NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4412-17T1
TIMOTHY C. ROWE, SR.,
Plaintiff-Respondent,
v.
WILLIAM MADISON, DO, and FAMILY PRACTICE ASSOCIATES,
Defendants-Appellants,
and
ASHOK R. BAPAT, MD, and COMPREHENSIVE CANCER & HEMATOLOGY SPECIALISTS, PC,
Defendants. _____________________________
Argued September 23, 2019 – Decided March 12, 2020
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1045-14. Mark Alan Petraske argued the cause for appellant (Dughi Hewit & Domalewski PC, attorneys; Jessica Yifan Ma, on the briefs).
Emily A. Mc Donough argued the cause for respondent (Martin T. Mc Donough, attorney; Emily A. Mc Donough, of counsel and on the briefs).
PER CURIAM
William Madison, D.O., 1 appeals from a May 4, 2018 order denying his
motion for a mistrial and his motion for judgment notwithstanding the verdict
(JNOV) or, in the alternative, a new trial, after a seven-day trial on plaintiff
Timothy C. Rowe's medical malpractice claims. Under a Scafidi2 theory of
liability, plaintiff alleged that defendant failed to inform him that he had tested
positive for Factor V Leiden, a genetic mutation, and that consequently, plaintiff
was deprived of the opportunity to treat his condition, thereby increasing his risk
of stroke and causing him to suffer an arterial stroke that rendered him
permanently disabled. The jury returned a verdict for plaintiff, awarding him
$852,350 in damages and attributing 55% of the ultimate injury to defendant's
negligence and 45% to plaintiff's preexisting conditions. Defendant filed the
1 Family Practice Associates is Dr. Madison's practice. For simplicity, we refer to Dr. Madison and Family Practice Associates collectively as defendant throughout this opinion. 2 Scafidi v. Seiler, 119 N.J. 93 (1990). A-4412-17T1 2 post-verdict motions, arguing that plaintiff failed to present sufficient evidence
showing that defendant deviated from the standard of care and that this violation
substantially contributed to plaintiff suffering an arterial stroke. Having
reviewed the record, and in light of the applicable law, we affirm.
I.
We discern the following facts from the record. In March 2000, defendant
referred plaintiff for blood testing because of plaintiff's family history of
hypercoagulability problems. Plaintiff's test results showed that he tested
positive for Factor V Leiden, a genetic mutation that "increases the risk of a
hypercoagulable state."
On May 12, 2000, plaintiff had an appointment with defendant. The
parties dispute whether defendant informed plaintiff that he had tested positive
for Factor V Leiden and discussed treatment to decrease the risk of any adverse
consequences. Office notes from this appointment included a variety of
information but neither stated that plaintiff tested positive for Factor V Leiden
nor used the words Factor V Leiden, blood clots, or hypercoagulability. While
the notes indicated that the parties reviewed test results, the notes did not
explicitly refer to the blood test. None of the office notes concerning plaintiff
A-4412-17T1 3 from May 12, 2000 through February 26, 2012 indicated that plaintiff tested
positive for Factor V Leiden.
On July 29, 2012, plaintiff suffered an arterial stroke, specifically a
"middle cerebral artery/cerebral vascular attack," causing right-sided weakness.
After plaintiff was discharged from the hospital, he stayed at a rehabilitation
center for about three weeks, where he received physical, occupational, and
speech therapies, as he needed help re-learning how to walk, speak, and care for
himself. Upon leaving the center, plaintiff moved into his sister's home, where
he continued therapy for about eight months. Plaintiff was unable to drive for
about nine months after his stroke.
On February 27, 2014, plaintiff had another appointment with defendant.
Defendant's office notes from the appointment included the following notation:
"SPL MCA/CVA → R hemiparesis (? 2° smoking/Factor V)." The notation
outside of the parentheses means "status post left middle cerebral artery/cerebral
vascular accident" leading to "right-sided weakness." The "2°" represents the
term "secondary to," meaning "caused by . . . or arising out of."
On December 24, 2014, plaintiff filed a complaint for medical malpractice
against defendant, Ashok R. Bapat, M.D., and Comprehensive Cancer &
Hematology Specialists, advancing claims for negligent treatment and informed
A-4412-17T1 4 consent. The claims against Dr. Bapat and Comprehensive Cancer &
Hematology Specialists were later dismissed by way of summary judgment.
During discovery, plaintiff served requests for admissions on defendant
and elicited, in part, the following admissions: A Factor V mutation increases
the risk of a hypercoagulable state, the risk of a clotting event, and the risk of a
stroke; a patient with the heterozygous "Factor V Leiden mutation [that] is not
anticoagulated is at an increased risk of stroke"; and prophylactic anticoagulants
(blood thinners) are a "treatment option for a patient who is positive for a Factor
V abnormality." These admissions were read into the record at trial.
Plaintiff did not serve any expert reports. Defendant, however, served
expert reports prepared by Dr. Ronald A. Sacher, a board-certified hematologist,
and Dr. John Hocutt, a board-certified family practitioner. Both experts, as well
as both parties, were deposed.
During defendant's deposition, he agreed that taking Plavix or aspirin 3
"would have been a reasonable medical option for [plaintiff]" after learning he
had the Factor V mutation, but defendant explained that he would not
recommend either option. Defendant also indicated that he believed smoking
3 Dr. Sacher testified that Plavix and aspirin are not anticoagulants; rather, they are anti-platelet drugs.
A-4412-17T1 5 was a risk factor for a stroke, and Factor V Leiden was a "big risk" for stroke.4
Further, he explained that the notation in the February 27, 2014 office notes
indicated that he "left there as a question that [plaintiff's] stroke could have been
related to the smoking and/or the Factor V Leiden." This testimony was also
read into the record at trial.
Before trial, plaintiff filed a motion to bar defendant's experts from
offering testimony that would contradict defendant's responses to plaintiff's
requests for admissions. Specifically, plaintiff requested that the judge bar
expert testimony on the issue of causation because defendant's admissions,
including that "[a] Factor V mutation increases the risk of stroke," conclusively
established causation. After hearing oral argument on May 12, 2017, Judge
James R. Swift denied the motion. The judge agreed with defendant that the
admissions were drafted too broadly to conclusively establish causation and that
defendant's experts could explain and qualify defendant's admissions. The judge
also denied plaintiff's motion for reconsideration of this ruling.
4 This testimony was read to the jury during trial, and the following day, counsel and the judge realized there was an apparent typographical error in the transcription, whereby the word "factor" was altered to "Factor V." The deposition testimony likely should have read that "smoking" was a big risk factor for a stroke, rather than Factor V Leiden. During summation, defendant's counsel presented this error to the jury. However, defendant does not raise this point on appeal. A-4412-17T1 6 Plaintiff raised the issue again before trial. Judge Darrell M. Fineman
ruled that defendant's admissions could be read to the jury, and he explained that
he would instruct the jurors that those facts had been conclusively established
but also that he would not direct the jurors to rely on any particular facts. He
further explained that defendant could still offer explanations not inconsistent
with his responses to the requests for admissions and planned to address specific
objections regarding the requests for admission at sidebar.
Trial commenced over seven non-consecutive days between March 5 and
15, 2018 before Judge Fineman. We summarize the relevant testimony below.
Defendant testified that during plaintiff's May 12, 2000 appointment,
defendant told plaintiff that he tested positive for Factor V Leiden but opined
that there was no need to treat it with medication at that time. Instead, defendant
suggested behavioral modifications, including dieting, exercising, keeping
active, and quitting smoking. When presented with the office notes from this
appointment, defendant acknowledged that the notes did not identify plaintiff's
test results or refer to the risks associated with Factor V Leiden.
Defendant explained that Factor V "is one of the numerous clotting
mechanisms that all combine to have your body form appropriate clotting when
you have an injury," and it affects clotting on the venous side of the body. A
A-4412-17T1 7 usual complication on the venous side is a deep vein thrombosis (DVT), which
is "a blood clot in a vein in your deeper circulation." A DVT causes "swelling
[and] some redness, usually in [the] calf" and can lead to a pulmonary embolism,
a serious event that occurs when a clot breaks off and moves into the lungs.
Defendant testified, however, that Factor V Leiden did not affect the risk for the
type of stroke that plaintiff suffered, which was caused by plaque breaking off
from the arteries. In this regard, defendant qualified his prior admission that
Factor V Leiden increases the risk for stroke: Through "a bizarre set of events,"
a pulmonary embolism could lead to a stroke "if that clot was severe enough."
However, he maintained that "Factor V Leiden does absolutely nothing to cause
a plaque on the arterial side of the circulatory system, which is the type of stroke
that [plaintiff] suffered." Defendant added that the sequela after a knee surgery
would create a high risk for blood clots, and plaintiff had knee replacement
surgery in 2008.
However, defendant conceded his prior admission that Factor V Leiden
"increases the risk of a hypercoagulable state" and "a clotting event." He further
conceded that prophylactic anticoagulants were one option for treating a patient
with Factor V Leiden and that "[a] patient who is heterozygous for the R506
Factor V Leiden mutation . . . [a]nd is not anticoagulated is at an increased risk
A-4412-17T1 8 of stroke." Defendant qualified his admissions and deposition testimony,
explaining that anticoagulants or anti-platelet drugs are reasonable treatment
options only after an event, such as a clot, pulmonary embolism, or stroke
because the risk of complications associated with taking these medications is
greater than the risk of suffering an event caused by Factor V Leiden.
Accordingly, it would have been reasonable to discuss these options with
plaintiff in light of his family history, but defendant opined that he "absolutely"
should not have treated plaintiff with these medications at the time. Specifically,
with respect to the anti-platelet drugs, defendant testified that they were "not
[the] standard of care by any means." He later conceded that he had "absolutely
no idea what the law says" as to whether the decision for prophylactic treatment
was to be made by him or plaintiff.
With respect to the February 27, 2014 office notices, defendant explained
the notation, "SPL MCA/CVA → R hemiparesis (? 2° smoking/Factor V)." In
addition to explaining what the notation means, he testified that he "wrote a
question mark implying that we questioned it and that I allowed him to have that
possibility." Defendant clarified that during the appointment, plaintiff was upset
because his family suggested that the stroke was plaintiff's fault since he failed
to quit smoking and lose weight. Defendant then discussed the possible causes
A-4412-17T1 9 of his stroke with plaintiff and "did not dissuade him from the possibility that
there were things that weren't under his control, including Factor V [Leiden],
that may have contributed to [the stroke]." Defendant explained that he felt that
"[t]he reasons that [the stroke] happened at this point in time did not seem as
important to me as the welfare and mindset of my patient."
After defendant testified, the jury heard from plaintiff and his sister.
Plaintiff disputed defendant's recollection of the May 12, 2000 appointment and
testified that defendant told him that his test results showed he had not tested
positive for Factor V Leiden, and they did not discuss "options to decrease [the]
risk of an adverse event happening to [him] because of [his] Factor V
[mutation]." Plaintiff and his sister both testified to a February 2013 neurology
appointment, during which plaintiff told defendant that he thought defendant
told him he tested negative for Factor V Leiden.
Plaintiff testified that before his stroke, he was a licensed boiler operator
and was employed as a boiler engineer by the State of New Jersey at Bayside
State Prison, where he earned about $60,000 per year. At the time of his stroke,
he had been out of work because of his knee surgery. He also testified to his
stay in the rehabilitation center and the therapy he received. He further testified
that, since suffering the stroke, he has been unable to work and has been declared
A-4412-17T1 10 permanently disabled. Thus, his only income source is social security. He
continues to have trouble walking long distances, hunting, speaking clearly,
following directions, and understanding complicated concepts, and he only
drives within a sixty-mile radius. Since about a year before trial, he has resided
with a friend.
After the close of plaintiff's case, defendant called his two experts. Dr.
Sacher testified that Factor V is "one of the components of the clotting system,"
and individuals with Factor V Leiden are "more susceptible to clotting." When
asked about the veracity of defendant's admission that Factor V Leiden increases
the risk of a stroke, Dr. Sacher responded that it was true but needed
qualification. He explained that there was no evidence that Factor V Leiden is
"involved in arterial disease"; rather, it is only associated with venous disease.
An individual can suffer from venous clotting in the brain, known as cerebral
venous thrombosis, which is associated with Factor V Leiden. Venous clots do
not travel to the arterial side of the heart unless an individual has foramen ovale,
which is a hole in the heart. Plaintiff did not have foramen ovale and did not
suffer a cerebral venous thrombosis. Thus, Dr. Sacher concluded to a reasonable
degree of medical certainty that "Factor V Leiden played no role in [plaintiff's]
stroke."
A-4412-17T1 11 Dr. Sacher further testified that for a patient who is heterozygous for
Factor V Leiden, such as plaintiff, the risk of a venous clot increases fivefold to
tenfold. "The absolute risk of getting a clot in anybody is about .01 percent. So
. . . the absolute risk, even though it's five[]fold, is still a low risk." Dr. Sacher
reiterated that these percentages had to do with venous events, and there was no
evidence that Factor V Leiden increases the risk of arterial disease.
When asked about using anticoagulants to treat Factor V Leiden, Dr.
Sacher testified that those drugs are used when the patient develops a venous
clot. They are not, however, used prophylactically for a patient with Factor V
Leiden unless "a person has had a previous clot or is subjected to a situation at
risk, in other words, stagnation, lying in bed for a long time or going for a
surgical procedure or flying long distances in aircraft or taking birth control
pills" because "the relative or the absolute risk of clotting is low and the risk of
using an anticoagulant which is really bleeding is higher."
Dr. Sacher further opined that aspirin would not be used to treat venous
clots in a patient with Factor V Leiden; however, on cross-examination, he
conceded that, during his deposition, he agreed that "[t]hough Factor V Leiden
alone does not seem to raise the risk of arterial clots, something as simple as
daily therapy with low-dose aspirin may help prevent a heart attack or stroke in
A-4412-17T1 12 people with Factor V Leiden if they have additional risk factors." He qualified
this testimony by explaining that it is only true if the patient has a patent foramen
ovale, although he had not explained this during his deposition.
Dr. Sacher testified that risk factors for arterial stroke include high
cholesterol, low cholesterol, high triglycerides, smoking, and obesity, and these
risk factors "compound each other." He agreed that plaintiff had most of these
risk factors and explained that plaintiff's knee replacement surgery and other
extended periods of immobility are "situations of risk . . . [that] increase[] the
risk of an adverse clotting event."
Dr. Sacher agreed that the primary modality for diagnosing an individual
with a patent foramen ovale "may still be missed or misdiagnosed." He was
aware of "reports in the literature of patients being heterozygous for Factor V
[Leiden] having arterial clotting events," and he had testified in other
proceedings that Factor V Leiden issues are "nearly always venous." He also
acknowledged that for a patient who has Factor V Leiden and is asymptomatic,
the decision to provide a low-dose anticoagulant is a "debatable issue" and
"depends [on] if they have other factors of genetic predisposition to venous
clotting." Finally, Dr. Sacher agreed that plaintiff was taking Plavix and aspirin
to decrease the risk that he has another stroke and that "if a person who was
A-4412-17T1 13 predisposed to stroke took Plavix and aspirin, it would decrease the risk of a
first stroke."
After Dr. Sacher's testimony, defendant called Dr. Hocutt. Like Dr.
Sacher, Dr. Hocutt opined that Factor V Leiden is not associated with arterial
disease. Dr. Hocutt also opined that from a family practice perspective, it was
not the standard of care to prescribe aspirin, Plavix, or an anticoagulant until a
patient has suffered a clot or other event because there is a risk that the
medication would cause more harm than good. He also explained that the aspirin
and Plavix plaintiff took after his stroke were specifically for treatment of his
stroke, not Factor V Leiden. Agreeing with Dr. Sacher, Dr. Hocutt opined that
the "Factor V [mutation] had nothing to do with [plaintiff's] stroke."
After hearing summations, the jury returned a verdict, awarding plaintiff
$852,350 in total damages and attributing 55% of the ultimate injury to
defendant's negligence and 45% to plaintiff's preexisting conditions.
Thereafter defendant moved for a mistrial and then for JNOV or, in the
alternative, a new trial. Following oral argument, Judge Fineman rendered an
oral decision denying defendant's motions. The judge found that plaintiff
presented sufficient evidence from which the jury could find the elements of his
A-4412-17T1 14 negligent treatment claim, and he rejected defendant's arguments that plaintiff's
counsel made impermissible arguments during summation. This appeal ensued.
On appeal, defendant argues that the judge erred in denying his motion for
JNOV because plaintiff failed to produce sufficient evidence of a deviation from
the standard of care and causation. Specifically, defendant contends that
plaintiff should have offered expert testimony and that he improperly relied on
defendant's responses to the requests for admissions. Additionally, defendant
argues that the judge erred in denying his motions for a mistrial and a new trial
because during summation, plaintiff's counsel mischaracterized testimony and
invoked the golden rule.
II.
We first address the judge's denial of defendant's motion for JNOV.
Before considering the sufficiency of the evidence plaintiff presented, we
address defendant's contention that plaintiff improperly relied on the requests
for admissions to establish causation.
A.
As requests for admissions are discovery matters, we review rulings on
them for an abuse of discretion. See Torres v. Pabon, 225 N.J. 167, 185 (2016);
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).
A-4412-17T1 15 Rule 4:22-1 governs requests for admissions and allows a party to "serve
upon any other party a written request for the admission . . . of the truth of any
matters of fact within the scope of [Rule] 4:10-2 set forth in the request." Each
matter is deemed admitted unless "the party to whom the request is directed
serves upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or by the party's attorney." Ibid. If
the responding party objects, he or she "shall specifically deny the matter or set
forth in detail the reasons why the answering party cannot truthfully admit or
deny the matter." Ibid.
A party who considers that a matter of which an admission has been requested presents a genuine issue for trial, may not, on that ground alone, object to the request but may, subject to the provisions of [Rule] 4:23-3, deny the matter or set forth reasons for not being able to admit or deny.
[Ibid.]
Requests for admissions are used "to streamline litigation by 'weeding out
items of fact and proof over which there is no dispute, but which are often
difficult and expensive to establish by competent evidence, and thereby expedite
the trial . . . and focus the attention of the parties upon the matters in genuine
controversy.'" Hungerford v. Greate Bay Casino Corp., 213 N.J. Super. 398,
A-4412-17T1 16 404 (App. Div. 1986) (quoting Klimowich v. Klimowich, 86 N.J. Super. 449,
452 (App. Div. 1965)).
Although there is limited authority defining the permissible scope of
information that may be obtained through requests for admissions, we have
identified some guiding principles. The party requesting admissions may only
"seek admissions . . . regarding facts within [the] defendant['s] knowledge."
Torres, 225 N.J. at 185 (finding an abuse of discretion where the judge allowed
the plaintiff to read to the jury the defendants' admissions to a medical doctor's
expert opinion).
Additionally, "request[s] for admissions should not be used in an attempt
to establish the ultimate fact in issue" but should be limited to "requests to admit
underlying facts." Essex Bank v. Capital Res. Corp., 179 N.J. Super. 523, 532-
33 (App. Div. 1981). Essex Bank involved an action in which the bank alleged
that its former vice president conspired to acquire "home improvement paper"
that was unacceptable to the bank. Id. at 525. The former vice president served
requests for admissions intending to elicit an admission that he had not exceeded
his authority in acquiring the instruments. Id. at 526. We determined that these
requests were inappropriate because the defendant "attempted to establish as
admitted by [the] plaintiff that [the] plaintiff could prove no basis for relief
A-4412-17T1 17 against him." Id. at 532. Relying on Essex Bank, we reached the same
conclusion in Hungerford, 213 N.J. Super. at 401-04 (finding a request for
admission inappropriate in an action concerning the reasonableness of a per-
share buy-out price, where the request was intended to elicit an admission that
the buy-out offer was fair and reasonable).
Having considered these principles, we conclude that plaintiff did not
improperly use the requests for admissions at trial. Plaintiff sought admissions
concerning defendant's interactions with plaintiff and about Factor V Leiden
generally. This information was well within defendant's knowledge as plaintiff's
medical doctor, and he was permitted to testify about the cause of plaintiff's
stroke. See Parker v. Poole, 440 N.J. Super. 7, 17-18 (App. Div. 2015) ("[I]t is
well established that a treating doctor testifying as a fact witness is permitted to
testify about the cause of the patient's disease or injury[.]"); see also Stigliano
v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995).
Moreover, the request did not seek admissions to establish the ultimate
issue of causation. The admissions provided information about defendant's
understanding of Factor V Leiden and demonstrated the way he treated plaintiff,
which are relevant to whether defendant deviated from the standard of care.
Further, as we later explain, these admissions were not the only evidence of
A-4412-17T1 18 causation, as plaintiff testified and adduced favorable testimony from defendant
and Dr. Sacher.
B.
We now address the sufficiency of the evidence. Because we conclude
that plaintiff presented sufficient evidence to allow the jury to find in his favor,
and the jurors were instructed not to consider the informed consent claim if they
found that defendant deviated from the accepted standard of care in treating
plaintiff, we only address the sufficiency of the evidence with respect to the
negligent treatment claim.
We review a ruling on a motion for judgment de novo, applying the same
standard that governed the trial court. Frugis v. Bracigliano, 177 N.J. 250, 269
(2003). "[I]f, accepting as true all the evidence which supports the position of
the party defending against the motion and according him the benefit of all
inferences which can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be denied[.]" Verdicchio v.
Ricca, 179 N.J. 1, 30 (2004) (alteration in original) (quoting Estate of Roach v.
TRW, Inc., 164 N.J. 598, 612 (2000)). In applying this "mechanical" standard,
"[t]he trial court is not concerned with the worth, nature or extent (beyond a
scintilla) of the evidence, but only with its existence, viewed most favorably to
A-4412-17T1 19 the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
This standard applies to "a motion for judgment at the close of the plaintiff's
case; a motion for judgment at the close [of all] the evidence; and a motion for
judgment notwithstanding the verdict." Verdicchio, 179 N.J. at 30 (citing R.
4:37-2(b); R. 4:40-1; R. 4:40-2(b)).
Defendant first contends that plaintiff improperly utilized the common
knowledge doctrine to establish that defendant was negligent in his treatment of
plaintiff's Factor V Leiden. Specifically, defendant argues that whether his
failure to treat the mutation caused plaintiff's arterial stroke is a technical matter
to be determined by medical practitioners.
"The general rule in malpractice cases is that 'evidence of a deviation from
accepted medical standards must be provided by competent and qualified
physicians.'" Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)
(quoting Schueler v. Strelinger, 43 N.J. 330, 345 (1964)). However,
[i]n some medical malpractice cases, the jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts. The doctrine of common knowledge is appropriately invoked where the "carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience."
A-4412-17T1 20 [Ibid. (quoting Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)).]
In such instances, a plaintiff may proceed without expert testimony on the
standard of care. See ibid. For example, whether a doctor was required to
communicate the results of an exam or test is a matter not so "peculiarly within
the [expertise and] knowledge of trained medical experts" as to necessitate
expert testimony. Jenoff v. Gleason, 215 N.J. Super. 349, 357, 358 (App. Div.
1987) (holding expert testimony not required where radiologist failed to
communicate an unusual finding to the plaintiff's treating physician).
Accordingly, we conclude that plaintiff did not improperly rely on the
common knowledge doctrine. As the judge found, there was ample evidence
from which the jury could find that defendant miscommunicated the test results
to plaintiff, including plaintiff's testimony and the lack of any notations
mentioning Factor V Leiden in defendant's notes from 2000 to 2012. If the
jurors believed plaintiff's testimony, they could find that defendant deviated
from the standard of care. See id. at 358. Although defendant aptly contends
that plaintiff presented no expert testimony to substantiate whether defendant 's
failure to treat plaintiff's Factor V Leiden caused his arterial stroke, under the
distinct facts of this case, this contention bears on the issue of proximate
causation, which we discuss next.
A-4412-17T1 21 Defendant next contends that plaintiff failed to present expert testimony
on proximate causation as required by Scafidi, 119 N.J. 93. Specifically,
defendant contends that to the extent that plaintiff claimed he should have been
treated with aspirin for other stroke risk factors, plaintiff was required to present
expert testimony to support that Factor V Leiden combined with those factors to
increase his risk of stroke.
Generally, "[i]n a medical-malpractice action, the plaintiff has the burden
of proving the relevant standard of care governing the defendant-doctor, a
deviation from that standard, an injury proximately caused by the deviation, and
damages suffered from the defendant-doctor's negligence." Komlodi v.
Picciano, 217 N.J. 387, 409 (2014). For cases in which both a doctor's
negligence and a plaintiff's preexisting condition contribute to the harm, our
Supreme Court has adopted a modified standard to evaluate causation.
Verdicchio, 179 N.J. at 24; see Scafidi, 119 N.J. at 108-09.
Under this modified standard, "a jury must decide whether [(1)] any
'negligent treatment increased the risk of harm posed by a preexistent condition '
and, [(2)] if so, 'whether the increased risk was a substantial factor in producing
the ultimate result.'" Komlodi, 217 N.J. at 414 (quoting Scafidi, 119 N.J. at
108). If the plaintiff proves both elements, "the burden shifts to the defendant
A-4412-17T1 22 to show what damages should be attributable solely to the preexisting condition
as opposed to the physician's negligence." Ibid.
To satisfy the first element, plaintiff was required to prove that defendant's
failure to disclose that plaintiff had Factor V Leiden deprived him of the
opportunity for treatment and, consequently, increased his risk of suffering an
arterial stroke. Accordingly, plaintiff implicitly had to prove that some
treatment option for Factor V Leiden would have decreased the risk of him
suffering an arterial stroke.
Viewing the evidence in a light most favorable to plaintiff, and granting
him all reasonable inferences, we conclude that plaintiff presented sufficient
evidence to allow the jury to find that defendant's failure to inform plaintiff that
he had Factor V Leiden increased his risk of suffering an arterial stroke. In
response to the requests for admissions, defendant admitted that Factor V Leiden
increases the risks of a clotting event and of a stroke, and although these
admissions did not differentiate between venous and arterial strokes, defendant
had the opportunity to deny this statement as overly general and then qualify it
as he did with other requests. Defendant also admitted that prophylactic
anticoagulants were a treatment option for Factor V Leiden. Moreover, Dr.
Sacher agreed that "[t]hough Factor V Leiden alone does not seem to raise the
A-4412-17T1 23 risk of arterial clots, something as simple as daily therapy with low-dose aspirin
may help prevent a heart attack or stroke in people with Factor V Leiden if they
have additional risk factors." Indeed, plaintiff had several additional risk
factors.
To satisfy the second element, plaintiff was required to prove that
defendant's failure to correctly communicate plaintiff's test results was a
substantial factor in causing plaintiff's arterial stroke. "[T]he defendant's
negligence need not be the sole or primary factor[.]" Verdicchio, 179 N.J. at 25
(quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation
§ 4.03, 4-4 (West Group 2002)); see Velazquez v. Jiminez, 336 N.J. Super. 10,
31-32 (App. Div. 2000), aff'd, 172 N.J. 240 (2002) (holding that a defendant's
mere 3% liability for a patient's injury was sufficient to submit the issue of
substantial factor causation to the jury). "Substantial" means that "the
defendant's conduct ha[d] such an effect in producing the harm as to lead
reasonable men to regard it as a cause." Verdicchio, 179 N.J. at 25 (quoting
Restatement (First) of Torts § 431 cmt. a (Am. Law Inst. 1934)). A factor is not
substantial, however, if one or more other contributing factors had such a
predominant effect in bringing about the harm that the defendant's negligence
was insignificant. Ibid.
A-4412-17T1 24 Again, viewing the evidence in a light most favorable to plaintiff, and
granting him all reasonable inferences, we conclude that plaintiff presented
sufficient evidence to allow the jury to find that defendant's negligence was a
substantial factor contributing to plaintiff's arterial stroke. Most importantly,
defendant's February 27, 2014 office notes indicating that plaintiff's stroke was
secondary to smoking and Factor V Leiden was persuasive evidence. See Lanzet
v. Greenberg, 126 N.J. 168, 191 (1991) ("Proof of deviation elicited from the
defendants themselves, because they are competent professionals, could be
relied on by the jury."). Dr. Sacher's testimony also supported the jury's
findings, as he testified that low-dose aspirin was a treatment option for patients
with Factor V Leiden and additional risk factors, that extended periods of
immobility "increase the risk of an adverse clotting event," and that risk factors
for arterial stroke compound each other. Dr. Sacher also acknowledged that he
was aware of "reports in the literature of patients being heterozygous for Factor
V [Leiden] having arterial clotting events," while he had testified in other
proceedings that Factor V Leiden is "nearly always venous."
Although defendant correctly notes that he and his experts consistently
testified that Factor V Leiden plays no role in increasing the risks of arterial
disease and arterial strokes, "[a] jury 'need not give controlling effect to any or
A-4412-17T1 25 all of the testimony provided by experts even in the absence of evidence to the
contrary.'" Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div.
2010) (quoting State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd,
130 N.J. 484 (1993)).
Accordingly, as plaintiff presented sufficient evidence that defendant
deviated from the standard of care and that deviation was a substantial factor
contributing to plaintiff's arterial stroke, we conclude that the judge did not err
in denying defendant's motion for JNOV.
III.
We next address the denial of defendant's motion for a new trial. We
review such rulings under the same standard that bound the trial court. Risko v.
Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011). The judge 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." R. 4:49-1(a). A
miscarriage of justice is a "pervading sense of 'wrongness' . . . [which] can arise
. . . from manifest lack of inherently credible evidence to support the finding,
obvious overlooking or undervaluation of crucial evidence, [or] a clearly unjust
A-4412-17T1 26 result." Risko, 206 N.J. at 521 (second, third, and fourth alterations in original)
(quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)).
The judge considers "not only tangible factors relative to the proofs as
shown by the record, but also appropriate matters of credibility, generally
peculiarly within the jury's domain, so-called 'demeanor evidence,' and the
intangible 'feel of the case' . . . gained by presiding over the trial." Dolson, 55
N.J. at 6. Therefore, a court may grant a new trial even though "the state of the
evidence would not justify the direction of a verdict." Ibid. Nonetheless, we
"must give 'due deference' to the [judge's] 'feel of the case.'" Risko, 206 N.J. at
522 (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)).
Defendant contends that a new trial is warranted to avoid a miscarriage of
justice because plaintiff lacked credible evidence to support a prima facie case
and improperly utilized the requests for admissions to establish ulti mate issues.
He also maintains that plaintiff improperly advanced a theory that plaintiff
should have been treated for other risks of arterial stroke irrespective of Factor
V Leiden but offered no expert testimony to support this theory.
As we have explained, the trial judge did not abuse his discretion in ruling
on the requests for admissions, and plaintiff presented sufficient evidence to
support a claim of negligent treatment. Although defendant presented a greater
A-4412-17T1 27 quantum of evidence to support his case, "[a] reviewing court should not disturb
the findings of the jury merely because it would have found otherwise upon
review of the same evidence." Delvecchio v. Township of Bridgewater, 224
N.J. 559, 572 (2016). Moreover, the trial judge found plaintiff's testimony to be
credible, and his feel of the case warrants our deference. See Risko, 206 N.J. at
522. Accordingly, we conclude that the judge did not err in denying defendant's
motion for a new trial.
IV.
Finally, we address the denial of defendant's motion for a mistrial. We
review such rulings for an abuse of discretion. State v. Harvey, 151 N.J. 117,
205 (1997). When addressing "a motion for a mistrial, trial courts must consider
the unique circumstances of the case." State v. Smith, 224 N.J. 36, 47 (2016).
Defendant first contends that plaintiff's counsel made arguments during
summation that were unsupported by the evidence. Specifically, defendant
asserts that plaintiff's counsel mischaracterized Dr. Sacher's testimony by (1)
arguing that the standard of care required that plaintiff be treated for his Factor
V Leiden with a regiment of low-dose aspirin before a DVT or other event; (2)
A-4412-17T1 28 failing to distinguish between arterial and venous strokes; and (3) insinuating
that defendant was negligent in failing to treat plaintiff for other risk factors.
"As a general matter, 'counsel is allowed broad latitude in summation
[and] counsel may draw conclusions even if the inferences that the jury is asked
to make are improbable, perhaps illogical, erroneous or even absurd.'" Bender
v. Adelson, 187 N.J. 411, 431 (2006) (alteration in original) (quoting Colucci v.
Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)). "Nevertheless,
counsel's comments must be confined to the facts shown or reasonably suggested
by the evidence introduced during the course of the trial." Colucci, 326 N.J.
Super. at 177. "When summation commentary transgresses the boundaries of
the broad latitude otherwise afforded to counsel, a trial court must grant a party's
motion for a new trial if the comments are so prejudicial that 'it clearly and
convincingly appears that there was a miscarriage of justice under the law.'"
Bender, 187 N.J. at 431 (quoting R. 4:49-1(a)); see, e.g., Geler v. Akawie, 358
N.J. Super. 437, 466-67, 472 (App. Div. 2003) (holding that a new trial was
warranted after the plaintiff's counsel "misstated material elements of the
evidence").
Counsel's argument that plaintiff should have been treated with low-dose
aspirin for Factor V Leiden and his additional risk factors was supported by Dr.
A-4412-17T1 29 Sacher's agreement with a similar proposition during his deposition, as well as
his testimony regarding the compounding effect of risk factors for arterial
disease. Likewise, counsel had wide latitude to make arguments about plaintiff's
stroke without explicitly distinguishing between arterial and venous stroke.
More specifically, counsel did not mischaracterize Dr. Sacher's testimony about
elevated homocysteine levels being a risk factor for stroke by failing to
distinguish between arterial and venous strokes, as she simply urged the jury to
discredit his testimony that plaintiff's homocysteine levels were irrelevant to
determining whether Factor V Leiden contributed to his stroke. Moreover, as
defense counsel did not object to this characterization during summation, we
presume that it was not prejudicial. See Fertile v. St. Michael's Med. Ctr., 169
N.J. 481, 495 (2001). Lastly, plaintiff's counsel did not assert a theory that
defendant should have treated plaintiff for additional risk factors irrespective of
Factor V Leiden. Rather, she argued that medication was a treatment option for
the combination of Factor V Leiden and other risk factors.
Defendant also contends that plaintiff's counsel inappropriately invoked
the "golden rule" during summation by asking the jurors to consider damages as
if they were in the plaintiff's position.
A-4412-17T1 30 It is well established that when discussing the jury's role in determining
damages, an attorney may not invoke the so-called "golden rule," that is, "asking
jurors to award damages in the amount that they would want for their own pain
and suffering." Henker v. Preybylowski, 216 N.J. Super. 513, 520 (App. Div.
1987). Permitting an invocation of the golden rule would allow an attorney to
impermissibly "encourage[] the jury to depart from neutrality and to decide the
case on the basis of personal interest and bias rather than on the evidence."
Geler, 358 N.J. Super. at 464 (quoting Spray-Rite Serv. Corp. v. Monsanto Co.,
684 F.2d 1226, 1246 (7th Cir. 1982), aff'd on other grounds, 465 U.S. 752
(1984)).
Although counsel spoke in the second person and began by stating "you
can consider what it must be like or would be like to be [plaintiff] for a year,"
what followed was not an instruction for the jurors to determine damages based
on their own personal interests. Counsel painted a picture of the difficulties that
plaintiff suffered, including feeling useless and depressed, needing assistance
with everything, and being unable to walk and communicate with others as he
had previously done. She then asked the jury to "consider what you feel the
value of that would be." Again, we note that defendant failed to object during
A-4412-17T1 31 summation, indicating that counsel's remarks were not prejudicial when made.
See Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).
Accordingly, as plaintiff's counsel neither prejudicially mischaracterized
the trial testimony nor improperly invoked the golden rule, we conclude that the
denial of defendant's motion for a mistrial was proper.
To the extent that we have not addressed the parties' remaining arguments,
we conclude that they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4412-17T1 32