Opposition — O'Grady v. Oberhand

QeePr F. SPANIOL, JR,

4 +=

ERK

In

Supreme Court of the United States

BRIEF IN OPPOSITION FOR RESPONDENT

ROBERT I. OBERHAND, M.D.

OHN P. M¢

MC DERMOTT AND M

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QUESTION PRESENTED

Does the mere fact that the jury requested certain testimony

to be read back imply that its verdict was speculative and

consequently a violation of petitioners’ right to procedural due

process?

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TABLE OF CONTENTS

Question Presse’ . oo. cccessceeseeeuee

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Summary Of Agu. oockccvennddetetnceeee

Reasons for Denying the Writ:

I. The Court is without jurisdiction to grant the writ of

certiorari because petitioners failed to adequately raise

their constitutional claims below. ...............

A. Petitioners Failed to Appeal the Judgment to the

New Jersey Supreme Court. ...............

B. Petitioners Failed to Adequately Raise Their

Constitutional Claims in the State Courts.

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C. Petitioners’ Constitutional Claims Were Not

Decided in the State Courts Below..........

D. The Petition is Procedurally Defective Because

Petitioners Have Failed to Comply with Rule

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Page

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11

12

13

ii

Contents

Page

II. No special reasons exist to grant the petition for a

ee cele aed elaedeade se» 13

III. Petitioners’ failure to object to the charge or the

portions of testimony which were read back to the

jury constitute an independent and adequate state

ground to support the judgment. ...... esa ee er 15

IV. The petition should be denied because the record does

not demonstrate any violation of petitioners’ right to

ee ee ua kdwiepece cb ewes 16

De ce nd dv baet eet berenebecs 19

TABLE OF CITATIONS

Cases Cited:

Cardinale v. Louisiana, 394 U.S. 437, 89 S. Ct. 1161, 22 L.

Gus en eee een ee os 12

Ellis v. Dixon, 349 U.S. 458, 75 S. Ct. 850, 99 L. Ed. 1231

ees te Flas 6s be eS EMU Bcc ooo uewnes oes 12, 13

Evers v. Dollinger, 471 A.2d 405, 95 N.J. 399 (1984)

Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d, 837

ee or we oo b 8b Ab wwe wee 14

Ford v. Reichert, 129 A.2d 439, 23 N.J. 429 (1957)........ 16

iv

Contents

Page

Gaido v. Weiser, 545 A.2d 1350, 227 N.J. Super. 175 (App.

Div. 1988), aff’d, 558 A.2d 845, 115 N.J. 310 (1989)

PE ee ee EP PC Tay ern EOE EE Ir 16

Gluckauf v. Pine Lake Beach Club, Inc., 187 A.2d 357, 78

we ee ee 16

Hake v. Manchester Township, 486 A.2d 836, 98 N.J. 302

CE Sde ccs sICCEAGEERA Ne VEL asdceu ek ene Nbe re ces 18

Kligman v. Lautman, 251 A.2d 745, 53 N.J. 517 (1969)

Sales Uae ARs OR ELMER ODS ERE SEMEL EGS RUE 10

McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6, 99 L.

ly Se adc hu pa bas owe eka a we eul on ad 8, 17

Mississippi Power v. Moore, 487 U.S. ___, 108 S. Ct. 2428,

Pe is Bc Ds cc Fe he bbc bebe busses 12

N.L.R.B. v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.

Ce, ey ee es Os I RED cds ks ceuvescensue ens 14

Oxley Stave Co. v. Butler County, 166 U.S. 648, 17 S. Ct.

Fay Se ig, PED os ov v.nk kdvew sc awe cesses 12

Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108

ee JR eT renee 12

Rice v. Sioux City Cemetery, 349 U.S. 70, 75S. Ct. 614, 99

es TD 2 12 o's Cee oe pad ewadvskeedeanters 7,14

Street v. New York, 394 U.S. 576, 89S. Ct. 1354, 22 L. Ed.

Be NT dni eA wee place 4d A Ree eR Ee Se ee 13

Contents

Page

Tidewater Oil Co. v. Mayor and Council of Carteret, 209

Aah 16S, 46 0.5 .. FOO CE 6 ok se ivatadiguscnvess 10

Webb v. Webb, 451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed.

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Statutes Cited:

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p BUR Se | ere rrr rr 2, 7, 8, 11

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United States Constitution Cited:

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Rules Cited:

United States Supreme Court Rules:

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Rule 21.50 ccc esdeecietitnnt eee eee 7440

Rabe Z1S ii ice sithiineses ese eee 7, 13

New Jersey Court Rules:

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vi

Contents

Page

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New Jersey Evidence Rule 41.................2ceeeees 12

New Jersey Rule of Professional Conduct 3.5 .......... 12

Other Authorities Cited:

New Jersey Constitution, 1947:

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APPENDIX

New Jersey Constitution, 1967 .......cccccccscenvnvcns la

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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

ROBERT I. OBERHAND, M.D.

STATEMENT OF THE CASE

This is a case of alleged professional negligence. The issues

are confined solely to those involving state law. Respondent

submits there is no basis to invoke this Court’s jurisdiction

pursuant to 28 U.S.C. § 1257(a).

On March 31, 1983, petitioner Rosella O’Grady suffered a

subarachnoid hemorrhage from a ruptured aneurysm of the right

middle cerebral artery which left her paralyzed from the neck

down. Petitioners brought suit against Dr. Robert Oberhand, an

otolaryngologist, and Dr. Joseph DiLallo, a family practitioner,

alleging generally a failure to properly diagnose headaches

complained of by petitioner prior to the hemorrhage.' A jury

verdict was rendered in favor of both respondents finding, in

response to special interrogatories, that both were not

professionally negligent. Thus, petitioners’ assertion of negligence

being ‘‘uncontested’’ as framed in the questions presented

represents a gross distortion of the facts.

Dr. Bennett Derby, a neurologist, testified as one expert for

petitioners. He explained, as did other witnesses, that an aneurysm

is ‘‘a little bulge or out-pocketing on the wall of an artery,”’ like

a bubbie on a tire tube (19T179:8-14).* He agreed with the expert

for respondents, Dr. Howard Medinets, that an aneurysm was

caused by a congenital defect in the wall of the artery. It was

petitioners’ theory through Dr. Derby and other experts that the

ruptured aneurysm was preceded by a warning or sentinel bleed

1. Petitioners also sued Dr. Paul Franz, a chiropractor, and Mary C. Major,

Phyllis La Flamme and Mary Ann Hamburger, who were office employees of

Dr. DiLallo. The complaint against Dr. Franz was dismissed on summary

judgment prior to trial. Petitioners voluntarily dismissed their claims against

the employees of respondent DiLallo prior to their appeal to the Superior Court

of New Jersey, Appellate Division.

2. The citation ‘‘T’’ refers to the transcript of the trial. The prefix number

refers to the date of the testimony. The suffix refers to the page, and then,

where applicable, the line numbers.

on March 4, 1983, and that this bleed caused Mrs. O’Grady’s

headache (19T181:6-183:11). Both Dr. Derby and Dr. Charles

Duncan, a neurosurgeon, testified that Dr. Oberhand was negligent

for not referring Mrs. O’Grady for immediate neurological

assessment (19T190:1-1G, 20T52:21-53:4).

Respondent Oberhand undermined petitioners’ case from

more than one direction. Headaches, being such a common

ailment, he denied negligence for failing to refer Mrs. O’Grady.

Indeed, petitioner Frank O’Grady admitted that his wife had

suffered from migraine headaches (19T132:16-13), and sinus

headaches (19T 133:4). He also conceded that she had injured her

neck exercising on the Ist or 2nd of March (23T28:19-25) and

that she had some history of arthritis (23T33:10-14). Respondent

also challenged the allegation of professional negligence by

attacking causation with an overwhelming amount of evidence,

which would have permitted the jury to conclude that petitioner’s

headaches were most likely attributable to causes other than a

sentinel bleed (which also compounded the difficulty of making

an accurate diagnosis had there been a bleed). Finally, respondent

contended that even if petitioner had been referred for neurological

workup, it was unlikely that the aneurysm would have been

detected.

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

expert witness on behalf of Dr. Oberhand on the issue of causation.

He testified that petitioner suffered a spontaneous subarachnoid

and intracerebral hemorrhage from a congenital aneurysm of the

middle cerebral artery at its first bifurcation (25T152:23-153:1).

He explained that the middle cerebral artery is a major artery

within the substance of the brain, and when it ruptures and bleeds

into the substance of the brain, the intracerebral hemorrhage,

because of the location has a devastating injury and effect

(25T149:20-150:9). Dr. Medinets went on to explain that the

subarachnoid hemorrhage had to occur on March 31, 1983 and

not earlier because a bleed in such a location is a disastrous

occurrence. ‘‘It is a catastrophe, like an explosion inside of the

head.’’ The damage from this type of bleeding is necessarily very

severe and the brain is damaged (25T167:2-15). The brain is

damaged from the blood which is actually in the brain

(25T 167: 16-17). **All of the evidence indicates that she did not

have bleeding prior to 3/31." (25T170:8-9).

Respondent submitted further proof that even if petitioner

had been referred for a neurological assessment, the aneurysm

would not had been discovered. Dr. Derby gave the opinion that

if petitioner had been referred to neurologist or neurosurgeon,

he would have obtained a CAT scan of the head which would

have shown the aneurysm (19T190:14-25). Dr. Medinets disagreed.

He testified that the aneurysm was too small to have been detected

on a CAT scan (25T158:13-159:8). Indeed, Dr. Medinets related

that the CAT scan taken on March 31, 1983 after petitioner

collapsed, failed to show the aneurysm (25T154:25-155:4). The

aneurysm was only later confirmed through an arteriogram done

on July 19, 1983 (25T166:11-17).

Mrs. O'Grady saw respondent Oberhand on only two

occasions after her headaches began. Dr. Roger Miles Rose, a

board-certified otolaryngologist, testified as an expert on behalf

of petitioners. While Dr. Rose delivered an opinion that the care

rendered by Dr. Oberhand on March I4th deviated from the

accepted standard of medical care because he failed to refer the

patient for evaluation by a neurologist or a neurosurgeon, he

testified that the treatment which Dr. Oberhand gave on March

7th was appropriate for what he found (20T161:1-4). Thus, if

believed, the jury had only the visit of March 14 to evaluate to

determine the propriety of the treatment rendered by respondent.

Moreover, Dr. Rose agreed that it was a matter of judgment in

making a decision whether to treat, to refer the patient, or to

determine whether it was an emergency (20T167:7-18). He also

yy

related that it was a matter of judgment in evaluating a patient

and how he presents himself with a complaint of headaches

(20T 168:8-169:3).

As part of their argument, petitioners claim that the trial

court failed to properly charge the jury on the issue of causation,

in particular failing to give a ‘‘loss of a chance’’ charge as set

forth in Evers v. Dollinger, 471 A.2d 405, 95 N.J. 399 (1984).

However, there was no objection by petitioners to the charge as

given by the trial judge, and no request for an Evers charge’

(26T221: 12-16). Likewise, petitioners failed to object to any

testimony which was read back in response to the requests of the

jury (26T:243-248). Moreover, the trial judge invited the jury to

request additional testimony if the passage selected was wrong

(26T245:2-18).

As previously noted, the jury returned a verdict finding that

both respondents were not professionally negligent. Since the jury

concluded that neither respondent was negligent, they did not

render a verdict on the issue of proximate cause.‘

Petitioners moved for a new trial on the ground that the

verdict was against the weight of the evidence. The court denied

the motion and delivered an oral opinion from the bench. It stated

in part:

I believe that the verdict is not against the weight of

3. Furthermore, petitioners did not clam the charge was in error on their

appeal to the Superior Court, Appellate Division. The petitioners first raised

this issue in the petition for certification to the N.J. Supreme Court at p. 16

where they conceded it had not been raised below and urged “‘piain error."

See Point II! herein.

4. The issues of negligence and causation were submitted as separate

interrogatories to the jury

the evidence. I believe there is not a miscarriage

of justice. I believe that this is an unfortunate

situation where people — that the human body

is a delicate mechanism that none of us truly

understand, even doctors. [4/24T19:15-20; see

Petitioners’ Appendix at p. 14a.]}

The question is ‘‘Did he deviate from accepted

standards of that profession? I find that the jury,

had I been sitting on the jury, having listen to all

the evidence I would have voted the same way the

jury voted. I believe that the jury had all of the

evidence. [4/24T18:19 24; see Petitioners’

Appendix at p. I4a.]

.. . Not only that, but the testimony was, which

supports, more than supports, but had the

Defendant, Dr. Oberhand had the burden of

proving by a preponderance of the credible

evidence that he was not professionally negligent,

I think he would have met that burden, had the

burden been on the other side. [4/24T17:9-15; see

Petitioners’ Appendix at pp. 12a-13a.]

The record is devoid of any complaint by petitioners of a

denial of their due process rights under the Fourteenth

Amendment. Not only is the jury verdict supported by the

evidence, it is a proper and just verdict which should not be

disturbed by this Court.

SUMMARY OF ARGUMENT

The petition seeks review of a judgment of the Superior Court

of New Jersey in favor of respondents in an action alleging

professional negligence. Petitioners seek to invoke the jurisdiction

of this Court pursuant to 28 U.S.C. § 1257(a), claiming a violation

of their right to procedural due process.

Respondent contends that the Court is without jurisdiction

to grant the petition because petitioners failed to adequately raise

their constitutional claims below. Although favored with an appeal

as of right to the New Jersey Supreme Court for matters involving

a Question arising under the Constitution of the United States,

petitioners elected to seek discretionary review by petitioning for

certification which was denied. New Jersey Constitution, 1947,

Article 6, § 5, 1. Thus, petitioners claims were not presented

to the “highest court of a state’’ which is required under 28 U.S.C.

§ 1257(a) for this Court to exercise its jurisdiction. Webb v. Webb,

451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed. 2d 392 (1981). Moreover,

on their petition for certification to the New Jersey Supreme Court,

petitioners failed to raise their constitutional claims. Additionally,

neither of the appellate opinions below indicates that those courts

actually decided the constitutional issues now alleged by petitioners.

That petitioners failed to adequately raise their claims below can

be inferred from their lack of compliance with this Court’s Rule

21.1(h) which subjects the petition to possible denial under Rule

21.5.

Second, the petitioner does not set forth any ‘‘special and

important reasons’’ for issuing a writ of certiorari. Rule 17 and

Rice v. Sioux City Cemetery, 349 U.S. 70, 75 S. Ct. 614, 99 L.

Ed. 897 (1954).

Third, the judgment below is supported on independent and

adequate state grounds. Namely, petitioners neglected to preserve

their right to appellate review by failing to object to the charge,

or the portions of testimony which were read back to the jury

and of which they now complain. N.J. Court Rule 1:7-2.

Finally, the record fails to demonstrate any violation o!

petitioners’ right to due process. Petitioners’ claims are speculative.

The judgment was entered based upon the verdict of a jury which

resolved conflicting facts bearing upon the issues of negligence

and causation — issues plainly outside the criteria by which this

Court exercises its discretionary jurisdiction. McAllister v. United

States, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 26 (1954).

REASONS FOR DENYING THE WRIT

I.

THE COURT IS WITHOUT JURISDICTION TO GRANT

THE WRIT OF CERTIORARI BECAUSE PETITIONERS

FAILED TO ADEQUATELY RAISE’ THEIR

CONSTITUTIONAL CLAIMS BELOW.

Petitioners allege jurisdiction under 28 U.S.C. § 1257(a).

Jurisdiction is allegedly conferred by reason of a judgment “*. . .

rendered by the highest court of a State in which a decision could

be had. . .’’ wherein **. . . any title, night, privilege, or immunity

...’” Petitioners **. . . have specially set up or claimed under

the Constitution ... of ... the United States.’’ Specifically,

petitioners claim a violation of procedural due process under the

Fourteenth Amendment.

A. Petitioners Failed to Appeal the Judgment to the New Jersey

Supreme Court.

New Jersey has a three-tiered judicial system. Original

jurisdiction throughout the State is vested in the Superior Court

which is separated into ‘‘Divisions’’ including the Law and

Appellate Divisions. New Jersey Constitution, 1947 (hereafter

‘*‘Const.’’), Art. 6, § 3, 44 2 and 3. The within matter was

originally venued in the Law Division. Appeals from fina!

judgments in the Law Division may be taken as of right to the

second tier, Appellate Division. Const., Art. 6, § 5, 4 2 and N.J.

Court Rule 2:2-3(a) (Appendix at 1a). The Supreme Court is the

court of last resort. Const., Art. 6, § 2, 2 (Appendix at 1a).

Review of final judgments in the Supreme Court may be had

either on direct appeal or certification as provided. Const., Art.

6, § 5, 7 1 provides:

1. Appeals to the Supreme Court

1. Appeals may be taken to the Supreme Court:

(a) In causes determined by the appellate division

of the Superior Court involving a question arising

under the Constitution of the United States or this

State;

(b) In causes where there is a dissent in the

Appellate Division of the Superior Court;

(c) In capital causes;

(d) On certification by the Supreme Court to the

Superior Court and, where provided by rules of

the Supreme Court, to the inferior courts; and

(e) In such causes as may be provided by law.

N.J. Court Rule 2:2-1 tracks the state constitutional criteria:

2:2-1. Appeals to tha Supreme Court from Final

Judgments

(a) As of Right. Appeals may be taken to the

Supreme Court from final judgments as of right:

10

(1) in cases determined by the Appellate Division

involving a substantial question arising under the

Constitution of the United States or this State; (2)

in cases where, and with regard to those issues as

to which, there is a dissent in the Appellate

Division; (3) directly from the trial courts in cases

where the death penalty has been imposed and in

post-conviction proceedings in such cases; (4) in

such cases as are provided by law.

(b) On Certification. Appeals may be taken to the

Supreme Court from final judgments on

certification to the Appellate Division pursuant to

R. 2:12.

Both the Constitution and Rule 2:2-l(a)(1) provide for an appeal

‘*as of right’’ in cases *‘...involving a substantial’ question ansing

under the Constitution of the United States...’’. Alternatively,

a litigant may petition for certification, but review by the court is

discretionary.* Where there is a proper basis for an appeal as of

right, non-constitutional claims will also be considered. Kligman

v. Lautman, 251 A.2d 745, 53 N.J. 517 (1969).

Although entitled to review ‘‘as a right’’ of their constitutional

claims, petitioners failed to appeal the judgment of the Appellate

5. While not expressly set forth in the Constitution, N.J. Court Rule

2:2-l(aXil) includes a requirement that the constitutional question must be

**substantial”’ for an appeal as of right. However, the substantiality requirement

has nevertheless been construed has implicit in Article 6, § 5, 4 1. Tidewater

Oil Co. v. Mayor and Council of Carteret, 209 A.2d 105, 44 N.J. 338 (1965).

6. The grounds for certification are set forth in N.J. Court Rule 2:12-4

at Appendix 2a. Generally, a question of *‘general public importance”’ or ‘special

reasons”’ is required.

11

Division to the Supreme Court, but instead sought discretionary

certification which was denied’ (Petitioners’ Appendix at 2a).

Under these circumstances, respondent respectfully contends that

this Court is without jurisdiction under 28 U.S.C. § 1257(a) since

petitioners’ claims were not presented to ‘‘. . . the highest court

of [the] State in which a decision could be had .. .’’. Webb v.

Webb, 451 U.S. 493, 101 S. Ct. 1889, 68 L. Ed. 2d 392 (1981).

B. Petitioners Failed to Adequately Raise Their Constitutional

Claims in the State Courts.

Even if petitioners’ request for certification to the New Jersey

Supreme Court instead of direct appeal of the judgment could

be viewed as adequate for the purpose of invoking this Court’s

jurisdiction under 28 U.S.C. § 1257(a), petitioners never raised

their due process claim in their petition for certification.

Petitioners’ brief and reply brief in support of their petition for cer-

tification are simply devoid of any argument that they were denied

procedural due process under the Fourteenth Amendment. While

such a claim was tangentially raised on appeal to the Appellate

Division,’ it must be deemed to have been abandoned when

petitioners sought review by the New Jersey Supreme Court.

Jurisdiction of this Court can arise **. . . only if the record

as a whole shows either expressly or by clear implication that the

federal claim was adequately presented in the state system.”’ Webb

v. Webb, 451 U.S. 493, 496-497, 101 S. Ct. 1889, 1892, 68 L.

7. While petitioners may have sought certification instead of directly

appealing the judgment because of the ‘‘substantiality’’ requirement, it hardly

behooves petitioners to advance such an argument here in view of this Court's

criteria for granting certiorari.

8. Brief of Plaintiff-Appellants, Superior Court of New Jersey, Appellate

Division, Point I(d) at p. 52

12

Ed. 2d 392, 397 (1981); Oxley Stave Co. v. Butler County, 166

U.S. 648, 655, 17 S. Ct. 709, 711, 41 L. Ed. 1149 (1897).

Moreover, if respondent understands petitioners’ argument

that N.J. Court Rule 1:16-1 (Interviewing Jurors Subsequent to

Trial), N.J. Evidence Rule 41 (Evidence to Test a Verdict) and

N.J. Rule of Professional Conduct 3.5 (Lawyer Not to Influence

Juror) somehow violate their right to due process, petitioners failed

to mount any direct constitutional attack on those provisions in

the state courts. In order to invoke this Court’s appellate

jurisdiction, an express challenge to the constitutionality of a state

statute is required. Mississippi Power v. Moore, 487 U.S. ___.,

108 S. Ct. 2428, 2437, 101 L. Ed. 2d 322, 337 (1988), n. 10 and

Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct.

896, 898, 99 L. Ed. 2d 75, 80 (1988), n. 4.’ Since none was

advanced, respondent contends that the Court is without

jurisdiction.

C. Petitioners’ Constitutional Claims Were Not Decided in the

State Courts Below.

To invoke this Court’s jurisdiction, the federal question must

not only have been raised, but also decided by the state courts.

Cardinale v. Louisiana, 394 U .S. 437, 438, 89S. Ct. 1161, 1162,

22 L. Ed. 2d 398, 400 (1969). If not passed upon, this Court may

assume that the judgment rests on ar adequate nonfederal

ground,'® Cardinale, supra, and Ellis v. Dixon, 349 U.S. 458,

9. Respondent realizes that petitioners have not appealed, but seek a writ

of certiorari. The cases ated were decided prior to the 1988 amendment of 28

U.S.C. § 1257 which eliminated this Court’s appellate jurisdiction from the

state courts under the former § 1257(2). To the extent that petitioners challenge

the constitutionality of the aforesaid state rules, respondent urges that those

decisions are persuasive.

10. Cf, Pout III herein.

13

464, 75 S. Ct. 850, 854, 99 L. Ed. 1231, 1236 (1955), or that

the omission is for want of proper presentation in the state courts,

unless the aggrieved party can affirmatively show the contrary.

Street v. New York, 394 U.S. 576, 582, 89 S. Ct. 1354, 1360,

22 L. Ed. 2d 572, 579 (1969). Nothing in the proceedings below

show that the state appellate courts actually decided the

constitutional issues raised here by petitioners. The Appellate

Division rendered a per curiam opinion which makes no mention

of them, and the New Jersey Supreme Court merely issued an

order denying the petition for certification (Petitioners’ Appendix

at la-Sa).

D. The Petition is Procedurally Defective Because Petitioners

Have Failed to Comply with Rule 21.1(h).

Petitioners’ Statement of the Case is deficient under this

Court’s Rule 21.1(h). There is no specification by petitioners where

the federal questions sought to be reviewed in this Court were

raised, either in the trial or appellate courts. There are no “*.. .

pertinent quotations of specific portions of the record, or summary

thereof . . .’’ to show that the federal questions were timely and

properly raised so as to grant this Court jurisdiction to review

the judgment. Under Rule 21.5, the Court may deny the petition

for failure to comply.

Il.

NO SPECIAL REASONS EXIST TO GRANT THE

PETITION FOR A WRIT OF CERTIORARI.

Petitioners jump to the conclusion that the jury verdict was

the product of speculation based upon requests for certain

testimony to be read back. They then color this alleged speculation

‘*jury misconduct,’’ and, in what can be only characterized as

a quantum leap, argue that the jury violated their right to

14

procedural due process under the Fourteenth Amendment. In the

only place where petitioners raised this unique theory below, they

candidly admitted, ‘‘No case has been discovered in which a

constitutional grievance has been laid at the feet of jurors

themselves .. .’’.'!

However, review on certiorari is not a matter of right, but

of discretion, and is only granted when there are special and

important reasons. Rule 17. Review on certiorari does not provide

a normal appellate channel in any sense comparable to a writ

of error. Fay v. Noia, 372 U.S. 391, 436, 83 S. Ct. 822, 847,

9 L. Ed. 2d 837, 867 (1963). While petitioners may have developed

what they considered to be a novel constitutional theory, ‘‘ ‘special

and important reasons’ imply a reach to a problem beyond the

academic or the episodic.’’ Rice v. Sioux City Cemetery, 349 U.S.

70, 74, 75 S. Ct. 614, 616, 99 L. Ed. 897, 901 (1954). Even where

petitioner may raise a federal question ‘‘of substance,’’ this Court

does sit to satisfy a scholarly interest in such issues. Rice, supra.

Certiorari is granted only where the case involves principles the

settlement of which is important to the public as distinguished

from the parties. N.L.R.B. v. Pittsburgh Steamship Co. 340 U.S.

498, 502, 71 S. Ct. 453, 456, 95 L. Ed. 479, 482 (1951).

The petition fails to satisfy, nor does it attempt to satisfy,

any of the criteria typically considered by the court for granting

certiorari. Cf., Rule 17.1(b) and (c). While petitioners undoubtedly

feel that the issues are of great concern to themselves, they in

no way justify the expenditure of this Court’s limited resources.

11. Brief of Plaintiff-Appellants, Supenor Court of New Jersey, Appellate

Division, Point I(d) at p. 52.

15

Il.

PETITIONERS’ FAILURE TO OBJECT TO THE

CHARGE OR THE PORTIONS OF TESTIMONY WHICH

WERE READ BACK TO THE JURY CONSTITUTE AN

INDEPENDENT AND ADEQUATE STATE GROUND TO

SUPPORT THE JUDGMENT.

To the extent that the trial court’s failure to charge ‘‘loss

of a chance’’ under Evers v. Dollinger, 471 A.2d 405, 95 N.J.

399 (1984) and its alleged mistake in having the incorrect testimony

read back to the jury even remotely imply some constitutional

defect, petitioners have waived appellate review by failing to make

appropriate and timely objections.'? New Jersey follows the

traditional rule which requires a timely objection to evidence or

the court’s charge in order to preserve the issue for appellate

review. N.J. Court Rule 1:7-2 provides:

For the purpose of reserving questions for

review or appeal relating to rulings or orders of

the court or instructions to the jury, a party, at

the time the ruling or order is made or sought,

shall make known to the court specifically the

action which he desires it to take or his objection

to the action taken and the grounds therefor.

Except as otherwise provided by R. 1:7-5 and R.

2:10-2 (plain error), no party may urge as error

any portion of the charge to the jury or omissions

therefrom unless he objects thereto before the jury

retires to consider its verdict, but opportunity shall

be given to make the objection in open court, in

the absence of the jury. If a party has no

12. Petitioners conceded in their petition for certification to the New Jersey

Supreme Court at p. 16 that they made no objection to the charge, and urged

‘plain error.”’

16

opportunity to object to a ruling, order or charge,

the absence of an objection shall not thereafter

prejudice him.

Obviously, the purpose of the rule is to give the court an

opportunity to reconsider its rulings and correct any alleged errors.

Gluckauf v. Pine Lake Beach Club, Inc., 187 A.2d 357, 78 N.J.

Super. 8, 18 (App. Div. 1963). Except in the case of ‘‘plain error’’

which is discretionary and ‘‘. . . should be sparingly employed,”’

New Jersey appellate courts will not review matters which were

not preserved below. Ford v. Reichert, 129 A.2d 439, 23 N.J.

429, 433 (1957). See also, Gaido v. Weiser, 545 A.2d 1350, 227

N.J. Super. 175 (App. Div. 1988), aff’d, 558 A.2d 845, 115 N.J.

310 (1989).

There was no objection by petitioners to the charge given

by the trial judge below, and no request for a ‘‘loss of a chance’’

charge (261T221:12-16). To the same effect, petitioners failed to

object to any testimony which was read back in response to the

requests of the jury (26T243-248). Moreover, the trial judge invited

the jury to request additional testimony if the passages selected

were wrong (261245:2-18). Thus, petitioners failure to make

appropriate and timely objections in the trial court constitute an

independent and adequate state ground for affirmance of the

judgment by the courts below.

IV.

THE PETITION SHOULD BE DENIED BECAUSE THE

RECORD DOES NOT DEMONSTRATE ANY VIOLATION OF Py

PETITIONERS’ RIGHT TO DUE PROCESS.

The judgment entered in this case did not turn upon a

violation of petitioners’ right to due process, but rather upon

resolution by a jury of conflicting facts bearing upon the issues

a ef

17

of negligence and causation. As Mr. Justice Frankfurter stated

in McAllister v. United States, 348 U.S. 19, 23, 75 S. Ct. 6, 9,

99 L. Ed. 26 (1954):

. . . If there is any class of cases which plainly

falls outside of the professed considerations by

which this court exercises its discretionary

jurisdiction, it is cases involving only interpretation

of facts bearing on the issue of causation or

negligence. The standards of judgment in this type

of litigation are well settled. The significance of

facts becomes the bone of contention. [Coricurring

opinion]

Petitioners have latched onto the jury’s request for the testimony

of Dr. Oberhand concerning the continuity of headaches to imply

a verdict based upon speculation which infers misconduct, which,

in turn, is alleged to be a violation of procedural due process.

But the record is replete with references to both ‘‘a headache’’

and ‘‘headaches’’ suffered by petitioner Rose O’Grady between

March 2 and March 16, 1983. Petitioners’ daughter testified to

‘“*very bad headaches.’’ (19T22:14). Petitioner Frank O’Grady was

questioned on direct about his wife’s ‘‘headaches”’ and testified

that they disappeared on March 16 (19T148:3-22). On the

hypothetical question proposed to petitioners’ expert, Dr. Duncan,

reference was made to ‘“‘headaches.’’ (20T46:19, 20T47:3,

20T47:20). Dr. Duncan also agreed on cross examination that

there was a possible basis to attribute petitioner’s ‘‘headaches’’

to the sinus problem (20T105:13-21) and the testimony of Dr.

Franz was laced with references to ‘‘headaches.’’ (24T79:15-23,

24T81:21, 24T87:22-88:4, 24T105:6-25).

On cross examination, Dr. Oberhand referred to ‘‘. . . the

plural headaches.’’ (25T76:5-10). He testified that the petitioner’s

description of the headaches was, ‘‘. . . “‘They’re back again’ type

of situation."’ In other words, similar to all the other headaches

(25T81:6-16).

Clearly, the issue of whether petitioner had a single constant

headache or a series of headaches, and the inferences to be drawn

therefrom were questions for the jury and the only flawed

reasoning concerning same is that which is incorporated in

petitioners’ argument. It is the petitioners, rather than the jury,

who have engaged in speculation. See the opinion of the Superior

Court, Appellate Division, Petitioners’ Appendix at pp. 4a-Sa.

On petitioners’ motion for a new trial, the trial judge remarked

in his oral opinion denying the application that, not only would

he have voted along with the jury to exonerate the respondent,

but he felt the evidence was so strong, that respondent would

have prevailed even if he had the burden of proof.

... Not only that, but the testimony was,

which support, more than supports, that had the

Defendamt Dr. Oberhand had the burden of

proving by a preponderance of the credibie

evidence that he was not professionally negligent.

I think that he would have met that burden, had

that burden had been on the other side

[4/24T17:9-15; Petitioners’ Appendix at pp

|2a-13a]

The verdict of the jury is not only supported by adequate credibiec

evidence in the record, it is right and should not be disturbed

The remainder of petitioners’ arguments concerning (he

adequacy of the court's charge to the jury, and in particular. (5

failure to charge ‘‘loss of a chance’’ pursuant to Evers v Doillinger

supra and Hake v. Manchester Township, 486 A.ld 436, 98 |

302 (1985), if not waived by petitioners for failing to object to

the charge. raise issues solely of state law which (his Court has

no jurisdiction to review under 28 U S.C 12$7

19

CONCLUSION

For all of the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN P. MC GEE

MC DERMOTT & MC GEE

Attorneys for Respondent

Robert |. Oberhand, M.D.

Dated: Millburn, New Jersey

April 2, 1990

APPENDIX

New Jersey Constitution, 1947

Art. 6, § 5, ¢ 2:

2. Appeals to Appellate Division of Superior

Court

2. Appeals may be taken to the Appellate

Division of the Superior Court from the Law and

Chancery Divisions of the Superior Court, and in

such other causes as may be provided by law.

Art. 6, § 2, 4 2:

2. Supreme Court, appellate jurisdiction

2. The Supreme Court shall exercise appellate

jurisdiction in tne last resort in all causes provided

in this Constitution.

New Jersey Court Rules

Rule 2:.2-3 [Part]:

22-3. Appeals to the Appellate Division from Final

Judgments, Decisions, Actions and from Rules,

Tax Court

(a) As of Right. Except as otherwise provided

by R. 2:21(aX3) (final judgments appealabie

directly to the Supreme Court), appeals may be

taken to the Appellate Division as of right

Rule 2:

2a

Appendix

(1) from final judgments of the Superior Court

trial divisions, or the judges thereof sitting as

Statutory agents; the Tax Court; and in summary

contempt proceedings in all trial courts except

municipal courts; .

12-4:

2:12-4. Grounds for Certification

Certification will be granted only if the appeal

presents a question of general public importance

which has not been but should be settled by the

Supreme Court or is similar to a question presented

on another appeal to the Supreme Court; if the

decision under review is in conflict with any other

decision of the same or a higher court or calls for

an exercise of the Supreme Court’s supervision and

in other matters if the interest of justice requires.

Certification will not be allowed on final judgments

of the Appellate Division except for special

reasons.

= |

a