to make that finding as to whether or not

this condition, what happened on March 31, is a

failure of the doctors. If you find there is a

deviation, whether ox not that brought about the

condition, it would have been prevented, is one

of the facts.

(26T198: 10-25).

Here, the jury was asked to consider the negligence of the

defendant physicians in terms of their failure to provide adequate

medical care, and further, that such negligence need be found

in the event that it was a substantial factor in bringing the condition

about.

19

Additionally, the jury heard the testimony of three experts

on behaif of petitioners who fully articulated their opinions with

respect to the negligence and proximate cause, which was further

explained and amplified by counsel’s summation. The failure of

petitioners to request an Evers charge indicates that petitioners

did not consider the court’s charge to be in any way misleading

or confusing. Thus, it cannot be concluded that the jury’s ultimate

determination constitutes an unjust result under the circumstances

sufficient to satisfy the strict standard of the plain error rule,

nor can it be said that the jury was substantially misled in this

regard. See New Jersey Court Rule R. 1:7-2; and R. 2:10-2.

It is also significant to note that in this case the jury returned

a verdict of no negligence in favor of both respondent physicians

without ever having to reach the issue of proximate cause under

its traditional definition. Thus, the petitioner cannot be heard

to complain that the failure to incorporate the Evers charge resulted

in jury mistake.

Next, petitioner takes the position that the trial court erred

in its submission of a standard negligence charge as to Dr.

DiLallo’s negligence (Petitioner’s Brief at 32-35). To begin with,

the question of vicarious responsibility or respondeat superior

was not even a part of the case below. This resulted from

petitioner’s voluntary dismissal of Dr. DiLallo’s office employees,

Phyllis LaFlamme, R.N., Mary C. Major and Mary Ann

Hamburger prior to the trial in this matter. The sole issue which

was before the court was limited to whether or not Dr. DiLallo

had any duty to follow up on the letter which he received from

Dr. Oberhand, assuming that he saw the letter. This was the

primary focus of petitioner’s inquiry to each of the expert witnesses

at the time of trial. Petitioner’s expert Charles C. Duncan, M.D.

was questioned as foilows:

20

Q. With that background, if Dr. DiLallo had

gotten a letter described as this letter describes

severe disabling headaches, the location of the

headaches, and the fact that it was something that

Dr. Oberhand was able to clearly identify as being

outside his area of specialty, what would have been

the standard of practice for Dr. DiLallo to have

followed when he got the letter?

(20T63: 4-10).

The inquiry of petitioner’s expert Roger Miles Rose, M.D.

was as follows:

Q. That this letter, assuming for a second that he

would have read it, when the letter indicates that

the headache for which this patient is being referred

to him for are severe, that they are disabling, that

they are outside of the specialty of the physician

who is sending the case in, what was the standard

of practice that he would have been required to

follow upon receipt of that letter?

(20T147: 14-20).

Finally, the following question was posed to petitioner’s expert

Bennett M. Derby, M.D.:

Q. When Dr. DiLallo got thar letter, we know that

he didn’t read it, we know it was placed in the

file by somebody within his office, what would

have been the standard of practice controlling his

conduct with receipt of that letter and the

information contained in there?

21

(19T196: 25; 19T197: 1-5).

In response, petitioners elicited from each expert that the

appropriate standard of care for Dr. DiLallo would have been

to refer the patient for appropriate evaluation had he read Dr.

Oberhand’s letter (197197: 6-13; 20T63: 11-17; 20T149: 14-24).

Each defense expert testified that there was nothing urgent

or emergent in the substance of the letter of March 14, 1983,

and that had a call been made to the patient, there was no

requirement under the circumstances to follow up with that patient

if she no longer complained of headaches (25T183: 7-20; 26T40:

1-10).

Thus, the criticism which was directed against Dr. DiLallo

had to do with whether or not he had an affirmative duty to act

upon the contents of the letter assuming that the letter was seen.

This question of ‘‘duty’’ is at the heart of a negligence charge

in a medical malpractice context. See Schueler v. Strelinger, 43

N.J. 330 (1964); Carbone v. Warburton, 22 N.J. Super. 5 (App.

Div. 1952), aff’d, 11 N.J. 418 (1953). Under the circumstances

of the facts of this case and the testimony as it was elicited at

trial, it was appropriate and warranted for the court to give a

standard negligence charge (26T 191-8 to 191-9), and to propound

a jury interrogatory as to Dr. DiLallo’s negligence (26T200-19, 21).

Once again, petitioner did not object to the propriety of the

charge as directed to Dr. DiLallo at the time of trial, nor would

it have been appropriate for the court to enter a directed verdict

as to Dr. DiLallo’s vicarious responsibility for the actions of his

employees since the employees were not parties at the time of

trial. Thus, the court’s charge adequately addressed the questions

raised by the evidence and did not constitute plain error.

22

B. It Is Sheer Conjecture for Petitioners to Suggest That the

Verdict Was Based on Extraneous Evidence, Confusion and/or

Juror Misconduct.

It is sheer conjecture for petitioners to argue that the jury

erroneously relied upon extraneous information not in evidence

in order to reach its verdict. In this regard, petitioners speculate

**that the jury concluded (without evidence) that Mrs. O’Grady’s

headache was intermittent and then further concluded (without

evidence) that intermittent headache and prodromal bleeding are

mutually inconsistent’’ (Petitioner’s Brief at 45). Petitioners base

this statement on the supposition that an incorrect passage of

Dr. Oberhand’s deposition transcript was read back to the jury

during deliberations (Petitioner’s Brief at 42).

Petitioners seemingly dismiss the jury’s consideration of all

other available evidence presented, see Point C, infra, aside from

the reading of Dr. Oberhand’s deposition testimony in arriving

at the verdict. With respect to the passage which was selected

to be read back to the jury, there was more than ample opportunity

for petitioners to object to this passage. No objection was made

by petitioner’s counsel on either March 26, 1987 or March 27,

1987 when the passage was reread to refresh the jury’s recollection

(261243-248; 27T3-4).

Petitioners seemingly misconstrue the careful and deliberate

consideration of the evidence by the jury as “clear and convincing

circumstantial evidence of juror misconduct’’ (Petitioner’s Brief

at 416) by virtue of the fact that the jury asked for testimony

to be reread. In New Jersey, our courts have clearly acknowledged

and permitted jury requests for the rereading of testimony. See

State v. Lamb, 134. N.J. Super. 575, 582 (App. Div. 1975), aff’d,

71 N.J. 545 (1976). In the Lamb decision, the court noted that

‘* . , generally where the testimony is readily available and in

23

the absence of some unusual circumstance, such a request should

be granted.’’ Jd. at 582.

Ultimately, a jury’s verdict is presumptively valid and the

mere possibility of error is not enough to warrant a new trial.

Appellate review of the trial court’s actions is governed by New

Jersey Court Rule 2:10-1 which provides in pertinent part that

a trial court’s ruling shall not be reversed unless ‘‘it clearly appears

that there was a miscarriage of justice under the law.’’ It is

submitted that the entire record taken as a whole substantiated

the jury’s verdict. Lamedola v. Mizell, 115 N.J. Super. 514, 527

(Law Div. 1971).

C. Consideration of the Trial Record as a Whole Substantiates

the Jury’s Verdict in Favor of Dr. DiLallo and Did Not Result

in Denial of Petitioner’s Due Process Rights.

As set forth in the Counter-Statement of Facts, supra,

petitioner’s medical history was replete with a series of sinus-type

headaches and complaints. It was, therefore, reasonable for the

jury to conclude that Mrs. O’Grady suffered a spontaneous

ruptured aneurysm on March 31, 1983, and that Dr. DiLallo and

Dr. Oberhand were not negligent.

The testimony of Dr. Paul Franz in this respect was

particularly telling. Dr. Franz was Mrs. O’Grady’s chiropractor.

He first began treating her in October of 1982 (22T53: 1-2). On

the history form that she filled out for his office she indicated

that she was a frequent headache-sufferer. Specifically, she advised

Dr. Franz that she suffered from headaches approximately two

to three times a week for twenty years (24T58: 2-10). He then

began treating her between November of 1982 and March of 1983

to correct subluxations found in the lower pelvic area, the dorsal

24

lumbar junction, the dorsal spine, the upper dorsal spine and the

upper cervical spine and the neck (24T70: 1-9).

In January of 1983, she advised Dr. Franz that she was

experiencing headaches again (24T73: 3-10). Two months later

Mrs. O’Grady returned complaining that she hurt her neck during

exercises. Dr. Franz examined Mrs. O’Grady and found

subluxation compressions present from the cervical spine. She was

complaining of neck pain at that time (24T74: 10-22). X-rays taken

of her cervical spine revealed a degenerative joint disease. His

clinical examination also indicated a spinal disorder (24T76: 15-25).

Mrs. O’Grady was next seen on March 11, 1983. She was still

complaining of some discomfort in her neck (24T78: 15-22). She

then saw Dr. Franz four days later at which time she was once

again complaining of headaches. Following this examination, he

found the presence of a subluxation of the cervical spine which

accounted for the complaints of pain which she was experiencing.

Specifically, he found that she had an upper cervical subluxation

of the occipital area which was at the top of the neck or base

of the skull (24T80: 2-13). He performed a chiropractic

manipulation on that day as well as on March 16, 1983. Her next

visit was March 21, 1983. At that time she indicated that her

headaches were gone (24T81: 22-25).

It was not a mere coincidence that Mrs. O’Grady’s headaches

receded following March 16, 1983. It was, in fact, the chiropractic

manipulations which were providing her with relief. So-called

sentinel or pilot bleeds surely do not respond to chiropractic

manipulations. The-jury was free to accept Dr. Franz’ testimony

as to the explanation of when Mrs. O’Grady’s headaches

improved. Our courts in New Jersey have consistently

acknowledged that a jury may adopt so much of a witness’

testimony as appears sound and reject all of it or adopt all of

it. Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985).

25

Petitioner’s expert witness, Dr. Derby, testified that a pilot

or sentinel bleed occurs in only fifty percent of the cases of

ruptured aneurysms (19T181: 10-13). Dr. Duncan, another expert

for petitioner, also agreed that there was a possible basis to

attribute petitioner’s headaches to her sinus problems (20T105:

13-21). Thus, the jury was presented with a very exacting and

extremely plausible explanation for petitioner’s symptoms between

March 7, 1983 and March 14, 1983. Mrs. O’Grady was a chronic

sinus headache sufferer who also happened to sustain a neck injury

on March 2, 1983 which caused the pain which radiated to her

forehead. Mrs. O’Grady’s neck injury responded to chiropractic

manipulations and her headache complaints were resolved by

March 16, 1983.

With respect to Dr. DiLallo’s conduct, even assuming that

Dr. DiLallo would have called Mrs. O’Grady if he had seen Dr.

Oberhand’s letter of March 14, 1983, both defense experts, Drs.

Medinets and Jacobson, testified that generally accepted standards

of medical practice did not require him to make such a call

(25T184: 15-24; 26T38: 9-19). Even Dr. Rose, one of petitioner’s

liability experts, stated unequivocally, that the letter in issue did

not have any sense of urgency to it (20T169; 13-16), and that

in an overwhelming number of cases, people who complain of

headache pain radiating from the back to the front or from the

front to the back, are not necessarily suffering a subarachnoid

hemorrhage (20T178: 5-12). It was within the exclusive province

of the jury to conclude that there would have been no deviation

from accepted of medical practice had Dr. DiLallo read the letter

and decided not to act upon it.

Perhaps more importantly, each defense expert testified that

had a call been made to the petitioner, there would have been

no requirement of the part of Dr. DiLallo to follow up with her

if she had no complaints of headaches.

26

Dr. Franz testified that petitioner’s headaches had completely

abated following March 16, 1983 (24T81: 22-25). Assuming that

Dr. Oberhand’s letter was not received by Dr. DiLallo until March

17, 1983 or March 18, 1983, it was certainly reasonable for the

jury to conclude that had he called her at that time, she would

have advised him that her headaches were gone.

As both Drs. Medinets and Jacobson testified, there would

have been no deviation from accepted standards of medical care

and practice by Dr. DiLallo in not advising petitioner to come

to his office for further evaluation or examination if she had no

complaints of headaches or advised him that her headaches were

gone (25T186: 7-20; 26T40: 1-10). Thus, there would have been

no requirement for Dr. DiLallo to send Mrs. O’Grady for a CAT

scan under the circumstances (25T187: 2-12; 26T41: 20-22).

Thus, it is clear that there was overwhelming evidence from

which a jury could find no negligence on the part of Dr. DiLallo.

Rather, Mrs. O’Grady was the unfortunate victim of a spontaneous

ruptured aneurysm for which there was no warning. It is axiomatic

that an unfortunate result does not necessarily bespeak professional

negligence. See Schueler, supra; Germann v. Matriss, 55 N.J. 193

(1970). The jury in this case agreed. Its judgment should be given

considerable respect without speculation as to the course of

deliberations within the jury room. New Jersey Rule of Evidence

Rule 41 specifically prohibits the admission of an inquiry

challenging a verdict based on the effect of various events upon

the mental processes of jurors. /d.

In this case the jury’s determination was supported by ample

if not overwhelming evidence in the record, and there is no basis

for a determination that petitioners were denied due process of

law. Accordingly, the petition for certiorari must be denied.

27

CONCLUSION

For all of the foregoing reasons, it is respectfully requested

that the petition for certiorari be denied.

Respectfully submitted,

NEIL REISEMAN

REISEMAN MATTIA & SHARP

Attorneys for Respondent

Joseph DiLallo, M.D.